Judicial Review Flashcards
the operation of JR?
JR fulfils a particular function w/in the constitution in allowing the individual to challenge the decisions made by the state.
NOT all decisions made by the state are subject to JR…
first thing to consider, is whether the particular decision is subject to JR.
the constitutional significance of JR
JR is a mechanism to ensure the accountability of the executive power within the constitution.
as such, it allows the courts (under certain circumstances) to rule on the legality of how executive powers are exercised and whether they have been exercised in the manner intended.
when discussing JR…
can introduce references to a no. of different aspects of constitutional law:
- JR is a mechanism for the judiciary to exert control over the executive, part of the ‘separation of powers’.
- similarly, JR is limited to secondary legislation, it provides a safeguard to ensure delegated powers are NOT misused.
JR as a challenge to process:
JR is a CHALLENGE TO THE PROCESS not the decision itself.
e.g. whether the powers given to the decision-making body were used correctly.
which decisions are susceptible to JR?
IT MUST BE :
- a decision made by a public body (Khan & Datafin)
- the decision must be made under delegated powers.
the decision must be made by a public body case 1
R V Disciplinary Committee of the Jockey Club, ex parte Aga Khan:
CASE FACTS:
- Horse belonging to Khan was disqualified from a race by the Disciplinary committee after failing a drugs test.
- Khan sought JR of the committee’s decision
LEGAL PRINCIPLE:
- held, that the Jockey club was NOT a public body and therefore its decisions were not subject to JR.
- the relay between the club and its members was a matter of private law.
Hoffman LJ: ‘I do not think that one should try to patch up the remedies available against domestic bodies by pretending that they are organs of government.’
the decision must be made by a public body case 2
R v Panel on Mergers and Takeovers ex parte Datafin plc
CASE FACTS:
- the panel was established by the city of london in order to regulate the takeovwer and merger of companies.
- datafin sought JR of a panel decision to reject a complaint which it had made.
LEGAL PRINCIPLE:
- given the public importance of its role, the panel could be regarded as a ‘public body’ and so its decisions could be subject to JR.
Nicholls LJ: ‘given… the statutory source of the powers and duties of the Council of the Stock Exchange, the wide-ranging nature and importance of the matters covered by the code, and the public law consequences of non-compliance, the panel is performing a public duty in prescribing and operating the code.’
the decision must be made under delegated powers…
- primary legislation can delegate powers to a person or body to implement secondary legislation (rules, regulations, code of practices etc) which is why such provisions are also known as ‘delegated’ legislation.
- this is central to the operation of JR, bcos only decisions made under such delegated powers are open to JR.
- crucially, primary legislation i.e. an act of parl, is NOT subject to JR.
bringing an action of JR:
An action for JR is commenced in the HC but requires permission (formerly known as the ‘leave’) of the court. In bringing an action, you must satisfy the court of two elements:
- the existence of a prima facie case i.e. that there appears to be a case to answer
- that the claimant has loctus standi i.e. the right to bring the case.
LOCUS STANDI
means ‘do you (rather than someone else) have the right to bring this case?
- this is usually expressed in terms of having ‘sufficent interest’ in the disputed matter.
intended to prevent frivolous and time-wasting actions from so-called ‘vexatious litigants’
Locus standi for JR
R v Inland Revenue, ex parte National Federation of Self-Employed and Small businesses:
CASE FACTS:
- the fed sought to challenge the Inland Revenue’s procedures for levying taxes on casual workers engaged by Fleet Street Newspapers.
- the fed argued that their members (who did not benefit from this arrangement) were, therefore, disadvantaged.
LEGAL PRINCIPLE:
- it was held by HOL that, as the taxation arrangement did NOT apply to the individual members of the federation could not bring an action.
Lord Roskill:
‘it cannot be said that the respondents had a ‘sufficient interest’ to justify their seeking relief claimed by way of JR.
ALTHOUGH, it may be possible…
for a claimant to bring an action where they have NO direct interest if there is a wider point of public interest to be decided by the action.
R v HM Inspectorate of Pollution, ex parte Greenpeace
CASE FACTS:
- enviromental group greenpeace sought to bring an action to challenge the policy of discharging toxic waste from the Sellafield nuclear plant into the Irish sea.
LEGAL PRINCIPLE:
- it was held that, although Greenpeace clearly was not directly affected by the policy, the facts it was an internationally recognised organisation
- w/access to resources and epertise, meant it was MUCH better equipped to bring an action that the actual residents affected by the policy.
Otton J:
‘ it seems to me that if I were to deny standing to Greenpeace, those it represents might not have an effective way to bring the issues before the court.
enduring concerns over the misuse of JR…
which have resulted in reforms to the application process and time limits…
Barrett and Gordon
grounds for JR
AN action must be brought on one or more ‘grounds’ (reasons) as set out in Council of Civil Service Unions V Minister for the Civil Service ‘the GCHQ’
there are only three grounds on which an action may be brought, but note that it is possible to argue that more than ONE of the grounds apply.