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(FLK1) Public Law > Judicial Review > Flashcards

Judicial Review Flashcards

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1
Q

What is Judicial Review?

A

An evaluation of the lawfulness of a decision, action, or omission in relation to the exercise of a Public Function.

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2
Q

What are the Five Preliminaries to Judicial Review?

A
  • Amenability.
  • Procedural Exclusivity.
  • Standing.
  • Time Limits.
  • Ouster Clauses.
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3
Q

What is Amenability?

A
  • The alleged violation must concern the exercise of a Public Function, as determined by its nature and purpose.
  • Accordingly, a Statutory basis is not necessary to find Amenability.
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4
Q

What is Procedural Exclusivity?

A
  • Judicial Review is the sole procedure for challenging public law decisions; and
  • Bringing such challenges privately would be considered an abuse of process.
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5
Q

What are the Exceptions to Procedural Exclusivity?

A
  • The Parties consent.
  • The issue is incidental in a Private Claim.
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6
Q

What is Standing?

A

The need to show sufficient interest, i.e. a direct impact from the alleged violation.

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7
Q

What are the Time Limits in Judicial Review?

A
  • Promptly and within three months from the alleged violation.
  • Delay may result in dismissal, even if the deadline is observed.

Planning Decisions are limited to six weeks and Public Procurement to 30 days.

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8
Q

What are Ouster Clauses?

A
  • A Legislative Provision that limits Judicial Review either partialy or totally.
  • Total Ousters are construed narrowly and nullified if the violation contravenes the Rule of Law.
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9
Q

The Preliminaries notwithstanding, what must the Claimant do before filing for Judicial Review?

A

Exhaust all altenatives, including:

  • Statutory Appeals.
  • Complaints to an Ombudsman.
  • Internal Complaints or Appeals.
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10
Q

What are the Remedies available in Judicial Review?

A

Public Law Remedies:

  • Quashing Order: The Respondent’s decision is invalidated and it must reassess anew in line with the Law. This is the most common Remedy.
  • Prohibitory Order: The Respondent is prohibited from continuing or beginning an unlawful action.
  • Mandatory Order: The Respondent is compelled to fulfill a specific duty, as required by the Law.

Public and Private Remedies:

  • Declaration: A clarification of the Parties’ rights and legal positions.
  • Injunctions: Available at the Interim Stages of the Dispute.
  • Damages: Only awarded if:
    • An HRA violation occurred; or
    • The Court determines it could have been granted in a Private Dispute.

The Court will use its discretion to ensure that the Remedies granted reflect the Claimant’s interest and the potential impact on public administration.

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11
Q

What are the Grounds for Judicial Review?

A
  • Illegality.
  • Legitimate Expectation.
  • Procedural Impropriety.
  • Wednesbury Unreasonableness.
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12
Q

What are the Five Types of Illegality?

A
  • Simple Illegality.
  • Error of Law.
  • Error of Fact.
  • Abuse of Discretion.
  • Retention of Discretion.
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13
Q

What is Simple Illegality?

A

When a Body acts beyond its legal powers.

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14
Q

What is an Error of Law?

A

When a Body acts based on an erroneous understanding of the Law.

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15
Q

What are the Exceptions to the Ground of Error of Law?

A
  • Specialized Rules: Courts tend not to intervene where Bodies apply specialized rules.
  • Non-Decisive Errors: Errors that do not affect the decision’s outcome are generally not reviewed.
  • Irrationality and Multiple Interpretaions: Courts will only quash a decision based on a Law with multiple interpretations if it is irrational.
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16
Q

What is an Error of Fact?

A

When a Body acts based on an erroneous understanding of relevant Facts. Specifically:

  • There must be a mistake about a Fact.
  • The Fact must be uncontentious and verifiable.
  • The Claimant must not have contributed to the mistake.
  • The Error must have materially influenced the Body’s decision-making.
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17
Q

Which Types of Fact are Reviewable under the Ground of Error of Fact?

A
  • Precedent Facts: Facts as preconditions for a Body’s power to act.
  • Poorly Supported Facts: Facts lacking evidential support.
  • Egregious Factual Errors: Serious factual errors undermining a decision or, in particular, fairness.
18
Q

What is Abuse of Discretion?

A
  • Misuse of Statutory Powers.
  • Failure to exercise discretion as intended by the Law.
19
Q

What are the Three Types of Abuse of Discretion?

A
  • Improper Purpose: Use of Power in contravention of the relevant Statute’s intention.
  • Irrelevant Considerations: Factoring irrelevant considerations into decision-making.
  • Delegation of Discretion: Unlawful delegation or fettering of a Power that is later used or omitted.
20
Q

What are the Three Types of Considerations a Body may Factor into Decision-Making?

A
  • Prohibited Considerations.
  • Mandatory Considerations.
  • Discretionary Considerations.
21
Q

When is a Power Unlawfully Fettered?

A

When it is applied too rigidly, without proper consideration of the particular case’s merits.

22
Q

When is a Power Unlawfully Delegated?

A
  • When the Law does not expressly permit delegation, or expressly requires direct use.
  • Ministers are not subject to the former, but are subject to the latter.
23
Q

What are the Two Types of Legitimate Expectation?

A
  • Procedural Legitimate Expectation.
  • Substantive Legitimate Expectation.
24
Q

What is Procedural Legitimate Expectation?

A

The right to expect a specific process before a decision to be made. This generally arises if:

  • The Body explicitly made such a commitment.
  • The Body’s long-standing, consistent practices make such an expectation reasonable.
25
Q

What is Substantive Legitimate Expectation?

A

The right to expect a specific benefit from a Body, beyond merely following procedure. This generally arises if:

  • The Body explicitly made such a commitment.
  • The Body’s long-standing, consistent practices make such an expectation reasonable.
26
Q

When is an Expectation on the Claimant’s part Legitimate?

A
  • The expectation must stem from an unambiguous Promise or Practice.
  • The Body must have the legal authority to make the Promise, if one is made.
  • The Promise must be within the Maker’s authority.
  • The Claimant must know of and rely on the relevant Representation(s).
    • Knowledge is unnecessary if the Body fails in some respect and the Claimant merely relies on the erroneous course of conduct.
  • The Claimant should suffer some detriment from its reliance.
27
Q

When is a Procedural Legitimate Expectation Lawfully Frustrated?

A

Compelling reasons of Public Interest so justify.

Where a Legitimate Expectation merely requires the Body to consider prior representations, the Wednesbury Test is applied.

28
Q

When is a Substantive Legitimate Expectation Lawfully Frustrated?

A

Fairness outweighs Public Interest.

29
Q

How does Proportionality factor into the Lawful Frustration of Legitimate Expecations?

A

Where a Promise is made, the Court must also consider:

  • To whom it was made;
  • The Promise’s weight and clarity; and
  • The degree of reliance and consequences thereof.

In High Policy contexts, the Courts are reluctant to apply strict proportionality and may revert to the Wednesbury Test.

30
Q

What are the Two Types of Procedural Impropriety?

A
  • Duty to Act Fairly (Common Law Fairness).
  • Duty to Observe Procedural Statutory Rules.
31
Q

What is the Duty to Act Fairly?

A

Procedures must be just and equitable in the specific context, as per:

  • The Rule Against Bias: Decision-Makers must avoid situations where they may be biased.
  • The Right to Be Heard: Those affected by a decision should be allowed to present their case.

The level of fairness required varies based on the circumstances.

32
Q

What are the Elements of the Right to be Heard?

A

Notice of the Case Against a Person:

  • Adequate and timely notice must be provided to the Individual, allowing them a reasonable opportunity to prepare a response.

Right to Make Representations:

  • Representations must always be heard from both sides.
  • The decision to hold an oral hearing should be guided by fairness and practicality.
  • An oral hearing is more likely required where serious issues are at stake or the facts are contested.

Opportunity to Address Witnesses:

  • The right to present and cross-examine witnesses is context-dependent but generally necessary where the consequences are severe and the facts are in dispute.

Legal Representation:

  • Legal representation is not universally required but may be necessary where the complexity of the law, gravity of the case, or individual’s capability justifies it.

Provision of Reasons for Decisions:

  • Despite a basis in Common Law, reasons are usually required to some extent, especially if the decision is unexpected or significantly impacts the Individual.
33
Q

What are the Two Types of Bias?

A

Direct Bias:

  • A clear, personal interest in the outcome.
  • Any significant personal interest, particularly financial, results in automatic disqualification.
  • This is true even if it only one person is interest or if they are ignorant thereto.

Indirect Bias:

  • A real risk of bias based on other factors, based on the view of a fair-minded, well-informed observer. Examples include:
    • Policy Bias.
    • Pre-formed Opinions or Prejudgment.
    • Unauthorized Participation or Presence.
  • Rarely, necessity may permit an otherwise biased decision-maker to participate if there is no alternative.
  • This results in disqualification.
34
Q

When does the Duty to Act Fairly arise?

A

To all decisions, judicial and administrative.

35
Q

When is the Duty to Observe Procedural Statutory Rules Breached?

A
  • The Body fails to follow specific Statutory procedural requirements.
  • In so determining, the Court will ask whether Parliament have intended for the decision to be invalidated due to the Breach.
36
Q

What is Wednesbury Unreasonableness?

A

A decision so unreasonable that no reasonable authority could ever have made it.

37
Q

What are the Three Types of Unreasonableness?

A
  • Oppressive Decisions.
  • Decisions Violating Constitutional Principles.
  • Material Defects in the Decision-Making Process.
38
Q

What is an Oppressive Decision?

A

A Decision that:

  • Is excessively punitive;
  • Causes undue hardship; or
  • Imposes disproportionate restrictions or penalties.
39
Q

When will a Decision have Material Defects in the Decision-Making Process?

A

It fails to:

  • Properly weigh relevant factors.
  • Provide a coherent chain of reasoning.
40
Q

What are the Three Degrees of Intensity for the Review of an allegedly Unreasonable Decision?

A

Sub-Wednesbury Standard:

  • Employs the most anxious scrutiny.
  • For cases impacting fundamental rights

Traditional Wednesbury Standard:

  • Employs the Wednesbury Test.
  • For general cases of Unreasonableness.

Super-Wednesbury Standard:

  • Employs high deference to the Body’s authority.
  • For high-level policy decisions.

(FLK1) Public Law (5 decks)

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