Judicial Review Flashcards
What is the purpose of judicial review?
It reviews government (the executive’s) actions to ensure the government does not act illegally or beyond its powers.
JR reviews:
a) government secondary legislation (SIs), Orders or decisions passed under an Act;
b) government/public bodies’ (e.g. police) use of powers under an Act; and
c) royal prerogatives and the use of those royal prerogatives (if such RPs are “justiciable”)
What is the test to use to see if a defendant is a public body?
Datafin two-stage test:
1) Source of power: has the body been set up by an Act of Parliament, secondary legislation or royal prerogative (instead of contractual or a private enterprise)? if no,
2) Nature of power: does the defendant carry out or provide public services?
When are damages available in a judicial review claim?
In a claim for judicial review, a claimant can only be awarded damages if they can establish that their private law rights have been infringed. However, damages are not available purely for the infringement of a public law right (ex p Maguire (above)).
What are the 5 preliminary considerations regarding the availability of judicial review?
- Amenability
- Procedural exclusivity
- Standing
- Time limits
- Ouster clauses (where relevant)
What is amenability (JR)?
The idea that only public law decisions are appropriate for judicial review.
Usually when the decision is made by a public body carrying out a public function almost always through the exercise of some form of statutory power.
- Usually if a body was created by or exercised power pursuant to statute its decision would normally be amenable to judicial review.
- includes bodies which exercise a public law function or if its functions have public law consequences
- also includes self-regulatory authorities e.g. bar council (if authority had not already been in existence, Parliament would have intervened to regulate the activity - but for) UNLESS of a private nature or are in no sense governmental eg Jockey Club
- ‘contracting-out’ ask whether the org is under any ongoing statutory controls.
What is procedural exclusivity?
The idea that judicial review is the exclusive procedure for challenging public law decisions.
Exceptions:
- neither party objects to the use of private law procedure
- when the contested decision is collateral ie arises out of some other legal claim
What is standing?
The particular applicant must have standing to bring a claim - sufficient interest in the matter to which the applicant relates.
“sufficient interest test”: mix of law and fact
As well as individuals directly effected by the decision, Associations and representative groups, pressure and interest groups and ‘concerned citizens’ can also bring claims.
What is an association (JR)?
Associations are made up of individuals who would themselves be seen to have sufficient interest - courts are generally content to allow that association standing to challenge a matter in the communal interest.
Do pressure groups and interest groups have standing?
They can have standing - courts will consider:
- importance of vindicating the rule of law
- the likely absence of any other responsible challenger
- the nature of the breach of duty (seriousness)
- expertise of the challengers in this area.
For a pressure group acting on behalf of an individual or people, they must be directly affected or have sufficient standing, reputation, presence, experience and expertise and should be the main pressure group for that particular issue.
Can “concerned citizens” bring claims?
- Sometimes, the issue will turn on the facts. Court will consider if there are more directly interested challengers.
‘Sincere concern” - rees-mogg allowed to challenge signing og the treaty of maastricht
What is the time limit for binging a judicial review claim?
a) promptly
b) no later than 3 months after the grounds to make the claim arose.
Judicial review can sometimes be refused even if a claim is not filed promptly (even if it was filed within three months.
Planning permission: six weeks
Public procurement: 30 days
What is a JR ouster clause?
A legislative provision which excludes the jurisdiction of the court to conduct to conduct judicial review
Total ouster clause - completely excludes it. Very rare.
Courts do not like these clauses as they represent a challenge to the rule of law.
If an ouster clause restricts the 3 month time limit to a shorter period the courts will usually accept this.
What is the presumption regarding ouster clauses for JR?
Modern take: extremely strong presumption of statutory interpretation the Parliament does not intend to exclude judicial review.
Need very explicit exclusions
i.e. an illegal decision was found outside remit of ouster clause because as it was illegal it was not a determination for the purposes of the ouster clause.
Can potential parties to a judicial review claim agree an extension of the time limit by consent?
No they cannot.
What are the stages of making a judicial review claim?
- An ex parte application for permission must be made to the Administrative Court or Tribunal. An applicant will only be granted permission if they have standing (“sufficient interest”) in the matter before them, the application is made within time or there is good reason for delay and there is an arguable case.
- The inter partes hearing (both sides involved): this is where applicants will present the ground to challenge the decision.
What are the remedies of judicial review?
Specific to judicial review (prerogative orders):
1. Quashing order
2. Prohibitory order
3. Mandatory order
General:
4: Declaration
5. Injunction
6. Damages
These remedies are discretionary in nature. They can be awarded on both an interim and final basis.
JR: Quashing order
This is the most common remedy. It overturns the impugned decision, and the public body must then take the decision again, applying the correct law or following a fair procedure
JR: Prohibitory order
This prevents a public body from acting or continuing to act unlawfully
JR: Mandatory order
This compels the public body to perform a public law duty imposed by law
JR: Declaration
The court may declare what the legal position is, or what the rights of the parties are. This does not question the public body’s exercise of the power. Declarations can be made without any other order or alongside other others.
JR: Injunction
This order a party to perform or refrain from performing a specific act. Injunctions are relatively rare as prohibiting and mandatory orders effectively do the same thing. However, they are sometimes granted at the permission stage of the proceedings as a form of interim relief - either before of after permission is granted.
JR: Damages
These may be awarded but only if wither (i) the court is satisfied that damages could have been awarded in a private law action or (ii) the public body has breached its duties under the HRA 1998.
What if alternative remedies are available to the claimant besides judicial review?
The court can refuse permission to bring a judicial review claim or refuse an interim or final remedy.
What does acting ultra vires mean?
That a public body is not entitles to act beyond (ultra vires) its powers.
What is meant by ‘illegality’ as a ground for judicial review?
Illegality reflects the traditional doctrine of ultra vires. Means that the exercise of power has been outside the limits given to the executive prescribed by the governing legislation.
What are the subcategories of illegality?
- Simple illegality (ultra vires)
- Errors of law
- Errors of fact
- Abuse of discretion
- Retention of discretion
What is simple illegality (ultra vires)?
Narrow sense: refers to a decision that goes beyond the boundaries of legal power given to the body concerned.
E.g. Secretary of State for Health passing regulations governing the deployment of armed forces.
- not unlawful if it does something reasonably incidental e.g. power to build public lavatories could also be used to build a road to access them
ALSO
Principle of legality: presumes Parliament did not intend to authorise the infringement of fundamental or ‘constitutional’ rights and cardinal principles of the rule of law unless it had given very specific statutory authorisation.
What are “errors of law”?
Typically involves the decision-maker making a mistake regarding a question of law e.g. misinterpreting the meaning of words in a legislative provision.
Exceptions to reviewability:
- where the error of law is not decisive - ‘but for’ the error concerned the decision would have been different
- special system of rules, where parliament provides decision at first instance of an inferior court was to be binding, application of review of a superior court.
- where power granted is so imprecise it is capable of being interpreted in a wide range of different wats
What are “errors of fact”?
Where the decision-maker makes a mistake of fact when deliberating on a decision. Three types:
1) Precedent facts: where a decision-maker’s power to decide on a particular matter depends on it making an initial finding of fact.
e.g. power to compulsorily purchase land that is not parkland but the land is in fact parkland. Power to detain ‘illegal entrant’ - power to review facts to ensure person is an illegal entrant.
2) No evidence for a fact: where a finding of fact on which a decision is based is not supported by any evidence.
3) Ignorance or Mistakes of an established fact: An established fact, which is material to the decision is ignored or misunderstood.
four-part test:
1. there must be a mistake as to an existing fact
2. the fact or evidence must have been established in the sense that it was uncontentious and objectively verifiable.
3. the appellant or advisors must not have been responsible for the mistake
4. the mistake must have been material (but not necessarily decisive) in the tribunal’s reasoning
Abuse of discretion
i) failing to take a relevant consideration into account OR taking an irrelevant consideration into account
Factors:
1. Mandatory factors: identified by the statute as considerations to which regard must be had
2. Prohibitory factors: identified by the statute as considerations to which regard must not be had
Failing to take into account 1 or taking into account 2 is unlawful
3. Discretionary factors: can choose to take into account if they wish - not unlawful if they are not irrational considerations and has taken other appropriate considerations into account as well.
ii) using the power for an improper purpose: should only use powers for the purpose it was given
