6. The Grounds of Judicial Review

Question 1

What is judicial review?

Answer 1

Not concerned with the merits of the public body’s decision. JR makes sure that public bodies make decisions in the right way.

Question 2

What are the 3 domestic grounds for JR?

Answer 2

illegality (substantive)
irrationality (substantive)
procedural impropriety.

Question 3

Aside from the domestic grounds for JR, what are the 2 further European grounds?

Answer 3

breach of the ECHR; and
breach of retained EU law

Question 4

How might illegality occur?

Answer 4

An action is illegal or ultra vires if it is beyond the powers of the public body either because the powers claimed do not exist, or because they are exceeded or abused in some way.

Question 5

Explain the general rule against delegation

Answer 5

Decision-making powers, once given by Parliament, cannot
then be further delegated.

Question 6

What are 2 important exceptions to the general rule against delegation?

Answer 6

The Carltona principle
S 101 of the Local Government Act 1972.

Question 7

Explain the Carltona principle

Answer 7

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

Question 8

Explain the Local Government Act 1972, s 101

Answer 8

Local authorities may delegate decisionmaking powers to committees, sub-committees or to individual officers, provided they make a formal resolution so to do.

Question 9

Explain the principle of “fettering of discretion” and the 2 ways it occurs

Answer 9

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

May occur in two ways:
(a) acting under the dictation of another; or
(b) applying a general policy as to the exercise of discretion in too strict a manner.

Question 10

Illegality: using powers for an improper or unauthorised purpose

Answer 10

Public authorities will be acting illegally if they use their powers for an improper or unauthorised purpose.

Question 11

Illegality: dual purposes

Answer 11

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

OR

Was the authority pursuing an unauthorised purpose, which
materially influenced the making of its decision?

Question 12

Illegality: taking account of irrelevant considerations or failing to take account of relevant considerations

Answer 12

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

It need not always be the case that a public authority both takes into account an irrelevant consideration and fails to take into account a relevant consideration. It may simply do one or the other.

Question 13

JR: errors of law

Answer 13

Errors of law that affect a decision will always be amenable to judicial review.

Question 14

JR: errors of fact

Answer 14

The courts are more reluctant to allow judicial review for errors of fact than errors of law.

Some errors of fact are, however, amenable to judicial review:
- ‘Jurisdictional’ errors of fact
- Other errors of fact

Question 15

What are ‘Jurisdictional’ errors of fact

Answer 15

These are reviewable by the courts.

Jurisdictional = decisions based on alleged errors of fact that go to the root of a public authority’s capacity to act.

Question 16

Assume that a statute (fictitious) gives local authorities the power to grant licences to cinemas in their area ‘on such conditions as they think fit’. Exercising this power, a local
authority grants a company a licence on condition that no film should be shown at its cinemas unless approval is first obtained from the local Churches Committee. The company
objects to this condition.

Describe whether the company can successfully seek
judicial review of this licence condition?

Answer 16

There is illegality as the licensing authority had delegated its decision-making power to another body, which was neither a civil servant nor a local authority committee or officer.

Question 17

How are challenges under irrationality successful?

Answer 17

Requires proof of a very high degree of unreasonableness.

Question 18

What is the ‘Wednesbury Principle’?

Answer 18

This laid down the test for unreasonableness.

Question 19

Describe the Wednesbury Principle’s test for unreasonableness.

Answer 19

To be irrational, a decision needed to be so outrageous
in its defiance of logic, or of accepted moral standards, that no sensible person could have arrived at it.

Question 20

How do the procedural grounds for JR differ from the substantive grounds?

Answer 20

The focus is not on the decision itself, but instead on the procedure followed in arriving at the decision under review..

Question 21

What are the rules of natural justice

Answer 21

Common law rules, meaning that they were created by the judiciary, an unelected body.

Question 22

What are the 2 rules of natural justice?

Answer 22

• the rule against bias
• the right to a fair hearing.

Question 23

What are direct interests?

Answer 23

An interest that may lead to financial gain.

Question 24

What are indirect interests?

Answer 24

Would a fair-minded and impartial observer conclude that there had been a real possibility of bias?

Question 25

Explain the 2nd common law rule of natural justice - the right to a fair hearing

Answer 25

The rules of natural justice demand that a hearing should
be fair in all circumstances, although what constitutes a fair hearing depends on factors such as the nature of the interest of a party adversely affected by a decision.

Question 26

What is a key determining factor applied by the courts in deciding whether a hearing has been fair?

Answer 26

The question of how much the claimant had to lose.

Question 27

What are 3 categories of claimants, depending on the nature of their interest?

Answer 27

Forfeiture cases = cases where the claimant had the most to lose

Legitimate expectation cases = cases where it was legitimate for the claimant to expect that an established practice would continue

Application cases = cases where the claimant is the first-time applicant who merely seeks a licence, membership or office that they have not held previously

Question 28

What is the final category of procedural impropriety

Answer 28

Breach of statutory procedural requirements (or procedural ultra vires), whether a procedure set within a statute should be followed, depends on Parliament’s intention in the face of its breach.

Question 29

What are the three academic theories concerning the constitutional justification for judicial review?

Answer 29

Common law theory, modified ultra vires theory, and ultra vires theory.