6 - The Grounds of Judical Review

Question 1

The Three (Domestic) Grounds of Claim by Lord Diplock in CCSU v. Minister for Civil Service (1984)

Answer 1

• Illegality
• Proportionality
• Procedural Impropriety

illegality and irrationality are substantive grounds of review as they focus on the ‘substance’ of the decision

Procedural Improrpiety focuses on the procedure

Question 2

European Grounds

Answer 2

• breach of the ECHR
• breach of retained EU Law

Question 3

Judicial Review is…

Answer 3

the mechanism which the courts ensure that public bodies act within the powers that they have been granted and do not exceed or abuse those powers.

Ot makes sure that public bodies make decisions in the ‘right way’

Question 4

Judicial Review and the Rule of Law…

Answer 4

J.R. prevents the exercise of power that doesnt have a lawful basis

Question 5

Judicial Review and Parliamentary Sovereignty…

Answer 5

J.R. does not conflict with P.R. because review is only avaliable for secondary legislation

Question 6

Illegality

Answer 6

an action is illegal / ultra vires if it is beyond the powers of the public body in question because:
- the powers claimed dont exist
- the powers were exceeded or abused

Question 7

Case: R v. Richmond-upon-Thames LBC, ex p. McCarthy and Stone (Developments) Ltd (1992)

Answer 7

Facts - Mc&S consulted by Richmond planning officers before deciding to make a planning application. They were charged a fee by Richmond, who said they were entitled to levy this fee under power in s111 of the Local gvt act

Held - [acting without legal authority]
HoL found for McCarthy and Stone, saying that the chargers for providing informal pre-application planning advice was ultra vires because of the lack of a relevant power

Question 8

The Rule against Delegation

Answer 8

There is a general rule that decision making powers, once given by Parliament, cannot be futher delegated.

Confirmed in case Vine v. National Dock Labour Board (1957)

Question 9

Exceptions to the rule against delegation

Answer 9

1. Carltona Principle
2. Local Government Act 1972, s101

Question 10

Carltona v. Commissioner of Works [1943] –> established the Carltona Principle

Answer 10

Government ministers sub-delegating decision making powers to civil servants in their departments provides an exception to the rule against delegation.

Because of individual ministerial responsibility which makes ministers ultimately responsible to Parliament for their departments, there is an exception that they act through their civil servants in taking even major decisions

Question 11

Local Government Act 1972, s101

Answer 11

Local authorities may delegate decision making powers to committies and alike provided they make a formal resolution to do so

Question 12

Fettering of discretion

Answer 12

If Parliament provides a public body with a discretionary power, the courts will not permit that body to restrict or ‘fetter’ such discretion.

They do this by:
1. acting under the dictation of another
2. applying a general policy in too strict of a manner

Question 13

Case: Lavender & Sons LTD v. Minister of Housing and Local Government (1970)

Answer 13

Facts - LnS was refused planning permission. The rejection letter said that the minister would not grant permission unless the minister of agriculture is not opposed to mineral working (basically, if the agricultrual objection had not been waived, he had decided not to grant permission)

Held - Although the minister was entitled to formulate a general policy, the decison was not based on a general policy but on another minister’s objection. The Minister had fettered his discretion by not opneing his mind to LnS’s application.

Question 14

Case: British Oxygen v. Minister of Technology (1971)

Answer 14

Facts - MT made a general policy regarding the awarding of grants for items at least £25. British Oxygen was rejected as their products cost only £20

Held - (applying general policy as to the exercise of discretion in too strict a manner) Anyone who has a statutory discretion must not shut his ears to an application and must always be willing to listen to anyone with something new to say

on the facts, the HoL held that the Ministry had acted properly

Question 15

Congreve v. Home Office (1976)

Answer 15

Facts - TV License Case

Held - Found for Congreve, stating that the Home Office had no authority to revoke the licences,. This would represent a misues of the power conferred on the government by Parliament

Question 16

Dual Purposes - Primary Purpose test in case: Westminster Corporation v. LNWR (1905)

Answer 16

Where there are dual purposes behind a decision, provided the permitted purpose is the ‘primary’ purpose, then the decision is not ultra vires and should stand.

Facts - building underground toilets to be accessed from both sides of the street, effectively creating a subway

held - the primary purpose was the constructuon of conveniences. in Westmin. favour

Question 17

R v. Inner London Education Authority, ex p Westminister City Council (1986) - authorised and not authorised purposes test

Answer 17

When there are two purposes, one authorised and one unauthorised, the test is - was the authority persuing an unauthorised purpose which materially influenced the making of its decision?

Question 18

Padfield v. Minister of Agriculture (1968)

Answer 18

Principle: A public authority must both disregard irrelevant considerations and take into account relevant considerations when exercising its powers

Held: the HoL had taken into account an irrelevant consideration in deciding not to exercise his discretion to order an investigation

Question 19

Errors of law

Answer 19

Errors of law that affect a decision will always be amenable to Judical Review, confimed in Anisimic Ltd v. Foreign Compensation Commission (1969)

Question 20

Anisimic Ltd v. Foreign Compensation Commission (1969)

Answer 20

Facts - the FCC had statutory responsibility for deciding claims for compensation by UK companies that suffered losses as a result of war damage

Held - HoL held that as a matter of law, a purchaser was not a successor in title. Held in Anisimic’s favour

errors of law are therefore always amenable to judicial review

Question 21

Errors of Fact

Answer 21

courts are more reluctamt to allow judicial review for errors of fact then errors of law. Only jnurisdictional errors of fact are amenable to J.R.

Question 22

ex p Khawaja [1984]

Answer 22

Held - decisions based on alleged errors of fact that go to the root of a public authority’s capacity to act are reviewable

Question 23

Irrationality

Answer 23

Requires proof of a very high degree of unreasoanbleness

Question 24

Wednesbury Principle

Answer 24

Having regard to relevant considerations only, the decision maker came to a conclusion so unreasoanble that no reasonable authority could ever have come to it

(Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223

Question 25

CCSU v. Minister for Civil Service (1984)

Answer 25

Lord Diplock - To be irrational, a decision needed to be so outrageous in its defiance of logic, or of accpeted moral standards, that no sensible person coul have arrived at it.

Question 26

Procedural Grounds of Review

Answer 26

The procedure followed in arriing at the decision under review

Question 27

Procedural Fiarness - Natural Justice rles established by Fiarmount Investments v. Secretary of State for the Environment (1976)

Answer 27

• the rule against bias (no personal interst in the outcome of the decision) - both direct and indirect interests
• the right to a fair hearing

Question 28

Direct Interest

Answer 28

The court is normally obliged to qyash the decision as bias on the part on the decision maker is presumed

Question 29

Dimes v. Grand Junction Canal Proprietors (1853)

Answer 29

Interest that may lead to financial gain (like owning significant shares)

Question 29

R v. Bow Street Metropolitan Stipendiary Magistrate and others, ex p Pinochet (2000)

Answer 29

Facts: Augusto Pinochet, the former Chilean dictator, was arrested in London in October 1998 on a Spanish extradition request. Spain sought Pinochet’s extradition to face charges of human rights abuses, including torture, murder, and forced disappearances committed during his rule from 1973 to 1990.

Held: Pinochet did not enjoy immunity for acts of torture and could be extradited to Spain.
BUT one of the Lords was achariman of Amnest International, which was allowed of intervene in the appeal. Pinochet sought to have the decision set aside on this basis.

Thereore in **Pinochet no 2* the Lords overturned the decision.

Question 29

Indirect Interest

Answer 29

Cannot quash the decision automatically. It needs to investgate the relationsip between the indiret interest and the decision, and decide whether the deision should be qashed on the basis of apparent bias

Question 29

Porter v Magill (2002)

Answer 29

Indirect Interest Test - would a fair minded and impartial oserver conclude that there had been a real possibility of bias?

Facts - The controversy centered on the “Homes for Votes” scandal, where it was alleged that the Council engaged in gerrymandering by selling council houses in marginal wards to likely Conservative voters to manipulate electoral outcomes. John Magill, found that Porter and others had unlawfully used their powers for political advantage, resulting in a substantial financial loss to the council.

Held - magill had not unwittingly created for himself an indirect interest in the outcome of the investigation

Question 30

Board of Education v. Rice (1911)

Answer 30

Right to a fair hearing - duty on deciwion makers to act in good faith and listen fairly to both sides

Question 31

McInnes v. Onslow Fane (1978)

Answer 31

Right to a fair hearing - A key determining factor in deviding whether a hearing has been fair is the question how much the claimant had to lose. This case established three categories of claimant:
- forfeiture cases
- legitimate expectation cases
- application cases

Question 32

Forefeiture cases

Answer 32

The claimant has the most to lose. The claimant having been deprived of soemthing they previously enjoyed. They can expect a lot more from their hearing

Case: Ridge v. Baldwin (1964)

Question 33

Legitimate Expectation Cases:

Answer 33

Legitimate for the claimant to expect that an established practice would continue (e.g. renewal of a licence) that they have held previously. also includes payments

2 Options
1. Proceudral legit expectation when a decision maker has failed to follow a normal procedure
2. substantive legitimate expectation - led sb to believe that he/she will recieve a benefit

Case for Proedurea: R v. Liverpool Corporation, ex p Liverpool Taxi Fleet Operators (1972)

Question 34

Application cases

Answer 34

The claimaint is a first time applicant who seeks a licence, membership or offce they didnt hold previously. They can expect a lot less fro their hearing

Case: McInnes v. Onslow Fane (1978)

Question 35

Fairmount Investmnents Ltd v. Secretary of State for the Environment (1976)

Answer 35

Claimants in fair hearing cases should know the case against them and have the right to reply at each stage of the decision making process

Held - Natrual justice requires that individuals should know the case against them and have the opportunity to respond at each stage of the decision making process

Question 36

R (Hasan) v. Secretary of State for Trade and Industry (2008)

Answer 36

the law did not recognise a general duty to give reasons for an administrative decision. There are exceptions

Question 37

R v. Civil Service Appeal Board, ex p Cunningham

Answer 37

Held - natrual justice requires that a decision maker should give reasons for a decision where fairness requres that a claimant should have an effective right to challenge a decision that looks wrong

Question 38

R v. Secretary of State for the Home department, ex p Doody (1994)

Answer 38

Exception to no general duty to give reasons for an admin decision:

• where the legal subject is particularly important
  0 when the decision appears abberant (completely wrong)

Question 39

Procedural Ultra Vires

Answer 39

There are mandatory and directory requirements

Failure to comply with a mandatory requirement rendered the decision invalid on grounds of procedural ultra vires, but failure to comply with a directory requirement did not

Question 40

Substantive Legitimate Expectations

Answer 40

A substantive legitimate expectation may occur where the decision maker has led someone to believe that they will recieve a benefit

Question 41

R v. IRC, ex p Unilever plc (1996)

Answer 41

Because Inalnd Recenue had always accepted such claims by the company in the past, the court held that, based on IRC’s past practice, refusal to grant the relief would be irrational

Question 42

R v. North and East Devon Health Authority, ex p Coughlan (2001)

Answer 42

Facts - the claimant was disabled and consented to be moved to a new care facility on the basis that she had been assured by the health authority that this would be her home for life. A few years later, the authority decided to close the facility.

Held - The court decided that the promise had induced a legit expectation of substantive benefit and the frustration of the expectation was so unfair that it would amount to an abuse of power. There was no overriding public interest to justify the breach of her legitimate expectation.

Question 43

R(Niazi) v. Secretary of State for the Home Dept (2008)

Answer 43

Substantive legititmate expectation would only arise where the public body concerened had made a specific undertaking, directed at a particular individual or group, that the relevant policy would be continued