Enforcement of human rights

Question 1

judicial review

Answer 1

type of case where judges review public body decisions or acts

Question 2

what is a judicial review

Answer 2

• a hearing which the judge reviews the lawfulness of a decision or action, or a failure to act by a public body exercising a public function

Question 3

what does the claimant need to do first?

Answer 3

• show that a public body is under a legal duty to act or make a decision in a certain way and is unlawfully refusing or failing to do so
• or
• a decision or action has been taken by a public body that is beyond the powers it is given by law

Question 4

what decisions can be challenged by judicial reviews

Answer 4

• government ministers and department
• local authorities
• health authorities
• chief constable
• prison governers
• some tribunal

Question 5

who can bring a claim

Answer 5

• the person bringing the action has to have an interest in the decision being challanged
• this is called locus standi or standing - means that the claimant has to have suffiecent connection to subject matter of claim

Question 6

alternatives to a judicial review

Answer 6

• if there is an appeal , those avenues have to be followed
• if there is an issue of administration, then a case should be made to the relevant ombudsman

Question 7

time limits

Answer 7

• must be brought to the court quickly
• within 3 months of the challange

Question 8

illegality

grounds of judicial review

Answer 8

• if a public body goes beyond their powers (substantive breach) (ultra viras)
• if a public body doesnt follow procedure (procedural breach)
• R(miller) v Prime minister - PM requested to suspend sitting for a period of time , went for judical review and found was unlawful (ultra vires)
• AGs ref v Fulham corporation - corporation set up a commercal laundry where employees washed residents cloths for cash - ultra vires as no permission
• no power to make it

Question 9

fairness

grounds of judicial review

Answer 9

• if there is a procedures laid down by the law, then it must be followed
• claimants must be given a fair hearing - includes knowing what the case is between them , having the oppurtinity to present their case
• the public body must be impartial and not biased
• the public body must consult people it has a duty to consult people it has a duty to consult before a decision is made - or who have a legitimate expectation they will be consulted

Question 10

irrationality and proportionality

grounds of judicial review

Answer 10

• court may quash a decision if its considered to be so unreasonable its ‘irrational’ or ‘peverse’ - usally argued alonside other grounds
• associated provincial picture houses v wednesbury corpuration - “if a decision on a competant matter is so unreasonable that no reasonable authority would ever had come to it, courts can interfer”
• R(rogers) v swindon NHS trust - women with breast cancer was refused treatment you could get somewehere else
• irrational and unreasonable

Question 11

remedires - judicial review

Answer 11

• quashing orders - an oder which overturns or undoes a decision already made
• prohibiting orders - this stops a public from taking an unlawful decision or action it has not taken yet
• injuction - a temporary order requring a public body to do something or not to do something until a final decision has been made
• manditory orders - this makes a public body do something the law tells them to do
• decleration - the court can state what the law is or what the parties have a right to do so
• damadges - these may be awareded where a public body has breached the claimants human rights