7. Judicial Review

Question 1

What is judicial review?

Answer 1

The method by which the courts can review and scrutinise the actions of the executive

Question 2

In judicial review, what are the courts generally concerned with, and not concerned with?

Answer 2

Concerned with: legality of a decision
Not concerned with: merits of a decision

Question 3

What are the three concerns when considering judicial review?

Answer 3

1. Have the requirements for JR been met?
2. Has a ground for judicial review been established?
3. What is the appropriate remedy?

Question 4

When might the court consider a claim for J.R when the limitation period of three months has expired?

Answer 4

claimant had a good reason for delay.

Question 5

Judicial review applies only against to decisions of what type of bodies?

Answer 5

Public bodies

Question 6

What will the courts conclude when there is a contract between the parties?

Answer 6

That the matter is regulated by private and not public law, and so is not eligible for judicial review

Question 7

Before issuing judicial review proceedings, what should a claimant do and how long does the defendant have to respond?

Answer 7

Send a letter identifying the issues in dispute, to which the defendant should respond within 14 days.

Question 8

What are the two stages of judicial review?

Answer 8

1. Permission stage
2. Full hearing

Question 9

What will generally influence the court to exercise their discretion to refuse permission for judicial review?

Answer 9

Even if claimant is successful, their outcome will not be substantially different

Question 10

When must judicial review proceedings be brought, and what is the absolute time limit for (1) general claims and (2) planning decisions?

Answer 10

Promptly, no later than six weeks for planning decisions and 30 days for public procurement
* Three months for all other matters.

Question 11

What does the principle of procedural exclusivity provide?

Answer 11

That public law issues must be resolved via judicial review rather than through ordinary private law procedures

Question 12

What is the exception to the procedural exclusivity rule?

Answer 12

Cases concerning a mix of public and private law can be resolved in private law.
* where claim is mixed = court will generally expect a claimaint to have recourse through private law. (Roy)

Question 13

What must be true of a situation or dispute before judicial review is available?

Answer 13

All rights have been exhausted and no right to appeal is available.

Question 14

What five factors does the court consider when determining whether an applicant has sufficient interest?

Answer 14

1) Importance of upholding the RoL
2) Absence of other responsible challenger
3) Importance of issue raised
4) Nature of alleged breach of duty
5) Role of pressure group - ‘genuine interest’?

Question 15

To show that they have standing, what must a claimant show, and at what stage is this assessed (unless the position is not obvious)?

Answer 15

Claimant must show they have a sufficient interest in the issues, and this is assessed at the permission stage, or the full hearing stage if the position is not obvious

Question 16

What conditions must be satisfied for a pressure group to acquire ‘sufficient interest’ to acquire standing for JR?

Answer 16

A group can be deemed to have a sufficient interest if:

1. The group is responsible, well-resourced, has expertise, and/or
2. There is unlikely to be an alternative claimant

Question 17

Is the test for standing for judicial review more strict or lenient than the test for standing under the Human Rights Act?

Answer 17

It is more lenient for judicial review where all that is required is a sufficient interest.

A claimant must be a victim to bring a claim under the Human Rights Act.

Question 18

What are the four grounds of judicial review?

Answer 18

1. Illegality
2. Procedural impropriety
3. Unreasonableness, and
4. Legitimate expectations

Question 19

What are the five elements, one or more of which could make up a claim under illegality?

Answer 19

1. Pure ultra vires
2. Error of law
3. Errors in fact
4. Improper purpose
5. Irrelevant considerations
6. Fettering discretion

Question 20

What is an ouster clause, and how do the courts treat them?

Answer 20

A part of a statute which attempts to oust judicial oversight over public authority decisions.

Courts are hostile to ouster clauses, and will not uphold them if they purport to complete exclude judicial review. At odds w/ RoL.

• cf. willing to uphold partial ouster clauses, ie. effect of reducing JR limitiation period.

Question 21

What is regarded as an error of law?

Answer 21

where a public body misunderstands and misinterprets its powers

Question 22

What are the three qualifications on the reviewability by courts of ‘errors in law’?

Answer 22

1) Error must be decisive on challenged outcome (‘but-for’)
2) Reluctance to intervene when tasked with interpreting special systems of rules;
3) Reluctant where power to public body granted is imprecise.
- may consider ‘unreasonableness’ as a more appropriate ground of review.

Question 23

What conditions must be met for a court to find an ‘error in fact’?

Answer 23

1) there must be a mistake
2) ‘established’ by evidence (objective and verifiable)
3) appelant played no role in mistake
4) mistake played a material role in the court’s finding of illegality.
- need ≠ be decisive

Question 24

When might a public body’s exercise of its power constitute an ‘improper purpose,’ and thus be deemed ultra vires?

Answer 24

occurs when statutury power is not used for its intended purpose.

• ie. *Porter v Magill *- council had the power to sell council homes, and not use it as a scheme to encourage buyers to vote for them

Question 25

Does due regard under the Public Sector Equality Duty require a particular result be achieved?

Answer 25

No, just that these things are considered as part of the decision-making process

Question 26

With the exception of the Carltona doctrine, can power once delegated be delegated again?

Answer 26

Not unless approved by an Act of Parliament

Question 27

What does the procedural impropriety ground focus on?

Answer 27

The way in which a decision was made

Question 28

What are the five grounds, one or more of which could make up a claim under procedural impropriety?

Answer 28

Breach of statutory procedural requirements
1. Failure to consult
2. Failure to serve notice

Breach of natural justice
1. Right to be heard
2. Rule against bias
3. Duty to give reasons

Question 29

What is the difference between a mandatory and directory requirement and the impact of both?

Answer 29

Mandatory: requirement contains must, failure to follow invalidates a decision
Directory: requirement contains should, failure to follow may not invalidate a decision

Consideration is also given to where anyone would be caused an injustice or hardship if the requirement were not followed.

Question 30

Regarding the right to be heard, what is the difference between an existing right or license being removed from someone and someone who is making an application for these things for the first time?

Answer 30

Right removed: must be given opportunity to hear case and to respond
New application: no hearing

Question 31

Under the rule against bias, what is actual bias?

Answer 31

The decision maker has made a decision **motivated by actual bias. **This is usually impossible to prove.

Question 32

What is the objective test for ostensible bias?

Answer 32

Where a fair-minded and informed observer, informed of the facts, would conclude there was a real possibility of bias

Question 33

In what two situations would a duty to give reasons arise, and why?

Answer 33

1. Subject matter is important, e.g. personal liberty, because of fairness
2. If the decision departs from a usual standard, so the person affected can establish whether something has gone wrong that they may be able to challenge.

Question 34

When does a legitimate expectation arise, and what can give rise to it?

Answer 34

When a public body has given rise to a belief that a power will be exercised in a certain way, either through assurance or previous action

Question 35

What is a procedural legitimate expectation?

Answer 35

An expectation that a decision will be made in a certain manner (ie. consulting employees before changing employment terms).

Question 36

What is a substantive legitimate expectation, and when will the courts give effect to it?

Answer 36

An expectation that something will be provided, e.g. care home. Court will give effect when it is particularly important and has been made only to a small number of individuals

Question 37

When is a decision irrational or unreasonable, and why is this ground considered a slight contradiction of the purpose of judicial review?

Answer 37

The decision is so outrageous or absurd that it is outside the power of the decision maker and cannot be considered lawful.

It is considered a slight contradiction because judicial review typically considers procedure, not merits.
- explains why courts are wary to rely on it.

Question 38

What is the test for unreasonableness?

Answer 38

Decision must be so outrageous in its defiance of logic or accepted moral standards that no sensible person who applied their mind to the question could have arrived at it

Question 39

Why is the unreasonableness test not used in Human Rights Act situations, and what test is?

Answer 39

It imposes a difficult threshold to meet and is insufficiently rigorous when dealing with HRA questions.

The proportionality test is used instead.

Question 40

What is the three part proportionality test used instead of the reasonableness test for HRA and fundamental right situations?

Answer 40

1. Object of the policy sufficiently important to justify limiting a fundamental right
2. Measures rationally connected to objective, and
3. Interference no more than necessary

Question 41

What are the remedies available under judicial review?

Answer 41

1. Quashing order: renders the decision void as if it was never made
2. Mandatory injunction: orders defendant to act in a particular manner
3. Prohibiting injunction: orders defendant not to act in a particular manner
4. Declaration that the decision was unlawful

Question 42

As judicial review remedies are discretionary, in what two instances might the court not grant any?

Answer 42

1. Third party has already relied on the decision
2. Quashing the decision unlikely to make practical difference

Question 43

Under the rule against bias, what is the automatic disqualification rule?

Answer 43

If the decision maker has a financial interest, or a non-financial interest closely connected to the issues, they are automatically disqualified

Question 44

Wheeler v Leicester City Council - Irrelevant considerations (Illegality)

Answer 44

council acted illegally when it banned local football club from using council pitch on basis it disagreed with its tour in South Africa (during apartheid era).
- Not permitted to ban club for political reasons.

Question 45

When does fettering discretion arise?

Answer 45

where pubic authority takes an overly rigid stance on a general policy, at the cost, of considering invidividual cases.

ie. commonly arieses in licence cases where local authority takes a blanket-approach to granting of any licence within a particular area/group.

Question 46

When will the delegation of decision-making be deemed ultra vires?

Answer 46

Carltona principle allows for Ministers to delegate power to civil servants, but must ensure that those in charge are of suitable seniority.
- Ensure that powers are not delegate to a separate Minister w/ different jurisdiction (ie. Sec of Edu cannot delegate decisions to Home Office).
- Minister, ultimately, remains politically/vicariously accountable for their actions.

Question 47

What is the distiction between the intensity of review applies in super versus sub Wednesbury?

Answer 47

Super-Wednesbury - high-threshold, less likelihood that courts will intervene.
- applied where issue concerns social and economic policy + any matter of ‘political judgement.’

Sub-Wednesbury - lower threshold, more likely to intervene.
- where fundamental rights are at stake, where more willing to adjudicate on ‘policy’ matters.