Judicial Review

Question 1

When can JR not be used?

Answer 1

When the decision is interim
When there is an appeals process to follow

Question 2

What kind of legislation can JR review?

Answer 2

Secondary only

Question 3

What are the 3 domestic grounds for JR?

Answer 3

Illegality
Irrationality
Procedural impropriety

Question 4

What are the 2 European grounds JR claims can be made under?

Answer 4

Breach of ECHR
Breach of retained EU law

Question 5

What are some examples of public bodies (therefore amenable to JR)?

Answer 5

NHS, Passport Office, General Medical Council and HM Courts Service

Question 6

What are the heads of illegality?

Answer 6

Acting without legal authority (ultra vires)

Delegation

Fettering of discretion

Using powers for improper / unauthorised purpose

Dual purposes

Not taking into account relevant considerations / taking into account irrelevant considerations

Errors of law / errors of fact

Question 7

What are the 2 exceptions to not being able to delegate under illegality?

Answer 7

Carltona principle - government ministers can delegate decision making powers to civil servants in their departments

S 101 Local Government Act - LAs can delegate decision-making powers to committees or individuals officers, provided they have passed a formal resolution to do so

Question 8

What are the two ways of fettering of discretion?

Answer 8

1. Applying the policy too rigidly
2. Acting under the dictation of another

Question 9

What is the dual purpose grounds for JR under illegality?

Answer 9

The decision-maker should not use its powers to cover two or more different purposes, if one or more of those purposes has unlawful and materially influenced the decision

If the authorised purpose was the dominant purpose, then the decision will stand

Question 10

If there are dual purposes behind a decision, what are the 2 tests to be considered?

Answer 10

Westminster test = primary purpose test, i.e. where there are two reasons given for a decision, provided the permitted purpose is the primary / main reasoning for the decision, then the decision will not be ultra vires

ILEA test = modifies above, so where the unauthorised purpose materially influenced the decision, then the decision will be unlawful

Question 11

If a public authority has made an error of law, will this always be amenable to JR?

Answer 11

Yes

Question 12

If a public authority has made an error of fact, will this always be amenable to JR?

Answer 12

No - under Khawaja, only decisions based on alleged errors of fact that go to the root of a public authority’s capacity to act are reviewable = jurisdictional error of fact

NOTE THEREFORE THAT THIS CAN ONLY APPLY TO ACTS OF PARLIAMENT

Question 13

What constitutes an error of law?

Answer 13

The decision-maker misunderstands its powers

Question 14

What constitutes a jurisdictional error of fact? (I.e. the only type of error of fact which is amenable to JR)

Answer 14

Decision maker makes a mistake as to a fact that must be in place to trigger the use of the power

Question 15

What is the Wednesbury threshold for the grounds of irrationality for JR?

Answer 15

“So unreasonable that no reasonable authority could ever have come to it”

Question 16

What are the grounds under which a claim for JR based on procedural impropriety may be brought?

Answer 16

Rule against bias

Rights to a fair hearing

Question 17

If a decision maker is deemed to have a direct interest in a decision (e.g. pecuniary), what is the most likely outcome from the court?

Answer 17

Decision will be quashed

Question 18

If a decision maker is deemed to have an indirect interest in a decision, what is the most likely outcome from the court?

Answer 18

Court will look for “apparent bias” (Porter v McGill), i.e. how the decision would appear to an observer

Question 19

What will the courts consider in establishing the obligation on the decision maker to act in good faith and listen to both sides?

Answer 19

How much the claimant had to lose in the decision

Question 20

What are the 3 categories of claimants, for the purposes of establishing the right to a fair hearing?

Answer 20

Forfeiture cases - where claimant has most to lose, e.g. job or livelihood

Legitimate expectation cases - legitimate for claimant to expect particular outcome, e.g. renewal or licence

Application cases - first-time applicant, not entitled to expect as much from hearing

Question 21

For each category of claimant, what is the standard expected for fair trial?

Answer 21

Forfeiture = claimant has right to know case against them and have right to reply at each stage of decision making process

LE = nature of hearing depends on expectation that decision-maker has created

Application = general rule that applicants are entitled to have their cases heard honestly and without bias

Question 22

Is there an automatic right to know the decisions maker’s reasoning for a decision?

Answer 22

No

Exceptions = when decision looks wrong, or reasons are required to challenge legality of a decision

Question 23

What is procedural ultra vires?

Answer 23

The consideration of statutory procedural requirements given in the wording of some Acts of Parliament

Found to be either mandatory or directory

Question 24

If procedural wording in an Act of Parliament is found to be mandatory, what is the outcome if a decision from a public authority is found to not follow this?

Answer 24

Decision invalid

Question 25

Where a claimant is substantially prejudiced by non-compliance with an important procedural safeguard, how are the courts likely to rule a procedural requirement as?

Answer 25

Mandatory - therefore procedural breach would invalidate decision

Question 26

What is the test from Datafin?

Answer 26

Used to establish what constitutes a public body

1. Consider source of power - i.e. if set up by statute, delegated decision, or under a reviewable prerogative power

If not satisfied, then 2. Consider nature of power

Question 27

When does someone automatically have standing to bring a claim in JR?

Answer 27

If personally affected by a decision made

Question 28

What are the 5 factors to consider when establishing if a pressure group has standing to bring a claim in JR?

Answer 28

1. The need to uphold the rule of law
2. The importance of the issue raised
3. The likely absence of any other responsible challenger
4. The nature of the alleged breach of duty, and
5. The role of the pressure group

Question 29

Can a pressure group bring a claim under JR for breach of a Convention right?

Answer 29

No as are not a victim under HRA

Question 30

What is the time limit on bringing a claim for JR?

Answer 30

Promptly, without undue delay, and within 3 months of decision upon which claim is formed

Time limits can be extended by courts, but only if there is good reason

6 weeks for planning acts

Question 31

What is the impact of a full ouster clause in an Act?

Answer 31

Attempt to allow no right to challenge decisions - however cannot protect decisions that were never legally valid

Anisminic - full ouster clause will not protect decisions that are “nullities”

Question 32

What is the impact of a partial ouster clause in an Act?

Answer 32

Allow some opportunity for challenge but will impose additional restrictions to ability to raise a challenge

Question 33

Is a partial ouster clause which restricts the period to appeal valid?

Answer 33

Yes - and court has no discretion to extend the time limit, even if there are good reasons for the delay

Question 34

What are the key elements of the Pre-Action Protocol for JR claims which should be complied with?

Answer 34

Send a letter before claim to decision-maker

If no response within 14 days, issue proceedings

Question 35

What are the 2 stages of a JR claim?

Answer 35

1. Permission stage - court consider claimant’s standing and merit
2. Substantive stage - hearing before judge in Administrative Court

Question 36

What is the main court order that a claimant seeks as a remedy in JR?

Answer 36

Prerogative orders

Question 37

What are the different types of prerogative orders?

Answer 37

Quashing order - decision has no legal effect

Prohibiting order - orders public body to refrain from acting beyond powers

Mandatory order - compels public body to carry out duties required by law

Question 38

What are non-prerogative orders?

Answer 38

Private law remedies which can be obtained in JR proceedings in particular circumstances

Question 39

What non-prerogative orders are available?

Answer 39

Declaration of the Court - confirming party’s legal right or position

Injunction

Damages - can be awarded where damages would have been awarded in a civil claim, therefore requires claimant to have private law cause of action

Question 40

What is the significance of R (Jackson) v Attorney General regarding the courts’ ability to determine whether an Act has been passed correctly?

Answer 40

Can consider whether an Act has been passed correctly when the question relates to the legitimacy of the parliamentary process

Question 41

Where a statute is silent as to procedure, what is the common law position regarding a fair hearing?

Answer 41

Common law rule requiring a fair hearing allows ground of challenge - requires that a person affected by a decision should have a fair chance to put their case