Judicial review Flashcards
What is judicial review?
-claims against minister, government (including local authorities and arms of the state) eg planning decisions, closing down schools - shutting down hospitals
- reviews/decision any public authority
- reviewing the actions of the executive
- CANNOT apply to act of parliament as parliament is sovereign
-NOT private law - party in contract with local authority = private law matter NOT judicial review.
- Court interprets wording. JR is review public authority power
- Royal Prerogative can be subject to JR in some circumstances
How can or can’t royal prerogative be subject to Judicial Review
Royal prerogative can be:
- Foreign affairs = war deporting aliens
- Domestic affairs = honours, proroguing parliament
PROCESS
1) Applicant makes JR claim against government exercising RP
2) Does RP exist
3) If it does there are some RP’s the CTS will not go on to check if validly exercised
- those it won’t consider are - war, military affairs, declaring war
4) If justiciable - Yes can be JR’d
5) If non justiciable - No JR
6) JR considered in context separation powers - check and balance of actions executive
What must you have before you can go on to make a claim?
Amenability - can they bring a claim
5 criteria
1) - Must be public law case
2) - Must be public body - NOT private
- 2 stage datafin test
* -source of power has the body been set up by an act of parliament/government, if no,
* nature of power, does def carry out public services.
3) -sufficient interest, directly offending, allow pressure groups to bring claim if of sufficient standing - seriousness
4) - Promptly brought
- within 3 months after grounds to make claim first arose
- 6 weeks for planning decision
5) - Ouster clause
- within act of parliament
- prevents JR of ministerial decision under that act = full ouster - rarely upheld
- can only be JR if condition complied with = partial ouster
** Private care home MAY be public body IF satisfies 2 stage datafin test***
If has amenability, what is the process that has to be gone through to seek permission to apply for a JR?
- letter to public body asking to resolve in letter
- 14 days to respond
- if don’t or not adequate response - make app within 3 months from decision/response
- claim to administrative court
What are the grounds for judicial review
1) - Illegality
2) - Procedural impropriety
3) - Unreasonableness/irrationality
4) - proportionate
5) - legitimate expectation
Illegality
A) - how many possibilities
B) - how many have to be found to apply
A) - divided into 8 heads
B) - usually one or more apply
1) Acting Ultra Vires- - acting outside powers of act or in a way parliament could not have intended
2) against constitutional principles without reasonable justification eg restricting exercise of parliamentary sovereignty
- CTS apply constitutional principles & presumptions and interpret acts parliament to be in lie with parliamentary sovereignty and what parliament intended
- apply set of presumptions
* Intended comply EU law
* Common law rights not to be interfered with
* did not intend act to be retrospective
- Apply act along with s3 HRA interpret to try and discover true intention of parliament
- CTS can render government decision, statutory instrument ultra vires - illegal because not done what parliament intended.
EXAMPLE
-act 2012 -intention to increase efficiency of court system
- Ministry of justice increased fees necessary to apply to CT and lowered legal aid funding
- CT render ultra vires - parliament could not have intended to restrict access to justice.
- Acting ultra vires broader than done something parliament not said, its also breaching constitutional and rule of law principles aswell
- If government acts against constitutional principles without reasons/justification
- Royal prerogative also ultra vires where- prorogue parliament & unlawful breach parliamentary sovereignty
3) AGAINST DELEGATION
- Act parliament gives minister power they must act - cannot delegate
- if it does can be illegal
Exception = carltona principle
- can delegate to appropriate senior civil servant or minister
4) FETTERING DISCRETION
- relying on someone else’s views entirely
- Using in blanket way doesn’t consider individuals decisions on merits
- not used brain
5) IMPROPER UNAUTHORISED PURPOSE
- Ultra Vires - minister/public body used power for ulterior motive
6) -Dual purpose - One authorised purpose, one not
7) - Irrelevant considerations - speaks for itself
8) - Errors law/fact - decision by mistake, error fact
Procedural Impropriety - what amounts to this?
- challenges procedure leading up to decision affecting individual/complainant
- decision maker must not have bias
*Directly - financial, minister planning and has shares in company
*Indirect - no direct political financial gain, but reasonable person would believe real possibility - give a fair hearing - everyone has right to fair hearing
- degree of fair hearing depends on case being heard ie if affects job or livelihood in some way going to need oral hearing
- More has to loose more fair hearing will need to be
Parliament has not stated what happens if procedure is not followed; must consider:
*what is the purpose of the act - how serious is public bodies decision on fact, has claimant had fair hearing
*will prejudice be suffered on the facts - duty to give reasons, but only applies where decision is extremely important - loose job or livelihood
All about argument made
Procedure under act =
- must be followed
- may contain procedural rules body needs to be followed.
- act may state consequences of failing to follow
- if act doesn’t state consequences have to apply test of how serious procedure is. Did parliament intend act to be rendered void if failed to be followed
- must recognise test applies
- if decision made and would cause huge amount substantial prejudice if overturned because procedure not followed, then likely would be upheld
- if would cause substantial prejudice more likely less serious
- if procedure so necessary so as to render decision, more likely to be rendered and void
- act doesn’t say what happens in this case
Unreasonableness/Irrationality
- government local authority decision so stupid no one else would have made
- so outrageously, amoral, unreasonable that no sensible person could have made it
-MCQ may ask why overturned?
Proportionality
- whether decision more than necessary to achieve its aims
- is decision proportionate, sets out what intends to, or does it go beyond
- can be its own ground when reviewing a human rights decision
Legitimate Expectation
- public body makes a specific undertaking to individual or gr that a policy will continue or something will be done, then goes back onj that
-CTS consider if going back on the promise is unlawful - was there a legitimate reason. On balance was there a good reason
eg - library promised then closes - Unlawful if
*go back on it
*unfair
*don’t have legitimate policy decision to do so
*on balance was there a good reason? eg if finance - then legitimate
ECHR - how is a potential breach reviewed
- s61 HRA states public authorities have duty to comply HRA
- if fail to, under s7 HRA, victim can make judicial review claim against public authority
Grounds =
1) - some absolute - right to life and can’t be breached. Unless PC shoots terrorist
2) - Qualified rights can be in interfered with if prescribed by law and legitimate (reason under HRA) necessary (in democratic society) and proportionate (goes beyond objective)
- CTs will review breach of right, where it is qualified, and ask the questions above =prescribed by law, legitimate, necessary and proportionate
- if absolute right alleged to have been breached more a question of fact.
1) How do the CTS deal with potential JR on breach of HRA
2)
1)
- CTS adopt DEFERENCE when reviewing
- DEFERENCE means = courts lean towards public bodies and government when reviewing decisions of government to limit rights
- for example - where limiting freedom expression for purposes national security. Gov will review and may render unlawful and breaches HRA. But also may adopt deference and consider:
- government elected who make decisions
- political position. can access more info than Judge who cannot have access to it.
2) PROCEDURE
-Judges review underlying act of parliament which gave public authority power to make decision which has potentially been breached HRA
- when likely has been breached use section 3 - requirement to interpret primary and subordinate legislation so are compatible with Human Rights, and possibly section 4 - declaration incompatibly
Example
- Freedom of expression = individual right to express themselves = qualified right
-Must be prescribed in law and in line with objectives in ECHR, necessary and proportionate
- Government ban expressions/opinions re far right terrorist group. Breach of article 10 = say what you want.
- But banned because believe threat to national security and peace of others
- legitimate objective= yes
- is it necessary and proportionate
-necessary - to stop dissemination material that is dangerous
- proportionate - not banning views of all right meaning, or being part of political party, prescribed group known to have terrorist links.
Person charged would then want to JR the offence itself - being part of expressing opinions relating to that group. JR qualification of article legitimate necessary and proportionate
Remedies
1) Does the Court have to grant remedies?
2) What are prerogative and non prerogative remedies?
1)
- NO - discretionary
2)
PREOGATIVE REMEDY
* QUASHING -
- quashing government decision
- gone void when made
- suspended quashing order - takes effect later date, when becomes void
- Prospective only quashing order - decision valid, only decisions in future won’t be/
* PROHIBITING ORDER
- prevents public body from doing something = type of injunction
* MANDATORY ORDER
- compels public body to do something
NON PREOGATIVE REMEDY
* INJUNCTION - type prohibiting order
* DECLARATION - Legal position declared but no remedy given
* DAMAGES - Rare - where seeking judicial remedy and have claim in tort or contract
