Administrative Law Flashcards

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1
Q

Standing for JR

A

Sufficient interest - not if interests are affected but do they have a good case

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2
Q

What makes an interested party for JR

A

Directly affected by decision

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3
Q

Things court will consider when deciding whether to admit an interested party

A
Size of organisation and number of members affected 
Rule of law
Importance of issue
Chance of another complainant 
Nature of breach
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4
Q

Which court is JR in and which is it appealed to

A

In HC. Appeal from administrative court to court of appeal

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5
Q

When won’t permission for JR be granted

A

Not a public law matter
Other appeal options not exhausted
Not appropriate on policy grounds
Wouldn’t have been substantially different for applicant

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6
Q

Time limit for JR claim

A

Three months from grounds arising

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7
Q

How to tell if it is a public body

A

Is the source of its powers royal prerogative? If not apply Datafin

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8
Q

What did datafin say to consider

A

Is it a public body?
Source of power (not only consent)
Nature of body’s duties (public law duties)
Consequences of body’s decisions (public law sanctions)

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9
Q

What to consider when deciding if a body is a public body

A

Do it’s decisions affect the public at large
Can it’s decisions be imposed without consent
Are they carrying out functions normally performed by an organ of gov
Is there any statutory regulations or gov control

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10
Q

What does the PAP for JR require

A

C to write to D with letter before claim
D has 14 days to reply
(Organise funding here if C is using public funds)
File claim form promptly and not later than 3 months after grounds arose
Serve claim form on D and interested parties within 7 days of its issue

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11
Q

Can parties agree to extend three month JR time limit

A

No

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12
Q

Do parties always have to follow JR PAP

A

Not if they think it’s inappropriate but must say why you think this in the claim form

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13
Q

Remedies for JR

A
Declaration of unlawfulness 
Prohibitory order
Mandatory order 
Quashing order 
Injunction 
Damages in conjunction with above but not alone ( same for restitution or sum due)
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14
Q

Illegality includes….

A
Ultra Vires
Improper purpose
Relevant and irrelevant considerations
Lack of evidence 
Unlawfully failing to exercise a discretionary power
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15
Q

Ultra vires

A

Must not go beyond powers conferred
Empowering act will say what powers conferred
Not just if the power is conferred but also how it was used
Misinterpreted or abused power?

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16
Q

Improper purpose

A

If purpose is in statute then that is exhaustive
If not the court will imply purpose.
Cannot use power to:
Penalise conduct
Promote political and moral views
Gain and unauthorised financial advantage
Defeat the power and purpose of the act

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17
Q

What if there is more than one purpose? (Improper purpose- illegality)

A

If main purpose of valid secondary invalid purpose cannot make decision unlawful unless it significantly influenced the decision

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18
Q

Relevant and irrelevant considerations

A

If expressed in statute then that is exhaustive

If not then implied the same as improper purpose

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19
Q

Lack of evidence

A

Decisions must be based on facts and evidence before the body
Cannot ignore relevant evidence, misinterpret evidence or unreasonably make a decision which is contrary to the weight of evidence presented during decision making process LPC

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20
Q

Unlawful failure to exercise a discretionary power

A

When the body refuses to think about exercising discretion
or
When they consider exercising discretion but decide not to

Can have policy but cannot refuse to consider a type of application. Consider all on their merits. Do not rule out changing policy and listen to arguments to change it

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21
Q

What does procedural impropriety mean

A

Breach of natural justice or failure to comply with statutory procedural requirements

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22
Q

Has there been a breach of natural justice

A

Does NJ apply
To what extent
Has it been breached

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23
Q

Do the rules of natural justice apply

A

Apply to all courts and tribunals
And where an administrative body acts judicially
Judicially means any decision affecting the rights of the individual

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24
Q

What does it mean to act judicially

A

Making a decision affecting the rights of the individual

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25
Q

How do you know to what extent the rules of natural justice apply

A

This depends on the type of hearing
Any legit expectations
National security
Need to keep secrecy for public interest

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26
Q

What does natural justice mean

A

Impartiality and fairness

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27
Q

How do you know if the rules of natural justice have been breached

A

Is there a real possibility of bias and have all parties to the dispute been given a fair hearing

28
Q

What identifies a fair hearing

A

Both sides have the right to be heard by an independent tribunal
To have notice of charges of misconduct
To be heard in answer to those charges
Must be given chance to state case and challenge prejudicial info
Reasonable chance to prepare case before hearing

29
Q

What are the two types of bias

A

Pecuniary bias- financial interest in outcome

Personal bias- anything which makes them more favourable towards one person

30
Q

Do you need to prove bias to show a breach of natural justice

A

No just that a fair minded and informed observer would see a real danger or bias

31
Q

Does a fair trial require legal representation

A

Yes if it is a court or tribunal otherwise it depends on seriousness, complexity ability of party

32
Q

Is there a right to be given reasons for a decision

A

No, the burden is on the person arguing that reasons should have been given to show that the proceedure was unfair

33
Q

Relevant considerations when determining if reasons should have been given

A
Body exercising judicial function 
Needed for justice 
Otherwise decision would appear aberrant 
Importance of detecting errors 
Absence of right of appeal
34
Q

What is irrationality/ wednesbury unreasonableness

A

So absurd that no reasonable authority could have come to it

35
Q

What does proportionality mean

A

Reasonable link between the objective sought and the means used to achieve it

36
Q

What does the court ask when considering if there has been a human rights violation

A

Where the rights have been breached not whether they were taken into consideration when making the decision

37
Q

When a decision is challenge by JR under HRA for being disproportionate what must the authority show

A

That it had proportionate aims not that it considered proportionality in its decision

38
Q

In what cases is proportionality considered

A

Is legislation compatible with ECHR
Applying EU law
Deciding whether to quash punishment
Asked to review a decision based on unreasonableness

39
Q

What will a court consider when human rights have been limited

A

Was it no more than absolutely necessary to achieve the legitimate aim

40
Q

meaning of irrationality

A

so outrageous in its defiance of logic or of accepted moral standards that no sensible person could have arrived at it

41
Q

what is included in the ground of illegality

A

relevant and irrelevant considerations
fettering of discretion
delegate decision making powers (except carltona principle and s101 LGA 1972)
using powers for improper or unauthorised purpose
errors of fact - primary purpose must be authorised. did the unauthorised purpose materially influence the decision?
errors of law

42
Q

what does procedural impropriety consist of

A

breach of statutory procedure

breach of natural justice (fair hearing or bias)

43
Q

what is required by natural justice for a hearing to be fair

A

act in good faith and listen fairly to both sides

44
Q

for a hearing to be fair does natural justice require oral hearing, cross examination of witness and reasons

A

not always necessary

45
Q

when is there bias

A

if there is a direct interest - must quash, bias is presumed
indirect interest - may or may not quash

46
Q

what is a direct interest

A

financial interest, proprietary interest or personal interest regarding same cause

47
Q

what is an indirect interest

A

a relative of the decision making has the interest

48
Q

when do the rules of natural justice not apply

A

when the decision maker has a legislative rather than judicial function

49
Q

do statutory prcoedural requirements always need to be adhered to

A

2 types: mandatory and directory
mandatory - must be followed or decision is invalid for ultra vires
directory - does not need to be adhered to

50
Q

how to tell if a statutory requirement is mandatory or discretionary

A

court ask would parliament have intended the consequences of non-compliance with the requirement to be the invalidity of the decision

51
Q

when does legitimate expectations apply

A

can apply to any of the 3 JR grounds
when the authority made a specific undertaking to an individual or group that policy would continue
are there compelling reasons to change policy?
is there overriding public interest to justify breach of expectation?

52
Q

pre-action protocol for JR

A

letter before claim
14 days to reply
(unless urgent or time limit less than 3 months)
permission - standing and time limits (not granted if wouldn’t have been substantially different for C unless public interest)
hearing of claim

53
Q

can ouster clauses in enabling acts prevent JR

A

full ouster clause - prevent any challenge

partial ouster clause - prevents some challenge

54
Q

if ouster clause imposes time limit on challenge can the court extend it

A

no - not for any reason

55
Q

when doesn’t an ouster clause apply

A

if the decision maker steps outside their permitted area the ouster clause won’t apply

56
Q

principle of procedural exclusivity

A

use JR for public law case

if case has public and private elements then can use private route

57
Q

what is a public body

A

RP or consider nature of power and if it is exercising public law functions

58
Q

time limits for JR

A

3 months
planning act 6 weeks
public procurement 30 days

59
Q

can JR time limit be extended

A

yes for good reasons but not obliged to

can refuse if there has been undue delay

60
Q

can you use JR if there is a statutory remedy available

A

must exhaust statutory remedy first

61
Q

when won’t the court grant C a remedy for JR

A

if the outcome wouldn’t have been substantially different

unless public interest

62
Q

remedies for JR

A
prerogative remedies:
quashing order
prohibiting order
mandatory order
non-prerogative/private law remedies
injunction 
declaration 
damages
63
Q

can a declaration be ignored

A

yes no legal sanctions

64
Q

when will damages be granted for JR

A

if C is seeking other remedies and damages could have been awarded in a civil claim (means C must have a private law cause of action eg tort, contract or ECHR breach)

65
Q

will there always be a remedy for a successful JR claim

A

no JR remedies are discretionary