Judicial Review Flashcards
Judicial Review - Definition
The principle means by which the High Court exercises supervision over public authorities.
Diplock - Grounds for judicial review
Illegality - A public authority has acted outside their authority (Ultra Vires, outside powers)
- Attorney General v Fulham Corporation [1921] 1 CH 440 (CH)
- R v Richmond upon Thames Borough Council ex parte McCarthy & Stone
Irrationality - Unreasonableness, behaviour on the part of a local authority that is particularly perverse or absurd. (Wednesbury Principle)
- Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA)
- R v Secretary of State for the Environment, ex parte Nottinghamshire County Council [1986] AC 240 (HL)
Fettering of discretion
As a general principle, if parliament provides a public body with a discretionary power, the courts will not permit that public body to restrict or “fetter” such discretion.
Fettering may happen in 2 ways
- Acting under the discretion of another
- Public authorities cannot act under the discretion of another person or authority* e.g. Lavender & Sons Ltd. vs Minister of Housing and Local Government [1970] 1 WLR 1231
- Applying a general policy, as to the exercise of discretion in too strict a manner
- Parliament sometimes requires public authorities to exercise powers in large numbers of similar cases e.g. planning applications. Fairness requires that like cases, should be decided in like ways - so authorities may formulate their own policies to help them make consistent decisions.*
- Such policies are lawful, provided that they are consistent and applied in a way that does not fetter the discretion of a local authority.*
Using powers for an improper or unauthorised purpose
Public authorities will be acting illegally if they use their powers for an improper, or unauthorised purpose.
e.g. Congreve v Home Office [1976] 1 QB 629
(associated with the early renewal of a TV licence)
Dual Purposes
Where a local authority arrives at a decision based on more than one consideration:
- One of which is relevant to the power it is exercising
- One of which is irrelevant
- Westminster Corporation v LNWR [1905] AC 426*
- A judicial review sought in relation to the construction of underground public lavatories, that also created a subway, by virtue of an access tunnel open at both ends.*
- The London and Northern Western Railway Company (LNWR) asserted that the construction of the tunnel made it easier for people to trespass on their land, and Westminster did not have authority for the construction of a subway - which they saw as the primary reason for the co*nstruction, rather than the provision of lavatories.
The House of Lords found in favour of Westminster Corporation
Heads of Illegality
A public body is not permitted to act beyond the scope of its powers and duties, which may be defined by reference to applicable legislation, whether domestic or European (including EU law and the European Convention on Human Rights).
(LexisNexis)
Judicial Review - Mechanism
Claim made under the procedure provided for in RULE 54 of the “Civil Procedure Rules”
Judicial Review - Grounds
3 grounds as defined by the case Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL)
- Illegality
- Irrationality
- Procedural Impropriety
Errors of law
Errors of law affecting a decision, are always amenable to judicial review.
Anisminic Ltd. v Foreign Compensation Commission [1969] 2 AC 147
Errors of fact
Not always amenable to judicial review.
‘Jurisdictional’ errors of fact are reviewable by the courts.
This was confirmed by R v Secretary of State for the Home Department, ex p Khawaja [1984] AC 74.
‘Material’ error of fact reviewable by the courts if it gives rise to unfairness.
E v Secretary of State for the Home Department [2004] EWCA Civ 49.
‘Other’ errors of fact are not usually reviewable.
Material Error of Fact - 4 Grounds for Review
- There must have been a mistake as to an existing fact (including a mistake on the availability of evidence on a particular matter)
- The fact must be uncontentious, and objectively verifiable
- The person seeking the review must not be responsible for the mistake
- The mistake, must have played a material part in the decision-maker’s reasoning
JR Claim: Grounds
Illegality, Error of Law, Ultra Vires, Error of Fact, Considerations, Fettering Discretion, Unauthorised Delegation, Convention Rights.
Illegality
- Lord Diplock: failure to understand correctly the law that regulates his decision making power (GCHQ)
Error of law:
- Misinterpreting legislation / nullity if impossible made same decision if understood (Anisminic)
Ultra vires:
- Exceeding powers given by statute (Fulham Corp)
Error of fact:
- Jurisdiction ( Khawaja) / fact must be proved (Coleen Properties)
Considerations:
- Irrelevant factors test unauthorised purpose: material influence (ILEA) / dominant purpose (LNWR)
Fettering discretion:
- Policy: must be flexible (Williams) / not under dictation of another (Lavender & Son)
Unauthorised delegation:
- Statutory discretionary power (Barnard) / civil service act of Minister (Carltona)
Convention rights:
- HRA S6 unlawful for public body to act incompatibly / fail to consider Convention insufficient (Miss Behavin’)
JR Claim: Grounds
Irrationality, Procedural Impropriety, Natural Justice, Fair Hearing,
Irrationality:
- Wednesbury unreasonableness: so unreasonable that no reasonable body could have come to the decision / also procedural unfairness (Wheeler)
- GCHQ: so outrageous in its defiance of logic or accepted moral standards that no sensible person
- No evidence considered / no reasons given / defy logic (Coleen Properties)
- Resource allocation / matter for Parliament not courts (Nottinghamshire CC v SS for Environment)
Procedural Impropriety:Procedural ultra vires:
- Statutory procedural requirement ( Soneji)
Natural Justice:
- Rules apply to decision-makers / authority to determine questions affecting the rights of individuals (Ridge v Baldwin)
- All circumstances fair (Cottrell)
Fair hearing:
- Right to notice / make representations / legal representation (Ridge v Baldwin)
- Fair opportunity to state case (Fairmount Investments)
- cross examine witnesses: necessary prisoner case (St Germain) / not investigative procedure (Cottrell)
- Decision-maker: must act in good faith and listen fairly to both sides (Board of Education v Rice)
- McInnes v Onslaw-Fane: type of applicant determine level of hearing / forfeiture: right or position taken away (oral hearing) / mere application: refusal to grant (acting in good faith)
JR CLAIM
Procedural Impropriety, Legitimate Expectation, Bias, Duty to Give Reasons, ECHR Article 6
Procedural Impropriety:
Legitimate expectation:
- Express promise / existence of regular practice / cl. can reasonably rely upon / must arise in mind of cl. ( GCHQ )
- Procedural: not follow promised or normal procedure (Liverpool Taxis) / substantive: led someone to believe will receive a benefit (Coughlan)
- Expectation formed in mind due to conduct of decision maker / breached / expectation reasonable or justifiable / not capable of being overridden by public interest
Bias:
- Injustice ( Re Medicaments & Related Classes of Goods)
- Automatic disqualification: pecuniary (Dimes) / involved in promoting same cause as a party (Pinochet)
- Apparent bias: objective test / fair-minded & informed observer / conclude real possibility of bias (Porter v Maghill)
- Not disqualified if only person who can take decision / statutory obligation
Duty to give reasons:
- Statutory requirement / affects claimant so seriously fairness requires (Doody) / no reasons precludes review (Cunningham)
ECHR Article 6:
- Right to fair trial / restrictive approach: independent decision not subject (Alconbury)
