Securing legal accountability under the Constitution Flashcards
What is the primary function of common law judicial review?
To protect individuals from abuses of state power
Can rules of judicial review be changed? Why?
Yes because they are not statutory rules; they were made by judges and can be changed by judges
What is an advantage of the rules of judicial review being changeable?
They can change with society to preserve the integrity of the rule of law
What are the three possible sources of a public body’s authority to make a decision?
Statute
Prerogative
Common law
Distinguish an individual dispute from a policy dispute
An individual dispute is where the individual who has been penalised by the public body accepts the rules, but disputes that they have been applied correctly
A policy dispute is where there is a challenge to the general policy of a public body or a decision which affects numerous individuals
Why is judicial review not appeal?
JR is only concerned with the legality of a decision, not the facts of a case
There is also no general right to appeal, and remedies in JR are discretionary and limited
What are the two main theories of justifying JR?
Ultra vires
Common law
Distinguish the two theories of justifying JR
The ultra vires theory claims it is just to ensure that decision-makers do not go beyond the powers given by statue
The common law theory is more flexible, with common law principles behind the judgement
What are some other dispute resolution mechanisms, other than JR?
Internal complaints procedures
Statutory appeals
Tribunals
Ombudsmen schemes
What Act of Parliament reformed JR?
Criminal Justice and Courts Act 2015
What are the factors to consider when answering a JR problem question?
Standing Susceptibility Grounds Notice Legal representation Cross-examining Bias Reasons Conclusion
What are the grounds of JR? What case sets these out?
Illegality, i.e. does the public body have the power to take the decision?
Irrationality, i.e. has the public body exerted its discretionary power unlawfully?
Procedural impropriety, i.e. has the public body adhered to the proper procedure?
GCHQ case
What case illustrates the JR ground of illegality?
Attorney-General v Fulham Corporation (1921)
Briefly outline the facts of Attorney-General v Fulham Corporation (1921)
Fulham Corp were under a statutory obligation to provide wash houses for the poor to wash their clothes and prevent the spread of diseases
They started to charge for this, which was not provided by the statute
This was therefore ultra vires
When are errors of fact reviewable by JR? What case provides for this?
(i) when there is a mistake as to existing fact;
(ii) the fact or evidence is ‘established’;
(iii) the appellant must not have been responsible for the mistake; and
(iv) the mistake must have played a material part in the reasoning
E v Secretary of State for the Home Department (2004)
What does the JR ground of procedural impropriety refer to, per Lord Diplock in GCHQ case?
(i) Failure to observe basic rules of natural justice
(ii) Failure to act with procedural fairness towards the person who will be affected by the decision
(iii) Failure to observe procedural rules expressly laid down in legislation, even where such a failure does not involve any denial of natural justice
Is there a requirement to consult before introducing primary legislation or to respond to comments or take them into account if there is a consultation?
No
When is consultation required? Give precedent
If directed or authorised by statute (Agricultural Training Board v Aylesbury Mushrooms (1972))
If there is a common law right of consultation (GCHQ case)
What is required to make consultation meaningful (Sedley principles)?
(i) Consultation must take place when the proposal is still at a formative stage
(ii) Sufficient reasons must be put forward for the proposal to allow for intelligent consideration and response
(iii) Adequate time must be given for consideration and response
(iv) The product of consultation must be conscientiously taken into account
What are the two principles of natural justice?
Audi alteram partem (hear the other side)
Nemo judex in causa sua (no one may be a judge in their own cause)
What is the landmark judgement related to the right to a fair hearing?
Ridge v Baldwin (1963)
Briefly outline the facts of Ridge v Baldwin (1963)
Chief Constable fired after a judge made derogatory comments about him during a criminal trial
Held: his dismissal was unlawful (ultra vires) and he had a right to a fair hearing
What are the elements of a fair hearing?
Notice of the charge
A hearing
How much information does a person need to be given about their hearing?
Just ‘the gist’ of the information
What case set out how much information needed to be given to a person about their hearing?
R v Gaming Board, ex p Benaim and Khaida (1970)
Does a hearing need to be oral? Give precedent
No – Lloyd v McMahon (1987)
When will fairness require an oral hearing?
(i) Important disputed facts
(ii) No other way to properly make an independent assessment of risk
(iii) Face-to-face encounter/questioning necessary to enable the case to be tested
(iv) Unfair for paper decision made by single-member panel to become final without an oral hearing
How long should an individual be given to prepare a response to their hearing? Give precedent
A reasonable time, depending on the seriousness of the charge and the penalty
Lee v Department of Education and Science (1968)
Does the individual need to be allowed legal representation? Give precedent
No, but it is a matter of discretion, taking into account the seriousness of the charge, points of law, the person’s ability, procedural difficulties, speed, and fairness
R v Secretary of State for the Home Department, ex p Tarrant (1985)
Does the individual need to be allowed to cross-examine witnesses? Give precedent
No, because a hearing does not need to be oral
R v Army Board of the Defence Council ex p Anderson (1992)
Can an unfair hearing be remedied by a fair appeal hearing? Give precedent
Yes
R (on the application of A) v Kingsmead School (2002)
Is there a general duty to give reasons in English law?
No
In which case did the courts impose a common law duty to give reasons in certain circumstances?
Padfield v Ministry of Agriculture (1968)
What are the three types of bias?
Actual, automatic disqualification, apparent bias
What is automatic disqualifying bias?
The existence of bias is presumed when the judge is shown to have an interest in the outcome of the case in which he/she is to decide or has decided
What case established the rule of automatic bias?
Dimes v Grand Junction Canal (1852)
Is automatic disqualifying bias limited to cases where the judge has a pecuniary interest in the outcome of the case? Give precedent
No
Pinochet (No 2)
What case sets the current precedent for an appearance of bias?
Porter v Magill (2002)
How should the court determine whether there is an appearance of bias?
It must ascertain all the circumstances which have a bearing on the suggestion that the judge was biased
It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility of bias
What cases established rules against delegation?
Ellis v Bubowski (1921)
Mills v London CC (1925)
Briefly outline the principle established by Ellis v Bubowski (1921)
If a decision of a public body is dictated or influenced excessively by the instructions of an illicit superior body or person, this will comprise as ultra vires
Briefly outline the principle established by Mills v London CC (1925)
As long as the public body still has the right to disagree to the body to which the decision has been ‘delegated’, this will be intra vires
Briefly outline the Carltona principle
Delegation within a central government department is acceptable
Distinguish Oladehinde v Secretary of State for the Home Department (1990) from R (o.a.o. Bourgass) v Secretary of State for Justice (2015)
Oladehinde: deportation decisions delegated to officers in the Home Office was lawful, even though the statue said the Home Secretary must make this decision
Bourgass: extension of solitary confinement beyond 72 hours must be decided by the Secretary of State and not delegated
What principle was set out in Lavender v Minister of Housing and Local Government (1970)?
It is unlawful to make a decision conditional upon another’s approval
Briefly outline the principle in Ealing v Audit Commission (2005)
A decision-maker can take into account another’s views, as long as their decision is not conditional upon those views
What was established in Laker Airways v Department of Trade (1971)?
A public body can have a policy, as long as it is not a rigid one
What is different about Findlay v Secretary of State for the Home Department and Adath Yisroel v HM Senior Coroner for Inner North London (2018)?
Findlay: policy was not rigid because it was subject to exceptional circumstances
Adath Yisroel: rigid policy so unlawful
What is the test for unreasonableness? What case set this out?
If a decision is so unreasonable that no reasonable authority could ever have come to it
Wednesbury
What are some issues with Wednesbury?
It is a statement of a conclusion, not a test
It can lead to unpredictable outcomes
Doesn’t provide a framework for analysis
Doesn’t deal with intensity of review
Briefly outline the facts and decision of Wheeler v Leicester CC (1985)
RFU tour to apartheid South Africa with three Tigers involved
Amateur club at the time so no contractual relationship between the club and the players
The government policy is against the tour, but not illegal
Leicester CC asked the club to condemn the tour but they deemed the answer unsatisfactory
Leicester CC suspended the club’s use of the council’s recreation ground based on the Race Relations Act
Held: Wednesbury unreasonable
What was established in ABCIFER?
Wednesbury is not dead
Proportionality is only to be used in human rights or EU cases
What is an alternative that has been suggested instead of Wednesbury?
Proportionality
In which case was proportionality rejected?
Brind
Outline the facts and decision of Brind
Wide ban on broadcasting words spoken by supporters of ‘terrorist’ organisations in Northern Ireland
Argued that this was disproportionate
Held: HL rejected this argument – involves looking at merits, which is a job for politicians not judges
Outline the facts and decision in Ex p Smith
Challenge to policy banning homosexuality in armed forces
More substantial the interference, the more scrutiny by court
Held: the policy was not irrational – this is a very high test to surmount
What was the proportionality test set out in Daly?
(i) the legislative objective is sufficiently important to justify limiting a fundamental right;
(ii) the measures designed to meet the legislative objective are rationally connected to it; and
(iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective
What was the proportionality test in Bank Mellat (No 2)?
(i) whether its objective is sufficiently important to justify the limitation of a fundamental right;
(ii) whether it is rationally connected to the objective;
(iii) whether a less-intrusive measure could have been used; and
(iv) whether a fair balance has been struck between the rights of the individual and the interests of the community
When can a public body go back on a promise made to someone?
When there is overriding public interest, e.g. Coughlan, GCHQ, US Tobacco
