SBAQ - JUDICIAL REVIEW - INTRO AND SUBSTANTIVE GROUNDS FOR REVIEW Flashcards
Which of the following statements is correct?
1. Judicial review is a system that allows an individual to appeal from a decision of a public body to the High Court.
2. In a claim for judicial review the court is not concerned with the merits of a decision.
3. It is possible for a claimant to bring a judicial review action to challenge the validity of an Act of Parliament.
4. Where a public body has taken an irrational decision, the court can, on a claim for judicial review, substitute its own (rational) decision.
5. A court will not overturn the decision of a government minister on judicial review as this would be in breach of the doctrine of the separation of powers
the correct answer is B. In a claim for judicial review the courts are concerned with the legality, rather than the merits, of a decision.
Judicial review is not the same as an appeal – so option A is wrong. Option C is wrong as a claimant cannot challenge an Act of Parliament by way of judicial review due to the doctrine of parliamentary sovereignty. (The claimant could seek a declaration of incompatibility pursuant to s 4 Human Rights Act 1998, but such a declaration does not affect the validity of the Act.)
Option D is wrong as the court cannot substitute its own decision on judicial review, but must refer the matter back to the relevant public authority to make the decision again.
Option E is wrong as the court does have the power to overturn the decision of a government minister on an application for judicial review. This ensures that the government minister stays within the powers given by the legislature and is an example of the separation of powers at work.
Question 2
A decision by a public body which is challenged on the basis that it satisfies the substantive grounds on which judicial review may be sought must be either illegal or irrational. It cannot be both.
Is this statement true or false?
1.
True
2.
False
FALSE
That’s right - Illegality and irrationality may overlap. For example, irrationality will often arise when a decision maker has either failed to take into a relevant consideration when making a decision, or has taken into account an irrelevant consideration, with the result that the decision taken is unreasonable or illogical.
Question 3
Assume that under statutory powers a local authority is empowered to purchase land compulsorily where it is satisfied that the land is needed for the development of the area. It orders the compulsory purchase of land belonging to Shaw & Pearce Ltd (S&P) on the grounds that it is suitable for development of the area and to prevent the continuation of its current use by a payday lender. S&P wants to challenge the local authority’s decision by way of judicial review, invoking illegality as a ground.
Which ONE of the following statements is WRONG?
1. S&P will be unable to challenge the decision as one of the purposes pursued by the local authority (the development of the area) was an authorised purpose.
2. Unless the authorised purpose was the primary purpose being pursued by the local authority, the decision will be illegal.
3. The decision will be illegal because the local authority has taken an irrelevant consideration into account, the current use of the land by a payday lender.
4. If the unauthorised purpose (preventing the land’s continued use by a payday lender) materially influenced the local authority’s decision, the decision will be illegal as the local authority was pursuing an improper purpose.
5. If preventing the land’s continued use by a payday lender materially influenced the local authority’s decision, it can be challenged both on the ground of improper purpose and for taking an irrelevant consideration into account.
Option A is the one that should be selected. S&P will be able to challenge the decision of the local authority even though one of the purposes the authority was seeking to achieve was an authorised purpose.
All the other options are correct. If, as seems likely, the unauthorised purpose materially influenced the decision to compulsorily purchase S&P’s land, the decision will be illegal (R v ILEA, ex p Westminster City Council). The courts have also used the primary purpose test where decision makers have pursued two purposes, one authorised and the other unauthorised (Westminster Corporation v LNWR). The current use of the land by a payday lender can also be analysed as an irrelevant consideration (Padfield).
Question 4
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 is one of the leading cases on irrationality as a ground for judicial review.
Choose the option which best describes the court’s definition.
1. A decision will be irrational if it is objectively unreasonable.
2. A decision will be irrational if it is so unreasonable that no reasonable authority could ever have taken it.
3. A decision will be irrational if it is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it.
4. A decision will be irrational if the decision-making process breaches the rules of natural justice and is therefore unfair.
5. A decision will be irrational if it cannot achieve the aim it sets out to achieve.
Option B is correct because it sets out the correct Wednesbury test for irrationality. Option A sets the threshold at too low a level, while option C gives the CCSU test for irrationality. Option D refers to the wrong ground for review. E may be correct but it is not how the test was set out in the Wednesbury case.
Question 5
A local authority has been given power to issue grants to people to help them insulate their homes. The local authority wishes to adopt a policy stating that priority for such grants will be given to elderly applicants.
Which of the following statements best represents the legal position?
1. The local authority must not form such a policy since it must be able to exercise its power freely in every case.
2. The local authority is free to form such a policy since it has a great many decisions to make and cannot always consider every case in full.
3. The local authority is free to form this policy as long as this does not prevent it considering each case on its own merits.
4. The local authority is free to form this policy if the Act granting it decision making power states that it may do so.
5. The local authority must not form such a policy as to do so would be acting outside of its legal authority.
The correct answer is C. Decision makers, such as the local authority, may formulate policies provided that they are consistent with the statute granting the power and applied in such a way that the decision maker can consider each case on its merits (British Oxygen v Minister of Technology). This principle is of general application and so the relevant statute does not need to provide the power to do so. B provides a fair explanation of the reasons behind the legal rule but is not the best representation of the legal position.
A statutory tribunal has power to fix rent for unfurnished lettings. The tribunal fixes the rent in one case where the landlord has provided a full set of furniture on the basis that the flat is unfurnished.
Which one of the following statements is CORRECT?
1. The statutory tribunal has made an error of law. As this error is jurisdictional the decision is unlawful.
2. The statutory tribunal has made an error of law. As this error is not jurisdictional the decision is lawful.
3. The statutory tribunal has made an error of fact. As this error is not jurisdictional the decision is lawful.
4. The statutory tribunal has made an error of fact. As the error is not a material one leading to unfairness the decision is lawful.
5. The statutory tribunal has made an error of fact. As this error is jurisdictional the decision is unlawful.
the answer is E. The statutory tribunal has not misinterpreted the law so A and B are wrong. The statutory tribunal has made a mistake of fact – it has concluded that the flat is unfurnished. The statutory tribunal has no power to fix the rent if it comes within the definition of ‘unfurnished lettings’ which would not include a property where there was a full set of furniture. This means that the statutory tribunal has made a jurisdictional error of fact and the decision will be unlawful (ex p. Khawaja). The decision may also be a material one leading to unfairness, provided that the four criteria in E v Secretary of State for the Home Department are met. This is unknown, so D is wrong.
An Act of Parliament states that the Secretary of State for the Environment, Food and Rural Affairs may award grants for the purpose of establishing wind farms provided that the applicant can show that the land has not produced a profit for the previous two accounting years. A landowner applies for a grant. His land did produce a profit last year but he can show that, due to soil erosion, it will not produce a profit in the future. He is turned down by a civil servant in the Department of the Environment, Food and Rural Affairs, as he does not meet the criteria.
Is the decision of the civil servant lawful?
1. No, the decision is unlawful as the civil servant has fettered his discretion by applying the policy too strictly.
2. No, the decision is unlawful as the civil servant has failed to take into account relevant considerations.
3. No, the decision is unlawful as the Secretary of State cannot further delegate decision-making powers which have been delegated to him in the Act.
4. Yes, the decision is lawful due to the Carltona principle.
5. Yes, the decision is lawful due to s 101 Local Government Act 1972.
option D is correct. The civil servant’s decision comes within the exception to the rule against delegation allowing civil servants to take decisions on behalf of the relevant minister. This exception is known as the Carltona principle (from the case of Carltona Ltd v Commissioners of Works).
B is therefore incorrect as there are exceptions to the rule against delegation. The decision was made by a civil servant rather than an officer of a local authority so s 101 LGA will not apply.
The criteria are contained in a primary Act of Parliament, so they must be applied. This is not a situation where the Secretary of State has adopted a policy.
- Question 2
Assume that officials of the Department of the Environment, Food and Rural Affairs (‘the Department’) have statutory power to ban movements of cattle which they suspect to be suffering from a contagious disease. An official from the Department orders a farmer not to move any animals to market. The official tells the farmer that the order to ban the movement of his cattle has been made on the instructions of the National Farmers Union (‘the Union’) who have information that the farmer’s cattle may have a contagious disease as they have not been vaccinated, contrary to the Union’s policy.
Which of the following heads of illegality would it be most appropriate for the farmer to use to challenge the official’s decision?
1. Fettering discretion
2. The rule against delegation
3. Error of law
4. Taking account of irrelevant considerations
5. Acting without legal authority
Option A is correct. Fettering discretion is the most appropriate head of illegality for the farmer to use. The official has allowed herself to be dictated to by the National Farmers Union.
Option B is wrong. Whilst the official may have allowed herself to be dictated to, this will not amount to unlawful delegation, as the official herself made the decision. In unlawful delegation, the delegate will make the decision themselves.
Option C is wrong. There does not appear to be an error of law.
Option D is not the best answer. Arguably, the information from the Union may be relevant, but, even if it is not, this would not be the most appropriate ground to rely on.
Option E is wrong. The official does have power to ban the movement of cattle.
Under an Act of Parliament, local authorities may fine owners of dogs where it is proved that they have left their dog mess (faeces) in the park and have not picked it up and placed it in the bins provided for this purpose. A District Council has discovered sheep droppings in the local park. It traces these droppings back to a sheep owned by a local resident. The local resident has been letting his sheep graze in the park. An officer from the District Council serves the local resident with notice that he is being fined under the Act.
Which of the following heads of illegality would it be most appropriate for the local resident to use to challenge the decision?
1. Fettering discretion
2. Unlawful delegation
3. Taking into account irrelevant considerations
4. Pursuing an improper purpose
5. Acting without legal authority
Option E is correct. The District Council is acting without legal authority. The Act only gives it power to fine dog owners where they have left dog mess in the park. It does not say that they can fine sheep owners. To fine the local resident would mean that the District Council is acting beyond its legal powers and its decision is accordingly unlawful.
Option A is wrong. The officer is applying the Act rather than fettering their discretion through the application of any policy.
Option B is not the best answer. It is not known whether the District Council passed a formal resolution that the officer in question could take the decision. If they had not, the decision would not come under the exception in s101 Local Government Act 1972 so it could be challenged on this ground. However, given that this is an unknown, and it is clear that the District Council has no power to take the decision, unlawful delegation is not the most appropriate head of illegality to use.
Options C and D are not the best answers. Whilst it might be arguable that the District Council is pursuing an improper purpose or taking into account an irrelevant consideration in using its powers to deal with sheep droppings rather than dog mess, acting without legal authority is the most appropriate ground. The reason why a decision-maker is exercising its powers chiefly becomes relevant once it has been established that the power exists.
An Act of Parliament gives to the Secretary of State for the Environment, Food and Rural Affairs (‘the SoS’) certain powers for the purpose of promoting the use of ‘renewable’ energy in preference to fossil fuels. Those powers include the power to make compulsory purchase orders (‘CPOs’) of ‘appropriately located land’ to build wind farms. The SoS has issued a CPO relating to the housing stock on an old local authority housing estate, right in the middle of a busy town and is therefore not an appropriate place to site a wind farm.
Which of the following statements best expresses what must be shown to establish that the decision is unlawful on the basis of irrationality?
1. That the SoS has acted disproportionately in this situation.
2. That the SoS has acted unreasonably in this situation.
3. That the SoS has acted more unreasonably than the average decision maker would in this situation.
4. That the SoS has acted so unreasonably that no reasonable decision-maker would ever have made the decision.
5. That the SoS has acted in a way that a sensible person would not.
D is correct. It is the most accurate summary of the test for irrationality set out in the landmark Wednesbury case.
Options B and C do not reflect the high level of unreasonableness that has to be proved.
Disproportionality is relevant when considering human rights, not irrationality, so A is wrong.
Lord Diplock, when giving his definition of irrationality in the CCSU case did mention the ‘sensible person’, but E does not accurately reflect the test for irrationality set out in that case.
An Act of Parliament (‘the Act’) gives to the Secretary of State for the Environment, Food and Rural Affairs (‘the SoS’) certain powers for the purpose of promoting the use of ‘renewable’ energy in preference to fossil fuels. Those powers include the power to require state schools to teach students about the danger of global warming. The SoS uses these powers to issue directions requiring all state schools to teach students about the danger of global warming. The head of the local state primary school is very unhappy about the directions that the SoS has issued. These directions not only detail the dangers of global warming but set out what they state are ‘mandatory measures’ to be taken by all schools immediately in order to fulfil the purposes of the Act. These include the installation of at least four solar panels per school. The school cannot afford the cost of the solar panels out of the school’s budget.
Has the SoS acted ‘ultra vires’ ie beyond her powers?
1. Yes, as the Act does not specifically give her the power to impose this requirement.
2. Yes, as she applied the legislation in too strict a manner.
3. No, as the Act does not specifically prohibit her from imposing this requirement.
4. No, because she considers the solar panel requirement to be essential to the overall purposes of the Act.
5. No, because a reasonable person would consider her actions to be essential to the overall purposes of the Act.
- Option A is correct. The SoS has the power to order schools to take steps to teach about the dangers of global warming, but there is nothing in the Act that gives her the power to order the installation of solar panels so her decision is ultra vires (ex p McCarthy and Stone) and C is wrong.
The SoS can probably do things that are ancillary to the power that she does have, but ordering the installation of solar panels goes well beyond that and it is irrelevant that she (or others) consider such actions essential for the purposes of the Act, so D and E are wrong.
B is wrong as the legislation must be complied with strictly or the SoS will be acting unlawfully.
Parliament has enacted an Act of Parliament to promote the sale of fairly-traded goods (the Act’). The Act establishes an Agency and gives it power to grant government-backed fair trade certification to importers and producers of fairly-traded goods. Products can only be labelled as fairly-traded if the Agency has granted the appropriate certification. The Agency has issued guidelines that it will normally grant fair trade certification to importers and producers who had previously held fair trade certification for three years under a previous scheme (‘the old scheme’). The Agency has recently rejected an application for certification by a company that imports wine from South Africa, because it had only held fair trade certification under the old scheme for two years. The company had pointed out in its application that the vineyards in South Africa from which it imports wine were only purchased by a workers’ co-operative two years ago.
Which of the following statements best summarises the company’s strongest argument for judicial review?
1. The company should argue that the Agency’s decision is illegal as it did not have the power to adopt guidelines as to when it would normally grant fair trade certification.
2. The company should argue that the Agency’s decision is illegal as the guidelines it adopted are unreasonable.
3. The company should argue that the Agency’s decision is illegal as it constitutes an illegal fettering of its discretion.
4. The company should argue that the Agency’s decision is illegal as it is pursuing an improper purpose.
5. The company should argue that the Agency’s decision is illegal as it has taken into account irrelevant considerations.
Option C is correct. The Agency must use its statutory powers in a manner which is consistent with the aims of the Act and in doing so may formulate a policy to follow in the generality of cases, so A is wrong.
The policy appears to be consistent with the Act: the Agency could argue that the policy provides an appropriate means of ensuring that it grants certification to suitable applicants. Thus it has not acted for an improper purpose and D is wrong.
Equally, the policy does not appear to be unreasonable but, even if it was, it would need to be ‘so unreasonable that no reasonable decision maker’ would have made it so B is wrong.
However, while the Agency may adopt a policy, it should be prepared to listen to anyone who has something new to say (British Oxygen). In this instance the company can argue that the Agency should have taken into account the fact that the vineyards were only purchased two years ago by a workers’ co-operative. Therefore, the Agency’s approach constitutes an illegal fettering of its discretion.
In ignoring this point, the Agency has also failed to take into account relevant considerations (Roberts v Hopwood), but there is no evidence that it has taken into account irrelevant ones, so E is wrong.
Assume that a statute (fictitious) gives local authorities the power to grant licences to cinemas in their area ‘on such conditions as they think fit’. Exercising this power, a local authority grants a company a licence on condition that no film should be shown at its cinemas unless approval is first obtained from the local Churches Committee. The company objects to this condition.
Which of the following best describes whether the company can successfully seek judicial review of this licence condition?
1. The decision is lawful as the licensing authority had effectively delegated its decision-making power to another body, the local Churches Committee, and the delegation cannot be challenged.
2. The decision is lawful because the delegation was made to a local committee and the statutory exception relating to local bodies applies.
3. There is illegality as the delegation to a religious body (the local Churches Committee) was in breach of the rule against delegation.
4. There is illegality as the licensing authority had delegated its decision-making power to another body which was not a local authority committee or officer.
5. There is illegality as the licensing authority, by delegating its decision-making power to another body, was pursuing an unreasonable purpose
D is correct. The facts are similar to that of Vine v National Dock Labour Board. The licensing authority has delegated its powers in breach of the rule against delegation and the local authority committee exemption does not apply because the decision was delegated to a local churches committee. Option D is a better answer than option C as the reason the rule against delegation was breached had nothing to do with the nature of the Churches Committee. Option D is also a better answer than option E; on the facts the licensing authority’s purpose is not known, but in any event even if its purpose had been legitimate it would have breached the rule against delegation.
Option A is wrong, as there is a clear breach of the rule against delegation. Option B is wrong as the statutory exception it refers to applies only to committees, sub-committees and officers of local authorities, not to local bodies in general
An Act was passed to lessen the frequency of wildfires in the countryside which are started by discarded glass bottles. The Act gives power to the Environment Minister “to ban bottled goods from being sold in village shops and pubs”. The Minister is a passionate environmentalist and is determined to reduce the amount of litter left in the countryside. He bans the sale of all bottled goods (whether contained in glass or plastic bottles) in village shops and pubs. A client, who is a village shopkeeper, is most concerned about the ban since much of her stock consists of goods sold in glass or plastic bottles. The client wishes to contest the decision by way of Judicial Review.
Which of the following combinations best identifies the most appropriate grounds of challenge?
1. Decision made without lawful authority, with an error of law and error of fact whilst taking account of irrelevant considerations and based on an unauthorised purpose.
2. Decision based on an unauthorised purpose, taking account of irrelevant considerations and using wrongful delegation.
3. Decision made with fettering of discretion, error of fact whilst relevant considerations were ignored and was irrational.
4. Decision made with unauthorised purpose, dual purpose whilst taking account of irrelevant considerations.
5. Decision made with fettering of discretion under the dictation of another, based on an error of fact, with a dual purpose whilst taking account of irrelevant considerations.
A best describes the suite of grounds that are most appropriate for the client:
o The Environment Minister used the power to ban glass bottled goods to ban all bottles whether made of glass or plastic. He had no lawful authority to ban plastic bottles (McCarthys and Stone v Richmond).
o He appears to have misunderstood the nature of the power granted i.e. that only glass bottles were to be banned and this indicates an error of law (Anisminic).
o His ban on plastic bottles throws up a jurisdictional error of fact (Khawaja), since the significant aspect of the bottles is that they are glass and capable of setting a wildfire.
o As a passionate environmentalist, he has taken irrelevant considerations into account (Roberts) and has used the power for an unauthorised purpose (Congreve).
Option B is wrong because the decision was made by the Environment Minister who had been given the power by the Act. Therefore, there was no wrongful delegation.
Option C is wrong because there was no fettering of discretion. The Minister’s passionate advocacy of environmental issues is not enough to trigger this ground. It requires a policy to have been put into place which is then applied rigidly. No such policy had been formulated here.
Option D is wrong as the Minister does not seem to be using the power in order to prevent wildfires so dual purpose does not appear to relevant. This answer excludes error of fact and law which are highly appropriate and significant grounds.
Option E is wrong because no-one else told the Minister what to decide, which is the requirement of fettering discretion under the dictation of another. Also, as above, the Minister does not seem to be using the power in order to prevent wildfires so arguments about dual purpose do not appear particularly relevant.
