Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

PLAIR > Judicial Review > Flashcards

Judicial Review Flashcards

1
Q

Definition of judicial review.

A

A public law remedy for holding the government to account

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Is judicial review an appeal?

A

No. JR only considers the legality of an authority’s actions, not the facts or merits of the action.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

How is judicial review exercised in Scotland?

A

JR is exercised in the supervisory jurisdiction of the Court of Session.

Court’s role to supervise exercise of executive power.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

When is judicial review triggered?

A

Whenever it is claimed that an ‘administrative body’ has exceeded its powers.

  • Moss’ Empires Ltd v Glasgow Assessor.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What administrative bodies are subject to judicial review?

A

Adminsitrative bodies that have jurisdiction - usually conferred in primary or secondary legislation.

  • West v Secretary of State for Scotland
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Difference between intra and ultra vires?

A

Intra: acting within power
Ultra: acting outwith power

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What is the relevance of the tripartite test? What case was it established in?

A
  • West v Secretary of State for Scotland

For a decision to be subject to judicial review there must be:

  1. source of decision making power
  2. party to whom the decision making is entrusted
  3. party who is affected by the decision
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What is the terrirotial scope of judicial review? (case)

A

Petitioner must show sufficient connection with Scotland e.g. residency, geography of harm.

  • Tehrani v Sec of State for Home Department
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What is the significance of the AXA case?

A
  • removed locus standi “title and interest” and replaced it with sufficient interest
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What remedies are given?

A

Most common remedy is reduction.

  • “right a wrong in public law”
  • not an appeal process to win damages
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What are the grounds for judicial review? (case)

A
  • CCSU v Minister for Civil Service “GCHQ case”
  • illegality, proportionality, procedural impropriety
  • Diplock acknowledged proportionality may develop as a ground
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Are the grounds for JR the same in Sco and Eng?

A

Yes. No substantial difference between jurisdictions.

  • West v Secretary of State for Scotland
  • process of decision making is reviewed under same grounds
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Categories of illegality.

A
  • excess of powers
  • error of law
  • unlawful delegation
  • unlawful fettering
  • improper purposes
  • relevance
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Definition of illegality.

A
  • GCHQ case
  • decision maker must act within corner of its powers
  • must give effect to this decision making power
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What are two transport related cases that demonstrate excess of powers?

A

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)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

When is an error of law reviewable? (case)

A
  • 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.

17
Q

What is the Carltona principle?

A

Unlawful delegation.
Delegation of powers to civil servant from minister is not unlawful, where provided for in law. This extends to Scotland.

18
Q

What is unlawful delegation? Examples.

A

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)

19
Q

What is unlawful fettering? Examples.

A

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)

20
Q

What did the Coughlan case establish?

A

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.

21
Q

What would be regarded as an improper purpose?

A

Authority making a decision outwish power conferred.

- Highland Regional Council v British Railways Board (ghost trains was held to be improper use of discretion)

22
Q

When can a body be reviewed for relevance?

A

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)

23
Q

Categories of procedural impropriety.

A
  1. Breach of express provision
  2. Breach of implied provision:
    - natural justice and fairness
    - legitimate expectations
    - right to be heard
    - rules against bias
    - duty to give reasons
24
Q

When will JR apply to breach of an express provision?

A
  • public body acts ultra vires

- does the correct thing following the wrong procedure

25
Q

What case removed the distinction of mandatory and directory procedural requirements?

A

Project Blue Sky v Australia Broadcasting Authority
- laid out factors to determine breach of statutory requirement

**Wang v Commissioner Inland Revenue
R v Soneji

26
Q

What is the significance of the R v Soneji judgment? In which judgment was it approved?

A
  • removed mandatory/directory procedural requirements
  • did parl. intend total invalidity as a consequence of non-compliance

Approved in Shahid v Scottish Ministers.

27
Q

An example of breach of express provision.

A

Moss’ Empires Ltd v Assessor for Glasgow (theatre valuation)

- failure to inform those who decision affects have a right to appeal = decision reviewable

28
Q

Does natural justice apply to decision making?

A

Yes. Ridge v Baldwin.

However, breach of ‘audi’ principle only occurs in certain circumstances.

29
Q

When can an authority depart from normative principles?

A

R (Roberts) v Parole Board

  • where there is a justification
  • where individual is treated with minimum fairness
30
Q

What does the maxim “nemo iudex in sua causa” mean?

A

No man should be a judge in own cause. Relates to rules against bias.

31
Q

Distinguish between cases of automatic and possible disqualification in relation to bias.

A

Pinochet. (Hoffmann’s interest in Amnesty Int. led to automatic qualification)
Porter v Magill (creation of the fair minded/informed observer test for possible disqualification)
Locabail (possible disqualification is decided based on all the facts and observer test)
Belize (previously lay members)

32
Q

Is there a general duty for an authority to give reasons?

A

Lutton v General Dental Council (no general rule requiring reasons)
Stefan v General Medical Council (if reasons have been given, these can however be reviewed)
If reasons reveal error of law, no defence that there was no duty.

33
Q

How has the ground of irrationality developed?

A

GCHQ > decision so outrageous in logic

Wednesbury > conclusion so unreasonable no reasonable authority could come to it

  • failure to take factors into account or considered factors unecessary leading to an unreasonable conclusion
34
Q

How is “Wednesbury reasonableness” assessed?

A

Court can only consider legality and merits of a decision.

- method of anxious scrutiny where a human rights matter is at debate

35
Q

Examples of irrationality.

A

Gerry Cottle’s Circus (council had acted ultra vires in rejecting license application)
La Belle Angele (rejection of nightclub licensing hours in relation to flyposting was irrational)
Woods v Sec of State for Scotland (refusal of student fees beyond deadline was irrational)

36
Q

What is proportionality? 3 factors.

A

Administrative decision should not be more drastic than necessary. Commonly used in EC law.

  • necessary
  • suitable
  • stricto sensu
37
Q

Has proportionality been recongnised by courts as a principle?

A

Kennedy v The Charity Commission (no reason why it should not be, gives structure)
Keyu (suggestion of proportionality replacing Wednesbury reasonableness)
Pham (court dismissed proportionality appeal but recognsied the benefits of it)

38
Q

How should proportionalty be applied in the future?

A
  • R (Mahmood) v Sec of State for Home Dep
    (keeps role of court and decision maker separate)
  • ex p Brind (can only be applied if provided as a formal ground)
39
Q

Why was proportionalty used in the R (Daly) v Home Sec. case?

A

Disproportionate restriction of prisoner’s right to privacy under art8 ECHR.
Courts recognised it should be used where necessary i.e. HRA incorporates ECHR.

PLAIR (10 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions