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FLK 1 - Constitutional Law > Judicial Review > Flashcards

Judicial Review Flashcards

1
Q

Are the courts concerned with the merits of a decision or its legality under judicial review?

A

Its legality

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2
Q

What is the purpose of judicial review?

A

Ensure that public authorities act in accordance with law

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3
Q

Why should authorities act in accordance with law?

A

It is a key component of the rule of law

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4
Q

What are the three main elements of judicial review?

A
  1. Are the requirements for a successful application met
  2. Has a ground of judicial review been established
  3. What is the appropriate remedy
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5
Q

Name the elements in considering if the requirements for a successful Judicial Review application has been met?

A
  1. Claim must be against a public body for a public law issue (i.e. not contractual) for reviewable issues that are not factual
  2. The correct procedure must be used
  3. Claim should be brought promptly and before 3 months/six weeks for planning
  4. The outcome if successful should change substantially
  5. The claimant must have standing
  6. It must be a last resort
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6
Q

Is the test for standing in judicial review of a public law matter the same as the test for judicial review in a Human Rights Matter?

A

No, the latter uses the victim test which is more limited

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7
Q

What is a public body?

A

Government, its departments and agencies, representatives and employees

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8
Q

What is the Judicial Review Pre-Action Protocol (procedure)

A

Claimant should send letter to defendant identifying the issues and allow 14 days for a response

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9
Q

What are the two stages of judicial review?

A
  1. Permission stage
  2. Full hearing
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10
Q

What is the permission stage of judicial review?

A

Application for permission to continue the claim for judicial review, decided on the papers and defendants response (or a hearing if matter is complex)

Court looks at standing

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11
Q

Will judicial review be granted if the court believes the claimant’s outcome would not change substantially?

A

No

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12
Q

What is the time limit for bringing judicial review?

A

Promptly
No later than 3 months from date of decision
6 weeks from a planning decision

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13
Q

Is judicial review available for private law issues?

A

No, only public law issues (procedural exclusivity)

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14
Q

Isa private law claim available for matters of mixed public and private law?

A

Yes, as this is an exception to the procedural exclusivity rule

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15
Q

Will a court review issues that are hypothetical or a live dispute?

A

No, the court will only review issues which have occured

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16
Q

Will a court apply judicial review to a dispute of fact?

A

No

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17
Q

What claimants have standing to bring judicial review?

A

Those with sufficient interest in the issues (looked at in the permission stage)

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18
Q

What happens if the position on standing is not obvious?

A

It should be considered by the court at a full hearing of the legal and factual issues of the case

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19
Q

When will groups or associations be granted standing?

A

When they are responsible, well resourced, have expertise or there is unlikely to be an alternative claimant

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20
Q

What must a party to before trying judicial review?

A

Exhaust all other remedies first

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21
Q

What are the grounds for judicial review?

A

Illegality
Procedural impropriety
Unreasonableness
Breach of legitimate expectations

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22
Q

Explain the illegality ground of review?

A

Error of law
Specific legal duty
Unlawful delegation of power
Irrelevant considerations
Ultra vires

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23
Q

Explain the ultra vires rule for illegality as a ground for Judicial Review?

A

‘outside the powers’ meaning a public authority acted outside the scope of power granted to them in statute

24
Q

Explain the failure to comply with a specific legal duty rule for illegality as a ground for Judicial Review?

A

Statutes require that public authorities must comply with certain duties in exercising their power

25
Q

What does the Public Sector Equality duty (under illegality - failure to comply with a specific legal duty) entail?

A

Requires that public authorities take into account equality considerations when making a decision by showing DUE REGARD for:

  1. Eliminating discrimination of persons with protected characteristics
  2. Advancing equality of opportunity and good relations among those with protected characteristics
  3. Removing/minimising disadvantages suffered by those who share a protected characteristic
26
Q

What are the protected characteristics ?

A

Age, gender, sexual orientation, religion, maternity, pregnancy, race, disability, gender reassignment

27
Q

Does due regard require the achieving of a purpose in respect of the duty to comply with specific legal duties - illegality - public sector equality duty)?

A

No, it is to show that it has been considered, rather than to achieve the purpose

28
Q

Explain the unlawful delegation of power rule for illegality as a ground for Judicial Review?

A

Power once delegated cannot be delegated again without approval by the Act granting the power in the first place

Exception: power delegated to a secretary of state can be exercised by civil servants without formal parliamentary authorisation

29
Q

Explain the irrelevant considerations rule for illegality as a ground for Judicial Review?

A

The public authority must only take into account relevant considerations. What is irrelevant depends on the Act.

30
Q

Explain the errors of law rule for illegality as a ground for Judicial Review?

A

When the courts determine whether a decision was made lawfully

31
Q

What is an ouster clause and can it be used to shield decisions of a public authority from judicial scrutiny?

A

A clause that ousters the jurisdiction of the court from questioning a decision made under the Act

No, because the courts interpret ouster clauses restrictively as meaning “no legally valid” decision can be questioned by the court

32
Q

If an Act authorises a local authority to issue flower market licenses and contains an ouster court, can a flower seller who was refused a licence apply for judicial review?

A

Yes, if one of the choices indicates that she can seek a decision as to whether the decision was leghal

33
Q

What is the procedural impropriety ground for judicial review?

A

Determining if the public authirity complied with the procedural requirements in the Act/common law such as consultations, notices etc

34
Q

What are the grounds for procedural impropriety?

A

Mandatory/directory requirements
Right to be heard
Rule against bias
Duty to consult
Duty to give reasons

35
Q

Explain the mandatory/directory requirements rule for procedural impropriety as a ground for Judicial Review?

A

Mandatory requirements MUST be followed and a failure invalidates the decision (“must”, “shall”)

Directory requirements if not followed may not necessarily invalidate the decision (is there hardship if decision is not followed)

36
Q

Explain the natural justice-right to be heard rule for procedural impropriety as a ground for Judicial Review?

A

Common law right to be heard. If a right is removed, the affected person must be given a hearing and right to respond

If the person is making an application, the right is less extensive

37
Q

Explain the natural justice-rule against bias rule for procedural impropriety as a ground for Judicial Review?

A

Decision-makers should be unbiased

38
Q

What are the three types of Bias under the rule against bias (impropriety as a ground for judicial review)?

A

Actual bias - difficult to prove

Financial interest

Apparent bias

39
Q

If a decision-maker has a financial interest or non-financial interest that is closely connected to the decision they are making, are they automatically disqualified from hearing the case?

A

Yes

40
Q

What is the test for apparent bias?

A

Whether a fair-minded and informed observer + informed of the facts + conclude that there was a real possibility of bias

41
Q

Explain the common law duty to consult rule for procedural impropriety as a ground for Judicial Review?

A

Trick question, there is NO GENERAL common law duty to consult

42
Q

When does a duty to consult arise for a decision-maker?

A
  1. If statute requires
  2. If a promise has been made to do so
  3. If there is an established practice of doing so
  4. When a failure to consult would lead to conspicuous unfairness
43
Q

Explain the common law duty to give reasons for procedural impropriety as a ground for Judicial Review?

A

Trick question, there is NO GENERAL duty to consult or decision-making would be too slow

44
Q

What circumstances should a decision-maker have a duty to give reasons?

A
  1. When the subject matter is important. fairness needs reasons
  2. If the decision departs from the standard, fairness requires that reasons are given to establish if it can be challenged because somethign went wrong
45
Q

What is the legitimate expectations ground for judicial review?

A
  1. When an explicit promise or assurance is made
  2. Due to previous action by the public body
46
Q

Is the legitimate expectations ground for review procedural or substantive?

A

Procedural, unless the promise made was very important and made to a small number of people

47
Q

What is the unreasonableness and irrationality ground for judicial review?

A

Was the decision so outrageous in its defiance of logic or accepted moral standards that no sensible person applying their mind to the question could have arrived at it

48
Q

Under the unreasonableness / irrationality ground for judicial review, explain what test is used for fundamental Human Rights cases?

A

Proportionality Test

  1. Is the object of the policy sufficientlyu important to justify the limitation of a fundamental right
  2. Are the measures designed to meet legislative objectives rationally connected to it?
  3. Is the interference with the right no more than necessary to accomplish the objective?
49
Q

What are the remedies that a court can grant?

A

Quashing Order
Mandatory Order
Prohibiting Order
Injunction
Declaration

50
Q

What is a Quashing Order and a Mandatory Order?

A

Quashing voids the decision and a new decision is needed

Mandatory orders direct the decision maker to act in a certain way

51
Q

What is a prohibiting order and an injunction

A

The first is an order to not act in a way and the second prevents someone from acting in a manner or requires a party to act on the instructions of court

52
Q

What is a declaration

A

Declares the decision or action unlawful

53
Q

What remedies are ONLY available in judicial review?

A

Quashing, mandatory and prohibiting orders

54
Q

Can judicial review remedies be combined?

A

Yes

55
Q
A

FLK 1 - Constitutional Law (11 decks)

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