Grounds for traditional judicial review

Question 1

what is the traditional justification for classic judicial review?

Answer 1

• the ultra vires principal
• “if the decision maker exercises powers outside the jurisdiction conferred, in a manner which is procedurally irregular or s unreasoanable, he is acting ultra vires his powers and therefore unlawfully”

Question 2

What is the limited role of the court here?

Answer 2

-simply to decide whether the action taken by the public body is legal/illegal

Question 3

What are the two natural justice grounds?

Answer 3

• right to hearing

- rule against bias

Question 4

Justifications of the right to hearing

Answer 4

• it improves the administrative process

- it gives each person respect/a voice

Question 5

Core requirements for right to hearing (demanded by courts in most cases)

Answer 5

• notice of the measure/information on what the decision maker is deciding about/what information they do have
• opportunity to make out a case (to explain myself/argue)

Question 6

Optional requirements for right to hearing (not always demanded)

Answer 6

-oral hearing, appeal process, legal representation (when right/interest is very important it may be required), cross-examiniation of witnesses, reasons for the decisison

Question 7

if the statute offers procedure what happens to the right of hearing grounds?

Answer 7

-right to hearing is read as included unless it is already expressed in the statute

Question 8

Factors that determine the scope of the right to hearing

Answer 8

• administrative/judicial (the closer the deciding body is to judicial the more robust the right to hearing)
• granting a new right/depriving an existing right (if its the latter hearing is more robust)
• importance of right/interest
• legitimate expectations (if admin body created exectation that right to hearing would be robust its respected)
• practical limitations (costs)
• likelihoood hearing would make a difference to the result

Question 9

Two categories of the rule against bias

Answer 9

-personal interest and no personal nterest

Question 10

If the decision maker has a personal interest in the decision…

Answer 10

they are automatically disqualified

Question 11

personal interest examples

Answer 11

-if decision maker has financial interest in decision (automatically disqualified)

Question 12

What is the test for no personal interest?

Answer 12

“whether the fair minded and informed observer having considered the facts, would conclude there was a real possibility of bias” (porter v Magil)

Question 13

If there is no personal interest does there have to be actual bias (Metropolitan properties v Lannon and Others (1969) ?

Answer 13

-there just needs to be a real possibility of bias
“the court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did”

Question 14

What are legitimate expectations (Nadarajah v Secretary of state (2005)?

Answer 14

“where a public authority had issued a promise or adopted a practice which represented how it proposed to act ina given area, the law would require the promise or practice to be honoured unless there was good reason not to do so”

Question 15

What are procedural legitimate expectations?

Answer 15

• expectations regarding the procedure of decision making where the admin body promises beyond hat is required according to the law
• court may require them to follow their promise because it’s a legitimate expectation

Question 16

What are substantive legitimate expectatiions?

Answer 16

• relate to substantice decisions promised by public bodies such as welfare benefits or liscenses
• court may require public body to honour promise

Question 17

3 ways courts deal with established substantive legitimate expectations

Answer 17

1. P.A redecides issue and takes legitimate expectation as an important consideration
2. may require public authority to honour their promise
3. may require P.A to consult with the person to whom promsie is made before making decision

Question 18

Coughlain case

Answer 18

• woman severely injured in car accident and put into institution
• NHS required her to move to a different one and told her she’d be the rest of her life
• after 5 yrs they required her to move again
• court said no and held that if the frustrating expectation would be “so unfair as to be a misuse of the authority’s power”, the authority will have to fulfill its promise

Question 19

How does public body create legitimate expectations?

Answer 19

1. official representation/conduct
2. conduct/representation must be clear enough to reate representation
3. reliance
4. the size of the group to which the promise was made
5. individial interest v public interest

Question 20

what is the non-delegation doctrine?

Answer 20

if the legislation gave the authority to apply discretion to a specific PA they cannot forfeit the duty to apply discretion

Question 21

What happens if a PA attempts to surrender its discretion according to the non-delegation doctrine?

Answer 21

• discretionary power may not be delegated

- they can take counsel or advise from suitable people but decision must be kept in their hands

Question 22

What is the non-fettering doctrine?

Answer 22

-PA cannot avoid discretion by adopting rigid rules, decision makers must give a reasoned consideration on an individual basis as to how a power should be exercised

Question 23

Cartola principle from Cartola v Commisoners of Works (1943) on non-fettering principle

Answer 23

“the functions which are given to ministers are functions so multifarious that no minister could ever personally attend to them… the duties imposed upoin ministers and the power given to ministers are normally exercised under the authority of ministers by responsible officials of the department. Public business could not be carried on if that were not the case”

Question 24

Prison Rules 1999 on the application of cartola principle

Answer 24

• according to s2 for solitary confinement more than 72 hrs you need secretary of state’s authority
• can prison officials’ exercise this power?
• they have similar expertise to minister but their not from minister’s department
• minister was external decision maker and when you decide on such a harsh sanction you need an external decision maker like the secretary of state
• prison official’s couldn’t exercise this power

Question 25

Softening of non-fettering principle in British oxygen v Minister of technology (1970)

Answer 25

“a ministry or large authority may have had to deal already with a multitude of similar applications and they will most certainly have evolved a policy so precise that it could well be called a rule”

-court has no objection provided PA will listen to people with something new to say

Question 26

what are irrelevant considerations?

Answer 26

-decision maker must act only on the basis of considerations which are legally relevant and ignore all legally irrelevant mattters

Question 27

How do you know what is relevant/irrelevant?

Answer 27

-look at statute/regulation and decide the purpose and thend etermine what facts are relevant/irrelevant for that purpose

Question 28

What are improper purposes?

Answer 28

statutory powers can only be used for purposes for which they were created
-look at purpose of statute and use it only for those purposes

Question 29

Hanks and others v Minister of housing (1963) on irrelevant considerations

Answer 29

“if it is shown that an authority exercising a power has taken into acount as a relevant factor something which it could not properly take into acccount in deciding whether or not to exercise the power, then the exercise of the power, normally at least is bad”