Judicial Review Flashcards
Jewell of Judicial Review
Practical implementation of the RoL, taking place primarily through the review of the actions of decision makers - allowing the individual to have courts review how government is acting within the framework of powers given to it by Parliament to ensure it is not acting arbitrarily or ultra vires
Extension of JR to administrative actions
links JR to more substantive ideas of RoL –> not form of appeal (decision itself) but review of the decision making process itself
The 6 preliminary requirements for JR
1) Amenability
2) Time Limits
3) Procedural Exclusivity
4) Standing
5) Exhaustion of alternative remedies
6) Ouster Clauses
Particular grounds of review
Substantive grounds: Illegality, unreasonableness
Procedural grounds: procedural impropriety
Legitimate expectation
1) Amenability
JR applies only to public bodies
Ex parte Datafin
The courts will focus on the nature of the action rather than simply on the identity of the body or the source of its power - this includes bodies that exercise a public function even if they aren’t publicly funded/overseen
=> this includes bodies like the Bar Council (er parte Percival)
Ex parte Aga Khan
The Datafin principle was considered - the Jockey Club was a controller of a significant national activity affecting the public interest, had a monopoly of power
HOWEVER: the court ruled that “neither in its framework nor its rules nor its functions” did it fulfils a government role
Bodies excluded from JR
Bodies that derive their power from the voluntary submission of the parties: sporting bodies, religious bodies
Ex parte Football League
Sporting bodies (such as the FA) are excluded from JR because parties submit voluntarily to their “jurisdiction”
Ex parte Wachmann
Religious bodies are excluded from JR (voluntary submission)
Care Homes - Issues
In practice “governmental” means looking for a statutory relationship of power:
Ex parte Goldsmith
R(A) v Partnerships in Care
Ex parte Goldsmith
Local authorities are under a statutory obligation to make arrangements to provide accommodation, not to themselves provide accommodation –> these arrangements are a matter of private law with a body that does not owe its existence to statute, not enough “statutory penetration” - merely a contractual relationship of private law
R(A) v Partnerships in Care
Here, the private care provider was actually regulated by statute (Mental Health Acts) and there was public interest in ensuring that mental patients were properly cared for –> provider’s decisions in this respect were subject to JR
2) Time Limits for JR applications
Civil Procedure Rules 54.5(1)(b):
claims must be brought promptly and in any case within 3 months - if it could have been brought more promptly, it might not be allowed (Lam v UK)
Lam v UK
ECtHR confirmed that imposing the promptness requirement does not violate Art 6 ECHR
Civil Procedure Rules 3.1(2)(a)
The court may extend the time limit if there is good reason - these must be exceptional though (Ex parte Carswell)
R (Buglife) v Natural England
Where JR involves the enforcement of an EU directive, there is no need for promptness but the ultimate 3 months deadline still applies
Wandsworth LBC v Winder
It is possible to bring public law in as a defence, even after the time limit has expired
3) The Exclusivity Principle
O’Reilly v Mackman (Lord Diplock)
O’Reilly v Mackman
Public Law decisions should be challenged by an application for JR and private law matters by an ordinary action, otherwise there is an abuse of process
Case law challenging procedural exclusivity
Roy v Kensington and Chelsea Family Practitioner Committee
Boddington v British Transport Police
Clark v University of Lincolnshire and Humberside
Roy v Kensington and Chelsea Family Practitioner Committee
Dispute over payment for contract work was brought as private claim. Roy was employed as an NHS GP but also conducted private work - D had withheld some of his pay
–>
Where a case involves both, private and public law, it is acceptable for the aggrieved party to bring an ordinary action - no requirement to do so by way of JR
Clark v University of Lincolnshire and Humberside
Clark, a university student, attempted to sue for breach of contract after she was awarded 0% due to plagiarism
–>
She was able to pursue her claim in contract even though it also concerned public law: held that since the courts have inherent power to sanction parties abusing the court’s process, there is no need to prevent a mixed case being brought
4) Standing
Senior Courts Act 1981, s. 31(3)
Civil Procedure Rules 54
“the court shall not grant permission unless it considers that the applicant has sufficient interest in the matter to which the application relates”
–> single form of proceedings for JR in which all remedies were to be available and same rules of standing apply to all remedies under Order 53
IRC v National Federation of Small Businesses
Being interested is not the same as having an interest - impact on representative actions
IRC: liberalisation of standing rules (set out in Señor Court Act) applied in 2-stage test
1) Preliminar stage: turning away mere busybodies
2) More substantive hearing: merits of the case
Wade and Forsyth: test of merits (IRC)
Effectively substituting standing test with a test for merits, standing being related to the facts of the case rather than the particular remedy sought
Lord Diplock in IRC
test of merits “indicated the rule of law and gets unlawful conduct stopped”
“greatest achievement of the English Courts’ in [his] lifetime”
Ex parte Venables
Individuals have sufficient interest if they are directly adversely affected by a decision relating to any of their public or private rights
AXA General Insurance v HM
For individuals not directly affected, the court may still grant the individual standing, as they acknowledge the importance of public law decisions being open to challenge
Ex parte Leigh
A journalist wanted to challenge a decision that would keep the names of magistrates out of the public domain - he was granted standing as a “concerned citizen”
Pressure groups - standing cases
Ex parte Rose Theatre Trust
Ex parte Greenpeace
Ex parte World Development Movement
Ex parte Rose Theatre Trust
JR was not granted because none of the members would individually have had standing
Ex parte Greenpeace
Given standing because they were a large, respected organisation who brought expert advice to the trial and had a significant number of members in the affected area
Ex parte World Development Movement
Even though none of their individual members were affected, they were given standing because the matter was of public interest and the rule of law was at stake. No other challenger was likely to come forward.
WDM brought expertise to the case
5) Exhaustion of alternative remedies
If there are alternative remedies such as a statutory appeal process (Ex parte Bulger) or alternative methods of dispute resolution (R (Cowl) v Plymouth CC), then such methods must be used before applying for JR
6) Ouster Clauses: Anisminic v Foreign Compensation Commission
There is a presumption against allowing ouster clauses and they will be given the narrowest possible interpretation so as to limit their power, because the courts review their JR powers as inherent (RoL) rather than powers granted them by statute => final safeguard against abuse of power that can’t be ousted
Anisminic v Foreign Compensation Commission
Foreign Compensation Act 1950: “a determination by the FCC shall not be called into question in any court of law”
–> “determination” was interpreted as such that the court held the FCC to have made a purported rather than a real determination and they were told to make the decision again
Since the FCC had made a purported decision, the court’s power was not ousted
Ex parte Ostler
Partial ouster clauses that operate by limiting the time for making a JR application are more likely to be successful than absolute bars (here, clause limited appeals of decisions to a period shorter than the 3 months set by the Civil Procedure Rules 54.5(1)(b) –> allowed)
Sub-grounds of Illegality
1) ULTRA VIRES
2) ERROR OF LAW
3) ABUSE OF DISCRETION
Sub-sub-grounds of ERROR OF LAW
a) Error of precedent fact
b) No evidence
c) Mistake or ignorance of established fact
d) Relevant and irrelevant considerations
e) EXCEPTIONS to error of law
Sub-sub-grounds to ABUSE OF DISCRETION
a) Improper purpose
b) Fettering of discretion
c) Delegation of discretion
ULTRA VIRES cases
check for power created by statute in exam!
- GCHQ
- Westminster v London and North West Railway
- Ex parte Whitham
- AG v Fulham Corporation
- Ex parte Leech
Westminster v London and North West Railway
Actions that are necessary, consequent or incidental to a power inferred by statute (Parliament) will NOT be ultra vires
Ex parte Whitham
The chancellor had set high court fees to encourage alternative dispute resolutions –> ultra vires because right of access to court was obstructed
AG v Fulham Corporation
A local council provided a laundry service instead of a simpler facility for residents to clean their clothes –> held, that the council had no power to set up commercial laundries
Ex parte Leech
The power granted to prison officers to monitor correspondence between prisoners and their solicitors did not include the power to open and read letters –> decision to do that = ultra vires
GCHQ
Lord Diplock’s definition of illegality: “the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it”
ERROR OF LAW: Anisminic v Foreign Compensation Commission
A British company was nationalised after the Suez conflict - such companies were entitled to statutory compensation.
FCC: company not entitled
HoL: error of law because FCC had misunderstood the rules of the statutory compensation scheme
=> every error of law takes a body outside its jurisdiction
a) error of precedent fact (an initial finding of fact that later turns out to be incorrect)
White and Collins: local authority had power to compulsory purchase land that was not parkland. When it attempted to purchase a park, it was held to have made a mistake in its assessment of that land.
Ex parte Khawaja: error as to claimant’s status as immigrant
b) no evidence (if a decision makers finding is unsupported by evidence, it will be reviewable)
Coleen Properties: There was no evidence for the minister’s claims regarding the poor condition of housing
Tameside MBC: There was no evidence for the alleged detrimental effect of reintroducing grammar schools in the country
c) Mistake or ignorance of established fact
E v Secretary of State for the Home Department: E was a member of a banned organisation (Muslim Brotherhood). He claimed that if he were to be deported he could be tortured. Supported by evidence –> decision to deport quashed
Ex parte A: When deciding the compensation available for a rape victim, the CIC Board prioritised a policewoman’s report which said that the victim was exaggerating her injuries and ignored the doctor’s report –> decision to award minimal damaged quashed
E v Secretary of State for the Home Department: 4 criteria for error of fact to be reviewable
Carnwarth LJ:
(i) Mistake as to existing fact
(ii) Fact must have been proven and objectively verified
(iii) Claimant must not be responsible
(iv) Mistake must have played material part in decision
d) Relevant and irrelevant considerations
Ex parte Venables: tariff for child murderer was set by HS, taking into account public outrage. Held, in exercising discretion to set tariff, public outrage was irrelevant to the decision-making process –> decision quashed
Ex parte A: The doctor’s advice (expert) should nor have been disregarded as it was relevant consideration –> decision quashed
e) EXCEPTIONS to Error of law
- Where the error has no effect on the outcome of decision
- Where decision maker is interpreting a technical or special system of rules (Ex parte Page)
ABUSE OF DISCRETION
a) Improper purpose
When a power is granted by statute, it must be used for the purpose that the statute intended - expressly or impliedly
Ex parte Wheeler: CC banned rugby club from using grounds because 3 of its members intended to go on a tour to apartheid South Africa. Held, not to be a purpose intended in statute –> decision quashed
Ex parte Fewings: local authority banned stag hunting on grounds of morality. Held, power to enforce ethical views wasn’t purpose intended by statute
ABUSE OF DISCRETION
b) Fettering of discretion
Ex parte Fire Brigades Union: If the decision maker has been granted discretion, they must actually exercise it
A decision maker can adopt and implement policies at discretion, provided the policy…
… doesn’t amount to a blanket ban (Ex parte A)
… isn’t too flexible (R(Corner House Research) v Director of SFO)
Ex parte Brent
The decision maker’s mind must be “kept ajar” (i.e. open to various options)
Ex parte Collymore
Unlawful fettering of discretion where a policy on student grants had never resulted in a grant, despite a multitude of applications –> when implementing policies, the decision maker must give due consideration to each application
British Oxygen v Board of Trade
Strict policies are allowed provided that there is evidence that individual cases have been decided on their merits.
Policy of the Ministry: no grants for anything that cost less than £25. British Oxygen bought large quantities of cylinders at £20 per cylinder, over years resulting in a cost of 4 million
Lord Reid: Minister couldn’t “shut his ears” and must be willing to listen
ABUSE OF DISCRETION
c) Delegation of discretion
Lavender v Minister for Housing: Where a public body is empowered to make a decision by an Act of Parliament, a decision maker is not normally allowed to delegate it
EXCEPTIONS to delegation
1) Carltona vCommissioner of Works: when the discretion is conferred on a minister, they can delegate that discretion to officials within their department
HOWEVER
2) Ex parte Doody (criminals appealed their life sentences): Where fundamental rights are at stake, the decision cannot be delegated below the level of Junior Minister
3) DPP v Haw: Delegation is permitter if authorised (expressly or impliedly) by statute
EXAMPLE: Local Government Act 1972
UNREASONABLENESS || IRRATIONALITY
Associated Picture House v Wednesbury Corporation (per Lord Greene):
“If a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the court can intervene
(here, the cinema licence condition of no children under 15 allowed in on a Sunday no matter what was not so unreasonable that the court would intervene)
Critique of the Wednesbury test
Controversial, effectively challenging the substance of decision. Also tautologous (overlapping with illegality) and sets quite a high standard
Types of UNREASONABLENESS
1) Material defects in the decision making process not amounting to illegality
2) Oppressive decisions
3) Arbitrary decisions - violations of constitutional principles
1) material defects not amounting to illegality
(a) Imbalance in considering relevant factors
Cox: caught using drugs whilst on parole and was immediately locked up again with no chance of parole –> unreasonable because disproportionately harsh
Duffy: When 2 spaces on the joint parades commission (in NI) arose, only loyalists were appointed –> legal but unreasonable
1) material defects not amounting to illegality
(b) Failing to provide comprehensive chain of reasoning
Rogers: Expensive cancer drugs were denied because Rogers did not meet the Trust’s “exceptional case” criteria. Trust couldn’t define these –> unreasonable
Ex parte Luff: reasonable not to allow a couple to adopt for reasons of age –> comprehensible chain of reasoning and NOT unreasonable
2) Oppressive decision
Ex parte Norney: denying parole to IRA prisoners was oppressive
Ex parte Hook: Loosing a stall licence for urinating in the street was disproportionately oppressive (taking away his livelihood)
3) Arbitrary decisions
Ex parte McCartney: inconsistency - killed a policeman but others who had done similar crimes weren’t refused parole –> unreasonable to refuse him
Intensity of review
Courts have adopted a sliding scale of review depending on the subject matter - broad social and economic policy questions are “super-Wednesbury” - courts will not arbitrate
Ex parte Child B: courts didn’t intervene in a health authority’s decision not to fund a child’s expensive medical treatment when it had very low chances of success
PROCEDURAL IMPROPRIETY
1) statutory impropriety
2) common law procedural impropriety
Statutory procedural impropriety
Aylesbury Mushrooms: failure to observe express procedural rules laid down in statute, breaching mandatory requirement –> invalidated decision
(also ultra vires, but breaching a discretionary requirement might not be)
Common law procedural impropriety
Failure to observe the common law rules of natural justice = DUTY TO ACT FAIRLY (supplemented by Art 6)
2 concepts of DUTY TO ACT FAIRLY
- THE RIGHT TO BE HEARD
2. THE RULES AGAINST BIAS
Ridge v Baldwin
Chief constable dismissed for negligence.
Duty to act fairly applies to both administrative and judicial decisions –> officer entitled to prior notice of charge against him and opportunity to contest
However, administrative decisions do not require as high a level of fairness as judicial decision.
Re HK (an infant)
16-year-old seeking to immigrate to the UK – even where an official (the immigration officer) is not acting judicially, they are still obliged to act fairly, as he had done here
GCHQ (Council of Civil Service Unions v Minister of the Civil Service)
Duty to act fairly does not arise when overriding issues of national security
Ex parte Child B
Duty to act fairly does not apply when rationing of resources.
Here, the AHA did not have to give detailed reasons for choosing not to give expensive cancer drugs to a child.
The right to be heard (i)
(i) notice of the case against
minimum requirement of fairness, so it applies at the lowest level of duty (R v Governors of Dunraven School)
Applicant not necessarily entitled to precise details (ex parte Benaim and Khaida)
Applicant must be given reasonable amount of time to respond and prepare defence (Ex parte Polemis)
The right to be heard (ii)
(ii) right to make representation
Should be an oral hearing unless waived by the applicant (Lloyd v McMahon)
The right to be heard (iii)
(iii) right to call and cross-examine witnesses
Ex parte St Germain: depends on whether legalistic procedure is appropriate –> here, prisoners at risk of losing remission were entitled
The right to be heard (iv)
(iv) right to legal representation
Ex parte Tarrant: seriousness of charge –> more likely that representation necessary
The right to be heard (v)
(v) duty to give reason
Ex parte Doody: duty applies where liberty is at stake or where it would otherwise be impossible for the complainant to mount successful JR case without being given reasons why decision went against them
McInnes v Onslow-Fane: The board was merely obliged to act fairly not to also give reasons
The rules against bias: sub-grounds
(i) direct interest = automatic disqualification
(ii) indirect interest = possible disqualification
Dimes v Grand Junction Canal
A direct interest s where the decision maker has a pecuniary interest, such as shares in a company
Ex parte Pinochet
In extremely significant and politically contentious cases, any appearance of bias cannot be countermanded (here Amnesty membership)
Porter v Magill: test for indirect interest
“whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility of bias”
Unauthorised participation/presence (by someone who might be bias)
Ex parte Chorley: Councillor giving planning permission was also their estate agent –> bias even though he took no active part
Ex parte Hook: Urinated in the streets, committee revoked his licence while he was present –> bias
Pre-formed opinion
R v Kent Police Authority: Police were required to consult a doctor when deciding whether to retire an officer, but consulted the same doctor who had already seen him and believed him to have a mental disorder –> bias
Hamann v Bradford CC: A teacher’s dismissal was subject to two committees, but some people were on both committees –> bias
R (Lewis) v Persimmon Home Teeside: Councillors are entitled to have strong political opinions. So, if they make decisions with an open mind, such views are NOT bias.
Policy Bias
Franklin v Minister of Town Planning:
A policy to prefer to make certain decisions in certain ways (here, being sympathetic to planning applications) is acceptable, as long as a decision-maker considers each case with an open mind
Durayappah v Fernando:
This case created a “sliding scale” – the higher the level of duty the more likely it is to engage parts i. through v. of the right to be heard. For example, if you argued that the duty only applied at a low level, the complainant might only be entitled to notice of the case against (part i.)
Ridge v Baldwin: considering what level of duty applies notice…
The nature of the property owned by the applicant, their office or general status. Here, the chief constable required objective reasons, notice and a hearing.
Also consider the seriousness of the circumstances. Here, negligence was a serious accusation
Cooper v Wandsworth Board of Works: considering what level of duty applies notice…
The harshness of the sanctions potentially imposed. Here, requiring a building to be demolished where planning permission is not sought
Ex parte Liverpool Taxi Fleet
Those considering licence applications are bound to act fairly, but at a lower level
McInnes v Onslow-Fane (application for a boxing manager’s licence)
There is no need to give reasons for rejecting an application, but there is a need to give reasons for revoking a licence, as there is more to be lost
Ex parte Benaim & Khaida (casino gaming licence refused)
Board were required to give basic reasons. This is because they had less discretion than in McInnes v Onslow-Fane, were deciding a defined issue under statute and refusal of a licence here was much more serious
Note on Necessity: duty to act fairly may give way to necessity if the person who would be disqualified is the only one who could make that decision
The Judges v AG for Saskatchewan: Held, the judges were the correct body to decide their own salaries, as they were the only body empowered to do so by the constitution
GCHQ: Held, that the duty to act fairly must give way to national security concerns because the courts are in no position to judge national security issues (separation of powers)
“Legitimate Expectation”
The idea that a promise of some substantive benefit or procedure made by a public body can be considered legitimate and will be legally enforceable
Procedural Legitimate Expectation
An expectation that a particular procedure will be followed, for example a promise that you will be consulted before any changes are made (Ex parte Liverpool Taxi Fleet)
Substantive Legitimate Expectation
An expectation that you will receive a particular benefit or outcome, for example an expectation that you will be allowed to adopt if you meet all the criteria (Ex parte Asif Khan)
Criteria for Legitimate expectation
i. Sufficiently clear promise or conduct: any promise must be clear, unambiguous and unqualified (R v IRC ex parte MFK Underwriting). Any conduct must amount to a sufficiently clear representation (Ex parte Zequivi)
ii. The body must have the legal power to both make and fulfil a legitimate expectation (R (Bibi) v Newham LBC).
This is not overly strict…
R (BAPIO Action) v Secretary of State for the Home Department: A policy promise made by the Home Office could bind another arm of the same government, namely the Department of Education.
iii. It is necessary for the claimant to know of the Legitimate Expectation (R v Ministry of Defence ex parte Walker).
“Reliance” for legitimate expectation
Not necessary, but reliance on a promise to their detriment will assist the applicant in establishing the existence of a Legitimate Expectation and persuading the court that it should be upheld (R (Bibi) v Newham LBC).
When can a legitimate expectation claim arise? (1)
EXPRESS PROMISE/POLICY
Ex parte Coughlan: She was told that the nursing home would be her home for life. She had a legitimate expectation and could therefore not be moved elsewhere.
Ex parte Liverpool Taxi Fleet: Taxi drivers were told that licencing changes would not be made without consulting them. The had a legitimate expectation.
When can a legitimate expectation claim arise? (2)
FROM PAST CONDUCT
Ex parte Unilever: Unilever had filed late tax returns for the last 20 years, so it had a legitimate expectation that they would not be punished for doing it again
Remedies
1) Quashing Order to set aside the public body’s decision.
2) Mandatory Order to require the public body to carry out its duties.
3) Prohibition Order to prevent a public body from acting beyond its powers.
4) Declaration setting out the rights of the parties (see also CPR 54.3).
5) Injunction to prevent a public body from acting/enforcing a decision (see also Senior Courts Act 1981, s. 30).
6) Damages where the public body’s decision has caused loss
Note Civil Procedure Rules 54.3
There is no standalone right to damages in JR – the claimant must also have another cause of action if they wish to also claim damages
