JR Academy - SESSION 2: Grounds for judicial review

Question 1

Lord Diplock

Answer 1

modern architect of JR

Question 2

Lord Diplock in 1981 GCHQ case (cardinal authority)

Answer 2

outlined JR grounds

Question 3

judicial review grounds

Answer 3

They are often summarised as follows:

(1) Illegality;
(2) Irrationality;
(3) Procedural unfairness;
(4) Disproportionality.

Question 4

Illegality

Answer 4

This is where bodies subject to judicial review:
 go beyond the limits of their powers;
 misdirect themselves about the scope of their powers, or misapply the law (including EU law)
that applies to their decisions;
 fetter or avoid exercising their discretion in relation to individual cases;
 delegate decisions for which they are exclusively responsible to other bodies, or allow other
bodies to make such decisions for them;
 fail to ask the questions necessary to discharge their decision making functions;
 take into account irrelevant considerations or ignore relevant considerations.

Question 5

The Carltona doctrine (or Carltona principle)

Answer 5

expresses the idea that, in United Kingdom law, the acts of government departmental officials are synonymous with the actions of the minister in charge of that department.

Question 6

Padfield v MAFF [1968] AC 977, HL

Answer 6

Public authorities owe a basic duty to promote the purposes and policy of the statute under which
they are operating. They must not use their discretion to thwart the purpose of the legislation.

So, statutory intent is important.

Question 7

Keyu & Others v Secretary of State for Foreign and Commonwealth Affairs & Another [2015] UKSC 69

Answer 7

Wednesbury is here to stay

Lord Neuberger considered that the five-Justice panel in Keyu was insufficient to
accept, or reject, this argument which he considered potentially to have “implications
which are profound in constitutional terms and very wide in applicable scope.”11
Had
he not considered that the appeal would fail even if it were based on proportionality,
it would have been necessary to have the point re-argued before a panel of nine
Justices. The profundity of the issue arose, in Lord Neuberger’s judgment, because
it would involve the courts considering the merits of the decision at issue.
Lord Kerr tended to agree with Lord Neuberger that it would not be appropriate for a
five member panel of the Supreme Court to reach a final conclusion on the question
whether proportionality should supplant rationality as a ground of judicial review
challenge at common law. Lord Kerr queried, however, whether the question carries
as much constitutional importance as many commentators believe. He said that, “at
its heart, proportionality review requires of the person or agency that seeks to defend
a decision that they show that it was proportionate to meet the aim that it professes
to achieve. It does not demand that the decision-maker bring the reviewer to the
point of conviction that theirs was the right decision in any absolute sense.”12