JR Problem Question Flashcards
1
Q
What are the six key stages to address when answering a JR PQ?
A
- Amenability
- Standing
- Reviewable Decision
- Permission and Time Limits
- Grounds for Review
- Remedies
2
Q
What is the first issue to be addressed in a JR PQ?
A
Amenability - Is the defendant exercising a public function?
3
Q
What is the authority for the requirement that the defendant must be exercising a public function?
A
Civil Procedure Rules (CPR), Part 54.1(2)
4
Q
What are the two ways in which the amenability requirement can be satisfied?
A
- The decision maker is a public body - wherein the nature of the role being performed is clearly public.
Authority - GCHQ Case - The decision maker is a non-public/statutory body - but nonetheless fulfils a public function
5
Q
What do the courts consider when determining whether a non-public body is fulfilling a public function?
A
- Is there a public benefit to the function which is being performed?
Authority - R v City Panel Takeovers and mergers, ex parte Datafin Plc - Are the powers of the decision-making body being challenged ‘governmental’ in nature?
Authority - R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan - Does the decision-making body enjoy a monopoly within this specific area/field?
Compare differing judicial approaches to this issue found within Datafin and Aga Khan.
6
Q
What is the second issue to be addressed in a JR PQ?
A
Standing - does the claimant have sufficient interest to launch an action?
7
Q
What are the two categories of standing sufficient to ground a JR action?
A
- Direct Interest Standing
2. Representative Standing
8
Q
What is direct interest standing?
A
Where the claim is brought by an individual who can demonstrate that the decision being challenged has directly affected their own interests.
Authority - IRC v National Federation of Self-Employed and Small Businesses Ltd
9
Q
What is representative standing?
A
Where the claim is brought on behalf of others who have been/could be unduly affected by the decision being challenged. There are two types of standing found within this category.
10
Q
What are the two types of representative standing?
A
- Associational Standing
2. Public Interest Standing
11
Q
What is associational standing?
A
This is where a particular group brings a claim on behalf of the interests of some ‘clearly identifiable members’ within its organisation. The key here is to identify that some members of the group are/have been directly affected by the decision which is being challenged. It does not necessarily require that the interests of all members of this group are/have been unfairly affected by this decision.
12
Q
What is public interest standing?
A
This is where a group brings a challenge as means of representing the public interest rather than the interests of clearly identifiable members of its organisation.
13
Q
What authority is there for the recognition of associational standing?
A
R v Secretary of State for the Environment, ex parte Rose Theatre Trust
14
Q
What authority is there for the recognition of public interest standing?
A
R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd
15
Q
What are the five key issues likely to influence determination of public interest standing, arising from the World Development Case?
A
- The importance of vindicating the rule of law - is there a clear need to reaffirm the principle that no individual is above the law?
- The importance of the issue raised - does it (or could it) have wide reaching (e.g. national) implications?
- The likely absence of any other reasonable challenger - is there no individual or group who are in a better position to bring a claim?
- The nature of the breach of duty against which relief is sought - what is the scope/severity of the negative consequences which have resulted from the decision being challenged?
- The role and expertise of the body seeking to challenge on behalf of the public interest - does the nature of this body qualify them to speak authoritatively about the issue which is being challenged?
16
Q
What is the third issue to be addressed in a JR PQ?
A
Reviewable decision - Is there a ‘decision’ which may be reviewed?
17
Q
What does the ‘reviewable decision’ stage of a JR PQ require?
A
Here you must clearly identify the facts/details of the case that amounts (or may amount) to a reviewable decision.
18
Q
What are the two potential courses of action this stage of the PQ will require?
A
You must identify either;
(a) which specific act or acts is, based upon the wording of the question, directly challenged - you are explicitly informed that a challenge is sought
or;
(b) which specific acts or acts are potentially challengeable - you are instructed to advise the claimant on their potential claims
19
Q
What is the fourth issue to be addressed in a JR PQ?
A
Permission and Time Limits - Is there permission to make a claim and can it be made promptly/within three months of the relevant decision?
20
Q
What are the permission requirements?
A
For a successful JR action, permission to launch such an action must have been given by the courts.
21
Q
What are the time limit requirements?
A
For a successful JR action the claim must have been made ‘promptly’ - within at the very least no more than three months from the date of the decision being challenged.
Authority - CPR 54.4.
22
Q
Will actions brought before three months always satisfy the time limit requirement?
A
No, some claims brought within three months may still be regarded as being unduly delayed in the event that it is determined a more expedient claim was possible/necessary, depending on the relevant issue/area where a challenge is sought.
Authority - R v Swale Borough Council, ex parte the Royal Society for the Protection of Birds
23
Q
What else should be considered at this point of the PQ?
A
Whether JR is mandatory or not given the facts of the case.
24
Q
In what instances will a JR action be mandatory?
A
A mandatory judicial review will result from challenges which seek either;
(a) a prohibiting order
(b) a mandatory order
(c) a quashing order
25
In what instances will a JR action not be mandatory (this is not to say it is not possible to successfully launch one, merely that there is no obligation to do so)?
Judicial Review will not be mandatory where the challenge seeks a remedy relating exclusively to either;
(a) a declaration
(b) an injunction
26
What is a prohibiting order and when may it be appropriate?
A prohibiting order is a proscriptive mechanism that looks to prevent something unlawful from occurring rather than quashing something that has already happened. They are applicable where a final decision has not yet been taken but is instead simply being contemplated by the decision maker.
27
What is a mandatory order and when may it be appropriate?
A mandatory order is a mechanism that imposes an obligation on a decision-maker to make a decision/act on matters they had previously refused to (but ought to have) considered.
28
What is a quashing order and when may it be appropriate?
A quashing order is a mechanism that requires the courts to nullify a previous decision which has subsequently been deemed to be unlawful (under any of the grounds for judicial review) and requires the decision-maker to decide the matter differently (e.g. reach a different decision).
29
What is a declaration and when may it be appropriate?
A declaration is a mechanism enabling the clarification of the legal position of affected parties on a contested issue. For example, a proposed rule by a local authority could be declared unlawful by the court. In this way the legal position of the proposal would have been clarified.
30
What is an injunction and when may it be appropriate?
An injunction is a mechanism used to prevent a decision-maker from acting in an unlawful manner.
31
What is the fifth issue to be addressed in a JR PQ?
Grounds for Review - Are there grounds for Judicial Review?
32
What are you required to establish in the fifth key issue of a JR PQ?
At this stage, you are simply looking to determine whether the decision being challenged amounts to either;
(i) illegality,
(ii) procedural impropriety, and/or
(iii) irrationality/unreasonableness.
33
What is the key question for the illegality ground for review?
Has a body acted Illegally?
34
What must the courts be convinced of before finding a body to have acted illegally?
The court will have to satisfy itself that the decision maker acted beyond their jurisdictional limits - for our purposes, 'jurisdictional limits' can be understood to refer to the ambit of power of the decision maker with regard to the relevant issue.
35
What are the six potential ways that a decision maker can be determined to have acted illegally/unlawfully?
1. Simple Illegality
2. Errors of Law
3. Mistakes of Fact
4. Failure to retain discretion
5. Abuse of discretion
6. Frustrating a substantive legitimate interest (Illegality or Procedural Impropriety)
36
What is simple illegality?
This is when the decision maker has deliberately/explicitly acted in a manner which exceeds their jurisdiction on the given issue.
Authority - Attorney General v Fulham Corporation
37
What are errors of law?
This is when the decision maker, acting in good faith, misinterprets the limits of the powers vested in them and consequently believes they were acting lawfully, but where they actually decided on issues beyond their jurisdiction.
It does not necessarily relate to deliberate efforts to exceed jurisdictional limits.
38
What needs to be considered when determining whether there has been an error of law?
(a) the purpose of the statute where the authority/power of the decision-maker originates (if relevant) and;
(b) the actual language used to describe/express the ambit of the decision makers powers.
39
What is the significance of the actual language used to describe the ambit of the decision makers power?
Is this language vague/ambiguous - can it be construed to mean different things? If so there is a greater chance of an error of law
Authority - Anisminic Ltd v Foreign Compensation Commission
40
What is the general rule following a finding of an error of law?
If it is established that the interpretation of the ambit of vested powers amounts to a misinterpretation it will result in the court finding that the decision maker exceeded their jurisdictional limits – and thus acted illegally/unlawfully
Authority - Anisminic and;
R v Lord President of the Privy Council ex parte Page
41
What is the exception to the general rule following a finding of an error of law?
If the error in question is determined to have been non-decisive to the decision which is being challenged (no bearing on the decision that was originally reached), then the decision itself may not be found to have been unlawful.
Authority - R v Lord President of the Privy Council ex parte Page
42
What are mistakes of fact?
Mistakes of fact occur where the decision maker has acted within their jurisdictional limits in the first instance, however, their application of the law (e.g. their legal authority) is based upon a factual mistake (resulting in the decision maker applying their vested powers incorrectly).
43
What theoretical example illustrates the mistake of fact ground for judicial review?
The Home Secretary may correctly determine/interpret his power to detain illegal entrants, but if he is misinformed of a relevant factual consideration (say he is told a legal entrant was actually an illegal one) he may consequently apply his power unlawfully by detaining a legal entrant.
44
What are the four key questions to consider when seeking to determine a mistake of fact, arising from the case of E v Secretary of State for the Home Department?
1. Is there evidence of a mistake in relation to an existing fact (e.g. something which was previously acknowledged)?
2. Is the fact (or evidence) in question objectively verifiable (e.g. is it uncontentious)? (The more subjective the harder to prove a decision was made in error).
3. Does responsibility for the mistake rest with either the claimant or the claimants’ legal representation? (If so it cannot be relied upon to render the decision being challenged unlawful).
4. Did the mistake clearly play a material (e.g. determining) part in the decision makers original decision? (But for this error, is it feasible that the decision maker would have reached a different decision/would they have been lawfully required to do so?)
45
What is a failure to retain discretion?
Failure to retain discretion occurs when a decision-makers discretion has been unlawfully utilised, there are two different forms failure to retain discretion can take.
46
What are the two different types of failure to retain discretion?
1. Wrongful delegation or transfer of discretion
| 2. Fettering discretion by over-rigid adherence to policy
47
What is wrongful delegation or transfer of discretion?
A body to which parliament has delegated power may not itself subsequently delegate this power.
Authority - Barnard v National Dock Labour Board
48
What are the exceptions to the rule of wrongful delegation or transfer of discretion?
A body may further delegate power where explicitly permitted to do so via statute, or, in the case of Ministers’, where it is logical that the adequate fulfilment of their duties will require delegation to Civil Servants - the Carltona Principle.
49
What is fettering of discretion by over-rigid adherence to policy?
Here the unlawful conduct relates to a decision-makers refusal or inability to operate within the full ambit of their jurisdiction due to unnecessarily strict adherence to policy.
Authority - British Oxygen Co Ltd v Minister of Technology
50
What is a theoretical example of fettering of discretion by over-rigid adherence to policy?
If the Home Secretary sought to utilise his discretionary power to detain illegal entrants exclusively against those arriving/originating from certain countries (due to governmental guidance on immigration policy) this would represent a failure to make full use of these powers (e.g. fettering of discretion).
51
What is abuse of discretion?
This is where a decision-makers discretion is exercised unlawfully by either using their powers in pursuit of an improper purpose or by acting on the basis of irrelevant considerations (or the refusal to countenance relevant ones).
52
What is using a power for an improper purpose?
Discretionary power is delegated to decision-makers for the fulfilment of specific purposes/objectives. As such, utilising these powers for purposes other than those clearly/explicitly provided for by the relevant statutory provision will result in the decision-maker acting unlawfully.
53
What will the courts consider when determining whether a decision-maker has acted in pursuit of an improper purpose?
The relevant court will firstly refer to the purpose of the statute itself where the discretionary powers are derived.
54
What is the courts stance on the room for ulterior motives behind the exercise of discretion?
The courts do not suggest decision-makers can never be seen to be acting lawfully when their decisions have ulterior motives or are taken in pursuit of multiple objectives. Indeed, so long as the overriding (e.g. ‘dominant’) purpose behind the decision/action (e.g. the primary motive for acting) is a lawful one, then the decision-maker will have acted lawfully.
Authority - Miranda v SSHD
55
What is the concept of taking into account irrelevant considerations or failing to take into account relevant ones?
Here a decision-maker has acted unlawfully by basing their decision on considerations they were not authorised to take into account, or by failing/refusing to do the opposite, prior to acting.
56
What are the generally accepted 3 types of consideration decision-makers may or may not take into account?
(i) Mandatory: regarding issues the relevant statutory provision stipulates must be taken into account;
(ii) Prohibited: regarding issues the relevant statutory provisions stipulates cannot be taken into account; and
(iii) Discretionary: regarding issues the decision-maker may take into account
Authority - R v Somerset CC ex p. Fewings
57
What are legitimate expectations?
Legitimate expectations relate to ‘some benefit or advantage’ an individual was ‘legitimately’ entitled to expect to be either (a) granted to them, (b) continued (c), and/or not have withdrawn prior to consultation (in accordance with reasonable justification for doing so).
Authority - Lord Diplock in CCSU v Minister for Civil Service
58
What forms can legitimate expectations take, and what impact does this have upon the ground for review they fall into?
These expectations can take both substantive and procedural forms (and thus fall under either illegality or procedural impropriety).
59
What is the key distinction/characterisation of the term 'legitimate expectations'?
The term itself – ‘legitimate expectation’ - is meant to relate only to promises/decisions which a claimant is reasonably entitled to expect in the circumstances (rather than what they may actually have expected.
Authority - Re Findlay
60
What is the first consideration of the court when attempting to determine whether a legitimate expectation exists?
1. A legitimate expectation will only arise from ‘clear, unequivocal, and unambiguous language’ - How reasonable was it for the claimant to believe that an express, actionable (e.g. fulfillable) promise had been made by the relevant decision-maker?
Authority - R v North and East Devon Health Authority, ex parte Coughlan
61
What is the second consideration of the court when attempting to determine whether a legitimate expectation exists?
2. The expectation must be based upon either a promise made by, or practice relating to, the entity (i) lawfully responsible for fulfilling it and also (ii) possessing the power to grant it at the time in which the promise was made.
Authority - R (Bloggs 61) v Home Secretary
62
What is the third consideration of the court when attempting to determine whether a legitimate expectation exists?
3. The detrimental consequences of the claimants’ reliance upon the alleged legitimate expectation (e.g. the harm they have suffered by acting upon this promise) can also influence the approach the court will take (although this in and of itself is unlikely to be determinative – e.g. enough on its own to satisfy that a legitimate expectation has been unlawfully frustrated).
Authority - ex parte Begbie
63
What is an additional consideration the courts may take into account when attempting to determine whether a legitimate expectation exists?
In the absence of a clear, express promise, well-established (e.g. well-known) practice may also give rise to a legitimate expectation that this practice will continue unless clear indication has been given by the relevant decision-making body that such practice is subject to imminent change.
Authority - GCHQ Case
64
Which type of legitimate expectation will ground a judicial review action under the heading of illegality, if/when frustrated?
Substantive Legitimate Expectations
65
What are substantive legitimate expectations?
These relate to circumstances wherein an individual has an expectation that a certain outcome will be reached (e.g. where a particular benefit will be either given or continued).
66
What can substantive legitimate expectations arise from?
Substantive legitimate expectations can arise either from (i) an express promise (e.g. an expression which is ‘clear, unequivocal, unambiguous’), as well as from the continuation of accepted practice.
Authority - R v Secretary of State for the Home Department ex parte Khan
67
What is the relationship between the frustration of substantive legitimate expectations and other public interests?
The frustration of such a legitimate expectation will, bar the existence of some other important factors whereby such frustration is deemed to be acceptable - e.g. in matters of overriding public interest
Authority - ex party Coughlan
Or in cases where it is known that general policy is being changed
Authority - R v Secretary of State for the Home Department ex parte Hargreaves.
68
What is the key question for the procedural impropriety ground of review?
Has there been Procedural Impropriety?
69
What will the courts have to satisfy themselves on in order to find there to have been procedural impropriety?
For procedural impropriety to be found the court will have to satisfy itself that the decision-maker has acted unfairly.
70
What are the two ways in which procedural impropriety may arise?
Specifically, this will arise in circumstances where the decision-maker was either (1) biased (directly or indirectly) or (2) where a necessary standard of procedural fairness has not been provided.
71
What is bias?
The most obvious form of procedural impropriety (e.g. unfairness) is where the decision-maker is biased (e.g. predisposed) towards a certain outcome. This can take two forms.
72
What are the two forms of bias?
1. Direct Bias
| 2. Indirect Bias
73
What is direct bias?
This covers instances where;
(i) the decision-maker has a vested financial interest in the case
Authority - Dimes v Proprietors of the Grand Junction Canal (ii) a ‘close relative’ of the decision-maker is set to gain a financial benefit - the test for this is that the relative must be so close as to make their interests ‘indistinguishable’ from those of the decision-maker
Authority - Locabail (UK) Ltd v Bayfield Properties Ltd
(iii) due to close involvement with an institution/organisation involved with proceedings, the decision-maker is effectively a party to case
Authority - R v Bow Street Metropolitan Stipendary Magistrate, ex parte Pinochet Ugarte (No 2)
74
What is the consequence of a finding of direct bias and what is this based upon?
In the event that direct bias is found to be present, the decision will be automatically invalidated. As a foundational principle in natural justice is that no-one may be a judge in their own cause (nemo judex in sua causa).
75
What evidential requirement is there for establishing direct bias?
There is no need to prove that the decision-maker was actually biased, the identification of a direct interest in proceedings is enough to disqualify their decision
Authority - Lord Hewatt CJ in R v Sussex Justices - ‘justice should not only be done but be seen to be done’
76
What is indirect bias?
Also known as the ‘apprehension of bias’, this covers all other instances of potential bias (e.g. those where no direct interest/benefit exists).
77
What are the two standard tests for the existence of indirect bias?
1. The first (and now redundant) test was established in R v Gough - for indirect bias to be found it needed to be shown that there was a ‘real danger’ that the decision-maker was biased (e.g. a high threshold).
2. The second, modified test (following the adoption of the Human Rights Act 1998) and established in Porter v Magill, requires demonstration of ‘a real possibility’ that the decision-maker was biased (‘more than a minimal risk but less than a probability’).
78
What is the first form indirect bias may take?
1. Where the decision-maker has a relationship with a person affected by the decision
Authority - Metropolitan Properties v Lannon
79
What is the second form indirect bias may take?
2. Where there is institutional bias caused by an overlap of roles;
(a) Where the decision-maker made the original decision against which an appeal is being made
Authority - Hannam v Bradford Corporation
(b) Where counsel has sat as judge with a member of the panel hearing case
Authority - Lawal v Northern Spirit Ltd
(c) Where the decision-maker appears to already have approved the decision
Authority - R. v Secretary of State for the Home Department Ex p. Carroll
80
What is the third form indirect bias may take?
3. Where the decision maker has expressed very strong views on general subject matter of case which might be thought to affect his ability to approach case with open mind
Authority - Timmins v Gormley
81
What is procedural fairness?
This is the requirement of a certain standard of fairness in the decision-making process, it may vary depending on the circumstances.
82
What will impact upon the required level of procedural fairness?
The required standard will be raised or lowered in accordance with the impact the challenged decision has (or could have) on the affected individual.
83
What is an important distinction to make when determining the required level of procedural fairness in making a decision?
An important distinction is therefore made between revocation cases (e.g. where a previously enjoyed benefit is withdrawn) and application cases (e.g. where a desired benefit is merely sought). Generally speaking, a higher standard of procedural fairness will be expected with the former than with the latter.
84
What is the general required level of procedural fairness for application cases?
In application cases all that an applicant can reasonably demand (and expect) is that the decision-maker will reach an ‘honest conclusion without bias and not in pursuance of any capricious policy’.
Authority - McInnes v Onslow Fane
85
Is the required level of procedural fairness in application cases subject to variation?
Yes, the standard of fairness required even within simple application cases can vary depending on the specific circumstances of their case, how their interests are impacted, as well as what they have actually requested.
Authority - Russell v Duke of Norfolk
86
How does the required level of procedural fairness in revocation cases vary from those in application ones?
In contrast, in revocation cases where a previously enjoyed benefit has been withdrawn, due to the impact the decision being challenged has had (or could have) on the affected individual (e.g. jeopardising their livelihood, liberty), the standard of procedural fairness required will be much higher.
Authority - R v Barnsley Borough Council ex parte Hook
87
What are the key procedural safeguards underpinning the concept of procedural fairness?
1. Notice
2. Hearing
3. Cross-Examination of Witness
4. Legal Representation
5. Duty to give reasons
88
What is the procedural safeguard of notice?
An individual has a right to be given notice of the case against them when facing a decision that could cause them detriment - an individual is incapable of adequately representing/advancing their own interests if they do not know at least ‘the gist’ of the case against them.
Authority - Lord Mustill in Doody
89
What did Lord Hope say on the procedural safeguard of notice?
He said in Secretary of State for the Home Department v AF (No 3) that ‘denunciation on grounds that are not disclosed is the stuff of nightmares’.
90
How important is notice as a procedural safeguard for fairness?
Notice is the most basic requirement of procedural fairness and is therefore highly likely to be required unless there are particular pressing reasons of public policy/ safety for frustrating it (e.g. where giving notice will put fundamental interests of other individuals in jeopardy). Authority - Roberts v Parole Board
91
What is the procedural safeguard of a hearing?
An individual with a case against them has the right to a (fair) hearing of some description.
92
What are the two types of hearing?
(i) written and (ii) oral, with the latter only likely to be granted in the event that the former is deemed to be insufficient given the circumstances of the case.
Authority - R v Secretary of State for the Home Department ex parte Al Fayed
93
When are the courts more or less likely to allow for an oral hearing?
If the court determines that an oral hearing will provide little benefit over simple written representations, then it is highly unlikely to find that one is necessary
Authority - Lloyds v McMahon
94
What is the procedural safeguard of cross-examination of a witness?
This logically follows the right to an oral hearing and provides claimants the opportunity to challenge contested testimony/evidence which was relied upon by the decision-maker when reaching the original (challenged) decision.
95
What will impact upon the presence of a right to cross-examination of a witness as a procedural safeguard?
The nature of the impact of the challenged decision will significantly influence the courts approach - decisions affecting liberty, reputation, and so on, are much more likely to give rise to the right of cross-examination.
Authority - R v Board of Visitors of Hull Prison, ex parte St Germain (No 2)
96
What is the procedural safeguard of legal representation?
This right, where granted, sees the claimant provided with legal counsel by the state.
97
Is legal representation a readily available right/procedural safeguard?
The right to legal representation is the hardest procedural safeguard to argue for. An important reason for this is of course the financial cost involved. As such, this is only likely to be granted in exceptional circumstances.
Authority - R v Secretary of State for the Home Department, ex parte Tarrant
98
In what instances may legal representation be provided as a procedural safeguard?
Where the claimant lacks the capacity to make representations on their behalf, or where complex, and/or contested, legal issues are likely to arise, or where it is deemed necessary to ensure fairness between parties (e.g. ‘equality of arms’).
99
What is the procedural safeguard of duty to give reasons?
The duty to give reasons represents the need to explain the rationale for the decision itself (e.g. the justification for why the decision was taken, rather than simply stating what decision was reached).
100
Is there a general duty under common law to give reasons?
Although there is no general duty in common law for decision-makers to provide reasons for their decisions, it is, as was noted in Stefan v GMC, arguably now becoming standard for their provision to be required.
101
What are the certain, specific situation in which a duty to give reasons will arise?
1. When required by statute
2. Where a decision impacts on ‘highly regarded’ rights or interests
3. Where the claimant will need to point to some particular feature of the particular decision made
102
How will a duty to give reasons be required by statute?
It is evident that there will be a duty to give reasons for decisions when this is clearly mandated by statutory provision. For example, see the Tribunals and Inquiries Act 1992, s. 10.
103
How will a duty to give reasons be required in cases where a decision impacts on 'highly regarded' rights or interests?
Where a decision has (or could have) a detrimental impact on fundamental interests of the affected individual (e.g. liberty, reputation, livelihood) – as well on others in similar
positions - then a duty to give reasons is likely to be found.
Authority - R v Civil Service Appeal Board, ex parte Cunningham
104
How will a duty to give reasons be required in cases where the claimant needs to point to see particular feature of the particular decision made?
This is an inherent requirement - in order for the claimant to challenge a decision on grounds of illegality or unreasonableness, they must first know how the decision-maker reached their original decision (e.g. in order to ascertain whether this decision was reached lawfully).
105
What are procedural legitimate expectations?
In contrast to substantive legitimate expectations (where some particular outcome is expected), procedural legitimate expectations relate to reasonable expectations that certain procedures will be followed before a final decision is reached. They are thus not based upon the anticipated outcome, but rather the anticipated process by which that outcome is ultimately to be reached.
106
What are the three specific circumstances in which procedural legitimate expectations will arise?
1. Express Promise of Consultation
2. Expectation of Consultation Arises from Past Practice
3. Expectation of Consultation Based on Previous Enjoyment of a Benefit
107
How does an express promise of consultation give rise to procedural legitimate expectations?
Where the claimant has been given clear, unambiguous assurances that either a certain practice or policy which affects them will not be changed prior to their being consulted, a procedural legitimate expectation will arise Authority - R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operator's Association
108
How does an expectation of consultation arising from past practice create legitimate procedural expectations?
Where any changes (either actual or proposed) in policy/practice which could have (or have had) a detrimental impact on the interests of the claimant are, through previous conduct, understood to never take place prior to adequate consultation with those to be affected, legitimate procedural expectations arise.
Authority - CCSU v Minister for Civil Service
109
How does an expectation of consultation arising from a previous enjoyment of a benefit create legitimate procedural expectations?
Where a claimant has a right to consultation prior to the withdrawal of a previously enjoyed benefit (depending on the nature of the benefit in question – e.g. how significantly it impacts upon their fundamental interests), a legitimate procedural expectation may arise.
Authority - Durham County Council ex parte Curtis
110
What is the key question for the unreasonableness/irrationality ground for review?
Has a body acted Unreasonably?
111
What must the courts satisfy themselves of before establishing/acknowledging unreasonableness as a ground for review?
For unreasonableness/irrationality to be found the court will have to satisfy itself that the decision-maker has acted in defiance of reason and logic.
112
How may the threshold applied/required to establish 'unreasonable' or 'irrational' decisions vary?
This is a variable standard of review (meaning that the threshold applied will be higher or lower depending on the specific circumstances of the case).
113
When will the required threshold for unreasonable/irrationality be at it's highest/lowest?
Generally speaking, the threshold will be at its highest (i.e. where it is most difficult to find that the decision maker has acted unreasonably) when the case relates to complex political matters, and at its lowest (i.e. where it is least difficult to find that the decision maker has acted unreasonably) when the case relates to interference with the enjoyment of human rights.
114
How are the different thresholds required to establish unreasonableness or irrationality given concrete expression?
These varied thresholds are represented in the four recognised different forms of unreasonableness/irrationality.
115
What are the four different types of unreasonableness/irrationality?
1. Wednesbury Unreasonableness
2. Super-Wednesbury Unreasonableness
3. Sub-Wednesbury Unreasonablness
4. Proportionality
116
What is wednesbury unreasonableness?
This is the standard test for unreasonableness (i.e. the appropriate test in all cases where neither complex policy matters are involved nor where rights/fundamental interest are at stake).
117
What is the threshold required under wednesbury unreasonableness?
The threshold applied is that the decision-maker must have reached a decision which is - ‘so unreasonable that no reasonable authority could ever have come to it’.
Authority - Lord Greene in Wednesbury
This test was subsequently rearticulated slightly differently to represent a decision which is - ‘so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’.
Authority - Lord Diplock in the GCHQ case
118
How strict is the threshold required under wednesbury unreasonableness, and what is a practical example of it?
The threshold is a high one to meet (and thus difficult to satisfy). For an example of this form of unreasonableness see - Associated Provincial Picture Houses Ltd. v Wednesbury Corporation.
119
What is super-wednesbury unreasonableness?
This is an even higher threshold to satisfy (due to respect for parliamentary supremacy/sovereignty) and will be applied in cases pertaining to complex political issues (e.g. matters clearly beyond the realm of expertise of the judiciary - e.g. matters of national security, allocation of taxable revenue and so on).
120
What is the threshold required under super-wednesbury unreasonableness?
The threshold applied is that unreasonableness will only be found when, decisions are ‘so absurd that [the decision-maker] must have taken leave of his senses’.
Authority - Lord Scarman in Nottinghamshire CC
121
How strict is the threshold required under super-wednesbury unreasonableness?
The threshold is a very high one to meet (and thus very difficult to satisfy) it affords a large amount of deference to decision makers when acting on complex national issues.
122
Is there scope for variation in the degree of deference given to decision-makers under super-wednesbury unreasonableness?
The degree of deference is itself variable and will be reduced in the event the case in question also (e.g. in addition to complex political issues) involves fundamental human rights.
123
What is sub-wednesbury unreasonableness?
Also know as ‘anxious scrutiny’, this is a lower standard of review (albeit still representing a difficult threshold to meet) and was, prior to the adoption of the Human Rights Act (1998), the appropriate standard applied to cases involving human rights related interests.
124
What is the threshold required under sub-wednesbury unreasonableness?
This standard of review required a greater level of justification on behalf of the decision-maker as to the reasonableness of their decisions (it is a lower threshold to satisfy - but still not an easy one).
125
What is the relationship between sub-wednesbury unreasonableness and proportionality?
It is widely considered to be a precursor to the Proportionality test/standard. However, unlike with Proportionality, sub-Wednesbury Unreasonableness did not require the court to satisfy itself that the decision under challenge was necessary or proportionate to the aim pursued.
126
How strict is the threshold required under sub-wednesbury unreasonableness?
The threshold was sufficiently easily satisfied to make it relatively straightforward for decision- makers to justify seemingly prima facie unreasonable decisions made in pursuit of ‘overriding public interests’ (e.g. national security), even when they impacted upon the enjoyment of fundamental human rights.
Authority - R v Ministry of Defence, ex parte Smith
127
What is proportionality?
This is the principle underpinning the standard of review for unreasonableness for cases involving interference with the enjoyment of human rights (or other fundamental interests, such as citizenship).
128
Broadly what is the threshold required under proportionality?
The threshold is significantly lower than the other wednesbury and super-wednesbury tests.
129
What are the two key criterion under the proportionality requirement?
Proportionality requires the court to determine that the decisions being challenged was both;
(i) necessary to take in pursuit of a legitimate objective, and;
(ii) proportionate to the aim pursued – e.g. without reasonable alternatives
130
What caused the development of the principle/requirement of proportionality?
The principle came into effect subsequent to the adoption of the Human Rights Act (1998), and pursuant to Section 6 of this Act, domestic courts are now lawfully obligated to seek to reach judgments which are compliant with the European Convention on Human Rights (1950).
131
What happens if the criterion for proportionality are not satisfied?
If the relevant decision-making body cannot satisfy this criterion, then they will be found to have acted unreasonably.
132
How strict is the threshold required under proportionality?
The proportionality test is thus the strongest basis for reviewing decisions on grounds of unreasonableness (e.g. representing the lowest threshold required for unreasonableness to be found).
133
How is the application of the proportionality test somewhat limited?
There are only certain circumstances where it will (or can) actually be applied: namely cases involving human rights and other fundamental interests such as citizenship or immigration.
Authority - R v Ministry of Defence, ex parte Smith
134
What is the key question when considering remedies for successful judicial review actions?
Are any of the remedies available in Judicial Review appropriate?
135
In what depth should damages be considered and when will they be available?
The final issue you would (briefly) consider in a problem question is the potential remedies that will be offered (if relevant) in the given scenario. Note that the award of damages will only be considered in the event that the decision being challenged also (e.g. in addition to illegality, impropriety, or irrationality/unreasonableness) amounts to a tort or a breach of contract (including breach of ECHR rights per the HRA ss 6, 7 & 8).
