Judicial Review

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  • Created by: K98
  • Created on: 26-05-17 15:58
Introduction
Purpose - ensure that the government does not act beyond the power (ultra vires) given to it by Parliament. However, there is a limit to the courts power meaning that the court can only assess the legality of the decision and not its validity.
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What are they trying to challenge? (Russa)
Russa is trying to challenge the decision of the Minister under section 2 of ‘the Act’ to order the cull of all red squirrels within 5 miles of any urban area, and the felling and burning of any tree found to contain red squirrel drey.
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What are they trying to challenge? (Timmy)
Timmy wants to challenge the action of Bannertail Ltd, under the power given to them by the council under section 3 of ‘the Act’, who have seized all his animals.
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Preliminaries - Time Limit
In order to bring a claim, it needs to be within the three month time limit, although the court has some discretion
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Preliminaries - Time Limit (Russa)
No time frame is mentioned in the question and therefore more information is needed in this area. However, if Russa wants to bring a claim it would need to be within three months.
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Preliminaries - Time Limit (Timmy)
No time frame is mentioned in the question and therefore more information is needed in this area. However, if Timmy wants to bring a claim it would need to be within three months.
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Preliminaries - Public Law Matter
To bring a claim for judicial review, the matter needs to be a one of pubic law – Datafin case
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Preliminaries - Public Law Matter (Russa)
The matter is one of Public law because the Minister was given the power to make such a decision through an act of Parliament.
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Preliminaries - Public Law Matter (Timmy)
This is a matter of Public Law because the power conferred on Bannertail Ltd by the council, originated from an act of Parliament.
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Preliminaries - Standing
To bring a claim for Judicial review the claimant must show that they have sufficient interest in the matter, for example if it directly affects them - Senior Courts Act 1981, 31(3).
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Preliminaries - Standing (Russa)
Russa can also claim because although the decision did not directly affect her, she can claim as a member of a pressure group (‘BRSPS’) that has a long-standing interest in the area in question – Ex Parte Greenpeace (No.2)
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Preliminaries - Standing (Timmy)
The government policy directly effects Timmy because under the legislation he has had his animals confiscated along with his computer and other records. Therefore, he has ‘sufficient interest’ in the issue and can bring a claim.
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Preliminaries - Exclusion Clauses
Section 2 of the Act is an attempted to oust the jurisdiction of the court, using an exclusion clause – “No decision of the Minister shall be questioned in any court of tribunal”.
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Preliminaries - Exclusion Clauses (Russa)
Unless Parliament expressly bans Judicial review the court will read in the word “lawful” to any exclusion clause. This means that the clause will not stand. - Anisminic
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Preliminaries - Exclusion Clauses (Timmy)
The exclusion clause is irrelevant when dealing with Timmy’s claim because the exclusion clause only covers the decision of the Minister and not the decisions or actions of Bannertail Ltd.
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Grounds for Judicial Review
Lord Diplock (GCHQ case) - Illegality, Irrationality and Procedural Impropriety
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Grounds for Judicial Review - Illegality (Russa)
Irrelevant Considerations – Ex Parte Venables – “Minister has refused to read the research findings” of the BRSPS, but did take into consideration the newspaper reports.
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Grounds for Judicial Review - Irrationality (Russa)
Could be argued but this would be hard to prove on the facts of the case, and there are no notable human rights violations.
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Grounds for Judicial Review - Illegality (Timmy)
Classic – AG v Fulham Corporation (Bannertail Ltd did not have the power to remove animals) Contrary to the Purpose of the Act – Padfield v Minister of Agriculture (Bannertail Ltd taking all the animals from Timmy’s sanctuary was for another reason)
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Grounds for Judicial Review - Irrationality (Timmy)
Could be argued but this would be hard to prove on the facts of the case. A potential human rights violation would lower the threshold.
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Remedies
Public Prerogative Orders - Quashing order, Mandatory order or Prohibiting order. Private Law - Injunction, Declaration, Damages
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Remedies (Russa)
Interim Injunction, Quashing order, Prohibiting order, Declaration
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Remedies (Timmy)
Interim Injunction, Mandatory order, Prohibiting order, Declaration, Damages (Human Rights)
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Other cards in this set

Card 2

Front

Russa is trying to challenge the decision of the Minister under section 2 of ‘the Act’ to order the cull of all red squirrels within 5 miles of any urban area, and the felling and burning of any tree found to contain red squirrel drey.

Back

What are they trying to challenge? (Russa)

Card 3

Front

Timmy wants to challenge the action of Bannertail Ltd, under the power given to them by the council under section 3 of ‘the Act’, who have seized all his animals.

Back

Preview of the back of card 3

Card 4

Front

In order to bring a claim, it needs to be within the three month time limit, although the court has some discretion

Back

Preview of the back of card 4

Card 5

Front

No time frame is mentioned in the question and therefore more information is needed in this area. However, if Russa wants to bring a claim it would need to be within three months.

Back

Preview of the back of card 5
View more cards

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