Traditional Judicial Review - Grounds Flashcards
What are the grounds for JR?
“doctrine of Ultra Vires” - Boddington v British Transport Police
“procedurally irregular or Wednesbury unreasonable” - R v Hull University Visitor ex parte Page [1993]
Common Law basis - John Laws : Wednesbury unreasonableness, procedural unfairness and illegality
What are the limits of JR according to R v Somerset County Council ex parte Fewings [1995]?
Only asks whether the decision was arrived at lawfully and doesn’t actually question the decision
R v SoS for the Home Department ex parte Fire Brigades Union and Others: Parliament should ideally check executive is acting properly and not the courts, but Parliament cannot do that due to the huge amount of work.
What are the justifications to the right to hearing?
R v Sos for the Home Department ex parte Doody [1994]:
Be told the reason for a decision
Possibility of pointing out errors of fact or reasoning
What are the core requirements in a hearing?
- Notice of the measure/information as to the case to be met: Kanda [1962] - right of accused to know what the case against him is (Denning)
- Opportunity to make out a case: Ex Parte Benaim and Khaida [1970]
What are the optional requirements of a hearing?
- An oral hearing (The Queen on the Application of H v SoS for Justice [2008]) - balance of cost and efficiency.
- An appeal process
- Legal Representation (Hone)
- Cross-examination of witnesses: R v Board of Visitors of Hull Prison
- Reasons for the decision: Dr Marta Stefan v The General Medical Council and South Bucks District Council v Porter (No 2)
What is the criteria for legal representation based on Hone?
- The seriousness of the charge and the potential penalty
- Where any points of law were likely to arise
- The capacity of the person to represent their own case
- The complexity of the procedure
- The need for reasonable speed in decision-making.
What are the three main features of natural justice according to Ridge v Baldwin [1964]?
The right to be heard by an unbiased tribunal
The right to have notice of the charges of misconduct
The right to be heard in answer to those charges
What happens if a statute sets of procedural requirements for reviewing its decisions?
The courts will not only follow the procedure described by statute but will readily imply so much and no more to be introduced by way of additional procedural safeguards - Lloyd and Other Appellants v McMahon [1987].
What are the factors determining the scope of the right to hearing?
- Administrative v Judicial: right to hearing must be respected in both
- Granting a new right/depriving an existing right.
- Importance of the right/interest
- Legitimate expectations: if administrative body created an expectation that the right to hearing will be more robust, that should be respected.
- Practical limitations (cost/speed)
- Contested: The likelihood that hearing would make a difference to the result in a case (Cf Evans to Glynn)
What are the competing consideration in which a right to hearing will be deprived?
Urgency: health and safety, food (Redfern): licencing and safety - aviation (Pegasus Holdings)
Secret Information: informants (Bourgass; Gaming board); gisting
Practical issues - costliness for the tribunal
What is the rule against bias? (Personal interest)
decision maker is a party - automatically disqualifying (Pinochet (No. 2)
Financial interest - automatically disqualifying (Dimes)
Other personal interest - may trigger automatic disqualification (Pinochet) or may lead to application of the rest of real danger to bias - includes family relationships (Lannon) and commercial ties (Barnsley licensing)
What is the rule against bias - no personal interest?
General test: whether the fair-minded and informed observer, having considered the facts would conclude that there was a real possibility of bias (Porter v Magill) - apply t any administrative person and not just judges.
Predisposition is not pre-determination : Island Farm
Is the perception of bias enough?
Metropolitan Properties Co. (F.G.C.) Ltd v Lannon and Others [1969]: suffice is that reasonable people might think someone is biased
Is the appearance of justice enough?
Pinochet (No. 20): appearance of impartiality of judge is just as important as reality
Bias is concerned with appearances (Vale of Glamorgan Council)
What is the principle of legitimate expectations under R(Nadarajah) v SoS for the Home Department and R (Abdi) v Same (2005)?
If a public body has promised or adopted a practice which represented how it proposed to act in a given area, the law would require the promise to be honoured unless there was a good reason not to do so.
What are the two types of legitimate expectations?
Procedural legitimate expectations: promising a particular procedure
Substantive legitimate expectations: promising a particular decision, authority has to fulfill promise (Coughlan)
How are legitimate expectations created?
- Official representation or conduct which C can reasonably expect to continue (GCHQ Case [1985]
- Representation/conduct must be clear enough to create representation: “how would the promise be reasonably understood to those whom it was made - R (Far East Region) v SoS for Defence [2003].
- Importance of reliance (not a condition though): unless detrimental reliance may not always warrant legitimate expectation (R (Patel) v General Medical Council, however that is the exception ( R v SoS for Education and Employment ex parte Begbie [2000]
- Importance of the size of the group to which a promise was made : more diverse and broad class, less likely that LE will be upheld due to public interest : R (Bhatt Murphy) and Ors v The Independent Assessor [2008]
How to counter a legitimate expectation claim?
- Individual interests must be balanced against public interest - R v North and East Devon Health Authority ex parte Coughlan [2001] and R V SoS for Education and Employment ex parte Begbie [2000].
What happens if there is a change of policy?
when there is a change of policy to the whole population, it is more difficult to establish LE.
R (Bhatt Murphy) and Ors v The Independent Assessor [2008] : doctrine will not apply to policies operating over an appreciable period. any new policy subject to WR, if a substitute policy is established in breach of a SLE, expectation is more rigorous
What is the non-delegation principle?
Discretionary power may not, in general be delegated.
What is the non-fettering principle?
A public authority cannot avoid exercising discretion by adopting rigid rules
What is the Carltona doctrine?
Duties imposed to ministers can be delegates under the authority of ministers and by responsible officials of the department - Carltona v Commissioners of Works [1943]
What is the Carltona criteria for permissible delegation?
The nature of the subject matter
The degree of control retained by the person delegating
The type of person or body to whom the power is delegated
See: The Bourgass Case [2015] and Prison Rules/Immigration rules as examples.
What does the case of British Oxygen Co Ltd v Minister of Technology [1970] say about the non-fettering principle?
That where ministries or large authorities deal repeatedly with similar applications, they may have evolved a precise policy that could be called a rule.
There is no issue with that providing that the authority is always willing to listen to anyone with something new to say.
