Judicial Review (PQ toolkit) Flashcards by Ben M

Who does the test for standing apply to?

The claimant

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What statutory basis is there for the test for standing?

Senior Courts Act s31: must have sufficient interest in the issue

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For individuals, how should standing be determined

Through logic, application of the Rose Theatre test: does the applicant have any more reason to want the decision made lawfully than any other UK citizen?

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Statutory basis of standing for groups

Senior Courts Act s31: No distinction made between individuals and groups

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Case relevant to the requirement of standing: Groups

Fleet Street Casuals: Confirms that groups can make JR

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4 criteria for standing + case: Groups

Pergau Dam:
1. Importance of issue raised
2. Likely absence of any other responsible challenger
3. Nature of breach of duty against which relief is sought
4. Prominent role of the group in giving advice, guidance, assistance RE aid
- Group cannot be made just for JR
- Group’s focus must be in regards to issue they seek JR for

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What is the three-part structure for analyzing judicial review cases?

Permission Stage → Grounds (4) → Remedies

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What are the 5 key elements to establish at the permission stage?

Amenability - is it within JR reach?
Scope - defendant eligibility
Time limit/ not premature
Arguability
No other method of remedy

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What bodies can be challenged through judicial review?

Bodies exercising statutory functions/”public bodies” (s6 HRA and common law)
Bodies exercising prerogative power (established in GCHQ)
Bodies exercising public functions

“But for” - if the company didn’t exist, would the government have to create a public body? (Datafin)
Private bodies hired by government (YL test)

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Exception to private bodies hired by government

Health and Social Care Act 2008 - s145 states the provision of certain social care is a public function (and therefore subject to JR - reversing YL)

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What is the time limit for judicial review applications, and how can it be shortened?

3 months as per Part 54 Civil Procedure Code
Can be shortened by statute but not by agreement (Smith v East Elloe)
Decision must have already been made (cannot be premature)

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What is the requirement regarding alternative remedies?

No other adequate method of remedy must be available
Aga Khan: use contract law if available

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G1: Illegality: What is the principle in Entick v Carrington (1765)?

Government must have legal authority for its actions, especially when restraining rights

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G1: Illegality: What is the ultra vires principle in judicial review?

When a government acts outside the scope of power given to it

Key case: Anisminic

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G1: Illegality: When can courts intervene for error of law?

Differentiated in Croydon
- Courts intervene if they can give a legitimate answer
- Otherwise defer to authorities who know the situation better
- Look at the process, not the outcome

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G1: Illegality: What are the exceptions to the error of law rule?

E v Home Secretary: if an error of fact gives rise to an “uncontentious and objectively verifiable unfairness”
2. Croydon: some “jurisdictional facts,” even if not objectively verifiable

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G1: Illegality: What is the “improper purpose” ground in illegality?

Key case: Padfield

Not acting in the way Parliament intended
“How Parliament intended you to act” is a matter of court construction
A way of limiting discretionary power

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G1: Illegality: What is “fettering of discretion”?

Key case: ex parte Hindley

Using a rule of thumb rather than considering situations case by case

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G1: Illegality: What is “unlawful delegation of power”?

Key case: Barnard

Giving away power Parliament specifically gave to you

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G1: Illegality: What is “irrelevant considerations” ground?

Key case: Corner House

Determined on a case-by-case basis

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G2: Irrationality: What is Wednesbury unreasonableness according to Lord Greene MR?

Lord Greene:

“if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it”
Requires “something overwhelming”
Not what the court considers unreasonable

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G2: Irrationality: Greene MR, unreasonableness includes a decision:

Made by not properly directing oneself in law
Made by not taking into account a relevant consideration
Made by taking into account an irrelevant consideration

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G2: Irrationality: Where was it stated that Wednesbury unreasonableness was a very high bar

Nottinghamshire City Council

G2: Irrationality: In which cases has Wednesbury unreasonableness been interpreted more widely?

Wheeler and Tameside cases.

G2: Irrationality: Who criticized the wide interpretation of Wednesbury unreasonableness as being "political judgments"?

John Griffith, in Politics of the Judiciary

G2: Irrationality: How do courts approach irrationality when fundamental rights are NOT at stake?

They argue by logic, with largely no heightened scrutiny

G2: Irrationality: What principle did Lord Bridge establish in Bugdaycay regarding fundamental rights?

The principle of "anxious scrutiny" - the more serious the breach of rights, the more justification is needed.

G2: Irrationality: How does the principle of Parliamentary Sovereignty affect interpretation of rights-infringing legislation?

Parliament can legislate to infringe rights, but it needs to be expressly stated; otherwise, courts will not interpret legislation as infringing rights.

G2: Irrationality: What did ex parte B establish regarding justification for rights infringements?

Objective justification is needed.

G2: Irrationality: In which case was proportionality first established, and what was its status in UK law?

Smith and Grady v UK, but as a European Court of Human Rights judgment, it was not binding in UK law.

G2: Irrationality: Which UK case confirmed proportionality as a principle in UK law?

Daly

G2: Irrationality: Which case confimed the test for proportionality?

Bank Mallet: - Is the legislative objective sufficiently important to justify limiting a fundamental right? - Is the measure rationally connected to the legislative objective? - Could a less intrusive measure have been used? - Has a fair balance been struck between the rights of the individual and the interest of the community? (a.k.a. narrow proportionality or proportionality stricto sensu)

G3: Procedural Impropriety: What is the key case establishing the right to fair trial in procedural impropriety?

Cooper v Wandsworth.

G3: Procedural Impropriety: What additional requirement did Doody add to the right to fair trial?

The defendant must be informed of the gist of the charges against them.

G3: Procedural Impropriety: What did the AF case establish about special advocates in national security cases?

Special advocate systems are allowed by courts as long as enough information is given to the defendant so they can help their advocate advise them.

G3: Procedural Impropriety: How did AOP extend the special advocate principle?

It established that special advocates can be used in civil procedures.

G3: Procedural Impropriety: What is actual bias in judicial review?

When there is demonstrable bias that immediately disqualifies the decision-maker.

G3: Procedural Impropriety: What type of bias was at issue in Dimes?

Financial interest

G3: Procedural Impropriety: What type of bias was at issue in Ezsias?

Decision made before proper process.

G3: Procedural Impropriety: What type of bias was at issue in Pinochet involving Lord Hoffman?

Direct association - Lord Hoffman's association with Amnesty International (his wife was a secretary there).

G3: Procedural Impropriety: What is the general test for bias established in Porter v McGill and confirmed in Yiacoub v The Queen?

"A fair-minded and informed observer, having known the facts, would decide that there is a real possibility that there was bias."

G3: Procedural Impropriety: How does Article 6 ECHR relate to bias in public authority decision-making?

In determining someone's civil rights and obligations, they must be judged by an independent and impartial tribunal.

G3: Procedural Impropriety: How are planning decisions treated regarding bias?

There is an appropriate bias permitted, but it is countered by the availability of judicial review (Bryan v UK, Alconbury).

G3: Procedural Impropriety: How are welfare schemes treated regarding Article 6 ECHR and bias?

They are not considered to involve "civil rights" (Begum, Ali v UK, Poshteh)

G3: Procedural Impropriety: Is there a general duty to give reasons in administrative decision-making?

No general duty (ex parte Cunningham), though common law is moving toward one (Oakley).

G3: Procedural Impropriety: What are the two exceptions when reasons must be given according to ex parte Institute of Dental Surgery?

1. When judgment is "so bizarre" → must give reasons 2. When an individual's liberty is at stake → must give reasons

G3: Procedural Impropriety: What remedy is appropriate when there is a duty to give reasons?

Mandatory order/injunction.

G4: Legitimate expectations: In which case did this arise?

Coughlan

G4: Legitimate expectations: Definition

Where authority made a promise or had a past practice, leading to the claimant believing the situation will go a certain way

G4: Legitimate expectations: What if the legitimate expectation is a relevant consideration?

Go to illegality - a relevant consideration wasn't taken into account

G4: Legitimate expectations: If it's one of procedure?

The protection applies whether the expectation was purely procedural or had sustantive elements - this is because courts looks at whether procedure was followed or not

G4: Legitimate expectations: What if the frustration of the expectation would be so unfair as to constitute an abuse of power?

Court's will examine the public authority's justification if these criteria are satisfied: - Promise must be very important - Promise must not be made to many people - Consequences of altering the promise must be likely financial only - Promise must be clear and unambiguous

G4: Legitimate expectations: What is the proportionality test for legitimate expectations?

- Balancing act between expectation and justification

G4: Legitimate expectations: Finucane and Rashid

Finucane - doesn't need to be detrimental reliance on the promise Rashid - Does not need to be aware of the policy that allows them the expectations

Remedies for JR

- Most appropriate remedy would be a quashing order - Prohibiting order - Mandaroty order - Declaration - Injunction - Damages (HRA

Arguability: Which case determined it must be "sufficiently arguable"?

Fleet Street Casuals