7. Judicial Review Flashcards
What is judicial review?
The method by which the courts can review and scrutinise the actions of the executive
In judicial review, what are the courts generally concerned with, and not concerned with?
Concerned with: legality of a decision
Not concerned with: merits of a decision
What are the three concerns when considering judicial review?
- Have the requirements been met?
- Has a ground for judicial review been established?
- What is the appropriate remedy?
Judicial review is available only against decisions of what type of bodies?
Public bodies
What will the courts conclude when there is a contract between the parties?
That the matter is regulated by private and not public law, and so is not eligible for judicial review
Before issuing judicial review proceedings, what should a claimant do and how long does the defendant have to respond?
- Send a letter identifying the issues in dispute,
- to which the defendant should respond within 14 days
What are the two stages of judicial review?
- Permission stage
- Full hearing
What will generally influence the court to exercise their discretion to refuse permission for judicial review?
Even if claimant is successful, their outcome will not be substantially different 🤦
When must judicial review proceedings be brought, and what is the absolute time limit for (1) general claims and (2) planning decisions?
Promptly, no later than
- six weeks for planning decisions🏡
-three months for all other matters
🌏
Can the court refuse permission even within the three-month window, if they don’t believe the claimant acted promptly?
Yes
What does the principle of procedural exclusivity provide?
That public law issues must be resolved via judicial review rather than through ordinary private law procedures
What is the exception to the procedural exclusivity rule?
Cases concerning a mix of public and private law can be resolved in private law
What must be true of a situation or dispute before judicial review is available?
It must be a live dispute/situation, and not be hypothetical
Can judicial review be used to resolve disputes of facts?
No
To show that they have standing, what must a claimant show, and at what stage is this assessed (unless the position is not obvious)?
Claimant must show they have a
- sufficient interest in the issues 🧐
- assessed at the permission stage, or the full hearing stage if the position is not obvious
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?
A group can be deemed to have a sufficient interest if:
- The group is responsible, well-resourced, has affected member, has expertise, 😇💰🤓
and/or
- There is unlikely to be an alternative claimant 🤷♀️
and/or
- there’s an importance in vindicating the rule of law
Is the test for standing for judicial review more strict or lenient than the test for standing under the Human Rights Act?
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.
🧐
What must a claimant do before bringing judicial review proceedings?
Exhaust all other avenues first
😮💨
What are the four grounds of judicial review?
- Illegality 👮
- Procedural impropriety 😴
- Unreasonableness, and 🤪
- Breach of legitimate expectations💥
What are the five elements, one or more of which could make up a claim under illegality?
👮
- Ultra vires🦠
- Error of law 👨⚖️
- Specific legal duty 👇📖
- Irrelevant considerations🤪
- Unlawful delegation of power 🥸
What is an ouster clause, and how do the courts treat them?
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.
What does the Public Sector Equality Duty require?
🧑🦽
That public authorities must take equality considerations into account when making decisions
🧑🦽🧠🧮
What three things must public authorities show due regard to under the Public Sector Equality Duty?
🧑🦽
Regarding those who have a protected characteristic:
- Eliminating discrimination against them 🤺
- Advancing equality of opportunity for them 🚶
- Removing or minimising disadvantages suffered by them 🤏
Does due regard under the Public Sector Equality Duty require a particular result be achieved?
No, just that these things are considered as part of the decision-making process
🧠
With the exception of the Carltona doctrine, can power once delegated be delegated again?
🥸
Not unless approved by an Act of Parliament
❌
What does the procedural impropriety ground focus on?
😴
The way in which a decision was made
What are the five grounds, one or more of which could make up a claim under procedural impropriety?
😴
- Mandatory/directory requirements 📖
- Rule against bias ⚖️👺
- Duty to consult 🗣️
- Right to be heard 👂
- Duty to give reasons 💅
What is the difference between a mandatory and directory requirement and the impact of both?
📖
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.
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?
👂
- Right removed: must be given opportunity to hear case and to respond 👨⚖️
- New application: no hearing❌
Under the rule against bias, what is actual bias?
⚖️
The decision maker has made a decision motivate by actual bias. This is usually impossible to prove.
👺
What is the objective test for apparent bias?
⚖️
Where a
- fair-minded and
- informed observer
- informed of the facts,
- would conclude there was
- a real possibility of bias
Is there a general common law duty to consult those who are likely to be affected by a decision or policy?
🗣️
No
In what four situations would a duty to consult arise?
🗣️
- Statutory duty to consult 🇬🇧
- Promise to consult 🤞
- Established practice of consultation 🔁
- Where failure to consult would lead to unfairness ⚖️ 😭
Is there a general common law duty to give reasons to those who are likely to be affected by a decision or policy?
💅
No
In what two situations would a duty to give reasons arise, and why?
💅
- Subject matter is important, ‼️e.g. personal liberty, because of fairness
- 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 🥺
When does a legitimate expectation arise, and what can give rise to it?
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
What is a procedural legitimate expectation?
An expectation that a decision will be made in a certain manner
What is a substantive legitimate expectation, and when will the courts give effect to it?
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 🤏
When is a decision irrational or unreasonable, and why is this ground considered a slight contradiction of the purpose of judicial review?
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.
What is the test for unreasonableness?
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
Why is the unreasonableness test not used in Human Rights Act situations, and what test is?
It imposes a difficult threshold to meet and is insufficiently rigorous when dealing with HRA questions.
The proportionality test is used instead.
What is the three part proportionality test used instead of the reasonableness test for HRA and fundamental right situations?
- Object of the policy sufficiently important to justify limiting a fundamental right ‼️
- Measures rationally connected to objective, and 👉👈
- Interference no more than necessary🤏
What are the remedies available under judicial review?
- Quashing order: renders the decision void as if it was never made 💥
- Mandatory injunction: orders defendant to act in a particular manner 🫵
- Prohibiting injunction: orders defendant not to act in a particular manner 🤚
- Declaration that the decision was unlawful 🗣️👨⚖️
As judicial review remedies are discretionary, in what two instances might the court not grant any?
- Third party has already relied on the decision 🤭🎁
- Quashing the decision unlikely to make practical difference 🤦
Under the rule against bias, what is the automatic disqualification rule?
If the decision maker has a financial interest, or a non-financial interest closely connected to the issues, they are automatically disqualified
🤑
When does the time limit clock start?
From when the grounds to make the claim first arose.
