Week 22: Judicial Review - amendability, justiciabilty, illeglity, irrationality

Question 1

Describe tripartite relationship

Answer 1

Tripartite relationship (three party relationship)

• Conferring Authority: delegates a power to a body or individual
• Decision Maker: has a power that was delegated by the other body
• Individual: is subject to the decision made by the decision maker

Question 2

What is the purpose of judicial review

Answer 2

to ensure that the decision maker acts within the scope of the power and reasonably and appropriately, inaccordance with principles of fairness

Question 3

What is the scope of a tripartite relationship?

Answer 3

• The Parliament of the United Kingdom has entrusted the Secretary of State for theHome Department (Home Secretary) under the Immigration Acts to make decisions upon leave to enter or remain in relation to individuals subject to immigration control.
• The Secretary of State, per his powers entrusted by the Immigration Acts, makes adecision in relation to Mr and Mrs Smith. Mr Smith is a British national and is marriedto Mrs Smith, an American national. The Secretary of State refuses Mrs Smith leave toremain as the spouse of Mr Smith. He does so upon the basis he does not believe themarriage between the two is genuine and subsisting
• Mrs Smith wishes to challenge the decision of the Secretary of State. She seeks to challenge upon the basis that the Secretary of State left out of account key evidence relating to the nature and duration of her relationship with Mr Smith.She is able to do so as the Secretary of State is making a decision, under statute, which falls within the nature of the tripartite test discussed in West v Secretary of State for Scotland 1992 SC 385

Question 4

Describe the boundaries of judicial review and the 3 preliminary issues

Answer 4

Remember the constitutional role of the courts
Boundaries must be delineated – one of the first issues the court will consider is if they can review
Three preliminary issues:

• Permission – courts have discretion to refuse permission
• Jurisdiction
• Justiciability

Question 5

Describe judicial review procedure in England & Wales

Answer 5

Civil Procedure Rules, Pt 54

• 54.1(2)(a): “a ‘claim for judicial review’ means a claim to review the lawfulness of (i) an enactment; or (ii) a decision, action, or failure to act in relation to the exercise of a public function.”

Two stages

• Must obtain permission to proceed (CPR, 54.4)
• If granted permission, claim then considered by the court

Permission granted if

• Claim is arguable
• Claim made within 3-month time-limit (CPR, 54.5)
• Claimant has sufficient interest (standing)
• Other avenues of redress have been exhausted (e.g. internal appeal)
• Court considers that if successful the claim would make a difference to the claimant.

Question 6

Describe judicial review procedure in Scotland

Answer 6

Rules of the Court of Session, Ch.58

• Ch.58 applies to an application to the supervisory jurisdiction of the court – application must be made by petition for judicial review (r 58.1(1))
• Cannot petition for JR if application could be made by appeal or review under any enactment (r 58.3(1))
• Must apply within three months (s.27A(1), Court of Session Act 1988 (CSA 1988), as amended)
• Need permission of the court to proceed (s.27B(1), CSA 1988, and see Wightman v Advocate General for Scotland[2018] CSIH 18at [9],2018 SC 388,2018 SCLR 588,2018 SLT 356)
• Permission will only be granted if:
  Applicant has sufficient interest
  Application has a real prospect of success (grounds of review not fanciful – s.27B(2), CSA 1988, and see Wightman)

Question 7

Explain the jurisdiction in English Law (Do the courts have the jurisdiction to make particular orders)

Answer 7

• Supervisory jurisdiction founded in the common law, but may be restricted by statute,
• “The High Court shall have jurisdiction to make mandatory, prohibiting and quashing orders in those classes of case in which, immediately before 1st May 2004, it had jurisdiction to make orders of mandamus, prohibition and certiorari respectively.” s29(1A), Senior Courts Act 1981
• Determine jurisdiction by:
  Source of decision-maker’s authority may review statutory or some prerogative powers (see GCHQ case).
  Whether prerogative power is reviewable determined by inquiring whether the issue at stake is justiciable or not - R. v Secretary of State for the Home Department Ex p. Bentley [1994] Q.B. 349at 453. For latest extension to justiciability of prerogative power, see R. (on the application of Miller) v Prime Minister [2019] UKSC 41; [2020] A.C. 373at [31]; see also [52], but note the Dissolution and Calling of Parliament Act 2022, ss 2 and 3
• Function – must have a public character

Question 8

Describe the distinction between justiciable and jurisdiction

Answer 8

Jurisdiction says courts can look at statute, statutory powers and prerogative powers.
Justiciability is talking about the actual subject matter of the power thats been exercised

Question 9

Explain jurisdiction in Scottish Law

Answer 9

Leading case: West v Secretary of State for Scotland1992 SC 385:

The Court of Session

• '’has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument. …
• The sole purpose for which the supervisory jurisdiction may be exercised is to ensure that the person or body does not exceed or abuse that jurisdiction, power or authority or fail to do what the jurisdiction, power or authority requires.” (at 412-413)
• Application to the supervisory jurisdiction of the court “does not depend upon any distinction between public law and private law, nor is it confined to those cases which English law has accepted as amenable to judicial review…” (at 413)

Question 10

Give an overview of what the courts can review in England and Wales

Answer 10

Not reviewable:

• Primary Legislation (Acts of the Westminster Parliament)

Reviewable:

• (1) Exercises of public functions
  Statutory public functions
  Exercise of Royal Prerogative (except personal powers, and dissolution of Parliament)
  Exercise of de facto public functions
• (2) Delegated legislation

Question 11

Give an overview of what the courts can review in Scotland

Answer 11

Not reviewable:

• Primary Legislation (Acts of the Westminster Parliament) (creature of statute- comes from those in westminster)

Reviewable:

(1) Acts of the Scottish Parliament
(2)Exercises of public functions

• Statutory public functions
• Exercise of Royal Prerogative (except personal powers, and dissolution of Parliament)
• Exercise of de facto public functions

(3) Delegated legislation

Question 12

Summarise justiciability: What powers are unreviewable, what is judicial review by the courts limited by.

Answer 12

No power, whether statutory, common law or under the prerogative, is inherently unreviewable (De Smiths Judicial Review, Ch.1), but NB prerogative to dissolve Parliament

Judicial review by the courts only limited by:

• Constitutional role
• Institutional capacity (e.g. court lacks expertise or matters are polycentric (decision maker has broad discretion with policy or public interest considerations).

Question 13

What is substantive review

Answer 13

a review of the substance of the decision

Question 14

Is judicial review about the lawfulness or correctness of a decision?

Answer 14

lawfulness

Question 15

substantive review

What are the courts trying to understand when considering illegality

Answer 15

• Has decision-maker understood the law + given effect to it?
• Taken into account relevant considerations?
• Exercised discretion for proper purpose?

Question 16

Substantive review

What are the courts looking at regarding irrationality/unreasonableness?

Answer 16

• Was the decision ‘reasonable’?
• Was it one that no reasonable public body could have made?
• Seriously flawed?

Question 17

Substantive review

What are the courts looking at regarding proportionality

Answer 17

• Was the decision justified?
• Rationally connected to the objective?
• Could less intrusive measure have been used? Fair balance struck?

Question 18

What questions must be considered regarding substantive review

Answer 18

• How is the question of what is lawful determined, and how closely can the courts look at decisions to determine whether they are arbitrary?
• Who decides what the law is, and the meaning and scope of the power being exercised?
• Where do the courts draw the line when deciding whether or not to intervene?- justiciability question

Question 19

Describe ‘intensity of review’

Answer 19

how closely the courts look at the content of the decision + how wide a ‘discretionary area of judgment’ is left to decision-maker

Question 20

Describe deference

Answer 20

courts refrain from intense scrutiny of some some decisions and defer to the decision maker where inappropriate for judges to decide, or where issue is ‘non-justiciable
e.g. matters regarding national security are very deferential

Question 21

On what grounds are the Acts of Scottish Parliament reviewable

Answer 21

Statute-based grounds

• Scotland Act 1998, s.29 (competence of the Scottish Parliament)
• Includes ECHR compatibility and therefore proportionality (ECtHR jurisprudence as applied in the UK)

Common law grounds

• Illegality
• Procedural Impropriety
• NOT irrationality/unreasonableness (Axa)
• Proportionality, in so far as it is a ground

Question 22

On what grounds are exercises of public functions reviewable

Answer 22

Statute-based grounds

• HRA 1998, s.6 (unlawful for a public authority to act incompatibly with Convention rights
• Scotland Act 1998, s.57 (“member of the Scottish government has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights”)

Common law grounds

• Illegality
• Procedural Impropriety
• Irrationality/unreasonableness
• Proportionality, in so far as it is a common law ground of review

Question 23

On what grounds is UK legislation reviewable?

Answer 23

Primary UK Legislation

• Cannot be judicially reviewed

Delegated legislation reviewable on the following grounds:

Statute-based grounds

• HRA 1998, s.6 (unlawful for a public authority to act incompatibly with Convention rights

Common law grounds

• Illegality
• Procedural Impropriety
• Irrationality/unreasonableness
• Proportionality, in so far as it is a common law ground of review

Question 24

Describe illegality

Answer 24

Council of Civil Service Unions v Minister for the Civil Service (GCHQ case) [1985] AC 374, Lord Diplock:

“By ‘illegality’ as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.”

Question 25

What are the posssible illegality arguments (5)

Answer 25

• Misinterpreted legal instrument relevant to decision
• No legal duty to make decisions/fails to fulfill legal duty
• Improperly delegates decision making power
• Exercised discretionary power for extraneous/improper purpose
• Took into account irrelevant considerations/ failed to tske into account relevant considerations

Question 26

Explain the interpretation of the law regarding illegality

Answer 26

1. R. (on the application of O (A Child)) v Secretary of State for the Home Department [2022] UKSC 3; [2022] 2 W.L.R. 343at [31]: Statutory interpretation “involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered”.
2. A note of caution about seeking to identify “Parliamentary intention”: “…the intention of Parliament is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. … Thus, when courts say that such-and-such a meaning “cannot be what Parliament intended,” they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.” (R. (on the application of Spath Holme Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 A.C. 349 HLat 396.)
3. Finding the objective meaning – look at statute as a whole + relevant section (R. (on the application of O (A Child)) at [29]
4. Purpose is important: “in matters of statutory construction, the statutory purpose and the general scheme by which it is to be put into effect are of central importance.” Bloomsbury International Ltd v Sea Fish Industry Authority [2011] UKSC 25; [2011] 1 W.L.R. 1546at [10]

Question 27

Explain example where there is a failure to fulfil duty - M v Scottish Ministers [2012] UKSC 58

Answer 27

• Child’s parents argued that the Ministers had failed to fulfill their duty under the Education (Additional Support for Learning) (Scotland) Act 2004 to identify and address the child’s additional support needs.
• Supreme Court held that the Scottish Ministers had failed to fulfill their duty under the 2004 Act.
• Court emphasized that the duty imposed by the Act was not merely procedural but substantive, requiring the Ministers to take active steps to identify and address the child’s additional support needs

Mental Health (Care and Treatment) (Scotland) Act 2003:

s. 268(11)(12):
“Qualifying patient” to be defined by regulations
s.333(2):
“come into force on 1st May 2006 or such earlier day as the Scottish Ministers may by order appoint.”

=Discretionary power (s.268) constrained by legal duty (s.333) to act by specified date

Question 28

Explain the process of determining if a power can delegate discretionary powers

Answer 28

Cannot delegate discretionary powers

• Has the power been delegated ? (Barnard v National Dock Labour Board [1953] 2 Q.B. 18; [1953] 2 W.L.R. 995 CA)
• Was the delegation authorised by law? See, e.g.: R. (on the application of Bourgass) v Secretary of State for Justice [2015] UKSC 54; [2016] A.C. 384
  Note that civil servants can, and do, act/make decisions on behalf of Ministers even if Ministers are legally responsible for their departments: the Carltona principle (Carltona Ltd v Commissioners of Works [1943] 2 All E.R. 560 CA)

Question 29

JR: illegality

What may the purpose of a statute be?

Answer 29

Express or implied

Question 30

What concept does R v Somerset County Council, ex parte Fewings [1995], Laws, L.J. at 525 bring regarding the purpose of statute

Answer 30

“[W]here a statute does not by express words define the purposes for which the powers it confers are to be exercised the decision-maker is bound nevertheless to ascertain and apply the aims intended, since no statute can be purposeless…”

Question 31

JR; Illegality; Relevance

Whats involved when considering relevance

Answer 31

• Identifying relevant considerations and evidence for a decision
• Acting on, taking into account, those considerations/evidence
• But – what is legally relevant or irrelevant, and who decides?
• Who decides what weight is to be given to different factors?

Question 32

Explain how relevance is determined

Answer 32

Function of decision maker

• Public interest and the rule of law: Often determined by considering whether a particular issue or action serves the public interest. Relevance is determined by ensuring that legal decisions and actions are consistent with established legal principles and procedures.
• Resources and the statutory scheme: Resource constraints, such as limited time, personnel, or financial resources, can influence the determination of relevance in legal matters. Courts interpret and apply relevant statutes and legal principles to determine the rights and obligations of the parties involved.
• Equality: Relevance is assessed by considering whether legal decisions or actions uphold principles of equality and non-discrimination.

Question 33

Describe the two related principles: purpose and relevance

Answer 33

Purpose - Powers conferred by statute must only be used for the purpose for which they were granted

Relevance - The decision-maker must act only on the basis of factors that are legally relevant

Question 34

JR; Irrationality/unreasonableness

How do the 3 grounds of review (illegality, irrationality and procedural impropriety) overlap

Answer 34

The grounds “are not exhaustive… nor are they necessarily mutually exclusive” (Lord Roskill, Wheeler v Leicester City Council [1985] AC 1054. 1078B-C)
May find that one sistuation can give rise to multiple grounds of review

Question 35

Explain Wednesbury: Unreasonableness

Answer 35

• “…if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere”
• What does that mean?
• “to prove a case …. would require something overwhelming…”

Question 36

Describe the move from ‘unreasonableness’ to ‘irrationality’

Answer 36

Lord Greene:): so unreasonable that no reasonable authority could have arrived at it = “something overwhelming”
Lord Diplock:): a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible personwho applied his mind…could have arrived at

Courts very hesitant to go beyong their boundaries: due to role of JR and ultra vire principle

Question 37

What is the problem regarding grounds of unreasonabless?

Answer 37

• The courts ‘impugn decisions that are far from absurd’
• If only to interfere with ‘insane’ decisions improper decisions would be immune from judicial scrutiny (see: Jowell and Lester [1987] P.L. 368, at 372)

Question 38

Describe the reformulated test for determining unreasonableness

Answer 38

‘whether the decision was one which a reasonable authority could reach’
“These unexaggerated criteria give the administrator ample and rightful rein, consistently with the constitutional separation of powers.” (Lord Cooke, R v Chief Constable of Sussex Police ex p International Trader’s Ferry Ltd [1999] 2 AC 418)

Question 39

JR; irrationality

Describe how the standard of review is a ‘sliding scale’

Answer 39

“It is now well established that the Wednesburyprinciple itself constitutes a sliding scale of review, more or less intrusive according to the nature and gravity of what is at stake” Laws LJ R v Secretary of State for Education and Employment ex p Begbie [2000] 1 W.L.R. 1115

Courts have developed an “issue sensitive scale of intervention to enable them to perform their constitutional function in an increasingly complex polity” (R (Q) v Secretary of State for the Home Department [2004] QB 36)

Question 40

How do the courts evaluate reasonableness

Answer 40

Nature and purpose of legislation:
Extent a power is open to review on the ground of irrationality “will depend critically on the nature and purpose of the enabling legislation.”
Lord Phillips MR, R (Asif Javed) v Secretary of State for the Home Dept [2001]

Justification:
“whether a reasonable Secretary of State, on the material before him, could reasonably conclude that the interference with freedom of expression which he determined to impose was justifiable.”
Ex p. Brind [1991]

Context:
R (Evans) v Attorney-General

• Divisional court: ‘cogent reasons’
• Court of appeal: ‘context and circumstances’ of decision
• Supreme Court (Lord Mance): ‘test must be… Context specific…depend on particular legislation’; here: ‘clearest possible justification’ required

Question 41

Explain the overlap between unreasonableness and relevance

Answer 41

Example:
“The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law, and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all materials considerations, it is at liberty (provided that it does not lapse intoWednesburyirrationality) to give them whatever weight the planning authority thinks fit or no weight at all.” (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 W.L.R. 759; [1995] 2 All E.R. 636 HLat 780.)

Its up to the desion maker to decide what weight to give to a factor, unless by failing to give weight or giving too much wright then they would be acting irrationally.

The question is: “whether the decision-maker acts rationally in doing so” (R. (on the application of Friends of the Earth) v Heathrow Airport Ltd [2020] UKSC 52; [2021] 2 All E.R. 967at [121])

Question 42

Describe the overlap of unreasonableness and relevence in deciding when a decision is reasonable.

Answer 42

Is it within the “range of reasonable responses?” > Courts apply issue-sensitive scale of intervention (varying “intensity of review”) > Where on the scale depends on context

Question 43

Describe the sliding scale of context and intensity of review regarding unreasonableness

Answer 43

LOW INTENSITY
= e.g. political context
- judges intervene when there is ‘manifest absurdity’

HIGH INTENSITY
e.g. infringement of fundamental rights; circumstances which require ‘clearest possible justification’