JR Problem Question

Question 1

What are the six key stages to address when answering a JR PQ?

Answer 1

1. Amenability
2. Standing
3. Reviewable Decision
4. Permission and Time Limits
5. Grounds for Review
6. Remedies

Question 2

What is the first issue to be addressed in a JR PQ?

Answer 2

Amenability - Is the defendant exercising a public function?

Question 3

What is the authority for the requirement that the defendant must be exercising a public function?

Answer 3

Civil Procedure Rules (CPR), Part 54.1(2)

Question 4

What are the two ways in which the amenability requirement can be satisfied?

Answer 4

1. The decision maker is a public body - wherein the nature of the role being performed is clearly public.
   Authority - GCHQ Case
2. The decision maker is a non-public/statutory body - but nonetheless fulfils a public function

Question 5

What do the courts consider when determining whether a non-public body is fulfilling a public function?

Answer 5

1. Is there a public benefit to the function which is being performed?
   Authority - R v City Panel Takeovers and mergers, ex parte Datafin Plc
2. 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
3. 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.

Question 6

What is the second issue to be addressed in a JR PQ?

Answer 6

Standing - does the claimant have sufficient interest to launch an action?

Question 7

What are the two categories of standing sufficient to ground a JR action?

Answer 7

1. Direct Interest Standing

2. Representative Standing

Question 8

What is direct interest standing?

Answer 8

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

Question 9

What is representative standing?

Answer 9

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.

Question 10

What are the two types of representative standing?

Answer 10

1. Associational Standing

2. Public Interest Standing

Question 11

What is associational standing?

Answer 11

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.

Question 12

What is public interest standing?

Answer 12

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.

Question 13

What authority is there for the recognition of associational standing?

Answer 13

R v Secretary of State for the Environment, ex parte Rose Theatre Trust

Question 14

What authority is there for the recognition of public interest standing?

Answer 14

R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd

Question 15

What are the five key issues likely to influence determination of public interest standing, arising from the World Development Case?

Answer 15

1. The importance of vindicating the rule of law - is there a clear need to reaffirm the principle that no individual is above the law?
2. The importance of the issue raised - does it (or could it) have wide reaching (e.g. national) implications?
3. The likely absence of any other reasonable challenger - is there no individual or group who are in a better position to bring a claim?
4. 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?
5. 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?

Question 16

What is the third issue to be addressed in a JR PQ?

Answer 16

Reviewable decision - Is there a ‘decision’ which may be reviewed?

Question 17

What does the ‘reviewable decision’ stage of a JR PQ require?

Answer 17

Here you must clearly identify the facts/details of the case that amounts (or may amount) to a reviewable decision.

Question 18

What are the two potential courses of action this stage of the PQ will require?

Answer 18

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

Question 19

What is the fourth issue to be addressed in a JR PQ?

Answer 19

Permission and Time Limits - Is there permission to make a claim and can it be made promptly/within three months of the relevant decision?

Question 20

What are the permission requirements?

Answer 20

For a successful JR action, permission to launch such an action must have been given by the courts.

Question 21

What are the time limit requirements?

Answer 21

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.

Question 22

Will actions brought before three months always satisfy the time limit requirement?

Answer 22

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

Question 23

What else should be considered at this point of the PQ?

Answer 23

Whether JR is mandatory or not given the facts of the case.

Question 24

In what instances will a JR action be mandatory?

Answer 24

A mandatory judicial review will result from challenges which seek either;

(a) a prohibiting order
(b) a mandatory order
(c) a quashing order

Question 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)?

Answer 25

Judicial Review will not be mandatory where the challenge seeks a remedy relating exclusively to either;

(a) a declaration
(b) an injunction

Question 26

What is a prohibiting order and when may it be appropriate?

Answer 26

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.

Question 27

What is a mandatory order and when may it be appropriate?

Answer 27

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.

Question 28

What is a quashing order and when may it be appropriate?

Answer 28

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).

Question 29

What is a declaration and when may it be appropriate?

Answer 29

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.

Question 30

What is an injunction and when may it be appropriate?

Answer 30

An injunction is a mechanism used to prevent a decision-maker from acting in an unlawful manner.

Question 31

What is the fifth issue to be addressed in a JR PQ?

Answer 31

Grounds for Review - Are there grounds for Judicial Review?

Question 32

What are you required to establish in the fifth key issue of a JR PQ?

Answer 32

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.

Question 33

What is the key question for the illegality ground for review?

Answer 33

Has a body acted Illegally?

Question 34

What must the courts be convinced of before finding a body to have acted illegally?

Answer 34

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.

Question 35

What are the six potential ways that a decision maker can be determined to have acted illegally/unlawfully?

Answer 35

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)

Question 36

What is simple illegality?

Answer 36

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

Question 37

What are errors of law?

Answer 37

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.

Question 38

What needs to be considered when determining whether there has been an error of law?

Answer 38

(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.

Question 39

What is the significance of the actual language used to describe the ambit of the decision makers power?

Answer 39

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

Question 40

What is the general rule following a finding of an error of law?

Answer 40

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

Question 41

What is the exception to the general rule following a finding of an error of law?

Answer 41

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

Question 42

What are mistakes of fact?

Answer 42

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).

Question 43

What theoretical example illustrates the mistake of fact ground for judicial review?

Answer 43

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.

Question 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?

Answer 44

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?)

Question 45

What is a failure to retain discretion?

Answer 45

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.

Question 46

What are the two different types of failure to retain discretion?

Answer 46

1. Wrongful delegation or transfer of discretion

2. Fettering discretion by over-rigid adherence to policy

Question 47

What is wrongful delegation or transfer of discretion?

Answer 47

A body to which parliament has delegated power may not itself subsequently delegate this power.
Authority - Barnard v National Dock Labour Board

Question 48

What are the exceptions to the rule of wrongful delegation or transfer of discretion?

Answer 48

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.

Question 49

What is fettering of discretion by over-rigid adherence to policy?

Answer 49

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

Question 50

What is a theoretical example of fettering of discretion by over-rigid adherence to policy?

Answer 50

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).

Question 51

What is abuse of discretion?

Answer 51

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).

Question 52

What is using a power for an improper purpose?

Answer 52

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.

Question 53

What will the courts consider when determining whether a decision-maker has acted in pursuit of an improper purpose?

Answer 53

The relevant court will firstly refer to the purpose of the statute itself where the discretionary powers are derived.

Question 54

What is the courts stance on the room for ulterior motives behind the exercise of discretion?

Answer 54

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

Question 55

What is the concept of taking into account irrelevant considerations or failing to take into account relevant ones?

Answer 55

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.

Question 56

What are the generally accepted 3 types of consideration decision-makers may or may not take into account?

Answer 56

(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

Question 57

What are legitimate expectations?

Answer 57

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

Question 58

What forms can legitimate expectations take, and what impact does this have upon the ground for review they fall into?

Answer 58

These expectations can take both substantive and procedural forms (and thus fall under either illegality or procedural impropriety).

Question 59

What is the key distinction/characterisation of the term ‘legitimate expectations’?

Answer 59

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

Question 60

What is the first consideration of the court when attempting to determine whether a legitimate expectation exists?

Answer 60

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

Question 61

What is the second consideration of the court when attempting to determine whether a legitimate expectation exists?

Answer 61

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

Question 62

What is the third consideration of the court when attempting to determine whether a legitimate expectation exists?

Answer 62

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

Question 63

What is an additional consideration the courts may take into account when attempting to determine whether a legitimate expectation exists?

Answer 63

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

Question 64

Which type of legitimate expectation will ground a judicial review action under the heading of illegality, if/when frustrated?

Answer 64

Substantive Legitimate Expectations

Question 65

What are substantive legitimate expectations?

Answer 65

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).

Question 66

What can substantive legitimate expectations arise from?

Answer 66

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

Question 67

What is the relationship between the frustration of substantive legitimate expectations and other public interests?

Answer 67

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.

Question 68

What is the key question for the procedural impropriety ground of review?

Answer 68

Has there been Procedural Impropriety?

Question 69

What will the courts have to satisfy themselves on in order to find there to have been procedural impropriety?

Answer 69

For procedural impropriety to be found the court will have to satisfy itself that the decision-maker has acted unfairly.

Question 70

What are the two ways in which procedural impropriety may arise?

Answer 70

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.

Question 71

What is bias?

Answer 71

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.

Question 72

What are the two forms of bias?

Answer 72

1. Direct Bias

2. Indirect Bias

Question 73

What is direct bias?

Answer 73

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)

Question 74

What is the consequence of a finding of direct bias and what is this based upon?

Answer 74

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).

Question 75

What evidential requirement is there for establishing direct bias?

Answer 75

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’

Question 76

What is indirect bias?

Answer 76

Also known as the ‘apprehension of bias’, this covers all other instances of potential bias (e.g. those where no direct interest/benefit exists).

Question 77

What are the two standard tests for the existence of indirect bias?

Answer 77

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’).

Question 78

What is the first form indirect bias may take?

Answer 78

1. Where the decision-maker has a relationship with a person affected by the decision
   Authority - Metropolitan Properties v Lannon

Question 79

What is the second form indirect bias may take?

Answer 79

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

Question 80

What is the third form indirect bias may take?

Answer 80

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

Question 81

What is procedural fairness?

Answer 81

This is the requirement of a certain standard of fairness in the decision-making process, it may vary depending on the circumstances.

Question 82

What will impact upon the required level of procedural fairness?

Answer 82

The required standard will be raised or lowered in accordance with the impact the challenged decision has (or could have) on the affected individual.

Question 83

What is an important distinction to make when determining the required level of procedural fairness in making a decision?

Answer 83

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.

Question 84

What is the general required level of procedural fairness for application cases?

Answer 84

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

Question 85

Is the required level of procedural fairness in application cases subject to variation?

Answer 85

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

Question 86

How does the required level of procedural fairness in revocation cases vary from those in application ones?

Answer 86

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

Question 87

What are the key procedural safeguards underpinning the concept of procedural fairness?

Answer 87

1. Notice
2. Hearing
3. Cross-Examination of Witness
4. Legal Representation
5. Duty to give reasons

Question 88

What is the procedural safeguard of notice?

Answer 88

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

Question 89

What did Lord Hope say on the procedural safeguard of notice?

Answer 89

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’.

Question 90

How important is notice as a procedural safeguard for fairness?

Answer 90

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

Question 91

What is the procedural safeguard of a hearing?

Answer 91

An individual with a case against them has the right to a (fair) hearing of some description.

Question 92

What are the two types of hearing?

Answer 92

(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

Question 93

When are the courts more or less likely to allow for an oral hearing?

Answer 93

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

Question 94

What is the procedural safeguard of cross-examination of a witness?

Answer 94

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.

Question 95

What will impact upon the presence of a right to cross-examination of a witness as a procedural safeguard?

Answer 95

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)

Question 96

What is the procedural safeguard of legal representation?

Answer 96

This right, where granted, sees the claimant provided with legal counsel by the state.

Question 97

Is legal representation a readily available right/procedural safeguard?

Answer 97

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

Question 98

In what instances may legal representation be provided as a procedural safeguard?

Answer 98

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’).

Question 99

What is the procedural safeguard of duty to give reasons?

Answer 99

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).

Question 100

Is there a general duty under common law to give reasons?

Answer 100

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.

Question 101

What are the certain, specific situation in which a duty to give reasons will arise?

Answer 101

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

Question 102

How will a duty to give reasons be required by statute?

Answer 102

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.

Question 103

How will a duty to give reasons be required in cases where a decision impacts on ‘highly regarded’ rights or interests?

Answer 103

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

Question 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?

Answer 104

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).

Question 105

What are procedural legitimate expectations?

Answer 105

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.

Question 106

What are the three specific circumstances in which procedural legitimate expectations will arise?

Answer 106

1. Express Promise of Consultation
2. Expectation of Consultation Arises from Past Practice
3. Expectation of Consultation Based on Previous Enjoyment of a Benefit

Question 107

How does an express promise of consultation give rise to procedural legitimate expectations?

Answer 107

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

Question 108

How does an expectation of consultation arising from past practice create legitimate procedural expectations?

Answer 108

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

Question 109

How does an expectation of consultation arising from a previous enjoyment of a benefit create legitimate procedural expectations?

Answer 109

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

Question 110

What is the key question for the unreasonableness/irrationality ground for review?

Answer 110

Has a body acted Unreasonably?

Question 111

What must the courts satisfy themselves of before establishing/acknowledging unreasonableness as a ground for review?

Answer 111

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.

Question 112

How may the threshold applied/required to establish ‘unreasonable’ or ‘irrational’ decisions vary?

Answer 112

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).

Question 113

When will the required threshold for unreasonable/irrationality be at it’s highest/lowest?

Answer 113

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.

Question 114

How are the different thresholds required to establish unreasonableness or irrationality given concrete expression?

Answer 114

These varied thresholds are represented in the four recognised different forms of unreasonableness/irrationality.

Question 115

What are the four different types of unreasonableness/irrationality?

Answer 115

1. Wednesbury Unreasonableness
2. Super-Wednesbury Unreasonableness
3. Sub-Wednesbury Unreasonablness
4. Proportionality

Question 116

What is wednesbury unreasonableness?

Answer 116

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).

Question 117

What is the threshold required under wednesbury unreasonableness?

Answer 117

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

Question 118

How strict is the threshold required under wednesbury unreasonableness, and what is a practical example of it?

Answer 118

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.

Question 119

What is super-wednesbury unreasonableness?

Answer 119

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).

Question 120

What is the threshold required under super-wednesbury unreasonableness?

Answer 120

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

Question 121

How strict is the threshold required under super-wednesbury unreasonableness?

Answer 121

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.

Question 122

Is there scope for variation in the degree of deference given to decision-makers under super-wednesbury unreasonableness?

Answer 122

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.

Question 123

What is sub-wednesbury unreasonableness?

Answer 123

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.

Question 124

What is the threshold required under sub-wednesbury unreasonableness?

Answer 124

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).

Question 125

What is the relationship between sub-wednesbury unreasonableness and proportionality?

Answer 125

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.

Question 126

How strict is the threshold required under sub-wednesbury unreasonableness?

Answer 126

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

Question 127

What is proportionality?

Answer 127

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).

Question 128

Broadly what is the threshold required under proportionality?

Answer 128

The threshold is significantly lower than the other wednesbury and super-wednesbury tests.

Question 129

What are the two key criterion under the proportionality requirement?

Answer 129

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

Question 130

What caused the development of the principle/requirement of proportionality?

Answer 130

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).

Question 131

What happens if the criterion for proportionality are not satisfied?

Answer 131

If the relevant decision-making body cannot satisfy this criterion, then they will be found to have acted unreasonably.

Question 132

How strict is the threshold required under proportionality?

Answer 132

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).

Question 133

How is the application of the proportionality test somewhat limited?

Answer 133

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

Question 134

What is the key question when considering remedies for successful judicial review actions?

Answer 134

Are any of the remedies available in Judicial Review appropriate?

Question 135

In what depth should damages be considered and when will they be available?

Answer 135

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).