Judicial Review Flashcards
What is the case that says no delegation of decisions can be made?
Vine v National Dock Labour Board
What is the exceptions to the rule against delegations? (2 examples)
The Carltona Principle- Ministers can delegate to civil servants
The Local government Act 1972- Local authorities can delegate to committees and/or officers if they make a formal resolution to do so.
Vine v National Dock Labour Board. What is the rule?
No delegation of decisions can be made
What is the rule against fettering of discretion? What are the two types of fettering?
Fettering discretion. IE using someone else’s discretion to make the decision (Lavender v Minister for Housing)
AND
Interpreting a policy to strictly (British Oxygen v Minister for Technology
Lavender v Minister for Housing
What is the rule? No fettering discretion to another
Congreve v Home Office. What is the ruling?
No using powers for improper on unauthorised purposes
No using powers for improper on unauthorised purposes. What is the general case?
Congreve v Home Office
What is Westminster Corp v LNWR?
Where there are two purposes, a decision is legal if the authorised purpose is the main one.
What is the rule on “material influence” on decisions and which case?
R v Ilea ex partei Westminster City Council. Where there are two reasons for a decision, the decision is not legal if the unauthorised reason had a “material influence”.
Which are the two cases relating to taking into account irrelevant considerations?
Robers v Hopwood
The Rule Against Socialism
Padfield v Minister of Agriculture
Milk producers sought judicial review of the Minister’s refusal to exercise his power to direct an investigative committee to be set up to examine complaints.
“Errors of Law are always subject to judicial review.” Which case?
Anisminic v FCC
Khawaja. What is the ruling?
Errors of fact are not always subject to judicial review unless they are jurisdictional (IE implicate the body’s ability to act)
Wednesbury Irrationality. What is the standard that must be met?
“So unreasonable that no reasonable authority could have come to the decision”.
CCSU. What is the standard of irrationality?
“So outrageous or in defiance of logic that no sensible person could arrive at it”
Which is the case for direct bias?
Dimes v Grand Junction Canal
R v Ministry of Defence ex p Smith
“Outside the range of reasonable responses”
What is the test for indirect bias?
Whether a “fair minded and impartial observer would conclude that there had been a “real possibility” of bias in proceedings.
Margill v Porter
What is the case that sets out the fit to a “reasonable” fair hearing?
Lloyd v McMahon
What are the three case categories and the cases for each?
1 Forfeiture Cases: Where someone is giving up something they had. These generate the greatest rights.
(Ridge v Baldwin).
2. Legitimate expectation cases. Whee the aggrieved party had a legitimate expectation of a service or a facility.
R v Liverpool Corporation ex p Liverpool Taxi
3. Application cases. Where a party is making an application for a benefit or to avoid a dis benefit. (Mcinnesn v Onslow-Fane)
What is the ruling in R v Panel on Takeovers ex partei Datafin?
There are two tests to determine whether a defendant is a “public body”:
- Is the source of power statutory?
- Does the body exercise public law functions?
What are the 5 factors set out in R v Secretary of State for Foreign Affairs ex partei World Development Movement for a pressure group to be able to take a judicial review claim?
1 The importance of the matter and the weight of the grounds of challenge.
- Whether anybody else is better placed to take the claim
- He need to uphold the rule of law
- The role of the pressure group.
- The relevant statutory duty.
Which Act requires that claimants in Judicial Review have “sufficient interest in the matter to which a claim relates”?
The Senior Courts Act 1981 s 31(3)
Are Courts obliged to extend time limits in certain circumstances?
No, according to the ruling in Hardy v Pembrokeshire
Will the Courts accept full ouster clauses in legislation?
No, according to Anisminic v FCC. The courts consider that it cannot be the will of Parliament to let public bodies act outside the law.
Will the Courts accept partial ouster clauses in relation to time limits?
Yes, as in R v Secretary of State for the Environment ex partei Ostler.
Will the courts accept implied ouster clauses?
Yes. If provisions in statute provide for alternative statutory remedy (appeals process etc) the courts will not recognise a Judicial review claim. R v Epping and Harlow Commrs ex p Goldstraw
Will the Courts extend deadlines for judicial review?
If there is good reason. R R v Stratford upon Avon DC ex parte Jackson
In which case is the rule against bias decided?
Dimes v Grand Junction Canal
In what case is the rule against indirect bias discussed?
Margill v Porter
In which case is the rule against bias discussed with relation to non pecuniary direct interest?
Re Pinochet
What is the case for “legitimate expectation”?
R v Liverpool Corporation ex parte Liverpool Taxi Operators
What happened to the Asylum and Immigration Bill 2004?
A full ouster clause that would have prevented judicial review caused outrage amongst the judiciary and led to the bill being abandoned.
http://www.telegraph.co.uk/news/uknews/1455976/Woolf-fury-at-asylum-curb-on-courts.html
Do rights apply to citizens of everyone under the jurisdiction?
Al Saadoon v UK
Is there a right to reasons for a decision?
No R(Hasan) v Secretary of State for Trade and Industry, unless the decision looks abberrant “R v Civil Service Appeal Board (x p Cunningham)
Is there a right to an oral hearing?
Yes, if it is fair and reasonable (Lloyd v McMahon)
Which theory of justification of judicial review to Sweet andMaxwell advocate?
The Ultra Vires theory
Is there a right to reasons for a decision?
No R(Hasan) v Secretary of State for Trade and Industry, unless the decision looks abberrant “R v Civil Service Appeal Board (x p Cunningham)
Is there a right to an oral hearing?
Yes, if it is fair and reasonable (Lloyd v McMahon)
Which theory of justification of judicial review to Sweet andMaxwell advocate?
The Ultra Vires theory
What are the three qualifications needed for a qualification under the ECHR?
- Prescribed by law
- Has a legitimate aim
- Necessary in a democratic society
What are the three public remedies or prerogative orders in judicial review?
- A quashing order- this causes an ultra vires decision to have no effect
- A prohibitory order: a public body must refrain from an illegal action
- A mandatory order: performance of a public duty is enforced.
What is the effect of a quashing order?
An ultra vires decision has no effect (it must be taken again)
What are the 5 procedural stages of judicial review?
- A claim form is “served” on the defendant
- The defendant can respond to contest the proceedings
- The Court considers the preliminaries
- There is no right of appeal against the court’s decision but an oral hearing may be requested
5, An oral hearing happens
Explain Ultra Vires theory of Judicial Review
Judicial Review simply upholds Parliament’s intention, giving it effect.
What are three of the non justiciable areas outlined by CCSU v Minister for CS?
- International Treaties
- Control of the Armed Forces
- Defence
- Dissolution of Parliament
- Mercy
- Public honours
What three points does does Cane note in outlining the limits to Ultra Vires Theory?
- The judiciary has a creative role, especially where EU law is concerned.
- Parliamentary intention is not simple
- Judicial Review is essential as it upholds the Rule of Law, not just sovereignty of Parliament
R v Richmond Upon Thames
Acting without statutory authority
