Judicial review: Grounds Flashcards
Quick q:
A statute (fictitious) gives power to care home inspectors to make a closure order closing down care homes where the standard of care is poor. The statute provides that, before making a closure order, the care home inspectors shall give the owner of the care home the opportunity to make oral representations at a full hearing. Care home inspectors have written to a care home owner telling him that they plan to make a closure order closing down his care home due to a number of complaints of poor care having been made about it. The letter explains that the care home owner can make representations in writing within the next two weeks, following which the care home inspectors will make their final decision. The care home owner makes written representations, following which the care home inspectors make a closure order. The care home owner intends to bring a claim for judicial review of the care home inspectors’ decision.
Is the care home owner likely to succeed in his claim?
Yes, because the requirement to allow the care home owner to make oral representations at a full hearing is a mandatory procedural requirement as Parliament are likely to have intended that failure to comply with the requirement would make the closure order invalid.
Option B is correct. The issue is whether the local authority has failed to comply with a mandatory procedural requirement or a directory one. Non-compliance with the former renders a decision invalid on grounds of procedural ultra vires, whereas failure to comply with a directory requirement does not. An important factor that the court will take into account is the wording of the statute itself. According to the facts, the statute provides that local authorities ‘shall’ allow care home owners to make representations; this points towards a mandatory obligation to consult. However, the language used is not conclusive.
Case law also shows that where a claimant is substantially prejudiced by non-compliance with an important procedural safeguard, the courts are likely to rule a statutory requirement is mandatory. Another question is whether Parliament would have intended the consequence of non-compliance with the relevant statutory requirement to be the invalidity of the decision. This seems likely, as closure of the care home will deprive the care home owner of his livelihood. Accordingly, options D and E are wrong for suggesting the requirement is merely directory or guidance as to good practice respectively.
Option A is wrong as the local authority did have the legal authority to order the closure of the care home, provided it followed the correct procedure. Acting without legal authority (one of the headings under illegality) arises when a decision-maker does not have the power at all to take a given decision, no matter how properly it tried to act.
Option C is wrong as, in the absence of statutory authority, the seriousness of the matter does not dispense with the need to observe procedural requirements.
Three domestic grounds for judicial review
Illegality, irrationality and procedural impropriety. Irrationality is sometimes referred to as ‘Wednesbury unreasonableness’.
Wednesbury unreasonable
A decision will be ‘Wednesbury unreasonable’ if it is so unreasonable that no reasonable authority could ever have taken it.
Procedural ultra vires
beyond the powers
Fettering discretion
There must be a real exercise of discretion - the local authority should not slavishly follow rules or policies it has created (fettering discretion). The authority to whom the person applies should take the decision and must not delegate the decision to any other person or body.
Illegality judicial review
Fettering discretion; acting without legal authority; wrongful delegation; error of law and taking account of irrelevant considerations.
Three academic theories concerning the constitutional justification for judicial review
Common law theory, modified ultra vires theory, and ultra vires theory.
(1) Ultra vires theory: This theory holds that the constitutional justification for Judicial Review is based on the supremacy of Parliament. In exercising their powers of review, the courts ensure that a public body does not act beyond those powers conferred upon it by Parliament.
(2) Common law theory: This theory emphasises Judicial Review as arising from the common law. Although it does not dispute that most public bodies derive their powers from Parliament, this theory holds that the grounds for Judicial Review are judge-made, and that the basic justification for judicial review lies in the principles of good and fair administration, and natural justice. Such rules appear to be rooted in the desire to ensure that decisions are made in a fair manner.
(3) Modified ultra vires theory: This theory has been developed by Forsyth and Elliott. They argue that, whilst the courts are upholding parliamentary supremacy in that it is Parliament which grants discretionary powers to public bodies, the courts ensure that such discretionary powers are exercised fairly and in accordance with the rule of law.
Test for irrationality set out in the landmark Wednesbury case
That the SoS has acted so unreasonably that no reasonable decision-maker would ever have made the decision.
Actual and apparent bias
A fair-minded and impartial observer would conclude that there was a ‘real possibility’ that the decision-maker had been biased and so the decision will breach the rule against bias.
Illegality dual purpose
The correct option is option A. The purpose of the Act is to ease traffic congestion in city centres. The local authority gives two reasons for converting the existing yellow lines into red lines, namely (1) to ease congestion in the city centre and (2) to generate revenue through fining those who park on them. The first purpose is consistent with the aims of the Act (intra vires) but the second is not. The unlawful purpose appears to have materially influenced the decision to convert the lines (R v ILEA) as it was mentioned in the statement from the council
4 types of procedural impropriety.
Bias, lack of reasons, fair hearing, natural justice.
