Judicial Review Flashcards
What is judicial review?
Judicial review allows a High Court judge to examine the lawfulness of decisions made by public bodies carrying out their public functions or enactments. Judicial review focuses on the way public bodies make their decisions.
What are the grounds of judicial review?
Clarified by Lord Diplock in GCHQ, the grounds are illegality, irrationality and procedural impropriety.
What do you think is the purpose of judicial review and what is the constitutional basis for it?
Judicial review is one of the key ways of providing legal redress against public bodies and ensuring that they are legally accountable even when no other forms of redress are available within the domestic system. It is therefore of constitutional importance, giving practical effect to the rule of law.
Explain the core idea of Illegality.
According to Lord Diplock in the GCHQ case, illegality means that the decision-maker must understand correctly the law that regulates his decision making power and must give effect to it. Whether he has or not is to be decided, in the event of a dispute, by the judges.
What is the ultra vires doctrine?
A public body must not go beyond its powers
What is a jurisdictional error?
A jurisdictional error is a mistake of law which takes a public body outside the powers it has been given to inquire matters and make decisions
Key case: Anismninic v Foreign Compensation Commission
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Key case: Wheeler v Leicester City Council
e.g. improper purpose
In this case, Leicester City Council banned a leading rugby club from using a recreation ground for 12 months because several players accepted invitations to participate in tours of South Africa. LCC had a policy of withholding support for and discouraging sporting links with South Africa because of the county’s apartheid practice. The House of Lords held that the council had power under s71 1976 Act to consider the best interests of race relations when exercising its statutory discretion in the management of the recreation ground but that in the absence of any infringement of the law or any improper conduct by the club, the resolution penalizing it for its failure to support the council’s policy by complying with the insistence on a public condemnation of the tour, amounted to exercising a statutory power for an improper purpose.
What is meant by irrationality?
Irrationality means unreasonableness which is now linked to the principle of proportionality.
Unreasonableness is a comprehensively used term capable of meaning that a person given a discretionary power has, among other things, reached a conclusion which is so absurd that no reasonable authority could ever have come to it.
What is meant by proportionality?
Proportionality requires that there must be a reasonable relationship between the objective being sought and the means used to achieve it.
How did the Human Rights Act 1998 affect things?
Following the Human Rights Act 1998, the court is concerned with whether the claimant’s Convention rights have been infringed, not with whether the public authority has taken them into account.
Where a public authority measure is challenged by way of judicial review under the Human Rights Act 1998 for being disproportionate, it is sufficient for the authority to show that it had proportionate outcomes rather than that its proportionality was addressed during the decision making process.
The key principle of proportionality
Where an administrative decision is made in the context of human rights the court will require a proportionately greater justification before being satisfied that the decision is within the range of responses open to a reasonable decision-maker, according to the seriousness of the interference with those rights.
What is Wednesbury unreasonableness?
See Associated Provincial Picture Houses Ltd v Wednesbury Corporation 1948
Facts: the court of appeal had to decide whether conditions attached to the licensing of cinemas for Sunday opening were reasonable
Principle: For a decision to be unreasonable, it must be so absurd that no sensible person could ever contemplate that it would be within their decision-making power
What does a fair hearing involve?
A fair hearing includes the right to be heard, adequate notice and the right to answer the allegations made. Everyone is entitled to an unbiased hearing.
What does procedural impropriety mean?
It means a breach of the rules of natural justice and failure to comply with statutory procedural requirements.
