Judicial Review (ALL!) PDF

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Contains a complete set of concise notes on EVERYTHING regarding judicial review in the UK, whilst including all relevant points!...

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JUDICIAL REVIEW What is judicial review? - It is the legal procedure for supervising and/or reviewing state action. It is not an appeal. - Deals with the way a decision was made and not the outcome. - It’s a constitutional safeguard against abuse of power/promotes better use of power. - Entick v Carrington 1765 encourages the core principle that underpins judicial review – that government bodies and others exercising public functions must have legal authority for their actions and must act in accordance with the law. -

Some argue that judicial review is based on PS as the role of the judges is to give effect to the expressed or implied intention of Parliament. However, since developments in judicial review have been judge-made, it is unrealistic to say that they have been driven by parliamentary intentions. Others argue judicial review is founded on the common law.

When does a judicial review claim typically arise: a) The terms of the legislation have not been complied with b) The requirements of the common law have not been followed. c) There has been a breach of s.6 of the HRA, which requires UK judges to take case law of the ECHR into account. d) There’s been a breach of a requirement imposed by the EU legislation or the case law of the ECJ. What are the different theories of judicial review? a) Traffic Lights theory (i) Red Light Theory - orthodox separation of powers principles - It gives the government a red light - Law is a form of control that is more superior than political forms of control (egal accountability is more important). The courts should oversee the activity of the executive and not the Parliament. - The focus is on protection of the individual from the state - Curb powers of the state and make sure power is not abused (Dicey) (ii) Green Light Theory – orthodox parliamentary sovereignty principles - Law is a type of form of control though it’s not more superior than political forms of control (political accountability is more important). - The focus is on improving state action and making use of their power more effective rather than trying to limit it. b) Ultra vires - Ultra vires means beyond the powers - The executive gets their authority to act from statute, so it is the role of the courts to decide whether they have acted within that power or not, and that they’re doing what Parliament intended. - The ‘four corners’ approach is used to find Parliament’s intention, everything the executive is allowed to do is included in the four-corned statute book. It’s a literalist approach and helps to ensure PS. c)

Common law theory - Judicial review is a common law creation and not what Parliament says should happen - Parliament has not overruled these developments - This common law process is based in separation of powers and the rule of law, as it provides checks on the Parliament.

d) Modified ultra vires - This is a mixed approach because neither the common law theory nor the ultra vires theory alone can fully explain judicial review. - Also because judicial review is built on separation of powers, rule of law and parliamentary supremacy. What is the judicial review procedure? - Under s2 of the Civil Procedure Rules 54.1: (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 -

The claimant must first obtain permission and then persuade the judge in writing that: a) The claim is arguable b) The claim is made within the time limits (within 3 months of the decision being challenged) c) The claimant has sufficient interest in the case (standing)

d) Other potential avenues of redress have been exhausted and that there is no other way of challenging the decision What are the judicial review thresholds? Amenability: who can be reviewed? - Pt 54.1 CPR doesn’t mention the specific bodies that may be challenged, so judicial review may be used against any decision-maker that exercises ‘public functions’, including private bodies e.g. charities or private schools. - Lord Nicholls in Aston Cantlow v Wallbank 2003 explained that to determine whether a body is amenable to judicial review they must look at the source of the body’s powers. If they derive from statute or the prerogative, the decision will be reviewable. If the powers are contained in a contract then they won’t be reviewable, since the source of the power is a ‘private’ agreement between the contracting parties rather than a grant of power by Parliament or the common law. - Though many judges take a closed approach and only review cases where individuals are directly affected, there’s also the open approach that allows claimants into court if they have an arguable case on the law. - Judicial review excludes Parliament and the High Court Justifiability: what can be reviewed? - Claims may concern a failure of primary legislation to comply with EU law or the HRA, but the most common claims concern delegated legislation. - Where source of the power is not identifiable, the judge must look at the importance/impact of the function carried out and if it has a public element (Datafin). - Since there’s no definitive list of which bodies can be judicially reviewed, it’s unclear which bodies must comply with the principles of judicial review. The court then looks at the nature of the legal arrangement under which the functions were delivered rather than the nature of the function itself (R v Servite Houses). - The courts must look to the justiciability of the subject matter, the subject matter itself and any ouster clauses. Standing: who can claim? - Claimants must show they have sufficient interest in the matter, which since there is no legal definition of this, is down to the judge to determine. Usually it’s obvious when there’s a clear interest because they person is directly affected by it. Though, it’s more difficult when people are being represented e.g. a trade union, or where general public interests are being represented. - To determine if there is sufficient interest, we must look at the substance of the interest by examining the legal and factual context (IRC v National Referendum of the Self-Employed and Small Businesses). - In R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd, it was held that although the pressure group were not directly affected by the decision, they did have sufficient interest because there was no other possible claimant, the claimant has significant legal expertise in the area and the rule of law must be clear given the importance of the issue. -

The ‘sufficient interest’ test (s31(3) Senior Courts Act); a) Individuals/organisations/charities are able to claim b) No application for judicial review shall be made unless leave of the High Court has been obtained in accordance with the rules of the court; and the court shall not grant leave to much such an application unless it considered that the applicant has a sufficient interest in the matter.

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The ‘victim’ test (s7 HRA) The person(s) must have been directly affected (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by s6(1) may: (a) Bring proceedings against the authority under this Act in the appropriate court or tribunal (b) Rely on the convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the lawful act. (2) – (3) If proceedings are brought, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of the act.

What are the remedies available? - The main remedies offered under s31 Senior Courts Act 1981 are: a) A quashing order (the decision challenged will no longer have effect) b) A quashing order combined with an order remitting the matter to the original decision-maker allowing them to reconsider and reach a decision in accordance with the findings of the court c) A prohibiting order – prohibiting a public body from doing something or continue to do something d) A mandating order – ordering the body to perform a duty e) A declaration – a formal statement by the court about the legal rights of the parties f) An injunction – they can be temporary or permanent and stop something being done, a mandatory injunction can force something to be done.

g)

If the claim includes arguments about Convention rights, the court may make a declaration of incompatibility under s4 of the HRA. h) Damages may also be claimed but are only available if they could be obtained in non-judicial review proceedings. So, damages cannot be sought in claims based only on common law grounds of judicial review. -

The grant of a remedy is discretionary, this may happen if there has been a delay in making the claim or if a remedy would serve no useful purpose.

What about judicial review in practice? - Judicial review is limited remedy because, even if the claimant succeeds, judges rarely replace the decision that has been challenged with their own. This is because review is made on the way decisions are made and the limits of an authority’s power, not the merits of the decision. - If the claimant succeeds, the matter will be sent back (remitted) to the original decision-maker for a fresh decision to be made in light of the court’s judgment. - Judicial review case law sets standards of good administration, so that public bodies and the wider community may know what the law expects. - Judicial review applications in E&W grew from around 2,000 in 2000 to 15,594 in 2013 with most cases involving immigration and seeking asylum. -

The three territorial jurisdictions in the UK each have different court procedures for claiming judicial review and, a range of courts and tribunals exercise a jurisdiction that involves reviewing the legality of public actions.

What are the grounds of judicial review? - The grounds on which the courts review the legality of the exercise of public functions are developed by judges. There is no codified statement of these but there are many judicial statements on the basic grounds. - Lord Diplock recognised three grounds: 1. Illegality (1 GCHQ – Substantive ultra vires) The decision-maker must understand the law that regulates his decision-making power and must give effect to it. 2.

Irrationality/ Wednesbury unreasonableness This applies to a decision that is so outrageous that no reasonable person would have arrived to the same decision had they applied their mind to the question.

3.

Procedural impropriety (2 GCHQ – Procedural ultra vires) Failure to observe procedural rules that are expressly laid down in legislation, or failure to act with procedural fairness towards the person who will be affected by the decision.

4. 5. 6.

Proportionality HRA or ECHR law breach Legitimate expectation

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A) ILLEGALITY There must be a lawful exercise of discretion - Decision-makers must know their duties and powers, and they must ensure that what they do is permitted by law. They must use these powers to further the aims and policies for which the powers were given. - Discretion allows public bodies to make decisions in accordance with their perception of the public interest, and in light of changing circumstances. - The discretion may be subjective (e.g. when to act) or objective (conforming to an objective standard/something that can be measured) (Liversidge v Anderson). The scope of discretion of power varies where the imposition of duties in legislation use words such as ‘may’ or enabling them to act when they ‘think fit’. There must be an actual exercise of discretion - Those given the discretion must actually exercise it, they cannot delegate their discretion to others unless authorized to do so (improper delegation), nor can they prevent themselves from using their discretion (fettering discretion). a)

Improper delegation - Discretionary power cannot be delegated - Statute will state who the decision-maker is and if the power can be delegate - Doesn’t apply to Ministers of State because the courts recognise that majority of decisions are taken by civil servants, despite the Carltona doctrine that the acts of departmental officials are synonymous with the actions of the minister in charge (Carltona Ltd v Commissioner of Works 1943). - The only exceptions are when the statute states the minister must personally decide, or when the officials act without the minister’s knowledge.

b) Fettering of discretion - When an authority is given discretion, it cannot bind itself as to the way in which this discretion will be exercised either by internal policies or obligations to others. - Regarding fettering of discretion, a ministry or large authority may have already dealt with similar applications and have evolved a policy so precise that it could be called a rule. There can be no objection to that rule, though the authority must listen when someone has something new to say (British Oxygen Co. Ltd v Minister of Technology 1971). -

Any purported performance of the function will not be treated as performance by the intended person. Bodies may also fail to exercise their discretion if they consider themselves bound by the views of others (Lavender v Ministry of Housing and Local Government 1970).

Relevant and irrelevant considerations - Members of the executive do not have unfettered discretion, even when their legislative powers appear unrestricted (Padfield v Ministry of Agriculture, Fisheries and Food 1968) (Wednesbury case). - Lord Reid said the policy and objects of the Act must be determined by construing the Act as a whole, and construction is always a matter of law for the court. - The HoL in Magill v Porter 2001 held that local authorities have an obligation to act in the public interest and that powers cannot be used to serve the interests of the ruling political group. 1.

2.

3.

Relevant considerations are the matters that the decision-maker is bound to take into account, the two types are: a) mandatory relevant considerations – statute expressly/impliedly identifies what must be considered b) discretionary relevant considerations– those that should be considered if deemed appropriate Irrelevant considerations are the matters which are not only ‘not mandatory’ but are also prohibited from being considered. Irrelevant considerations must be substantive or material to the decision made for it to be invalidated. E.g. Padfield Permissible considerations are a wide range of matters which lie between mandatory and prohibited considerations – that is, factors which the decision-maker may weigh or disregard without committing an error of law.

Improper purpose - Has connotations of morality but need not be immoral to be proper. - Powers can only be used for the purpose for which they were conferred. - Closely linked to irrelevant considerations since a decision that’s based on irrelevant considerations, most likely is not within the intentions and objects of the statute. may qualify as having used their powers for an improper purpose. - How do we find out the purpose? a) Specified in the legislation, b) The policy and objects of the Act (Padfield) c) External aids to interpretation e.g. Hansard/explanatory notes More on ultra vires What must we ask when considering vires? - Where is the location of the power? – Is it statutory or common law? - What is the content of the power? What are they allowed/meant to do? - What is the purpose? What are Parliament’s intentions? - What is the scope of the power: wide or narrow? How much discretion does they have with this power? What are the different types of ultra vires? a) Narrow or simple ultra vires – the decision-maker has no power to do what they did (substantive or implied) e.g. Fewings 1995 and Hazell 1992. b) Broad ultra vires or misuse of powers - there is power to act but it has been misunderstood or misused c) Parliament’s intention is crucial – what powers did Parliament confer? (‘four corners’ approach) e.g. s2 HRA: interpretation of Convention rights: the court must take into account any judgement/opinion of the ECHR. Lord Irvine said that courts have strayed from giving effect to Parliament’s intention because the use of the words ‘take into account’ does not mean that they are bound. How is power understood? a) Statutory: words of statute - Courts must take their ordinary and natural meaning

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If the meaning is unclear, they can use explanatory notes (Russel 1999) or Hansard (Pepper v Hart 1993) to find the true intention. S3 HRA is helpful where there are complaints regarding human rights

b) Common law: principle of legality - If the intention is not expressly or impliedly stated, there is the presumption that Parliament has legislated so as to preserve fundamental rights (ex parte Pierson 1998, per Lord Steyn). What about mistakes of law? - Courts can review all errors of law regarding narrow and broad vires (Anisminic 1969) but how about errors of fact? - The types of mistakes are: a) Misrepresentation b) Misunderstanding of the boundaries of your power - applying irrelevant considerations or not applying relevant considerations c) Making a decision with no evidential basis e.g. Javed d) Acting in breach of HRA (contrary to s6) S2 HRA Interpretation of Convention Rights (1) A court/tribunal determining a question which has arisen in connection with a convention right must take into account any – (a) Judgement, decision, declaration or advisory opinion of the ECHR… whenever made or given, so far as, in the opinion of the court/tribunal, it is relevant to the proceedings in which that question has arisen. B) PROCEDURAL IMPROPRIETY -

Procedural impropriety is a breach of the rules of natural justice and a failure to comply with statutory procedural requirements. Natural justice (common law)(procedural fairness) demands that the decision-maker is impartial (non-bias) and that everyone is entitled to a fair process. Statutory requirements e.g. who to consult, can be mandatory or permissive. When may a procedural fairness apply? - Procedural fairness usually applies to decision that negatively affect an existing interest of a person or corporation. It also applies where a person has a legitimate expectation. -

Procedural fairness distinguishes between instrumental reasons for requiring fairness and value-based reasons for doing so. Professor Genevra Richardson explained: a)

Instrumentalism – This emphasises the link between process and direct outcome. If a correct outcome can be identified, then a procedural requirement is justified to the extent that it encourages the outcome.

b) Process values – To see processes as designed to protect values which are independent of the direct outcome of the decision e.g. participation or fairness. What might be required? 1. Those adversely affected by a decision may be given an opportunity to make representation before the decision is made. Fairness does not necessarily require an oral hearing. 2. Fairness often requires that a person be informed of the gist of the case against them, or why an adverse decision has been made. Decision-makers need to give these reasons. Reasons will provide transparency and help people decide whether or not to challenge or complain about decisions. 3. Requires impartiality and open-mindedness: unbiased, neutral and independent.

What is the importance of procedural fairness? a) Effectiveness – to achieve a better decision (better reasoned/better informed/easier accountability) *green light b) Legitimacy – respect dignity of individuals, participation on decision, to ensure acceptance/confidence in courts What about the rule against bias? - The purpose is to ensure that fair and genuine consideration is given to parties’ arguments. - It upholds constitutional principles of separation of powers and judicial independence. - The different types are: a) Actual bias b) Presumed bias = automatic disqualification - Is i...