The grounds for JR Flashcards
Historically JR was only available to adjudicate the lawfulness of what decisions
decisions made by either judicial or quasi-judicial organisations, not administrative decisions.
According to the committee on minsters’ powers, what are judicial decisions
involve cases presented by parties with evidence on the application of legal argument to fact
What are quasi-judicial decisions
judicial decisions with added policy considerations
In which case was in rules that minister acts in quasi-judicial capacity when making compulsory purchase decisions
Errington v Minister of Health: he must not conduct a private enquiry with one party in the absence of the other, his decision was quashed
What case was the claim of the residents of Stevenage to prevent development quashed as there was na overriding policy to rebuild after WWII
Franklin v Minister of Town and County Planning
What is the right to a fair hearing?
The idea is that if decisions are made fairly, better decisions are made and the number of complaints in the future will be reduced.
What happened in the case of Cooper v Wandsworth Board of works
the destruction of a house built without first giving 7 days’ notice of construction could not have its destruction ordered without hearing the reasons of the constructor.
What happened in the case of Local Government Board v Arlidge
a landlord had no right to view inspection reports of his premises as this would be particularly burdensome. Dicey was critical of this- ‘The development of administrative law in England’ he purported that the HoL ruling in Arlidge undermine the concept of law.
What is procedural fairness
As long as the relevant procedure is executed fairly, there may be no need for a fair trial, or in fact any trial at all
In which case was there was no need for a foreign citizen appealing a deportation notice to have a hearing as the decision as to her age had clearly been made fairly; by two officials and a doctor.
Re HK
What happened in the case on McInnes v Onslow-Fane
extended the right to a fair hearing to administrative decisions. In this case there was no requirement for a sporting regulator to give reasons following a fair decision.
In which case was there no need to keep providing B&B accommodation once permanent accommodation had been offered and rejected
R (Khatun) v Newham LBC:
Which case is linked to legitimate expectations
The GCHQ case
What happened in the GCHQ case
Under prerogative powers, Margaret Thatcher’s government prevented GCHQ civil servants being members of unions. The unions sought judicial review of this decision. Could prerogative powers be subject to judicial review, and is there a public law right to legitimate expectation?
Yes, but claim failed. Although prerogative powers can be subject to judicial review, there are certain exceptions, one being where the power is used in the interest of protecting national security, as it was in this case. There is a public law right to (procedural) legitimate expectation; a past practice can give right to such a right, though not when national security is the primary consideration
What does the limitations on the right to a fair hearing mean
the right to a fair hearing can be limited in certain circumstances
Does national security overrule the right to a fair hearing?
Yes
Cases concerning national secuirty
R v SSHD, ex p Hosenball: a American citizen could not contest his deportation order following his reporting on the ‘existence’ of GCHQ as it was a matter of national security.
R v SSHD, ex p Cheblak: despite 15 years of UK residence in the UK, a suspected terrorist could not contest his deportation.
When can information be withheld but still amount to a fair hearing?
When it is justified
Case for withholding information
•R v Gaming Board, ex p Benaim: where due to the potential threat of violence, an informant who reported on the effectiveness of a gaming manager was allowed to have his identity concealed from the claimant.
What happens with emergency action and the right to a fair hearing
In an interim period, there will be no right to apply for JR where such an interim decision was made in an emergency.
case for emergency action
R v SS Transport, ex p Pegasus Holdings: no claim was permitted to review the legality of a decision to ban pilots in the interest of the public safety. The long-term legality of such a decision, it must be assumed can be challenged.
Case where failing of a individual’s legal advisor lost the right to a fair hearing
Al-Mehdawi v SSHD, there was no prejudice to the right to a fair trial where, due to the failings of a solicitor in communicating to the wrong address, the claimant did not appear in court.
What are the aspects of the right to a fair hearing in particular decision-making contexts
There is a right to either on oral hearing or written representation
Often, public authorities will prefer a ‘paper process’ to claims, whereas induvial usually prefer oral hearings when authorities are making decisions.
Case which held that to attain an oral hearing it must be asked for and required. The written evidence was plentiful in the case so an oral hearing was not required
Lloyd v McMahon: a local authority wanted an oral hearing when a decision was being made to decide whether members of the council should be personally liable for deliberately delaying setting new tax rates
Case where an oral hearing was permitted as there was a major factual dispute that needed to be solved and the subject matter was qualified
R v Army Board, ex p Anderson
In which case did fairness dictate that there should be an oral hearing
R (Osborn) v Parole Board: fairness dictated that there should be an oral hearing where there was a debate to be had over whether parole conditions had been breached or not. Procedural fairness requires that there is an oral hearing where there are disputed questions of fact at the heart of the decision.
Case regarding the right to legal representation
R v Board of Visitors Maze Prison, ex p Hone: set the current law on this aspect
What factors did Hone set out in assessing whether legal representation should be allowed
account must be taken of seriousness, the presence of points of law, procedural difficulties, speed and the fairness between the parties. In this case The board was correct to deny legal representation in a matter a trivial as throwing a mug at a prison guard.
Case for cross examination
Bushell v SS Environement
What factors where set out in deciding whether cross examination should be allowed
the competency of the claimant, the subject matter and the needs of the decision maker. Bushell was correctly not allowed to review evidence which led to the extension of the M40 from Oxford to Birmingham.
Are public bodies required to give reasons for their decisions
no, they are not always required to give reasons for their decision for a hearing to be considered fair
What was held in Doody v SSHD
it was said that most administrative decisions do not require reasons: however when deciding on the length of a murder sentence
What was ruled in R B Higher Education Funding Council, ex p Institute of Dental Surgery
•it was ruled that decisions would be required where fundamental rights would be affected or where a decision is unusual. The case fit into the latter; it was difficult to understand without reason, why £1/3 million in funding was removed from a university.
Which decisions is bias relevant in
Judicial and quasi-judicial
In which case was the decision to dismiss a police officer was quashed when it was found that the doctor who examined the health of the officer was biased. A prohibiting order was granted to prevent the same doctor being used again.
R v Kent Police Authority, ex p Godden
In which case was the judgement quashed where Lord Hoffman, one of the three majority judges, was shown to be connected to Amnesty International
R v Bow Street Metropolitian Stipendiary Magistrate and others, ex p Pincochet Utgarte (No 2)
What are the two types of bias
pecuniary and non pecuniary
What is pecuniary bias
will be found it there would be a significant financial benefit to the decision maker for there to be a particular outcome.
Case where a first instance judge was found to be biased in having significant shares in the defendant company.
Dimes v Grand Junction Canal Proprietors
In which case was it held where a judge decided against a defendant who had robbed a small branch of a bank in which he had some shares; there would be a negligible or no impact on the judge’s finance, hence no bias was found.
R v Mulvihill
Where there is found to be no direct financial interest is not direct/ too remote as in Mulvihill what is done
Then test for non-pencuianry bias is applied
What is non-pencuinary bias
Does not regard finance, the scope is much wider
where was the original test for non-pencuinary bias set out
R v Gough: laid down the initial rule on non-pecuniary bias where a jury member in a murder trial lived on the same street at the defendant’s brother
What is the test laid down in Gough
It was said that there must be a real danger of bias such that the decision may not be regarded as a fair. It is a difficult test to satisfy; and it was not on the facts of the case; the decision was upheld.
In which case was there a there was real danger of bias when a coroner described the families of victims of a shipping incident as ‘unhinged’ prior to an investigation. The coroner was replaced.
R v West London Coroner, ex p Dallagio
Which case attempted to clarify the rule in a case where no bias was found in a deputy judge being a partner in a solicitors’ firm which had previously acted for the claimant. It was said that there are two categories of non-pecuniary bias; one involving religion, ethnicity, gender, class and orientation; and another involving education, employment, memberships and politics.
Localbail (UK) Ltd v Bayfield Properties
Which case was the scope of the bias was extended to administrative decisions to reflect how executive power is distributed in the UK: via semi-public bodies which are funded by the government. This decision finally gave rise to judicial control over a potentially dangerous group of organisations. Although, on the facts on this case, there was no real danger of bias, despite significant criticism of the chairman of the group, who potentially stood to make significant sums of money in granting a rugby club planning permission
R v SS Environemnt, ex p Kirkstall Valley Campaign Ltd
In which case was a a panel member in a drugs competition decision was found to have had a recent job application rejected by the company whose MD was an expert government witness. She was replaced.
Re Medicaments
In which case is the modern test for non-pecuniary bias set out
Poter v Magill, regarding the potential personal liability of Dame Shirley Porter for £31 M, after organizing an illegal house price reduction scheme in an attempt to become re-elected, bias was not found due to a press conference conducted by an investigator
What was the test held to be in the case of Porter v Magill
The court redefined the test for bias as:
Whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias.
In which case following the new test found there was a real possibility of bias in those who authroise intimate searches of high risk inmates also adjudicating on their lawfulness.
R (Al-Hasan) V SSHD
In which case was it found where there was no real danger of bias in a Scottish judge handing down biased deportation decision just because a magazine he had read printed a biased article.
Helow v SSHD
What is the UV doctrine / illegality
Illegality or the concept of ultra vires can quash a decision if the power exercised was not at the disposal of the person who exercised it.
What are the two forms of illegality
simple UV and those involving an error of law
What does simple UV mean
means to do something that you are not obliged to do.
Case of simple UV where statute obliged Fulham council to provide a washhouse but they also provided a payable laundry service
A-G v Fulham Corp, however, • The Local Government Act 1972, S 111 does not allow for incidental acts on the part of local authorities, however, Fulham Corp’s act was not incidental and not unlawful.
case where a complex fincanil swap transaction based on speculation of London money markets was held to be no incidental hence UV
Hazell v Hammersmith & Fulham LBC
Case where council introduced parking charges for local residents which was found to not be incidental hence unlawful
Akumah v Hackney London Borough Council
In which case was a decision quashed for illegality because there was an error of law in incorrectly applying 1950 statute
Anisminic Ltd v Foreign Compensation Commission
Case where there was no error of law in the decision to close the University of Hull’s philosophy department, redundancy for Page was inevitable.
R v Lord President of the Privy Council, ex p Page
What is unlawful delegation
As a general rule, where Parliament has delegated a function, it may not be lawfully sub-delegated.
Case where disciplinary powers could not be sub-delegated to a manger. However, where the right final decision-making, or the right to disagree, is retained, delegation may be allowed.
Barnard v National Dock Labour Board
Is there unlawful delegation where the decision maker merely seeks advice from others, but retains final power of decision? CASE?
No
Mills v London County Council: where it was rule lawful for a local authority to delegate film classifications.
Will there be unlawful delegation where the decision-maker delegates fact finding to others who report back to the decision-maker. CASE
No,
R v Race Relations Board, ex p Selvarajan: a body was set up by parliament to combat racism. The body was empowered to investigate reports of racial discrimination. The board would then examine the reports and make the final decision.
Will there be unlawful delegation where the minster delegates power to a civil servant who acts in the name of the Minister. CASE
No,
Carltona Ltd v Commissioners of Works: allows for the delegation of very large functions to responsible officials. As such, it was lawful for a factory requisitionment to be carried out by responsible officials in the same department.
In which case was delegating the winning up of a company lawful
Re Golden Products
In which case was it quired that delegation could only occur where there was sufficient expertise and embarrassment would not occur.
R v SSHD, ex p Oladenhinde
IN which case was the delegation of imposition of unreasonable protest condition was found to be unlawful.
DPP v Haw
Case for acting under citation
R v Mayor of Stepney: there is no claim against someone acting under the dictation of a power which may not be reviewed. In his case, the value of redundancy payments could not be challenged where they were calculated in accordance with guidelines set by the treasury.
What is fettering discretion with self-made policy? When will the decision not be unlawful
It is not unlawful to pre-determine the outcome of a particular decision as long as the public body’s ‘ears are kept open to the new application’
In which case was it held lawful to refuse to contract out the building of new docks
R v Port of London Authority, e p Kynoch Ltd
In which case was a grant refused because the equipment cost under £25 each but the total of the grant would come to around £ 4 M
British Oxygen co v Minister of Technology
What happened in Lavender & Son Minister of Housing
it was lawful to consult the minister of agriculture before granting gravel extraction on agricultural land. The decision was still ultimately made by the correct minister.
What is legitimate expectation
Substantive legitimate expectation means that where a promise is made, it may be later enforced.
Case where where an unambiguous representation is made by a public authority following full disclosure by the claimant, the promise made by the representation is enforceable.
R v IRC, ex p MFK Underwriting Agents, On the facts, MFK had not fully disclosed their intentions regarding particular ways of investing premiums, therefore tax rises were applicable to their investments.
Case a promise to keep Coughlan in a specialist medical unit was unenforceable.
R v North & East Devon HA, ex p Coughlan
Case where the promise of accreditation where clarification was given before was held to be a legitimate expectation
R (Patel) v General Medical Council
What is improper use of power
Where a power is used inappropotiatley for the purposes given to a public body, such an abuse may be prevented.
What was held in Padfield?
it was rule improper for a Minister to refuse to investigate a reform of dairy product quotas just because it was ‘too big’ an use for a committee and could create parliamentary conflict.
In which case was it an improper use of power for a Minister to revoke TV license which had been pre-purchased to avoid price increases?
Congrieve v Home Office
In which case was it improper for a council to threaten a rugby club if nay members of that club acted contrary to the council’s political persuasion, that was a sporting boycott against South Africa.
Wheeler v Leicester CC
What does having regard to legal irrelevant considerations/ failing to have regard to legally relevant considerations mean
Decisions may be made with improper reasoning; reasons which are not legally relevant.
Such decisions may be quashed
What was held in the case of Roberts v Hopwood
equal pay was not required in law therefore the council did not need to increase the wages of women.
Two more cases for having regard for legally irrelevant considerations
- R v Somerset CC, ex p Fewings: it was unlawful to revoke deer hunting rights as ‘ethics’ is not a legally relevant reason. Where multiple reasons are given, the irrelevant ones will be disregarded.
- R v Broadcasting Complaints Commission, ex p Owen: a lack of resources was disregarded as an inadequate reason for not giving more political coverage to a particular party; however, an editorial judgement reason was relevant and caused the claim to be dismissed.
What is unreasonableness also known as
irrationality
Main case for unreasonableness
Associated Provincial Picture Houses Ltd v Wednesbury Corporation: a decision could be quashed if it was unreasonable that no other authority would have come to it. On the facts, there was no unreasonableness as it is a difficult standard to prove.
Wednesbury test is that no other reasonable authority would have come to it
In which case was it held to be unreasonable for the council to distribute new rental income requirements over just one property, than equally across all properties.
Blackhouse v Lameth London Borough Council
Which was has since refined unreasonableness
The GCHQ case: redefined unreasonableness as irrationality: a decision so outrageous that it defies logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it; a test which varies with context.
What was decided in R v SS Environment, ex p Nottinghamshire CC:
the test is still a very high standard, so was not satisfied where the environmental secretary’s changes to local authority budgets could only be irrational if the House of Commons had been deceived.
What is proportionality
It requires a structured anaylsis by the courts of the decision challenged and the justification of the decision-maker for that challenge.
What was held in R (daly) v SSHD
a HR claim which opposed the searching of legally privileged documents as part f random searching of prisoners’ cells was unsuccessful under the test of proportionality, a test which looks at a ;legislative objective are rationally connect to it, and not more than necessary to fulfill t.
case of R (Association of British Civilian internees: Far East Region) v SS Defence
• it was not irrational to require a parent or grandparent to have been born in the UK to attain a £10,000 payment to compensate for being a Japanese interne; the requirement showed a connection, and in any case, irrationality, despite a strong body of support for its adaptation, is not part of UK law.
