Judicial Review Flashcards
Definition of judicial review.
A public law remedy for holding the government to account
Is judicial review an appeal?
No. JR only considers the legality of an authority’s actions, not the facts or merits of the action.
How is judicial review exercised in Scotland?
JR is exercised in the supervisory jurisdiction of the Court of Session.
Court’s role to supervise exercise of executive power.
When is judicial review triggered?
Whenever it is claimed that an ‘administrative body’ has exceeded its powers.
- Moss’ Empires Ltd v Glasgow Assessor.
What administrative bodies are subject to judicial review?
Adminsitrative bodies that have jurisdiction - usually conferred in primary or secondary legislation.
- West v Secretary of State for Scotland
Difference between intra and ultra vires?
Intra: acting within power
Ultra: acting outwith power
What is the relevance of the tripartite test? What case was it established in?
- West v Secretary of State for Scotland
For a decision to be subject to judicial review there must be:
- source of decision making power
- party to whom the decision making is entrusted
- party who is affected by the decision
What is the terrirotial scope of judicial review? (case)
Petitioner must show sufficient connection with Scotland e.g. residency, geography of harm.
- Tehrani v Sec of State for Home Department
What is the significance of the AXA case?
- removed locus standi “title and interest” and replaced it with sufficient interest
What remedies are given?
Most common remedy is reduction.
- “right a wrong in public law”
- not an appeal process to win damages
What are the grounds for judicial review? (case)
- CCSU v Minister for Civil Service “GCHQ case”
- illegality, proportionality, procedural impropriety
- Diplock acknowledged proportionality may develop as a ground
Are the grounds for JR the same in Sco and Eng?
Yes. No substantial difference between jurisdictions.
- West v Secretary of State for Scotland
- process of decision making is reviewed under same grounds
Categories of illegality.
- excess of powers
- error of law
- unlawful delegation
- unlawful fettering
- improper purposes
- relevance
Definition of illegality.
- GCHQ case
- decision maker must act within corner of its powers
- must give effect to this decision making power
What are two transport related cases that demonstrate excess of powers?
Illegality.
- D&J Nichol v Dundee Harbour Trustees (running pleasure cruises was not a power given in statute)
- Bromley LBC v Greater London Council (giving cheap transport breached fiduciary duty owed to its taxpayers)
When is an error of law reviewable? (case)
- Watt v Lord Advocate
Only ultra vires errors of law in Scotland (any in Eng), where the decision maker has failed to properly apply the law.
What is the Carltona principle?
Unlawful delegation.
Delegation of powers to civil servant from minister is not unlawful, where provided for in law. This extends to Scotland.
What is unlawful delegation? Examples.
An authority has wrongly subdelegated as statute does not give this power.
Ellis v Dubowski (delegation to police to decide film time screenings was deemed unlawful)
Somerville v Scottish Ministers (officials and minsiters may be delegated in relevant circumstances)
What is unlawful fettering? Examples.
Decisions constituting an unlawful rule e.g. blanket ban giving no possibility to individual circumstances.
Sagnata (blanket ban on amusment parks constrained what was expected under law, fettered its discretion)
Miss Behavin (blanket ban was lawful as it related to human rights)
Centralbite (policy must consider a genuine consideration of an application)
What did the Coughlan case establish?
Court can be reviewed for failure to fulfill a legitimate expectation.
Authority held to abuse power by shutting down care home despite promises in form of contract.
What would be regarded as an improper purpose?
Authority making a decision outwish power conferred.
- Highland Regional Council v British Railways Board (ghost trains was held to be improper use of discretion)
When can a body be reviewed for relevance?
Where a decision has taken irrelevant considerations into account. Power will be within statute.
Venables (Public pressure was irrelevant to extending sentencing. Deprivation of liberty must only be by reference to law)
R v Somerset Council (not required to consider all relevant considerations)
Categories of procedural impropriety.
- Breach of express provision
- Breach of implied provision:
- natural justice and fairness
- legitimate expectations
- right to be heard
- rules against bias
- duty to give reasons
When will JR apply to breach of an express provision?
- public body acts ultra vires
- does the correct thing following the wrong procedure
