Securing legal accountability under the Constitution

Question 1

What is the primary function of common law judicial review?

Answer 1

To protect individuals from abuses of state power

Question 2

Can rules of judicial review be changed? Why?

Answer 2

Yes because they are not statutory rules; they were made by judges and can be changed by judges

Question 3

What is an advantage of the rules of judicial review being changeable?

Answer 3

They can change with society to preserve the integrity of the rule of law

Question 4

What are the three possible sources of a public body’s authority to make a decision?

Answer 4

Statute
Prerogative
Common law

Question 5

Distinguish an individual dispute from a policy dispute

Answer 5

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

Question 6

Why is judicial review not appeal?

Answer 6

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

Question 7

What are the two main theories of justifying JR?

Answer 7

Ultra vires

Common law

Question 8

Distinguish the two theories of justifying JR

Answer 8

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

Question 9

What are some other dispute resolution mechanisms, other than JR?

Answer 9

Internal complaints procedures
Statutory appeals
Tribunals
Ombudsmen schemes

Question 10

What Act of Parliament reformed JR?

Answer 10

Criminal Justice and Courts Act 2015

Question 11

What are the factors to consider when answering a JR problem question?

Answer 11

Standing
Susceptibility
Grounds
Notice
Legal representation
Cross-examining
Bias
Reasons
Conclusion

Question 12

What are the grounds of JR? What case sets these out?

Answer 12

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

Question 13

What case illustrates the JR ground of illegality?

Answer 13

Attorney-General v Fulham Corporation (1921)

Question 14

Briefly outline the facts of Attorney-General v Fulham Corporation (1921)

Answer 14

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

Question 15

When are errors of fact reviewable by JR? What case provides for this?

Answer 15

(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)

Question 16

What does the JR ground of procedural impropriety refer to, per Lord Diplock in GCHQ case?

Answer 16

(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

Question 17

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?

Answer 17

No

Question 18

When is consultation required? Give precedent

Answer 18

If directed or authorised by statute (Agricultural Training Board v Aylesbury Mushrooms (1972))

If there is a common law right of consultation (GCHQ case)

Question 19

What is required to make consultation meaningful (Sedley principles)?

Answer 19

(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

Question 20

What are the two principles of natural justice?

Answer 20

Audi alteram partem (hear the other side)

Nemo judex in causa sua (no one may be a judge in their own cause)

Question 21

What is the landmark judgement related to the right to a fair hearing?

Answer 21

Ridge v Baldwin (1963)

Question 22

Briefly outline the facts of Ridge v Baldwin (1963)

Answer 22

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

Question 23

What are the elements of a fair hearing?

Answer 23

Notice of the charge

A hearing

Question 24

How much information does a person need to be given about their hearing?

Answer 24

Just ‘the gist’ of the information

Question 25

What case set out how much information needed to be given to a person about their hearing?

Answer 25

R v Gaming Board, ex p Benaim and Khaida (1970)

Question 26

Does a hearing need to be oral? Give precedent

Answer 26

No – Lloyd v McMahon (1987)

Question 27

When will fairness require an oral hearing?

Answer 27

(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

Question 28

How long should an individual be given to prepare a response to their hearing? Give precedent

Answer 28

A reasonable time, depending on the seriousness of the charge and the penalty

Lee v Department of Education and Science (1968)

Question 29

Does the individual need to be allowed legal representation? Give precedent

Answer 29

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)

Question 30

Does the individual need to be allowed to cross-examine witnesses? Give precedent

Answer 30

No, because a hearing does not need to be oral

R v Army Board of the Defence Council ex p Anderson (1992)

Question 31

Can an unfair hearing be remedied by a fair appeal hearing? Give precedent

Answer 31

Yes

R (on the application of A) v Kingsmead School (2002)

Question 32

Is there a general duty to give reasons in English law?

Answer 32

No

Question 33

In which case did the courts impose a common law duty to give reasons in certain circumstances?

Answer 33

Padfield v Ministry of Agriculture (1968)

Question 34

What are the three types of bias?

Answer 34

Actual, automatic disqualification, apparent bias

Question 35

What is automatic disqualifying bias?

Answer 35

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

Question 36

What case established the rule of automatic bias?

Answer 36

Dimes v Grand Junction Canal (1852)

Question 37

Is automatic disqualifying bias limited to cases where the judge has a pecuniary interest in the outcome of the case? Give precedent

Answer 37

No

Pinochet (No 2)

Question 38

What case sets the current precedent for an appearance of bias?

Answer 38

Porter v Magill (2002)

Question 39

How should the court determine whether there is an appearance of bias?

Answer 39

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

Question 40

What cases established rules against delegation?

Answer 40

Ellis v Bubowski (1921)

Mills v London CC (1925)

Question 41

Briefly outline the principle established by Ellis v Bubowski (1921)

Answer 41

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

Question 42

Briefly outline the principle established by Mills v London CC (1925)

Answer 42

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

Question 43

Briefly outline the Carltona principle

Answer 43

Delegation within a central government department is acceptable

Question 44

Distinguish Oladehinde v Secretary of State for the Home Department (1990) from R (o.a.o. Bourgass) v Secretary of State for Justice (2015)

Answer 44

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

Question 45

What principle was set out in Lavender v Minister of Housing and Local Government (1970)?

Answer 45

It is unlawful to make a decision conditional upon another’s approval

Question 46

Briefly outline the principle in Ealing v Audit Commission (2005)

Answer 46

A decision-maker can take into account another’s views, as long as their decision is not conditional upon those views

Question 47

What was established in Laker Airways v Department of Trade (1971)?

Answer 47

A public body can have a policy, as long as it is not a rigid one

Question 48

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)?

Answer 48

Findlay: policy was not rigid because it was subject to exceptional circumstances

Adath Yisroel: rigid policy so unlawful

Question 49

What is the test for unreasonableness? What case set this out?

Answer 49

If a decision is so unreasonable that no reasonable authority could ever have come to it

Wednesbury

Question 50

What are some issues with Wednesbury?

Answer 50

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

Question 51

Briefly outline the facts and decision of Wheeler v Leicester CC (1985)

Answer 51

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

Question 52

What was established in ABCIFER?

Answer 52

Wednesbury is not dead

Proportionality is only to be used in human rights or EU cases

Question 53

What is an alternative that has been suggested instead of Wednesbury?

Answer 53

Proportionality

Question 54

In which case was proportionality rejected?

Answer 54

Brind

Question 55

Outline the facts and decision of Brind

Answer 55

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

Question 56

Outline the facts and decision in Ex p Smith

Answer 56

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

Question 57

What was the proportionality test set out in Daly?

Answer 57

(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

Question 58

What was the proportionality test in Bank Mellat (No 2)?

Answer 58

(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

Question 59

When can a public body go back on a promise made to someone?

Answer 59

When there is overriding public interest, e.g. Coughlan, GCHQ, US Tobacco