Public law: Grounds for JR Flashcards
What are the seven heads of illegality (or ultra vires) that may be challenged by JR?
Acting without legal authority
Rules against delegation
Fettering of discretion
Errors of law
Errors of fact
Taking irrelevant factors into account/failing to take relevant factors into account
Decision based on an improper/unauthorised purpose
Elaborate grounds for JR based on
ultra vires
Caltona principle
R v Adams 2020
Carltona principle would not apply only if: (2)
s.101 Local govt Act 1972
Ultra vires means acting beyond the scope or in excess of legal power or authority.
where a public body acts in a way that is not legitimised by the relevant power/statute
But the court will permit an activity provided that the govt activity is reasonably incidental (Alder 2009)
R v Richmond-upon-Thames LBC, ex p McCarthy and Stone (Development) Ltd.
Decision making powers, once given by the parliament, cannot be further delegated/sub delegated (Vine v National Dock Labour Board)
Carltona principle - Ministers sub-delegating powers to civil servants provides an exception under the convention of individual minsterial responsibility
R v Adams 2020, Carltona principle would not apply only if:
clear from the statute that the decision was one for the Minister alone to make
was a crucial one wth serious consequences, and placing a duty on the minister would not place an excessive burden on them
Local Govt Act 1972 s 101 conferrs power to local authorities to delegate power to committees or individual officer, provided that they make a formal resolution to do so
Elaborate grounds for JR based on
Fettering of discretion
Public bodies may not fetter the discretion they have been given by Parliament, by either:
1) acting under the dictation of another, e.g. where a public body bases a decision on another Minister’s objection, rather than assessing it themselves (Lavender and Sons Ltd v Minister of Housing and Local Govt)
2) Formulating a general policy as to the exercise of discretion. Public bodies may not formulate policies that restrict their ability to consider individual case on their individual merits (British Oxygen v Minister of Tech) binding themselves in advance.
Elaborate grounds for JR based on
Errors of law
Errors of fact
（root）(ignorance and establised fact)
Errors of law which affect a decision will always be amenable to JR, as confirmed in the case of Anisminic [1969]
Public authorities dealing with the same issues on a daily basis develop expertise in assessing facts, and it would overload the courts if they have to decide factual disputes
only jurisdictional errors are amenable to review, those which go to the root of a public authority’s capacity to act (Ex p Khawaja). Non-jurisdictional errors of fact are only reviewable if based on ignorance of an established fact
Elaborate grounds for JR based on
Taking irrelevant factors into accounts/failing to take relevant factors into account.
A public authority must both disregard irrelevant considerations and take into account relevant consideration when exercising its powers.
Roberts v Hopwood: took irrelevant factor into account (feminist ambition) but failed to take into account relevant factor (burden on taxpayers)
Padfield v Minister of Agriculture: took into account potential political embarrassment to Minister (irrelevant)
Elaborate grounds for JR based on
Decision based on an imporper/unauthorised purpose
court should consider (2)
where a public body acts for ends not provided for by Parliament, such as to raise their revenue (Congreve v Home Office)
Where a decision is based on both a proper and an improper (dual purpose), the court should consider the following:
Which was the primary purpose? The decision should stand if the primary purpose was the proper one
Was the authority pursuing an unauthorised purpose, which materially influenced the making of its decision (R v ILEA, ex p Westminster City Council)
Briefly introduce
grounds for JR based on irrationality
Wednesbury Principle
2 leading cases
Successful challenges under the irrationality ground of review require proof of a very high degree of unreasonableness.
‘having regarded to relevant considerations only, the decision-maker came to a conclusion so unreasonable that no reasonable authority could ever have come to it.
The principle stood unaltered since a decision needed to be ‘so outrageous in its defiance of logic, or of accepted moral standards, that no sensible person could have arrived at it.’
Wheeler v Leicester city council [1985] apartheid ban of use of rugby field
R v Parole Board [2018]
parole granted to serial rapist
A lack of reasons given for a decision may at times point to irrationality
Elaborate grounds for JR based on procedural impropriety
The rules of natural justice must be complied with (Fairmount Investment ltd v Sec of S for the Environment)
The rules against bias
The right to a fair hearing - should know the case against him and right to respond at each stage of the process
What are direct and indirect bias and how may this affect the chance of lodging a review?
Direct bias test (2)
Porter v Magill test (2)
Direct bias is
1) where an interest may lead to financial/pecuniary gain (Dimes v Grand Junction Canal Proprietors);
2) if not pecuniary, where the decision-maker is involved in promoting the same cause as a party in the case (ex p Pinochet Ugarte)
If indirect, in order for the decision to be quashed, the court must consider the Porter v Magill test
Would a fair-minded and impartial observer conclude that there had been a real possiblity of bias?
Whether the bias did affect the decision or not is immaterial - rather, what is critical is how the decision would appear to an observer (R v Barnsley MBC. ex p Hook) (market stall manager enterring the side room with the tribunal)
What are the principles of natural justice that should be observed in line with the right to a fair hearing
(3)
1) there is a duty on decision-makers to act in good faith and listen fairly to both sides (Board of Education v Rice)
2) claimants should know the case against them and have the right to reply (Fairmount investments)
3) Claimants entitled to a fair hearing which is fair and reasonable in all the circumstances (lloyd v McMahon)
What are the other consideration to adminster fairness to a review?
The concept of fairness is flexible and varies according to the category of case (Mclnnes v Onslow-fane)
1) Forfeiture cases (where the claimant is deprived of something he previously enjoyed: job/livelihood/pension rights) - the standard of fairness expected from a hearing is high and the rules of natural justice must be strictly applied
2) Legitimate expectation cases:
Procedural legitimate exception : decision maker has deviated from normal procedure (R v Liverpool Corporation) (Save Britain’s Heritage) v SoS for communities and local Govt)
Substantive legitimate expectation - where the decision maker has led someone to believe they will receive a benefit (ex p Coughlan). Substantive legitimate expectation cases limited to undertakings directed to individuals/small class of people (R(Niazi) v SoS for the Home department)
3) Application cases (where the claimant seeks for the first time a licence/membership/office). the standard of fairness expected is much lower, (Mclnnes v Onslow-Fane, all that natural justice required was for the board to act honestly and without bias.
Limitation to the rights to a fair hearing (public bodies are not duty-bound to do sth) and exception to this rule (2)
2 exceptions
1) There is no right to seek JR if a decision is preliminary only and not final (Lewis v Heffer)
2) There is no legal duty for public bodies to give reasons for their decisions (R (Hasan) v SoS for Trade and Industry)
Exceptions:
where decision appears aberrant ( Rv Civil Service Appeal Board, exp Cunningham)
where impact on a person’s rights and personal liberty is serious, and the public interest requires so (R v SoS for the Home department, ex p Doody). But the duty will only exist if it does not place the decision-makers under undue burden.
What are the rules governing a claimant right to oral hearing?
Claimants have no legal rights to full oral hearing. But claimants are entitled to a hearing which is fair and reasonable in the circumstances (Lloyd v McMahon) - may require oral hearing depending on circumstances (Osborn v Parole Board)
may require cross-examination of witness (R v Hull PPrison Board of Visitors, ex p St Germain)
clamants must have an opportunity to explain their conduct if they are an accountable public servant (Baby P)
Explain Procedural Ultra vires
Mandatory and Directory Requirement
rules on decision
test for mandatory/directory requirment (4)
consequences
Procedural ultra vires are violation of important statutory procedure before arriving at administrative decision
When deciding whether requriement is mandatory/directory, courts will consider whether Parliament would have intended the consequences of non-compliance to invalidate decision and render it unlawful (R v Soneji)
Consider whether:
the wording of the statute suggests a need for full or substantial compliance (shall, must)
there has been a failure to substantially comply (if there has been some effort to comply, this may amount to substantial compliance - Coney v Choyce)
The procedural safeguard is an important safeguard;
The claimant has suffered substantial prejudice
if mandatory, must be quashed (Bardbury v London B of Enfield)
if directory, will not be quashed (Coney - Choyce)
How may breach of convention rights be judicially reviewed?
Under S.6 (1) HRA 1998 public authorities must act compatiblty with convention rights (unless there is a conflict with the UK statute.)
Consider whether the decision/action of the public body might infringe a HRA 1998 right. Where a qualified right is breached
Especially Article 8
Right to respect for private and family life
Article 9
Freedom of though, conscience and religion
Article 10
Freedom of Expression
Article 11
Freedom of Assembly and Association
of HRA 1998)
