JR Cases, General

Question 1

CCSU v Minister for the Civil Service (1985) (GCHQ Case)

Answer 1

• Per Lord Diplock

o	Three Heads:
•	Illegality 
•	Irrationality
•	Procedural impropriety
•	(proportionality?)

Question 2

West v Secretary of State for Scotland (1992)

Answer 2

(leading case on JR for Scotland!)
Held (broadly): Wherever there is an excess or abuse of the power or jurisdiction which has been conferred on a decision-maker, the Court of Session has the power to correct it)

• Tripartite Test:
• 1. Power is Conferred
2. On a party entrusted with making decision
3. Whose decision affects the rights/obligations of another person
• L. Hope:
o No substantial difference in English/Scots law as to the GROUNDS of review
• Procedure may be different, but not the ground
o Supervisory jurisdiction may only be exercised to ensure that the person/body doesn’t exceed/abuse or fail to do what the jurisdiction, power or authority requires
• Categories which fall under this excess/abuse of jurisdiction are not a bused and are capable of being adapted
o Court of Session cannot substitute its own view for the decision
• It can nonetheless interfere in order to control an abuse or excess of power or failing to act within limits of jurisdiction
• Court of Session will only step in to say body has overstepped its jurisdiction and that body must fix it
• Not how to fix it
• If this test is met, can bring JR proceedings against private bodies as well as public bodies
o In Scotland ONLY, doesn’t apply in England

Question 3

Tehrani v Secretary of State for the Home Department (2006)

Answer 3

• Asylum applicant’s application was originally decided on in Scotland, but appeal was rejected in England
• Where could he bring an action of judicial review?
o Petitioner must be able to show “a sufficient connection with Scotland” to invoke the supervisory jurisdiction
• Factors that the House of Lords considered included:
o The petitioner was resident in Scotland
o The “harmful effects” were likely to be felt in Scotland
o The determination was made exercising a UK-wide jurisdiction
• Where both courts have jurisdiction, court which first seized the matter must exercise its jurisdiction to provide the remedy sought
o Unless the respondent has taken a plea of forum non conveniens
• In this case, application had to be heard in Scotland unless there were exceptional circumstances

Question 4

AXA General Insurance Ltd, Petitioners (2011)

Answer 4

• Supreme Court:
• Lord Hope
o Title and interest (both private law) have no place in applications to the court’s supervisory jurisdiction that lie in the field of public law
• A person needs to have sufficient interest ONLY
• Must distinguish between mere busy bodies
o Person has to be directly affected and have a reasonable concern
• Lord Reed
o Drew distinction between the private law vindication of rights and an application to the supervisory jurisdiction to ensure the compliance of a public authority with the law