6. The Grounds of Judicial Review Flashcards
What powers can be judicially reviewed?
- Powers under statute and delegated legislation
- Delegated legislation
- Prerogative powers - so long as they do not contain non-justiciable matters
Non-justiciable matters
- decisions related to treaty-making
- decisions related to national defence
- decisions related to national securty
Three Grounds for Judicial Reviews
- Illegality
- Irrationality
- Procedural Impropriety
Grounds under illegality
- Acting without legal authority
- Rule against delegation
- Fettering of discretion
- Using powers for an improper or unauthorised purpose
- Dual purposes
- Taking into account irrelevant considerations / failing to take account of relevant considerations
- Errors of law / errors of fact
Judicial Review: Grounds for EU Law
- Breach of the European Convention on Human Rights
- Breaches of retained EU law
Exceptions to the Rule Against Delegation
- The Carltona Principal: allows gov. ministers to delegate decision making powers to civil servants in their departments
- 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
Fettering of Discretion: When does this occur?
- Acting under the dictation of another
- Apply a general policy as to the exercise of discretion too strictly
- Must not ‘shut ears’ to individuals or ignore new things said
Dual Purposes: Two Tests
- 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
- Modified Test: If the unauthorised purpose materially influences the decision that was made, the decision will be unlawful
Errors of Law
If there has been an error of law, there will always be judicial review
When will judicial review be permitted on the basis that there has been an error of fact?
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
Irrationality: what is required?
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
Procedural Impropriety: Two Categories
- Procedural Fairness
- Procedural Ultra Vires
Procedural Fairness Rules
- 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 - Right to a fair hearing
- depends on the individual case
Test for Bias
Would a fair-minded and impartial observer conclude that there was a real possibility of bias
Right to a fair hearing: Categories of Mcckinnis cases
- Forfeiture (claimant has the most to lose)
- claimants are entitled to expect a lot more from their hearings - Legitimate expectation cases
- legitimate for claimant to expect that they would have a renewal of a license eg. - 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
When does the right to a fair hearing not apply?
If the decision is a preliminary decision
Right to a fair hearing: What should be present for this right to be satisfied in a forfeiture case?
- Calimant should know the case against them
- Have the right to reply at each stage of the decision making process
Right to a fair hearing: What should be present for this right to be satisfied in a legitimate expectation case?
- Nature of hearing depends on expectation that the deicison-maker has created
Right to a fair hearing: What should be present for this right to be satisfied in a application case?
Applicants are entitled to have their cases heard honestly and without bias
Which cases will have the right to hear the case against them
Generally, all (forfeiture, LE, application)
Which cases will have the right to be given reasons for a decision
Generally, individuals do not have this right
BUT, exceptions:
1. decision looks wrong
2. reasons are needed to challenge legality of the decision
Procedural Ultra Vires: what is examined here?
- Statutory Procedural Requirements
- Legitimate Expectations
Two types of statutory procedural requirements and their implications:
Mandatory: render a decision invalid, if the procedure prescribed is not followed
Directory: Do not
In a JR case, how will the court decide whether certain statutory procedural requirements are mandatory or directory?
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
Procedural Ultra Vires: Two types of legitimate expectation
- 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)
- Substantive: may arise when decision maker has led someone to believe they will receive a benefit by conduct
When is legitimate expectation (under procedural ultra vires) a grounds for judicial review?
An express promise or existence of a regular working practice (which are deviated from) can give rise to a legitimate expectation
Application Cases: what are judicial review claim applicants entitled to expect wrt a fair hearing?
the application only needs to be decided honestly and without bias for it to have had a fair hearing (McInnes v Onslow-Fane).
When will ouster clauses. (partial or full) NOT protect public authorities from having their decisions judicially reviewed?
If the decision in a nullity (legally void)
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?
Not really - the court is concerned with the appearance of bias
Time limits for bringing judicial review claims - no ouster clauses
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
Rule Against Bias: what constitutes ‘direct interest’
- Financial Interest
- Non-pecuniary interest where the decision will result in the promotion of a cause in which the decision-maker is personally involved
Aside from demonstrating that the body to be judicially reviewed is a PUBLIC BODY, what more must be established before a claim can commence?
That the public body is exercising public law power
Example of a public body exercising private law powers
When they are acting as a landlord
When are courts likely to rule that a statutory requirement is mandatory (rather than directory)
where a claimant is substantially prejudiced by non-compliance with an important procedural safeguard
Requirements of a fair trial in forfeiture cases
In such cases, claimants should know the case against them and have the right to reply at each stage
Additional ‘European’ judicial review grounds
- breach of the ECHR
- breach of retained EU Law
Acting without legal authority (JR) what does this look like?
Body takes an action which is not authorised in statute
What is a jurisdictional error of fact
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
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?
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
Test for indirect bias :
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
Procedural Legitimate Expectation
a decision- maker has failed to follow a normal
procedureS
Substantive Legitimate Expectation
A decision maker has led someone to believe that he or she will receive a benefit
Application cases: Is there a duty to give ‘reasons’ for a decision
Applicants should be given a sufficient indication of objections against them to enable them to answer these
Three possible outcomes when dealing with a legitimate expectation case
- 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
- Court decides promise induces legitimate procedural expectation
- 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
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?
If the case involves a basic need (like healthcare) rather than just a payment of money
