judicial review

Question 1

what is judicial review

Answer 1

• claimants ask the courts to review the legality of government action
• predominantly a common law field

Question 2

bodies amenable to judicial review

Answer 2

(1) bodies exercising statutory functions
(2) bodies exercising prerogative powers
(3) bodies that exercise a ‘public function’

Question 3

What is the judicial review problem question process?

Answer 3

(1) scope and standing (sufficient interest test)
(2) grounds of review
(3) remedies

Question 4

grounds of review - Lord Diplock’s List

Answer 4

1. Illegality
2. Irrationality
3. Procedural Impropriety

Question 5

Illegality

Answer 5

• By “illegality”… I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it…
• Principle in Entick v Carrington

Question 6

Irrationality

Answer 6

‘By “irrationality” I mean what can now be succinctly referred to as ‘Wednesbury unreasonableness”. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’

Question 7

Procedural Impropriety

Answer 7

”..depends on the subject matter of the decision, the executive functions of the decision-maker… and the particular circumstances in which the decision came to be made.’
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the ‘GCHQ case’)

Question 8

The concept of jurisdiction

Answer 8

• Jurisdiction - the scope of an authority’s power
• under the new test, all questions of law are treated as jurisdictional (and hence to be determined by the court)

Question 9

Anisminic Ltd v Foreign Compensation Commission [1969]

Answer 9

Anisminic sought judicial review, claiming that the Foreign Compensation Commission misinterpreted the eligibility criteria in the Foreign Compensation Act 1950. But Anisminic was limited by Foreign Compensation Act 1950, s 4(4) ouster clause:
‘The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.’
The majority in the House of Lords held that:
the Foreign Compensation Commission had made a jurisdictional error; the ouster clause did not prevent the court from correcting jurisdictional errors.

Question 10

Lord Browne-Wilkinson’s endorsement of the new approach in R v Hull University Visitor, ex parte Page [1993]

Answer 10

‘[I]n general any error of law made by an administrative tribunal or inferior court in reaching its decision can be quashed for error of law.’

Question 11

Error of Fact

Answer 11

• Mere error of fact (unlike mere error of law) is not a ground of review.
• But:
  
  • the court will quash a decision if there is an error of fact that gives rise to unfairness and is ‘uncontentious and objectively verifiable’ (E v Home Secretary [2004] EWCA
    Civ 49, [66]);
• some jurisdictional facts’ can be corrected by the courts even if not objectively verifiable (e.g., R (A) v Croydon LBC [2009])

Question 12

R (A) v Croydon London Borough Council [2009]

Answer 12

• The Children Act 1989, s 20(1): ‘Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation’.
• Lady Hale:
  
  • The question whether a person is a child is a jurisdictional fact’ for the court to determine.
  • The question whether a child is in need is to be determined by the local authority as it ‘requires a number of different value judgments’.

courts can determine some jurisdictional facts

Question 13

R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport [1993]

Answer 13

• Fair Trading Act 1963, s 64(3):
  
  • If acquisitions of companies affect ‘a substantial part of the United Kingdom’, the Monopolies and Mergers Commission may investigate.
• Lord Mustill:
  
  • The meaning of this criterion (‘a substantial part’) is for the court, even if ‘opinions might legitimately differ’.
  • The correct meaning is that the criterion is vague.
  • The vague criterion leaves the Commission with discretion.

Question 14

what is discretionary power?

Answer 14

• discretionary power is the power to choose
• If the executive has a discretion, the law does not require a particular decision.
  ‘[Discretion… is most at home in referring to powers delegated within a system of authority to an official or set of officials, where they have some significant scope for settling the reasons and standards according to which that power is to be exercised, and for applying them in the making of specific decisions.’

DJ Galligan, Discretionary Powers (Clarendon Press 1986)

Question 15

why does statute grant discretionary power

Answer 15

• Statutes grant discretionary [powers for various reasons:
  
  • governments may want to draft legislation in a way that leaves their options open
  • discretionary powers can be responsive to particular circumstances.
  • rigid rules are ‘over-inclusive’ and ‘under-inclusive’
• But there is a risk of arbitrary government, which is contrary to the rule of law

Question 16

example of discretionary power

Answer 16

• Immigration Act 1971
• 3.(5) A person who is not a British citizen is liable to deportation from the United Kingdom -
  
  • (a) if the Secretary of State deems his deportation to be conducive to the public good

Question 17

Padfield v Minister of Agriculture

Answer 17

• The Minister refused to refer the complaint to the committee
• Padfield sought judicial review of the Minister’s decision not to refer the complaint to the committee
• the House of Lords (4:1) held that the Minister had taken into account irrelevant considerations and acted for an improper purpose
• Lord Reid:
  
  • ‘Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act, the policy and objects of the Act must be determined by constructing the Act as a whole and construction is always a matter of law for the court.

Question 18

Common Law Constraints on Discretion

Answer 18

The court will quash the decision if the decision maker has:

• taken into account an irrelevant consideration (or failed to take into account a mandatory relevant consideration);
• acted for an improper purpose;
• unlawfully delegated their discretion;
• unlawfully fettered their discretion (e.g., by following an over-rigid policy laid down in advance); or
• made a decision that is Wednesbury unreasonable or irrational.

Question 19

R v Foreign Secretary, ex parte World Development Movement [1995] (Pergau Dam)

Answer 19

• In return for financial assistance from the UK, Malaysia would buy British fighter aircraft
• IN 1993, the Foreign Secretary committed £234 million to build the Pergau dam
• The National Audit Office, among others, considered the UK’s funding of the dam to be a waste of money
• WDM sought judicial review
• • The court quashed the Foreign Secretary’s decision.
• Rose LJ:
  ‘[lt is, as it seems to me, a matter for the courts and not for the Secretary of State to determine whether, on the evidence before the court, the particular conduct was, or was not, within the statutory purpose.’
• The statutory power in s 1(1) of the Act to provide assistance for the purpose of promoting development did not include economically ‘unsound developmental purposes’.

Question 20

R (Corner House Research) v Director of the Serious Fraud Office [2009]

Answer 20

• the Serious Fraud Office (SFO) started investigating alleged corruption by BAE Systems in negotiating contracts with Saudi Arabia
• UK government warned the Director of the SFO that the investigation would damage commercial and intelligence-sharing relations between the UK and Saudi Arabia
• Following threats from the Saudis, the Director eventually decided to stop the investigation

The Divisional Court

• Held that the Director had unlawfully surrendered to the threat.

The House of Lords

• Lady Hale:
  ‘The only question is whether it was lawful for [the Director] to take [the threat and national security risk] into account. … Put like this, it is difficult to reach any other conclusion than that it was indeed lawful for him to take this into account.’
• It was for the Director to balance the various relevant considerations.