Areas of difficulty Flashcards
What is the approach the courts take towards standing for challengers to make judicial review claims?
Sufficient interest test - the challenger must show sufficient interest
What does having a sufficient interest in a claim mean (for an individual)?
An individual claimant: they have been personally or directly affected in some way by the government decision
What does sufficient interest mean for a pressure group?
For a pressure group acting on behalf of an individual or people, they must be directly affected or have sufficient standing, reputation, presence, experience and expertise and should be the main pressure group for that particular issue
What is an example of a pressure group which would have sufficient interest?
Greenpeace bringing a claim against a decision to frack in the local area
What is the court’s approach to standing?
An increasingly liberal approach - individuals/groups may not be directly impacted but have a genuine concern
Do the courts generally allow associations standing?
Courts are generally content to allow associations standing to challenge a matter in communal interest
In what circumstance would a pressure/interest group not be given standing?
Individuals who would not be given standing, should not gain it collectively merely because they had formed a campaign group
What factors will the court consider when giving standing to a group?
- expertise and reputation of the group
- genuine concern
- number of supporters/individuals affected
- importance of vindicating the rule of law
- absence of any other responsible challenger
- nature of breach and duty
What is the impact of recent ‘Good Law project?’
Although the broad trend has been towards liberalisation of standing, administrative courts still expect a public interest challenger to have the necessary ‘interest’
What is the time limit for judicial review claim?
A claim must be filed promptly, and in any event no later than 3 months after the grounds to make the claim first arose
What are the prerogative remedies that can be awarded in judicial review claim?
- quashing order: voids public body decision
- suspended quashing order: quashing order comes into effect at later date
- prospective-only quashing order: quash public body decisions in the future only, not to past events
- prohibiting order: prevents public body from implementing decision in future
- mandatory order: compels PB to do something
What is the time limit for a judicial review claim for planning permission?
6 weeks (as soon as possible, and in an event no later than 6 weeks)
What is the judicial review pre-action protocol to avoid cost consequences?
- send letter to public body decision maker to try and resolve the case through mediation
- give them 14 days to respond
- if response satisfactory - no legal proceedings needed
When will a letter to public body not be necessary for JR claim?
If the matter is urgently or the time limit of fewer than 3 months applies
What are the non-prerogative remedies available for successful JR claim?
- declaration: declares correct legal position (but offers no actual remedy)
- injunction
- damages
In what cases will the court order damages in JR?
The court only awards damages in JR where:
a) The claimant is seeking a JR remedy; and
b) has a claim in contract and/or tort as well (mix of public and private law)
c) it is a human rights claim (so damages are awarded under HRA) and the court is satisfied it is in the interests of justice to award damages
What is the Salisbury-Addison convention?
It is a constitutional convention under which the House of Lords should not reject at second or third reading any government legislation that has been passed by House of Commons which carries out a manifesto commitment (Bill mentioned in election manifesto)
What is the convention relating to financial legislation?
Financial bills are only introduced by a Cabinet minister in House of Commons
What is legislative convention relating to devolved matters?
Westminster Parliament will not normally legislate in regard to devolved matters in Scotland, Wales and NI without consent of devolved administration
What is the Supreme Court’s updated approach to statutory interpretation / JR?
If the processes under an Act are not complied with and the Act does not state the consequences?
The starting point is to examine what consequences are of non-compliance: if procedures are not complied with, did Parliament intend invalidity?
Test:
1. What is the purpose oof the procedure under the statute in context of Act as a whole?
2. Based on the facts, will substantial prejudice be suffered if action is rendered invalid because procedure under the Act was not followed?
Amenability for JR?
Claimant must be able to bring a claim:
- issue of public law
- D must be a public body
- C must have sufficient interest
- Claim must be started promptly and within the time limit
- Check for ouster clauses
What is a full ouster clause for judicial review and is it likely to be upheld?
An ouster clause excludes or limits the right of a claimant to challenge a public body decision
- a full ouster clause means there is no right of challenge, but these are rare and unlikely to be upheld
What are the grounds for JR?
- Illegality
- Irrationality / unreasonableness
- Procedural impropriety
- Legitimate expectation
- Breach of ECHR
What are the rules regarding delegation of government exercising its powers?
General rule is government/public bodies cannot delegate
Exceptions:
1. Carltona Principle: ministers can delegate to junior ministers/CS within their department if appropriate
- Local Government Act s101: LA can delegate to committees as long as they have passed a resolution to do so
What are the two ways a government can fetter its discretion?
- Not making decisions for themselves
- Not considering individual cases on their merits
What does dual purposes mean in respect of judicial review?
Where government/public body plans or does something for two different purposes and:
- one is authorised; but
- the other is unauthorised
If the unauthorised one is the main purpose and had a ‘material influence’ = illegal
For a JR claim based on error of fact what must apply?
All the following must apply:
- there must be a mistake as to an existing fact
- the fact or evidence must be objectively verifiable
- claimant must not be responsible for the mistake
- mistake must have played a material part in the decision
What is the test for unreasonableness and irrationality for JR claim?
A government/LA decision is so outrageously illogical/amoral/unreasonable that no sensible person could have made it
What is the effect of direct bias?
If the decision maker has a direct interest in the outcome of the decision, the decision is automatically quashed
What is the test for indirect bias?
Whether a fair-minded and impartial observer having considered the facts conclude that there had been a real possibility of bias
What right to a fair hearing do individuals have with respect to public body decision?
General rule is that full oral hearing is not required
But, every claimant, regardless of type, is entitled to a hearing that is fair and reasonable in all circumstances
What is an example of an abuse of discretion given by statutory powers of a government?
A decision is illegal if it is an abuse of discretion, such as powers not being used in the appropriate form
What is the effect of the HRA on the doctrine of Wednesbury unreasonableness?
The doctrine has been found to overlap with that of proportionality
What is the interaction between LA discretion to depart from policy and an individual’s legitimate expectation?
An individual can still have grounds for JR under legitimate expectation: a local authority has no discretion to depart from previous policy and procedure without notice where this is being relied upon by those affected
A claimant is seeking judicial review of their local authority’s refusal to consider their application for a licence required for the operation of their business.
What is the most appropriate remedy?
A mandatory order
Are there circumstances under which a quashing order could be refused?
Yes, it is discretionary, the grant is subject to the court being satisfied that there is no good reason for its refusal
Court can refuse it where there has been delay, unreasonable behaviour by claimant or not in public interest
What is the first step in procedure for Judicial Review?
The solicitor should write to the relevant government minister immediately setting out the client’s concerns and intentions
Part 54 CPR: notice should set out all salient facts of the case and be supported by affidavit
What does the leapfrog process apply to?
This process only applies in relation to civil law when an appeal is sought from a High Court judgment
- bypass the Court of Appeal
- likely to involve an issue of law that is a matter of public importance
- case has already been heard by High Court
Who hears procedural hearings in the King’s Bench Division of the High Court?
A Master
Then the first instance trial is heard by a High Court judge, and any appeal will go to Civil Division of Court of Appeal
What is the mix of sources of constitutional rules in UK?
UK constitutional ‘rules’ comprise a mixture of legal rules from constitutional statues, EU law and common law; as well as non-legal rules, of conventions, laws and customs of Parliament and academic opinion
Can the Supreme Court invalidate primary legislation?
No, the UK Supreme Court cannot invalidate primary legislation
What is the effect of devolution on UK constitutional structure?
Since 1998, the process of devolution has had significant practical effects on government and the division of responsibilities between constituent countries of the UK, albeit one which has not changed the ultimate centralised sovereignty of Westminster
What is the effect of the Constitutional Reform Act on separation of powers?
CRA did not introduce the idea of an independent judiciary but it enhanced the status of the higher judiciary as well as introducing a series of reforms that ironed out the overlaps in the separation of powers model
How can the executive branch be controlled by the judiciary?
The judiciary can exercise a degree of control through judicial review. This allows the courts to invalidate secondary legislation if it is deemed ultra vires
What is the modern judiciary’s approach to executive discretionary power?
The courts interpret discretionary statutory powers in a way that upholds key rule of law principles (fairness, legality and reasonableness)
How do courts interpret and assess the legislative position regarding rule of law concerns over how discretionary powers have been exercised?
Courts will need to balance its assessment of the purpose and intent of these powers. They will be prepared to declare actions unlawful if there is insufficient evidence to show action is necessary
Under the doctrine of parliamentary sovereignty, can today’s Parliament bind a future Parliament?
No. Future Parliaments can pass new legislation
What is the relationship between parliamentary sovereignty and devolution?
The principle of parliamentary sovereignty means there is no legal limitation on Westminster legislating to reverse devolutuon, in spite of the existence of the Sewel Convention
Are prerogative powers reviewable by the courts?
Yes, they are no longer a special form of power as they are not immune from legal controls exercised over other governmental powers
What happens if there are overlapping statutory and prerogative powers in operation?
Statute takes priority. Even if the statutory scheme is not yet in place, statute will prevail.
Prerogative powers cannot frustrate the will of Parliament
What is the court’s approach to reviewability of prerogative powers?
The courts accept applications to review the manner in which the government exercises all its prerogative powers, except those which are not appropriate for judicial deliberation. If justiciable, the courts apply a sliding-scale approach of varying intensity of review
What are the police’s powers with regard to imposing conditions on assemblies under POA?
Conditions can be imposed only where the intimidatory behaviour is sufficiently hostile to compel other persons not to do something that they are entitled to do
What are the police’s powers under s14A to ban trespassory assemblies under POA?
The police can only ban trespassory assemblies (20 or more people) that are taking place on land wholly “in the open air”
Is there anything in the constitution which prevents the Monarch from adding to a speech setting out a proposed new law?
Yes, the King is prevented from doing this as there is a constitutional convention, established by usage, that the speech is drafted by the prime minister
What is the procedure for appointing First Minister of the Senedd?
The person would need to be nominated by Senedd and elected by a majority vote of the Senedd before being recommended to the King for appointment
What is a remedial order?
A remedial order is a type of statutory instrument that allows the government to quickly amend Acts of Parliament so as to remove incompatibility with Human Rights Act 1998
What is the notice requirement under POA for a procession?
The notice period is not less than six clear days before the date when the procession is intended to be held
- normal notice period is 6 days, but a procession can take place at short notice if as much notice as possible is given (e.g., give notice as soon as procession is organised)
Is it possible for a judge to stand as an MP?
No - a judge is disqualified from standing
What are the police powers for preventing breach of the peace?
The police have no powers to take steps to prevent a breach of the peace where there is no immediate threat
- There must be a reasonable apprehension of an imminent breach of the peace
- close proximity of time and place
Does police powers to prevent breach of the peace extend to innocent bystanders?
It can do - the police have powers to detain ALL present where there is a reasonable expectation that a breach of the peace is imminent
What is the legal position of an MP / Minister?
Ministers by convention should be members of either House of Commons or House of Lords
- this is to ensure accountability to Parliament
What is the test for indirect bias?
Would the fair-minded and informed observer conclude that there was a real possibility of bias?
If the facts suggest to the court that a fair-minded and informed observer would conclude that there was a real possibility of bias = indirect bias = automatic disqualification
