Week 22: Judicial Review - amendability, justiciabilty, illeglity, irrationality Flashcards
Describe tripartite relationship
Tripartite relationship (three party relationship)
- Conferring Authority: delegates a power to a body or individual
- Decision Maker: has a power that was delegated by the other body
- Individual: is subject to the decision made by the decision maker
What is the purpose of judicial review
to ensure that the decision maker acts within the scope of the power and reasonably and appropriately, inaccordance with principles of fairness
What is the scope of a tripartite relationship?
- The Parliament of the United Kingdom has entrusted the Secretary of State for theHome Department (Home Secretary) under the Immigration Acts to make decisions upon leave to enter or remain in relation to individuals subject to immigration control.
- The Secretary of State, per his powers entrusted by the Immigration Acts, makes adecision in relation to Mr and Mrs Smith. Mr Smith is a British national and is marriedto Mrs Smith, an American national. The Secretary of State refuses Mrs Smith leave toremain as the spouse of Mr Smith. He does so upon the basis he does not believe themarriage between the two is genuine and subsisting
- Mrs Smith wishes to challenge the decision of the Secretary of State. She seeks to challenge upon the basis that the Secretary of State left out of account key evidence relating to the nature and duration of her relationship with Mr Smith.She is able to do so as the Secretary of State is making a decision, under statute, which falls within the nature of the tripartite test discussed in West v Secretary of State for Scotland 1992 SC 385
Describe the boundaries of judicial review and the 3 preliminary issues
Remember the constitutional role of the courts
Boundaries must be delineated – one of the first issues the court will consider is if they can review
Three preliminary issues:
- Permission – courts have discretion to refuse permission
- Jurisdiction
- Justiciability
Describe judicial review procedure in England & Wales
Civil Procedure Rules, Pt 54
- 54.1(2)(a): “a ‘claim for judicial review’ means a claim to review the lawfulness of (i) an enactment; or (ii) a decision, action, or failure to act in relation to the exercise of a public function.”
Two stages
- Must obtain permission to proceed (CPR, 54.4)
- If granted permission, claim then considered by the court
Permission granted if
- Claim is arguable
- Claim made within 3-month time-limit (CPR, 54.5)
- Claimant has sufficient interest (standing)
- Other avenues of redress have been exhausted (e.g. internal appeal)
- Court considers that if successful the claim would make a difference to the claimant.
Describe judicial review procedure in Scotland
Rules of the Court of Session, Ch.58
- Ch.58 applies to an application to the supervisory jurisdiction of the court – application must be made by petition for judicial review (r 58.1(1))
- Cannot petition for JR if application could be made by appeal or review under any enactment (r 58.3(1))
- Must apply within three months (s.27A(1), Court of Session Act 1988 (CSA 1988), as amended)
- Need permission of the court to proceed (s.27B(1), CSA 1988, and see Wightman v Advocate General for Scotland[2018] CSIH 18at [9],2018 SC 388,2018 SCLR 588,2018 SLT 356)
- Permission will only be granted if:
Applicant has sufficient interest
Application has a real prospect of success (grounds of review not fanciful – s.27B(2), CSA 1988, and see Wightman)
Explain the jurisdiction in English Law (Do the courts have the jurisdiction to make particular orders)
- Supervisory jurisdiction founded in the common law, but may be restricted by statute,
- “The High Court shall have jurisdiction to make mandatory, prohibiting and quashing orders in those classes of case in which, immediately before 1st May 2004, it had jurisdiction to make orders of mandamus, prohibition and certiorari respectively.” s29(1A), Senior Courts Act 1981
- Determine jurisdiction by:
Source of decision-maker’s authority may review statutory or some prerogative powers (see GCHQ case).
Whether prerogative power is reviewable determined by inquiring whether the issue at stake is justiciable or not - R. v Secretary of State for the Home Department Ex p. Bentley [1994] Q.B. 349at 453. For latest extension to justiciability of prerogative power, see R. (on the application of Miller) v Prime Minister [2019] UKSC 41; [2020] A.C. 373at [31]; see also [52], but note the Dissolution and Calling of Parliament Act 2022, ss 2 and 3 - Function – must have a public character
Describe the distinction between justiciable and jurisdiction
Jurisdiction says courts can look at statute, statutory powers and prerogative powers.
Justiciability is talking about the actual subject matter of the power thats been exercised
Explain jurisdiction in Scottish Law
Leading case: West v Secretary of State for Scotland1992 SC 385:
The Court of Session
- '’has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument. …
- The sole purpose for which the supervisory jurisdiction may be exercised is to ensure that the person or body does not exceed or abuse that jurisdiction, power or authority or fail to do what the jurisdiction, power or authority requires.” (at 412-413)
- Application to the supervisory jurisdiction of the court “does not depend upon any distinction between public law and private law, nor is it confined to those cases which English law has accepted as amenable to judicial review…” (at 413)
Give an overview of what the courts can review in England and Wales
Not reviewable:
- Primary Legislation (Acts of the Westminster Parliament)
Reviewable:
- (1) Exercises of public functions
Statutory public functions
Exercise of Royal Prerogative (except personal powers, and dissolution of Parliament)
Exercise of de facto public functions - (2) Delegated legislation
Give an overview of what the courts can review in Scotland
Not reviewable:
- Primary Legislation (Acts of the Westminster Parliament) (creature of statute- comes from those in westminster)
Reviewable:
(1) Acts of the Scottish Parliament
(2)Exercises of public functions
- Statutory public functions
- Exercise of Royal Prerogative (except personal powers, and dissolution of Parliament)
- Exercise of de facto public functions
(3) Delegated legislation
Summarise justiciability: What powers are unreviewable, what is judicial review by the courts limited by.
No power, whether statutory, common law or under the prerogative, is inherently unreviewable (De Smiths Judicial Review, Ch.1), but NB prerogative to dissolve Parliament
Judicial review by the courts only limited by:
- Constitutional role
- Institutional capacity (e.g. court lacks expertise or matters are polycentric (decision maker has broad discretion with policy or public interest considerations).
What is substantive review
a review of the substance of the decision
Is judicial review about the lawfulness or correctness of a decision?
lawfulness
substantive review
What are the courts trying to understand when considering illegality
- Has decision-maker understood the law + given effect to it?
- Taken into account relevant considerations?
- Exercised discretion for proper purpose?
Substantive review
What are the courts looking at regarding irrationality/unreasonableness?
- Was the decision ‘reasonable’?
- Was it one that no reasonable public body could have made?
- Seriously flawed?
Substantive review
What are the courts looking at regarding proportionality
- Was the decision justified?
- Rationally connected to the objective?
- Could less intrusive measure have been used? Fair balance struck?
