Judicial Review Flashcards
Name the 4 essential preconditions for the exercise of Judicial Review:
1 - Scope (Tripartite Test) - West v Sec. State for Scotland (1992)
2 - Standing (Leave to Raise Proceedings) - Case AXA General Insurance Ltd Petitioners evolved the standing test from ‘title and interest’ to sue, to ‘sufficient interest and directly affected’. NAME 2 CASES RELATED ( Rape Crisis Centre v Tyson[denied]; Scottish Old Peoples Welfare Council 1987[denied])
3 - Grounds of Review - Illegality, Irrationality, Procedural Impropriety, + Proportionality.
4 - Access to the Courts - ‘the final core prerequisite for JR is that access to the courts has not been prohibited or curtailed by statute’.
CONVENTION BASED JUDICIAL REVIEW: List the sections of the Human Rights Act 1998 with respect to i) Compatibility, ii) Standing, iii) Timing, iv) Grounds.
i) Compatibility = S. 6(1) HRA, it is unlawful for a public authority to act in a way which is incompatible with a convention right. S. 7(1) and S. 9(1) HRA = actions alleging a breach of Convention rights by a public authority must be brought by judicial review in Scotland.
ii) Standing = Not Axa’s ‘sufficient interest’ but instead the ‘Victim’ test (S. 7(3) HRA, Art. 34 ECHR)
S. 7(3) HRA = If the proceedings are brought on an application for JUDICIAL REVIEW, the applicant is to be taken to have a SUFFICIENT INTEREST in relation to the unlawful act only if he is, or would be, a VICTIM of that act.
iii) Timing = S. 7(5) HRA, Action must be brought within one year of the alleged breach. (*Different from Common Law JR timing, P.8 of Handbook)
iv) Grounds = Proportionality.
What did the following CASE establish:
West v Secretary of State for Scotland (1992)
LEADING AUTHORITY DEFINING THE SCOPE OF THE SUPERVISORY JURISDICTION, AKA JUDICIAL REVIEW
PRE- AXA Tripartite Test for Determining SCOPE of Judicial Review = Judicial Review is appropriate when it involves a person/body to whom the jurisdiction, power/authority has been delegated/entrusted, the person/body by whom it has been delegated/entrusted and the person(s) in respect of or for whose benefit that jurisdiction, power, or authority is to be exercised.
- Prison officer refused discretionary reimbursement for removal expenses. Was this a private or public matter? If private, is not subject to JR.
- Defined the Grounds, Scope, and Nature of J.R.
- Held, Inner House Dismissed (Affirming outter house).
Gave guidance as follows:
- JR exists not to review merits of a decision, but to determine if a decision maker abused or exceeded its power, or failed to perform its duty.
- No substantial difference between ENG/SCOT in determining Grounds of Review (illegality, irrationality, procedural impropriety, proportionality)
- petitioners concern didn’t relate to jurisdiction but more so the merits of the decision - therefore this was held and employee v employer dispute (private) and was dismissed (failed tripartite relationship test).
What did the following CASE establish:
AXA General Insurance LTD, Petitioners (2011)
Concerned the grounds for claiming damages in respect of Mesothelioma and Pleural Plaques (asbestos related). Retroactive Rights to damages based on asymptomatic pleural plaques is granted in Scotland, but remains inactionable in England (Rothwell test).
AXA petitions this decision.
In relation to Judicial Review, this case was huge!
**Capacity to Petition for Judicial Review (Locus standi, leave to raise proceedings) - Does AXA have this?
This Case evolved the test from ‘Title and Interest’ to sue, to ‘Sufficient Interest and Directly Affected’.
2 Cases: (Rape Crisis Centre v Tyson [denied standing]; Scottish Old Peoples Welfare Council 1987 [denied standing = they lacked ‘title and interest’ (the test at the time, PRE- AXA) because they were not suing as a body of potential claimants but as a body working to protect and advance interests of the aged]).
What did the following CASE establish:
CCSU v Minister for civil Service (1985)
GCHQ!!!!!!!!!!
The Case established the Grounds for Judicial Review:
1 - ILLEGALITY (any act done without legal authority) (Error of law, Error of fact, Irrelevant considerations, Improper purpose, Bad faith, improper delegation, Unlawful fettering of discretion)
2 - IRRATIONALITY (Wednesbury Unreasonableness) (“the effect of the legislation is not to the court up as an arbiter of the correctness of one view over the another”) - Hence how strict the ruling of irrationality is.
3 - PROCEDURAL IMPROPRIETY (Compliance with Procedural Requirements, Natural Justice: The Rule Against Bias, Natural Justice: The right to a hearing and the duty to act fairly, Fairness and Legitimate Expectations, Fairness and Duty to give reasons)
4 - In the future, PROPORTIONALITY!
What did the following CASE establish:
Associated Provincial Picture Houses v Wednesbury Corporation (1948)
THE GROUND OF IRRATIONALITY IN J.R.
Very strict test: L Greene “a conclusion so unreasonable that no reasonable authority could ever have come it”. “outrageous and defiance of logic” - L Diplock
Details: Films screened on sundays - No children (U15) allowed to view films on sundays unless accompanied by an adult. APPH sought JR based on the position of the Wednesbury Council. It wasn’t ultra vires nor illegal - the UNREASONABLENESS ground is substantive, meaning the court must consider the merits of the decision not merely its legality.
Critique: Only very high standard of unreasonableness cases actually deemed irrational. Very hard to meet this test.
Case of: EX Parte Smith (1996) - also widened Wednesbury scope pre HRA 1998. (scrutinized it)
EXPLAIN THE GROUND OF REVIEW KNOWN AS PROPORTIONALITY, WITH RESPECT TO JUDICIAL REVIEW
Proportionality widens the scope of the Wednesbury Unreasonable Test, it is a feature of both the ECJ and ECHR.
-it involves a more rigorous examination of the relationship between administrative ends and means, and it must now be applied where reliance is placed on a convention right.
2 IMPORTANT POINTS:
i) ‘The greater intensity of JR which is required by the proportionality test does not arise in domestic law where there is no engagement of a convention right and no fundamental right is in play’ (i.e., proportionality isn’t concerned domestically with a non-convention claim)
ii) It should not be assumed that judicial Deference does not have a place in respect to proportionality; i.e., a person in power makes a lawful decision which unfortunately happens to affect someone negatively. The courts require to accord a degree of latitude to the primary decision-maker.
What did the following CASES establish:
“BROMLEY V LONDON COUNCIL (1983)”
JR - Illegality - Excess of Powers!
When a body has been entrusted with powers and then exceeds those powers, it acts ultra vires and is invalid.
BROMLEY = local authority has a fiduciary relationship with rate payers (a relationship of trust) - held, change in transportation rates incompatible with fiduciary duty.
What did the following CASE establish:
EX Parte VENABLES (1998)
JR - Illegality - Error of Law
-determining the tariff period for two young 8 year old murders. Both given life sentences, determined by home secretary.
HELD, the governing statute requires the Home Secretary to have regard to the best interest of the Defendant children. His action was unlawful.
What did the following CASES establish:
Young v Fife Regional Council (1986)
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Contrast with:
“The Carltona Principle” (1943)
JR - ILLEGALITY - Unlawful Delegation
Held, Committee tasked with decision maker status could not rely on subcommittee to make decision.
(sometimes delegates cannot further delegate)
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The Carltona Principle = Officials are taken to be the alter ego of their ministers. HELD, not an unlawful delegation. E.g., MP delegates work to his chief of staff.
What did the following CASE establish:
Miss Behavin’ v Belfast CC (2007)
JR - ILLEGALITY - UNLAWFUL FETTERING OF DISCRETION
Blanket bans can be justified, even with engagement of convention rights.
Belfast can ban sex-shops based on proximity to schools and areas where families traverse.
HELD, in favour of Belfast CC.
What did the following CASE establish:
Highland Reg. Council v British Railways (1996)
JR - ILLEGALITY - IMPROPER USE
HELD, Ghost Trains were used to keep alive the specific train routes and that was an improper purpose.
What did the following CASE establish:
R (Begum) v Denbigh H.School (2006)
JR - PROPORTIONALITY
-School ban of religious attire = Lawful.
No infringements of convention rights on the basis of Proportionality (different school have different policies, it is a matter for the school to decide based on the makeup of the student body).
**
-Also, the UK government has made a lawful Reservation to a Convention article under art. 64 (right to have a reservation); For Protocol 1, Art. 2 regarding education:
“Article 64 of the Convention allows a state to enter a reservation when a law in force is not in conformity with a Convention provision. The United Kingdom is a party to the First Protocol to the Convention, but has a reservation in place in respect of Article 2 of the Protocol. Article 2 sets out two principles. The first states that no person shall be denied the right to education. The second is that, in exercising any functions in relation to education and teaching, the State shall respect the right of parents to ensure that such education and teaching is in conformity with their own religious and philosophical convictions. The reservation makes it clear that the United Kingdom accepts this second principle only so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure. (perhaps relevant - if the religious attire were to affect the ‘provision of efficient instruction and training’)
What did the following CASE establish:
Irvine v Royal Burgess Golf Soc. of Edin (2004)
JR - Procedural Impropriety - Natural Justice and Fairness, Breach of an implied provision of the Common Law
Concerned a person not being allowed to joined golf club as a member.
HELD, Burgess had little regard for natural justice or fairness here. Held, in favour of Irvine.
What did the following CASE reinforce:
Walsh v Secretary of State (1990)
JR - Procedural Impropriety - Legitimate Expectation
Held, a legitimate expectation to be released from prison on the originally appointed date of release.
