Public Law I JR

Judicial Review

3 underlying principles:

1. The rule of law 

2. The seperation of powers

3. The supremecy of parliament 

Background:

1. Growth in public administration

2. Grown in complexity of the state

3. Growth in concern of protecting citizens (following ECHR and HRA 1998)

Judicial Review?

Judicial review is the oversight of activities of public bodies and how power is exercised by these bodies

Public bodies include: Ministers, government departments, local authorities, councils, immigration bodies etc.

Who grants these bodies the power?: Statute, prerogrative power

Why JR?: Concerned with the legality of the decision and decision making process NOT with merit of decision

What does JR exist under?: Senior Courts Act 1981 (SCA) and Civil Procedure Rules (CPR)

How is JR different?: Courts and Appeals change decisions and reapply law whereas Courts and Review (JR) decide on the validity of the decision but do not make a new decision and do not reapply the law!

Judicial Review...

TWO fold process must take place...

1. Application for leave for judicial review (under section 31 (3) SCA 1981)

2. Substantive hearing (determine merit of case)

The avalability for JR depends on:

Justicaibility:

1. Not justicable if a court lacks the expertise required

2. It is a constitutional matter i.e. political where judges should not intervene

i.e. R (Gentle v Clarke) v Prime Minister 2007: concerned the lawfullness of the government to refuse to hold an inquiry that led to the war in Iraq. Court of Appeal held the matter was NON-JUSTICABLE as it was a matter exlusively for the Executive only! 

Procedural Exclusivity:

Public law vs Private Law:

• Claims for JR can only be brought in the appropriate manner i.e. JR rules not Civil Law which is procedural exclusivity
• Procedural exclusivity is in place to avoid litigation to interfer with the public bods work and to achieve a timely resolution

Case of O'Reilly v Mackman 1983 per Lord Diplock:

Facts: Riots at Hull prison meant that prisoners lost remission of sentences and prisoners sought declaration that decision was null and void.

Decision: House of Lords held matter should have been persued by JR not ordinary legal proceedings as a public authority. Held that should of been brought under the Civil Procedure Rules (CPR). 

PUBLIC LAW VS PRIVATE LAW

Mix of public and private law found in cases and litigant may choose if sue in tort/contract but cannot avoid rules and limitations:

Limitations: 

Private law (tort/contract): 6 years to bring an application from time tort or breach occurred

Public Law: 3 months to bring an application for JR and should be a last resort (detailed in Civil Procedure Rules 54.5)

Rules:

1. Must exhaust all remedies available before bringing a request for JR (i.e. if child expelled from school must look at remedies first then JR, if available that is!)

Who can be reviewed?

• JR is a process in public law and the body to be reviewed MUST be PUBLIC (given by statute or performing a public function)

Who can bring an application?

• The litigant must have SUFFICIENT INTEREST/STANDING to bring an app for JR

When can a JR be brought?

• Abuse of discretionary powers (a. Illegality b. Irrationality)
• Breach of rules of natural justice or fairness (see Council of Civil Service Unions v Minister for the Civil Service 1985)

Outcome/remedies of JR:

• Public law remedies: (quash/set aside/certiorari, prohibitary order/prohibit them/prohibitation, Mandatory order/must do something/compell them/mandamus)
• Private law remedies: (Declaration, Injunction, Damages)

Public Bodies:

Important when deciding if it is a public body:

1. Where does the body get its power to make decisions? i.e. statute etc.

2. Is the body performing a public function? (case law to decide)

1st Case law when deciding number 2:

1. R v Panel on Take-overs and Mergers, ex parte Datafin 1987, per Lloyd LJ

Facts: Panel operated a 'city code' to deal with way that take over bids were managed. Datafin made a take-over bid for Norton. Datafin claimed Norton breached the 'city-code'. Panel dismissed Datafin's complaint. Datafin seeked JR. 

Decision: Lloyd LJ: 'if body is exercising functions with public law consquences then can bring body in reach of JR'.... Decided that Panel WAS a public body!

2nd Case law when deciding number 2:

R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan 1993 per Sir Thomas Bingham M.R. 

Facts: The Jockey Club, incorporated by Royal Charter, responsible for the national regulation and organisation of racing but not statute. Its importance within racing is maintained through the issue of licences and permits by which the club's stewards enter into contracts with racecourse managers, owners, trainers and jockeys, who submit to the club's comprehensive regulatory code, the Rules of Racing. Aga Khan's horse failed a urine test and was disqualified by the club's disciplinary committee for doping.The applicant sought an order of certiorari to quash the committee's decision. The Divisional Court dismissed the application. The applicant appealed.

Decision: Decided Jockey Club WASN'T a public body and the agreement was private law

Subsquent: Suggested that things might be different after the HRA. However, the decision was approved in R (Heather) v Leonard Cheshire Foundation (2001) AND R(Mullins) v Appeal Board of the Jockey Club (2005)

Section 6 Human Rights Act, Section 31 SCA and Public Bodies...

Public bodies are bound by the HRA 1998 and ECHR- excluding Parliament as not pub body and they are supreme!

Section 6 of the HRA states:

6(1): it is unlawful for a public authority to act in a way which is incompatible with a convention right

6(3): Public Authorities include: a. courts or tribunal b. any person certain of whose functions are functions of a public nature

Section 31 of Senior Courts Act 1981 states:

31(3): No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

Sufficient Interest....

• The complexity arises when deciding if someone has sufficient standing
• Various case law for and against sufficient interest scenarios
• If Max runs around declaring Charlotte or Alex do not pay enough tax, does Max have sufficient interest in Charlotte and Alex's tax affairs?

4 cases to remember when deciding sufficient interest:

1. R v Inland Rev Commissioners,ex parte National Fed of Self-Employed&Small Business 1982 (LORD Diplock)

2. R v Sec of State for the Environment, ex parte Rose Theatre Trust (1990)

3. R v Inspectorate of Pollution, ex parte Greenpeace (no 2) 1994

4. R v Sec of State for Foreign and Commonwealth Affairs, ex parte World Development Movement 1995

1. R v Inland Rev Commissioners,ex parte National Fed of Self-Employed&Small Business 1982 (LORD DIPLOCK)

Facts: Inland Rev granted a tax pardon without investigation. Fleet Street Casuals had a casual income and avoided tax. The National Federation claimed JR on grounds that Inland Rev had acted (ultra vires and improper purpose etc). 

Decision: The House of Lords found that the Federation had no standing because of insufficiency of interest and nothing to indicate that the Revenue had acted unlawfully.The requirement that a body had sufficient interest provided necessary protection against abuse of legal process by busybodies and cranks.Whether a body had "sufficient interest" could not always be decided in isolation and should be considered together with the legal and factual context. Standing consisted of a two-stage test: a threshold question at the leave stage as to whether there was a prima facie case; and the merits stage at which the question could be revisited. Lord Diplock's said that rules of standing are "made by judges, by judges they can be changed". He went on to make the much-cited observation that "...it would, in my view, be a grave lacuna in our system of public law if a pressure group, like the Federation, or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped...."

2. R v Sec of State for the Environment, ex parte Rose Theatre Trust (1990) Judge: Schiemann, J.

Facts: The public have no locus standi to seek JR of a decision by the Secretary of State not to schedule a particular monument. Following the discovery of the remains of an historical theatre in the course of development work an application was made to the Secretary of State for the theatre to be listed in the Schedule of Monuments under the Ancient Monuments and Archaeological Areas Act 1979 s.1. The Secretary of State accepted that the theatre was of national importance, but rejected the application on the grounds that the site was not under threat from the developers. 

Decision: dismissing the application for JR, that under the 1979 Act the Secretary of State had a discretion whether or not to schedule a monument and it had not been shown that he had exercised his discretion improperly. The decision made was a governmental decision in respect of which members of the public had insufficient interest to seek judicial review. Nor did the public obtain locus standi by making an application to have a building scheduled and having that application refused, R. v Inland Revenue Commissioners Ex p. National Federation of Self Employed and Small Businesses Ltd [1982] A.C. 617 applied. Gathering of people with common interest is not sufficient for sufficient interest/standing. Decision is a somewhat 'EXCEPTION' but is still influencial!

3. R v Inspectorate of Pollution, ex parte Greenpeace (no 2) 1994, Judge: Otton, J.

Facts: In deciding whether an applicant had locus standi the court should take into account 4 things: the nature of the applicant, its interests in the issues raised, the remedy it sought to achieve and the nature of the relief sought. The company was authorised to discharge radioactive waste from its premises. Greenpeace with 2,500 supporters in the area, sought JR of the decision. Argued that Greenpeace had no locus standi and that under the Radioactive Substances Act 1960 the variations could validly be varied.

Decision: Held, dismissing the application, that Greenpeace did have locus standi but that the respondent had not exercised its powers unlawfully. Greenpeace was a responsible body with a valid interest in the matters raised and a substantial body of support in the area and some of the Greenpeace members lived in the area affected too. R. v Secretary of State for the Environment Ex p. Rose Theatre Trust Co (No.2) [1990] 1 Q.B. 504 not followed). Court did hold that just because Greenpeace granted sufficient interest not all will be granted automatic standing.

4. R v Sec of State for Foreign and Commonwealth Affairs, ex parte World Development Movement 1995, Rose, L.J.

Facts: An organization obtained financial aid from the Secretary of State to construct a hydro-electric power station on the Pergau river in Malaysia despite concerns that this was not a good use of the overseas aid budget as the project was uneconomic and not a sound development project. The World Development Movement, an anti-poverty campaign group, sought JR of the decision to grant aid for the project. The issue was whether the group had standing to challenge the decision.  

Decision: Application granted. It was held that the challenge was a meritorious one that ought to be heard by the courts and that this was to be treated as an important factor when considering whether a group had standing. Further factors that supported a finding that the group had sufficient interest to mount a challenge were the likely absence of any other challenger and the prominent role of the group in terms of the knowledge, expertise and resources to mount a challenge. WDM allowed and a broad approach adopted by the court in comparison to Rose Theatre! Does not overrule Rose Theatre but shows more emphasis on expertise and relativity!

Sufficient Interest/Standing in light of HRA:

Section 7 HRA states:

7(1): a person who claims that a public authority has acted in a way whcih is incompatible with Convention rights may 

a. Bring proceedings against the authority under this Act in the appropriate court/tribunal

b. Rely on the Convention right concerned with any legal proceedings

but only if he is (or would be) a victim of the unlawful act!

WE ARE LOOKING FOR A VICTIM OR SOMEONE WITH SUFFICIENT INTEREST/STANDING

Who qualifies? per the case of:

Council of Civil Service Unions v Minister for the Civil Service 1985,

Lord Diplock

The decision must have consquences which AFFECT the person by two ways:

1. Altering rights or obligations

2. Depriving benefits or advantages

JR is merely policing i.e. depriving and giving!

Lord Diplock's 3 grounds for JR to take place:

1. Illegality

2. Irrationality

3. Procedural Impropriety  (maybe a 4th now = proportionality?)

FIRST GROUND: 1. ILLEGALITY:

A public body acts illegally if it abuses or exceeds it powers by the following:

1. Ultra Vires

2. Mistake of law

3. Abuses discretionary power:

3a. Unlawful delegation

3b. Fettered discretion

3c. Improper Purposes

3d. Irrelevant Considerations

Illegality:

Ultra vires

Ultra vires definition:

Public body acts without legal authority. Wide scope area: Examples of ultra vires illegality:

1)AG v Fulham Corp 1921: statute power to LA to create non commercial wash houses for local residents. LA opened a commercial laundry and court held was beyond its powers!

2)R v Hereford LEA, ex parte Jones 1981: Section 61(1) Education Act 1944 stopped local authority schools charging for individual music tutition and thus precluded fees chargeable.

3)R v Richmond upon Thames Council, ex parte McCarthy&Stone 1992: Local government could not charge for giving pre-planning advice as statute did not grant power.

Mistake of law

Defintion: Mistake of law (not of fact) related to misconstruction of statute: 

• 1. R v Hillingdon London Borough Council, ex parte Puhlhofer 1986: definition of accomodation interpreted by local authority correctly when deciding if 'homeless' whereby parents with 2 kids living in guest house without cooking or laundry facilities.
• 2. R v Home Secretary, ex parte Venables 1998: Secretary of State appealed against a CoA ruling dismissing appeal that his decision to fix a tariff period of 15 years for the detention at Her Majesty's pleasure of V and T following their conviction for murder was unlawful. Had applied the same principles applicable to adult offenders and taken account public concern. V and T cross-appealed. 

Allowed cross-appeals and dismissed appeal (Lord Goff & Lord Lloyd dissenting), term of detention at Her Majesty's pleasure passed under the Young Persons Act 1933 s.53 was not to be equated with a sentence of mandatory life imprisonment passed on an adult offender and different considerations applied. Had a duty to consider whether continued detention was justified and to take into account children's welfare and reintegration into society. Policy was unlawful. Lord Goff; Lord Lloyd: Lord Browne-Wilkinson; Lord Steyn; Lord Hope

3. Abuses discretionary power:

3a. Unlawful delegation

Definition: Getting someone else to make the decision!

1) Barnard v National Dock Labour Board 1953: Court found the Board had behaved unlawfully by delegating power it had no power to delegate to a Port Manager. Suspension of workers null and powers are only delegable if expressly delegable or by statute!

2) R v Admiralty Board of Defence Council, ex parte Couplant 1998: Delegation may be lawful where the public body seeks advice: others can carry out process of investigation!

3) R v Race Relations Board, ex parte Selvarajan 1974: court held investigations of an alleged unlawful racial discrimination could be carried out by staff who advised of findings.

4) Carltona Ltd v Commissioner of Works 1943: Lord Greene MR: Civil servant signed a requisition where Minister had the power. Held that minister cant answer everything!

5) Local Government Act 1972, section 101(1): allows for local authorities to delegate to committees, sub-committee's or any officer of the authority

3. Abuses discretionary power:

3b. Fettered discretion

Definition: for example whereby a public body constrained themselves by creating a list of those who should and shouldn't receive visas and thus not exercising discretion as bound by their own rules. There must be some discretion left and ability to contemplate!

1. R v Port of London Authority, ex parte Kynoch 1919: Port authority framed its discretion by reference to policies. Failed Challenge bought for fettering their discretion as the port could decide how to exercise discretion as long as did exercise discretion

2. British Oxygen Co v Minister of Technology 1971: Dispute about ministers judgement on whether or not particular gas cylinders met statutory definition of industrial plant. Found that a minister may formulate policy or make limiting rule as to future exercise of discretion if minister thinks good admin requires it, provided that minister listens to any applicant.

3. Abuses discretionary power:

3c. Improper Purpose

Definition: Circumstances where a public body is vested with a power for 1 purpose but seeks to use this power for another purpose. 

Example: exercise discretion to license clinics for babies but a public officer needs a baby and no where near his house offering this so licences a clinic near him = improper purpose

1. Padfield v Minister of Agriculture 1968: 'a minister cannot use his discretion as a thwart or run counter to policy and objects of the Act'.

2. R v Secretary of State for Foreign Affairs Ex p The World Development Movement: Section 1 of the Overseas Development and Co-operation Act 1980 empowered the Secretary of State for Foreign Affairs to assign funds for development aid of economically sound projects. Assigned funds to construct a power station in Malaysia which was considered as uneconomic/not sound. The House of Lords held that this was not the purpose envisaged by the statute and therefore exceeded powers.

3. Abuses discretionary power:

3d. Irrelevant Considerations

Definition: Similar to improper purpose. Look at circumstances. Taking into account irrelvant factors that are illegally relevant when exercising discretionary power and abusing!

Example: Health inspector choosing not to license a pizza shop because there is another pizza shop next to it. Exceeds powers and is illegal as irrelevant!

1.Roberts v Hopwood 1925: Poplar Borough Council decided to pay its workers a minimum wage, including the women who were paid the same wages as men. In practice, this meant that the workers were paid above the market rate. While the Metropolis Management Act 1855 permitted the council to pay such wages as it 'thought fit', the House of Lords upheld a challenge to the legality of the council's decision on the grounds that it owed a fiduciary duty to the ratepayers whose rates were paying the wages. The council's decision was also held to be unlawful because it had taken into account irrelevant considerations and "allowed themselves to be guided in preference by some eccentric principles of socialistic philanthropy, or by a feminist ambition to secure the equality of the sexes in the matter of wages in the world of labour" (Lord Atkinson).

2. Irrationality:

Irrationality is problematic as JR is meant to be about process not substance and irrationality requires a look at substance which is what an appeal court case does!

Definition: Holding public bodies to a degree of reasonability. 

1. Associated Provincial Picture Houses v Wednesbury Corp 1948, Lord Greene MR:Cinema whereby under 15 year olds not permitted on Saturdays. Confusion over what reasonableness is, defined as: 'a conclusion so unreasonable that no authority could ever have come to it'. Set down standard of unreasonableness of public body decisions. Accordingly known asWednesbury unreasonableness.Enactment of HRA, judiciary have resiled from strict approach, recognising that in certain circumstances it is necessary for them to undertake a more searching review of administrative decisions

2. Short v Poole Corporation 1926, Warrington LJ: example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. It is so unreasonable that it might almost be described as being done in bad faith.

2. Irrationality:

3. Council of Civil Service Unions v Minister for the Civil Service, Lord Diplock:

'So outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it'.

4. R v Ministry of Defence, ex parte Smith 1996: Court may only interfere where decision is unreasonable, i.e. 'beyond the range of responses open to a reasonable decision maker, the more substantial the interference with HRA, the more the court will require justification'

Proportionality in relation to irrationality:

1. R v Sec of State for Home dept, ex parte Brind, 1991 Lord Ackner: 'no basis at present which doctrine of proportionality can be followed BUT.....

2. R (Daly) v Sec of State of Home dept, 2001: Prisoner challenging new cell search policy. Proportionality held to be the guide to review in cases relating to HRA

3. R (Alconbury) v Sec of State for Environment 2001, Lord Steyn: Keeping Wednesbury reasonableness principle and proportionality separate is unnecessary/confusing

3. Procedural Impropriety

Definition: Review of breach of the rules of natural justice

Right to fair hearing:

1. Ridge v Baldwin 1964: Dismissal of Police CC contrary to rules of natural justice as was not given a proper hearing (trial hearing relied on to dismiss him)

2. Re HK (infant) 1967: rules of natural justice were required when HK was brought into the UK and he was to establish his age of being under 16 so as to avoid being sent back to Pakistan. Officer must give opportunity to satisfy was under 16. On facts, no breach of duty to act fairly!

Oral or Written Hearing: Oral hearings not always necessary:

3. Lloyd v McMahon 1987: Lord Bridge: Councillors should reimburse Liverpool Council for a loss of over £100,000 caused by their misconduct (delay in setting a rate). Accused of wilful misconduct and given opportunity to make written representations which was held by House of Lords as sufficient to meet the needs of natural justice! No oral needed!

Oral or Written Hearing: 

Oral hearings not always necessary:

4. R v Army Board of the defence council, ex parte Anderson: Taylor LJ: Alleged racial discrimination in the army, JR based on unfairness of investigation held. Court held even if oral hearing not always required, a fair opportunity had to be given for a response to material uncovered before a decision could be made.Taylor LJ said that there must be a proper hearing of the complaint in that the board must consider, as a single adjudicating body, all relevant evidence and contentions before reaching its conclusions. It was unsatisfactory that the members should consider the papers and reach their individual conclusions in isolation. The hearing need not always be oral. There could not be an inflexible policy not to hold hearings. The board had a duty to adjudicate on a specific complaint of breach of a statutory right. Except where public interest immunity was established there was no reason why the board should consider material which was withheld from the complainant. Appeal granted. 

2 LEGIT EXPECTATIONS:

1. Procedural: procedure followed before decision made i.e. if a council quickly change for an application form to a lottery system

2. Substantive: relationship between individuals expectation of a substantive right/decision i.e. individual gets what they want if they 'do the right things' i.e. notice given to renew a parking permit but the council change the way they do things without notice. 

Case:

R v North & East Devon Health Authority, ex parte Coughlan 2000, Lord Woolf: Stated that courts will give weight to legit expectations unless other policy reasons. If the lawful promise was induced by a legit expectation of a substantive benefit, the court will decide whether frustrating the expectation is so unfair it is an abuse of power!

Legal Rep:

1. R v Board of Visitors of HM Prison, ex parte Hone 1988: Prisoner charged with disciplinary offence, refused legal rep. Court found against prisoner as looked at circumstances: seriousness, points of law, ability to present case, difficulties & fairness

Cross-Examination:

2. Bushall v Sec of State for the Environment 1981: Motorways plan inquiry but no cross examination of witnesses. Breach of natural justice? Courts found, as with legal rep, very circumstantial based and must look at variety of factors: usefulness/nature/qualifications

Giving reasons for decisions:

3. R v Sec of State for Home Dept, ex parte Doody, 1994: Decisions about length of life sentences. Advice sought whether prisoners could be given reasons 

4. R v Higher Education Funding Council, ex parte Institute of Dental Surgery 1994: Rating and funding dropped for research. No reasons given. Court held reasons not required as peer review and no requirement for feedback and depends on circumstances.

2 Rules against bias: Pecuniary or Non-pecuniary bias:

1. R v Bow Street Metropolitian Stipendiary Magistrate & others, ex parte pinochet: 'no man is to be a judge in his own cause'. House of Lords facing the decision to extradite Pinochet. Lord Hoffman married and his wife was on the board of Amnesty International who were critical of Pinochet and there was a conflict of interest/strong link and Lord Hoffman could be seen as bias and had an interest.

Pecuniary Bias:

1. Dimes v Grand Junction Canal 1852: Lord Chancellor had a shareholding in a company about which he was making a decision. No need for REAL posibility of bias but sufficient where it creates a POSSIBILITY which reasonable person suspects would taint fairness.

Non-Pecuniary Bias:

1. R v Gough 1993, Lord Goff: Brother of defendent was neighbour of juror. Bias? Only if a real danger but less than probability. The court dismissed the accused's claim.

2. Porter v Magill 2002, Lord Bingham: 'whether the fair-minded and informed observer would conclude that there was a real possibility that the trial was biased.

Remedies:

Public Law Remedies:

• 1. Quashing order: most common. Applied to ultra vires. Invalidates 1st decision.
• 2. Prohibiting Order: rare. Prevents illegal action. Situ's where aware of unlawfulness
• 3. Mandatory Order: demands pub bod to perform/compels to exercise power.Used with quashing order.

Private Law Remedies:

• 1. Declaration: States the law and clarifies legal position. Sets out rights without direct effecting those rights. Doesn't apply to hypothetical 'what if' sitatuons
• 2. Injunction: Frequently used. Restrain pub bods from doing wrongful acts. Interim injunctions granted to protect rights e.g. prevent deportation/demolition of building etc
• 3. Damages: £££ ! Can be awarded in conjunction with other remedies. 

1. Public body requirement

2. Sufficient Interest/Standing

3. Grounds for JR (illegality, irrationality/proprotionate, procedural impropriety

4.Remedies

Criticism of current affairs of JR

• The coalition government has mounted a sustained onslaught on British citizens' access to justice.
• The first assault was legislation that more than halved public funding for legal advice on issues that affect the poorest in society such as debt management and housing.
• The second was an attack on employee rights and the introduction of fees for employment tribunals.
• Now, the government is proposing greatly to restrict your right to apply for judicial review
•  It was thanks to judicial review that we found out that Michael Gove had behaved unlawfully in the way he axed Building Schools for the Future.
•  It was thanks to judicial review that we discovered the extent to which the government botched its plans to cut support to solar power.
•  It was because Virgin Trains sought a judicial review of the decision to award the West Coast Mainline franchise to FirstGroup that ministers were forced to bring to light major errors in the way that contract was awarded.

Current ongoings of JR:

• Instead of improving the quality of its decision-making, the fee will rise to £235 from £60. 
• Ministers want to cut the time limit for seeking a judicial review of a planning decision from three months to six weeks. For procurement decisions, you will be timed out after just 30 days. If a public body has been in breach of its duties for an extended period of time, the time limit will run from when it started the breaking the law, rather than from when it was caught. If that gap is more than three months, you will be out of time. More than 60% of oral hearings are successful. 
• The justice secretary, Chris Grayling, argues that the expansion of judicial review in the past three decades is "stifling innovation and economic growth".