Lecture 1 and 2 Flashcards
1
Q
judicial review
A
- JR can only begin in the HC or a senior court
- inherent and developed over centries - inherent power of HC
- supervisory processes
• E.g. Miller case, Supreme Court emphasised that it was not for court to decide whether UK will leave EU, but rather court is to supervise whether they rely on statutory or prerogative powers etc
• Supervision of court over governmental bodies
• Councils, police, government – all subject to judicial review. Also to private sector and corporate activities
• High court applies and enforces principles of public law
• No definition of public law principles
2
Q
Public Law principles
A
- Those principles developed by domestic courts in JR proceedings for the ground if JR e.g. natural justice
- EU rights – at present time, can use judicial review to enforce EU rights
- Convention rights and human rights act. Judicial review can be used to enforce those convention rights
3
Q
Importance of judicial review
A
- IN 1981, were 550 instances. Whereas from Jan-Sep 2018, there were 2700 applications for JR – but only a fraction of that amount of govt decision making
- Quality of judicial decisions so important
4
Q
IMPORTANCE of the quality of judicial decisions:
issue of legal precedent
A
• Issue of legal precedent. Most started in high court. One high court decision binds all other high courts and courts below. Only need one decision of the high court and that’s binding on all the lower courts. So one decision has enormous significance
R v Leicester JJ, ex p Barrow:
- Thatcher’s coal tax, thousands refused to pay it. Local councils depended on coal tax to fund their services, so local councils wanted to enforce it
- Legislation provided enforcing mechanisms but for local councils to bring proceedings in local magistrate’s court to make them pay coal tax
- Barrow refused to pay so brought proceedings in magistrate’s court. He couldn’t afford a lawyer, no legal aid available. He had a campaign group that had lay people (not lawyers but people to help) to advise him in the court case
- Magistrates refused to allow Mr Barrow to be assisted by lay people. Must be legally qualified lawyer. Barrow then got a barrister for a judicial review case on the high court against the magistrate’s decision
- High court upheld right of Barrow to have a lay person to support him in proceedings. Barrow won judicial review case
5
Q
IMPORTANCE of the quality of judicial decisions: constitutional importance
A
MILLER case
whether prerogative powers can be used to revoke Article 50 and take Britain out of the EU … BREXIT
6
Q
IMPORTANCE of the quality of judicial decisions: NATIONAL IMPORTANCE
A
- eg R (Harrow Community Support Ltd) v Secretary of State for Defence: wanted to prevent any terrorism during Olympics. Air force brought in to advice govt on how to protect air space during Olympics e.g. air exclusion zone or drones, balloons, lower level air attacks. Defence to shoot down any target. Block of flats overlooking Olympic park, good place to place missile facility on roof. Residents got together and brought JR action against defence sec that if they set up with facility, it would violate their convention rights e.g right of privacy of home
- high court found that it was in the interest of national security, it was a proportional response to protect the threat of terrorism. No breach of applicants rights
7
Q
How JR as a process is different from appeals
A
- an appeal is against a government decision, which are based on statute. We only have a right to appeal against a statutory decision if we have a statutory right to do so. E.g. planning permission needed to extend house. Country planning act allows individual to appeal decision
- PROCESS: in appeals, you’re arguing on the merits of the decision. E.g. planning matters, height of house, brick colour etc. in judicial review, arguing principles of public law. Right to respect home above is a convention right issue. Concerned with legal principles, whereas appeals are concerned with the merits of the decision
- Outcomes are different: if successful in appeal, you are gratned what you are asking for. E.g. planning appeal, if appeal granted, you will then have planning permission to extend your house. Whereas in judicial review, the high court quashes the unlawful govt decision. JR does not decide final outcome, but whether decision is lawful or not.
8
Q
General Medical Council and others v Michalak [2017] UKSC71
A
“20. In its conventional connotation, an “appeal”…is a procedure which entails a review of an original decision in all its aspects. Thus, an appeal body or court may examine the basis on which the original decision was made, asses the merits of the conclusions of the body or court from which the appeal was taken and, if it disagrees with those conclusions, substitute its own. Judicial review, by contrast, is par excellence, a proceeding in which the legality of or the procedure by which a decision was reached is challenged.” Lord Kerr JSC
Lord Kerr: supreme court confirms as a matter of law the difference between JR and appeals.
9
Q
difference between JR proceedings and private law actions
A
• Private law actions asset contract rights or tort rights
- Procedure: JR there is a very special, elaborate JR procedure of bringing a JR case.
- Remedies: private law actions concern tort/contract rights, usual remedy is damages. People asset contract/tort rights because they want damages/financial compensation. Whereas JR have special remedies, such as quashing orders and mandatory orders. (it is possible to grant damages from JR but not practical as usually goes on to private law proceedings).
10
Q
David Cameron
A
attack on JR 2012:
- Announced that his gov will cut down to reduce possibility of JR
- Criticism was a ‘time wasted process, caused extra time being spent by gov bodies to protect gov actions’ AND said it was a ‘massive growth industry’
- promised gov intiatives to cut this back, introduce further legal curbs on JR. some implemented.
11
Q
Criticism on David Cameron
A
- Followed by criticism e.g. Lord Dyson who criticised Cameron’s govt programme to reduce JR
- Moodle: Bondy Sunkin study: public bodies were acting unlawfully, it was an empowering process for those that brought cases. His findings do not indicate the existence of widespread abuse of the system by claimants. – key finding: empirical evidence shows that it was not an abuse of JR
12
Q
Historical procedure of bringing a JR case
BEFORE 1978
A
- Before this, there were 2 remedies available pre-1978: 1) prerogative orders. Special judicial remedies were centuries ago derived from sovereigns, crown. These orders, as they were so ancient, had Latin old fashioned names. 2) private law remedies. Derived from private sources of law, injuctions and deprivations
- Prior to 1978, different court procedures for each remedy. Then govt asked law commission to look at existing legal remedies. Took law commission 7 years to come up with report
- 1976 law commission recommended that parliament pass primary legislation to create a new legal procedure. Known as the ‘application for judicial review’ – AJR
- Report spelt out details of new statutory procedure, but was NOT saying that this new procedure should be the only way to bring the new judicial review cases. Not exclusive way. Law commission said that if Parliament pass this act, under new AJR, if you wanted a prerogative order, need to use new procedure. For private inunction, you have a choice – either AJR or alternative can still seek an injunction/deprivation
- Govt accepted recommendation, thought it would be good. But not a high political priority for the govt. Govt never got around to asking parliament to pass a primary act to pass these new procedures. Instead govt used powers of secondary legislation (delegated legislation) to set out AJR in delegated legislation
- During this time, high court known as supreme court. Relevant secondary legislation known as rules for supreme court order 53
- 1978 delegated legislation issued by govt set out by order 53 (not an act of parliament)
13
Q
POST 1978
A
- 1981 parliament gets around to passing primary legislation. Passed as supreme court act 1981 – because at that time, the high court was seen as supreme court
- S31 supreme court act 1981 puts AJR on a primary statutory footing. S31 still valid today
- Constitutional reform act 2005 set up supreme court. Act retrospectively renamed supreme court act as the Senior Courts Act 1981 (same act but renamed). So JR case will refer to s31 of supreme court act 1981. If after 2005, refer to Senior Court Act 1981
- S31 will be provided for you in exam
- Post 2000: govt decide to get rid of order 53 and replace it with Civil Procedural Rules. Part 54 set out the new contemporary proceedings for JR. s31 of 1981 act now also part of part 54 of CPR
- Legal basis for JR in part 31 of CPR (p.6 on handout)
- Nothing in statutory rules that specifies who can be a defendant in a claim for JR
- Left for court to define persons/bodies that can be subject to JR
- Turn to case law to see who is subject to it:
- Prior to 1987 when decided which persons/bodies are subject to JR, courts looked to see what sort of powers were exercised by defendant. If Def exercising statutory powers, then court says they can be subject to JR cases
- Thatcher’s govt was changing, govt activity was being cut back
14
Q
R v Panel on Take-overs and Mergers, ex p Datafin plc [1987]
A
- Against local authority not govt, set up by financial services industry
- City institutions decided there should be rules regulating how companies by others and take over others
- They set up their own code of practice setting up the rules and set up an open panel to adjudicate on local complaints. A business self regulatory system. Govt not involved in setting it up or setting up panel. Govt there in the shadows, encouraging it but not part of it
- No statutory powers
- Made a formal complaint. Considered behaviour of other company, but had not breached practice
- Claimant unhappy that claim was rejected and lawyers advised to bring a JR action against the panel by misapplying relevant rules
- Under established case law, would be a good defence to have no statutory powers, so not subject to judicial review
- But lawyers said that in the new year, court should develop new test and panels that engage in regulatory public interest activities, even if not having statutory powers
- Lord Toulson upheld that court should develop new test of who should be subject to judicial review
- New test deciding that a person/body must be asked whether there was a public element in the activities, rather than the old whether they have statutory powers
- If they have a public element, they should be subject to JR
- But court gave no definition of what defines a public element.
- What the panel was doing was in the public interest – also shareholdings, pension investments, all affected by corporate behaviour. That was found to amount to enough
15
Q
R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 2 All ER 853.
A
- Jockey club was body that regulated majority of horse racing competitions in the UK
- Khan was an individual who owned a valuable race horse and ran in major race in jockey club. By winning that race, greatly increased the value of that horse
- After race, routine drug test of horse. Khan’s horse had a prohibited substance in blood stream.
- Khan thought jockey club had not followed fair proceedings. Wanted to bring a JR action against fairness of jockey club
- Club argued they don’t serve a public element so can’t be subject to JR
- Looking at history of jockey club, found it was and is an entirely private organisation. Private body that has gradually grown in its activities
- COA accepted argument that in a historical sense, jockey club is and remains a private body, even though it’s a major industry. No connection between jockey club and government. COA ruled there was no ‘public element’ in activities of jockey club, so not susceptible to judicial review proceedings
- Therefore other sporting activities may not be subject to JR
- Another reason there was no public element was because claimant would have private contractual remedies
