Judicial Review - Grounds

Question 1

What are the grounds for Judicial Review?

Answer 1

Illegality
Irrationality
Procedural impropriety

Question 2

What are the five ways to act illegally?

Answer 2

Beyond the limits of your power (ultra vires)
Irrelevant considerations or improper purposes
Fettering of discretion
Breach of fiduciary duty
Bad faith

Question 3

What was held in the case of Attorney-General v Fulham Corporation [1921] 1 Ch 440?

Answer 3

Could a legal power allowing a council to provide facilities for residents to wash their clothes be used to provide a laundry service?

Question 4

What was held in the case of Westminster Corporation v LNWR [1905] AC 426?

Answer 4

Suppose a public body has a legal power to do X but not Y – and the public body does X and Y at the same time. Has the public body acted illegally?

Question 5

What is the key thing to note with Irrelevant considerations and improper purposes?

Answer 5

Consider relevant considerations and act for proper purposes = lawful decision

Consider irrelevant considerations or act for improper purposes = unlawful decision

Question 6

Relevant considerations: The public sector equality duty - Equality Act 2010

Answer 6

(1) A public authority must … have due regard to the need to —
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act …

Question 7

What is held if the act does not specify relevant considerations?

Answer 7

It is for the courts to decide what is a relevant consideration.” Lord Keith in Tesco Stores v Secretary of State for the Environment [1995] 2 All ER 636

Question 8

Are moral values considered?

Answer 8

R v Somerset CC ex parte Fewings [1995] 3 All ER 20 - moral considerations are a major component of society

Question 9

Is a desire to punish someone a proper purpose

Answer 9

“The club could not be punished because they had done nothing wrong”

Lord Templeman, Wheeler v Leicester City Council [1985] AC 1054

Question 10

Breach of fiduciary duty

Answer 10

“… the executive appears to be required to operate according to ordinary business principles”

Lord Keith, Bromley LBC v Greater London Council [1983] 1 AC 768 at p. 833

Question 11

Bad Faith meaning -

Answer 11

“bad faith … means dishonesty”

R v Derbyshire CC ex parte Times Supplements (1991) 155 LG Rev 123

Question 12

The ground of irrationality?

Answer 12

“a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question could have arrived at it.”

Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case) [1985] AC 374

Question 13

Constitutionally dangerous ground?

Answer 13

“If a decision is described as being ‘absurd’ or ‘outrageous in its defiance of logic’ the merits of the decision are clearly being questioned.”

Neil Parpworth “Constitutional and Administrative Law” (Oxford University Press 2018) p. 304

Question 14

What were the principles held in R v Ministry of Defence ex parte Smith 1996?

Answer 14

Was the decision beyond the range of responses available to a reasonable decision maker?
When a decision interferes with human rights, more justification is needed
The greater the policy content, the more difficult it will be to prove irrationality

Question 15

What about proportionality?

Answer 15

R (on the application of Daly) v Secretary of State for the Home Department [2001] 2 AC 532
Was a disproportionate interference with a prisoner’s privacy irrational?

Question 16

The ground of procedural impropriety

Answer 16

Failure to comply with a statutory procedural requirement:

Aylesbury Mushrooms [1972] 1 All ER 280

Question 17

When do you have a right to have heard?

Answer 17

Harrow Community Support v Secretary of State for Defence [2012] EWHC 1921 (Admin): there is a duty to consult when there is a:-
Statutory duty
Promise
Practice
In exceptional cases, where there would be conspicuous unfairness without consultation

Question 18

What about promise/practice - right to be heard?

Answer 18

Promise
Liverpool Taxi Operators [1972] 2 QB 299
Practice
The GCHQ case [1985] AC 374

Question 19

Forms of cases -

Answer 19

Licence cases
McInnes v Onslow-Fane [1978] 3 All ER 211
Forfeiture cases (losing a licence)
Legitimate expectation cases (renewing a licence)
Application cases (applying for a licence)

Question 20

Do public bodies have to give reasons for their decisions?

Answer 20

R v Gaming Board ex parte Benaim and Khaida [1970] 2 QB 417

No duty to give reasons when refusing an application for a licence to run a casino

Question 21

The duty to act impartially

Answer 21

Pecuniary interest: automatic disqualification
Dimes v Grand Junction Canal (1852)
Pecuniary interest: automatic disqualification
Dimes v Grand Junction Canal (1852)

Non-pecuniary interest
Locabail v Bayfield [2000] QB 451
“real danger” means a “real possibility”

Non-pecuniary interest
R v Gough [1993] AC 646
A “real danger” of bias

Non-pecuniary interest may also lead to automatic disqualification
R v Bow Street Magistrates’ Court ex parte Pinochet [2000] 1 AC 119

Question 22

Can a connection through a decision-maker’s family indicate bias?

Answer 22

R v Westminster Magistrates Court [2019]
A judge granted a taxi licence to Uber. United Cabbies argued that the judge was biased. The judge’s husband was a director of a company. One of the company’s clients, QIA, invested in Uber’s parent company. The judge’s husband had advised QIA, but not in relation to Uber. Neither her husband nor the judge knew that QIA was an investor in Uber