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Public Law II > Lecture 20: Judicial Review - illegality, Discretion > Flashcards

Lecture 20: Judicial Review - illegality, Discretion Flashcards

1
Q

Is any power inherently unreviewable by the courts?

A

No, no power, whether statutory, common law, or under the prerogative, is inherently unreviewable. (De Smith’s Judicial Review, Ch. 1)

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2
Q

What limits judicial review by the courts?

A

Judicial review is limited by the constitutional role of the courts and their institutional capacity, such as lacking expertise or when matters are polycentric, involving broad discretion with policy or public interest considerations.

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3
Q

What are the three main grounds of judicial review as classified by Lord Diplock in the GCHQ case?

A

The three grounds of judicial review are:

Illegality
Irrationality
Procedural Impropriety
(Council of Civil Service Unions v Minister for the Civil Service (GCHQ), [1985] AC 374, 410-411)

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4
Q

Is there a substantial difference between English and Scots law regarding the grounds for judicial review?

A

No, there is no substantial difference between English and Scots law regarding the grounds on which the process of decision-making may be open to review. (West v Secretary of State for Scotland, 1992 SC 385, 413)

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5
Q

What did Lord Hope say about the difference between English and Scottish law on judicial review?

A

Lord Hope emphasized that there is, in principle, no difference between English and Scots law regarding the substantive grounds on which a tribunal’s decision within its jurisdiction may be open to review. (Eba v Advocate General for Scotland, [2011] UKSC 29, [34])

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6
Q

What are the common law grounds for judicial review?

A

The common law grounds for judicial review are:

Illegality
Irrationality (Unreasonableness)
Procedural Impropriety
Legitimate Expectation
Proportionality (Pham v Secretary of State for the Home Office [2015] UKSC 19)

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7
Q

What statute-based grounds are there for judicial review?

A

Statute-based grounds for judicial review include:

Breach of Convention Rights (under the HRA 1998)
The Scotland Act 1998

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8
Q

What are the two types of grounds for judicial review?

A

The two types of grounds for judicial review are:

Substantive grounds
Procedural grounds

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9
Q

What is the ground of illegality in judicial review?

A

Illegality involves considering:

Did the decision-maker understand and give effect to the law?
Did they take relevant considerations into account?
Did they exercise discretion for the proper purpose?

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10
Q

What is irrationality/unreasonableness in judicial review?

A

Irrationality/Unreasonableness involves asking:

Was the decision ‘reasonable’?
Was it one that no reasonable public body could have made?
Was it seriously flawed?

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11
Q

What is the ground of proportionality in judicial review?

A

Proportionality involves checking:

Was the decision justified?
Was it rationally connected to the objective?
Could a less intrusive measure have been used?
Was a fair balance struck between the rights and interests?

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12
Q

What does substantive review refer to?

A

Substantive review is a review of the substance of the decision, ensuring the decision was legally correct and reasonable based on the criteria above.

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13
Q

How is the question of what is lawful determined in judicial review?

A

The courts determine what is lawful by interpreting the law, considering whether decisions adhere to legal principles, and assessing if they are arbitrary or unreasonable.

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14
Q

Who decides what the law is and the meaning and scope of the power being exercised in judicial review?

A

Courts decide what the law is, interpret its meaning, and determine the scope of powers being exercised through legal reasoning and judicial review.

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15
Q

Where do the courts draw the line when deciding whether or not to intervene?

A

Courts draw the line by evaluating the extent of their role in reviewing decisions based on justiciability, the separation of powers, and whether the matter involves political questions or is within the discretion of the decision-maker.

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16
Q

What is discretion in administrative law?

A

Discretion exists when there is power to make choices between courses of action or when, even though the end is specified, a choice exists as to how that end should be reached. (Craig, Administrative Law, 2012)

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17
Q

What is substantive review in judicial review?

A

Substantive review means courts consider the substance of the decision to determine if it is lawful, rather than focusing on the procedures followed.

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18
Q

What is the intensity of review in judicial review?

A

Intensity of review refers to how closely the courts examine the content of a decision and how much discretion is left to the decision-maker.

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19
Q

What is judicial deference?

A

Judicial deference occurs when courts refrain from intense scrutiny and defer to the decision-maker, especially in non-justiciable matters or where it is inappropriate for judges to decide.

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20
Q

Who decides if a decision-maker has understood and applied the law correctly?

A

It is the role of the judges to decide if the decision-maker has understood and applied the law correctly.
(Council of Civil Service Unions v Minister for the Civil Service (GCHQ case) [1985] AC 374, Lord Diplock)

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20
Q

What does “illegality” mean as a ground for judicial review?

A

Illegality means the decision-maker must understand the law that regulates their decision-making power and give effect to it. Judges decide if this has been done correctly.
(Council of Civil Service Unions v Minister for the Civil Service (GCHQ case) [1985] AC 374, Lord Diplock)

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21
Q

What is a possible illegality argument regarding misinterpretation of legal instruments?

A

A decision may be challenged if the decision-maker misinterprets the legal instrument relevant to the decision.

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22
Q

How can the failure to fulfill a legal duty be an illegality argument?

A

If there is no legal duty to make a decision, or if the decision-maker fails to fulfill a legal duty, it can be grounds for judicial review.

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23
Q

What is an illegality argument related to the improper exercise of discretionary power?

A

Exercising discretionary power for an extraneous or improper purpose can be an argument for illegality.

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24
How does improper delegation of decision-making power relate to illegality?
If decision-making power is improperly delegated to another person or body, it may be challenged as an act of illegality.
25
What constitutes an illegality argument related to considerations taken into account?
If irrelevant considerations were taken into account or relevant considerations were ignored, it can be grounds for challenging the decision as illegal.
26
What is an example of failing to fulfill a duty in the context of judicial review?
In M v Scottish Ministers [2012] UKSC 58, the Scottish Ministers failed to fulfill their duty under the Mental Health (Care and Treatment) (Scotland) Act 2003 to define “qualifying patient” by the specified date.
27
What does section 268(11)(12) of the Mental Health (Care and Treatment) (Scotland) Act 2003 relate to?
Section 268(11)(12) of the Act requires the definition of a “qualifying patient” to be specified by regulations.
28
What does section 333(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003 specify?
Section 333(2) states that the provisions of the Act were to come into force on 1st May 2006 or such earlier day as the Scottish Ministers might appoint.
29
How was discretionary power constrained in the M v Scottish Ministers case?
The discretionary power of the Scottish Ministers was constrained by a legal duty to act by the specified date under section 333(2) of the Act.
30
Can discretionary powers be delegated in judicial review?
Discretionary powers cannot be delegated. Courts will examine if the power was delegated and whether it was authorized by law. (Barnard v National Dock Labour Board [1953] 2 Q.B. 18)
31
What case discusses whether the delegation of power is authorized by law?
R.(on the application of Bourgass) v Secretary of State for Justice [2015] UKSC 54 discusses whether delegation is authorized by law.
32
What is the Carltona principle?
The Carltona principle allows civil servants to act and make decisions on behalf of Ministers, even though Ministers remain legally responsible for their departments. (Carltona Ltd v Commissioners of Works [1943] 2 All E.R. 560)
33
What case clarifies the concept of unlawful delegation of powers?
Barnard v National Dock Labour Board [1953] 2 Q.B. 18 clarifies that discretionary powers cannot be unlawfully delegated without proper authorization.
34
What case concerns the marketing of milk and the discretion of a Minister?
Padfield v Minister of Agriculture Fisheries and Food [1968] A.C. 997 concerns the marketing of milk and the Minister's discretion.
35
What were the facts in Padfield v Minister of Agriculture Fisheries and Food?
The Minister set a price for milk and a differential for transport costs. In the South-west region, the price was too low to cover transport costs.
36
What was at issue in Padfield v Minister of Agriculture Fisheries and Food?
The issue was the nature and extent of the Minister's discretion and duty to appoint a committee and act on its report.
37
What did the Minister have discretion over in Padfield v Minister of Agriculture Fisheries and Food?
The Minister had discretion and a duty to appoint a committee and act on its report regarding milk prices and transport costs.
38
What was the Minister's argument regarding his duty and discretion in Padfield?
The Minister argued that he had a duty to consider a complaint fairly, but his discretion was unfettered—he could choose whether to refer the complaint as he thought fit.
39
What was the appellants' argument regarding the Minister's duty and discretion in Padfield?
The appellants argued that the Minister had a duty to refer every genuine complaint, and his discretion was not unfettered.
40
What additional arguments did the appellants make in Padfield?
The appellants argued that the Minister was misdirected in law and took into account irrelevant considerations.
41
What two related principles were established in the Padfield outcome?
The two related principles are: Purpose - The discretion must be used to promote the policy and objects of the Act. Relevance - The policy and objects are determined by construing the Act as a whole.
42
Who determines the construction of the Act in Padfield, and what is the role of the court?
The construction of the Act is always a matter of law for the court (Lord Reid, p. 1030).
43
How did the Minister act unlawfully in Padfield?
The Minister acted unlawfully by: Refusing to consider the relevant matter. Misdirecting himself in law. Taking into account wholly irrelevant or extraneous considerations. Not taking into account a relevant consideration (Lord Upjohn, p. 1058).
44
What is statutory interpretation?
Statutory interpretation involves an objective assessment of the meaning a reasonable legislature would seek to convey in the statutory words used (R. (on the application of O (A Child)) v Secretary of State for the Home Department [2022] UKSC 3).
45
What caution does the court provide about identifying "Parliamentary intention"?
The intention of Parliament is an objective concept, not subjective, and refers to the meaning the court reasonably imputes to Parliament based on the language used (R. (on the application of Spath Holme Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 A.C. 349 HL).
46
How do courts find the objective meaning of a statute?
Courts look at the statute as a whole and the relevant section to determine the objective meaning (R. (on the application of O (A Child)) at [29]).
47
Why is purpose important in statutory interpretation?
The statutory purpose and the general scheme by which it is to be implemented are of central importance in statutory construction (Bloomsbury International Ltd v Sea Fish Industry Authority [2011] UKSC 25).
48
What did the court say in R v Somerset County Council, ex parte Fewings about the purpose of statutes?
The decision-maker is bound to ascertain and apply the intended aims of a statute, even if the statute does not express them explicitly (R v Somerset County Council, ex parte Fewings [1995]).
49
Can the purpose of a statute be implied?
Yes, the purpose may be express or implied (R v Somerset County Council, ex parte Fewings [1995]).
50
What was the statutory purpose in R v Secretary of State for Foreign Affairs, ex p World Development Movement [1995]?
The statutory purpose was “promoting development.”
51
How did the court interpret the statutory purpose in R v Secretary of State for Foreign Affairs, ex p World Development Movement [1995]?
The court interpreted it as “sound economic development.”
52
What did the court find regarding the project in R v Secretary of State for Foreign Affairs, ex p World Development Movement [1995]?
The court found the project was “unsound.”
53
What did the court determine about the decision in R v Secretary of State for Foreign Affairs, ex p World Development Movement [1995]?
The decision was made for an improper purpose and based on irrelevant considerations.
54
Where can you find a critique of R v Secretary of State for Foreign Affairs, ex p World Development Movement [1995]?
A critique can be found in Irvine’s Human Rights, Constitutional Law and the Development of the English Legal System (Oxford, 2003).
55
What is involved in determining relevance?
Determining relevance involves identifying relevant considerations and evidence for a decision and acting on, or taking into account, those considerations/evidence.
56
What is the issue regarding legal relevance in decision-making?
The issue is determining what is legally relevant or irrelevant, and who decides what is legally relevant.
57
Who decides what weight is given to different factors in a decision?
The decision-maker decides what weight is given to different factors in a decision.
58
What is the first related principle in decision-making?
The first related principle is Purpose – powers conferred by statute must only be used for the purpose for which they were granted.
59
What is the second related principle in decision-making?
The second related principle is Relevance – the decision-maker must act only on the basis of factors that are legally relevant.

Public Law II (21 decks)

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