Public law - Judicial Review (EXM)

Question 1

Common law origins

Answer 1

Developed as a body of unwritten legal customs and traditions, refined by judges who relied on prior decisions and precedents when deciding cases.

Question 2

Statutory framework

Answer 2

Acts such as:
- Senior Courts Act 1981
- Human rights act 1998
- Tribunals, Courts and Enforcement act 2007

Question 3

Judicial Review Standing

Answer 3

Outlined in the senior courts act 1981
It is assessed in the permission stage
The applicant has to have sufficient interest in the matter to bring up a case.

Question 4

Judicial Review Remedies

Answer 4

Judicial review remedies are “discretionary” meaning that the court may refuse to issue a remedy if its in the public interests to-do so.

Quashing order - Sets aside the original decision
Mandatory order - Court compelling a public body to act in a certain way
Prohibiting order - Aims to prevent a public body from taking a measure that it had intended to

Question 5

Grounds for illegality (Case Law)

Answer 5

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]

Facts:

Under the Sunday Entertainments Act 1932 the Wednesbury Corporation granted licenses to cinema operators that banned the admission of children of age 15 or younger on Sundays, with or without accompanied by an adult

Before the Sunday Entertainments Act 1932 it was illegal to open cinemas of Sunday

Issue:

Whether these terms set by the Wednesbury Corporation were ultra vires

Held:

Appeal dismissed - Lord Greene stated that it was a reasonable decision to make and any reasonable decision maker would’ve made it.

Question 6

GCHQ Case

Answer 6

Facts:

In the 1980’s, it was ruled that any employees of the Government Communications Headquarters (GCHQ) were prohibited from joining any trade union. This decision was justified based on the potential threat to national security, and enforced using Royal Prerogative Power.

Issues:

By limiting access, or completely refusing access to trade unions to employees, certain individuals affected were not able to rely on certain employment legislative provisions or be represented by a Union.

Held:

The case established that prerogative powers can be judicially reviewed despite early unwillingness to review it.

House of lords dismissed the appeal stating that it was reasonable to prevent British Intelligence employees from joining trade unions in the interests of national security

Question 7

What is intra vires and ultra vires

Answer 7

Intra Vires = Within the legal power or authority
Ultra Vires = Beyond one’s legal power or authority.

Question 8

Discretionary powers

Answer 8

Discretionary powers are the freedoms given to someone to make decisions based on their judgment without strict rules.

Parliament gives discretionary powers to the executive (government officials) because it makes decision-making more efficient and allows for flexibility in applying laws.

Question 9

Unfettered discretion

Answer 9

“Unfettered discretion” means having complete freedom without any restrictions in making those decisions

Question 10

Can delegated powers be exercised by a subordinate (e.g. a civil servant)?

Answer 10

The Carltona principle supports the delegation of ministerial powers to civil servants, and the case of R v Adams affirmed and applied this principle

Question 11

What are the 3 elements of procedural fairness

Answer 11

• The absence of bias
• Institutional independence
• The right to participate in the decision making process

Question 12

Legitimate expectations

Answer 12

Claimant Expects:
- To have case decided in a particular way
- To receive a particular benefit or outcome
- Consultation or fair hearing
- Substantive protection

Question 13

How can something be considered unreasonable

Answer 13

Courts can challenge a decision if they believe no reasonable decision maker would have ever arrived at the same decision as presented in the case.

Question 14

What is “Wednesbury unreasonableness”

Answer 14

A decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

Question 15

ex p Smith (1996) case law

Answer 15

Facts:

• The Ministry of Defence created a policy to dismiss any personnel known to be homosexual or engaging in homosexual activity
• 4 personnel were dismissed from the armed forces
  They applied for judicial review on the grounds of irrationality, violation of article 8 of the ECHR (private and family life), and the European Equal treatment directive
• The divisional court held that the policy was not so outrageous to be unreasonable; S appealed

Issues:

Was it unreasonable to ban all homosexuals from the armed forces?

Held:

Appeal dismissed; it was reasonable to ban all homosexuals from the armed forces

Question 16

ex p Daly (2001) case law

Answer 16

Facts:

• The Home Secretary issued a document requiring prisoners to be removed from their cells during routine searches, including examination of legal correspondence on the suspicion that the contents are criminal
• Daly applied for judicial review on the basis that these searches breached his common law right that the confidentiality of privileged legal correspondence

Held:

Appeal allowed; the policy infringed upon D’s common law right