Public Law - Judicial Review Flashcards
What are the grounds on which a public decision can be challenged in the UK?
illegality,
Procedural Unfairness, and
Irrationality (Wednesbury unreasonableness)
Judicial review will look to the [—-] of a decision, but not the [—–].
Complete this phrase and explain it.
LEGALITY, NOT THE MERITS OF A DECISION.
JR looks at the legality (i.e. was this decision ultra vires / was a policy applied correctly / was there bias?).
What is the significance of the GCHQ case?
This was the first case in which a decision of the Executive (current government) based on PREROGATIVE POWERS was allowed to be subject to judicial review.
Ultimately, the claimants lost because the national security concerns outweighed fairness.
What is the significance of the Fire Bridges Union case?
In JR, the court will look to uphold the will of Parliament.
Held: SoS acted unlawfully as his decision was inconsistent with the statutory scheme.
Facts: The Secretary of State announced his intention not to bring into force a statutory compensation scheme for criminal injuries, which had just been approved by Parliament. Instead, the SoS introduced a new, ‘radically different’ tariff scheme, using prerogative power. This flies in the face of the statute [Parliamentary Sovereignty] that was specifically designed for this purpose
What is the significance of the Jackson v Attorney General case?
The courts will assume that the Parliament (through legislation, decisions or policies) does NOT mean to interfere with fundamental rights unless it is made “crystal clear”.
Also known as the principle of legality: “Parliament must squarely confront what it is doing and accept the political cost” (Lord Hoffmann in Ex Parte Simms).
What is the significance of the Gillick case and R v R, within the separation of powers?
In the absence of established law or legislation, the common law should keep pace with the times. The courts will uphold this, as shown in the case law.
Where an Act of Parliament gives discretionary powers (e.g. to draft a policy, set sentencing guidelines, appoint a board or committee), are these treated as more or less suspicious by the courts?
If treated more or less suspiciously, why is that the case?
Discretionary powers are treated with more suspicion in JR because they provide the Executive (current government) with greater flexibility and are more easily misused.
Secondly, the secondary legislation will not be scrutinised in Parliament (House of Commons + House of Lords), so there are fewer political checks and balances to prevent misuse of powers. This is why the courts take a stronger approach.
What sort of legal issues (related to statutes, powers to make law) and governmental issues (e.g. government discretion; secondary legislation-making powers) could potentially undermine the rule of law?
- Poorly drafted and inaccessible legislation
- Poorly reasoned and confusing judgments of the Senior Courts
- Unfettered [unrestrained] government discretion
- Unequal access to justice [consider the tribunal fees case - UNISON vs Lord Chancellor]
- Inequality before the law (everyone should be equal before the law - including politicians and judges!)
- Arbitrary use of draconian government powers
- Government interference with judicial decision-making
- Automated decision-making
What sort of decisions can be subject to judicial review?
Give examples of cases, and what factors are considered.
The act, decision, or failure to act must be relate to public law or PUBLIC FUNCTIONS.
This includes any public/hybrid body whose source of powers is STATUTE, SECONDARY LEGISLATION (Datafin), or PREROGATIVE POWERS (GCHQ).
For example, the Takeover Panel in London decides on companies’ M&A and whilst it may seem like a private body, its decisions cannot be appealed to another decision-making body, it uses statute as the source of its powers, and overall it performs a public function, i.e. government-like function (Ex parte Datafin).
If a body is self-regulating, does this indicate that it could be subject to JR or not?
It is an indication the body COULD be subject to JR, e.g. the Bar Council has been found subject to JR (ex parte Percival); the Takeover Panel (Datafin); the Advertising Standards Authority (ex parte Insurance Services plc).
Not all self-regulating authorities will be subject to JR, for example:
- Jockey Club (despite being public, the Club’s powers were in no way “governmental”);
- United Hebrew Congregation (internal religious matters were of a private nature).
If the government “contracts out” some of its roles to a private institution - are these institutions subject to JR?
They can be, but it depends:
If the private body (e.g. housing association) derives its powers purely from contractual arrangements (not statutory powers!) and is not subject to statutory control, there is unlikely to be JR because they are not performing a public service (ex parte Goldsmith)
Contrast this with (R v Partnerships in Care) where a private psychiatric hospital was deemed to be performing a public service where the focus of one of its wards was changed, to the detriment of A. It was under a direct statutory duty (Mental Health Act) to provide professional, competent staff and treatment facilities.
What is the idea of “procedural exclusivity” in public law?
JR is the ONLY possible procedure for challenging a public decision; trying to challenge a public decision in any other way is an abuse of process.
Private law matters are dealt with by standard claims, e.g. negligence, breach of contract, etc…
Where there are mixed claims, a private claim can be pursued notwithstanding public law elements.
EG: Litigant is asserting a private law right, which incidentally involves examining a public law issue, he is permitted to pursue that private law action.
What is the time limit for bringing a claim in JR?
What factors around timing are important? Does this affect remedies?
3 months to bring a claim in JR; this can be extended very exceptionally.
There must be no “undue delay”, which can affect the type of remedies available.
Who has standing to claim in JR? Describe the type of claimants.
What is the test used?
Party must have “sufficient interest” but need not have suffered actual harm / loss.
- individuals
- associations / representative groups (e.g. UNISON for trade union)
- pressure groups (e.g. Liberty for human rights; Greenpeace for eco.)
- “Concerned citizens”, but not vexatious/busybodies; will not be granted if there are more directly interested individuals/”victims”.
“Sufficient Interest” is not defined but consider:
- public law duties in the matter;
- nature of the alleged breach(es)
- construction of any statutory material
- merits of the case are often considered alongside standing, even though it’s technically a 2-stage process (court permission before a claim can proceed).
Recent case law suggests pressure groups will be allowed, provided there is no individual with standing who has done so.
In ex parte Greenpeace, what factors did the court consider when granting standing to the pressure group?
What factors were considered in ex parte World Development Movement?
The national and international presence of the group;
Its “genuine concern” for the environment;
2,500 supporters in the Cumbria region;
Potential expertise in the matters at hand.
Ex parte WDM:
- vindicating the rule of law (there would be a lacuna in the law if pressure groups cannot sue on a technicality - Fleet Streets Casuals case. Remember the constitutional role of JR).
- Absence of any responsible challenger.
- Nature of the breach (seriousness of the matter)
- Expertise/Prominent role of the applicants in giving advice, guidance and overseas aid.
What is an ouster clause and are they valid?
A full ouster clause seeks to prevent decision(s) being subject to JR - “ousting” the jurisdiction of JR.
These are highly unlikely to work without highly, highly specific wording and are very negatively interpreted as invalid by the law (Anisminic; Privacy International).
Can the time limit for JR be made shorter than the usual 3 months?
Yes, if the parties agree a shorter time (“partial” ouster clause) or a different statute provides for a shorter time limit (ex parte Ostler; CPR 54.5(3)).
Do you need to exhaust all other possible alternative remedies before pursuing a JR claim?
If granted, what is the 2-stage procedure of pursuing a JR claim?
Yes, e.g. statutory procedure for appeal; internal complains procedure; right to complain to an Ombudsman.
The court can refuse permission to hear the JR.
Stage 1: application for permission (leave from the court).
Stage 2: A full inter partes hearing.
What are the main remedies that might be available in JR?
Are these reliefs interim or final?
All remedies can be either interim (until end of a defined period) or final (permanent). All remedies are discretionary (not available as of right).
Quashing Order (cuts down the disputed decision, e.g. arbitrary use of political policy. The public body must then take the decision again according to fair procedure)
Prohibitory Order (prohibits X body from taking Y unlawful action)
Mandatory Order (compels public body to perform X public law duty)
Declaration (e.g. legal decision setting out the rights of the parties)
Injunction (rare as the Orders achieve the same)
Damages (only if the court are satisfied that damages would have been given in a private law action OR there is a breach of the Human Rights Act 1998).
Explain the category (and sub-categories) of illegality as a ground of JR
- Basic Illegality is simply where the decision-maker acts ultra vires (outside the four corners of legislation; or without any proper legislation).
EG: Legislation gave the local council permission to construct public toilets. When they did this, they built a subway under the road to access the public toilets - this was lawful because it was incidental and necessary to access the toilets (Westminster Corp).
EG: The Lord Chancellor did not have authority under the Act to set court fees so high (£500) (ex parte Witham). - Illegality can be found due to ERRORS OF LAW, e.g. misinterpreting statutory provisions
EG: The Commission stopped Anisminic from claiming as on the basis it did not meet the conditions for compensation. The UKHL held that the Commission misinterpreted the statutory scheme for claiming compensation and quashed that decision (Anisminic). - Illegality can exist due to ERRORS OF FACT, e.g. a proper reading of the facts do not support the decision-maker’s decision; the alleged facts are not supported by evidence; an established fact to a decision is ignored or misunderstood.
- ABUSE OF DISCRETION
- considering irrelevant factors
- not considering relevant factors
- using power for an improper purpose - RETENTION OF DISCRETION
- cannot fetter/restrict one’s discretion
- unlawful delegation of discretion (as this contradicts will of Parliament through the statute)!
Are all errors of law subject to JR.
(ground of review: illegality)
In principle, all errors of law are subject to JR, except:
- where the error of law is NOT DECISIVE to a decision; it would have occurred anyway
- special systems of rules, e.g. the statutes of an old university, the court will be reluctant to rule on this.
- decisions of a senior courts, e.g. the High Court and above (Re Racal)
- the wording is very imprecise (e.g. “a large part of the UK”) - just because the court would arrive at a different conclusion, this is not ultra vires/unlawful. [But note that you might pursue JR for Wednesbury unreasonableness!]
Think of a situation, or example, whether in case law or imagined, where “error of fact” would apply in a JR.
(ground of review: illegality)
Where the fact does not exist, e.g. “local authority could compulsorily purchase land, provided it was not “parkland”. The land bought was later revealed to be connected to a park. The court could JR this because the error of fact was fundamental to whether the local council had the power to act lawfully (White and Collins v Minister of Health); if an inspector’s report found that this was parkland, and the local authority went ahead anyway, they would have acted with no support evidence to challenge the inspector’s finding and this would be quashed for error of fact (Coleen Properties).
A person could be detained if they were an “illegal entrant”. As this was a “precedent fact” in detention powers, the court could review the facts through JR to ensure the person was, in fact, an “illegal entrant” (ex parte Khawaja).
If an established fact has been ignored or the decision-maker acts on the basis of a mistaken fact, this is an error of fact (assuming it was material to their decision and gave rise to unfairness) (E v SSHD)
Similarly, if their decision is based on other facts which ought not to have been taken into account (Lord Wilberforce, Thameside).
