Grounds for judicial review


Excess/absence of power

Basic principle is that a public body acts unlawfully if it does something which is outside the 'four corners' of the powers conferred by statute governing the particular matter. If simply never had the power to do what it did. In most cases involves a claimant arguing that the public body has made an error of law by misinterpreting what its powers are and this gnerally boils down to a debate about what the statute properly interpretated allowes.

i) different approaches to statutory interpretation- a) the literal rule/ approach- the desire to give effect to the intention of Parliament as is expressed in the actual words of the legislation. Sometimes said must be given their actual meaning and that it is the constitutional duty tof courts to give effect to statute in this way. eg Lees v Sec of State for Social Services 1985. 

b) the purposive approach- the true intention of parliament is not always expressed adequately in the words themselves, perhaps because the legislature cannot foresee every situation.- Le Sueur Public Law. R v Sheffield Supplementary Benefits Appeal Tribunal ex parte Shine 1975. 

ii) conflict between the approaches- disputes about which interpretation is needed in what situations. 'A court may only depart from plain/natural meaning if words in issue are unclear/ambiguous.' Some argue that the literal rule is the basic rule and a purposive approach should only be used as above.

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Interpretation approaches

Duport Steels v Sirs 1980 Diplock 'where the meaning of the statutory words is plain and unambiguous it is not for the judges invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they consider the consequences of doing so would be inexpedient, or even unjust or immoral.' 

Other view- the courts may depart from the plain/natural meaning even if the meaning of words are clear but the clear meaning will lead to an absurd/perverse result. A less strict version of this is if the literal/natural meaning of the words leads to an absurdity that parliament can not possibly have intended to result. Shine. 

Another view- true meaning of words is only discoverable from the entirety of the statutory context in which they arise, therefore in order to discover what Parliament truly meant/intended words must be interpreted consistently with the statute in which they appear, reading the statute as a whole. Least literal/ most purposive and liberal. The true meaning of words lies in their context of the statute, not simply the narrow linguistic meaning of the words in dispute. There is no need for ther term in issue to be ambiguous and doesnt need to lead to absurdity. DPP v Bull 1994. 

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Interpretation approaches

iii) no particular approach identified- simply decides the wrong legal test was applied- sometimes the correct meaning turns on the fact that the judge takes exception to the particular interpretation adopted by a decision maker, without identifying which rules of interpretation are being adopted or even giving a defintion of the term but rather concludes that the approach by the decision maker wasnt right. R v Social Fund Inspector ex p Connick 1994. 

vi) which materials may the court rely on when interpreting statutes? the purposive and literal approach rely on examination of the statute itself to derive what the intention of parliament is. When can they rely on other material eg comments about the legislation when it was being debated in parliament? Traditional rule is that statements made in the course of parliamentary proceedings may not be used. This is the general rule but Pepper (Inspector of Taxes) v Hart 1993 provided an exception. In Pepper v Hart set out the limited circumstances in which reference to parliamentary record was allowed. Only where a) the legislation was ambiguous or obscure, or led to an absurdity and b) material relied upon consisted of one or more statements by a minister or other promoter of the bill together, if necessary, with such other parliamentary material as might be necessary to understand such statements and their effect and c) the effect of such statements was clear. There is some difference of opinion on how to apply these conditions and whether restrictions on parliamentary record for interpretation are justified or sensible. 

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Interpretation approaches

Nonetheless it is probably correct to see the conditions in Pepper as a limited exception to a general rule. OFTEN USED WRONGLY BY STUDENTS. The conditions above must be met  and mere difference of opinion between claimants and defendants about meaning of a statute doesnt necessarily mean its ambiguous as to allow Parliamentary statements. 

Law or fact? 

1) basic principles- disputes about whether the decision being objected to turns on either the question of law (the correct interpretation of a statute) or issue of fact (whether the facts upon which the decision were taken did or did not fit the law. All questions of law are reviewable matters.  This is important as the role the courts take when carrying out judicial review is whether decision maker did or did not make an error of law. However the role of the courts isnt generally to engage in assessment of facts, since that is the function parliament has given to the decision maker. 

Most decisions by public authorities involve a) deciding what the law means/is b) considering the individual fact situation and c) applying the law to the facts/ facts to the law to arrive at a decision. A is a matter for judicial review, B is normally a matter of law and so is also for judicial review and C is a matter for decision maker, not the courts. 

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Law or fact

Every question of law is a matter for the courts (Anisminic v Foreign Compensation Commission 1969) however the assessment of the facts relevant to any particular public decision/exercise of power is a matter for the decision maker empowered by Parliament to make the decision. Consider R v South Hams District Council exp Gibb 1995 and R v Social Fund Inspector ex p Connick 1994. 

Is he really arguing i) that the public body has incorrectly misinterpreted the law? or ii) that the decision maker should have concluded that the facts of his or her situation came within the particular interpretation of the law the decision maker has adopted?

If i) then the court must determine whether the correct legal interpretation had been applied, if not properly applied then decision was unlawful. ii) court is much less likely to intervene as getting in volved with factual assesment itself. Asking court to take the role Parliament gave to the decision maker. 

More complex situations- some cases involved mixed 'law and fact' or 'fact and degree'- R v Industrial Injuries Comissioner ex p AEU (no 2) 1966, R v Hillingdon LBC ex p Pullhofer 1986 and R v MMC ex p South Yorkshire Transport 1993.

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Law and fact

In these cases the court is very reluctant to interfere unless the decision is Wednesbury unreasonable. Pullhofer 1986- Brightman said that where the case involves decision about a matter which 'involves a broad spectrum ranging from the obvious to the debatable, to the just concievable, it is the duty of the court to leave the decision... to the public body whom parliament has entrusted the decision making power save in the case where it is obvious that the public body, consciously or unconciously, are acting perversly.' 

In Ex parte South Yorkshire Transport Mustill said legal criterion 'may itself be so imprecise that different decision makers each acting rationally might each make different conclusions when applying it to the facts of the case. In such a case the court is entitled to substitute its own opinion for that of the person whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational' (wednesbury unreasonable)

2) exceptions- matters of fact the court will review- happens with a) precendent facts- a body acts in excess of its powers if it makes errors of precedent fact or b) fundamental error/mistake of objective material fact- if it does this it acts in excess of its powers.

a) precedent facts- one which 'triggers' the public bodys functions- establishes authority to act. Statute imposes a condition precedent to the exercise of the bodys powers.

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Precedent fact

The condition precedent must exist before the public authority has the power to act. Arguing the law requires the fact to exist in an objective verifable snese, in order for the decision maker to have authority to act. The court must decide if the decision makers factual assesment is correct.

How can one distinguish between a factual matter which is to be left to the decision maker and one which a court will treat as a precedent fact? A cynical argument would be that the courts categorise them as precedent facts when its not a legal issue but they want to get involved anyway. Judiciary say that the basis upon which they decide them is Parliamentary intention. They say its implicit in statute that parliament considered the existence of fact in an objective verifiable sense, to be condition precedent on the decision makers authority to act. 

Factors effecting decisions on these matters (arguments not rules)- i) forms of negative statutory construction- where the statutory power is accompanied by express words prohibiting the performance of specified acts, where certain factual circumstances exist the courts may treat the existence or non existence of X as precedent fact- White and Collins v Minister of Health. Not a strict rule,the argument is that the construction is indicative of Parliamentary intent that the existence of fact is central to the decision makers authority to act.

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Precedent fact

ii) the nature of the decision making exercise- some courts have examined this with a view to deciding whether the factual assessement undertaken by the decision maker would be treated as precedent fact. Often involves considering whether the court or decision maker is better qualified to make the decision. R v SoS for Home Dept ex p Zamir 1980 and R v SoS for Home Dep ex p Khawaja 1984. 

b) a body acts in excess of its powers where it makes a fundamental factual error/mistake about an objective material fact- not something which is debateable. R v Housing Benefit Board Of LB of Sutton ex p Keegan 1995- where the error was treated as species of wednesbury unreasonableness to an extent. More recently been a trend towards seeing fundamental errors of fact as a freestanding ground of review E v SoS for Home 2004 CoA said 'in our view the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point on law.' Must have been mistake, must have been established, and the appellant must not have been responsible for the mistake. Mistake must have played a material part in reasoning. 

Relates to situations where the decision maker makes a mistake which is not dependant on matters of opinion/evaluation/judgement, and it is possible to provide clear and unambigious evidence that contradicts the objective factual matter relied on by decision maker.

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Precedent fact

It is important to stress the sort of 'fact' at issue is not one which depends on judgement/ evaluation. In Montes and Anor v SoS for Home Dept 2004- CoA said 'the extent to which a mistake of fact can amount to an error in law for the purposes of founding an appeal on a point of law, was recently considered by the court in E.. the principle articulated in this court was closely and carefully circumscribed. This needs to be emphasised. If the principle is applied too broadly there is a real danger that this will lead to an unacceptable conflation of errors of law with errors of fact. It is necessary to maintain the distinction since this court cannot entertain appeals on fact. That is why in E the court stated that it was necessary, but not sufficient condition for mistake of fact giving rise to unfairness as a separate head of challenge in an appeal on a point of law, that the mistake should be one as to fact or evidence which is relevant as well as uncontentious and objectively verifiable.'

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