Judicial Review 1

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  • Created by: pinderj
  • Created on: 14-02-18 20:33

R v Panel on Take-Overs and Mergers, ex p Datafin

Prior to Datafin 1987 – bodies that exerted statutory powers were subject to JR claims. Changes with the nature of govt. in 1980s (Thatcher). Courts reassess in Datafin.

Business self-regulatory à similar to stock exchange (regulate corp. takeovers). Datafin broke the code of practice and complained to the panel. Panel didn’t agree. Datafin took Panel to courts. Panel argued “we can’t be liable for JR as we have no statutory powers or underpinning”. CA decided in favour of Datafin. Now focus on à “PUBLIC ELEMENT” IN ITS ACTIVITIES. No precise definition of this. Panel was performing a public function in objectively regulating business.

Public element test subsequently applied.

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O’Reilly v Mackman [1983]

Prisoners raised claim (private law action) proceedings against the prison authorities for poor treatment – but it was argued that they should only be able to apply for judicial review. The prison establishment was clearly a public body – went to the HoL. Lord Diplock’s ‘Exclusive principle’: if you wish to assert public law rights against public bodies, then you must now use JR proceedings. 

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Wandsworth LBC v Winder [1985]

Wandsworth LBC bought a private law action to evict Winder after he refused to pay increases in rent. Could Winder assert a public law right in the defence of a private law claim? Yes. Not trying to win the case (point of law etc). Only the express words of a statute may limit someone’s rights; however there was no infringement so on the merits of the decision, the Council succeeded in their claim.

What about if you are prosecuted by a public authority and seek to raise public law rights?

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Boddington v British Transport Police [1998]

1962 Act provides for the creation of local bylaws. A local bylaw prevented smoking on trains (where there was a sign indicating that it was prohibited). Boddington was arrested for such an act. Prosecuted by British Transport Police. Issue: Was public law right available as a defence? He argued that the SE train operator had acted ultra vires to ban smoking in all carriages in the South East. Lord Irving à unless express words in a statute allow you to raise a public law defence, then you can do. Only the express words of a statute may remove such a right. Nevertheless, the bylaw in question was not made ultra vires.

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R v Inland Revenue Commissioners, ex p National Fe

Fleet Street newspapers avoided paying income tax on temporary workers by paying the workers in cash and giving them false names on accounts.

HMRC negotiated that if the newspapers stopped this unlawful practice, they would only request the previous 2 years of income tax to be paid, rather than the 6 years which statute required. This agreement was leaked to the public.

Issue: Could the National Federation of Self-Employed (who felt aggrieved) bring a judicial review claim to review the lawfulness of the decision not to act in accordance with the law and demand 6 years’ income tax? Inland Revenue claimed that they couldn’t because they didn’t have a sufficient interest.

Decision: Permission denied, mandatory order could not be made.

Reasoning: Lord Wilberforce: when considering whether an applicant has sufficient interest, look at the powers of the public body, the position of the applicant re those powers and the substance of the breach. The second consideration caused the claim to fail; tax agreements are confidential therefore, despite their leaks, no ‘sufficient interest’ could be found.

Lord Diplock (dissent): no test, could can just use discretion; clear words of statute (sufficient interest). Case-by-case basis.

-        Lower courts then developed further criteria.

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R v Secretary of State for the Environment, ex p R

A campaign group (the Rose Theatre Trust) wished the secretary of state to prevent build works on the site of the historic Shakespearian Rose Theatre site. Developers developed plans to preserve ruins – but there would still be office blocks above them. After receiving advice from English Heritage saying it wasn’t necessary he environment secretary refused the group’s request to designate the site, pursuant to statutory powers (under Ancient Monuments Act 1979), a site of historic significance, which would prevent building works.

The group incorporated and bought a judicial review claim against the decision not to designate the site?

Issue: Did the campaign group have sufficient interest to bring the claim?

Decision: No, permission denied.

Reasoning: Incorporation does not increase standing; if no individual member has standing, the group altogether will not have standing. Although a legal or financial interest is not required, not every person can enforce a public duty – not simply a discretionary matter for the courts to decide. ENGHISH HERITAGE DID HAVE SUFFICIENT INTEREST – YET THEY DID NOT WANT TO BRING A CLAIM.

Cane, “Statutes, standing and representation” [1990]

-        Argued that the High Court should be more accepting of campaign groups as having sufficient interest.

Sir K Schiemann: legislation should provide who does/doesn’t have sufficient interest à don’t blame me/blame parliament.

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/R v Inspectorate of Pollution and another, ex par

Research showed that prior to the case that men were predominately full time workers and women predominately part time workers. It was therefore inferred that it was discriminatory to women for redundancy protection to require 2 years of full time employment in comparison with 5 years required in part time employment. The equal opportunities commission claimed judicial review on this inference

-        Issue: Was such a requirement discriminatory with regards to EU law

-        Decision

-        Yes

-        Reasoning

-        Parliament subsequently changed the law without consulting any official EU bodies

Greenpeace – expertise. Lost on merit, but recognised the standing of GP.

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R v Secretary of State for Foreign and Commonwealt

British govt. wanted to improve relations with Malaysia.

-        Thatcher was successful with this. When on a visit, offered them £millions in overseas aid for a hydroelectric power scheme.

-        Cost rose.

-        English law: overseas projects could only be funded when economically viable.

-        Cost rose – becoming unlawful.

-        However, if the govt. stopped funding the scheme, then relations with Malaysia would be worsened.

-        World Development Movement argued that the Sec of S for Foreign Affairs argued that the cut to funding was unlawful.

-        WDM = British charity. Sought a JR challenge.

-        Lawyers of Foreign Sec argued that WDM had no standing – no sufficient interest. High Court objected – importance of vindicating the rule of law, importance of issue raised, likely absence of any other responsible challenger (who else out there had the right to bring this case), prominent role of the group in giving advice to Govt on aid matters (recognised as an expert body).

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