Judical Review

Question 1

Perspectives on law

Answer 1

1. Doctrinal (what law is by examining the following…)
   - ‘Black-letter law’
   - Case law
   - statute
   - procedure
2. Historical
   - How long did the law develop?
3. Socio-legal (How the law functions as a part of society and how the law shapes us)
   - law in society
   - law and emotion
   - legal geography
   - access to justice
   - public understanding of the law
   - law in the arts
   - law within complex systems

Question 2

What are the 2 types of accountability?

Answer 2

1. Political accountability
   - e.g. elections, ministerial responsibility to parliament, etc.
2. Legal Accountability
   - accountability of the Executive through the Courts
   - i.e. judical review

Question 3

What is judicial review?

Answer 3

• Individual cases where rights or entitlements are denied – means by which an ordinary person can take on the state:
• mainly developed through common law
• only can be done if there is no right to appeal
• ex; trafficking if they calim you are not a victim then you can seek for judicial review
• can be provided for urgent injunctions
• commonly takes place in the administrative court (High Court)
• NOT an appeal

Question 4

Structure of a case

Answer 4

• Overview
• Arguments of the parties
• Legal framework and agreed facts
• Leading judgment on the issues

Question 5

Serious disruption

Answer 5

• legislation does not explain what serious disruption means so Suella Baverman wanted those words to mean ‘more than minor’ (in Public Order Act)
• police were the ones who expressed that the term was unclear which is why the government introduced the Henry the 8th power in a different piece of legislation (In Police, COurts, and Sentencing Act)

Question 6

Henry VII power

Answer 6

term that means a delegated power in which subordinate legislation is enabled to amend primary legislation
- without having to go through the full parliamentary scrutinty
- power would be used to provide clarification to police as to what was meant in a practical sense of ‘serious disruption’
- would not be used to alter the threshold of police preventions in prosessions and assemblies

Question 7

Public Order Bill in 2021 significance

Answer 7

• created 2 new criminal offence
  1. Locking on
  2. tunneling
• doing each in order to protest against some sort of environmental damage
• gave rise to serious disruption (which is to be defined as more than minor)
• it only applied to these 2 things
  2023
• government attempted to amend (the 1996 act) the meaning of serious disruption
• house of lords rejected those ammendments and government then gave up on them and instead tried to use the henry the 8th power

Question 8

who can apply for judicial review?

Answer 8

• not everyone can apply for judicial review
  Senior Courts 1981, s31(3)
• No application for judical review shall be made unless the leave of the High Court has been obtained in accordance with rules of court
• the court shall not grant leave to make such an application unless the applicant has a sufficiant interest in the matter to which the application relates

Question 9

Who can be challenged?

Answer 9

• Public or statutory bodies
• Other organisations, subject to the ‘public function’ test
• case: R v Panel

Question 10

What are the 4 grounds

Answer 10

Ground 1: Illegality
Ground 2: Procedural impropriety
Ground 3: Irrationality
Ground 4: Human rights

Question 11

Ground 1 - Illegality

Answer 11

sub-principles of illegality
1. excess of power
2. abuse of power
- doing something for an improper purpose
- unlawfullness
- commonly used

Question 12

Ground 2: Procedural unfairness

Answer 12

3 types:
1. Breach of statutory procedure
2. Breach of natural justice (natural justice = the common law principles of fair procedure )
- 2 rules of natural justice:
–> 1) the rule against bias
–> 2) the right to a fair hearing
3. Breach of legitamate expectation
- commonly used

Question 13

Ground 3: Irrationality

Answer 13

• applies to a decision which is so outrageous in its defiance of logic or of accepted moral standard that no sensible person who had applied hos mind to the question to be decided could have arrived at it
• associated Provincial Picture Houses v Wednesday Corporation
• is rarely successful

Question 14

The ‘Sliding Scale’ of Wednesbury

Answer 14

Less willing to scrutinise a decision regarding budgets and the allocation of resources.
- much less likely to review on rationality
- particularly seen around healthcare cases
- not that they can never look at it but need to not pass judgement on items that are essentially political

Question 15

when are they more willing to scrutinise?

Answer 15

more willing to scrutinise reasonableness where a fundamental or constitutional right might be at stake

Question 16

Ground 4: Breach of human rights

Answer 16

The effect of the Human Rights Act 1998 is to insert a new statutory heading of illegality—breach of a convention right.

Question 17

Proportionality test

Answer 17

The Huang test – R v Home Secretary
1. Does the policy / measure in question pursue a sufficiently important objective?
2. Is the rule or decision under review rationally connected with that objective?
3. Are the means adopted no more than necessary to achieve that objective?
4. Does the measure achieve a fair balance between the rights of the individual(s) affected and the wider community?

Question 18

Controversies

Answer 18

• checks the powers of the executive
• attacks central government in some ways