6. The Grounds of Judicial Review

Question 1

What powers can be judicially reviewed?

Answer 1

1. Powers under statute and delegated legislation
2. Delegated legislation
3. Prerogative powers - so long as they do not contain non-justiciable matters

Question 2

Non-justiciable matters

Answer 2

1. decisions related to treaty-making
2. decisions related to national defence
3. decisions related to national securty

Question 3

Three Grounds for Judicial Reviews

Answer 3

1. Illegality
2. Irrationality
3. Procedural Impropriety

Question 4

Grounds under illegality

Answer 4

1. Acting without legal authority
2. Rule against delegation
3. Fettering of discretion
4. Using powers for an improper or unauthorised purpose
5. Dual purposes
6. Taking into account irrelevant considerations / failing to take account of relevant considerations
7. Errors of law / errors of fact

Question 5

Judicial Review: Grounds for EU Law

Answer 5

1. Breach of the European Convention on Human Rights
2. Breaches of retained EU law

Question 6

Exceptions to the Rule Against Delegation

Answer 6

1. The Carltona Principal: allows gov. ministers to delegate decision making powers to civil servants in their departments
2. S 101 Local Government Act: Local authorities can delegate decision making powers to committees or officers provided they have passed a formal resolution to do so

Question 7

Fettering of Discretion: When does this occur?

Answer 7

1. Acting under the dictation of another
2. Apply a general policy as to the exercise of discretion too strictly
   - Must not ‘shut ears’ to individuals or ignore new things said

Question 8

Dual Purposes: Two Tests

Answer 8

1. Primary Purpose Test (Westminster): where there are 2 reasons given for a decision, if the primary purpose is one of the main reasons for the decision, it will not be ultra vires
2. Modified Test: If the unauthorised purpose materially influences the decision that was made, the decision will be unlawful

Question 9

Errors of Law

Answer 9

If there has been an error of law, there will always be judicial review

Question 10

When will judicial review be permitted on the basis that there has been an error of fact?

Answer 10

If the error of fact is jurisdictional - this is amenable to judicial review
- if the error goes to the root of a public authority’s authority to act

Question 11

Irrationality: what is required?

Answer 11

A very high degree of unreasonableness
CASE 1: WEDNESBURY
- Having regard to relevant decisions only, the decision maker came to a conclusion so unreasonable that no reasonable authority could have ever come to it
CASE 2: CCSU and MINISTER FOR CIVIL SERVICE
- to be irrational, a decision must be so outrageous in its defiance of logic or accepted moral standards that no sensible person could have arrived at it

Question 12

Procedural Impropriety: Two Categories

Answer 12

1. Procedural Fairness
2. Procedural Ultra Vires

Question 13

Procedural Fairness Rules

Answer 13

1. Rule against Bias
   - Decision maker must not have an interest in the outcome of the decision
   - Where interest is DIRECT, the decision will normally be quashed (eg. interest leading to financial gain)
   - Indirect = falls short of direct interest (eg. a relative of the decision-maker which has the interest)
   - courts will look for apparent bias
2. Right to a fair hearing
   - depends on the individual case

Question 14

Test for Bias

Answer 14

Would a fair-minded and impartial observer conclude that there was a real possibility of bias

Question 15

Right to a fair hearing: Categories of Mcckinnis cases

Answer 15

1. Forfeiture (claimant has the most to lose)
   - claimants are entitled to expect a lot more from their hearings
2. Legitimate expectation cases
   - legitimate for claimant to expect that they would have a renewal of a license eg.
3. Application cases
   - claimant is a first-time applicant for something they have not previously held
   - not entitled to expect as much from their hearing as those in the other cases

Question 16

When does the right to a fair hearing not apply?

Answer 16

If the decision is a preliminary decision

Question 17

Right to a fair hearing: What should be present for this right to be satisfied in a forfeiture case?

Answer 17

1. Calimant should know the case against them
2. Have the right to reply at each stage of the decision making process

Question 18

Right to a fair hearing: What should be present for this right to be satisfied in a legitimate expectation case?

Answer 18

1. Nature of hearing depends on expectation that the deicison-maker has created

Question 19

Right to a fair hearing: What should be present for this right to be satisfied in a application case?

Answer 19

Applicants are entitled to have their cases heard honestly and without bias

Question 20

Which cases will have the right to hear the case against them

Answer 20

Generally, all (forfeiture, LE, application)

Question 21

Which cases will have the right to be given reasons for a decision

Answer 21

Generally, individuals do not have this right
BUT, exceptions:
1. decision looks wrong
2. reasons are needed to challenge legality of the decision

Question 22

Procedural Ultra Vires: what is examined here?

Answer 22

1. Statutory Procedural Requirements
2. Legitimate Expectations

Question 23

Two types of statutory procedural requirements and their implications:

Answer 23

Mandatory: render a decision invalid, if the procedure prescribed is not followed

Directory: Do not

Question 24

In a JR case, how will the court decide whether certain statutory procedural requirements are mandatory or directory?

Answer 24

The court will take into account the wording of the act itself to establish this
- and consider whether a claimant is substantially prejudiced by non-compliance with a certain procedural safeguard
- should consider what parliament would have wanted here

Question 25

Procedural Ultra Vires: Two types of legitimate expectation

Answer 25

1. Procedural: Arises out of a benefit or advance enjoyed by claimant in the PAST (or when public body has given an assurance it will follow a certain procedure when making a decision) 2. Substantive: may arise when decision maker has led someone to believe they will receive a benefit by conduct

Question 26

When is legitimate expectation (under procedural ultra vires) a grounds for judicial review?

Answer 26

An express promise or existence of a regular working practice (which are deviated from) can give rise to a legitimate expectation

Question 27

Application Cases: what are judicial review claim applicants entitled to expect wrt a fair hearing?

Answer 27

the application only needs to be decided honestly and without bias for it to have had a fair hearing (McInnes v Onslow-Fane).

Question 28

When will ouster clauses. (partial or full) NOT protect public authorities from having their decisions judicially reviewed?

Answer 28

If the decision in a nullity (legally void)

Question 29

Procedural Impropriety: The rule against Bias Grounds If a judicial review applicant is alleging the appearance of bias amongst decision-makers, is it a defence if a lack of bias can be shown?

Answer 29

Not really - the court is concerned with the appearance of bias

Question 30

Time limits for bringing judicial review claims - no ouster clauses

Answer 30

A claimant for judicial review must bring their claim promptly and without undue delay and, in planning cases, the claim must at the latest be made within six weeks of the cause of action

Question 31

Rule Against Bias: what constitutes 'direct interest'

Answer 31

1. Financial Interest 2. Non-pecuniary interest where the decision will result in the promotion of a cause in which the decision-maker is personally involved

Question 32

Aside from demonstrating that the body to be judicially reviewed is a PUBLIC BODY, what more must be established before a claim can commence?

Answer 32

That the public body is exercising public law power

Question 33

Example of a public body exercising private law powers

Answer 33

When they are acting as a landlord

Question 34

When are courts likely to rule that a statutory requirement is mandatory (rather than directory)

Answer 34

where a claimant is substantially prejudiced by non-compliance with an important procedural safeguard

Question 35

Requirements of a fair trial in forfeiture cases

Answer 35

In such cases, claimants should know the case against them and have the right to reply at each stage

Question 36

Additional 'European' judicial review grounds

Answer 36

1. breach of the ECHR 2. breach of retained EU Law

Question 37

Acting without legal authority (JR) what does this look like?

Answer 37

Body takes an action which is not authorised in statute

Question 38

What is a jurisdictional error of fact

Answer 38

A fact which goes to the root of the legal authority in question - so fundamental to the exercise of the power that this mistake calls the case into question

Question 39

If an applicant for judicial review is alleging there was bias in the decision and this bias is indirect, what steps can the court take?

Answer 39

In such cases, the reviewing court cannot simply quash the decision automatically; it has to investigate the relationship between the indirect interest and the decision, and decide whether the decision should be quashed on the basis of apparent bias

Question 40

Test for indirect bias :

Answer 40

Would a fair minded and impartial observer conclude that there had been a real possibility of bias? - Asking how the decision would appear to the observer rather than whether the decision was actually affected by bias

Question 41

Procedural Legitimate Expectation

Answer 41

a decision- maker has failed to follow a normal procedureS

Question 42

Substantive Legitimate Expectation

Answer 42

A decision maker has led someone to believe that he or she will receive a benefit

Question 43

Application cases: Is there a duty to give 'reasons' for a decision

Answer 43

Applicants should be given a sufficient indication of objections against them to enable them to answer these

Question 44

Three possible outcomes when dealing with a legitimate expectation case

Answer 44

1. Public authority only required to bear in mind previous policy or representation and need not necessarily change course from this. Court confined to reviewing the decision on irrationality grounds 2. Court decides promise induces legitimate procedural expectation 3. Court decides promise or practice has induced substantive legitimate expectation and frustrating this would be so unfair it would be an abuse of power - court must weigh fairness with individual against any overriding public interest relied on by the public body

Question 45

If a claimant for JR is alleging procedural impropriety - by arguing they had a legitimate expectation of the public authority exercising their power in a certain way - when is the court likely to concur?

Answer 45

If the case involves a basic need (like healthcare) rather than just a payment of money