Judicial Review

Question 1

Explain what constitutional law entails?

Answer 1

• The framework of rules and practises for governing
• Establishes the system of government in a state
• Who has power and authority
• How power is controlled and divided
• However, power should be exercised and through which process
• Relationship between branches of government

Question 2

Explain what administrative law entails?

Answer 2

• Challenges abuse of power
• Ensuring the protection for rule of law and constitutional arrangements
• Protection of freedom and rights
• Ensuring people who govern are held accountable and are acting lawfully
• Other mechanisms of checking the executive: tribunals and ombudsman

Question 3

Explain what a political constitution is?

Answer 3

• Accountability is brought through a political process
• Checks from parliament: parliamentary process will control the executive
• Legitimacy of democratically elected parliament
• Limited role for the courts (scepticism of judge involvement in the constitution)
• Reliant on uncodified constitutional arrangements (conventions

Question 4

Explain what a legal constitution is?

Answer 4

• Legal scholars say that a political constitution is not sufficient to protect the rule of law
• Parliamentary control is ineffective
• Rule of law enforced by judges
• Significant checks from the courts (judicial review) (justiciability and constitutional review)
• Written and codified constitution
• Entrenched laws

Question 5

Administrative law in the UK:

Answer 5

• Specific redress route and institutions to challenge public authorities
• If an unlawful situation takes place redress routes provide directions which can be taken to solve them.
  AV Dicey was suspicious of droit administratif:
• Argued against specialist administrative courts because it was against the rule of law, as official were treated differently to ordinary citizens.
• part of the common law - ordinary law administered by Cours of general jurisdiction
• He concluded that ‘in England … the system of administrative law and the very principles on which it rests are in truth unknown’
• Political constitution: Parliament’s role to regulate and check the executive
• The executive has grown in strength and parliament is weaker

Question 6

What are the influences of administrative law?

Answer 6

• Crichel Down Affair (1954) - scandal in government, promise to a family to be able to buy land back after the war making the public question the reliability of government.
• Growth in public bodies services
• Development of administrative tribunals
• Welfare state
• Human Rights Act 1998
• Increase in legislation means more powers delegated to government - more scope
• More room for government discretion

Question 7

What is the purpose of administrative law and justice?

Answer 7

• Administrative law helps the government make the best decision and make sure these decisions are grounded in sufficient reason
  Control - provides a stop or break on unlawful exercise or abuse of power by governments or public bodies.
  Command - can make governments and public bodies perform their duties
  Principle of good administrative practise - facilitates food administrative practice
  Accountability and transparency - allows participation by interested individuals and parties in the process of government
  Remedy - it may provide a remedy for grievances caused by public authorities
  Upholding the rule of law - ensuring government only acts when it has lawful authority to do so and that government is equal before the law.

Question 8

Redress:

Answer 8

• Statute or guidance will set out the relevant redress process for your issues.

Question 9

Internal review/ appeal:

Answer 9

Personal Independent Payments:
- Before making a legal challenge some government decision have mandatory internal review (Mandatory reconsideration)
- 20-27% of decisions changed internally
- Can appeal to a tribunal if you’re not satisfied with reconsideration results.

Question 10

Specialist Review process:

Answer 10

• NHS continuing healthcare
• Severe needs
• Health and Social care should be paid by the NHS
• Complicated process for applying for full cost of care and needs

Question 11

Ombudsman:

Answer 11

• You can use an ombudsman process to make complaints
• Grievance handling
• Independence
• Improve working of public administration of making recommendations or promoting principles of good administration
• Free
• You can investigate ‘maladministration’ where services and support may be lacking, but not necessarily legal wrongdoing.
• Free service and some remedy (however less financial remedy than courts)

Question 12

Explain Tribunal and administrative tribunals:

Answer 12

• Administrative tribunals were developed throughout the 20th century to deal with challenges to administrative decisions
• Administrative tribunals established by statute to hear specific types of case
• But, no coherent structure established for different schemes
• More suitable for a large number of cases because less formal and quicker than the court system.

Question 13

Explain first-tier tribunals:

Answer 13

• Health, Education and Social Care
• Immigration and Asylum
• Social Entitlement
• Tax
• Property

Question 14

Explain the Upper Tribunal:

Answer 14

• Appeal tribunal from first-tier tribunal

Question 15

What are the positives of tribunals?

Answer 15

• Expertise - where courts are natural generalists in policy areas, tribunals will be specialist
• Flexibility - lacked formal procedure associated with courts
• Inquisitorial rather than adversarial
• Greater access to justice - accessible, quicker, informal and cheaper

Question 16

What are the challenges to tribunals?

Answer 16

• Dominated by lawyers
• Consistency required for reasons of fairness, but no system of binding precedent
• Waiting times between 7 and 42 weeks for tribunals
• Informality - depends on panel
• Inquisitorial - jeopardises

Question 17

Explain the Traffic light theory for administrative justice:

Answer 17

Red Light:
- Primary function of administrative law should be to control state power through rile of courts of the law
- Prevent abuse of power from the executive
- Legalistic
- Retrospective - changes past decisions
Green Light:
- Facilitate/support legitimate governmental action
- Administrative/ Bureaucratic - not legal
- Internal regulation that promotes good decision making - learn lessons and improve
- Prospective - can change decision and decision making process immediately
Amber Light:
- Will be a combination of both

Question 18

Explain what judicial review is?

Answer 18

• Enables the courts to act in a supervisory capacity to review the lawfulness of a decision made or not made, by a public body when exercising its public function
• Can only be brought against public bodies
• The courts exercises supervisory jurisdiction over the proceedings and decisions of bodies performing public law duties or functions
• Upholding the rule of law
• Essentially, a mechanism for checking that public officials are accountable and have property discharged the powers or duties given to them.
• Allows public bodies to be challenged on the grounds of: illegality (ultra Vires), Irrationality/unreasonableness and procedural impropriety (natural justice, process of making the decision is unfair)

Question 19

What is the constitutional role of Judicial Review?

Answer 19

Legal Constitutionalism:
- Fills the perceived gaps in political scrutiny, courts come into play at the end of the process
- Rise of power of the executives in the last 50 years.
- Why has there been a rise in the power of the executives? To avoid a vacuum in which the citizens would be left without protection against a misuse of executive powers the courts have no option but to occupy the dead ground [left by Parliament] in a manner and in areas of public life, which could not have been foreseen 30 years ago.
To what extent should judiciary be able to supervise the executive?
- Placing political and legal constitutionalism against each other about the balanced between them.
- Principles of justiciability - some government decisions are too political for the courts.
What are the competing constitutional foundations of Judicial Review?
- Upholds Parliamentary Sovereignty (Ultra Vires Theory)
- Upholds common law constitutional principles

Question 20

How does judicial review involve the rule of law?

Answer 20

• Access to independent judiciary and review powers of the courts + ensuring no body is above the law e
• ‘There is no principle more basic in our system than the maintenance of rule of law itself and the constitutional protection afforded by judicial review’ R v Cart v Upper Tribunal [2011] UKSC 28 [122]
• The courts can review actions of the governments and public bodies which are acting under delegated legislation or royal prerogative.
• Sometimes, parliament may attempt to exclude the powers of the courts to review administrative decision (ouster clauses)

Question 21

Explain Anisminic v Foreign Compensation Committee [1969] AC 147 and R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22?

Answer 21

• Judicial review cannot be used to challenge acts of parliament because of parliamentary sovereignty.

Question 22

What if an act of parliament clearly breaches the rule of law and ousts judicial review and the court’s jurisdiction?

Answer 22

• Housed the courts respect parliamentary sovereignty or should it apply common law to emphasise that acts of parliament have to respect fundamental rule of law too?
• Jackson (2005), AXA v Lord Advocate (2012) and Privacy International (2019)

Question 23

Explain briefly Illegality:

Answer 23

• Ultra Vires Theory
• Original approach taken by the courts
  -Narrow

Question 24

Explain briefly irrationality:

Answer 24

• Brought in by case law
• Common law expectation on government decision making
• Wednesbury Reasonableness
• GCHQ (irrationality)

Question 25

Explain Procedural Impropriety:

Answer 25

• Common law expectation on government decision making
• Extended concept of procedural fairness
• Natural Justice (rule against bias and right to a hearing)

Question 26

Explain the Ultra Vire Theory: (illegality)

Answer 26

• Meaning acting beyond their power
• Courts’s role is to ensure public bodies are not acting ultra vires and acting within their powers given by the parliament
• Upholds parliamentary Sovereignty by ensuring the will of parliament
• Consequence of the court finding ultra views is that the decision is void
  Has the decision maker acted intra vires (within their legal powers) or ultra vires?
• Dicey said the judge’s task is to ensure that public bodies act within their powers and provided that the body has acted within its powers as defined by statute the body’s decision will not be challengeable under the public law process of judicial review.
• ‘Any power conferred on a government department by statute must be exercised in strict conformity with the terms of the statute, and that any action of any such department which is not so exercised should be treated by a court of law as invalid’ Board of Education v Rice [1911] AC 179
  What are the difficulties of Ultra Vires Theory?
• Too narrow
• Need to assume that acting fairly, rationally and following fair process is implied in every power (even if statute does not says so)

Question 27

Explain Liversidge v Anderson [1942] 2 AC 206:

Answer 27

• Important and landmark case in English Law
• The regulation gave the Secretary of State the power to detain a person if he has ‘reasonable cause to believe’ him ‘to be … of hostile associations … and that by reason thereof it was necessary to exercise control over him’
• That the Secretary of State can detain anyone and doesn’t need to give a reason
• House of Lords by majority held that this did not require the Secretary of State to demonstrate any factual ground for his belief.
• Lord Atkin dissented that ‘ I view with apprehension the attitude of judges who on a mere question of construction, when face to face with claims involving the liberty of the subject, show themselves more executive-minded than the executive. Clear words in state are necessary to justify interference with individual rights’

Question 28

Explain the common law theory: (Irrationality)

Answer 28

• Needs to think about natural justice addressing substantive law
• Not just reliant on concept of ultra views but common law and natural justice was developed by the courts.
• Not reliant on upholding parliamentary sovereignty
• Common law theorists argued that courts should do more than just assess ultra vires and intra vires
• Not just ‘agents of parliament to ensure the executive is acting within the statute.
• However, this opens up criticism that the court is not upholding the intentions of parliament.
  Where does this leave parliamentary sovereignty if courts are upholding common law above the intention of parliament?
• Lord Browne-Wilikinson in Pierson said ‘parliament having chosen to confer wide powers on the Secretary of State intends those powers to be exercised by him in accordance with his standards. If the courts seek to limit the ambit of such powers as to accord with the individual judge’s concepts of fairness they will be indirectly arrogating to the court the right to veto a decision conferred by parliament on the secretary’

Question 29

Explain what extended Ultra Vires is?

Answer 29

• Balances Ultra Vires and Common law approaches
• Claims that Parliament would inherently expect executive actions to be exercised in a fair way without having to say that in every statute.
• Implies fairness, respects for rights, rationality and natural justice in every decision.
• Judicial Review started as core Ultra Vires doctrine
• but has now extended deeper into the work of the executive to consider fairness and rationality of the decision too.
• Lord Hoffmann in R (Alconbury) v Secretary of State [2001] 2 All ER 929 at 981 said that ‘the principles of judicial review give effect to the rule of law. They ensure that administrative decisions will be taken rationally in accordance with a fair procure and within the power allocated by parliament’

Question 30

Explain Extended Judicial Review:

Answer 30

• Is an acceptance of Lord Atkin’s position
• Extension of the doctrine of natural justice into administrative decision making
  Ridge v Baldwin [1964] AC 40:
• House of Lords held that where officials had the power to make decisions affecting the rights of individuals, the duty to act judicially was interfered from the nature of the power - no need for a public authority’s power to be described as judicial or quasi judicial before they could be subject to judicial review.
• Police Committee dismissed Chief Constable without giving him an opportunity to be heard.
  -This was held to be unlawful and contrary to natural justice (right to be heard)
• Decision opened the way to rise in judicial review.
  Lord Diplock in IRC v Rossminister [1980] AC 952, at 1011:
• Warrant to enter property to investigate tax fraud.
• ‘The time had come to acknowledge openly that the majority of this house in Liversidge v Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkins was right’

Question 31

Explain the Red and Green Light Theory:

Answer 31

• Current UK government wishes to reform judicial review
• It sees it as a red-light mechanism that stops or delays government from exercising its powers.
• Established independent review of administrative law in 2020
• Judicial Review and Courts Act 2022 makes minor changes to the process and remedies.
  Conservative Party manifesto (2019):
  -‘After Brexit we also need to look at the board aspects of our constitution: the relationship between the Government, Parliament and the courts … We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays’
  IRAL Report:
• Emphasises the green light approach
• Legality an important element of good administration so its in the interest of public bodies to make good decisions
• No evidence to support the assumption that judicial review makes it more difficult to deliver public services efficiently

Question 32

What are the rules and procedures?

Answer 32

• Governed by Section 31 of the Senior Courts Act 1981
• Procedure is set down in Part 54 of the Civil Procedure Rules
  Each Judicial Review application needs to go through:
• Pre-action protocol
• Permission stage (public law issues, public body and standing)
• Substantive Hearing (grounds of review and remedy)
• Judicial review had developed through the common law meaning cases are essential

Question 33

Stage 1: Public Law decision

Answer 33

• Because of procedural restrictions on using judicial review some people may try to use ordinary procedure rather than judicial review procedure.
  O’Reilly v Mackman:
• Challenge against prison’s disciplinary decisions issued as ordinary (private proceedings rather than judicial review_
• Held to be an abuse of process to use ordinary proceedings and must use judicial review for public law matters.
• Procedural Exclusivity: Public law matters have to be ligated through judicial review.
• When public bodies are exercising their public duties or responsibilities - their powers come from state
• Judicial Review exists to safeguard public bodies
• Procedural exclusivity is not as strict as O’Reilly set out now so you can use ordinary procedure in some circumstances where public law issues is incidental to the private proceedings [Wandsworth London Borough Council v Winder]

Question 34

Stage 2: Must be against a public body

Answer 34

• Judicial review is only available to test the lawfulness of division made by public bodies
• Cannot challenge an act of parliament
• The person seeking judicial review must establish that the body whose decision they are challenging is a public body
• The test is not whether or not authority is a government body as such but whether it is a body exercising powers similar to those of government bodies.
• Some private bodies can also exercise public functions that could bring them within judicial review
• Identifying who exercises a governmental function for purposes of judicial review devolved through case law.

Question 35

What makes a public body? Where does there power come from?

Answer 35

• Courts have developed ways of deciding whether a body should be classed as a public body or not
• Important to note, there are common law approaches so are flexible and can be adapted from case to case or new tests developed.
  Sources of Powers Test:
• Where does the powers of the public body derive from?
• Statute or Prerogative usually good indicators of a public body
  Examples:
• Government ministers and government departments

Question 36

Explain what the public and private divide is?

Answer 36

Source and Nature of Powers Test:
- Some private bodies can also exercise public functions that could bring them within judicial review
- Sometimes necessary to look beyond the source of the power and consider the ‘nature of the power’ being exercised.