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Public Law > Judicial Review > Flashcards

Judicial Review Flashcards

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1
Q

what are 3 sources of governmental power?

A
  1. acts of parliament
  2. prerogative
  3. contract
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2
Q

what is judicial review concerned with?

A

how public authority exercises its wide discretionary power

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3
Q

what is dicey’s conception of the rule of law at the basis of judicial review development?

A

‘government should act according to the law’; ‘equality before the law’; ‘no arbitrary powers’

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4
Q

judicial review is a review of ..

A

.. legality

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5
Q

Intra Vires?

Ultra Vires?

A

within their legal powers

outside their legal powers

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6
Q

judicial review is a common law creation; does this mean?

A

it has been created by the judges, for the judges; not laid down in an act, but case based

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7
Q

a judge decides the admissibility of a case by asking 4 questions; what are they?
(checks reasonable chance of success)

A
  1. Is the body in question one which can be judicially reviewed?
  2. Is the decision a public law decision?
  3. Does the applicant have standing?
  4. What are the grounds/arguments being made?
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8
Q

what is the time limit on JR?
case law for this?
reasoning for the time limit?

A

3 months, unless the statute states otherwise. This is very strict. Finn-Kelcey v Milton Keynes [2009]
Reasoning = JR is about government acting legally, an important issue, which must be bought to the publics attention as quickly as possible

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9
Q

public vs private divide - whose decisions are amenable to JR?

A
  • must be a public body
  • must be exercising a public power
  • if private, is the function governmental in nature
  • wholly private bodies are not subject to JR
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10
Q

body must be public - what is the case law for this?

A

Datafin

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11
Q

GCHQ [1984] - Lord Diplock sets out the modern framework for JR by splitting it into 3 headings - what are these?

A

Illegality, Irrationality (wednesbury unreasonableness), Procedural Impropriety (natural justice)

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12
Q

what is the legal test for standing in a JR decision?

A

‘sufficient interest’

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13
Q

Rose Theatre Trust case?

A

when banding together does not produce sufficient interest.
where individuals in a case have no personal interest, a group cannot claim a greater interest by banding together. the interest must already be there. JR dismissed.

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14
Q

Greenpeace case?

A

when banding together does produce sufficient interest. JR allowed.

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15
Q

How can illegality (first category of review) be broken down?

A
  1. simple ultra vires
  2. wrongful delegation
  3. improper purpose
  4. fettering discretion
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16
Q

How can irrationality (second category of review) be broken down?

A
  1. wednesbury unreasonableness

2. relevant/irrelevant considerations

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17
Q

How can procedural impropriety (third category of review) be broken down?

A
  1. statutory procedure protections
  2. fair hearings
  3. rule against bias
  4. a duty to give reasons
  5. legitimate expectations
  6. remedies
18
Q

Simple ultra vires = acting outside the law/without the power to act
The action carried out must relate to the power, through statute or delegated legislation etc
Case law?

A

R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (2001)

19
Q

Wrongful delegation = only the person who has the power to do something can exercise that power
Case law?
Exception to the rule?

A

Barnard v National Dock Labour Board (1953)

Delegation from ministers to civil servants generally acceptable (alter ego of the minister)

20
Q

Improper purpose = where power is vested in decision maker for one purpose, but used for a different purpose
Case law?

A

Padfield v Minister for Agriculture (1968)

21
Q

Fettering discretion = to ‘restrain’ the exercise of discretion is illegal i.e. if you are vested with discretion, you must exercise it, no decision maker must ever ‘shut its ears’ on a case, no matter what, because this policy dictates such conduct
Case law?

A

R v Port of London Authority ex parte kynoch Ltd (1919)

22
Q

What is the leading case in Wednesbury Unreasonableness?

A

Associated Provincial Picture House v Wednesbury Corporation (1948)

23
Q

what is Wednesbury unreasonableness? (background)

what does ‘reasonable’ mean?

A

Parliament legislates to confer power, believing that those who exercise it will act reasonably.
Definition by Court determines how far the court will interfere with the discretion of the decision maker; must not replace decisions just because the court would have acted differently

24
Q

what are the two elements of Wednesbury unreasonableness?

A
  1. ‘a person entrusted with discretion must call his own attention to matters he is bound to consider and exclude from consideration matters which are irrelevant to what he has to consider. If he does not obey these rules, he is said to be acting unreasonably’
  2. ’ if a decision on a competent matter is so unreasonable that no reasonable authority would ever have come to it, the courts can interfere. But to prove a case of this kind would require something overwhelming’
25
Q

Relevant/irrelevant considerations case?

A

Wheeler v Leicester City council (1985)

26
Q

Do the courts use Wednesbury unreasonableness and irrationality interchangeably?

A

Yes

27
Q

What are the two basic kinds of procedural impropiety?

A
  1. Statutory procedure breach

2. Breach of common law principles of natural justice

28
Q

Procedural impropriety has a ‘sliding scale approach’ - what does this mean?

A

it is highly fact dependant; the more serious the harm suffered, the more the courts will seek to enforce procedural protections

29
Q

3 types of procedures? (procedural impropriety - statutory protection procedures?

A

(appeal, reasons, consultation)

  1. must publicise right to appeal
  2. duty to provide reasons
  3. duty to consult
30
Q

Duty to consult case law?

what requirements of consultation does it lay down?

A

R v Brent LBC exp Gunning (1985)

  1. consultation must be made when proposals are at the formative stage, before counsel has made up their mind
  2. must be reasons given for proposal
  3. adequate time must be given for consideration and response
  4. product of consultation must be well taken into account when formulating decision
31
Q

Flawed consultation may mean that the policy is irrational (unreasonable, no reasonable authority would have done that)
Case law?

A

R v Newport City Council (2009)

32
Q

Even when a procedure is contained within a statute, and that procedure is not followed, it is not necessarily ultra vires … the court considers the aims and purposes of statutes - what are these?
If the court considers procedures of high value =
If the court considers procedures of lesser value =

A
  • is the aim/purpose undermined?
  • did disregarding the procedure lead to some injustice for the individual?
    = mandatory
    = directory
33
Q

Foundational concepts of natural justice =

A
  1. right to a fair hearing
  2. rule against bias
  3. a duty to give reasons
  4. legitimate expectations
  5. remedies
34
Q

what remedies are available for JR? (detail of each)

A
  • declaration (declaring the legal position between the two parties)
  • mandatory order (court mandates specific action - this is generally unusual) / prohibiting order (court prohibits authority from doing something)
  • injunction (to prevent a defendant authority from taking specific action
  • quashing order (putting the applicant back in the position he would have been in if the decision had not been taken)
35
Q

2 types of legitimate expectation?

A
  1. procedural legitimate expectation

2. substantive legitimate expectation (it is never this!)

36
Q

what is procedural legitimate expectation?

Case law?

A

this arises when a representation or practice of a decision maker leads the individual to believe a procedure (i.e. a hearing) will be followed

AG fur Hong Kong Shipping (1983) - created a legitimate expectation of a fair hearing

37
Q

Fair hearings case law?

A

Ridge v Baldwin (1964)

38
Q

Rule against bias case law?

A

R v Sussex Justices ex p McCarthy (1924)

39
Q

Two types of bias?

A
  1. Financial interest

2. Personal interest (Pinochet case) i.e. membership of an organisation or familial interests

40
Q

Test for bias? Case law?

A

Porter v Magil (2001)
‘whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias’

41
Q

a duty to give reasons = no general duty to give reasons in common law; but may be required case to case basis
(same sliding scale approach as in fair hearing etc)
Case law?

A

R v Secretary of state for the home department ex p Doody (1994)
&
Ex part institute for dental surgery: it comes down to whether it is fair and just in the circumstances to require the decision maker to provide reasons …

Public Law (5 decks)

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