Judicial Review

Question 1

Judicial review

Answer 1

Mechanism by which the courts ensure that public bodies act within the
powers that they have been granted and do not exceed or abuse those powers.

Question 2

Grounds for JR

Answer 2

(a) illegality;
(b) irrationality; and
(c) procedural impropriety.

Question 3

Grounds for JR - Illegality

Answer 3

An action is illegal or ultra vires if it is beyond the powers of the public body in question
either because the powers claimed do not exist, or because they are exceeded or abused.

Acting without legal authority - without relevant power eg. statute.

Cannot use powers for an improper or unauthorised purpose e.g. demanding payment for TV licences even though they got new ones before prices went up.

Question 4

Grounds for JR - Illegality - rule against delegation

Answer 4

General rule that decision- making powers, once given by Parliament, cannot
then be further delegated, or ‘sub- delegated’.

Exceptions:
(a) The ‘Carltona principle’
Convention of individual
ministerial responsibility - government ministers are
ultimately responsible to Parliament for their departments, so there is an expectation that they act through their civil servants in taking even major decisions.
(b) Local Government Act 1972, s 101
Local authorities may delegate decision making powers to committees, sub- committees or to individual officers, provided they make a formal resolution so to do.

Question 5

Grounds for JR - Illegality - ‘Fettering’ of discretion

Answer 5

If Parliament provides a public body with a discretionary power, the courts will not permit that body to restrict or ‘fetter’ such discretion.

2 ways:
(a) acting under the dictation of another
Public authorities cannot act under the dictation of another person or body e.g. have power to make policy in area but refuse something unless another minister agrees.

OR

(b) applying a general policy as to the exercise of discretion in too strict a manner.
Policies should preclude the body from considering
individual cases.

Question 6

Grounds for JR - Illegality - Dual purposes

Answer 6

What happens when decision based on 2 considerations - one relevant and one irrelevant?

Primary purpose test - if primary purpose the permitted/authorised purpose then its fine.

Material purpose test - Was the authority pursuing an unauthorised purpose, which
materially influenced the making of its decision?

Question 7

Grounds for JR - Illegality - Errors of fact

Answer 7

Courts reluctant to allow JR for errors of fact.

Some areas they will look at:

(a) ‘Jurisdictional’ errors of fact
Decisions based on alleged errors of fact that go to
the root of a public authority’s capacity to act (ie ‘jurisdictional’ or ‘precedent’ facts) are
reviewable.

Question 8

Grounds for JR - Illegality - Errors of law

Answer 8

Errors of law that affect a decision will always be amenable to judicial review.

Question 9

Grounds for JR - Irrationality

Answer 9

Require proof of a very high
degree of unreasonableness.

Wednesbury test = where a decision is ‘so unreasonable’ that ‘no reasonable authority could ever have come to it’

CSSU = ‘so outrageous’ in its defiance of logic that ‘no sensible person’ could have reached it.

Question 10

Grounds for JR - Procedural impropriety

Answer 10

A ground for challenge based on the way in which a decision
has been reached (‘procedure’).

Question 11

Grounds for JR - Procedural impropriety - Procedural fairness/natural justice

Answer 11

Common law rules.

1. The right to fair hearing
2. The rule against bias

Question 12

Grounds for JR - Procedural impropriety - Procedural fairness/natural justice - the rule against bias

Answer 12

Can challenge decisions where the decision- maker is or appears to be biased.

2 categories of bias:

1. Direct interest
   The decision- maker should not judge in their own cause.
   If they receive a pecuniary advantage as result of their decision, it will automatically be
   void.
   The same principle applies if they have a shared commitment or belief with one of the parties in the case.
2. Indirect interest
   The test is whether a fair- minded and informed observer would conclude that there was a real possibility of bias.

Question 13

Grounds for JR - Procedural impropriety - Procedural fairness/natural justice - right to fair hearing

Answer 13

The rules of natural justice demand that a hearing should
be fair in all the circumstances.

The right is flexible and depends on the context of each individual case.

One factor determining whether a hearing has been fair is how much the C had to lose/nature of C’s interest:

(a) Forfeiture cases:
Where the claimant had the most to lose, such as their livelihood or job.
Such claimants are entitled to expect a lot more from their hearing for it to be
considered to amount to a fair hearing.

(b) Legitimate expectation cases:
Cases where it was legitimate for the claimant to expect
that an established practice would continue, when seeking the renewal or confirmation
of some licence, membership or office that they have held previously.
Also includes those seeking renewal of some form of payment (such as state benefits).

(c) Application cases:
Where the claimant is the first- time applicant who merely seeks a licence, membership or office that they have not held previously.
Entitled to expect a lot less from their hearing for it to be considered to amount to a fair
hearing.

The ‘right to a fair hearing’ may not apply in certain situations, e.g. if a decision that
has been made is merely ‘preliminary’.

No duty to give reasons for decisions. Unless:
* where the legal subject matter is particularly important;
* where the decision appears aberrant (completely wrong).

Question 14

Grounds for JR - Procedural impropriety - Procedural ultra vires

Answer 14

Useful starting point - Mandatory or discretionary requirements? If mandatory decision invalid.
Take into account wording of statute. Whether C is substantially prejudiced by non- compliance with an important procedural safeguard.

Ultimately - whether a procedure set within a statute should be followed depends on
Parliament’s intention in the face of its breach - would they have intended invalidity of decision taken?

Question 15

Grounds for JR -Legitimate expectations

Answer 15

Normally squeezed under one or all of the traditional categories e.g. illegality, procedural impropriety, irrationality.

A legitimate expectation, either procedural or substantive, can arise as a result of a
promise made by a decision- maker. The promise should be honoured unless public
interest prevails.

Question 16

The principle of ‘procedural exclusivity’

Answer 16

Requires that, in a ‘public law case’, the judicial review
procedure should normally be followed, rather than the ordinary private law procedure.

Exception:
Where a case involves both private and public law - public law element may be raised in private law proceedings.

Question 17

Identity of the decision- maker

Answer 17

Claimants can seek judicial review only of decisions made by public bodies.

• Source of power test
  If the body making a decision
  has been set up under statute or under delegated legislation, or derives its power under a
  reviewable prerogative power, then it is a public body.
  If this part of the test is not satisfied then the court goes on to apply…
• Nature of power test
  If the body making the decision is exercising public law functions, it may still be a public body.

Question 18

Standing in JR claims - requirement of ‘sufficient interest’

Answer 18

The courts will deem a claimant to have standing to bring a judicial review claim only if he has ‘sufficient interest in the matter to which a claim relates’.

Closely linked to the merits of the case.
Courts are unlikely to reject a valid judicial review claim simply on the grounds of a lack of standing.

5 factors in deciding whether a pressure group has standing:
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 19

Making a claim for judicial review

Answer 19

Dealt with by the Administrative Court, a specialist court within the High Court.

• Time limit to make claim - 3 months since grounds.
• 6 weeks for cases within planning acts.
• Public procurement cases (where a public authority acquires supplies or services) - 30 days.

These are max time limits. Court to refuse a claim where it feels there has been ‘undue delay’. Should be made promptly.

Court do have discretion to extend time limit for good reason.

Question 20

Exclusion of the courts’ judicial review jurisdiction

Answer 20

• Ouster clauses
  Inserted by Parliament into such Acts where it wishes to exclude any right
  of challenge once a decision has been made by a public body.
• Full ouster clauses
  Purports to allow no right of challenge at all, and which
  attempts to exclude the courts from playing any role in review of the decision.
  Courts decided only protect valid decisions. They can still review to decide if decision is valid.
• Partial ouster clauses
  Provides some opportunity for a decision to be challenged by way of judicial review e.g. shortened time period.
• Other statutory remedies
  The provision of an adequate statutory remedy for an aggrieved party, such as a right of appeal, may impliedly oust the courts’ judicial review jurisdiction.

Question 21

Procedure for bringing a judicial review claim

Answer 21

• Follow the Pre- Action Protocol for Judicial
  Review.
  Send letter to decision maker to give them 14 days to reconsider their decision.
• Stage 1: the permission stage
  Court considers whether the claimant has standing and
  whether the claim was begun in sufficient time.
  Court must not grant permission if improper conduct complained of would be highly likely not to have resulted in a substantially
  different outcome for the claimant. Court may disregard this requirement for
  reasons of exceptional public interest.
• Stage 2: the hearing of the claim for judicial review

Question 22

Remedies in judicial review - Public law remedies – the ‘prerogative orders’

Answer 22

Main orders that C can seek.

(a) Quashing order
Quashes decision. Does not usually substitute its own decision.

(b) Prohibiting order
Order a public body to refrain from acting beyond its powers.
E.g. assured would consult with taxi drivers, so now prohibited from implementing policy without consulting.

(c) Mandatory order
Enforce the performance by public bodies of the duties they are by law required to carry out.
E.g. refused to consider an app.

Question 23

Remedies in judicial review - Private law remedies – the ‘non- prerogative orders’

Answer 23

• Declaration
  A court order confirming, but not changing, the legal position or rights of
  the parties.
  Non-coercive so can be ignored.
  Good to establish legal position.
• Injunction
  To restrain a person or body from illegal action; eg a tort or breach of contract
• Damages
  If damages could have been awarded in a civil claim.