Judicial Review

Question 1

Requirements of Judicial Review Overview

Answer 1

1) Claim made against a public body
2) Regulated by Public Law
3) Following correct procedure (pre-action, permission, full hearing)
4) Timely brought
5) Live dispute
6) Legal (rather than factual) dispute
7) Standing

Question 2

Pre-Action Protocol

Answer 2

Before the action is commenced, the claimant SHOULD send a letter to D identifying the issues in dispute.

D should respond within 14 days.

Question 3

What are the two stages of Judicial Review?

Answer 3

1. Permission from the court
2. If permission granted, Full hearing

Question 4

Ground for refusing judicial review

Answer 4

Claimant’s outcome would not change substantially even if they were successful

Question 4

What is the time limit for bringing a judicial review claim

Answer 4

Promptly, but not later than 3 months.
- Court has discretion, they can refuse if they don’t think the claim was made promptly
- For planning decisions, must be within 6 weeks

Question 5

Test for whether a claimant has standing for judicial review

Answer 5

Claimant must have a SUFFICIENT INTEREST in the issues raised.

Question 6

Grounds for Judicial Review

Answer 6

Illegality
Procedural Impropriety
Unreasonableness
Breach of Legitimate Expectations

Question 7

Illegality as Grounds for Judicial Review

Answer 7

• Error of law
• Specific legal duty (Public Sector Equality Duty)
• Unlawful delegation of power
• Irrelevant considerations
• Ultra Vires

Question 8

What is the Public Sector Equality Duty

Answer 8

Public authorities must show due regard to equality considerations when making decisions affecting people with protected characteristics:
- Age
- Disability
- Gender Reassignment
- Pregnancy
- Race
- Religion
- Sex
- Sexual Orientation

Question 9

What are mandatory/directory requirements?

Answer 9

Mandatory: Procedural requirements that must be followed, decision will be invalid if not followed

Directory: does not necessarily need to be followed.

Question 10

How do you know if a procedural requirement is mandatory or directory?

Answer 10

Words of the statute, if anyone would be caused injustice if the requirement is not followed.

Question 11

What are some CL procedural requirements

Answer 11

Right to be heard (especially if a right is being taken away)

Rules against bias- decision makers MUST be unbiased.

Question 12

Is there a CL duty to consult?

Answer 12

NO, except when:
- Statute says so
- There has been a promise/tradition of consulting
- Exceptionally, if not consulting would be extremely unfair

Question 13

Is there a CL duty to give reasons?

Answer 13

NO, except when it would be unfair not to. E.g.,:
- If it’s important (e.g., liberty)
- it’s is unusual/not the norm

Question 14

What kind of expectations must be breached for judicial review to apply?

Answer 14

a. Expectations made by an explicit promise
b. Expectations made through previous actions

Question 15

What is the test for determining whether judicial review may be granted on the grounds on “unreasonableness”?

Answer 15

The decision must be so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied their mind to the question could have arrived at it

NOTE: THIS IS NOT THE TEST FOR HUMAN RIGHTS ACT

Question 16

Three-Part Proportionality Test

Answer 16

(1) Is the object of the policy sufficiently important to justify limiting a fundamental right?

(2) Are the measures designed to meet the legislative objective rationally connected to it?

(3) Is the interference with the right no more than necessary to accomplish the objective?

Question 17

What are the remedies if a judicial review claim is sucessful?

Answer 17

Quashing Order (OG decision void)
Mandatory Order (D must do something)
Prohibiting Order (D must NOT do something)
Injunction
Declaration

OR NOTHING- Remedies are discretionary