Judicial Review Flashcards
Wade’s definition of judicial review
- the court would respect the other branches
- but uphold the constitution of the common law
- review the facts like in appeal
- exercising legal control over public bodies [from local authorities to ministers]
Public Law Project on when a deciision may be unlawful
- decision-maker does not have the power to make a decision or for improper purpose
- irrational decision
- the procedure was unfair or biased
- the decision breahces the HRA
- previously = the decision breached EU law
= first 3 based on Wade, the last two were added by the PLP
Functions of JR
- upholding the RoL = legal accpuntability
- statutory interpretation = stamp approval for govt. to do something [it gives them legitimacy]
- adjudicating institutional relationships
- forum for public discussion
History of JR
Wednesbury:
- Wednesbury test fr unreasonableness
- a time of religious conflict, it was on decline
- some local councils attempted to restrict activities on a Sunday
- Sunday Entertainment Act 1932
- Cinema Operators sought a declaration of ultra vires
- Lord Greene = the circumstances which would be rendered unreasonable are …
‘so unreasonable that no reasonable authority would come to it
= the UK has continued to follow the unreasonable test rather than opt for the EU test of proportionality
+ Super-Wednesbury approach of reasonableness taken in Bugdaycay as it concerned fundamenta rights
Cases after Wednesbury
- Padfield = A minister did not appoint a commitee to investigate after a complaint by milk producers was made, so they soght JR, the discretionary powers were subject to JR and the court held that in refusing to appoint a committee, this would defeat the purpose of the Act that gave them the power
- Padfield principle = ministers must use powers as they were intended
- GCHQ = prerogorative powerswere judicially reviewable
- UNISON = access to the courts is fundamental as without judicial review, the rule of law is undermined
Lord Diplocks’s classification of the grounds of judicial review
- illegality = ultra vires
- Irrationality = wednesbury unreasonableness
- Procedural improprity = a breach of natural justice and unfair procedures
- Perhaps proportionality = derived fromt he EU, but not a general ground for JR in the UK
Statute = process and remedies
Part 54 of the Civil Procedure Rules demonstrates the procude and remedies of JR, it was brought in, in 1977
= you must have sufficient interest in a claim, or it must be one of great public interest
Remedies:
- quashing order
- prohibiting order
- injunction
- mandatory order
- declaration [now most common]
- damages
- restitution of money
= JR outcomes depend on the type of court - the swing of the judicial pendulm
= Graham argues that the Supreme Court has become more conservative since Lady Hale resigned in 2020, under ‘Lord Reed, the Supreme Court has become more restrained’ – ‘a commitment to a kind of legal conservativism’
JR and HRA
You can apply under the HRA or the common law, there are benefits to going for each
Lord Reed argues that teh common law is indgenous, so JR claims shoul dbe brought there first [UNISON]
+ Article 6 ECHR = ‘everyone is entitled to a fair and public hearing’ - SC determine if this is met [Osborn v Parole Board (oral hearing should be held not written representations - Lord Reed gives guidance on which oral hearings are a priority, so the court is advising public bodies, is this appropriate?) + Doody (right to be heard when it concerns a fundamental right, such as liberyt)]
Principles of natural justice/procedural fairness
- a fair hearing
- no bias/impartiality
- reason giving
- non-adjudicative procedural requirements, such as consultation
= instramentalists have a function justification of fair porcedure to maintain fundamental rights
vs. dignitarians see due process as having an intristic value to give people dignity
Requirements for procedural fairness
Per Mustill = due process is available where decision-makers are given powers by statute
the standard can shift over time
contextualism
statutory framework is the first port of call
the defualt position that the person can give representations is not absolute, fairness will often require that the person is informed of the case agaisnt them
+ irreducible minimum - do certain things have to be met for procedural fairness - debated during the War Against Terror, such as Prevention of Terrorism Act 2005, which allowed for the long-term detention based on a ‘reasonable suspicion’
= A v UK = Strasboug held that where liberty is concerned, as a fundamental right, you cannot wholly displace the right to have notice of the case agaisnt you
Reason-giving
South Buckinghamshire DC v Porter
= Lord Brown: reasons must be proper, intelligible, adaquate, and cover the substantive points
= planning permission case
+ there is a duty to give reasons in planning cases - Oakley v South Cambridgeshire
Consultation
R v North Devon and East Devon Health Authority ex parte Coughlan
Lord Woolf = 4 requirements for a proper consultation:
1. formative stage, whilst the decision is still influx
2. set out the proposals
3. adequate time for responsesthe product of the consultation must be taken into account when making a decision
+ when does the duty to consult arise = Moseley - it was a statutory requirement in this case= Lord Wilson = court’s shouldn’t be afraid to impose consultation requirements
Lord Reed = consultation should be based on statutes
