Judicial Review

Question 1

What is Judicial Review using case referencing?

Answer 1

• Judicial review is a process by which the courts review the decisions of public authorities to ensure that they have acted within their legal powers and have not acted unlawfully.
• Judicial review can be used to challenge a wide range of decisions made by public authorities, including decisions made by government ministers, local authorities, and other public bodies
• Anisminic v Foreign Compensation Commission [1969] 2 AC 147 - this case established that the court has jurisdiction to review a decision even if it is final, and even if it is made by a body that is not a court, as long as the decision is amenable to judicial review.

Question 2

What are the grounds for Judicial Review using case referencing?

Answer 2

• There are three main grounds for judicial review: illegality, irrationality, and procedural impropriety. Each of these grounds serves as a check on the decision-making process of public authorities.
• Illegality refers to situations where public authorities have acted outside of their legal powers or have acted in a way that is inconsistent with the law. Irrationality refers to situations where public authorities have made decisions that are so unreasonable that no reasonable authority could have made them. Procedural impropriety refers to situations where public authorities have not followed the correct procedures when making their decisions.
• Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 - this case established the three grounds for judicial review.

Question 3

What is illegality in Judicial Review?

Answer 3

• Illegality is one of the three grounds for judicial review. It refers to situations where public authorities have acted outside of their legal powers or have acted in a way that is inconsistent with the law. This can include situations where a public authority has exceeded its powers, has misinterpreted the law, or has failed to take into account relevant considerations.
• R (on the application of Jackson) v Attorney General [2005] UKHL 56 - this case concerned the legality of the Hunting Act 2004 and established that it is not for the courts to question the merits of legislation, but rather to ensure that it has been enacted in accordance with the law.

Question 4

What is irrationality in Judicial Review?

Answer 4

• Irrationality is one of the three grounds for judicial review. It refers to situations where public authorities have made decisions that are so unreasonable that no reasonable authority could have made them. This can include situations where a decision is based on irrelevant considerations, is arbitrary or capricious, or is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.
• Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 - this case established the “Wednesbury test”, which requires the court to consider whether a decision is so unreasonable that no reasonable authority could have made it.

Question 5

What is procedural impropriety in Judicial Review?

Answer 5

• Procedural impropriety is one of the three grounds for judicial review. It refers to situations where public authorities have not followed the correct procedures when making their decisions. This can include situations where a public authority has failed to provide a fair hearing, has not followed its own procedures, or has not followed the principles of natural justice.
• Ridge v Baldwin [1964] AC 40 - this case concerned the dismissal of a police officer and established that the principles of natural justice must be followed in all cases where a person’s rights or interests are affected by a decision.

Question 6

What is the role of the courts in Judicial Review?

Answer 6

• The role of the courts in judicial review is to ensure that public authorities have acted within their legal powers and have not acted unlawfully. The courts will consider the three grounds for judicial review (illegality, irrationality, and procedural impropriety) and will decide whether the decision of the public authority should be quashed or upheld.
• R (on the application of Miller) v The Prime Minister [2019] UKSC 41 - this case concerned the lawfulness of the Prime Minister’s decision to prorogue (suspend) Parliament and established that the courts have the power to review the lawfulness of decisions made by the Prime Minister and other public authorities.

Question 7

What remedies are available in Judicial Review?

Answer 7

• There are several remedies available in judicial review, including quashing orders, mandatory orders, and prohibitory injunctions. A quashing order is an order that cancels the decision of the public authority, while a mandatory order is an order that requires the public authority to take a specific action. A prohibitory injunction is an order that prevents the public authority from taking a specific action.
• R (on the application of Evans) v Attorney General [2015] UKSC 21 - this case concerned the release of letters written by Prince Charles to government ministers and established that the appropriate remedy in this case was a mandatory order requiring the release of the letters.

Question 8

What is legitimate expectation in Judicial Review?

Answer 8

• Legitimate expectation is a principle of administrative law that states that individuals have a right to expect that public authorities will act in accordance with their previous representations or promises.
• This means that if a public authority has made a clear and unambiguous promise or representation to an individual or group of individuals, and the individual or group has relied on that promise or representation, then the public authority may be required to act in accordance with that promise or representation.
• Coughlan v North and East Devon Health Authority [2001] QB 213 - this case concerned the closure of a care home and established that a legitimate expectation had been created that the home would not be closed without proper consultation and a proper alternative being provided.

Question 9

What are the three elements of legitimate expectation?

Answer 9

• The three elements of legitimate expectation are: (1) a clear and unambiguous promise or representation made by a public authority; (2) the individual or group of individuals has relied on that promise or representation; and (3) it would be unfair or unjust for the public authority to go back on that promise or representation.
• R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 - this case concerned the closure of a care home and established the three elements of legitimate expectation.

Question 10

What remedies are available for breach of legitimate expectation?

Answer 10

• quashing orders, declarations, and damages.
  The courts will consider the appropriate remedy on a case-by-case basis, taking into account the nature of the breach and the interests of the parties involved.
• R (on the application of Bhatt Murphy Solicitors) v Secretary of State for the Home Department [2016] EWHC 312 (Admin) - this case concerned the breach of a legitimate expectation relating to the detention of asylum seekers and established that a declaration was the appropriate remedy in this case.

Question 11

Explain the case of Secretary of State for the Home Department v The Queen (Rashid) [2005] in relation to legitimate expectation.

Answer 11

The claimant, Rashid, was an Iraqi Kurd who sought asylum in the UK due to the Iraq war
His application was rejected on the basis that he had the option to relocate to the Kurdish Autonomous Area (KAA), contrary to Home Office asylum policy at the time which instructed that this option should not be taken into account
The asylum policy was never published and the applicant was unaware of it at the time of his original application
When he became aware of original asylum policy, he applied for reconsideration, but he was again rejected under the new post-war asylum policy which instructed that the option to relocate to the KAA was to be taken into account
The claimant sought judicial review, contending inter alia, that he had a legitimate expectation to have asylum granted under the original policy
The judge ordered that the decision of the Home Secretary to be quashed
Appeal dismissed; the court declared that claimant is entitled to a grant indefinite leave to remain in the United Kingdom

Question 12

What did Lord Justice Lloyd say about who is amenable to judicial review?

Answer 12

“if a body is exercising public law functions, or if the exercise of its functions have public law consequences, then that may be sufficient to bring the body within the reach of judicial review” The justification for this is often that the body is carrying out a function, which, if it did not perform it, would otherwise be carried out by government. So, conversely, private bodies with no public law functions will not be subject to judicial review (R. v Chief Rabbi Ex p. Wachmann)

Question 13

What is stated in Section 31(3) of the Supreme Court Act 1981?

Answer 13

Provides that the court will not grant leave for judicial review unless the claimant has sufficient interest in the matter to which the application relates.

Question 14

What constitutes “sufficient interest”? (R. v. IRC Ex p. The National Federation of Self-Employed and Small Business Ltd (HL, 1982))

Answer 14

• the applicants wished to challenge an alleged amnesty granted to casual workers in the newspaper industry who had been avoiding paying tax for many years.
• quite clearly this decision did not affect the applicants’ legal rights. But did they have a sufficient interest?
• The answer was no. Mere general or public interest, without a direct and personal interest, may not be sufficient to establish standing in judicial review proceedings.

Question 15

What is the test for “sufficient interest” according to Lord Scarman?

Answer 15

the test was whether “there is a genuine grievance reasonably asserted”, stressing the relationship between the sufficiency of the applicants’ interest in relation to the subject matter of the application.

Question 16

What are 2 examples of illegality?

Answer 16

1. An authority to which the exercise of a discretion has been entrusted cannot delegate the exercise of its discretion to another unless clearly authorised to do so.
2. An authority must not use its power for improper purpose.

Question 17

Barnard v National Dock Labour Board [1953] 2 QB 18

Answer 17

This case involves the delegation of discretionary power by a local board to take disciplinary actions against dock workers, highlighting the general principle against delegation of such power.

Question 18

Lavender v Minister of Housing and Local Gvt [1970] 1 WLR 1231

Answer 18

This case clarifies the reliance on the judicial/administrative distinction in Barnard and establishes it as a general rule applicable to decision-making beyond the judicial sphere, addressing the complexities of delegation in administrative law.

Question 19

Carltona v Commissioners of Works [1943] 2 All ER 560

Answer 19

This case exemplifies the exception to non-delegation by allowing delegation of discretionary power to ministers, although its stability has been questioned by more recent cases like R v Adams [2020] UKSC 19.
R v Secretary of State for Foreign and Commonwealth Affairs, ex parte

Question 20

World Development Movement [1995]

Answer 20

This case underscores the rule that discretionary power must be exercised for proper purposes, emphasizing the importance of lawful purposes in decision-making.

Question 21

Wheeler v Leicester City Council [1985] AC 1054

Answer 21

This case reiterates the rule that discretionary power should only be exercised for a proper purpose, highlighting the requirement for lawful and legitimate purposes in administrative decision-making.

Question 22

Westminster Corporation v London and North Western Railway [1905] AC 426

Answer 22

This case involves the complexity of multiple purposes in exercising discretionary power, presenting difficulties in determining the true and dominant purpose for decision-making.

Question 23

R v Inner London Education Authority, ex parte Westminster City Council [1986] 1 WLR 28

Answer 23

This case provides guidance on determining the true and dominant purpose for exercising discretionary power, considering whether unauthorised purposes have materially influenced the decision-making process.

Question 24

Topic: Illegality in Judicial Review (English Law)
Aspect 1: Delegation of Discretionary Power

Answer 24

General rule: Discretionary power should not be delegated.
Example case: Barnard v National Dock Labour Board [1953] 2 QB 18
Dock Workers (Regulation of Employment) Order, 1947, Clause 16: Disciplinary procedures for dock workers.
Illustrates the issue of delegation of discretionary power.
Emphasizes the principle against delegation.

Question 25

Topic: Illegality in Judicial Review (English Law)
Aspect 2: Proper Purposes for Exercising Discretionary Power

Answer 25

Rule: Discretionary power must only be exercised for a proper purpose.
Example cases: Laker Airways v Department of Trade [1977] QB 64; R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement [1995]; Wheeler v Leicester City Council [1985] AC 1054.
Illustrate the requirement for proper purposes in exercising discretionary power.
Highlight the importance of determining the true and dominant purpose.

Question 26

Topic: Illegality in Judicial Review (English Law)
Aspect 3: Multiple Purposes for Exercising Discretionary Power

Answer 26

Challenge: Dealing with multiple purposes for exercising discretionary power.
Example case: Westminster Corporation v London and North Western Railway [1905] AC 426.
Known as a “legal porcupine” due to complexities.
Case raises difficulties in determining the true purpose.
Another case: R v Inner London Education Authority, ex parte Westminster City Council [1986] 1 WLR 28.
Guidance on determining true and dominant purpose and the impact of unauthorised purposes.

Question 27

Topic: Illegality in Judicial Review (English Law)
Aspect 4: Sources of Purpose for Exercising Discretionary Power

Answer 27

Sources: Empowering statute, constructed statute, or court interpretation.
Purpose can be explicitly stated in the empowering statute.
Purpose can be implicitly constructed in the statute.
Court may discover and construct purpose in the absence of explicit statutory provisions.

Question 28

Topic: Illegality in Judicial Review (English Law)
Aspect 5: Tests for Determining Lawfulness

Answer 28

“True and dominant” test: If power used for the purposes it was conferred, subsidiary objects are immaterial.
“Material influence” test: Unauthorised purpose that materially influenced the conduct renders the exercise of power invalid.
Competing tests and interpretations exist.
Fallback: “True and dominant” test is safe.
More sophisticated approach: “Material influence” test.

Question 29

Topic: Procedural Impropriety - Bias in Decision Making
Aspect: The Rule Against Bias

Answer 29

Rule: Decision makers must be impartial and unbiased.
Decision makers must recuse themselves if they have a personal interest or bias in the matter.
Three ways of resisting bias: actual bias, automatic disqualification (presumed bias), and apparent bias.
Actual bias is not a significant part of UK law.
Examples: Red River v Sheikh [2009] EWHC 3257 (Ch), Kuznetsov v Secretary of State for Communities and Local Government 2017 EWHC 2713 (Admin), R (United Cabbies Group) v Westminster Magistrates Court [2019] EWHC 409 (Admin).

Question 30

Topic: Procedural Impropriety - Bias in Decision Making
Aspect: Automatic Disqualification (Presumed Bias)

Answer 30

Rule: Automatic disqualification occurs when a decision maker is disqualified without any investigation into whether there was bias.
Dimes v Grand Junction Canal (1852) 3 HLC 759 case established this rule.
Expanded by R v Bow Street Magistrates ex parte Pinochet [2000] 1 AC 119 case.
Narrow limits on the scope of the rule established by Locabail v Bayfield [2000] QB 451 and applied in R (United Cabbies Group) v Westminster Magistrates Court [2019] EWHC 409 (Admin).
Sometimes referred to as “presumed bias.”

Question 31

Topic: Procedural Impropriety - Bias in Decision Making
Aspect: Apparent Bias

Answer 31

Apparent bias refers to the risk that someone would perceive bias in a decision maker.
The test for apparent bias has been a subject of struggle and development in case law.
Cases: R v Gough [1993] AC 646, Re medicaments [2001] 1 WLR 700, Porter v Magill [2001] UKHL 67, Lawal v Northern Spirit [2003] UKHL 35.
The settled test: “The fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased” (Porter v Magill [2001] UKHL 67).
Application of the test can vary and be difficult to pin down.
Examples of factors that might give rise to apparent bias: personal friendship or animosity, close acquaintanceship, previous expression of extreme or imbalanced views, social or educational background, previous decisions, etc.

Question 32

Locabail v Bayfield [2000] QB 451

Answer 32

Locabail v Bayfield [2000] QB 451 involved a dispute between a landlord (Locabail) and a tenant (Bayfield) regarding a lease agreement.
The case reached the Court of Appeal in England and Wales.
The issue at hand was whether the judge hearing the case had displayed apparent bias.
The judge had previously been involved in a related case with the same tenant and had made unfavorable comments about the tenant’s conduct.
The Court of Appeal applied the “real possibility” test for apparent bias and concluded that a fair-minded and informed observer would not perceive bias in the judge’s remarks.
The court held that the judge’s comments, although critical, did not demonstrate a real possibility of bias and therefore did not warrant recusal.
The decision in Locabail v Bayfield [2000] QB 451 affirmed the importance of maintaining public confidence in the impartiality of the judiciary while emphasizing that not every unfavorable comment by a judge constitutes apparent bias.

Question 33

What is procedural impropriety in judicial review?

Answer 33

Procedural impropriety refers to the failure of decision-makers to adhere to fair procedures and the principles of natural justice when making administrative decisions.

Question 34

Why is procedural fairness important?

Answer 34

Procedural fairness is important because it improves decision-making processes and ensures that decisions are well-informed, unbiased, and based on all relevant information. It also respects the rights and interests of individuals affected by the decisions and promotes democratic values, transparency, and accountability.

Question 35

What factors influence the requirements of procedural fairness?

Answer 35

The requirements of procedural fairness are heavily dependent on the context of each case. Factors such as the nature of the subject matter, the way the decision is made, the urgency of the decision, the setting, the significance of the outcome, and the burden on decision-makers all influence the specific procedures that are considered fair and appropriate.

Question 36

What are the options for acting fairly in decision-making processes?

Answer 36

The options for acting fairly include giving notice to affected parties, providing written representations, offering an oral hearing, allowing cross-examination of witnesses, and permitting legal representation. The specific combination of these options depends on the context of the case and the principles of fairness relevant to the situation.

Question 37

What is the significance of fair procedures in decision-making?

Answer 37

Fair procedures in decision-making are significant because they enhance the quality and legitimacy of administrative decisions. They ensure that decisions are well-founded, unbiased, and consider all relevant information. Fair procedures also uphold democratic values, transparency, and accountability in the relationship between public officials and citizens.

Question 38

R v Chief Constable of North Wales Police, ex parte Evans [1982] 1 WLR 1155 (procedural impropriety)

Answer 38

the issue revolved around procedural fairness and the requirement to provide sufficient notice and information to the affected parties. The court emphasised that individuals must be adequately informed about the nature and details of the decision being made to ensure procedural fairness. The case highlighted the importance of transparency and the duty of decision-makers to provide clear and comprehensive notice to individuals affected by administrative decisions.

Question 39

R (Bourgass) v Secretary of State for Justice [2015] UKSC 54 (procedural impropriety)

Answer 39

the focus was on procedural fairness in the context of a prison setting. The court discussed the importance of conducting a fair hearing or meeting, which may not necessarily require an oral hearing or cross-examination. The case emphasized the significance of providing individuals with an opportunity to respond to allegations and participate in decision-making processes, particularly in prison-related matters. It provided a comprehensive discussion on procedural fairness and its application in specific contexts.

Question 40

R v HM Maze ex p Hone [1988] 2 WLR 177 (procedural impropriety)

Answer 40

the issue at hand was the consideration of legal representation as an aspect of procedural fairness. The court examined whether a prisoner facing a disciplinary charge was entitled to legal representation during the disciplinary proceedings. The case highlighted that while legal representation is not an absolute right in all cases, there may be circumstances where fairness requires it, particularly when the subject matter is complex or the potential consequences are severe. The court emphasized the importance of considering the specific circumstances and the impact on the fairness of the proceedings when deciding whether legal representation should be granted.

Question 41

R v Home Secretary ex p Tarrant [1985] QB 251 (procedural impropriety)

Answer 41

the central issue was the role of legal representation in maintaining procedural fairness. The court examined whether an individual detained under immigration powers had a right to legal representation during an interview with immigration officers. The case concluded that fairness did not automatically require legal representation at every stage, but it depended on the circumstances of the case. The court emphasized that the decision should be based on the gravity and complexity of the issues involved, as well as the individual’s ability to present their case effectively without legal assistance.