Constitutional 5: Judicial Review Flashcards
What are the issues to consider to see if judicial review is available?
Amenability
- is it appropriate for JR
Procedural Exclusivity
Standing
Time Limits
Ouster Clauses
Amenability: what bodies can you bring JR against?
Should relate to public body
Non Public Bodies containing public element
- is source of power in statute
Regulatory authority
- only if function has sufficient public character
- ask but for body would government have to do it
If claimant has contract with public body
- governed by contract law
If claimant has contract with public body can they bring JR?
Will be governed by contract law
What are the rules of procedural exclusivity in JR?
To bring a public law challenge in any other way than by JR would amount to an abuse of process of the court
Exception
- if both parties agree to use private law
- mixed claims public law issue can be reviewed in private law court
What is the procedure for bringing JR claim?
Pre-Action Protocol
- good practice
- should write to defendant identifying issue
- defendant to respond in 14 days
Permission Stage
- apply to court for permission to continue claim
- may use hearing if complex but normally not
Full hearing Stage
- standing to be considered
What are grounds for refusing permission for continuing JR claim?
- Lackof standing
- that even if successful the claimants outcome would not be substantially different.
What are the time limits for bringing JR claim?
- Time limit of 3 month after the grounds to make the claim first arose, to make claim
- Claim can also be denied even if filed in 3 months if this is not held to be prompt
Exception for planning decision
- must be brought in 6 weeks
What issues will courts not review for JR?
hypothetical situations
factual disputes
What are the requirements for standing for JR?
Individual must have sufficient interest
- normally at permission stage but if unclear there should be full hearing
Groups/Associations (maybe)
- if the individuals would themselves have standing; or
- is responsible
- will resourced
- has expertise; and
- there is unlikely to be alternative claimant
What might prevent JR being used even if other conditions are met?
- if there is alternative route to take (tribunal act.)
- JR is last resort
When will an ouster clause prevent JR?
Unlikely as courts will interpret clause in way that does not interfere with thier jurisdiction
Has to be clear with explicit wording
What are the grounds for judicial review (general)?
Illegality
Procedural Impropriety
legittimate expectation
Unreasonableness or irrationality
What has to be shown for illegality in JR?
Ultra Vires
- acts outside its statutory power
Errors of Law
- decision maker makes mistake regarding issue of law
Specific legal duty
- does done comply with legal duties that must
- for example showing due regard for DEI when making decisions
Unlawful delegation of power
- unless provided by statute; or
- Carlton principle
Irrelevant considerations
- if fail to take relevant considerations into account; or
- take irrelevant ones into account
What has to be shown for procedural impropriety?
mandatory / diretory requirements
right to be heard
rules against bias
duty to consult
duty to give reason
What are mandatory and directory requirements and how are they relevant to procedural impropriety?
mandatory requirements
- failure to follow will invalidate the decision
directory requirements
- if not followed will not necessarily invalidate decision
When does procedure require a right to be heard?
For judicial or administrative decisions depending on the extent of justice and fairness required
Forfeiture cases
- when a right is removed from a person they should be able to hear case against them and respond
When might procedural impropriety be argued due to bias?
Direct Bias = automatic disqualification
- if decision maker has financial interest; or
- non financial interest so closely connected to issue raised (active involvement with an organisation that is part of case)
Indirect Bias = can challenge
- depends if a fair minded and informed observer would conclude there was a real possibility of bias
- view formed in advance
When might common law duty to consult be grounds under procedural impropriety?
May arise:
- when there is a statutory duty to consult
- promise to consult
- established practice to consult
- when failure to consult would lead to clear unfairness (rare)
When might duty to give reason apply to procedural impropriety?
Only if:
- subject matter or interest is important (eg involving personal liberty); or
- decision appears to be aberrant (departs from standard practice)
How can legitimate expectation arise generally?
Procedural
- promise or past practice on how decisions are made
Substantive
- assurance or promise has led a person to believe that they will receive a particular, tangible benefit
Examples of procedural Legitimate expectation?
A public body has promised or represented that a particular procedure will be followed before a decision is made
- contained in policy
- given expressly
- published criteria used for decision
Where there has been an established practice for the public body to use a particular procedure
When will substantive legitimate expectation arise and what would the outcome be?
Express promise or past practice
- must be clear and unambiguous
Legal
- must be within power of public body or their agent
knowledge
- claimant needs knowledge of promise (unless asylum seeker)
Importance
- promise must be of particular importance
When can unreasonableness or irrationality be used as grounds for judicial review?
If the decision is considered so outrageous or absurd that it is outside the power of the decision maker.
Test:
- must be so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applies their mid to the question court have arrived at it.
What remedies are available of JR?
Quashing Order
- reders original decisifon void
Mandatory Order
- orders D to act in certain way (such as retake decision)
Prohibiting Order
- D not to act in certain manner
Injunction
- order preventing a party from acting
- requires third party to act
Declaration
- declares that decision or action complained of was unlawful
How can remedies be used/not used?
At discretion of court to grant any remedy
Can combine multiple remedies
When may the court not grant a remedy?
Maybe if:
- third parties have relied on the decision
- if quashing decision is not likely to make any practicable difference
