Judicial Review - Grounds

Question 1

What is judicial review?

Answer 1

where a court judicially reviews the actions of a public body to ensure they have acted within their powers

Question 2

What is a judge to a judicial review concerned with?

Answer 2

They are not concerned with the merits of the case, but the lawfulness of the decision

Question 3

How does the rule of law interlink with judicial review?

Answer 3

One of the principles of the rule of law is that there is a proper legal basis for decisions and power is not exercised in an arbitrary manner. Judicial review ensures that justice is done and holds all equally accountable. It prevents the exercise of power that does not have a lawful basis.

Question 4

How does the principle of separation of powers interlink with judicial review?

Answer 4

Judicial review is an example of the separation of powers in effect:
 The legislature decides how much decision making power the executive should be given
 The executive exercises this power
 The judicial oversees the use of this power with judicial review

Question 5

What grounds can a judicial review be brought on?

Answer 5

o Illegality
o Irrationality
o Procedural impropriety

‘European’ grounds:
o Breach of ECHR
o Breach of retained EU law (not on syllabus)

Question 5

How does the principle of parliamentary soveriegnty interlink with judicial review?

Answer 5

Judicial review upholds this principle as they usually don’t question primary legislation, only secondary.

Also, the point of judicial review is to ensure that the body has acted within the powers granted to it by Parliament.

Question 6

What do the grounds of illegality and irrationality consider?

Answer 6

The substance of the decision.

When dealing with an SBAQ, a challenge under these grounds is looking at the decision itself.

Question 7

What does the ground of procedural impropriety consider?

Answer 7

The procedure

When dealing with an SBAQ, a challenge under this grounds is looking at the procedure follower

Question 8

What are the head under illegality?

Answer 8

1. Acting without legal authority
2. The rule against delegation
3. Fettering of discretion
4. Using powers for an improper or unauthorised purpose
5. Dual purposes
6. Taking account of irrelevant considerations or failing to take account of relevant considerations
7. Error of law
8. Error of fact

Question 8

When will an action be ultra vires? What does this mean?

Answer 8

Re the illegality ground:

An action is illegal (i.e. ultra vires) if it is beyond the powers of the public body in question because they do not have the requisite power or they have exceeded or abused it in some way

Question 9

re: illegality ground

what is meant by acting without legal authority?

Answer 9

Public authorities cannot act without legal authority / the public body exceed the powers given by statute

Question 10

re: illegality ground

what is meant by the rule against delegation?

Answer 10

There is a general rule that once Parliament has given decision-making powers, these cannot be further delegated.

Question 11

re: illegality ground

what are the exception to the rule against delegation?

Answer 11

The Carltona Principle i.e. Government ministers can sub-delegate decision-making powers to civil servants in their departments.

S101 Local Government Act 1972 i.e. Local Authorities can delegate decision-making powers to committees, sub-committees and individual offices provided they make a formal resolution to do so

Question 12

re: illegality ground

what is meant by fettering of discretion? How does this happen?

Answer 12

Generally, if Parliament provides a public body with a discretionary power, the courts will not permit the body to restrict (/fetter) that discretion.

Fettering of discretion happens in two ways:
o Acting under the dictation of another; or
o Applying a general policy as to the exercise of discretion in too strict a manner

Question 13

What is meant by fettering discretion ‘applying a general policy as to the exercise of discretion in too strict a manner’?

Answer 13

Decisions may need to be taken in large numbers i.e. planning application so it is sensible to have a policy to reach consistent decisions, but that policy must not be so strict as to ‘fetter discretion’

Question 13

Give an example of fettering discretion - acting under the dictation of another

Answer 13

L&S had been refused planning permission. The minister’s decision letter stated he would not grant permission unless the Minister of Agriculture did not oppose. This was JR’d.

The court agreed with L&S and that whilst the minister was entitled to have a general policy, the decision had not been based on a policy but on another minister’s objection. The minister had fettered his discretion by not opening his mind to the application.

Question 14

Give an example of fettering discretion ‘applying a general policy as to the exercise of discretion in too strict a manner’?

Answer 14

The MOT had a policy of awarding grants for items that cost at least £25. C spent £4m on oxygen cylinders but each unit only cost £20. Therefore, upon strict application of the policy, C’s application was rejected.

The HOL said that the MOT had a right to form its own policy but that did not preclude them from considering individual cases. They must be willing to listen to anyone with something new to say BUT the HOL did find MOT had acted lawfully.

Question 15

re: illegality ground

Give an example of using powers for an improper or unauthorised purpose

Answer 15

the Gov announced that the price of TV licences would increase. C was one of many people who took out a new TV licence before the old one expired to avoid the price increase. The Gov wrote to these people and demanded payment for the extra cost or their licence would be revoked. This was JR’d and it was held the Gov had no authority to revoke licences in this way and would be a misuse of the power conferred by Parliament.

Question 16

re: illegality ground

what is meant by dual purpose?

Answer 16

The DM should not use its powers to cover two (or more) different purposes if one (or more) of those purposes is unlawful and it materially influences the decision. However, if the authorised purpose was the dominant purpose then the decision will stand.

Question 17

re: illegality ground

what are the tests in relation to dual purpose?

Answer 17

o Primary purpose test [1905] - where there are dual purposes behind a decision, provided that the permitted/authorised use is the ‘primary purpose’ then the decision is not ultra vires

o Material influence test [1986] - where there are two purposes and one is unauthorised the question is ‘was the authority pursuing an unauthorised purpose which materially influenced its decision?’

Question 18

re: illegality ground

what are examples of taking account of irrelevant considerations and/or failing to take account of relevant considerations?

Answer 18

Robert v Hopwood [1925] - the District Auditor had failed to consider the wage of the labour market but had considered ‘socialist philanthropy’ and ‘feminist ambition’

Padfield v Minister of Agriculture [1968] - the minister did not exercise his discretion to order and investigation due to potential political embarrassment. This was an irrelevant consideration.

Question 19

re: illegality ground

what is meant by error of law?

Answer 19

Where the decision-making misunderstand its powers

Question 20

re: illegality ground

what is the best way to consider whether a public body has taken into account irrelevant considerations and/or failing to take account of relevant considerations?

Answer 20

look at the purpose of the policy and whether this aligns with the purpose of the legislation

Question 21

re: illegality ground

what is the position in relation to error of fact?

Answer 21

The courts are more reluctant to allow judicial reviews for errors of fact than law because otherwise the court would be overloaded.

Therefore, only jurisdictional errors of fact are amenable to judicial review.

Question 22

re: illegality ground

what is a jurisdictional error of fact?

Answer 22

Jurisdictional errors of fact are alleged errors of fact that trigger the use of the decision maker’s power

Question 23

re: illegality ground

if the claimant’s case involves a non-jurisdictional fact, what happens?

Answer 23

the courts will defer the decision to the decision-maker designated by statute.

Question 24

re: irrationality

what is the level of proof? What is the reason for this?

Answer 24

Challenges of irrationality require proof of a very high degree of unreasonableness.

This is possibly because the courts could be accused of judging the merits of the decision, rather than if it was made lawfully

Question 25

What tests are to be applied when considering irrationality?

Answer 25

The wednesday principle:

1. Associated Provincial Picture Houses Ltd v Wednesday Corporation
   o The test for unreasonableness is whether, having regard to relevant considerations only, the decision-maker came to a conclusion so unreasonable that no reasonable authority could ever have come to it.
2. CCSU v Minister for Civil Service
   o In order for a decision to be irrational, it must be so outrageous in its defiance of logic, or of accepted moral standards, that no sensible person could have arrived at it

Both tests need to be considered.

Question 26

Examples of irrationality

Answer 26

Wheeler v Leicester City Council [1985] - rugby players from the club were picked to play in the world tour to south Africa. This was during the apartheid. LCC said it was up to the players to decide if they wanted to go. They did and then LCC banned the club from using the grounds. JR succeeded.

R (DSD and others) v Parole Board [2018] - a rapist admitted to 12 offences but there was information to the parole board that he had committed 80. The parole board didn’t undertake a further inquiry into his re-offending and this was deemed to be irrational.

Question 27

What are the forms of procedural impropriety?

Answer 27

o The rules of natural justice / doctrine of procedural fairness

o Procedurally ultra vires

Question 28

What are the rules of natural justice?

Answer 28

These are rules that have derived from the common law. There are two rules:
o The rule against bias
o The right to a fair hearing

This means they have been created by the judiciary (i.e. an unelected body) as opposed to the legislature. However, they are an accepted part of administrative law.

Question 29

What does procedural ultra vires consider?

Answer 29

This looks at whether procedural requirements set out in statute have been breached

Question 30

When do the rules of natural justice apply?

Answer 30

They only apply where the decision maker has a judicial function, not a legislative function

Question 31

re: procedural irregularity

what is meant by the rule against bias?

Answer 31

A decision-maker should have no personal interest in the outcome of the hearing of the decision. This will depend on whether their interest is direct or indirect.

Question 32

re: procedural irregularity

what will the court usually do if the interest is direct?

Answer 32

The court is normally obliged to automatically quash the decision as bias is presumed

Question 32

re: procedural irregularity

what is a direct interest?

Answer 32

Established direct interests include:
o Financial gain (Dimes v Grand Junction Canal Proprietors (1852))
o Proprietary interests
o Non-pecuniary interests i.e. a shared interest or belief with one of the parties

Question 33

re: procedural irregularity

what is the test for an indirect interest?

Answer 33

‘would a fair-minded and impartial observer conclude that there had been a real possibility of bias?’

In other words, it is not about whether the bias did affect the decision, but whether it would appear likely that it could

Question 34

re: procedural irregularity

what is the position if a relative of the decision maker has a direct interest?

Answer 34

This does not automatically make it a direct interest – this would need to be investigated.

Question 35

re: procedural irregularity

give an example of an indirect interest

Answer 35

R v Pintori [2007] - the juror knew some of the officers who had arrested D. The court held there was a real possibility of bias (whether consciously or unconsciously) as she knew them

Question 36

re: procedural irregularity

what is a summary of the right to a fair hearing?

Answer 36

The right to a fair hearing is flexible and depends on the context of each individual case but there is a duty on decision maker to act in good faith and to listen to both sides fairly

Question 37

re: procedural irregularity (right to a fair hearing)

how is it established what needs to be done in order to ensure fairness is achieved?

Answer 37

What needs to be done in order to achieve fairness will depend on the claimant’s interest (i.e. how much they have to lose)

Question 38

re: procedural irregularity (right to a fair hearing)

What are the three categories of claimant?

Answer 38

o Forfeiture claimants
o Legitimate expectation claimants
o Application claimants

Question 39

re: procedural irregularity (right to a fair hearing)

irrespective of the claimant’s interest, what are the minimum requirements for a fair hearing in all cases?

Answer 39

o C is entitled to a hearing that is fair and reasonable in all the circumstances
o C should have been given notice of the case against him;
o C should be given an opportunity to refute any evidence brought against him prior to any decision being taken

Question 40

re: procedural irregularity (right to a fair hearing)

when does the right to fair hearing not apply? Give an example.

Answer 40

If the decision is only preliminary

Lewis v Heffer [1978] - officers had been suspended. They sought to JR this. this was refused as they were only suspended pending investigation and a final decision had not been made.

Question 41

re: procedural irregularity (right to a fair hearing)

what is meant by a ‘forfeiture’ case? What does this mean in terms of the level of fairness expected?

Answer 41

C has the most to lose such as livelihood or their job / C has been deprived of something they once enjoyed.

More will be expected in order for the hearing to be fair i.e. a right to an oral hearing, the claimant must know the case against them and have the right to reply at the end of each decision-making stage

Question 42

re: procedural irregularity (right to a fair hearing)

what is meant by a ‘legitimate expectation’ case? What does this mean in terms of the level of fairness expected?

Answer 42

It is legitimate for C to expect that an established practice would continue when seeking renewal or confirmation of a licence, membership or office they previously held, or renewal of a payment (i.e. benefits)

The requirements for a fair hearing in this case will very much depend on the expectation the decision maker created

Question 43

re: procedural irregularity (right to a fair hearing)

when dealing with a ‘legitimate expectation’ case what are the outcomes available to the court?

Answer 43

o There has been a procedural legitimate expectation
o There has been a substantive legitimate expectation
o The public body only needs to bear in mind its promise or practice

Question 44

re: procedural irregularity (right to a fair hearing)

what is meant by the outcome ‘there has been a substantive legitimate expectation’?

Answer 44

the decision maker has led someone to believe that he or she will receive a benefit and to frustrate this expectation would be so unfair it would amount to an abuse of power. This is quite rare.

Question 44

re: procedural irregularity (right to a fair hearing)

what is meant by the outcome ‘there has been a procedural legitimate expectation’? Give an example.

Answer 44

The decision maker has failed to follow normal procedure.

R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators [1972]  Liverpool CC gave taxi drivers an assurance that if they were to grant more licences they would be consulted. LCC passed more licences and didn’t consult. The was JR’d and LCC should have upheld their undertaking.

Question 45

re: procedural irregularity (right to a fair hearing)

what are the key points in relation to a public body’s policy?

Answer 45

o Even if there is an internal policy the claimant has no knowledge of, the public body should still apply the policy unless it has good reason not to do so.

o A public body will not normally be legally bound to maintain a policy it has reasonably decided to change unless they have made a specific undertaking to an individual / group that the policy will continue. This will amount to a substantive legitimate expectation.

Question 46

re: procedural irregularity (right to a fair hearing)

once the court has established a substantive legitimate expectation, what will the court do? Give an example.

Answer 46

the court will weigh of the requirement of fairness to the individuals against any overriding public interest relied on by the public policy to justify the change.

Example - C was injured in an accident and left disabled. She agreed to be moved to a new care facility on the basis that this would be her home for life. The health authority and facility had made verbal and written assurances to this effect. A few years later, the authority wanted to close the facility as it was expensive.

The court decided that there was a substantive legitimate expectation that C would live there for the rest of her life and there was no overriding public interest to justify the breach of her legitimate expectation. The decision to close the facility was quashed.

Question 47

re: procedural irregularity (right to a fair hearing)

what happens if the court reaches the decision that ‘the public body only needs to bear in mind its promise or practice’?

Answer 47

The court is confined to reviewing the decision on the grounds of irrationality

Question 48

re: procedural irregularity (right to a fair hearing)

what is meant by an ‘application’ case? What does this mean in terms of the level of fairness expected?

Answer 48

C is a first time applicant (even if they make more than one application at a time) who seeks a licence, membership or office they have not previously held

A lot less will be required for the hearing to be considered fair. Natural justice in this instance only requires that the decision maker act honestly and without bias

Question 49

re: procedural irregularity (right to a fair hearing)

is there a duty for a public body to give reasons for their decisions?

Answer 49

There is no general duty for a public body to give reasons for their decision. However, if the case involves one of the following, reasons for the decision will need to be given for fairness to be upheld:
o Where the legal subject matter is particularly important (i.e. personal liberty)
o Where the decision is aberrant / ‘cries out for explanation’, reasons should be given.

Question 50

re: procedural irregularity (right to a fair hearing)

is there a right to an oral hearing and cross examination of witnesses?

Answer 50

There is no automatic right to an oral hearing and cross examination of witnesses. However, all cases have a right to a fair and reasonable hearing in all the circumstances. Therefore, it might be fair and reasonable to allow an oral hearing and cross examination, particularly in a forfeiture case

Question 51

re: procedural irregularity (procedural ultra vires)

what is being considered on a case brought under this head?

Answer 51

whether a decision-maker has complied with statutory procedural requirements sometimes placed upon them by the wording of an enabling Act of Parliament that gives them powers

Question 52

re: procedural irregularity (procedural ultra vires)

what is the test in relation to this?

Answer 52

o Is the requirement is mandatory or directory?
o What was parliament’s intention for failure to comply with the requirement? Was it intended that failure would render the decision unlawful?

Question 53

re: procedural irregularity (procedural ultra vires)

what is the effect of failure to comply with a directory requirement?

Answer 53

the decision will not be invalid

Question 54

re: procedural irregularity (procedural ultra vires)

what is the effect of failure to comply with a mandatory requirement?

Answer 54

the decision will be invalid on the grounds of procedure ultra vires

Question 55

re: procedural irregularity (procedural ultra vires)

what will the court consider when deciding whether a procedural requirement is mandatory or directory?

Answer 55

o The wording of the act; and
o Whether C is substantially prejudice by the non-compliance with an important procedural safeguard

Question 56

re: procedural irregularity (procedural ultra vires)

Give an example of procedural irregularity

Answer 56

Bradbury v London Borough of Enfield [1967] - s13 of Education Act 1944 required local education authorities to give notice if a school would be closed or a new school opened. D failed to give such notice arguing that had it done so, chaos would have ensued. The Court agreed with C holding this to be a mandatory requirement.

Coney v Choyce [1975] - s13 of the EA 1944 required notice to be given in 3 places. The Authority placed notice in 2 / 3. The court found in favour of the authority. This was deemed to be a directory requirement.

In Bradbury, the authority hadn’t bothered to meet the requirement at all, so C was substantially prejudiced. Whereas in Coney, C had other opportunities to see the notice so were not substantially prejudice.