JR II - Illegality and Unreasonableness - Consolidation MCQs Flashcards
When a court considers a claim involving a substantive ground of review, including unreasonableness, it will also consider the degree to which it should scrutinise the decision under challenge. Which of the following statements provides the best summary of the courts’ rationale for the ‘intensity of review’ approach?
In deciding the level of scrutiny to apply to cases the courts are ensuring that a fair decision is reached.
The low intensity standard of review is based on the courts’ view that parliamentary sovereignty is the ultimate determining factor.
The UK courts seek to ensure that an appropriate separation of powers balance is achieved by considering their constitutional entitlement and institutional competence to review decisions.
In distinguishing between matters concerning broader policy questions and those involving fundamental rights, the courts are purely intent on promoting the rule of law.
The intensity of review approach was developed by the courts deliberately to circumvent the high threshold Wednesbury standard.
The UK courts seek to ensure that an appropriate separation of powers balance is achieved by considering their constitutional entitlement and institutional competence to review decisions.
Correct. The court will consider whether the subject matter of the case before it is something it should properly intervene in (constitutional entitlement). This is linked to the question of whether the court has the appropriate knowledge and expertise to review the decision in question (institutional competence). Both considerations reflect the courts’ reluctance to interfere in areas which are better left to executive decision-making and expertise.
You are advising a new client who wants to challenge a decision of Renshire County Council (“RCC”) to refuse his application for a music venue licence. The licence scheme is governed by the (fictitious) Local Authority Licensing Act 2018 (“the Act”) which states:
Section 22: In deciding whether to issue a music licence, local authorities must take into account the interests and opinions of residents and businesses who are situated close to the venue.
Your client tells you that he applied for a licence in order to host music concerts at his café, which is located on the High Street in Renshire. In its short refusal decision, RCC stated: “Following careful consideration of your application we have decided not to issue you with a licence. In accordance with the Council’s noise pollution policy, we are prioritising licences for venues that are outside the town centre”. The client had submitted several letters of support with his application from local businesses, residents living in and around the town centre, and musical performers. These letters were not mentioned by RCC.
On the basis of the information you have, which of the following summarises the most accurate advice to your client on whether he can challenge the decision on the ground of illegality?
Although the client might succeed in a claim regarding RCC’s failure to consider the letters of support, the potential fettering ground has no merit because public bodies are perfectly entitled to adopt relevant policies.
It is likely that RCC has abused its discretion because it failed to take into account the letters of support submitted by the client, which relate to the mandatory factors in section 22.
RCC’s decision suggests that it failed to take into account mandatory considerations, and it may also have fettered its discretion through rigid application of its noise policy at the expense of an individual consideration of the client’s application.
The client will have strong grounds to argue that RCC made an error of law in relation to a misunderstanding of the wording in section 22.
It is unlikely that the client would succeed in a claim relying upon illegality. RCC is entitled to adopt a relevant policy and it is clear that it discharged its duty under section 22.
RCC’s decision suggests that it failed to take into account mandatory considerations, and it may also have fettered its discretion through rigid application of its noise policy at the expense of an individual consideration of the client’s application.
Correct. On the facts, it looks like RCC did not consider the opinions contained in the letters of support which relate to the mandatory factors in section 22. In addition, we are told that RCC applied a policy which precludes the client from being given a licence; the first issue - the failure to consider the letters - indicates that RCC did not consider individual aspects of the application.
Which of the following statements best represents the modern courts’ approach to the Carltona principle?
Government ministers are able to delegate to officials within their own department so long as they remain accountable.
Government ministers can delegate their discretion to officials within their own department, or officials within different ministerial departments, so long as the officials are suitably senior, and accountability remains with the minister who has the statutory power.
If government ministers delegate their discretion to a sufficiently senior official within their own department, this will not amount to unlawful delegation of discretion.
Government ministers can delegate their discretion to sufficiently senior officials within their own department, so long as accountability remains with the Minister who has the statutory power.
Government ministers, and some other public office holders, are permitted to delegate their discretion to sufficiently senior officials within their own departments, so long as accountability remains with the minister or the office holder who has the statutory power
Government ministers, and some other public office holders, are permitted to delegate their discretion to sufficiently senior officials within their own departments, so long as accountability remains with the minister or the office holder who has the statutory power
Correct. This accurately represents the principle and its expansion beyond Ministers to other public office holders such as Chief Constables, as per the case of R (Chief Constable of West Midlands Police) v Birmingham Justices, as well as the seniority requirement discussed in cases such as Oladehinde
You see a client who seeks your advice concerning refusal of her application for an Entrepreneur grant. These grants are governed by the (fictitious) Business and Social Enterprise Act 2019 (“the Act”). The Act states:
Section 15: A grant may be awarded where the applicant can demonstrate that their venture will make a quantifiable difference to the community.
Your client’s application was for funds to support her innovative food bank project, which, in addition to collecting foodstuffs, also seeks to engage local school children in the management of the project. The refusal decision included the following: “You have not shown that your project will make a quantifiable difference to the community. Whilst we have considered the evidence you submitted concerning the alleviation of food poverty in your town, and positive outcomes for the schoolchildren, you have not provided any reports about the financial benefits to your project and the community as a whole”.
On the basis of the information you have, which of the following summarises the most appropriate advice to your client on whether she can challenge the decision on the ground of illegality?
Following the cases of Anisminic and ex parte Page all errors of law have been found to be reviewable and therefore, the claim has a good prospect of success.
The decision-maker has erred in law through its interpretation of section 15 of the Act and therefore, it is highly likely that the decision will be quashed.
The decision-maker might have erred in law through a misunderstanding of section 15 of the Act. The decision suggests that ‘quantifiable’ has been construed too narrowly as only relating to financial benefit. However, it is unlikely that a court would decide to quash the decision, as the provision gives a wide degree of discretion and is capable of bearing a wide range of meanings.
As the decision-maker failed to take into account the discretionary factor in section 15, it is likely that the decision will be found to be unlawful.
It is likely that the decision-maker has committed an error of law through confining the meaning of ‘quantifiable difference’ to financial benefit. However, the claim is unlikely to succeed because the exception in the case of ex parte Page applies.
The decision-maker might have erred in law through a misunderstanding of section 15 of the Act. The decision suggests that ‘quantifiable’ has been construed too narrowly as only relating to financial benefit. However, it is unlikely that a court would decide to quash the decision, as the provision gives a wide degree of discretion and is capable of bearing a wide range of meanings.
Correct. Whilst it is arguable that there is an error of law here, the claim may fall foul of the ex parte South Yorkshire Transport principle in that the court could find ‘quantifiable difference to the community’ to be an imprecise phrase capable of bearing a wide range of meanings.
At the annual budget meeting of Brockshire County Council (“BCC”) the Chief Executive reported that savings of 25% would have to be made to the transport budget to reflect a 25% cut in central government funding for regional transport.
Officers on BCC’s Transport and Highways Sub-Committee had been expecting some cuts. They were aware of recent debates in Parliament where the Secretary of State for Transport introduced a new policy to reduce regional transport funding. She said that the policy is intended to contribute to a government strategy to reduce the UK’s national debt. The officers are shocked by the scale of the cuts and have two key concerns. Firstly, they are worried about the impact the cuts will have on local transport provision and safety. Secondly, they have noted that central government funding for transport in neighbouring West Brockshire has been cut by only 5%. BCC has approached your firm for advice.
On the basis of the information you have, which of the following summarises the most accurate advice on whether there is merit in BCC challenging the decision of the Secretary of State for Transport on the ground of unreasonableness?
Whilst the decision to make such an extreme cut to BCC’s regional transport funding might be seen as arbitrary and inconsistent, it is likely that a court would apply a particularly low intensity of review to any claim brought by BCC because of the political and financial context. Consequently, on the facts of this case, a claim is unlikely to succeed.
The Secretary of State’s decision can be seen as both arbitrary and inconsistent, and therefore, BCC will have strong grounds of challenge.
BCC’s claim is unlikely to succeed. Although there is a cogent case that the Secretary of State made an arbitrary and inconsistent funding decision, the Wednesbury standard is so high that such a decision will never be quashed by the courts.
Because the Secretary of State’s decision concerns central government funding allocations, a court would find that the matter is not justiciable at all.
Although the claim concerns high policy, because BCC has concerns over safety relating to the rights of individuals, and there is evidence of inconsistent decision-making, a court is likely to apply a reasonably high intensity of review. There is a good chance the Secretary of State’s decision would be quashed.
Whilst the decision to make such an extreme cut to BCC’s regional transport funding might be seen as arbitrary and inconsistent, it is likely that a court would apply a particularly low intensity of review to any claim brought by BCC because of the political and financial context. Consequently, on the facts of this case, a claim is unlikely to succeed.
Correct. Whilst there may be prima facie grounds to argue that the SoS acted unreasonably, it is likely a court would apply a low intensity of review to the claim, meaning that a ‘super-Wednesbury’ standard would apply. This is a high policy matter concerning central government funding allocation linked to deficit reduction. The court is likely to consider that reviewing this type of decision made by a democratically elected official is not within its constitutional remit, and, that it does not have the requisite expertise. Refer to the lead case of Nottinghamshire County Council. Unless there has been a very clear abuse of power, the courts will not intervene in macro-economic or political decisions.
Question 1
Assume that a statute (fictitious) gives local authorities the power to grant licences to cinemas in their area ‘on such conditions as they think fit’. Exercising this power, a local authority grants a company a licence on condition that no film should be shown at its cinemas unless approval is first obtained from the local Churches Committee. The company objects to this condition.
Which of the following best describes whether the company can successfully seek judicial review of this licence condition?
A The decision is lawful as the licensing authority had effectively delegated its decision- making power to another body, the local Churches Committee and the delegation cannot be challenged.
B The decision is lawful because the delegation was made to a local committee and the statutory exception relating to local bodies applies.
C There is illegality as the delegation to a religious body (the local Churches Committee) was in breach of the rule against delegation.
D There is illegality as the licensing authority had delegated its decision-making power to another body, which was neither a civil servant nor a local authority committee or officer.
E There is illegality as the licensing authority, by delegating its decision-making power to another body, was pursuing an unreasonable purpose.
Answer
Option D is correct. The facts are similar to that of Vine v National Dock Labour Board.
The licensing authority had delegated its powers in breach of the rule against delegation and neither the civil servant nor local authority committee exemption applied because the decision was delegated to a local Churches Committee. Option D is a better answer than option C as the reason the rule against delegation was breached had nothing to do with the nature of the Churches Committee. Option D is also a better answer than option E; on the facts the licensing authority’s purpose is not known, but in any event even if its purpose had been legitimate it would have breached the rule against delegation.
Option A is wrong, as there is a clear breach of the rule against delegation. Option B is wrong as the statutory exception it refers to applies only to committees, sub-committees and officers of local authorities, not to local bodies in general.
A local council introduces a ban on school‐age children entering coffee shops, shopping centres and cinemas between 8am and 6pm on school days. This decision is an attempt to reduce high levels of truancy in city centre schools. It is made under legislation giving local authorities full discretionary powers to introduce measures aimed at improving educational attainment and it is introduced without public consultation.
Local businesses are outraged by this decision and seek legal advice. Many of them rely on trade from local school children, and since school lessons finish by 3.30pm they cannot see how the ban until 6pm can be justified. No human rights issues are at stake.
Which of the following statements best summarises the basis on which this decision could be challenged through judicial review?
A. If the decision does not give sufficient weight to the interests of the local businesses.
B. If the decision does not result in a demonstrable improvement in educational attainment by local school children.
C. If the decision is one which is not the most cost effective in the circumstances.
D. If the decision goes significantly beyond what local authorities are doing elsewhere to address the same issue.
E. If the decision is so outrageous in its defiance of logic that no sensible person could have arrived at it
E - If the decision is so outrageous in its defiance of logic that no sensible person could have arrived at it.
Your client wants to challenge a decision of the local District Council to refuse his application for a music venue licence for his café on the High Street. The scheme, allowing local authorities to issue licences, is governed by a provision in an Act, which states:
“In deciding whether to issue a music licence, local authorities must take into account the interests and opinions of residents and businesses who are situated close to the venue.”
The client had submitted several letters of support with his application from local businesses, residents living in and around the town centre, and musical performers. These letters were not mentioned by the District Council in its refusal letter.
On the basis of the information you have, which one of the following summarises the most accurate advice to your client on whether and how he can challenge the decision on the judicial review ground of illegality?
Select one alternative:
The District Council is not likely to have acted unlawfully in this situation as the Administrative Court does not have the right to scrutinise how it conducted the application process.
Your client will have strong grounds to argue that the District Council made an error of law in relation to a misunderstanding of the wording in the relevant provision.
It is likely that the District Council acted unlawfully in the sense that its decision was ultra vires its powers.
It is likely that the District Council has fettered its discretion because it failed to take into account the letters of support submitted by your client, and so acted unlawfully.
The District Council’s decision suggests that it failed to take into account a mandatory consideration when assessing your client’s application and so acted unlawfully.
The District Council’s decision suggests that it failed to take into account a mandatory consideration when assessing your client’s application and so acted unlawfully.
This question requires knowledge of the different types of challenge that can be made under the judicial review ground of illegality. One of the key sub-categories involves the duty on bodies making public law decisions to take into account relevant considerations, and conversely to ignore irrelevant ones. This local authority does not appear to have followed a duty in the statute, which is phrased in mandatory terms, and so has acted unlawfully.
