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JUDICIAL REVIEW NOTESCan the claimant make a claim for JR?1. Does the claimant’s claim raise Public Law Issues?a. Issues relating to the wider public interest/relationship between state and individual.b. Procedural exclusivity – if claimant is seeking to enforce public law rights, should do sovia JR...

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JUDICIAL REVIEW NOTES Can the claimant make a claim for JR? 1. Does the claimant’s claim raise Public Law Issues? a. Issues relating to the wider public interest/relationship between state and individual. b. Procedural exclusivity – if claimant is seeking to enforce public law rights, should do so via JR procedure not ordinary civil procedure i. O’Reilly v Mackman – four prisoners charged with disciplinary offences which was found null & void by private law writ. Found for the Board due to it being contrary to public policy to enforce public law rights via ordinary actions. ii. However, if a claim involves a mix of private and public rights, the public claim may be raised in private proceedings - Roy v Kensington Family Practitioner Committee iii. A public law issue can also be raised as a defence in private law proceedings, i.e. collateral challenge iv. civil - Wandsworth London Borough Council v Winder & criminal – Boddington v British Transport Police 2. Is the defendant a public body? a. Apply the Datafin two-part test – i. Source of power – was body set up under statute/del leg? ii. Nature of power – does the body exercise public law functions? b. Same applies for Convention breaches – Beer v Hampshire Farmers Market held public authority and public body are synonymous. 3. Does the claimant have sufficient interest? a. Must have sufficient interest as stated under s31(3) Senior Court Act 1981 i. R v Inland Revenue Commission ex p The National Federation of Self Employed and Small Businesses Ltd – claimant must be directly and adversely affected by the matter. b. For pressure groups, consider; i. Ex p World Development Movement five factors – importance of the matter, likely absence of another challenger, the need to uphold the rule of law, role of the pressure group and the nature of the alleged breach of duty. c. For human rights breaches, must satisfy s7 HRA 1988 and be a ‘victim of an unlawful act’. 4. Is there a time limit? a. S31(6) SCA 1981 – court may refuse a claim if there has been ‘undue delay’ b. Civil Procedure Rule 54.5 – must file ‘promptly’ within a maximum of 3 months but for planning cases, 6 weeks and for public procurement, 30 days. i. Can still be rejected even if filed within 3 months – Finn-Kelcey ii. Can exceed 3 months when awaiting legal aid/there is difficulty obtaining evidence/other justified reasons – Jackson iii. Courts will not accept applications where there has been ‘undue delay’ even where there has been an error of law – ex p Caswell 5. Are there any Ouster Clauses? a. Complete ouster clauses are effectively meaningless because decisions that are ultra vires are nullities and not protected – Anisminic v FCC b. Partial ouster clauses will be tolerated by the courts and they have no discretion to extend them in instances of time limits for JR – ex p Ostler CCSU v Minister for the Civil Society – Lord Diplock identified 3 grounds for JR – illegality, irrationality and procedural impropriety

Substantive Grounds for Judicial Review – Illegality & Irrationality Illegality Where an action goes beyond the limits and powers defined by the statute (CCSU) Acting without Legal Authority  Acting ‘ultra vires’ i.e. beyond the scope or in excess of legal power/authority.  Where a public body acts in a way that the relevant power/statute does not legitimise.  R v Richmond-upon-Thames LBC ex p McCarthy and Stone – McCarthy and Stone were developers who had a meeting with the LBC before applying for planning permission. They were then charged for an informal consultation. They argued they could under s111 Local Government Act. House of Lords found that the charge was ultra vires due to a lack of power to do so. Rule Against Delegation  Decision making powers, once given by Parliament cannot be further delegated/sub-delegated o Vine v National Dock Labour Board – Dock Labour Board given power to take disciplinary action. Committee then dealt with Vine and terminated his employment. House of Lords found the decision was void because the power could not be subdelegated a committee.  Exceptions to the Rule Against Delegation o Carltona Principle – when a Government Minister sub-delegates decision-making powers to civil servants in his department o S.101 Local Governments Act 1972 – local authorities may discharge their functions by committee/subcommittee/officers/other LA when they make formal resolution to do so. Fettering of Discretion  Public bodies may not fetter (restrict) their discretion they have been given by Parliament by either o Acting under the dictation of another – eg. Lavender & Sons Ltd v Minister of Housing & Local Government – consulted another Minister for the issue, and rejected their application based on his concerns. Had therefore fettered his discretion by not opening his mind to their application. o Formulating a general policy as to exercise of discretion. They may not formulate general policies that restrict their ability to consider individual cases – eg. British Oxygen v Minister of Technology – Lord Reid – ‘one must always be willing to listen to anyone with something new to say’ Errors of Law  All errors are in principle reviewable and amenable by judicial review.  Anisminic v FCC – FCC had a statutory responsibility to consider compensation claims for companies which suffered loss as a result of war damage but they had to be UK subjects. Anisminic was British but had to sell to an Egyptian business during the 1956 Suez Crisis and their claim was rejected. House of Lords held that the purchaser was not a successor in title = error in law. Error of Fact  ‘Non-jurisdictional’ errors of fact are not usually amenable to judicial review o Ie. those that go to the root of a public authority’s capacity to act. o Ex p Khawaja – non-jurisdictional errors of fact are only reviewable if based on ignorance of an established fact. Taking irrelevant factors into account/failing to take relevant factors into account  Must disregard irrelevant considerations and consider the relevant when making decisions and exercising powers.  Roberts v Hopwood – Council paid staff generous salaries. Found they had considered socialist philanthropy and feminist ambition and failed to consider the burden on ratepayers.  Padfield v Minister of Agriculture – took into account the political embarrassment of a Minister which was irrelevant. Decision based on an improper/unauthorised purpose  Where a public body acts for ends not provided by Parliament, such as a raise in their revenue o Congreve v Home Office – TV license fees – HO threatened to revoke licenses if they didn’t pay extra £50. CoA found for Congreve that HO did not have the power do so and increasing revenue was not the purpose of the powers.  Where a decision is based on a proper and improper purpose (dual) the court should consider;

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Westminster Corporation v LNWR – test which was the primary purpose? The decision should stand if the primary purpose was the proper one. R v ILEA ex p Westminster City Council – ‘Was the authority pursuing an unauthorised purpose, which materially influenced the making of its decision?’

IRRATIONALITY 

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Successful challenges require proof of a very high degree. Test for unreasonable stems from this Wednesbury Corporation case which provided the test; o A decision must be ‘so unreasonable that no reasonable authority could ever come to it’ o ‘Wednesbury unreasonableness’ It was then further restriction by Lord Diplock in CCSU as being ‘so outrageous in its defiance of logic or accepted moral standards that no sensible person…could have arrived at it’. It is possible for public authorities to fail the irrationality test o Wheeler v Leicester City Council – Lord Roskill used the term Wednesbury unreasonableness instead of irrationality. More recent application of the test – R (DSD) v Parole Board – challenge to board’s decision to release ‘black cab rapist’ on parole. Court held it to be irrational that the board did not inquire further about re-offending.

Procedural Grounds for Judicial Review – Procedural Impropriety Steps leading to the decision and the circumstances surrounding the decision. Many procedural requirements are found in the statute (procedurally ultra vires) other requirements stem from common law ‘procedural fairness’. PROCEDURAL FAIRNESS – RULES OF NATURAL JUSTICE   

Developments of the rules of natural justice has led to some controversy as they are common law rules, created by the judiciary. Parliamentary supremacy requires that the legislature should make the law, not the judiciary, who are unelected. Fairmount Investments Ltd v Secretary of State for Environment – the rules of natural justice must be complied with.

The Rule Against Bias  Is the bias direct or indirect?  DIRECT o if bias is direct, the court is obliged to quash and then reconsider the decision. Direct bias is;  Where an interest leads to financial gain - Dimes v Grand Junction Canal Proprietors  Where the decision-maker is involved in promoting the SAME CAUSE as the party in the case – ex p Pinochet Ugarte  INDIRECT o If indirect, for the decision to be quashed, the court must consider the Porter v Magill test.  Would a fair-minded and impartial observer conclude that there had been a real possibility of bias?  Whether the bias did affect the decision is not immaterial – how the decision would appear to an observer – applied in R v Barnsley MBC, ex p Hook The Right to a Fair Hearing  There is a duty in decision-makers to act in good faith and listen fairly to both sides o Board of Education v Rice  Claimants should know the case against them and have the right to reply o Fairmount Investments  Claimants entitled to a fair hearing which is fair and reasonable in all the circumstances

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o Lloyd v McMahon HOWEVER, the concept of fairness if flexible and varies depending on the category of the case McInnes v Onslow-Fane Forfeiture Case o Where the claimant is deprived of something he previously enjoyed, eg. Job/livelihood o The standard of fairness expected from a hearing is high and the rules of natural justice must be strictly applied. o Ridge v Baldwin – Chief Constable of Sussex & others accused of conspiracy to obstruct the course of justice. Others found guilty but he was acquitted. Despite this, he was dismissed. Due to having a lot to lose, he was therefore entitled to know the case against him. Law Lords declared the decision that dismissal was unlawful. Legitimate Expectation Cases o Procedural Legitimate Expectation  Where a decision maker has failed to follow the normal procedure.  R v Liverpool Corporation ex p Liverpool Taxi Fleet Operators – promised they would be consulted if any further taxi licenses were issued. Issued more without consultation. They had a legitimate expectation that the Council would honour their undertaking.  R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government – legitimate expectation that the Sec of State would provide reasons for refusing to call in a planning application. o Substantive legitimate expectation  Where the decision-maker has led someone to believe they will receive a benefit.  R v Secretary of State for the Home Department ex p Asif Khan  Coughlan  Substantive legitimate expectation cases limited to undertakings directed to individuals/small class of people  R (Niazi) v Secretary of State for the Home Department. Application Cases o where the claimant seeks for the first time a license/membership/office. The standard of fairness expected is much lower – McInnes v Onlsow-Fane – board only required to act honestly and without bias. Limitations to the Right to a Fair Hearing o There is no right to seek JR if the decision is preliminary and not final – Lewis v Heffer – Labour staff were suspended, not fired. o There is no legal duty for public bodies to give reasons for their decisions - R (Hasan) v Secretary of State for Trade and Industry o However there are exceptions to these limitations;  Where a decision appears aberrant (Cunningham) – was dismissed from prison service and so applied for civil service appeal board for compensation. The usual award was £15k but he was awarded £6.5k – court ruled should give reasons where a decision appears wrong.  Where the impact on a person’s rights and personal liberty is serious and the public interest requires so – (ex p Doody) o Claimants have no legal right to a full oral hearing. But the claimants are entitled to;  A hearing which is fair and reasonable – Lloyd v McMahon – may require an oral hearing depending on the circumstances – Osborn v Parole Board  May require cross examination of witnesses – R v Hull Prison Board of Visitors ex p St Germain No 2  Claimants must have an opportunity to explain their conduct if they are an ‘accountable’ public servant

PROCEDURAL ULTRA VIRES: VIOLATION OF IMPORTANT STATUTORY PROCEDURES  

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When deciding whether requirement is mandatory or directory, the court will consider whether Parliament would have intended the consequences of non-compliance to invalidate decision and render it unlawful – R v Soneji They consider whether; o 1. The wording of the statute suggests a need for full or substantial compliance. o 2. There has been a failure to substantially comply (if there has been some attempt to comply, this may amount to substantial compliance – Coney v Choyce – plans for 2 Catholic schools to become comprehensives. S13(3) stated they had to give notice in the newspaper, conspicuous places and at the main entrance. Court found in favour of the authority due to non-compliance being a directory requirement – if found to be directory, will not quashed. o 3. The procedural safeguard is an important safeguard o 4. The claimant has suffered substantial prejudice If the requirement is mandatory, decision will be quashed – Bradbury v London Borough of Enfield – failed to give notice regarding major school reform and tried to justify this on the basis of educational chaos. Considered to be a mandatory requirement = quashed.

BREACH OF CONVENTION RIGHTS  

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Under s6(1) HRA 1998, public authorities must act compatibly with the Convention rights (unless there is a conflict in a UK statute). Where a qualified right is breached used the Marper ECHR test; o Is the interference prescribed by law? o Is the interference in pursuit of a legitimate aim? (s1 of article) o Is the interference necessary in a democratic society? (s2 of article) ie. proportionate.  Apply Bank Mellat proportionality test;  Is the objective of the measure complained of sufficiently important to justify limitation of fundamental right?  Is the measure rationally connected to the objective?  Could a less intrusive measure have been used?  Has a fair balance been struck between the rights of the individual and the rights of the community? If considering whether there is a breach of Article 1 Protocol 1 (property) apply Bank Mellat without qualified right conditions.

REMEDIES  

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Remedies are discretionary (s31(6) SCA 1981) Public law remedies o Quashing Order o Prohibiting Order – order to refrain from illegal action. o Mandatory Order – enforce performance by bodies. Private Law remedies o Declaration – confirming but not changing the legal position of parties. o Injunction - stop. o Damages  S31(4) SCA 1981 – damages awarded where the claimant is seeking other relief and damages could have been awarded in a civil claim. The claimant must have a private law cause of action.

PROCEDURE  

Pre-action protocol – claimatnt should send a letter to the deicison maker asking them to reconsider and wait 14 days for a reply. Permission Stage – courts will consider whether the claimant has sufficient interest/is within the time to make a JR claim. Usually without oral hearing.

S31(30) SCA court is not to grant permission if the outcome is unlikely to have been different if conduct complained of had not occurred. Substantive Hearing in administrative court – usually on point of law. o

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