Judicial Review (STEP 3 and STEP 4) Flashcards
In what case were the grounds for judicial review identified?
In CCSU v Minister for the Civil Service, Lord Diplock identified 3 grounds of JR: (1) Illegality, (2) Irrationality (3) Procedural Impropriety. Consider which grounds are relevant on the facts.
Illegality definition? How many heads and what are they?
Where an action goes beyond the limits and powers defined by the statute (CCSU). Heads are:
1) Acting without legal authority
2) Rule against delegation
3) Fettering of discretion
4) Errors of law
5) Errors of fact
6) Taking irrelevant factors into account/Failing to take relevant factors into account
7) Decision based on an improper/unauthorised purpose
Acting without legal authority
Acting ‘ultra vires’, which means ‘beyond the scope, or in excess of legal power or authority’. E.g. where a public body acts in a way that is not legitimised by the relevant power/statute. (R v Richmond Council, ex p McCarthy & Stone).
Where might acting without legal authority be allowed by the courts?
The courts will permit an activity, even if not expressly authorised by the statute, provided the government activity in question is “reasonably incidental” to what is authorised (Alder, 2009)
Rule against delegation?
Decision-making powers, once given by Parliament, cannot be further delegated/sub delegated (Vine v National Dock Labour Board).
Exceptions to the rule against delegation?
i. Carltona principle: when a government minister sub-delegates decision-making powers to civil servants in his department (ministers are deemed to act through their civil servants due to the convention of individual ministerial responsibility) (Carltona v Commissioner of Works)
ii. S.101, Local Government Act 1972: Local authorities may discharge their functions by committees/sub-committees/officers/other local authorities, provided they make a formal resolution to do so.
First method of fettering of discretion which is not permitted?
i. Acting under the dictation of another, e.g. where public body bases a decision on another minister’s objection, rather than assessing it themselves (Lavender & Sons)
Second method of fettering of discretion which is not permitted?
ii. Formulating a general policy as to the exercise of discretion: public bodies may not formulate policies that restrict their ability to consider individual cases on their individual merits (British Oxygen v Minister of Technology), e.g. binding themselves in advance. Lord Reid in British Oxygen: ‘One must always be willing to listen to anyone with something new to say’
Errors of law
All errors are in principle reviewable (Anisminic)
What types of errors of fact are reviewable?
Only JURISDICTIONAL errors of fact are reviewable, i.e. those which got to the root of a public authority’s capacity to act (Ex p Khawaja). Non-jurisdictional errors of fact are only reviewable if based on ignorance of an established fact.
Taking irrelevant factors into account
(Padfield v Minister of Agriculture – e.g. potential political embarrassment to a minister);
Failing to take relevant factors into account
(Roberts v Hopwood)
Decision based on an improper/unauthorised purpose
Where a public body acts for ends not provided for by Parliament, such as to raise their revenue (Congreve v Home Office)
What if a decision is based on both a proper and improper purpose (dual purpose)?
- Which was the primary purpose? The decision should stand if the primary purpose was the proper one. (Westminster Corporation v LNWR); Or,
- “Was the authority pursuing an unauthorised purpose, which materially influenced the making of its decision?” (R v ILEA, ex p Westminster City Council)
Lord Diplock’s definition of irrational in CCSU?
To be irrational, a decision must be: “so outrageous in its defiance of logic or accepted moral standards that no sensible person…could have arrived at it” (Lord Diplock in CCSU). Proof of a very high degree of unreasonableness is therefore required, although it is possible for public authorities to fail this test (Wheeler v Leicester CC – applied the “Wednesbury Principle”)
Fairmont Investments v Secretary of State for the Environment
The rules of natural justice must be complied with.
What if bias is direct?
- If bias is DIRECT, court is obliged to quash and then reconsider the decision
What is DIRECT bias?
- Where an interest may lead to financial/pecuniary GAIN (Dimes v Grand Junction Canal Properties); or,
- If no pecuniary, where the decision-maker is involved in promoting the SAME CAUSE as a party in the case (Pinochet)
What if bias is INDIRECT?
- If INDIRECT, in order for the decision to be quashed, the court must consider the Magill v Porter test:
- Would a fair-minded and impartial observer conclude that there had been a real possibility of bias?
- Whether the bias did affect the decision or not is immaterial – rather, what is critical is how the decision would appear to an observer.
Starting point for right to fair hearing?
Starting point:
- There is a duty on decision-makers to act in good faith and listen fairly to both sides (Board of Education v Rice)
- Claimants should know the case against them and have the right to reply (Fairmount Investments)
McInnes v Onslow-Fane
However, the concept of fairness is flexible and varies according to the category of case
Forfeiture cases?
- FORFEITURE cases (i.e. Where C is deprived of something he previously enjoyed, e.g. job/livelihood/pension rights – R v Board of Visitors of Hull Prison ex parte St Germain; Ridge v Baldwin - police constable dismissed): Here the standard of fairness expected from a hearing is high
