JR Flashcards
what essentially is judical review
a challenge to the process - where an issue arises from where a decision-making body has been given powers which are used incorrectly
who must make the decision
a public body
where should the decision be made under
delegated powers - ie delegated legsilation
does that mean primary legislations can be subject to JR
NO
what does the s31(3) provide
no application for judicial review unless the leave of high court is obtained and unless it considers that the applicant has sufficient interest
what are the two elements that an applicant must satisfy the court to bring an action for Judicial review
1 - the existence of a prima facie case (i.e. there appears to be a case to answer)
2 - the applicant must have locus standi (i.e. the right to bring the case)
what must an applicant establish
that they have an arguable case
how can an arguable case be provided
when there is an abuse of power that is a ‘real as opposed to theoretical possibility’
what proves that an arguable case essentially means where an abuse of power is a ‘real as opposed to theoretical possibility’
r v secretary of state for the home department
what does it mean to have standing/locus standi
it means to ask whether an applicant has the right to bring this action for JR
how else can you express whether an applicant has the right to bring action
where they have sufficient interest
what did lord wilberforce say in the case of r v inland revenue commisioners ex parte national federation
some cases people may have no interest at all or sufficient interest, must be asked of what the position of the applicant is in relation to those powers and duties
in other words, the question of sufficient interest, cannot be considered in the abstract… must be taken together with the legal and factual context
so what actually happened in the case of r v inland revenue, ex part national federation
federation sought to challenge the revenues procedures for imposing taxes, they argued that members (who did not benefit from the arrangement) was, therefore, disadvantaged
what was held by the HL in the case of R v Inland Revenue, ex parte national federation
taxation arrangement did not apply to individual members of the federation -federation could not bring action
what happened in the case of greenpeace
toxic waste into the irish sea
what was held in the case of greenpeace
although greenpeace was clearly not directly affect, it was an internationally recognised organisation, it was much better equipped to bring an action that the actual resident affect by policy
what is the time limit for JR
no undue delay, high court can refuse grant leave under the seniors court act 1981
when must the claim form be filed
under the civil procedure rules the claim form must be filed
a) promptly
b) in any event not later than 3 months after the grounds to make the claim first arose
what case is very important when talking about the grounds for judicial review?
GCHQ
what did lord diplock say in the case of the GCHQ case
three grounds - (partially four) illegality, irrationality and procedural impropriety and the partially fourth one is proportionality
what is illegality
lord diplock says illegality means the decision-maker must understand correctly the law that regulates his decision making power and must give effect to it
what happened in the case of fulham
corporation had a statutory obligation, chargin money to clean clothes was not within power and therefore beyond power - the matter then turns on whether the counil has either expressly or impliedly, have the power to conduct the operation which it is conducting
what happened in the case of mccarthy
council required to conisder pllaning applications but also introduced a sustem of ‘informal consultations’ which they charged for 25 quid
HL held that although it was helpful, there was no power to levy the 25 pound charge (beyond power) the rules is that a charge cannot be made unless the power is given by express words or by necessary implication
what happened in the case of r v port talbot borough council
irrelvant consideration - councillor was granted tenancy on council house ahead of the waiting list - abuse of power
what happened in the case of barnard v national dock
national board had the power to discipline its members but delegated his power to port managers - nothing in this scheme authroising the board to delegate this function - it cannot be implied - therefore ultra vires
what happened in the case of gillan
local authority under duty to make provision to receive application to those homeless in populated areas may require 24 hour cover - held - authority failed to receiv application was in breach of statutory duty
when else can a decision be ultra vires
based on no evidence, evidence avilable was so minimal or mistaken understanding of the facts
what happend in the case of o’reilly v mackman
mistook the law applicable to the facts, asked itself the wrong question so had no jurisdiction to determine
what are essentially the two main principles for procedural impropriety
the right to a fair hearing, the rule against bias
what is the meaning of bias
davidson v scottish ministers -
bias is captures in the convetion concept of impartiality where an interest in the outcome of the case or an indication of prejudice against a party to a case will be a ground for concluding that there was a real possibility that the tribunal or member(s) was biased
how do you determine it
under magill
the appropriate test whether bias is present is whether the fair-minded and informed observer, would onclude that there was a real possibilit that the tribunal was biased
what is the test for finding bias
was there an objectively justified and legitimate reason for fearing a lack of partiality in the decision-maker
what case was the reconstructed test applied
taylor v lawrence
what happened in the case of taylor v lawrence
impartiality of the judge is to be presumed includes all the circumstance - would leave a fair-minded and informed observer to conclude that there was a real danger that the judge was biased
