Judicial Review Essay Notes - Shorter PDF

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Entire essay structure considering all aspects of judicial review, all key concepts and case law...

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Judicial Review – Part 1 Definition –  Judicial Review is procedure by which the courts ensure that those exercising governmental power do so lawfully.

Scope/Jurisdiction –  ‘For a decision to be susceptible to judicial review the decision-maker must be empowered by public law’ as held by Lord Diplock in the GCHQ case.  The Court has jurisdiction to judicially review public law power regardless of its source as held by Lloyd LJ in the Datafin case – ‘If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may… be sufficient to bring the body within the reach of judicial review.’

Procedural exclusivity –  It is not simply the case that judicial review can be used to challenge the exercise of public power. In actual fact, the position is much stronger than this: with a few exceptions, if you wish to challenge the exercise of public power you must do so by judicial review.  This is known as procedural exclusivity and originates from the case of O’Reilly v Mackman  Exceptions – o When the public law matter is raised as a defence  Wandsworth v Winder  Boddington v British Transport Police o When the matter is a mixture of public and private  Roy v Chelsea and Westminster Family Practitioner

Permission Stage –  Judicial Review is a two-stage process – The permission stage and the substantive hearing stage.  The permission stage is simply that. A claimant applies to the court for permission to continue with their claim for judicial review, but if the court refuses, then the claim cannot proceed.  This was formally known as the ‘leave’ stage under Section 31(3) Senior Courts Act 1981. 1

 More recently it can be found under Part 54.4 of the Civil Procedure Rules stating “The court’s permission to proceed is required in a claim for judicial review”  The rationale behind this is to root out cases that are weak or unarguable and therefore should not proceed because they have an unrealistic prospect of success.  In most cases, the permission stage will be made without a hearing; the judge will simply consider the claim on the basis of the claim form and the defendant’s written response  Section 84 of the Criminal Justice and Courts Act 2015 states that the courts must consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and if this is not the case the courts must refuse to grant leave, however this rule may be disregarded if the court considers it is appropriate to do so for reasons of exceptional public interest.

Time Limit –  In order to bring a claim under judicial review, the claimant must comply with the time limit under Part 54.5 of the Civil Procedure Rules, which states the claim must be brought promptly or in any event within 3 months of when the grounds to make the claim first arose  If a case fails to meet this time limit, it may be rejected at permission stage or a remedy may be refused at the substantive hearing.  Even if brought within 3 months the courts may still rule that the claim has been made with undue delay if they consider that it has not been made promptly as stated by Section 31(6) Senior Courts Act 1981 and seen in the case of R v Swale Borough Council, ex parte Royal Society for the Protection of Birds  However, courts have recognised that they may extend the time limit beyond three months where they think there is good reason to do so, as was stated in the case of R v Dairy Produce Quota Tribunal for England and Wales, ex parte Caswell

Sufficient Interest –  The claimant must also be held to have sufficient interest before their claim will be allowed to proceed, as required by Section 31(3) Senior Courts Act 1981.

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o The sufficient interest requirement is sometimes referred to as a claimant having “standing” or in older cases ‘locus standi’ o The rationale of this requirement is to filter out busybodies, trouble-makers or cranks  In the past, a claimant would not have sufficient interest to mount a challenge unless they had a direct pecuniary interest or an interest over and above the rest of the public.  However, the courts have developed a more relaxed test because there is a danger that unlawful government action will go unchecked by the courts. o This new approach can be seen to be used in the Fleet Street Casuals case. This is the view that if it is obvious that a claimant does not have sufficient interest, then this should be dealt with at the permission stage; but if it is not obvious then the claim should be allowed to proceed to full hearing and the sufficient interest issue examined again in the legal and factual context.  The reputation, expertise and resources of the body bringing the challenge may be a relevant factor in deciding whether it has sufficient interest. And the likely absence of another responsible, or wellresourced, claimant may be a relevant factor when deciding whether a claimant has sufficient interest as the courts will be keen to ensure that unlawful government action does not go unchecked – Demonstrated in the Greenpeace and World Development Movement cases

Judicial Review – Part 2

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Grounds for Judicial Review –  The grounds for judicial review are classified under three heads set out by Lord Diplock in the GCHQ case. These are Illegality, Irrationality and Procedural Impropriety.

Illegality –  Illegality, as a ground for judicial review, can be divided into two broad meanings, which can then be sub-divided again later on. o Illegality in the first sense – where the body exercising the public power exceeds its power, misunderstands the extent or its power or otherwise acts contrary to what is required of it by law o Illegality in the second sense – where the body exercising the public law power abuses its discretion.

Illegality – First sense  Those exercising public power will act illegally if they: o Exceed the power given, for instance;  By using it for a purpose other than that for which it was given  By attempting to raise revenue without lawful authority o Misunderstood the extent of their power o Otherwise act contrary to law Exceeding power –  A body will exceed its power if it uses it for a purpose other than which it was given – o Attorney-General v Fulham Corporation  A public body will act illegally if it attempts to raise money without lawful authority because this will be viewed as unlawful taxation – o Congreve v Home Office + Woolwich Equitable Building Society v Inland Revenue Commissioners Misunderstanding the extent of their power –  A body will act illegally if it misunderstands the extent of their power – o R (Shields) v Secretary of State for Justice Otherwise acting contrary to law –  A public body may also be held to be acting illegally if it acts contrary to its legal requirements in any way. Such as – o A body acts contrary to the requirements of EU law or 4

o If it breaches or acts in a way that is incompatible with a Convention right

Illegality – Second Sense  Those exercising public power will act illegally if they abuse their discretion by acting contrary to a number of rules developed by the courts governing the use of discretionary power: o Failure to exercise o Fettering of discretion o Unlawful delegation of discretion o Relevant/irrelevant considerations o Improper purpose Failure to exercise –  Failure to exercise discretion – o R v Secretary of State for the Home Office, ex parte Fire Brigades Union and others  Discretionary power is never unlimited – o Padfield v Minister of Agriculture Fettering of discretion –  Those exercising a discretionary public power must not fetter their discretion – o British Oxygen Co. Ltd v Minster of Technology – o Must not adopt a hard-and-fast rule, to effect; shut their ears. May adopt a policy, but must be prepared to depart from that policy in appropriate cases. Unlawful delegation –  Generally speaking, when a discretionary public power is conferred on one body, it will be unlawful for that body to delegate its exercise to another – o Vine v National Dock Labour Board  However, some delegations of power will be assumed to have been intended by Parliament – o Carltona case – Intend delegation to minister’s officials Relevant/irrelevant considerations –  A decision-maker must take into account all relevant considerations and discount all irrelevant considerations, what is relevant or irrelevant may be governed by statute – o R v Somerset County Council, ex parte Fewings 5

Improper purpose –  When an Act of Parliament grants a discretionary public power, the courts assume that Parliament intends the power to be exercised in accordance with the overall policy and objects of the Act – o Padfield v Ministers of Agriculture  Those exercising public power will also be found to have acted illegally if they exercise it maliciously or in bad faith – o Wheeler v Leicester City Council

Irrationality/Unreasonableness –  Irrationality = Unreasonableness  The most famous formulation of unreasonableness comes from the Wednesbury case: Lord Green MR: “If a decision on a competent matter is so unreasonable that no reasonable authority could ever come to it, then the courts can intervene”. o Backhouse v Lambeth LBC – Council increased rent on one uninhabited property by £18,000 a week to save it having to increase rents on council properties generally. Held: Decision was found to be unreasonable. Looks so wrong it must be unlawful.  Proportionality o An action will be disproportionate if it is not proportionate to the objective it seeks to achieve. For instance, if the police engaged in a 24-hour surveillance operation in an attempt to catch someone committing a very minor crime then the infringement of the suspect’s privacy would be disproportionate to the objective: to detect a minor crime. o Proportionality is a principle in the law of many European countries and is part of EU law and the European Convention on Human Rights. It will therefore come into play in judicial review when an issue of EU law, or under the Human Rights Act 1998, arises.

Procedural Impropriety  A Body exercising public power acts with procedural impropriety if it fails to follow an appropriate procedure as required by statute or the common law. 6

Procedure required by statute  An Act of Parliament giving a body a public power may specify certain procedural requirements that should be met in the exercise of that power. For instance, it may require that before a decision is made, the body should: o Consult with certain parties, or o Give notice of a decision in a particular way (e.g. notice in a local newspaper), or o Notify those affected of a right of appeal  If a body is required to consult by mandatory procedural rules in statute and fails to do so, the decision may be invalidated or the decision may not apply to the non-consulted parties – o Agricultural, Horticultural and Forestry Training Board v Aylesbury Mushrooms Ltd  Consultation must be a genuine invitation to contribute to the decisionmaking process – o R v Secretary of State for Social Services, ex parte Association of Metropolitan Authorities –  Sufficient information supplied  Sufficient time given to give/receive advice  Genuine receipt of advice

Procedure required by common law: natural justice and fairness  The common law procedural requirements are sometimes referred to as the rules of natural justice or, in modern times, the duty to act fairly.  There are two broad rules of natural justice: o Audi alteram partem (hear the other side): Those affected by a decision should be given a chance to influence the decisionmaking process, to put forward their case. o Nemo judex in causa sua (no man a judge in his own cause): Those exercising a decision-making power should be free from bias.  The duty to act fairly encompasses the rules of natural justice and may require one or more of the following: o Those affected by the decision are permitted to make representations – written or oral depending on the situation; 7

o Those affected by a decision are informed of the case against them; o Those affected be given an adequate chance to prepare their case; o Those affected by the decision are given a chance to crossexamine witnesses; o Those affected by a decision are entitled to legal representation; o That reasons are given for a decision.  Precisely what fairness requires in any particular case depends is an intuitive decision which depends upon context, circumstances and the seriousness of the consequences for those affected – Doody case  The following two cases are very well known and give some idea of the requirements of fairness in different situations. o Ridge v Baldwin – Chief Constable not informed of any details of dismissal decision or given an opportunity to present his case. o McInnes v Onslow-Fane –  Revocations – right to notice and right to be heard  Applications – only under a duty to consider it honestly and without bias, no such rights, rarely a right to be heard  Renewal – closer to revocation

Rule against bias – nemo judex in causa sua  The rule against bias is sometimes referred to as nemo judex in causa sua or ‘no man a judge in his own cause’. In essence the rule requires that those who have something to gain or lose from a decision, or may otherwise appear less than impartial, should not make the decision. Actual Bias –  Actual bias will automatically invalidate a decision – o However, it will rarely be possible to establish actual bias and so we are often talking about whether the appearance of bias is such that the decision should be invalidated.

Apparent Bias –  There are three types of apparent bias o Pecuniary interest 8

o Party to the case o Other cases of apparent bias Apparent Bias – Pecuniary interest  An apparent bias because of a direct pecuniary interest in the decision will usually automatically disqualify it – o Dimes v Grand Junction Canal Proprietors – The Lord Chancellor held shares in the company. Apparent Bias – Party to the case  If a decision-maker is a party to the case, or has a personal or professional relationship with a party to the case, then that will usually automatically disqualify the decision made – o R v Sussex Justices, ex parte McCarthy – A solicitor representing a client in a civil case against McCarthy also acted as a clerk to the justices in a criminal case against him on the same matter. o R v Bow Street Metropolitan Stipendiary Magistrate and other, ex parte Pinochet Ugarte (No. 2) – One of the Law Lords was a director of Amnesty International who made representations in the case. Apparent Bias – Other cases of apparent bias  In cases where the apparent bias will not automatically invalidate a decision, the question arises as to how we determine whether the appearance of bias is such that the decision in question should be nullified. o Porter v Magill – Lord Hope: ‘The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.’

Legitimate Expectation  If those exercising a public power prompt a belief that it will be exercised in a particular way, then the courts may prevent that body from exercising its power in a different way. o Express promise –  AG of Hong Kong v Ng Yuen Shiu – Illegal immigrant not given chance to present his case as promised. 9

 R v Secretary of State for the Home Department, ex parte Khan – Home Secretary used different criteria as promised when deciding to grant adoptions from abroad. o Previous course of conduct –  GCHQ case – Previous course of conduct on had given rise to a legitimate expectation that the union would always be consulted before changes to employment conditions (However overridden by national security concerns).  In some circumstances, there may be a legitimate expectation of a substantial benefit, rather than something procedural, which it would be unfair to disappoint – o R v North and East Devon Health Authority, ex parte Coughlan – The court considers;  The importance of the expectation to those relying on it  How many people are relying on it;  The consequences to the authority of honouring the promise.

Remedies  If a claimant wins her claim for judicial review, the court will grant one or more of a number of remedies, including: o A quashing order – in which the court quash the decision made; i.e. the decision would be voided, as if it had never been made; o A mandatory order – the court orders the defendant to act in a particular way; o A prohibiting order – the court orders the defendant not to act in a particular way; o A declaration that the action complained of was unlawful; o An injunction; o Damages – only if they would be available in a claim in private law

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