Public Law Refresh Session 2- Judicial review Flashcards
What are the key characteristics of Judicial review?
This is a challenge to the legality of a public law decision or action ( Rule of law in action). It concerns the lawfulness of the way in which the decision has been made, including the faireness of the process- not a challenge to the substantice merits of the decision, nor an appeal.
This is reflected in the nature of the remedy- Primarily a quashing order (invalidation of the decision reached)
How do you apply for a juridal review?
This is not as of right- the challenger must apply for permission.
Also have to show as the challenger any other forms/types of remedies have been exhausted.
Lastly, the challenger may apply to the administrative court
Who can apply for a judiciarl review?
Test- ‘sufficient interest’ in the matter to which the application relates.
This has become a broad, ‘generous’ test- post fleet street casuals.
Allows not just challenges from those personally/directly, but it also means that group challenges can come too.
If a group/public interest challenge is brought, the court will look at the status of the group (or inidividual). Alongside that, they will use the ‘vindication of the rule of law’- if there is an interest/pressure group willing to bring a JR, where there is no apparant group who have been directly affected, then they will likely give them standing, to try and bring about a check on the law
What is the amenability to judicial review?
This is the context of the challenge and whether it is approriate for the JR process. Essentially, this depends on the nature of the decision being challeneged rather than on the status of the body making the decision or where the powers orignially came from.
Datafin- self-regulatory body- it wasnt a body created by pariliament- challenged on a decision that was a matter of a important public decision, which it should not make. It was deemed amenable to JR
What is the route of challenge for JR?
held in the administrative court (this is a specialist court with rules and procedure)
Procedural exclusivity (o’reilly)- penalised parties for using the wrong process- abuse of abuse of process. However in recent time, trend has been towards a greater degree of flexibility, especially with the mix of private and public law that can arise.
Ouster clause- clauses in legislation which try to exclude the right for parties affected by that decision from challenging that decision in the JR courts. cases like Anismninic and Privicy international have found that these clauses have been disregarded.
Limitation clauses- try to limit the time in which it can be challenged, but courts are reluctant to accept them.
What are the time limits for JR
There are strict JR rules- CPR 54.5- JR proceedings must be issued ‘promptly and in any event within 3 months’ (of operative decision)
There are sub-rules for certain types of decisions- eg planning (6/52) and public procuremend (30 days)
The reason behind this is to try and balance individual and public interests
What are the key ground of JR?
1) Illegality: Pure or simple Ultra vires, Errors of law or fact, Failings in use of discretion (i.e relevancy of considerations, improper purpose, Fettering of discretion, unlawful delegation )
2) unreasonableness- defects in the decision-making process, Impact on defendant
3) Fairness of process- common law fairness/bias, statutory procedural obligations (development of legisitmate expectation)
What is the ground of illegality for JR?
1) pure or simple Ultra Vires- Eg if a public body acts outside the powers that is has been given (largely by parliament).
2) Errors of law- eg where a public body misunderstands or misinterprets its power.
3) Errors of fact- eg where a public body uses a power on the basis of a mistaken factual considertaion or factor- this has to be a material fact; and the error must cause unfaireness.
What is the failing in use of discretion?
1) relevancy of considerations- Public body must have regard to relevant factors and disregard irrelevant ones
2) fettering of discretion- Public body must use discretion given to it, Public body must not restrict its own discretion (eg by an overly rigid policy)
3) Improper purpose- Public body must use powers for the purpose intended by Parliament- this is a matter for the court to interpret
4) unlawful delegation- powers should be exercised by relevant holder of power, but- Carltona Principle (this allows properly authorised civil servants to make decisions in the ministers name)
What is unreasonableness in terms of Judicial review?
its a substantive ground of review. Courts ask wherther the decision made was irrational or illogical. They ask:
1)was there a failure in the weighing up of considerations/factors.
2) Did the decision have an oppressive impact on the recipient
3) Was it taken in bad faith
Alongside that, depending on the size/importance/gravity of the decision and who it affects, the courts vary their ‘intensity of review’. Eg if it was a national policy, there is a mild intensity of review (wednesbury review)
What is fairness in the eyes of JR
2 ways:
1) Statutory procedural obligations
Hybrid illegality issues: did Parliament intend that failure to comply would justify invalidation of decision/process?
2) Common law fairness
Relates to fairness of the process and not the fairness of the substantive outcome
Contextual assessment- what level of fairness should have been shown in the particular situation/context
Issues arising? degree of notice; participation in process
Degree of explanation given- reasons for the decision
What is rule against bias?
Self-contained issue of fairness- can the outcome of a process be invalidated because of bias?
Direct Bias- usually a direct personal financial interest in a decision. Being a ‘judge in one’s own cause’ in legal context (eg Pinochet)
Indirect bias- would the fair-minded and informed observer conclude that there was a real possibility of bias?
Closeness of connection; preconceived mindset
What is legitimate expectation?
A procedural legitimate expectation is created when a representation is made by a public authority that it will follow a certain procedure before making a decision on the substantive merits of a particular case.
1) legitimate expectation
Procedural OR substantive
Can arise expressly- a ‘promise’
Must be ‘clear, unambiguous’
Must have authority behind it
Detrimental reliance not essential
2) Was frustration of an Legitimate expectation lawful?
Frustration can be lawful if it represents a proportionate response by the Public body
In larger scale- ‘macro-economic’ cases, the standard of review is linked to the Wednesbury review standard.
What is the continued effect of EU law?
2 seperate legal regimes apply
1) Preserved EU law Withdrawal Agreement
2) Retained EU Law became Assimilated EU Law
What is the ‘preserved’ EU law
EU-UK withdrawl agreement
Effectively preserves EU law in 2 areas:
1) Rights of EU citizen (with settled status in the UK)
2) NI Protocol
Settled in accordance with Withdrawal agreement
