Week 3 - Judical Review Flashcards
What is judicial Review?
Two types of accountability
- Political accountability
- E.g. elections, ministerial responsibility to parliament etc - Legal Accountability
- Accountability for the executive through the courts i.e. judicial review
Why is judicial review NOT an appeal
The executive and its administrative agencies are the primary decision-makers
Judges are not elected
Institutional competence
Remedy of last resort
Autonomy of a case
Overview
Arguments of the parties
Legal framework and agreed facts
Leading judgment on the issues
Henry VIII Power
The term Henry VIII power is commonly used to describe a delegated power under which subordinate legislation is enabled to amend primary legislation
Attempts to change the definition
The government introduced primary legislation to amend “serious disruption” in the POA
Proposed rejected by the House of Lords
The government used the Henry VIII power - amended definition in primary legislation through regulations
Ground for review
- The regulations were ultra vires - outside the powers given by the Act
- Regulations were ultra vires - outside powers because they subverted parliamentary sovereignty by implementing something parliament had rejected
- That the regulations were unlawful because - in using the secondary legislation procedure - the Home Secretary was frustrating Parliamentary scrutiny
- The regulations were unlawful because of procedural unfairness in the process of making them - lack of consultation except with the police
Court’s Conclusion
Ground 1 succeeded - Ultra vires the enabling statute
Ground 4 succeeded - inadequate consultation
Ground 2 and 3 failed - within the power to use the procedure
Who can apply
Senior Courts Act 1981 s31(3)
No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with the rules of the court, and the court shall not grant leave to make such an application unless it considers that the application has a sufficient interest in the matter to which the application relates
Key Cases
Association Standing - Greenpeace
- R v HM Inspectorate of pollution, ex p Greenpeace (No 2) [1994] 4 All ER 329
BUT
- Regina v Secretary of State for the Environment, ex parte Rose Theatre Trust Co [1990] 2 WLR 186
Public Interest Standing - The Pergau Dam case
- R v Secretary of State for Foreign and Commonwealth Affair ex p World Development Movement Ltd [1995] 1 WLR 386
Ground 1 - Illegality
Sub-principles of illegality
- Excess of power
- Abuse of power
Ground 2 - Procedural unfairness
Three types of procedural unfairness
- Breach of statutory procedure
- Breach of natural justice
- Breach of legitimate expectation
Procedural unfairness - 2 Breach of Natural Justice
Rules of natural justice = the common law principle of fair procedure
There are two established rules of natural justice
- The rules against bias and
- The right to a fair hearing
Procedural unfairness: Natural Justice
The rule against bias
- Porter v Magill [2002] a A.C. 357
- The Test:
- A decision maker will be considered biased where:
- The circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility of bias
Natural Justice - The Rule Against Bias
- A financial interest: Dimes v Grand Junction Canal (1852) 3 HLC 759
- A direct non-financial interest: R v Bow Street Metropolitan Stipendiary magistrate Ex p. Pinochet Ugarte
Natural Justice - The right to a fair hearing
The right to be heard and ‘make your case’
Notice of the case against you
Natural Justice - What about rights to
Cross-examine witnesses and test evidence
The right to legal representation
The right to reasons
Natural Justice - The right to a fair hearing
Ridge v Baldwin
He was not given a hearing. this was found to be unlawful
The committee was deciding, like a judge in a lawsuit, what were the rights of the person before it. But it was deciding how he should be treated.. such a body is performing a quasi-judicial task
The right to reasons
R v Northumberland Compensation Appeal Tribunal ex parte Shaw
- I think the record must contain at least the document which initiates the proceedings; the pleadings, if any and the adjudication; but not the evidence nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lied to quash the decision
Procedural unfairness: Legitimate Expectation
A practice or promise’ that particular procedures would be followed becomes binding unless the public interest justifies a departure from the practice/promise
Ground 3 - irrationality (or unreasonableness)
It applied to a decision which is so outrageous in its defiance of logical or acceptance moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it
However, where a body has ‘come to a conclusion so unreasonable that no reasonable authority could ever have come to it in such a case… i think
The “Sliding Scale” of Wednesday
Less willing to scrutinize a decision regarding budgets and the allocation of resources
Less willing to scrutinize political or policy decisions
“Minister’s decisions on important matters of policy are not on that account sacrosanct against the unreasonable doctrine, through the court must take special care, for constitutional reasons, not to pass judgement on the action which is essentially political
The greater the policy content of a decision the more remote the subject matter from ordinary judicial experience, and the more hesitant the court must necessarily be in holding a decision to be irrational
More willing to scrutinize
More willing to scrutinise reasonableness where a fundamental or constitutional right might be at stake
“The intensity of the court’s review must… reflect the dire consequences for an applicant that may result if the conclusion reached by the secretary of state was wrong
Ground 4: Breach of human rights
The effect of the Human Rights Act 1998 is to insert a new statutory heading of illegality - breach of a convention right
6 Acts of Public Authorities
(1) It is unlawful for a public authority to act in a way which is incompatible with a conventional right
(3) in this section public authority includes (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature but does not include either the House of Parliament or a person exercising functions in connection with proceedings in parliament
Interference with a protected right must be
In accordance with the law, such as the Mental Health Act capacity Act, immigration law, criminal law, laws preventing incitement of racial hatred
Intended to achieve a legitimate objective, for example, medical treatment, safety of the individual, safety of others
Necessary in a democratic society
Personality test
- Does the policy/measure in question pursue a sufficiently important objective
- Is the rule or decision under review rationally connected with that objective
- Are the means adopted no more than necessary to achieve that objective
- Does the measure achieve a fair balance between the rights of the individual affected and the wider community
Remedies
Always discretionary in public law
- Quashing order
- Mandatory order
- Prohibiting order
- Declaration
- Injunction
- Damages
Controversies
Ministers… making statements which misrepresent judicial decision, launching as-hominem attacks on judges who decide against them, responding to adverse decisions with threats to ‘reform’ the judiciary and conflating decision with [olicitcla consequences with political decision thereby giving the misleading impression that judges are stepping outside their constitutional bounds
