Judicial Review

Question 1

Judicial review statute is

Answer 1

S.31 of the Senior courts act 1981

Pt 54,of the civil procedure rules

Question 2

What must be considered before judicial review can proceed

Answer 2

Public body
Public law-
Standing
Ouster clauses
Time
Justicibility 
Leave to apply

Question 3

Public body

Answer 3

Claim must be against a public body or hybrid authority 
Beer v Hampshire farmers market 
Fulham
O'reilly
Datafin

Question 4

Public law

Answer 4

Has to be regarding a law that affects the public in general
Datafin

Question 5

Standing

Answer 5

The applicant has to have sufficient interest / locus standi. Is review in the interests of the rule of law
Greenpeace

Question 6

Ouster clauses

Answer 6

Full ouster try to prevent decision being challenged not liked by courts preventing executive being held to account - anisminic

Partial ouster ok - ostler on time limit

Question 7

Time

Answer 7

S.31 Senior courts act 1981 and p 54 cpr set time rules as usually 3months - in any case must be brought without undue delay - hardy

Question 8

Justicibility

Answer 8

Not for courts to decide and parliament must make decision for example national security GCHQ case

Question 9

What is judicial review?

What does it review?

Answer 9

Protect individual by controlling use of executive power
Only review decisions of public law
Review administrative acts -action decision or omission
Cannot change decision-breach separation of powers and rule of law
Cannot strike out act -as breach of parliamentary supremacy
Not an appeal must be appealed if poss first, review of process
Claims to queens bench division of high court and assigned to administrative court

Question 10

Leave to apply

Answer 10

Permission required from administrative court of the high court to apply for jr. Judge assess facts and decide if in the interests of public good

Question 11

Grounds for judicial review

Who / what

Answer 11

Set out by Lord diplock in gchq case being
Illegality
Irrationality
Procedural impropriety

Question 12

Illegality is

Answer 12

Ultra vires- beyond powers
Error of law - misinterpreting legislation
Jurisdictional error of fact 
Unauthorised delegation 
Acting under the direction of another
Fettering discretion
Unauthorised purpose
Irrelevant or relevant considerations
Breach of human rights

Question 13

Ultra vires

Answer 13

Public authorities must not exceed their jurisdiction - McCarthy and Stone

Question 14

Error of law

Answer 14

Error made by public body in interpreting law - anisminic

Question 15

Jurisdictional error of fact

Answer 15

Public body make factual error leading to exceeding powers- Kawaja.

Question 16

Unauthorised delegation

Answer 16

Generally body awarded power has no implied power to sub delegate
Exception minister delegates to civil servant
Barnard
Exception turner

Question 17

Acting under the direction of another

Answer 17

Decision maker hampers his discretion if acts under dictation of another where he formulates policy based on another’s policy-lavender

Question 18

Fettering discretion

Answer 18

Courts will assume that Parliament intended authority to retain discretion rather than restricting it by rules/agreements. So each case can be looked at individually - British oxygen

Question 19

Unauthorised purpose

Answer 19

JR granted if court considers decisions not based on relevant purpose or improper purpose- Roberts v hopwood.

Question 20

Irrelevant or relevant considerations

Answer 20

A body must not be influenced by irrelevant considerations. At the same time it must take relevant considerations in to account - dual purchase ok LNWR- not material influence ILEA

Question 21

Breach of human rights

Answer 21

S6 of the HRA 1998 makes it unlawful for public authority to act in a way which is incompatible with a convention right

Question 22

Irrationality =

Answer 22

In defiance of logic
So unreasonable no reasonable body could come to decisions-Lord Greene in Wednesbury.
So outrageous in de finance of logic or accepted moral standard no sensible person could have arrived at it - CCSU

Question 23

Procedural impropriety is

Answer 23

Procedural ultra vires
Breach of natural justice - fairness
Duty to give reasons 
The rule against bias
Article 6 ECHR 
Legitimate expectations

Question 24

Procedural ultra vires

Answer 24

Not following procedure as laid down in statute

R v sonejii

Question 25

Breach of natural justice

Answer 25

The right to a fair hearing - rice - fair in all circumstances
The decision maker approaches the decision with fairness
Lloyd v McMahon or fair minded porter v magill.

Question 26

Duty to give reasons

Answer 26

Duty to give reasons may be imposed at statute if not common law may impose duty
Coleen properties

Question 27

The rule against bias

Answer 27

Any person making a decision must not have any personal interest
Pinochet - non pecuniary
Dimes - pecuniary

Question 28

Article 6 ECHR

Answer 28

Right to a fair trial

S6 of the HRA 1998 makes it unlawful for public authority to act in a way which is incompatible with a convention right

Question 29

Legitimate expectations

Answer 29

If the decision maker has said or done something which suggests the applicant would have some benefit - McInnes v Onslow Fane
Type of applicant - McInnes.
Forfeiture taken away
Application refused applicants

Question 30

Judicial review remedies- s 31senior court acts 1981

Answer 30

Quashing order - nullifies decision completely invalid
Prohibiting order- prevents from acting beyond powers prospectively
Mandatory order- compels authority to fulfil their duties
Declaration- clarifies the respective rights and obligations
Injunction- stops public body from acting in unlawful way before hearing
Damages- only available in private law cause of action such as negligence or breach of statutory duty or a claim under EU law or HRA 1998