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PUBLIC LAW 2 Flashcards

1
Q

R v Secretary of State for the Home Department ex parte fire brigades Union [1995]

A

basis for judicial review – Lord Mustill - Parliament has a right to make whatever laws it thinks right - Courts interpret the laws, and see that they are obeyed. This requires the courts on occasion to step into the territory which belongs to the executive, to verify [that the powers accorded by Parliament to the executive are being lawfully exercised – i.e. judicial review].

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2
Q

R v somerset county council ex parte fewings [1995]

A

Laws J - … the judicial review court is not concerned with the merits of the decision under review. The court does not ask itself the question, ‘Is this decision right or wrong?’ […] whether he himself would have arrived at the decision in question …

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3
Q

Council of Civil Service Unions v Minister of civil service [1985]

A

Lord DIplock - one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review - · The first … I would call “illegality,” the second “irrationality” and the third “procedural impropriety.”

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4
Q

Anisminic ltd v foreign compensation commisiion [1969]

A

Ultra vires

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5
Q

Boddington v British Transport police [1999]

A

Ultra vires

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6
Q

US supreme court in chevron USA v National resources defense Council (1984)

A

American case - scope / limit of statutory power discussion

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7
Q

R v Monopolies and mergers commission ex parte south yorkshire transport [1993]

A

Exception to the page doctrine - where a statutory provision is particularly vague should the courts accept any reasonable interpretation of it by the decision maker

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8
Q

Miller [2019]

A

political decision - prerogative power

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9
Q

Padfield [1968]

A

official must use power for a proper purpose or courts shall intervene

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10
Q

Hanks v minister of housing and local government [1963]

A

official must consider relevant considerations and disregard irrelevant ones

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11
Q

Municipal council of Sydney v campbell [1925]

A

Purpose may be stated expressly or may have been implied

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12
Q

R v secretary of state for foreign and common wealth affairs ex parte world development movement Ltd [1995]

A

purpose of statute - example of courts looking at merits of case rather than just the legality - was overcome by new law passed by parliament

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13
Q

Veneables [1998]

A

public concern should not be a relevant consideration for the courts

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14
Q

R (corner house research) v Director of the serious fraud office [2009]

A

Although determining which reasons/factors are relevant or irrelevant is for courts, it is for decision-maker to decide how much weight to give to each relevant factor

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15
Q

Lavender and sons Ltd v Minister of housing and Local government [1970]

A

institution does not have the power to sub delegate powers to another

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16
Q

Carltona Ltd v commissioner of Works [1943]

A

minister remains consitutionally responsible for decisions made by their civil servants

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17
Q

Barnard v National Dock Labour Board [1953]

A

Institution does not power to sub delegate powers to another

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18
Q

British oxygen v minister of Technology [1971]

A

Discretion must be retained by the decision maker chosen by parliament - general rule: anyone who exercises a statutory discretion must not “shut his ears to an application” - but a public authority may have had to deal with similar applications and evolved a policy so precise that it could well be called a rule. This is permitted provided the authority is willing to listen to anyone with something new to say

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19
Q

r v port of London authority ex parte Kynoch [1919]

A

policy development raises a tension between two apparently conflicting sets of values - flexibility/justice vs Certainty, clarity, consistency

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20
Q

Associated provincial picture houses ltd v Wednesbury corporation [1948]

A

Wednesbury unreaonableness test - something so absurd that no sensible person could ever dream that it lay within the powers of the authority … [A] conclusion so unreasonable that no reasonable authority could ever have come to it.

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21
Q

r v secretary of state for the environment, ex parte hammersmith and fulham London borough council [1991]

A
  • Super- Wednesbury test - courts intervene only if decision crosses a high threshold of unreasonableness
  • Court says when allocation of funds is involved they would only intervene if the decision maker acted in bad faith or the unreasonableness is doubtless.
  • This is because decisions on economy require political judgement and therefore is the place of the commons and not the courts to debate
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22
Q

R v Ministry of defence policy ex parte smith [1996]

A

sub wednesbury test - Usually concerns instances where the interest that is affected by a decision is quite sensitive – when a right of an individual is affected

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23
Q

r (daly) v secretary of state for the home department [2001]

A

proportionality test in reasonablesness

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24
Q

R v chief constable of sussex ex parte international traders ferry ltd [1999]

A

Proportionality well-established in EU law. Applied by English courts in cases with EU dimension

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25
James v UK [1986]
Proportionality's variable and context dependent intensity
26
Case C-331/88 Fedesa [1990]
Proportionality's variable and context dependent intensity
27
Keyu v Foreign secretary [2015]
UKSC did not take up proportionality replacing wednesbury unreasonableness
28
Raji v general medical council[2003]
Lord steyn affirms that procedural fairness has "an instrumental role in promoting just decisions” - leading to better decision-making.
29
r v sussex justices ex parte McCarthy [1924]
rule against bias - actual fairness v appearance of fairness
30
Dimes v The proprietors of the grand junction canal [1852]
automatic disqualification
31
locabail [2000]
no disqualification with full discloseure - De minimis exception to disqualification
32
Pinochet [2000]
auto dq is beyond financial means - particular interest to judges beyond financial means
33
Porter v Magill [2002]
non automatice dq - the "fair minded and informed observer" test
34
R (Lewis) v redcar and cleveland borough council [2008]
No doubt that councillors who have a personal interest .... must not participate in council decisions - bias in decisions of political officials
35
R(C(A child)) v Camden London Borough Council [2001]
General rule: the test of bias will apply more strictly in relation to judicial proceedings than to actions of other decision makers - Ouseley J has quote on this
36
R (Island Farm Development Ltd) v Bridgend County Borough Council [2006]
predetermination v predisposition - Current position: if a fair-minded and informed observer perceives a real risk of predetermination, the “political” decision-maker’s involvement is unlawful
37
R v the chancellor of Cambridge [1723]
fair hearing/ right to be heard
38
Ridge v baldwin [1964]
Land mark case on granting of fair hearings - focus on impact of decision of individual
39
Cinnamond v British Airports Authority [1980]
arguments on importance of fairness e.g. waste of tax payers money
40
Kanda v. Government of Malaysia [1962]
Lord Denning MR - "If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him … and then he must be given a fair opportunity to correct or contradict them." Rationale: if affected parties are not notified of pending decisions applicable to them, they will find it impossible to resist those decisions
41
St germaine [1979]
right to cross examine witnesses
42
tarrant [1985]
right to have legal assistance/ represented by lawyer
43
polemis [1974]
enough time to prepare
44
lloyd v Mcmahon [1987]
Fair trials - where oral hearing unnecessary in the circumstances; - the case lent itself better to written representations, given the significant documentary evidence.
45
R (Osborn) v Parole Board [2014]
contrast to lloyd v mcmahon - the Parole Board had acted unlawfully by not granting oral hearings to three prisoners whose release/transfer requests had been denied. There was controversy about significant issues of fact (Lord Reed).
46
R v sec of state for home dept ex parte Fayed [1998]
the more significant the interest at stake, the more additional elements of the right to a fair hearing will be engaged
47
r v home secretary, ex parte doody [1994]
default position of the common law is that there is no general duty to give reason (some exceptions) - statutory provisions can impose reason given duties in certain circumstances
48
Dover district council at para 42
test to give reaons - question will be "whether the information so provided by the authority leaves room for 'genuine doubt ... as to what (it) has decided and why' "
49
South Bucks DC v Porter [2004]
The reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law.. or by failing to reach a rational decision. Reasons need refer only to the main issues in the dispute, not every material consideration. Underlying tension => fairness in decision making vs efficiency of administration
50
R v inland revenue commissioners ex parte MFK underwriting agencies Ltd [1990]
breach of legitimate expectation - Test must be “clear, unambiguous and devoid of relevant qualification”
51
r (Bancoult) v secretary of state for foreign and common wealth affairs [2008]
application of test not always straight forwards- appellate courts divided on it - also conditional promise cannot create legitimate expectation
52
Council of civil service unions v minister for the civil service [1985]
creation of legitimate expectation from public bodies - this vs national security concern
53
Ex parte asif mahmood khan
Procedural expectation
54
r v north and east devon health authority ex parte coughlan [2001]
substantive expectation -expectation of outcome vs decision making process
55
r (Patel) v general medical council [2013]
wider the group expectation applies then less likely to succeed in substantive expectation terms - government can justify diverting from expectation on public interest ground
56
R (abbasi) v foreign secretary [2002]
Essentially Court admit in foreign policy it is hard to have certain expectations to be considered legitimate because the govt enjoys wide discretion in the way they formulate and implement their foreign policy - At a minimum they UK govt must consider the request
57
National Deration of the self employed and small business [1982]
Keeps out and prevent abuse by busy bodies cranks and other mischief makers - Lord Scarman on Locus standi
58
Bell v tavistock
locus standi and debate over who has the right to stand
59
r v somerset CC ex parte dixon [1997]
Sedley J - abuses of public power - there is a necessity for judicial review as neutrals
60
Ex parte Hindley
direct personal interest as a form of locus standi
61
R v inland revenue commissioners ex parte national federation of self employed and small buinesses [1982]
beyond direct personal interest - lord diplock stating condition for locus standing when no direct personal interest
62
R v HM inspectorate of pollution ex parte green peace [1994]
association or representation interests Reasoning: 2-stage test of sufficient interest - following Fleet Street Casuals o Greenpeace had a genuine good faith concern for the environment and the activities conducted in Sellafield. They had expertise… o If standing were denied to Greenpeace, those they represented might not have effective means of bringing issues before Court.
63
r v foreign secretary ex parte world development movement [1995]
To gett standing as an organistation - Be a group or corp claiming on behalf of identifiable individuals who are its members or whom it claims to represent Hold a genuine and good faith concern for the matter in hand There is no more suitable applicant
64
AXA General insurance Ltd v HM advoacte [2011]
Public interest as a reasoning for standing - limits government action for public wrongs
65
Ex parte Smedley
An individula with no more interest in the decision thatn his capacity as a tax payer and an elector sought to challenge UK's annual contribution to the EU Budget -- court of appeal accepted he had locus standi
66
Ex parte rees mogg
an individual was granted standing to challenge the UK's signing of the maastricht treaty on the basis of his "sincere concern for the constitutional issues"
67
ex parte datafin [1987]
reviewable act - 2 criteria 1) who is taking the decision 2) type of act - case about london city regulatory body and the fairness - msut be subject to JR as acting as a public functioning body
68
R v Jockey Club, ex parte aga khan -
ruled not a public functioning body and therefore not subject to JR
69
YL v Birmingham city council and southern cross
care home not subject to JR despite organised by local authority - defining what is a public function and a distinction between charity and business
70
Anisminic Ltd v Foreign compensation commission [1962]
ouster clause - legislative provision that tries to limit or restrict judicial review
71
R (privacy international) v investigatory powers tibunal [2019]
determining clarity needed for an ouster clause to be valid
72
Shergill v Kharia [2014]
2 categories of non-justiciable issues: 1) the issue is beyond the constitutional competence assigned to the courts under the separation of powers 2) cases with no domestic law basis (e.g. questions of international relations/national security) – BUT the Courts will proceed to determine issues if there is a ‘domestic foothold’
73
Judicial review and courts Act 2022
2 important changes in the field of remedies - 1) greater flexibility on quashing orders - 2) removal of Cart route to judicial review - Upper tribunal refusal to permit appeal can no longer be reviewed by the high court

Public Law 2 (2 decks)

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