Public Decision Makers and Standing Flashcards
How did datafin (1986) changes judicial review?
Datafin looks at the nature of the public body rather than the statutory source. Doing a job of the government and if the body were not, the government would step in.
Name three cases and explain how they represent a limit to the availability of judicial review.
- R v Jockey Club ex p RAM Racecourses (1993): ‘it is a well settled principle that … merely because some public body is amenable to judicial review it by no means follows that it is reviewable in all its functions.’
- R v Lord Chancellor ex p Hibbit (1993): The Courts noted that everything done by a public body was subject to judicial review then something that has nothing to do with public law can be brought for judicial review.
- R v Phillips (1995): ‘I would regard it as a preferable approach to consider the nature of the issue itself and whether it has characteristics which import an element of public law, rather than to focus upon the classification of the civil servant’s employment or office.’ (Carswell LJ)
How does the approach differ from Scotland?
West v Secretary of State for Scotland (1992): The Court of Session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument.
How did Aston Cantlow PCC v Wallbank (2003) change the definition of public authorities for Human Rights Act purposes?
Split into core and hybrid.
Core – all will be caught by the HRA, Hybrid – some things will be caught by the HRA
Factors for interpretation: Receipts of public funding, statutory powers, role in terms of public service.
Is the approach usually the same as for Human Rights cases? Use case law to explain.
Re Wylie (2005): ‘The public law concept in judicial review is not identical to the public authority concept under the 1998 Act but they occupy some common ground’
Explain Ouster clauses using an example.
Anisminic v Foreign Compensation Commission (1969):
S 4(4) Foreign Compensation Act 1950: ‘The determination by the commission of any application made to them under this Act shall not be called in question in any court of law.’
The House of Lords had a problem when an application of judicial review of the commission was made. The Court dealt with this by saying the role of the Court would be whether the body was exercising its powers correctly, even though it appeared Parliament were excluding them completely. Appears to make it difficult for Parliament to exclude judicial review for decisions completely.
Give an example of an ‘effective’ ouster clause.
Regulation of Investigatory Power Act 2000 S 67(8):
‘Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.’
This was unsuccessful challenged in R (Privacy International) v Investigatory Powers Tribunal (2017): Found that this was a correct use of Parliament’s power therefore the clause stands.
Who can bring standing in England and Wales? Use legislation.
England & Wales: Senior Courts Act 1981, s 31(3):
The court shall not grant leave to make such application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.
Who can bring standing in Northern Ireland? Use legislation.
Northern Ireland: Judicature (NI) Act 1978 s 18(4), RCJ Order 53, rule 3(5):
The court shall not grant any relief on an application for judicial review unless it considers that the applicant has a sufficient interest in the matter to which the application relates.
The Court shall not, having regard to section 18(4) of the Act, grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates
Name four groups of people who can bring judicial review. Use cases to support where possible.
Individuals
Associations of affected individuals – R v Liverpool CC ex p Liverpool Taxi Fleet (1972)
Surrogate Plaintiffs – R v Secretary of State for Social Services ex p Child Poverty Action Group (1990)
Public Interest Challenges
Describe the development in case law for public interest challenges in England and Wales according to Harlow and Rawlings
- the case raises an important point as to use of public power by a public body (R v Liverpool CC ex p Liverpool Taxi Fleet (1972));
- applicant has a special expertise or knowledge in the issue in question (R v Inspectorate of Pollution ex p Greenpeace Ltd (No 2));
- applicant represents section of the public which is generally affected by the decision sought to be challenged (R v Secretary of State for Social Services ex p Child Poverty Action Group (1990));
- applicant has statutory role in relation to the subject matter of proposed challenge (R v Secretary of State for Employment ex p EOC (1995));
- case may not be pursued by a directly affected individual applicant (R v Secretary of State for the Home Department ex p World Development Movement (1995)).
How is the approach to standing in Scotland different?
The approach used to be more narrow but has been amended to use sufficient interest. The move from ‘title and interest’ to standing (or ‘sufficient interest’ or ‘directly affected’.) Courts Reform (Scotland) Act 2014, s 89 – sufficient interest.
What are the criticisms to the current approach to standing?
E&W: Ministry of Justice (2013) Judicial Review: Further Proposals for Reform, chapter 4 - The Government is concerned that too wide an approach is taken to who may bring a claim, allowing judicial reviews to be brought by individuals or groups without a direct and tangible interest in the subject matter to which the claim relates, sometimes for reasons only of publicity or to cause delay.” [67]
Bingham Centre for the Rule of Law, response to MoJ consultation [16] - ‘The legal standards upheld via judicial review ultimately constitute not only rights enjoyed by individuals, but duties owed by government to the public. It does not necessarily follow that the law should recognise an actio popularis, such that anyone can institute judicial review proceedings against the government irrespective of whether they have any connection with the subject-matter of the claim. The fact that a direct interest should sometimes be required does not mean that it should always be required.’
Explain the test for standing under the HRA.
Can only bring a claim for unlawful acts of a public authority if you are a victim or would be a victim. This is a narrower test.
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may-
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act….
(3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act….
(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act….
What are the benefits of a liberal approach to standing, and what are the problems with that approach?
Arguments for: widely applicable; accountability; efficiency; upholds transparency; protect the citizen from abuse – primary purpose of administrative law being upheld; Elliot argues there is a direct interest in the governing of law about public wrongs and therefore a liberal approach is needed.
Problems: too political; potential for abuse; goes too far.
