Week 3 - Judical Review

Question 1

What is judicial Review?

Answer 1

Two types of accountability

1. Political accountability
   - E.g. elections, ministerial responsibility to parliament etc
2. Legal Accountability
   - Accountability for the executive through the courts i.e. judicial review

Question 2

Why is judicial review NOT an appeal

Answer 2

The executive and its administrative agencies are the primary decision-makers

Judges are not elected

Institutional competence

Remedy of last resort

Question 3

Autonomy of a case

Answer 3

Overview

Arguments of the parties

Legal framework and agreed facts

Leading judgment on the issues

Question 4

Henry VIII Power

Answer 4

The term Henry VIII power is commonly used to describe a delegated power under which subordinate legislation is enabled to amend primary legislation

Question 5

Attempts to change the definition

Answer 5

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

Question 6

Ground for review

Answer 6

1. The regulations were ultra vires - outside the powers given by the Act
2. Regulations were ultra vires - outside powers because they subverted parliamentary sovereignty by implementing something parliament had rejected
3. That the regulations were unlawful because - in using the secondary legislation procedure - the Home Secretary was frustrating Parliamentary scrutiny
4. The regulations were unlawful because of procedural unfairness in the process of making them - lack of consultation except with the police

Question 7

Court’s Conclusion

Answer 7

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

Question 8

Who can apply

Answer 8

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

Question 9

Key Cases

Answer 9

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

Question 10

Ground 1 - Illegality

Answer 10

Sub-principles of illegality
- Excess of power
- Abuse of power

Question 11

Ground 2 - Procedural unfairness

Answer 11

Three types of procedural unfairness
- Breach of statutory procedure
- Breach of natural justice
- Breach of legitimate expectation

Question 12

Procedural unfairness - 2 Breach of Natural Justice

Answer 12

Rules of natural justice = the common law principle of fair procedure

There are two established rules of natural justice

1. The rules against bias and
2. The right to a fair hearing

Question 13

Procedural unfairness: Natural Justice

Answer 13

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

Question 14

Natural Justice - The Rule Against Bias

Answer 14

• 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

Question 15

Natural Justice - The right to a fair hearing

Answer 15

The right to be heard and ‘make your case’

Notice of the case against you

Question 16

Natural Justice - What about rights to

Answer 16

Cross-examine witnesses and test evidence

The right to legal representation

The right to reasons

Question 17

Natural Justice - The right to a fair hearing

Answer 17

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

Question 18

The right to reasons

Answer 18

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

Question 19

Procedural unfairness: Legitimate Expectation

Answer 19

A practice or promise’ that particular procedures would be followed becomes binding unless the public interest justifies a departure from the practice/promise

Question 20

Ground 3 - irrationality (or unreasonableness)

Answer 20

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

Question 21

The “Sliding Scale” of Wednesday

Answer 21

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

Question 22

More willing to scrutinize

Answer 22

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

Question 23

Ground 4: Breach of human rights

Answer 23

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

Question 24

Interference with a protected right must be

Answer 24

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

Question 25

Personality test

Answer 25

1. Does the policy/measure in question pursue a sufficiently important objective
2. Is the rule or decision under review rationally connected with that objective
3. Are the means adopted no more than necessary to achieve that objective
4. Does the measure achieve a fair balance between the rights of the individual affected and the wider community

Question 26

Remedies

Answer 26

Always discretionary in public law

1. Quashing order
2. Mandatory order
3. Prohibiting order
4. Declaration
5. Injunction
6. Damages

Question 27

Controversies

Answer 27

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