Judicial review Flashcards
What is judicial review?
Concerned with checking the exercise of public power from a constitutional perspective, the courts should not be concerned with merits of a decision but whether its correctly made according to the law.
Person needs to have sufficient interest in claim. Their rights have to be impacted. No requirement to show that decisions directly impacts his business or interfere with his human rights.
What are the 5 issues to consider with Judicial review?
1.Amenability to JR
- Whether the issue in question is properly a matter of public law
Public bodies include – inferior courts, local authorities, government departments, statutory tribunals.
Broadened scope so not just public bodies but other bodies carrying out a public function. So, includes:
- Regulatory authorities – but not in field of sporting and regulations regulation
2.Procedural Exclusivity
- Judicial review was exclusive procedure to challenging public law decisions
EXCEPTIONS - when parties agree to private law procedure OR it arises out of collateral of another issue.
3.Standing
- Necessary pre-condition is that the applicant has standing – GRANTED LEAVE OF THE HIGH COURT
- COURT SHALL NOT GRANT LEAVE UNLESS IT CONSIDERS THAT THE APPLICANT HAS SUFFICEINT INTEREST IN THE MATTER TO WHICH THE APPLICATION RELATES
TWO stage approach
Stage 1 – Initial permission stage
- Turn away those with little hope of success
Stage 2 – full hearing stage
- Whether applicant has strong enough case on merits taking into account the proximity of his connection to the issue in the case.
Sufficient interest test.
EXCEPTIONS - Associations ARE ALLOWED, PRESSURE AND INTEREST GROUPS - LIBERAL APPRAOCH
4.Time limits
- Time limit if short and strictly applied
- PROMPTLY and no later than 3 months after the grounds to make the claim first arose.
- Therefore, can be declined even if in 3 months but not promptly
5.Ouster clauses
- It’s a legislative provision which appears to oust the jurisdiction of the administrative courts to conduct judicial review.
- Such clauses are rare but courts are generally hostile towards them
What remedies are available under JR
- mandatory orders require the body under review to do something;
- prohibitory orders restrain or prevent the body from doing something; and.
- quashing orders setting aside the decision of a body on the basis that it is invalid.
So if the public body failed to do something there would be a quashing order. It requires them to follow the prescribed procedure in making its decision.
What is the first ground of JR - Illegality?
Public body is not entitled to act ultra vires -in excess of its powers
Simple illegality
- If they act outside of the four corners of the act
- EXCEPTION – if it’s something reasonably incidental
Errors of law
- Decision-maker making a mistake regarding a question of law.
- EXCEPTIONS
- Where the error of law is not decisive to the decision
Errors of fact
- Precedent facts – where decision makers power to decide upon a particular matter depends on an initial finding of a fact that is mistaken - the appellant must not have been responsible for the mistake, the mistake must have played a material but not necessarily a decisive part in decision makers reasoning.
- no evidence for fact
- broader scope - test in E:
-must be a mistake to an existing fact
- the fact must have been established
- appellant was not responsible for the mistake.
- the mistake played a material part.
Relevant and irrelevant considerations
- Decision makers can act unlawful if they fail to take account of something or the opposite.
Improper purpose
- Decision maker ought to only use power for a purpose for which it was given that power
Fettering discretion
- If a public body has acted in a way that has hampered its own ability to properly exercise a discretionary power – it will have fettered its discretion.
lawful delegation of discretion
- Some statutes have EXCEPTIONS where power can be delegated
- like local authorities.
Carltona principle
- discretion is conferred to government minister the courts will presume that the minister is allowed to delegate his discretion to officials.
What is the JR ground unreasonableness/irrationality?
A decision on a matter is so unreasonable that no reasonable authorities could have ever come to it.
There are 3 classes of unreasonableness.
Material defects in decision-making process
- Wrongly weighing up relevant factors
- Failure to provide a comprehensive chain of reasoning -
Oppressive decisions – where its an imposition of a penalty for legal behaviour. Disproportionate impact to the claim isn’t and his livelihood.
Decisions that violate constitutional principles – rule of law needs to be certain and consistent.
Intensity of review - depends on the rights, fundamental rights have higher scrutiny
Constitutional entitlement - courts are reluctant to interfere with decisions of democratically elected officials.
Institutional competence - strong duty to protect fundamental rights.
Traditional Wednesbury standard – very high threshold – remains the case courts are reluctant to review decisions relating to social and economic policy – operate at such higher degree of deference and lower intensity.
When human rights protected under the ECHR are engaged the relevant test to be applied by the courts is that of proportionality rather than Wednesbury unreasonableness.
What is the JR ground - procedural impropriatory?
Public decision makers failure to follow correct statutory procedure or to not act fairly
Duty to act fairly - common law fairness.
- Now focuses on consequences of non-compliance with the requirement
- Duty to act fairly – other side must be heard, (not in cases of national security or in emergency cases or of the rationing of resources) + The Rule against BIAS.
o What level of fairness is owed – vary depending on decision and context of issues. Question of the character of the decision-making body.
o Content of the right to be heard – notice of the case against the person, right to make representations, witnesses, legal representation and reasons.
o The rule against bias – direct bias – forms of interests giving rise – like financial interests. Indirect bias -objective test of whether someone would think bias was apparent.
Examples of bias in operation
- views formed in advance would be bad
- policy bias - assuming they do actually review it it’s okay to still reach same decision.
What is the JR ground - legitimate expectation?
Relates to an expectation of either a procedure or a benefit arising out of a representation made by a public body.
Procedural legitimate expectation
- A public body makes promises or represented that a particular procedure will be followed before a decision is made
- Where there has been an established practice for public body to use a particular procedure
Substantive legitimate expectations
- Where an assurance or promise has led a person to believe they will receive a particular tangible benefit.
Courts approach
- Has an expectation arisen
- If so if the expectation legitimate
o Promise needs clarity, and reasonably understood by whom it was made
o Knowledge is a requirement from the promisor
o Detrimental reliance should be there but may not be
- Has the public body lawfully frustrated the legitimate expectations
o Whether there was sufficient public interest to override the legitimate expectation.
