JUDICIAL REVIEW

Question 1

What are the four criteria that must be met to bring a case to JR?

Answer 1

1. Must be secondary legislation (AofP not subject)
2. Must be a public body
3. Must have sufficient locus standi
4. Must be within time limit

Question 2

Why must it be secondary legislation?

Answer 2

Parliamentary sovereignty means AoP is highest law and can’t be reviewed

Question 3

Which statutory instruments tend to be subjects of JR

Answer 3

Regulations
Rules
Decisions (most common)

Question 4

What constitutes a public body?

Answer 4

Anything that comes under control of the state

Question 5

AGA KHAN 1993

Answer 5

Jockey club could not be subject of JR as it was not a public body
Was concerned with relationships between private individuals
Should be dealt with in private court

Question 6

DATAFIN 1993

Answer 6

Gives broad definition of public body, focuses on functions
If functions are more public = subject to JR
If functions more private = not subject to JR

Question 7

What is locus standi?

Answer 7

Question of standing

Whether or not an individual has sufficient interest in the outcome can they bring a case to JR

Question 8

Why is locus standi necessary?

Answer 8

Stop courts being flooded by anyone who has any issue with any legal decision

Question 9

FLEET STREET CASUALS 1982

Answer 9

LORD STEYN on importance of locus standi:

‘Prevents abuse by busybodies, cranks and other mischief makers’

Question 10

GREENPEACE NO 2 1994

Answer 10

Argued that Greenpeace weren’t local residents, so we’re not directly effected by pollution in the area > shouldn’t be allowed to bring the case (no locus standi)

Court held Greenpeace had greater access to funds and had carried out extensive research = in a better position to bring case than anyone else&raquo_space;> allowed

Question 11

What is the time limit on bringing a case?

Answer 11

3 months

Question 12

Where is authority for time limit?

Answer 12

CIVIL PROCEDURE RULES, Rule 54.5

‘Not later than three months after grounds to make a claim first arose’

Question 13

Why do courts adhere strictly to the time limit requirement?

Answer 13

To prevent miscarriages of justice

Avoid long periods of delay on case outcomes

Question 14

What is an OUSTER CLAUSE?

Answer 14

Attempt to exclude a ruling from being subject to JR

Question 15

Case on ouster clauses?

Answer 15

ANISMINIC v FCC 1969

Question 16

ANISMINIC v FCC 1969

Answer 16

Decision in question stated ‘decisions shall not called into question in any court of law’

Failed > because the court held they weren’t questioning the decision as such, rather the grounds for it and procedure in reaching it

NB It is possible to create an effective ouster clause but would have to be very specifically worded

Question 17

Why don’t courts like ouster clauses?

Answer 17

Important principle of JR is the public’s ability to question legal decisions, holds the judiciary and also executive to account

Question 18

3 grounds for JR

Answer 18

1. Irrationality
2. Illegality
3. Procedural Impropriety

Question 19

Case law for IRRATIONALITY

Answer 19

WEDNESBURY 1948

GCHQ 1983

Question 20

What’d did LORD GREENE say in WEDNESBURY 1948?

Answer 20

‘So unreasonable that no reasonable authority could ever have come to it’
Classic example of irrationality ground for JR

Question 21

What did LORD DIPLOCK say in GCHQ 1983

Answer 21

‘So outrageous in its defiance of logic or accepted moral standard that no sensible person who applied his mind to the question to be decided could have arrived at it’

Expansion of grounds for irrationality

Question 22

Non-justiciable issues = not subject to review

Answer 22

• GCHQ 1983 : not courts role to be involved in national security
• CAMBRIDGE HEALTH AUTHORITY 1995: not courts role to tell govt how to allocate funds

Question 23

Policy issue = often exempt from JR

Answer 23

A v SOS HOME DEPT 2004 : courts don’t want to be involved in policy decisions/issue of SoP

Question 24

Case testing reasonableness of irrationality

Answer 24

WEDNESBURY 1948

Question 25

Human rights cases = mostly reviewable

EXAMPLES?

Answer 25

R v MoD 1995 : concerning homosexuals in the army > unsuccessful

DALY 2001 : idea of proportionality became used

Question 26

Three subsections of illegality?

Answer 26

ULTRA VIRES (outside their power)
IRRELEVANT CONSIDERATIONS
UNAUTHORISED DELEGATION OF POWERS

Question 27

Case for ultra vires

Answer 27

AG v FULHAM CORP 1921

Question 28

Case for irrelevant considerations

Answer 28

R v PORT TALBOT BOROUGH COUNCIL 1988

Question 29

Case for unauthorised delegation of powers

Answer 29

BARNARD v NATIONAL DOCK LABOUR BOARD 1953

Question 30

Cases for procedural impropriety

Answer 30

AYLESBURY MUSHROOMS 1972
- Failed to inform mushroom growers of a decision = decision ineffective and subject to JR
MAGILL 2002
- Doesn’t have to actually be a bias only
‘Would a person conclude there was a real possibility that the tribunal was biased?’ - Lord Lane
COOPER 1893
- Must be a fair hearing if there’s a decision being made
LIVERPOOL TAXI 1972
- If given an assurance something will occur = raises legitimate expectation of outcome that must be met
DOODY 1993
- Reasons must be given

Question 31

S6(1) HRA 1998

Answer 31

‘It is unlawful for a public authority to act in a way that is incompatible with a convention (ECHR) right’

Question 32

Which articles of ECHR then become relevant in JR

Answer 32

A6 - right to a fair trial
A8 - right to private/family (cases involving removal from homes)
A10 - freedom of expression