Pre-Requisites for JR

Question 1

What are the four pre-requisites for a judicial review action?

Answer 1

1. Is the body which had made the decision a public body so as to be susceptible to judicial review (known as “amenability”)
2. Does the person who seeks to challenge the decision have standing (locus standi) to do so?
3. Is the application made in time and has permission been given?
4. When must the application for judicial review be used?

Question 2

According to the amenability requirement what kinds of body are susceptible to judicial review?

Answer 2

Public Bodies or bodies exercising a Public Function.

Question 3

What is a public body?

Answer 3

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.

Question 4

Why are public bodies treated differently/have special standards imposed upon them?

Answer 4

1. They exercise certain functions and powers and duties that private citizens don’t have.
2. Due to the great power such bodies have there ought to be additional duties of procedural fairness.
3. Certain institutions may have a monopoly therefore should be subject to a degree of public accountability.

Question 5

Which public functions are immune from judicial review?

Answer 5

Full Acts of Parliament are immune from judicial review.

Question 6

What are the three key categories of power associated with the exercise of public functions?

Answer 6

1. Statutory Power
2. Prerogative Power
3. De facto Powers

Question 7

Are statutory powers subject to judicial review?

Answer 7

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.

Question 8

What is the relationship between Judicial Review and Statutory Powers?

Answer 8

Much of judicial review is focused on applying principles of administrative law to the exercise of discretionary statutory powers by public authorities

Question 9

What are (Royal) Prerogative Powers?

Answer 9

‘…those [legal] attributes belonging to the Crown which derive from common law, not statute, and which still survive’. – Munro.

Question 10

What is the relationship between Parliament and the prerogative?

Answer 10

Parliament can curtail the prerogative – De Keyser’s Royal Hotel

Question 11

Can prerogative powers be created?

Answer 11

No new prerogative powers can be created – BBC v Johns (Inspector of Taxes)

Question 12

What are some examples of prerogative powers?

Answer 12

1. Deployment of armed forces 2. Appointment and regulation of the civil service
2. Making treaties

Question 13

Are prerogative powers subject to judicial review?

Answer 13

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.

Question 14

What did the House of Lords find in the GCHQ Case?

Answer 14

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.

Question 15

How did the House of Lords consider the question of justiciability in regards to the GCHQ Case?

Answer 15

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.

Question 16

In the GCHQ Case how did Lord Roskill implement the justiciability consideration?

Answer 16

In CCSU, Lord Roskill sets up a list of ‘non-justiciable’ powers, including the making of treaties and the deployment of armed forces.

Question 17

What are de facto powers?

Answer 17

De facto powers are those powers that can be said to exist in practice even if not officially recognised by laws.

Question 18

Are de facto powers subject to judicial review?

Answer 18

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.

Question 19

How did the courts justify it’s review in the Dafatin Case?

Answer 19

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.

Question 20

What is the inconsistency in the reasoning of the Court of Appeal in the Dafatin Case?

Answer 20

Not all ‘enormous’ power wielded by private bodies is subject to the control of the administrative courts. So what is the governing principle?

Question 21

What is the contrasting decision to the Dafatin Case?

Answer 21

R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan

Question 22

What did the Court of Appeal find in the Khan Case?

Answer 22

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.

Question 23

Is the presence of monopoly power a justification for judicial review?

Answer 23

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.

Question 24

Why is the finding of the Khan Case significant?

Answer 24

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.

Question 25

What is standing?

Answer 25

Also known as Locus Standi, standing is the pre-requisite for judicial review actions that determines who can apply.

Question 26

Where does the requirement of standing come from?

Answer 26

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.”

Question 27

At what stage of the application process for judicial review is standing an issue?

Answer 27

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.

Question 28

What are the two key ways in which standing can be demonstrated?

Answer 28

1. If an individual is ‘directly affected’ by the decision they dispute
2. Representative organisations or pressure groups may establish standing through;
   - Associational Standing
   - Public Interest Standing

Question 29

When will ‘sufficient interest’ for standing be satisfied?

Answer 29

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

Question 30

Can a ‘sufficient interest’ for standing be shown by companies and local authorities?

Answer 30

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.

Question 31

What actually constitutes a ‘sufficient interest’ in the context of standing?

Answer 31

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.

Question 32

What did Lord Wilberforce say about the concept of ‘sufficient interest’?

Answer 32

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.”

Question 33

Is demonstration of ‘sufficient interest’ the only way to show standing?

Answer 33

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.

Question 34

What are the two broad categories of representative standing?

Answer 34

1. Associational Standing

2. Public Interest Standing

Question 35

Who normally seeks to exercise associational standing?

Answer 35

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.

Question 36

Who normally seeks to exercise public interest standing?

Answer 36

Individual, corporation or group purporting to represent the public interest rather than the interests of any identified or identifiable individuals’.

Question 37

What was the courts traditional approach to representative standing?

Answer 37

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.

Question 38

What is the current approach of the courts to representative standing?

Answer 38

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).

Question 39

What did Cane say about the concept of associational standing?

Answer 39

He considered the relationship between the representer and representees, saying; ‘Control of the represented over those who claim to represent them. Some degree of input needed: A democratic stake/democratic nexus needed.’

Question 40

Where did the concept of public interest standing arise from?

Answer 40

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.

Question 41

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?

Answer 41

The Court of Appeal adopted a flexible analysis. Considering the following principles;

1. The importance of vindicating the rule of law.
2. The importance of the issue raised.
3. The likely absence of any other reasonable challenger.
4. The nature of the breach of duty against which relief is sought.
5. The prominent role of WDM in providing advice, guidance and assistance with regard to aid.

Question 42

What was the consequence of the R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd Case?

Answer 42

Public Interest was found to be a sufficient ground for standing and Similarly placed claimants have since established standing on public interest grounds.

Question 43

Do Trade Unions have standing?

Answer 43

Yes, Trade Unions have standing – acting as proxy for members.

Question 44

What procedural restrictions are there on the exercise of judicial review?

Answer 44

1. Permission Required

2. Time Limits

Question 45

How does the requirement of permission restrict actions for judicial review?

Answer 45

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.’

Question 46

How do time limits impact the exercising of judicial review?

Answer 46

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.

Question 47

How is the case of R v Swale Borough Council significant in relation to time limits?

Answer 47

This case demonstrated that even action within 3 months may not be sufficiently ‘prompt’ and may be deemed unduly delayed.

Question 48

What is the rationale of the time limits on judicial review actions?

Answer 48

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…’

Question 49

What is the rationale of the permission requirement for judicial review actions?

Answer 49

1. Encourages Settlement;
2. Saves court Time
3. Protects the administration; and
4. Protects the public interest

Question 50

How has the time limits requirement created tensions with the ECHR?

Answer 50

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.

Question 51

What happens if an application for judicial review is not given permission?

Answer 51

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.

Question 52

When must the judicial review procedure be used?

Answer 52

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) 
(see remedies)

Question 53

When may the judicial review procedure be used?

Answer 53

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)

Question 54

What happens where a claimant seeks a declaration or injunction in addition to one of the remedies listed under CPR 54.2?

Answer 54

The judicial review procedure must be used.