Judicial Review

Standing

  • Standing requires claimant to demonstrate that there is some reason why he/she is entitled to challenge a decision by way of judicial review.
  • Section 31(3) of the Senior Courts Act [1981]: - 'No application for judicial review shall be made unless… the applicant has a sufficient interest in the matter to which the application relates’.
  • R v Independent Broadcasting Authority - television license holder found to have sufficient interest in the broadcasting of programmes likely to give offence.
  • Pressure groups able to claim, e.g. Greenpeace allowed to challenge decision relating to a nuclear power station as it had members living in that area.
  • Where a group has been formed to challenge a decision that does not directly concern its members, it will not have sufficient standing (Rose Theatre Trust).
  • The rationale for standing:
    • Prevents courts from being bogged down with litigation cases;
    • Those without a material connection will not be effective advocates (i.e. lack evidence/experience);
    • Prevents 'judicialisation' of political decisions simply because people are aggrieved about a decision/policy in a generic way.
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Public body/function

  • In order to bring a claim for judicial review, must establish that the decision being challenged is that of a public body or a body exercising a public function.
  • Public bodies refer to ministers (i.e. Secretary of State), government agencies (i.e. Department of Education) or bureaucrats (i.e. Home Office casework) and statutory authorities (i.e. Office for Students).
  • Range of bodies that are not government authorities but have a ‘hybrid’ identity, e.g. could include private hospitals, banks, independent schools and sporting associations.
  • Factors to consider:
    • Delegation of public powers;
    • Extent of government control;
    • Origins of the body.
  • In the Datafin case – the CA considered the Panel of Take-Overs and Mergers to be performing a public duty when administering the Code of Conduct, so its actions are amendable to judicial review.
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Justiciability

  • Must have a judiciable case before you can proceed to the substantive grounds of judicial review.
  • Justiciability refers to whether courts can and should determine a particular matter.
  • Justiciability can relate to normative matters (relevant legal criteria) or institutional matters (competence of the court to resolve the issue).
  • Normative - prior to reviewing a decision, the court must be satisfied that there is a legal issue to resolve – normative.
    • E.g. in Miller, some justices in the UK Supreme Court considered whether the royal prerogative (which the government argued was its source of power to trigger Article 50) was justiciable.
  • Institutional - refers to whether or not courts are the appropriate venue to adjudicate a particular matter.  Relates to the separation of powers and how each branch of government has a specific institutional role.
    • E.g. GCHQ established the question of whether national security outweighs duty of fairness is for the Government and not for the courts.
    • Carlile - distribution of powers have been modified by the Human Rights Act 1998. Any allegation that a person's Convention rights have been infringed is necessarily justiciable. Section 6 of the Act requires public authorities, including the courts, to give effect to those rights. 
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Procedural Impropriety

  • First referred to by Lord Diplock in his judgement in the GCHQ case.
  • Used to explain a public authority acted unlawfully by committing a serious procedural error.
  • Refers to two-established rules of natural justice: rule against bias (nemo judex in causa sua) and duty to hear the other side (audi alteram partem).
  • Duty to hear the other side - Ridge v Baldwin: police officer dismissed without notice of case against him or opportunity to be heard - decision void as violates rules of natural justice.
    • Oral hearings not always necessary - Lord v McMahon: councillors should reimburse Liverpool Council for loss of over £100,000 due to misconduct.  Held that they should be given opportunity to make written representations.
  • Rule against bias:
    • Actual bias - taken to exist where the decision-maker is (1) influenced by prejudice or (2) actually prejudiced in favour of of against a party.
    • Apparent bias - centred on question whether 'the fair-minded and informed observer, having considered the facts, would conclude there was a real possibility of bias' (Peter v Magill).
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Illegality

  • Definition - decision-maker must correctly understand the law that regulates his decision-making and give effect to it.
  • Acting outside their power - Fulham Corporation empowered by Baths and Washhouses Acts to establish washhouses and baths so residents would have facility to wash their clothes.  However, Corporation established a laundry service.
  • Failure to fulfil a statutory duty - R v Camden LBC - Equality Act meant council had a duty to hear housing applications, but they weren't hearing them because they were too restrictive when they were open.
  • Breach of Fiduciary Duty - Roberts v Hopwood - council had acted unreasonably by referencing a matter they ought not to have taken into account and excluded elements which they should have (i.e. duty to tax payer).
  • Error of law/fact - court will quash decisions where authority has misunderstood legal term or incorrectly evaluated a fact.  R v Secretary of State for Home Department: individuals had to be illegal immigrants before Home Secretary could expel them - not illegal immigrants so took Home Secretary outside his jurisdiction.
  • Irrelevant considerations - Leicester City Council banned a rugby club from using its ground because 3 of the club's members intended to go on tour in South Africa at the time of apartheid.
  • Improprer purpose - London Education Authority used its powers to inform the public to convince them of their political beliefs.
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Irrationality

  • Irrationality or Wednesbury unreasonableness refers to court’s ability to intervene if a decision was ‘so unreasonable that no reasonable authority could ever have come to it.'
  • Wednesbury Corporation had powers under the Sunday Entertainments Act 1932 to grant licenses to allow picture houses to open on Sunday subject to ‘such conditions as the authority should think to impose'.  The authority introduced a condition that no children under the age of 15 should be admitted to Sunday performnances.  This condition was unreasonable and as a consequence, it extended the scope of the statutory authority and was thus ultra vires.
  • Alternative conception: reasonableness as a balancing test (Nehushtan 2017) – according distorted weight to relevant considerations thus striking a distorted balance between them.
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Proportionality

  • Proportionality works on the assumption that administrative action ought not go beyond that which is necessary to achieve its desired results.
  • If measures are considered to have caused more harm than good in reaching a given objective, they are liable to be set asides.
  • Proportionality is recognised in EU law - B v Secretary of State for the Home Department it was found that the Home Secretary's decision to deport the appellant was disproportionate because EU law guaranteed freedom of movement within the EU and the appellant's previous criminal convictions (i.e. sexual assault) could not in themselves 'constitute grounds for [deportation]'.
  • Proportionality is also recognised as a freestanding ground of review under the Human Rights Act, e.g. in R (Daly) v Home Secretary - prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. Policy had been introduced because officers had been intimidated by the presence of prisoners.  The policy went beyond what was necessary, and was a disproportionate interference in the prisoner’s right to respect for his correspondence.
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Legitimate Exp

  • A legitimate expectation will arise when a person or persons has been led by a policy or promise of a public body to understand that certain steps will be followed in reaching a decision.
  • Considerations of legitimate expectations:
    • When an individual or a group has been led to think that certain steps will apply.
    • When an individual or a group relies on a policy which governs an area of past executive action.
  • R v Liverpool Corporartion - council limited number of taxis in an area to 300.  Applicants were assured by the Council that they would be informed if there was a change to this policy, but later increased the number without consultation.  Court held that although determination of the number of licenses was a policy matter for the council, the court intervened on the basis that the council had not acted fairly.

 

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