Judicial Review

Question 1

What is the nature and purpose of JR?

Answer 1

1) Mechanism to ensure public bodies have exercised power correctly
2) Not an appeal against a decision - challenging the way it is made
3) Court cannot substitute it’s judgment in favour of an outcome

Question 2

What does JR check?

Answer 2

• That decision maker has acted fairly
• That discretion is lawfully exercised
• That Acts have been correctly interpreted
• That human rights are not violated

Question 3

“JR performs a profoundly important constitutional role, allowing individuals and organisations to hold the government to account”

Answer 3

LIBERTY

Question 4

What are the origins of JR?

Answer 4

• Rule of law (control model)

- Board of Education v Rice (1911) any action taken ultra vires should be treated by court of law as invalid

Question 5

How is the role of JR expanding?

Answer 5

• Ridge v Baldwin: where powers interfere with human rights, no need for powers to be judicial for JR to be brought
• Datafin: private as well as public

Question 6

What is a public body?

Answer 6

• Government or acting similar to government body
• s6 HRA ‘functional public authority’
• Datafin: private body exercising public functions

Question 7

What decisions can be challenged with judicial review?

Answer 7

JR can’t test decisions made by parliament or legislation. JR CAN test EU, legal or conventional rights and may pursue private law (Datafin)

Question 8

Name the criteria for standing.

Answer 8

• Seek leave from a single judge
• Exhausted all available remedies
• Show they have an arguable case
• Show they have sufficient interest
• Be within 3 month time limit

Question 9

What case said that if individuals do not possess sufficient interest joining a group will not make it sufficient?

Answer 9

R v Secretary of State for the Environment

Question 10

What case said that courts may be generous with sufficient interest if ‘applicant can establish a case which deserves to succeed’?

Answer 10

Broadmoor Special Hospital v Robinson

Question 11

Describe simple ultra vires and give case examples.

Answer 11

Power must be conferred, laws must be understood, actions must relate to power.
R v Sec of State for For + Com Affairs - can’t remove people to preserve peace

Question 12

Describe wide ultra vires and give case examples.

Answer 12

Power is given to decision maker for one purpose but is used for another.
Padfield v Min for Agri: minister refused to refer complaints
Congreve v Home Office: where statute has no purpose court decides

Question 13

Describe wrongful delegation and give case examples.

Answer 13

Only a body whom a power is vested in may exercise that power.
Carltona v Com of Works: duties “normally exercised under the authority of ministers by responsible officials of that department”

Question 14

Describe fettering discretion and give case examples.

Answer 14

When public official has discretion they must not fetter themselves from using it.
R v Port of London Authority: must never ‘shut it’s ears’ on merits of case

Question 15

Describe Wednesbury unreasonableness and give case examples.

Answer 15

Parliament expects power is exercised reasonably.
Ass Prov Pic Hou v Wed Corp [1948]
GCHQ: Diplock - ‘so outrageous in it’s defiance of logic or acceptable moral standards’
R v MOD ex p Smith

Question 16

Describe relevant/irrelevant considerations and give examples.

Answer 16

‘The more general and important the consideration’
R v Sec of State for Home Dep (Venables) 1998
Wheeler v Leicester City Council

Question 17

What is the test for proportionality (test to determine legality of measures that interfere with human rights) and what case influenced it?

Answer 17

• Must be a victim
• Has a protected interest been compromised?
• Was this in pursuit of a legit aim?
• Was it necessary to do the above?
• Is there proportionality between damage done and consequences?

Question 18

Must the right to appeal be publicised, and is there a duty to give reasons/consult?

Answer 18

• Yes

- No general duty at common law but usually required for fairness

Question 19

Describe the right to be heard and give case examples.

Answer 19

Common law has safeguards against unfair treatment
Cooper v Wandsworth Board of Works
Ridge v Baldwin

Question 20

Describe the rule against bias and give case law examples.

Answer 20

Unlawful for decision maker to make decisions for personal benefit.
R v Sussex Justices (McCarthy)
Porter v Magill: fair minded and informed observer, ‘real possibility’

Question 21

Describe the duty to give reasons and give case examples.

Answer 21

Statutes/court make require reasons but no general duty at common law
R v Doody [1994] depends whether fair and just to require reasons in circumstances

Question 22

Describe legitimate expectations and give case examples.

Answer 22

Procedural = expect to use fair procedure
Substantive = expects to reach a certain decision
P = AG v Hong Kong
A = R v NE Devon Health Authority

Question 23

Name the five remedies for JR

Answer 23

• Quashing orders
• Mandatory/prohibitory orders
• Injunctions
• Damages
• Declarations

Question 24

What did Lord Mustill say in the Fire Brigades Union case?

Answer 24

Judicial review is an acceptable substitute for parliamentary accountability