Judicial Review

Question 1

Judicial review Definition (1)

Answer 1

CPR 54.1

Question 2

Court’s Role in judicial review (1)

Answer 2

ex p B - we have one function only which is to rule upon the lawfulness of a decision

Question 3

Judicial Review Theories (5)

Answer 3

• Red light - admin law is a control upon government
• Green light – admin law is a framework that facilitates good government by providing a template for administration to regulate itself (Miller)
  1. Ultra Vires Theory – courts may intervene whenever a decision maker acts ‘ultra vires’ – beyond the powers conferred by the legislation
  Baxter – ultra vires doctrine consists of ‘an application of the law itself’
  2. Common Law Theory – also acknowledge parliamentary sovereignty – courts should uphold the common law, not just hold Parliament accountable
  Laws LJ – ultra vires theory is just a ‘fig leaf’ to cover up real basis for judicial review – not just about strict legality
  3. Modified Ultra Vires Theory – accept JR is not strictly about pure legality and broader principles are implied into Parliament’s intention
  Elliott – JR does uphold PS but we have to read into it

Question 4

Amenability for Judicial review (5)

Answer 4

1. Acts of Parliament – Not amenable (unless there is statutory authority to do so)
2. Exercise of statutory public functions – Are amenable
   GCHQ – ‘For a decision to be susceptible to judicial review the decision-maker must be empowered by public law’
3. Prerogative powers – Are amenable
   - Bancoult No2 – ‘the scope of judicial review of the royal prerogative includes review of its exercise on grounds of unreasonableness, abuse of power, procedural impropriety and breach of legitimate expectations’
   - Miller and Miller/Cherry
4. Subordinate/devolved legislation – Are amenable
   - AXA – The Scottish Parliament was created by Westminster Parliament, and therefore can be reviewed
5. De facto public functions – private bodies carrying out public functions are amenable
   - Ex p Datafin – self-regulating bodies are still amenable
   - KPMG – However haver to have sufficient ‘public law flavour’ to be amenable

Question 5

Standing for Judicial review (+ groups and public interest) (3,2,2)

Answer 5

• Senior Courts Act 1981 31(3) – ‘sufficient interest’
• Must be individual or group who have been affected by the decision of a public body
• Sir Stephen Sedley – ‘the phrase itself is deliberately elastic

Groups:
- Fleet Street Casuals – ‘it would…be a grave lacuna in our system of public law if a pressure group…were prevented by outdated technical rules of [standing] from bringing the matter to the attention of the court’
- Ex parte Rose Theatre Trust – the group does not have sufficient interest just because they are a group, the individual members of group must have sufficient interest

Public interest: standing may be established where there is no personal interest but there is a general public interest
Miller

Question 6

Time Limit for Judicial review (2)

Answer 6

• CPR 54(5) – claim form must be filed ‘promptly’ and ‘no later than 3 months after the grounds to make the claim first arose’
• S84 Criminal Justice and Courts Act 2015 – would not be judicially reviewed if it would be highly likely that the outcome would be the same even if the decision was made legally – waste of courts time and money

Question 7

Remedies for Judicial review (1,5)

Answer 7

• Senior Courts Act 1981 s31:
  1. mandatory order (decision is heard again),
  2. prohibiting order (prevents a body from doing something),
  3. quashing order (decision set aside as though it did not exist),
  4. declaration (states the law) or
  5. injunction (body is ordered to perform or refrain from performing a particular act)

Question 8

Definition for illegality (1)

Answer 8

GCHQ
- ‘By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.’ (Lord Diplock)

Question 9

Ultra Vires (illegality) (1)

Answer 9

Extending/changing jurisdiction

Question 10

Intra vires (illegality) (1)

Answer 10

Limiting jurisdiction/fettering discretion

Question 11

Errors of law (illegality) (5)

Answer 11

• Errors of law – a mistake made about understanding the limits of the law
• Anisminic – all errors of law are reviewable by court: An error made out of their jurisdiction could not have been a determination as they had no jurisdiction to make the decision in the beginning, therefore ouster clause could not apply and the courts could review the error
• Page – all errors of law are jurisdictional
• MATTERS OF DEGREE: some exceptions to reviewing errors of law
• Ex p South Yorkshire Transport – ‘only if the decision is so aberrant that it cannot be classed as rational’ will the court intervene

Question 12

Errors of Fact (illegality) (1,3)

Answer 12

• Errors of fact – mistakenly assessing something as being within your jurisdiction

1. Jurisdictional fact – error of fact means a DM has acted ultra vires
   Croydon – involved question of whether or not someone was classed as a child (jurisdictional fact)
2. Irrational conclusion of fact
   Ex p South Yorkshire Transport – had to be ‘substantial part of UK’ – this would be irrationally deciding the fact if decided that 1.65% of UK was substantial part of UK
   Moyna - court should not overturn a decision applying the law to the facts ‘unless it falls outside the bounds of reasonable judgment’
3. Mistakes of fact giving rise to unfairness
   E v Secretary of State for Home Department – ‘mistake of fact giving rise to unfairness’ could be judicially reviewed
   1) Mistake must be an existing fact
   2) Fact must be established
   3) The applicant must not have been responsible for mistake
   4) Mistake must have played a material part in DM’s reasoning

Question 13

Propriety of Purpose (Illegality) (4)

Answer 13

• Courts will require decision-makers to act only for the stated purpose – ensures they uphold parliamentary sovereignty
• Ex parte Fewings – ‘You enjoy no unfettered discretions. There are legal limits to every power you have’
  ‘no statute can be purposeless’ – the courts will always find a purpose
• Padfield – the act would be interpreted by the court ‘as a whole’ to find the purpose (can be implied)
• Ex p Spath Holme – ‘whether the purpose is stated expressly or has to be inferred, the exercise is one of statutory interpretation’

Question 14

Relevancy of Considerations (Illegality) (6)

Answer 14

• Decision makers must take into account relevant considerations and ignore irrelevant considerations
• Wheeler – ‘the exercise of the discretion is unlawful since a legally irrelevant factor has been taken into account’ – condemning the club for failing to support political goals was not appropriate as this would be irrelevant consideration
• Ex parte Fewings – moral considerations about hunting was an irrelevant consideration
• Ex parte Venables; ex parte Thompson – wrong of home secretary to consider public opinion when deciding if tariff for detaining young person should be increased (this was irrelevant consideration)
• Tesco Stores – little weight or no weight? – have to take relevant considerations into account, but the weight you attach to them is up to you
• Section 149 Equality Act 2010 – Public authorities have a general duty to c0nsider equality implications of decisions

Question 15

Delegation of Discretionary Power (Illegality) (2)

Answer 15

• Legislation might expressly permit/provide for delegation BUT courts will construe narrowly
• Carltona principle - Minister to whom the power is legally given and the official who actually exercises it are one and the same person (devolution rather than delegation
  ‘ministers, being responsible to parliament, will see that important duties are committed to experienced officials.’

Question 16

Policies (Illegality) (4)

Answer 16

• Anyone exercising statutory discretion cannot ‘shut his ears to an application’
• Adopting rigid policies could fetter discretion
• British Oxygen
• Kynoch

Question 17

Definition of Irrationality (1)

Answer 17

• GCHQ - By “irrationality” I mean what can by now be succinctly referred to as “ Wednesbury unreasonableness” … It applies to 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

Question 18

Wednesbury Unreasonableness (Irrationality) (1)

Answer 18

• Wednesbury - ‘if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere.’

Question 19

Super Wednesbury (Irrationality) (1)

Answer 19

• Ex parte Nottinghamshire - Courts decided that would only intervene with Secretary of State’s decision if they had 1. acted in bad faith, 2. improper motive, or 3. consequences were so absurd that he must be insane
  VERY reluctant to intervene

Question 20

Anxious Scrutiny (Irrationality) (3)

Answer 20

• Ex p Brind – courts more willing to intervene where the balance between fundamental right and public interest has been disrupted (unreasonable to exclude terrorist interviews from broadcast and argued would violate art 10 ECHR)
• Ex parte Smith – courts were willing to go further and intervene when fundamental rights were at stake (gay and lesbian members of armed forces dismissed due to sexuality)
• Smith v UK – anxious scrutiny was not enough – courts were still too reluctant to intervene when applicants rights had been interfered with. The courts needed to go further

Question 21

Proportionality (Irrationality) (1,4)

Answer 21

• Bank Mellat (No 2) – Proportionality test: Lord Sumption and Lord Reed
  1. Objective is sufficiently important to justify the limitation of a fundamental right
  2. Rationally connected to the objective
  3. A less intrusive measure could have been used
  4. A fair balance has been struck between rights of individual and the interests of the community

Question 22

Arguments for abandoning Wednesbury and moving towards proportionality (irrationality) (3)

Answer 22

• Daly – ‘Wednesbury…was an unfortunately retrogressive decision in English administrative law’
  should not be decided ‘merely by a finding that a decision under review is not capricious or absurd’ (almost impossible to show something is absurd so Wednesbury is difficult to apply)
• Tomkins (academic) – ‘Proportionality … is a device which enables the judiciary to probe more deeply into government decision-making, but also requires the courts to make clear the precise grounds on which they do so. Proportionality may therefore lead to0 greater transparency in judicial decision making’
• Kennedy case – ‘the common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so-called Wednesbury principle … The nature of judicial review in every case depends on the context’

Question 23

Arguments Against Moving Towards Proportionality (Irrationality) (3)

Answer 23

• Tomkins – The adoption of proportionality ‘may signal the abandonment of … the distinction between appeal and review’
• Sales (academic) – ‘It is not for the courts by themselves to produce such a substantive change in the law’
• ‘Wartime Detainees’ case – ‘It is not for this court to perform its burial rites’ (decision to abandon Wednesbury should come from Supreme Court not lower courts)

Question 24

Definition of Procedural Impropriety (1)

Answer 24

• GCHQ - ‘I have described the third head as “procedural impropriety” … susceptibility to judicial review under this head covers … failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred…’

Question 25

Mandatory Requirement (Procedural Impropriety) (1)

Answer 25

• Mandatory requirements are procedural requirements imposed by legislation – failure to comply would result in decision being invalid

Question 26

Directory Requirement (Procedural Impropriety) (1)

Answer 26

• Directory requirements are minor or technical and failure to comply will not cause decision to be invalid

Question 27

Consultations (procedural Impropriety) (2)

Answer 27

• Bradbury – Failing to give notice of consultation meant that parents and others lost the opportunity to object the authority’s decision to the Secretary of Stet for Education for changing grammar school into comprehensive school
• Moseley –
  Lord Wilson: focuses on common law duty to act fairly meaning it doesn’t matter is the duty to consult is statutory or not, a public authority should still follow it
  Lord Reed: Less focus on common law duty to act fairly and instead on statutory context

Question 28

The Rule Against Bias (Procedural Impropriety) (6)

Answer 28

• Re Medicaments – ‘Bias is an attitude of mind [that] … predispose a judge towards a particular view’
• Ex parte McCarthy – ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’ (just has to give the impression of unfairness)
• Dimes – Lord Cottenham disqualified from a cting as a judge where held shares in company involved in proceedings (if a DM has direct financial interest in outcome, they are automatically disqualified)
• Porter v Magill -
  1. ‘whether the fair-minded and
  2. informed observer,
  3. having considered the facts,
  4. would conclude that there was a real possibility that the tribunal was biased’
  (WHEN DISCUSSING BIAS NEED TO CITE THIS TEST AND THEN APPLY EACH SECTION)
• Gillies - Informed observer must be assumed to be in possession of ‘all the facts that are capable of being known by members of the public generally’.
• Al Hasan – Real possibility of bias as the deputy prison governor was present when it was decided that prisoners should be squat searched and then later adjudicated in a case challenging legitimacy of that decision

Question 29

The Right to Know the case Against (Procedural Impropriety) (1)

Answer 29

• Ex parte Doody - Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will very often require that he is informed of the gist of the case which he has to answer.

Question 30

The Right to an Oral Hearing (Procedural Impropriety) (1)

Answer 30

• Osborn – An oral hearing is required:
  ‘whenever fairness to the prisoner requires such a hearing’ and ‘the importance of what is at stake’.
  ‘reflect the prisoner’s legitimate interest in being able to participate in a decision with important implications for him…’

Question 31

The Right to Reasons for a Decision (Procedural Impropriety) (4)

Answer 31

• Ex parte Doody - there exists no ‘general duty to give reasons’ for administrative decisions
• Padfield – Although there is no DUTY to give reasons for decision, a decision without reason may appear irrational or court may infer that no valid reasons exist and is therefore Wednesbury unreasonable
• Ex p Institute of Dental Surgery – May require reasons for a decision if:
  Subject matter is an interest so highly regarded by the law that fairness requires reasons to be given
  Where the decision appears absurd
• Oakley - there are ‘powerful reasons for imposing a duty to give reasons, at least where the reasoning process is not otherwise sufficiently transparent.’

Question 32

Procedural Legitimate Expectation (1)

Answer 32

• Expectation that an individual will be consulted

Question 33

Substantive Legitimate Expectation (Definition) (1)

Answer 33

• Expectation of actually receiving a particular benefit/not losing a benefit/ not suffering a detriment

Question 34

How do Expectations Arise? (legitimate Expectations) (3)

Answer 34

1. Expectations created by a promise
   Ng Yuen Shiu - ‘…when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty’
2. Expectations created by past practice
   GCHQ – expectation that the union would have been consulted based on past practice of consultation
   Ex p Unilever – Inland Revenue refused to grant some discretion to a taxpayer that it had granted for over 20 years
3. Expectations created by policy
   Ex parte Khan – policy on adoption was that had to meet 4 conditions. Couple met the criteria but were still refused due to an unstated 5th criterion had to meet

Question 35

Substantive Expectations (2)

Answer 35

• Ex p Coughlan – Authority was bound by the expectation that Mrsd Coughlan could live in the care home for ‘as long as you choose’ and could not go back on its word regardless of the care home wanting to close and relocate the residents – she had a right to stay in the care home for life
• Ex p Unilever

Question 36

When will a promise give rise to a legitimate expectation? (2)

Answer 36

• Ex parte MFK Underwriting Agencies Ltd – ‘clear, unambiguous and devoid of relevant qualification’
• Bancoult – failed to meet the test of clear, unambiguous and devoid of relevant qualification and therefore was not a legitimate expectation

Question 37

Detrimental Reliance (Legitimate Expectations) (2)

Answer 37

• Detrimental Reliance = Reliance to an extent that has caused the claimant detriment (generally only required in substantive expectation claims)
• Bancoult (No 2) - ‘[i]t is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power’.

Question 38

Frustration of Expectation (Legitimate Expectation) (3)

Answer 38

• Finucane – ‘where a clear and unambiguous undertaking has been made, the authority giving the undertaking will not be allowed to depart from it unless it is shown that it is fair to do so’
• Bibi – At very least the decision maker has to recognise the fact that they did give the applicants the expectation and must take account of it in making their decision
• Tesco Stores – HOWEVER, as long as the decision maker has taken into account the relevant consideration, it is up to them to decide on how much weight to attach to it

Question 39

How is the expectation protected if it cannot be lawfully frustrated? (legitimate expectation) (3)

Answer 39

o Should X’s expectations be at least a relevant consideration when the decision is taken? (Quashing + Mandatory Order as to relevant consideration)
o Should X be given a hearing or other procedural protection before being denied what was expected? (Quashing + Mandatory Order as to procedure)
o Should X get what he expected (Quashing + Mandatory Order as to substantive benefit) – Rare!