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

Question 4

Judicial review is available only against decisions of what type of bodies?

Answer 4

Public bodies

Question 5

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

Answer 5

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

Question 6

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

Answer 6

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

Question 7

What are the two stages of judicial review?

Answer 7

1. Permission stage
2. Full hearing

Question 8

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

Answer 8

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

Question 9

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

Answer 9

Promptly, no later than six weeks for planning decisions and three months for all other matters

Question 10

Can the court refuse permission even within the three-month window, if they don’t believe the claimant acted promptly?

Answer 10

Yes

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

Question 13

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

Answer 13

It must be a live dispute/situation, and not be hypothetical

Question 14

Can judicial review be used to resolve disputes of facts?

Answer 14

No

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 is the more recent departure from the general position that a group of people lacking standing do not acquire standing by forming a group?

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 must a claimant do before bringing judicial review proceedings?

Answer 18

Exhaust all other avenues first

Question 19

What are the four grounds of judicial review?

Answer 19

1. Illegality
2. Procedural impropriety
3. Unreasonableness, and
4. Breach of legitimate expectations

Question 20

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

Answer 20

1. Error of law
2. Specific legal duty
3. Unlawful delegation of power
4. Irrelevant considerations
5. Ultra vires

Question 21

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

Answer 21

A part of a statute which attempts to shield a public authority from judicial review, e.g. “no decision made under this section shall be reviewable by the courts”.

The courts interpret these to mean legally valid decisions and as such they can be reviewed for illegality under judicial review.

Question 22

What does the Public Sector Equality Duty require?

Answer 22

That public authorities must take equality considerations into account when making decisions

Question 23

What three things must public authorities show due regard to under the Public Sector Equality Duty?

Answer 23

Regarding those who have a protected characteristic:

1. Eliminating discrimination against them
2. Advancing equality of opportunity for them
3. Removing or minimising disadvantages suffered by them

Question 24

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

Answer 24

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

Question 25

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

Answer 25

Not unless approved by an Act of Parliament

Question 26

What does the procedural impropriety ground focus on?

Answer 26

The way in which a decision was made

Question 27

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

Answer 27

1. Mandatory/directory requirements 2. Right to be heard 3. Rule against bias 4. Duty to consult 5. Duty to give reasons

Question 28

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

Answer 28

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 29

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 29

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

Question 30

Under the rule against bias, what is actual bias?

Answer 30

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

Question 31

What is the objective test for apparent bias?

Answer 31

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

Question 32

Is there a general common law duty to consult those who are likely to be affected by a decision or policy?

Answer 32

No

Question 33

In what four situations would a duty to consult arise?

Answer 33

1. Statutory duty to consult 2. Promise to consult 3. Established practice of consultation 4. Where failure to consult would lead to unfairness

Question 34

Is there a general common law duty to give reasons to those who are likely to be affected by a decision or policy?

Answer 34

No

Question 35

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

Answer 35

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 36

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

Answer 36

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 37

What is a procedural legitimate expectation?

Answer 37

An expectation that a decision will be made in a certain *manner*

Question 38

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

Answer 38

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 39

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

Answer 39

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.

Question 40

What is the test for **unreasonableness**?

Answer 40

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 41

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

Answer 41

It imposes a difficult threshold to meet **and** is insufficiently rigorous when dealing with HRA questions. The **proportionality** test is used instead.

Question 42

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

Answer 42

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 43

What are the remedies available under judicial review?

Answer 43

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 44

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

Answer 44

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

Question 45

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

Answer 45

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