Judicial Review Grounds Flashcards
Three heads of judicial review (grounds)
Illegality (formerly ultra vires)
Irrationality (formerly unreasonableness)
Procedural impropriety
Illegality definition
An ultra vires use of powers can be found if the authority
- Exceeds the limits of a public function
- Unauthorised delegations of a public function
- Commits errors in law and fact
A decision maker can also abuse their power, which will happen if
- They exercise their function on the basis of irrelevant considerations
- They attempt to further improper purposes
- The decision maker has fettered their discretion
Acting in excess of powers
There are two subdivisions:
- express limitations upon a public function must be respected, which include statute prohibiting an action (White&Collins and Fulham Corporation).
- implicit requirements upon public functions, i.e. running a scheme according to proper business principles or economic soundness (Bromley BC v GLC [1983] and ex p WDM).
Unauthorised delegation of a public function
Public functions cannot be delegated further (Barnard v National Dock Labour Board [1953]) unless they are ministers delegating work to civil servants (the Carltona Principle). This is subject to the fact that some functions cannot be delegated at all and delegation must be to a suitable candidate (Chief Constable of the West Midlands Police [2002]).
Fits in with GREEN LIGHT vision of jud review as it expands the functions of government rather than restricts.
Errors of law and fact
Law: as in Anisminic, the courts can correct errors of law and declare decisions null as they are the ultimate arbitrators of statute.
Fact: E [2004] established that for a mistake of fact to declare a decision a nullity, it must be a mistake of fact, it must have been established (objective verification), C must NOT have been responsible for the mistake and the mistake must have been material in the decision maker’s reasoning.
Abuse of powers
This takes into account if the decision maker
- They exercise their function on the basis of irrelevant considerations
- They attempt to further improper purposes
- The decision maker has fettered their discretion
It is to prevent use of powers against the spirit of a statute (Padfield [1968]).
Relevance of a decision maker’s considerations
A decision maker cannot make a decision based on considerations not provided for, however benevolent (Wheeler v Leicester CC [1985]).
Likewise a single intention, despite being ‘good’ cannot be the only consideration in a decision (ex p Fewings [1995]).
Actions could still be ultra vires despite being democratically approved (Bromley v GLC [1983]).
Public support or disapproval is an irrelevant consideration to legal redress (ex p Venables [1998]).
Thus, while politically motivated decisions can be made, statutory powers cannot be used for purely political endeavours (Porter v Magill [2001]).
Exercising a power for improper purposes
The dominant purpose for making a decision is sought by the courts (Porter v Magill, Fewings).
The test is what is the purpose of the action? In ex p Westminster Council [1986] (using advertisement budget to influence public opinion against govt education cuts) it was found to influence public opinion and not ‘provide information’ which was what the power was conferred for.
Fettering of discretion
This can be done by overly rigid rules (British Oxygen [1971]). In this case the rules had not been so rigidly applied anyway.
Likewise in ex p Hindley stating a definitive statement (which would fetter discretion) can be rebutted by the fact that the decision maker (the home sec) will actually review parole in light of pertinent factors in the future.
Irrationality definition
Irrationality applies to arbitrary as opposed to illegal exercises of power. The Wednesbury test will be applied in three scenarios:
- Where a decision falls within a particular expertise of a decision maker the court will be more reluctant to intervene (the super Wednesbury test).
- Where a decision involves particular interests of an individual the courts will more likely intervene (the sub Wednesbury test).
- The normal Wednesbury test
Wednesbury unreasonableness (irrationality) formulation of the test
The modern test was formulated in the Wednesbury case. In this case, a town council sought to restrict the use of the town’s cinema on Sundays by using their licencing power to not allow children to attend the cinema on Sunday’s unsupervised by an adult. The cinema sought to have this arbitrary use of power quashed. The test was formulated that the courts would intervene if it involved ‘something so absurd that no sensible person could ever dream that it lay within the powers of the authority.’ This case itself failed the test.
The test was reformulated by Diplock in GCHQ to requiring ‘a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’
Use of Wednesbury
- Few cases are successful
- In ex p Croydon LBC a court found that the Croydon Council education Committee’s decision to not allow a child to join an already full school was not unreasonable. Even though the classes should have had 30 students and already had 36, drawing the line at this child was not unreasonable or arbitrary.
- An example of a case finding irrationality is in Re Duffy [2008]. In this case, it was found that the Sec of State’s decision to appoint two members of the Orange Order to the Parades Commission of Northern Ireland was irrational. This is because the commission was set up to quell violence in parades in northern Ireland and two members of a particularly violent group had been appointed to the detriment of peace in the country. therefore no reasonable minister would have come to the same decision as this one.
Wednesbury variations
- In cases of special expertise decision making, Wednesbury is more strictly applied (i.e. the decision must be MORE irrational). Public financial administration is stringently looked at by the courts (ex p Nottinghamshire CC [1986]).
- In cases of grave personal impacts, reasonableness is considered to a greater degree. Thus in ex p Smith [1998] in which homosexuals were being discriminated a greater degree of reasonableness was required but the court eventually did not strike down the rule as it had been considered and approved by Parliament.
What happens where serious fundamental rights questions are made by expertise decision makers? (sub v super Wednesbury)
In R (Rogers) v Swindon NHS Primary Care Trust (PCT) [2006] a breast cancer patient was denied a special drug as it was not approved by the National Institute of Clinical Excellence (NICE). She challenged this decision for irrationality, and PCT countered saying that there were still safety concerns around the drug. The court found that while her life was at stake, this alone could not overcome concerns regarding the allocation of scarce resources. Nevertheless in this case the court could disregard these concerns as there were instances where the PCT would permit the drug to be prescribed by the NHS. This was key in finding the decision of the PCT irrational. It was therefore found that rejecting applications without considering the clinical need was irrational.
Proportionality?
It is applied in EU and ECHR law.
It was mentioned in GCHQ as a potential to be a head of review one day. It would be a much lower bar for claimants to clear than in irrationality as it requires that the courts look at how a decision is reached, and the decision maker’s efforts to balance the claimant’s interest against the public interest.
Ex p Brind [1991] closed off the possibility of proportionality as no other law lords agreed with Diplock. This case concerned the ban on the broadcast of proscribed terrorist organisations. The claimant contended that this was a disproportionate interference with the reporter’s ability to present balanced news report, but it was outright rejected for extending the judicial role too far. It was found that a wednesbury approach would be much preferred.
