The Grounds of Judicial Review Flashcards
Give an overview of judicial review
Judicial review allows courts to ensure public bodies act within the powers they have been granted and that they don’t exceed or abuse these powers
It isn’t concerned with the merits of the decision, but the manner in which the decision is made
Categories are:
- Illegality
- Irrationality
- Procedural impropriety
What are the three academic theories concerning the constitutional justification for judicial review?
- (1) Ultra vires theory: This theory holds that the constitutional justification for Judicial Review is based on the supremacy of Parliament. In exercising their powers of review, the courts ensure that a public body does not act beyond those powers conferred upon it by Parliament.
- (2) Common law theory: This theory emphasises Judicial Review as arising from the common law. Although it does not dispute that most public bodies derive their powers from Parliament, this theory holds that the grounds for Judicial Review are judge-made, and that the basic justification for judicial review lies in the principles of good and fair administration, and natural justice. Such rules appear to be rooted in the desire to ensure that decisions are made in a fair manner.
- (3) Modified ultra vires theory: This theory has been developed by Forsyth and Elliott. They argue that, whilst the courts are upholding parliamentary supremacy in that it is Parliament which grants discretionary powers to public bodies, the courts ensure that such discretionary powers are exercised fairly and in accordance with the rule of law.
How does judicial review interact with broader constitutional principles?
Rule of Law – judicial review ensures there is a proper legal basis for the exercise of power by the state over the citizen and that power is not exercised in an arbitrary or oppressive manner
Separation of Powers – allows the courts to check the exercise of power by the executive
Parliamentary Supremacy – does not conflict with this, as judicial review is only available in respect of secondary legislation
Three domestic grounds of judicial review:
- Illegality
- Irrationality
- Procedural impropriety
Two European grounds of judicial review:
- Breach of European Convention on Human Rights
- Breach of retained EU law
What does ‘illegality’ broadly mean as a ground of JR?
If an action is illegal, it is beyond the powers of the public body, either because the powers claimed don’t exist or because they are exceeded/abused
There are various ‘heads’ of illegality. In overview only, what are these?
1) Acting without legal authority (ultra vires)
2) Error of law
3) Jurisdictional error of fact
4) Delegation
5) Restricting or fettering of discretion
6) Improper or unauthorised purpose
7) Dual purpose
8) Irrelevant considerations
Explain acting ultra vires
The decision-maker exceeds the powers given by statute
Explain error of law
The decision-maker misunderstands its powers
Errors of law affecting a decision will always be amenable to judicial review
Explain jurisdictional error of fact
The decision-maker makes a mistake as to a fact that must be in place to trigger the use of the power
- General errors of fact - reluctant use of JR
- Decisions based on alleged errors of fact which go to the root of a public authorities capacity to act are reviewable
Explain delegation
This means that decision making powers conferred by Parliament cannot be further delegated
Two exceptions:
- Carltona principle – allows government ministers to delegate decision making powers to civil servants in their departments
- S101 Local Government Act – LAs can delegate decision making powers to committees or individual officers of LAs, provided they have passed a formal resolution to do so
Explain restricting or fettering of discretion
Arises:
- Where a public authority is acting under the dictation of another - must not allow another person to make the decision for them
- Where a general policy as to the exercise of discretion is applied too strictly - Decision makers must be willing to listen to anyone with something new to say
Explain improper or unauthorised purposes
The decision-maker must use its powers for the correct purpose.
Explain dual purposes
Where there are dual purposes behind a decision, there are two tests to be considered
1) Primary purpose test
- Where there are two reasons for a decision, if the permitted purpose is the main reason, the decision is not ultra vires
2) Material influence
- If the unauthorised purpose materially influenced the decision made, then the decision is unlawful
Explain irrelevant considerations
Public authority must consider relevant considerations and disregard irrelevant ones when exercising its powers
What does ‘irrationality’ mean as a ground of JR?
A very high degree of unreasonableness is needed to make a successful challenge of irrationality
Test for irrationality comes from two key cases:
1) Wednesbury unreasonableness
- Decision maker must reach a conclusion ‘so unreasonable that no reasonable authority could ever have come to it.’
2) CCSU v Minister for Civil Service
- To be irrational, a decision needed to be ‘so outrageous in its defiance of logic that no sensible person could have arrived at it.’
What does ‘procedural impropriety’ broadly mean as a ground of JR?
Illegality and irrationality are known as substantive grounds
This ground comprises:
1) Procedural fairness
- Right to a fair hearing
- Rule against bias
2) Procedural ultra vires
It is a ground for challenge based on the way in which a decision has been reached
The subcategory of procedural fairness comprises 2 rules of natural justice.
The first of these is the rule against bias. What does this involve?
Decision maker must not have an interest in the outcome of the decision
1) Direct interests – decision normally quashed by courts
- Interest leading to financial gain - will make the decision automatically void
- Non-pecuniary interests may also fall here (decision maker promotes same cause as a party to the case)
2) Indirect interests – more closely examined before being quashed; courts look for apparent bias
- Example is that a relative of decision maker has the interest
- Would a fair minded and impartial observer conclude that there had been a real possibility of bias?
The subcategory of procedural fairness comprises 2 rules of natural justice.
The second of these is the right to a fair hearing. What does this involve and how are cases divided when considering this?
This is a duty to act in good faith and listen to both sides
Key factor in determining whether a hearing has been fair will be how much the claimant stood to lose – assessed by looking at 3 categories:
1) Forfeiture cases – claimant could lose livelihood or job search
- Claimants entitled to expect a lot more from the hearing for it to be considered fair
2) Legitimate expectation cases – claimant had a legitimate expectation that, for example, a license would be renewed
- There may be a procedural or substantive legitimate expectation
3) Application cases – first time applicant for a license
- Claimant not entitled to expect as much from their hearing for it to be considered fair
What amounts to a fair hearing, under the ground of procedural impropriety?
In a forfeiture case, the claimant should know the case against them and have the right to reply at each stage of the decision-making process
In a legitimate expectation case, the nature of the hearing depends on the expectation created by the decision maker
In application cases, applicants are entitled to have their cases heard honestly and without bias
Right to know the case against you is a standard requirement of a fair hearing
Is there a right to receive the reasons for a decision as part of a right to a fair hearing?
No right to be given reasons for a decision maker’s decision
Exceptions:
- When the decision looks completely wrong
- When reasons are required to challenge the legality of a decision that has been made
What are some other key points in relation to the right to a fair hearing?
No right to a fair hearing if the decision is merely preliminary
No automatic right to an oral hearing, but every claimant is entitled to a hearing that is fair and reasonable in all the circumstances
Rules of natural justice don’t apply where the decision-maker has a legislative, rather than judicial function
The subcategory of procedural ultra vires under the ‘procedural impropriety’ ground of JR can be further split into statutory procedural requirements and legitimate expectations.
Explain statutory procedural requirements
Can be classed as either mandatory or directory
- Mandatory requirements – render a decision invalid if the procedure is not followed
- Directory requirements – decision not rendered invalid if procedure not followed
Courts will consider wording of the Act to establish whether the procedure is mandatory or directory
Courts will also consider if the claimant is substantially prejudiced by non-compliance with the procedural safeguard
Court should consider Parliament’s position and whether they would have intended the consequence of non-compliance with the statutory requirement to be an invalid decision
The subcategory of procedural ultra vires under the ‘procedural impropriety’ ground of JR can be further split into statutory procedural requirements and legitimate expectations.
Explain legitimate expectations
An express promise or existence of a regular working practice may give rise to two different types of legitimate expectation
- Procedural
- Substantive – may arise when the decision maker has led someone to believe that they will receive a benefit
Promise should be followed unless there is an overriding public interest
Public bodies will not normally be legally bound to maintain a policy that they have reasonably decided to change
- Except where the public body has made a specific undertaking directed to a particular group that the relevant policy would continue
