Pre-Requisites for JR Flashcards
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.
What is the relationship between Judicial Review and Statutory Powers?
Much of judicial review is focused on applying principles of administrative law to the exercise of discretionary statutory powers by public authorities
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.
