Judicial review

Question 1

Grounds of judicial review

Answer 1

Illegality, irrationality, procedural impropriety

Must show at least one of these to raise a claim.

Question 2

What is illegality?

Answer 2

Decision maker must understand the law that regulates his decision making power and must give effect to it.

Question 3

What is irrationality?

Answer 3

‘Wednesbury unreasonableness’ - a decision that is so outrageous in its defiance of logic or accepted moral standards that no sensible person could have arrived at.

Question 4

What is procedural impropriety?

Answer 4

decision-maker has failed to follow procedures laid down by legislation

Question 5

Authority for what judicial review can do

Answer 5

P.cane, administrative law

Question 6

Points to consider when a judicial review action is brought forward for breach of a convention right under the human rights act 1998.

Answer 6

Claim must be brought against a public body
Claimant must be a victim of the unlawful act
Claimant must show there has been a breach of one of the convention rights
The court can grant any remedy that it normally has the power to grant and grant damages.

Question 7

overview of judicial review:
what do you need?
what must you challenge on the basis of?
and what test must it satisfy?

Answer 7

you need sufficient interest for judicial review
must be able to challenge on the grounds of either illegality, procedural impropriety or irrationality.
decision made by someone to whom a power has been delegated.

Question 8

give an example of a case that a party had no interest to sue

Answer 8

scottish old peoples welfare council, petitioners 1987

Question 9

what act changed the court’s way of judicial review?

Answer 9

courts reform (Scotland) act 2014 s89 
changed to being allowed 3 months to bring a claim 
must also have sufficient interest

Question 10

in England, it was that you could only bring an action if it was a public body and not a private body but what case changed this? can you remember what was said and who said it?

Answer 10

in West v Secretary of state for Scotland, it was shown that Jurisdiction does not depend upon a distinction between ‘public’ and ‘private’ law.

“The competency of the application does not depend upon any distinction between public law and private law” - Lord Hope

Question 11

describe the tripartite test in 3 steps

Answer 11

1. person taking the decision( being challenged)
2. person or body granting power to the decision maker
3. person seeking review and/or remedy (affected party)

Question 12

where was the tripartite relationship demonstrated? (golf club case)

Answer 12

Crocket v Tantallon Golf clob

Question 13

remedies of judicial review

Answer 13

quashing orders
interdict
prohibitory orders
declaration

Question 14

what case demonstrated the separation of powers in judicial review?

Answer 14

R v Cambridge Health Authority, not the court’s job to look at the reasons for the decision but rather the lawfulness of the decision

Question 15

quashing order

Answer 15

shows that the decision was never valid and was always invalid so was never law. quashes the decision after it has happened.

Question 16

prohibitory orders

Answer 16

preventing an unlawful act from taking place where such action is planned

Question 17

injunction

Answer 17

preventing an unlawful act from taking place- can be done in Ordinary- allows for a temporary injunction

Question 18

declaration

Answer 18

statement about a legal matter which has no legal effect but is likely to be respected via ministers.-ordinary-

Question 19

to go on like nothing has happened

Answer 19

collateral challenges to administrative measures

Question 20

(illegality) authorization

Answer 20

the public body does not have authority to carry out tasks e.g. adding in wash baths.

Question 21

(illegality) errors of law and of fact

Answer 21

the decision maker may get an area of law wrong

area of fact, the decision maker may get the facts of a dispute wrong

Question 22

(illegality) failure to exercise discretion: delegation

Answer 22

a delegate is not allowed to delegate

Question 23

(illegality) failure to exercise discretion: deference

Answer 23

a delegate cannot be bound by views of others

Question 24

(illegality) failure to exercise discretion: policy

Answer 24

a decision maker may have a policy but must remain willing to decide each case on its merits.

Question 25

(illegality) failure to exercise discretion (abuse): proper/improper purposes

Answer 25

powers may only be used for the purposes for which they were given

Question 26

(illegality) failure to exercise discretion (abuse): relevant/improper factors

Answer 26

decision makers must take into account all relevant factors and no irrelevant factors.

Question 27

(procedural impropritory) compliance with procedure: mandatory

Answer 27

mandatory: where if procedure is not followed then becomes invalid.

Question 28

(procedural impropritory) compliance with procedure: advisory

Answer 28

advisory: where if a technical or trivial requirement is not followed then may not result in being held invalid and may still be lawful.

Question 29

(procedural impropritory) procedural fairness and natural justice (rule against bias): direct bias

Answer 29

direct bias: improper intrest in outcome of the case

Question 30

(procedural impropritory) procedural fairness and natural justice (rule against bias): indirect bias

Answer 30

indirect bias: does it look like there may be bias? e.g. family member of judge.

Question 31

(procedural impropritory) procedural fairness and natural justice (the fair hearing rule): list of rights

Answer 31

list: people must have a right to be heard if the decision strongly affects them.

must be told if an action is raised against them before trial.

must be allowed to make their own argument in the court.

judge has a duty to give reasons why a judgement is made.

Question 32

(irrationality) Wednesbury Test: strict application

Answer 32

Difficult to satisfy – not helpful for claimants seeking to challenge public authorities’ decision

Question 33

(irrationality) Wednesbury Test: Lenient Application

Answer 33

The more significant the issue at stake, the greater the courts’ scrutiny

Question 34

(proportionality): what is it?

Answer 34

court to consider whether the extent of the interference is greater than is reasonably necessary to achieve the legitimate aim.

Question 35

(proportionality):test

Answer 35

R (on the application of Daly) v Secretary of State for the Home Department.
prison officers searched the cells of inmates and legal documents with their solicitors were exposed.
held: unreasonable and could carry out this procedure a different way.

Whether the measure taken are rationally connected to the legitimate aim
Whether the measures taken are of no more than is necessary to achieve the legitimate aim

Question 36

proportionality test only applies when?

Answer 36

Proportionality test applies only where EU law and Human Rights Act 1998 [ECHR] engaged