Judicial Review Flashcards
What is the nature and purpose of JR?
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
What does JR check?
- That decision maker has acted fairly
- That discretion is lawfully exercised
- That Acts have been correctly interpreted
- That human rights are not violated
“JR performs a profoundly important constitutional role, allowing individuals and organisations to hold the government to account”
LIBERTY
What are the origins of JR?
- 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
How is the role of JR expanding?
- 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
What is a public body?
- Government or acting similar to government body
- s6 HRA ‘functional public authority’
- Datafin: private body exercising public functions
What decisions can be challenged with judicial review?
JR can’t test decisions made by parliament or legislation. JR CAN test EU, legal or conventional rights and may pursue private law (Datafin)
Name the criteria for standing.
- 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
What case said that if individuals do not possess sufficient interest joining a group will not make it sufficient?
R v Secretary of State for the Environment
What case said that courts may be generous with sufficient interest if ‘applicant can establish a case which deserves to succeed’?
Broadmoor Special Hospital v Robinson
Describe simple ultra vires and give case examples.
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
Describe wide ultra vires and give case examples.
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
Describe wrongful delegation and give case examples.
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”
Describe fettering discretion and give case examples.
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
Describe Wednesbury unreasonableness and give case examples.
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
Describe relevant/irrelevant considerations and give examples.
‘The more general and important the consideration’
R v Sec of State for Home Dep (Venables) 1998
Wheeler v Leicester City Council
What is the test for proportionality (test to determine legality of measures that interfere with human rights) and what case influenced it?
- 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?
Must the right to appeal be publicised, and is there a duty to give reasons/consult?
- Yes
- No general duty at common law but usually required for fairness
Describe the right to be heard and give case examples.
Common law has safeguards against unfair treatment
Cooper v Wandsworth Board of Works
Ridge v Baldwin
Describe the rule against bias and give case law examples.
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’
Describe the duty to give reasons and give case examples.
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
Describe legitimate expectations and give case examples.
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
Name the five remedies for JR
- Quashing orders
- Mandatory/prohibitory orders
- Injunctions
- Damages
- Declarations
What did Lord Mustill say in the Fire Brigades Union case?
Judicial review is an acceptable substitute for parliamentary accountability
