Judicial Review - Spare Whole Set Flashcards
What is Judicial Review?
…
What is the overarching primary function of judicial review?
To promote ‘good administration’.
What are the three key theories on the functions of judicial review?
- Red Light Theory
- Green Light Theory
- Amber Light Theory
What is the red light theory?
This theory suggests the primary function of judicial review is to keep the powers of government within their legal bounds so as to protect the citizen against their abuse.
What is the green light theory?
This theory suggest the role of administrative law is not act as a brake on the interventionist state, but rather to facilitate legitimate government action towards the public interest. (Facilitating mechanism and good practice template).
What is the amber light theory?
This theory suggests administrative law should encompass both the ‘fire-fighting’ and ‘fire-watching’ functions and find solutions outside as well as inside the courts. (Something of a middle-ground).
What are four differing perspectives on the purpose of judicial review?
- A practical means of enforcing the Rule of Law - Jowell
- A means of securing the improvement of public administration
- A means of securing the accountability of public bodies to users/the electorate
- A means of policing the allocation of public power and supervising the way in which it is exercised
(maybe a combination of all of them)
What are the three key theories that seek to explain the constitutional basis of judicial review?
- Ultra Vires Theory
- Common Law Theory
- Modified Ultra Vires Theory
What is the Ultra Vires Theory?
This says that judicial review is only justified on the sole basis that courts are giving effect to Parliamentary Intention.
What did Baxter say of the Ultra Vires Theory?
‘The self-justification of the ultra vires doctrine is that its application consists of nothing other than an application of the law itself, and the law of Parliament to boot.’
When does the Ultra Vires theory permit courts to intervene and exercise judicial review?
Courts may intervene whenever a decision-maker acts ‘ultra vires’ – that is, beyond the powers conferred on them by legislation. However, administrative acts which are intra vires – within the statutory powers – are lawful and unimpeachable.
What are the advantages of the Ultra Vires Theory of judicial review?
- Legitimacy - the theory is tied to the constitutional doctrine of parliamentary sovereignty, as it is that doctrine which underpins, according to the theory, the right – and duty – of the courts to review administrative decisions and acts. (Self-justification).
What are the disadvantages of the Ultra Vires Theory of judicial review?
- Unrealistic - questions arise as to whether this theory reflect the reality of how judicial review operates, and does it also reflect the only normative ground on which judicial review ought to operate?
- Vagueness Problem - Constraints on power are not static and therefore cannot be referred back to legislative intent. Does it offer us sufficient guidance as to how judicial review principles should be developed and concretised in a given case by the courts?
- Incomplete - it Cannot explain the court’s approach to ‘exclusion clauses’ – Anisminic v Foreign Compensation Commission
What is the Common Law Theory?
This theory says that the principles of judicial review are in reality developed by the courts on grounds of justice, the rule of law, etc.
What did Laws say of the Common Law theory of judicial review?
‘[The principles of judicial review] are, categorically, judicial creations. They owe neither their existence nor their acceptance to the will of the legislature. They have nothing to do with the intention of Parliament, save as a fig leave to cover their true origins. We do not need the fig leaf any more.’
What are the advantages of the Common Law Theory of judicial review?
- Perhaps more realistic or reflective or reality - it perhaps offers a view more consistent with the operation of the doctrine in practice.
What are the disadvantages of the Common Law theory of judicial review?
- Vagueness Problem - this theory is arguably no less vague than the Ultra Vires one.
How does the Common Law Theory of judicial review fail to resolve the vagueness problem?
Principles of justice and fairness (CLT) are no less vague than constraints on power that affect the ultra vires principle. We do not know how justice, fairness, or the rule of law will be fleshed out and concretised in a given case (CLT), just like we doubt how legislative intent will be applied in a judicial review case (UVT).
What is the Modified Ultra Vires Theory?
This theory says that the courts interpret and apply statutes on the assumption that Parliament legislates consistently with a tradition of respect for fundamental constitutional principles. These include the principles of administrative justice reflected in the standards of judicial review.
What did Elliott say of the Modified Ultra Vires Theory?
Elliott exemplified the practical application of the theory behind the Modified Ultra Vires Theory saying - ‘…when Parliament legislates to confer wide discretionary power, ‘the courts are constitutionally entitled…to assume that it was Parliament’s intention to legislate in conformity with the rule of law…’
What are the advantages of the Modified Ultra Vires Theory?
- Realistic - it avoids the implausible argument that Parliament directly intends the various principles of judicial review. It attempts to bridge the gap between respecting parliamentary sovereignty and the reality that many principles of judicial review are judicially created.
What are the disadvantages of the Modified Ultra Vires Theory?
- Failure to account for explicit disregard of Parliamentary Intent - the doctrine still does not account for the judicial review of non-statutory powers and non-statutory bodies and arguably does not address the bypassing of relatively explicit parliamentary intent in Anisminic.
- Vagueness Problem - its reliance on the rule of law and other broad principles does not cure the vagueness problem.
What is the key question in regards to the theories in regards to the constitutional basis/justification of judicial review?
Is a focus on parliamentary legislative intent necessary to legitimise judicial review? Is it sufficient?
On a basic level of comparison how do the three theories on the constitutional justification of judicial review differ?
UV - Principles of JR derived directly from parliamentary intent.
CL - Principles of JR developed by the courts in accordance with CL principles.
MUV - Principles of JR derived directly from constitutional norms.
How does judicial review differ from an appeal?
An appeal stems from legislation subjecting the finding of a public body to, reconsideration on the grounds of the decisions merits, by a tribunal, minister, or even court. Judicial Review is narrower than an appeal and does not involve a consideration of the merits of a decision (rather the legality of the process by which it was made) and may be available where legislation doesn’t provide for an appeal.
In which case was it established that judicial review concerns itself with the legality and not merit of decisions?
R v Somerset County Council, ex parte Fewings - “…[I]n most cases the judicial review court is not concerned with the merits of the decision under review. ‘
What signals the pressure being placed on the traditional distinction between ‘review’ and ‘appeal’?
The speech of Lord Pannick - ‘However inconvenient and embarrassing it is to Mr Grayling to have his decisions repeatedly ruled to be unlawful by our courts … it remains the vital role of judicial review in this country to hold Ministers and civil servants to account in public, not for the merits of their decisions but for their compliance with the law of the land as stated by Parliament.’.
Which case illustrates a practical application of the judicial review process?
R(Evans) v Attorney General (Black Spider Memo Case)
What were the facts of the case?
A Guardian journalist sought the release, under the Freedom of Information Act 2000 (FOIA), of letters Prince Charles wrote to various Government departments. The Government departments refused and the decision was upheld by the Information Commissioner. The Guardian then launched an appeal which made its way to the Upper Tribunal where an order was passed for disclosure of the letters. The Attorney General under s53(2) of FOIA issued a certificate ‘vetoing’ decision of the Upper Tribunal on the grounds of an overriding public interest. Judicial Review was sought of the Attorney General’s veto.
On what grounds was the Attorney General justified/allowed to exercise a power of veto?
According to s.53(2) of the FOIA, a veto could only be exercised when the relevant decision-maker: “[H]as on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure [to comply with relevant provisions of the Act].”
What was the key issue for the Supreme Court to decide in the Evans Case?
The key issue for the Supreme Court to decide was the correct test for ‘reasonable grounds’.
What did the Supreme Court have to determine in deciding ‘reasonable grounds’ in the Evans Case?
They had to consider whether the statutory provision entitling a veto (s. 53(2) of the FoIA) allowed a member of the executive (The Attorney General) to overrule a decision of the judiciary (the relevant Upper Tribunal).
What did the Supreme Court conclude in determining ‘reasonable grounds’ in the Evans Case?
Supreme Court took a creative approach to legislative interpretation - eventually concluding that the wording of the legislation granting the power of veto to the Attorney General was not sufficiently clear to justify overruling a decision of the judiciary.
What judgement did Lord Neuberger (majority) give in the Evans Case?
He said, on behalf of the majority and in accordance with the final judgement - If section 53 is to have the remarkable effect argued for by Mr Eadie QC for the Attorney General, it must be “crystal clear” from the wording of the FOIA 2000, and cannot be justified merely by “general or ambiguous words”. In my view, section 53 falls far short of being “crystal clear” in saying that a member of the executive can override the decision of a court because he disagrees with it’.
How did Lord Neuberger consider the potential impact of the Evans Case on the Rule of Law principle?
He said - ‘A statutory provision which entitles a member of the executive to overrule a decision of the judiciary merely because he does not agree with it … would cut across two constitutional principles which are also fundamental components of the rule of law…’
&
‘it is also fundamental to the rule of law that decisions and actions of the executive are, subject to necessary well established exceptions, and jealously scrutinised statutory exceptions, reviewable by the court at the suit of an interested citizen’
What judgement did Lord Wilson (minority) give in the Evans Case?
He gave the dissenting opinion that - ‘the Court of Appeal ought (as, with respect, ought this court) to have resisted the temptation [to seek to maintain the supremacy of the decision of the upper tribunal]. For, in reaching its decision, the Court of Appeal did not in my view interpret section 53 of FOIA. It re-wrote it. It invoked precious constitutional principles but among the most precious is that of parliamentary sovereignty, emblematic of our democracy.”
How does the debate over proper constitutional foundations of judicial review (UV, CL, MUV) affect case law such as the Evans Case?
Arguments surrounding the proper constitutional foundations of judicial review underpin questions concerning the appropriate development of principles of judicial review in the case law which we consider in the course.
What are the four pre-requisites for a judicial review action?
- Is the body which had made the decision a public body so as to be susceptible to judicial review (known as “amenability”)
- Does the person who seeks to challenge the decision have standing (locus standi) to do so?
- Is the application made in time and has permission been given?
- When must the application for judicial review be used?
According to the amenability requirement what kinds of body are susceptible to judicial review?
Public Bodies or bodies exercising a Public Function.
What is a public body?
According to the Civil Procedure Rules, Part 54.1 (2);
a ‘claim for judicial review’ means a claim to review the lawfulness of
an enactment; or
a decision, action or failure to act in relation to the exercise of a public function.
Why are public bodies treated differently/have special standards imposed upon them?
- They exercise certain functions and powers and duties that private citizens don’t have.
- Due to the great power such bodies have there ought to be additional duties of procedural fairness.
- Certain institutions may have a monopoly therefore should be subject to a degree of public accountability.
Which public functions are immune from judicial review?
Full Acts of Parliament are immune from judicial review.
What are the three key categories of power associated with the exercise of public functions?
- Statutory Power
- Prerogative Power
- De facto Powers
Are statutory powers subject to judicial review?
The vast majority of powers exercised by public authorities are statutory powers. The fact that a body derives its authority from statute will generally be conclusive that it is exercising a public function and thus is subject to judicial review.
How does judicial review apply to statutory powers?
Much of judicial review is focused on applying principles of administrative law to the exercise of discretionary statutory powers by public authorities
…
R v Lloyds of London Case significant
What are (Royal) Prerogative Powers?
‘…those [legal] attributes belonging to the Crown which derive from common law, not statute, and which still survive’. – Munro.
What is the relationship between Parliament and the prerogative?
Parliament can curtail the prerogative – De Keyser’s Royal Hotel
Can prerogative powers be created?
No new prerogative powers can be created – BBC v Johns (Inspector of Taxes)
What are some examples of prerogative powers?
- Deployment of armed forces 2. Appointment and regulation of the civil service
- Making treaties
Are prerogative powers subject to judicial review?
Before the landmark case of GCHQ, it was widely assumed that the courts could determine (a) the existence and (b) limits of a prerogative power but could not interfere with how it was exercised.
What did the House of Lords find in the GCHQ Case?
In the GCHQ Case, or the Council of Civil Service Unions v Minister for the Civil Service, the House of Lords said - decisions made under prerogative powers are in principle reviewable on the same basis as decisions made under statutory powers, subject to the question whether the relevant powers are ‘justiciable’ in nature.
How did the House of Lords consider the question of justiciability in regards to the GCHQ Case?
They said - The question of ‘justiciability’ is not determined by looking at the source of the power, but rather by looking at its nature and subject matter, in light of institutional competence and the role appropriate for the court. Powers whose exercise calls for broad political discretion are less likely to be justiciable.
In the GCHQ Case how did Lord Roskill implement the justiciability consideration?
In CCSU, Lord Roskill sets up a list of ‘non-justiciable’ powers, including the making of treaties and the deployment of armed forces.
What are de facto powers?
De facto powers are those powers that can be said to exist in practice even if not officially recognised by laws.
Are de facto powers subject to judicial review?
Yes, in the case of R v City Panel Takeovers and mergers, ex parte Datafin Plc, the courts showed themselves willing to protect individuals from abuses of power even when the source of the power derives neither from legislation nor the prerogative.
How did the courts justify it’s review in the Dafatin Case?
The Court of Appeal held that the actions of the Take-over Panel were reviewable, focusing on the ‘public element’ in its exercise of power. The immense power of the Panel and the fact that it was ‘tied to an act of government’ meant it was unthinkable that courts would not be able to defend citizens from the enormous power wielded by it.
What is the inconsistency in the reasoning of the Court of Appeal in the Dafatin Case?
Not all ‘enormous’ power wielded by private bodies is subject to the control of the administrative courts. So what is the governing principle?
What is the contrasting decision to the Dafatin Case?
R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan
What did the Court of Appeal find in the Khan Case?
It could not review the decisions of the Disciplinary Committee of the Jockey Club, because the powers and duties of the Club were not governmental, and there were adequate remedies in contract.
Is the presence of monopoly power a justification for judicial review?
Many commentators have invoked monopoly of power as a legitimate basis for allowing judicial review, focusing on the fundamental aim, in administrative law, of averting or redressing abuse of power. But it appears to be rejected in Aga Khan.
Why is the finding of the Khan Case significant?
The matter raises significant controversy as increasing contractualisation or privatisation of government, as well as the increasing power possessed by private corporations, significantly impacts peoples lives. The Khan Case seems to suggest decisions that have been contracted out may not be reviewable as there was not enough of a ‘public function’ being exercised.
What is standing?
Also known as Locus Standi, standing is the pre-requisite for judicial review actions that determines who can apply.
Where does the requirement of standing come from?
The Senior Court Act 1981, s. 31(3) - “the court shall not grant leave to make [an application for judicial review] unless it considers that the applicant has a sufficient interest in the matter to which the application relates.”
At what stage of the application process for judicial review is standing an issue?
Locus Standi is an issue at both the preliminary stage (permission/leave) and at the full hearing - as established in the case of the Fleet Street Casuals Case.
What are the two key ways in which standing can be demonstrated?
- If an individual is ‘directly affected’ by the decision they dispute
- Representative organisations or pressure groups may establish standing through;
- Associational Standing
- Public Interest Standing
When will ‘sufficient interest’ for standing be satisfied?
If directly and personally affected by a decision, the applicant plainly has “sufficient interest” - see the case of R v Board of visitors of Hull Prison, ex parte St. Germain
Can a ‘sufficient interest’ for standing be shown by companies and local authorities?
Yes - the same rules (directly and personally affected) apply to artificial legal persons, such as companies - see R v Panel on Takeovers and Mergers, ex parte Datafin - and local authorities - see Secretary of State for Education and Science, ex parte Tameside.
What actually constitutes a ‘sufficient interest’ in the context of standing?
In the Fleet Street Casuals Case the majority held that ‘sufficient interest’ depends on the nature of the interests relevant to the law under which the act is performed/the decision is made.
What did Lord Wilberforce say about the concept of ‘sufficient interest’?
He said - “Sufficient Interest cannot be considered in the abstract, or as an isolated point: it must be taken together with the legal and factual context.”
Is demonstration of ‘sufficient interest’ the only way to show standing?
No, while ‘directly affected’ individuals may show standing through satisfaction of a ‘sufficient interest’ standing is not limited to a person whose legal rights are impacted upon - standing can also be shown through (a) association or (b) public interest.
What are the two broad categories of representative standing?
- Associational Standing
2. Public Interest Standing
Who normally seeks to exercise associational standing?
Usually an unincorporated group or a corporation claiming on behalf of (the interests of) identifiable individuals who are its members or whom it claims to represent.
Who normally seeks to exercise public interest standing?
Individual, corporation or group purporting to represent the public interest rather than the interests of any identified or identifiable individuals’.
What was the courts traditional approach to representative standing?
Historically the courts have adopted a fairly restrictive approach to representative standing, as can be seen in the case of Secretary of State for the Environment ex p. Rose Theatre Trust.
What is the current approach of the courts to representative standing?
A more liberal approach has now been adopted - there was clear recognition of associational standing in the case of R v HM Inspectorate of Pollution, ex parte Greenpeace (No 2).
What did Cane say about the concept of associational standing?
Associational Standing: Control of the represented over those who claim to represent them. Some degree of input needed: A democratic stake/democratic nexus needed.
Where did the concept of public interest standing arise from?
Tentative Authority for such a concept was offered in the Greenpeace Case, more certain authority can be found in R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd.
What approach did the court take to public interest standing in the case of R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd?
The Court of Appeal adopted a flexible analysis. Considering the following principles;
- The importance of vindicating the rule of law.
- The importance of the issue raised.
- The likely absence of any other reasonable challenger.
- The nature of the breach of duty against which relief is sought.
- The prominent role of WDM in providing advice, guidance and assistance with regard to aid.
What was the consequence of the R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd Case?
Public Interest was found to be a sufficient ground for standing and Similarly placed claimants have since established standing on public interest grounds.
Do Trade Unions have standing?
Yes, Trade Unions have standing – acting as proxy for members.
What procedural restrictions are there on the exercise of judicial review?
- Permission Required
2. Time Limits
How does the requirement of permission restrict actions for judicial review?
CPR 54.4 says that ‘The court’s permission to proceed is required in a claim for judicial review whether started under this Part or transferred to the Administrative Court.’
How do time limits impact the exercising of judicial review?
CPR 54.5 provides;
Time limit for filing claim form
(1) The claim form must be filed –
(a) promptly; and
(b) in any event not later than 3 months after the grounds to make the claim first arose.
(2) The time limit in this rule may not be extended by agreement between the parties.
(3) This rule does not apply when any other enactment specifies a shorter time limit for making the claim for judicial review.
How is the case of R v Swale Borough Council significant in relation to time limits?
This case demonstrated that even action within 3 months may not be sufficiently ‘prompt’ and may be deemed unduly delayed.
What is the rationale of the time limits on judicial review actions?
Lord Diplock in the case of O’Reilly v Mackman said that - ‘The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision…for any longer than is absolutely necessary in fairness to the person affected…’
What is the rationale of the permission requirement for judicial review actions?
- Encourages Settlement;
- Saves court Time
- Protects the administration; and
- Protects the public interest
How has the time limits requirement created tensions with the ECHR?
Doubts have been raised about the compatibility of these tests with the European Convention on Human Rights for reasons of uncertainty. In Lam v UK Application, however, the ECHR rejected the argument that promptness in the context of a planning judicial review was a breach of Article 6 and found that it was a proportionate limitation.
What happens if an application for judicial review is not given permission?
If an application is refused, there is a right to renew the application for permission before another judge in open court and if permission is refused here as well, then before the Court of Appeal.
What are the first three remedies available following a successful judicial review action?
- Quashing Order - formerly Certiorari.
According to CPR 53.19 (2) The court may –
(a) remit the matter to the decision-maker; and
(b) direct it to reconsider the matter and reach a decision in accordance with the judgment of the court. - Mandatory Order - formerly Mandamus.
- Prohibiting Order - formerly Prohibitioni.
What are the possible private law remedies available after a successful judicial review action?
- Injunction
- Declaration - this does not quash a decision but amounts to a definitive statement of the legal position of the parties.
- Damages – but only if there can also be established a tort or breach of contract (now including breach of ECHR rights under the Human Rights Act ss 6,7 & 8)
CPR 54.3(2).”A claim for judicial review may include a claim for damages but may not seek damages alone.” - Substitutionary remedy -
CPR 54 19(3): “Where the court considers that there is no purpose to be served in remitting the matter to the decision-maker it may, subject to any statutory provision, take the decision itself” – RARELY used.
ALL of these remedies are discretionary.
What four factors may discourage the granting of relief through a remedy?
- Failure to pursue adequate alternative remedies such as statutory right of appeal - R (Sivasubramaniam) v Wandsworth CC
- Undue delay in seeking relief
- Unmeritorious conduct on the part of the claimant
- Triviality - application of de minimise non curated lex principle
When must the judicial review procedure be used?
CPR 54.2 holds that -
The judicial review procedure must be used where the claimant is seeking –
(a) a mandatory order;
(b) a prohibiting order;
(c) a quashing order; or
(d) an injunction under section 30 of the Supreme Court Act 1981 (restraining a person from acting in any office in which he is not entitled to act).
(prerogative remedies)
When may the judicial review procedure be used?
54.3 holds that -
(1) The judicial review procedure may be used in a claim for judicial review where the claimant is seeking –
(a) a declaration; or
(b) an injunction super(GL).
(ordinary remedies)
What happens where a claimant seeks a declaration or injunction in addition to one of the remedies listed under CPR 54.2?
The judicial review procedure must be used.
What is the basic principle regarding the use of the judicial review process for public law challenges?
It was established by Lord Diplock in the case of O’Reilly v Mackman that as a basic rule public law challenges must be conducted by way of judicial review - ‘It would in my view as a general rule be contrary to public policy, … to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Ord 53 for the protection of such authorities.’
What exceptions are there to the general rule laid down by Lord Diplock in O’Reilly v Mackman?
A person sued, or proceeded against for breach of e.g. a bye-law, can raise the invalidity of the instrument relied upon as a defence in criminal trial - see the case of Boddington v British Transport Police
What is the basic rule/principle adopted by the courts in relation to exclusion clauses for judicial review?
Generally, courts do not read exclusion clauses as ousting judicial review.
Which case demonstrated the courts reluctance to recognise ouster clauses preventing judicial review?
Anisminic Ltd v Foreign Compensation Commission -
A provision in a statute gave jurisdiction the FCC to determine compensation that should be paid to British nationals who had had property confiscated by foreign governments. An ouster clause stated - “decisions by the Commissioners shall not be called into question in any court of law”. The court chose not to enforce the clause, Lord Reid said on the matter - ‘if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court’
How does the issue of exclusion clauses relate to the rule of law and parliamentary sovereignty?
Statutory provisions which prima facie prohibit judicial review raise fundamental tensions between rule of law (pro access to the courts) and the doctrine of legislative supremacy (giving effect to the will of Parliament).
What question arose following the enactment of the Asylum and Immigration Bill 2003?
This Bill contained a clause seeking to exclude judicial review on, among other grounds, the basis of an error of law;
(a) Prevent a court, in particular, from entertaining proceedings to determine whether a purported determination, decision or action of the Tribunal was a nullity by reason of –
(i) Lack of jurisdiction,
(ii) Irregularity,
(iii) Error of law,
(iv) Breach of natural justice, or
(v) Any other matter [though not where it was alleged that a decision had been made in bad faith.
Is it possible to exclude judicial review for errors of law?
What did Micheal Fordham say in response to the controversial Asylum and Immigration Bill 2003?
The Courts could potentially declare the clause unconstitutional if enacted as a fundamental breach of the rule of law (the nuclear option).
What did Le Seur say about the question raised by the Asylum and Immigration Bill?
“The intended effect of that clause is to ‘oust’ the jurisdiction of the High Court to review the new Tribunal’s decisions, even where the Tribunal has got the law wrong or acted in breach of natural justice. This is a startling proposition. It would be startling if done in a dictatorship. It is incredible that it is proposed in the UK – the so-called mother of the common law.”
What was the governments response to the criticisms of the Asylum and Immigration Bill?
Eventually the government dropped the ouster clause and ‘announced that it would bring forward amendments to replace the judicial review ouster with a new system allowing oversight by the administrative court’ - Rawlings.
What is the significance of the Tribunals and Inquiries Act 1992?
s12 (1) As respects England and Wales-
(a) any provision in an Act passed before 1st August 1958 that any order or determination shall not be called into question in any court, or
(b) any provision in such an Act which by similar words excludes any of the powers of the High Court,
shall not have effect so as to prevent the removal of the proceedings into the High Court by order of certiorari or to prejudice the powers of the High Court to make orders of mandamus.
In which instances may it be possible to give effect to ouster clauses or clauses excluding the jurisdiction of the courts?
- Where provisions preventing judicial review have been treated by the courts as ‘allocating jurisdiction’ to other bodies - see the case of R(on the application of A) v B.
- Or; where the language of a clause used is sufficiently clear and unambiguous to give the courts no discretion in complying with parliamentary intention - see the case of R (Privacy international) v Foreign and Commonwealth Secretary - Sales LJ - To construe section 67(8) as allowing judicial review of determinations and decisions of the IPT would subvert it.
What are the three grounds for judicial review?
- Illegality
- Procedural Impropriety
- Irrationality/Unreasonableness
What is the principle of illegality?
This ground for review states that a decision maker may only act so long as they do not transgress the limits of their powers.
What may limit the administrative power of a decision maker?
Administrative power is limited by;
- Express terms of a statute;
- Implied terms of a statute;
- General principles like natural justice and reasonableness.
What are the four different heads of illegality?
- Doing an act with no legal authority
- Errors of law
- Failure to retain discretion by;
(a) improper delegation of decision making
(b) fettering of discretion - Abuse of discretion by;
(a) using a power for an improper purpose
(b) taking into account irrelevant considerations or ignoring relevant ones
(c) frustrating a legitimate expectation
What are two examples of simple illegality - doing an act with no legal authority?
- Attorney General v Fulham Corporation
2. Laker Airways v Dept of Trade
How was simple illegality shown in Attorney General v Fulham Corporation?
Fulham Corp was empowered to provide facilities for local people to wash their own clothes. They set up a commercial washing service, whereby people could bring in their clothes and the Council would wash them for them ( for a charge). Thus acting outside their authority - ultra vires.
How was simple illegality shown in Laker Airways v Dept of Trade?
Laker Airways had been granted a licence by the Civil Aviation Authority (“CAA”) under statutory authority. The Secretary of State had power to issue guidance to the CAA as to its duties. As a result of a change in Government, and consequent change in policy, the SS issued “guidance” to the CAA as he was entitled to; the guidance, however instructed them to revoke Laker’s licence.
What is an error of law?
An error of law occurs where a public authority fails to correctly construe the legal authority under which it acts - thus acting outside its authority.