Judicial Review

Question 1

what are 3 sources of governmental power?

Answer 1

1. acts of parliament
2. prerogative
3. contract

Question 2

what is judicial review concerned with?

Answer 2

how public authority exercises its wide discretionary power

Question 3

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

Answer 3

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

Question 4

judicial review is a review of ..

Answer 4

.. legality

Question 5

Intra Vires?

Ultra Vires?

Answer 5

within their legal powers

outside their legal powers

Question 6

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

Answer 6

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

Question 7

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

Answer 7

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?

Question 8

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

Answer 8

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

Question 9

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

Answer 9

• 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

Question 10

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

Answer 10

Datafin

Question 11

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

Answer 11

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

Question 12

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

Answer 12

‘sufficient interest’

Question 13

Rose Theatre Trust case?

Answer 13

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.

Question 14

Greenpeace case?

Answer 14

when banding together does produce sufficient interest. JR allowed.

Question 15

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

Answer 15

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

Question 16

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

Answer 16

1. wednesbury unreasonableness

2. relevant/irrelevant considerations

Question 17

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

Answer 17

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

Question 18

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?

Answer 18

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

Question 19

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

Answer 19

Barnard v National Dock Labour Board (1953)

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

Question 20

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

Answer 20

Padfield v Minister for Agriculture (1968)

Question 21

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?

Answer 21

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

Question 22

What is the leading case in Wednesbury Unreasonableness?

Answer 22

Associated Provincial Picture House v Wednesbury Corporation (1948)

Question 23

what is Wednesbury unreasonableness? (background)

what does ‘reasonable’ mean?

Answer 23

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

Question 24

what are the two elements of Wednesbury unreasonableness?

Answer 24

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’

Question 25

Relevant/irrelevant considerations case?

Answer 25

Wheeler v Leicester City council (1985)

Question 26

Do the courts use Wednesbury unreasonableness and irrationality interchangeably?

Answer 26

Yes

Question 27

What are the two basic kinds of procedural impropiety?

Answer 27

1. Statutory procedure breach | 2. Breach of common law principles of natural justice

Question 28

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

Answer 28

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

Question 29

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

Answer 29

(appeal, reasons, consultation) 1. must publicise right to appeal 2. duty to provide reasons 3. duty to consult

Question 30

Duty to consult case law? | what requirements of consultation does it lay down?

Answer 30

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

Question 31

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

Answer 31

R v Newport City Council (2009)

Question 32

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 =

Answer 32

- is the aim/purpose undermined? - did disregarding the procedure lead to some injustice for the individual? = mandatory = directory

Question 33

Foundational concepts of natural justice =

Answer 33

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

Question 34

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

Answer 34

- 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)

Question 35

2 types of legitimate expectation?

Answer 35

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

Question 36

what is procedural legitimate expectation? | Case law?

Answer 36

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

Question 37

Fair hearings case law?

Answer 37

Ridge v Baldwin (1964)

Question 38

Rule against bias case law?

Answer 38

R v Sussex Justices ex p McCarthy (1924)

Question 39

Two types of bias?

Answer 39

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

Question 40

Test for bias? Case law?

Answer 40

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'

Question 41

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?

Answer 41

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 ...