Intro to Judicial Review Flashcards
what is judicial review
-‘supervisory’ jurisdiction exercised by High Court
-centered on series of common law grounds of review
-Lord Diplock: illegality, irrationality and procedural impropropiety
give 3 examples of the specific set of remedies for judicial review
- quashing
-prohibiting
-mandating orders
who are the two parties in judicial review cases
-decision makers (public authority etc)
-aggrieved individual
who is the authority for the 3 main grounds for review
-Lord Diplock in CCSU
what are Lord Diplock’s 3 heads for grounds for review
-illegality
-irrationality
-procedural impropriety
is the Diplock categorisation indicative or definitive
-indicitive
-may add further grounds eg proportionality or fundamental rights
how is illegality interpreted by the courts
-“the decision maker must understand correctly the law that regulates his decision making power and must give effect to it”
-Lord Diplcok CCSU
what are the 5 main suspect ‘illegality’ behaviours
a PA:
-exercises a power it doesnt have
-uses power for improper purposes
-accounts for irrelevant considerations or ignores relevant ones
-delegates power without authorisation
-unlawfully limits its discretion eg with a rigid policy
what is the ultra vires theory of judicial review (Public Law Project)
-determining the scope of decision making powers is classically justified with reference to Parl’s intention
give 2 example cases of illegality - PA exercising a power it does not possess
-McCarthy and Stone Ltd (1992)
-Public Law Project (2016)
explain McCarthy and Stone Ltd 1992
-planning authority levied £25 charge for informal consultations regarding planning applications
-no statutory basis for charge so ruled unlawful
explain Public Law Project (2016)
-challenge to lawfulness of LC’s decision to intro a resident test for civil legal aid applications
-not within scope of power, stretched beyond it
what is the case authority for illeaglity - improper purpose
-Wheeler (1985)
-challenge to Leicester City Council’s decision to ban LFC from using public pitch for 12 months using s.56 Public Health Act after 3 players went to South Africa during apartheid (political reasons)
-ruled not lawful
what is the case example for illegality - irrelevant considerations or failure to account relevant ones
-Venables
-challenge to Home Sec’s decision to set 15 years sentence given to 2 men who as children were convicted of murdering James Bugler
-held not lawful as took into account irrelevant considerations (public petitions) and failed to regard relevant ones (psychiatric reports)
explain Venables case
-challenge to Home Sec’s decision to set 15 years sentence given to 2 men who as children were convicted of murdering James Bugler
-held not lawful as took into account irrelevant considerations (public petitions) and failed to regard relevant ones (psychiatric reports)
what is the case example for illegality - delegates power without authorisation
-Barnard (1953)
-local dock labour board granted power to suspend workers
-Port Manager dismissed 18 striking workers without consulting Board
-not lawfully delegated
what happened in Barnard (1953)
-local dock labour board granted power to suspend workers
-Port Manager dismissed 18 striking workers without consulting Board
-not lawfully delegated
what is they key exception to illegality - unlawful delegation
-Carltona (1943)
-challenge to decision to requisition factory during WW2 owners argued unlawful delegation
-Minister did not personally sign decision
-held lawful as decision of departmental official=decision of responsible minister (Lord Greene)
explain Caltona 1943)
-challenge to decision to requisition factory during WW2 owners argued unlawful delegation
-Minister did not personally sign decision
-held lawful as decision of departmental official=decision of responsible minister (Lord Greene)
explsin Wheeler
-challenger to Leicester City Council’s decision to ban LFC from using public pitch for 12 months using s.56 Public Health Act after 3 players went to South Africa during apartheid (political reasons)
-ruled not lawful
Is Caltona a presumption
no bc R v Adams (2020)
explain R v Adams (2020)
-challenge to validity of Interim Custody Order issued against A during the troubles
-release of doc 30 years later revealed order not issued by SoS
-Art 4 1972 Order said ICO needed SoS to exercise it therefore Carltona did not apply and the conviction was unlawful
what does rationality challenge
-rationality is where we find merits review but with a very high threshold
-(can directly challenge decision for being bad)
what does Lord Diplcok say about rationality in GCHQ
-Wednesbury Unreasonableness=
“a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person… could have arrived at it”
where did Wednesbury Unreasonableness come from
-Lord Diplock coined it from Lorde Green in Wednesbury case
“so unreasonable that no reasonable authority authority…”
what is the threshold for Wedensbury Unreasonableness / rationality
-Lorde Greene in Wednesbury
-“something overwhelming”
is the wednesbury test a canonical test
-no; multiple versions of test articulating essentially the same idea and not competing
-Wednesbury most popular
give 2 sources on the threshold for rationality/wednesbury unreasonableness
-Jowell and Lester
official has “taken leave of his senses”
-Lord Brightman in Puhlofer
“unreasonableness verging on absurdity”
what does Jowel and Lester say about rationality threshold
cases where the official has “taken leave of his senses”
what does Lord Brightman in Puhlofer say about rationality threshold
“unreasonableness verging on absurdity”
give a case example for the rationality threshold
-K v SSHD (2023)
-successful rationality case (unlike Wednesbury)
-s.71ZB = discretionary power to retrieve overpayments must be used in accordance with public law principles (Steyn J)
-K, reliant on UC constantly asked if she was being paid correctly and was reassured until someone noticed she was right and tried to claim it back
what happened in K v SSHD (2023)
-successful rationality case (unlike Wednesbury)
-s.71ZB = discretionary power to retrieve overpayments must be used in accordance with public law principles (Steyn J)
-K, reliant on UC constantly asked if she was being paid correctly and was reassured until someone noticed she was right and tried to claim it back and refused to waive it when she asked
on what grounds was K v SSHD (2023) found unlawful
- relevant considerations (illegality) eg her detrimental reliance + public interest
-irrationality
-legitimate expectations
give 3 rationale for high threshold
-review/appeal distinction (the more based on merits it bceomes the more likely it is to become an appeal)
-expertise (ultimately gov ministers decisions on how to implement policies, not the courts)
-democratic legitimacy (can get rid of Home Sec/ gov ministers if maing unpopular decisions eg elections, not with courts tho+ Parl gave them discretionary powers for a reason)
explain the review/appeal distinction as a rationale for the high threshold
-the more based on merits it bceomes the more likely it is to become an appeal
explain the expertise rationale for a high rationality threshold
-ultimately gov ministers decisions on how to implement policies, not the courts
explain democratic legitimacy as a rationale for the high rationality threshold
-can get rid of Home Sec/ gov ministers if maing unpopular decisions eg elections, not with courts tho+
Parl gave them discretionary powers for a reason
explain the variability complication with rationality
- the threshold can move both ways
-in circs where courts institutional weaknesses are particularly relevant eg Super Wednesbury = judges are super demanding high threshold
-when fundamental rights are at stake - “anxious scrutiny” / low threshold
-based on judges’ believed competence on making decisions
give 2 case examples for super wednesbury (high threshold)
-Nottinghamshire CC (1986)
-Hammersmith & Fulham (1990)
- both cases of councils v central gov over ministers using DPs to tell local councils how to use their funds
what are both -Nottinghamshire CC (1986)
and Hammersmith & Fulham (1990) about
-both cases of councils v central gov over ministers using DPs to tell local councils how to use their funds
-both aregued irrationality
what did the jduegs say in -Nottinghamshire CC (1986)
and Hammersmith & Fulham (1990)
-in these circs the threshold is so much higher theres no chance the courts would get involved in a dispute between central gov and local councils
-shoud be sorted democratically not by judges
give 2 authorities for the low threshold variability of rationality
-Lord Bridge in Bugdaycay (1987)
-‘the most fundamental of all human rights … must surely call for the most anxious scrutiny”
-Sir Thomas Bingham MR in Smith (1996)
-“the more substantial teh interference with human rights the more the court will require by way of justification before it is satisfied the decision is reasonable”
what did Lord Judge in Bugdaycay (1987) say
-‘the most fundamental of all human rights … must surely call for the most anxious scrutiny”
what does -Sir Thomas Bingham MR in Smith (1996) say
“the more substantial teh interference with human rights the more the court will require by way of justification before it is satisfied the decision is reasonable”
what is the general idea of low rationality threshold / anxious scruitny
-the more fundamental human rights are interfered with, the more justification the courts will need to allow it
how did lawyers used to use anxious scrutiny pre-HRA
- tried to use rationality/ wednesbury threshold to tackle human rights violations
-after HRA 1998 no need anymore
what has been a proposed new ground for review and by who
-Lord Diplock in GCHQ
-proportionality
what is proportionality as a ground for review a competitor with
-may replace rationality/merit review
when challenging on grounds of proportionality, what do you ask
-was the objective sufficiently important, and
-was the decision no more than was necessary to achieve the objective
is proportionately actual law
- yes just not the law of judicial review
-used in international courts eg ECHR convention rights and test used in HRA 1998 for applying convention rights incorporated into domestic law
give 3 examples of how proportionality is used in the law
-used in international courts eg ECHR convention rights
-test used in HRA 1998 for applying convention rights incorporated into domestic law
-used pre brexit applying EU law under European Committees Act 1972
how does proportionality and rationality differ
-R asks how bad/unreasonable a decision is
-P asks if it is bad in a particular way/dimension (rooted in HR concern, more robust approach to rights)
who is the authority on the current status of proportionality
-Lord Sumpton in Pham
-“english law… has for many years stumbled towards” it but havent adopted it
-used by judges just not for judicial review
give two ways that english law has ‘stumbled toward’ incorporating proportionality as Lord Sumpton in Pham suggested
-judicial reasoning sometimes incorporates elements of proportionality
-judges sometimes say that they are contemplating changing the test
what did Lord Reed say in Pham
- “the court has interpreted statutory powers to interfere with those rights as being subject to limitations”
who is the authority on retiring the Wednesbury test for rationality
-Dyson LJ in British Civilian Internees (2003) case
- difficulty justifying “retaining the Wednesbury test” but “that is not for this court to perform its burial rites”
what does Dyson LJ say in British Civilian Internees 2003 case
- difficulty justifying “retaining the Wednesbury test” but “that is not for this court to perform its burial rites”
