Public Law and Facts Flashcards

Question

The Wednesbury principle

Answer 1

Associated provincial picture houses vs Wednesbury corporation 1948 established the test that whether having regard to relevant considerations only, the decision maker came to a conclusion so unreasonable that no reasonable authority would ever have come to it

Answer 2

CCSU 1984 to be irrational a decision must be so outrageous in its defiance of logic, or of accepted moral standards that no sensible person could have arrived at it.

Answer 3

bans judicial review of certain executive actions, if provided for in the bill.

Answer 4

First there’s the rule against bias. This prohibits a decision maker from acting where his involvement is improper, or from taking decisions which appear to be biased. Secondly there’s the right to a fair hearing. This always applies to decisions made by governmental bodies, but exactly what is fair for a particular decision isn’t always the same. It will depend on what’s at stake and the reasonable expectations of the parties.

Answer 5

the court will check that the claimant has standing and that the claim form was issued within the time limit. But, its primary purpose is to weed out futile claims before they reach the substantive hearing stage. In addition, generally the court must not grant permission if the result for the claimant would not have been substantially different if the conduct of the public authority which is complained about had not occurred.

Answer 6

• The first stage is the source of power test. If the body making the decision has been set up under statute or under delegated legislation, or derived its power under a reviewable prerogative power, then it’s a public body. • 2 If this is not the case, then the court goes on to apply the second stage, namely the nature of power test. Under this part, if the body making the decision is exercising public law functions, it may still be a public body. Thus giving the court of appeal powers of interpretation

Answer 7

would a fair minded and impartial observer that there had been a real possibility of bias?

Answer 8

is where the decision maker has failed to follow normal procedure,

Answer 9

is where the decision maker has led someone to believe that he or she will receive a benefit

Answer 10

A quashing order (formerly a writ of certiorari) nullifies a decision which has been made by a public body. The effect is to make the decision completely invalid. Such an order is usually made where an authority has acted outside the scope of its powers (ultra vires). The most common order made in successful judicial review proceedings is a quashing order. If the court makes a quashing order it can send the case back to the original decision maker directing it to remake the decision in light of the court’s findings. Very rarely, if there is no purpose in sending the case back, it may take the decision itself.

Answer 11

A prohibiting order (formerly a writ of prohibition) is similar to a quashing order in that it prevents a tribunal or authority from acting beyond the scope of its powers. The key difference is that a prohibiting order acts prospectively by telling an authority not to do something in contemplation. Examples of where prohibiting orders may be appropriate include stopping the implementation of a decision in breach of natural justice, or to prevent a local authority licensing indecent films, or to prevent the deportation of someone whose immigration status has been wrongly decided.

Answer 12

A mandatory order (formerly a writ of mandamus) compels public authorities to fulfill their duties. Whereas quashing and prohibition orders deal with wrongful acts, a mandatory order addresses wrongful failure to act. A mandatory order is similar to a mandatory injunction (below) as they are orders from the court requiring an act to be performed. Failure to comply is punishable as a contempt of court. Examples of where a mandatory order might be appropriate include: compelling an authority to assess a disabled person's needs, to approve building plans, or to improve conditions of imprisonment. A mandatory order may be made in conjunction with a quashing order, for example, where a local authority's decision is quashed because the decision was made outside its powers, the court may simultaneously order the local authority to remake the decision within the scope of its powers.

Answer 13

A declaration is a judgment by the Administrative Court which clarifies the respective rights and obligations of the parties to the proceedings, without actually making any order. Unlike the remedies of quashing, prohibiting and mandatory order the court is not telling the parties to do anything in a declaratory judgment. For example, if the court declared that a proposed rule by a local authority was unlawful, a declaration would resolve the legal position of the parties in the proceedings. Subsequently, if the authority were to proceed ignoring the declaration, the applicant who obtained the declaration would not have to comply with the unlawful rule and the quashing, prohibiting and mandatory orders would be available.

Answer 14

An injunction is an order made by the court to stop a public body from acting in an unlawful way. Less commonly, an injunction can be mandatory, that is, it compels a public body to do something. Where there is an imminent risk of damage or loss, and other remedies would not be sufficient, the court may grant an interim injunction to protect the position of the parties before going to a full hearing. If an interim injunction is granted pending final hearing, it is possible that the side which benefits from the injunction will be asked to give an undertaking that if the other side is successful at the final hearing, the party which had the benefit of the interim protection can compensate the other party for its losses. This does not happen where the claimant is legally aided.

Answer 15

Damages are available as a remedy in judicial review in limited circumstances. Compensation is not available merely because a public authority has acted unlawfully. For damages to be available there must be either: 1. a recognised private law cause of action such as negligence or breach of statutory duty; or 2. a claim under European law or the Human Rights Act 1998.

Answer 16

The discretionary nature of the remedies stated above means that even if a court finds a public body has acted wrongly, it does not have to grant any remedy. Examples of where discretion will be exercised against an applicant may include where the applicant's own conduct has been unmeritorious or unreasonable, for example where the applicant has unreasonably delayed in applying for judicial review, where the applicant has not acted in good faith, where a remedy would impede an authority's ability to deliver fair administration, or where the judge considers that an alternative remedy could have been pursued.

Answer 17

form of procedural impropriety, its when you apply for something like a license and are not given reasons for objection or refusal. one of three forms of claimant

Answer 18

may not be quite as absolute, legally speaking, as the ordinary use of the word might suggest, they are, nonetheless, rights that the state has to observe strictly. They cannot be interfered with by the state.

Answer 19

on the other hand, are rights that the state has flexibility to interfere with. are written in two parts, expressing the right itself, and the qualifications for it Qualified rights must be specified, be in accordance of the law and created by itThese qualifications need to be for legitimate aims such as national security, public safety or economic wellbeing, prevention of disorder or crime, protection of health or morals, protection of rights or freedoms of others the prevention of disclosure of information revived in confidence, maintaining the impartiality and authority of the judiciary. Remember these aren’t for every qualified right but are dependant depending on right. Finally there must be a social need for the qualification and It must be proportionate.

Answer 20

which can only be limited in clearly defined and finite situations.

Answer 21

comes up regularly in judicial review cases. It’s the basis on which many administrative decisions are challenged, and the courts will apply the three elements, deciding if the interference is: • Prescribed by law • In pursuit of a legitimate aim • Necessary in a democratic society ('proportionate') Remember legitimate aims are listed in the ECHR and are exhaustive

Answer 22

in a moment of emergency some elements of the ECHR can be suspended but not all, right to life and freedom from torture for example.

Answer 23

means government can create secondary legislation to deal with a breach of the ECHR.

Answer 24

defamation, breach of confidence, misuse of private information, official secrets threatening insulting or abusive words or behaviour, incitement to racial or religious hatred, obscenity, communications act 2003, terrorism act 2006, contempt of court.

Answer 25

civil (involving disobedience of a court in civil proceedings), criminal (interference in justice). Both are strict liability.

Answer 26

judicial review, when you may lose something, one of three forms of claimant

Answer 27

when you expect the public body to give you something (Substantive) or when a body has failed to follow a procedure (procedural) judicial review one of three forms of claimant