Judicial Review Flashcards

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Whose Decisions are Subject to JR? (Per Lord Diplock)
“For a decision to be susceptible to JR the DM must be empowered by public law” (common law, prerogative, or statute) if his decisions, validly made, would lead to administrative action (or the lack of) by those with executive powers dictated by law
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Who Can Challenge on JR Grounds? (Per Lord Diplock: Someone who has been affected in the following manners...)
1. Altering the rights/obligations of A (which are enforceable against him in private law) 2. Removing a benefit or advantage which he (A) had in the past (and legitimately could expect to keep) or had received assurance would not be touched
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3 Grounds of JR
1. Illegality (DM's must be able to locate their powers) 2. Irrationality (Wednesbury Unreasonable) 3. Procedural Impropriety
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Ultra Vires
"Beyond the Powers" - Judges can strike down decisions as they are not authorized. Baxter (1984) says similar to courts normal role
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Prerogative Orders
1. Quashing order (certiorari): quashes an unlawful decision of a public authority 2. Prohibiting Order: prohibits a proposed [unlawful] act by a public authority 3. Mandatory Order (mandamus): compels a PA to perform a certain actions
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Two Times Prerogative Orders Cannot Be Used
- Cannot be granted against the crown, but they can be granted on individuals ministers of the crown - Cannot be granted against delegated legislation
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Other Remedies
Injuctions (Prohibitory/Mandatory/Interim) (S21 Crown Proceeding Act 1947 doesn't allow use on crown). Declarations are very flexible. Discretionary Damages
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Porter v Magill Principle
the question is whether the fair-minded and informed observer having considered the facts, would conclude that there was a real possibility that the tribunal [et al] was biased.”
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Interests that Lead to Automatic Disqualification
1. Where the DM is a party to the case (Lord Browne-Wilkinson’s’ “a man cannot be a judge in his own cause” (ex p Pinochet Ugarte (No. 2) [2000]) 2. DM cannot have financial or proprietary interest in outcome (Dimes v Grand Junction Hotel [1852]
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When is an Independent Decision Maker Required?
Article 6(1) ECHR: “In determination of his civil rights and obligations or of any criminal charge against him. Everyone is entitled to a fair and public hearing within reasonable time by an independent and impartial tribunal established by law”.
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Curative Principle
House of Lords (Albert and Le Compte v Belgium [1983]) have stated that requirement of an independent decision maker is satisfied when even if the minister who himself is not independent of the executive can b review by a “court full of jurisdiction"
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3 Features of Right to be Heard
1. Unbiased Tribunal 2. Right to Notice of Charges .3 Right to be heard in answer to those charges
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Must be allowed to state your case
Errington v MoH [1935
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Must be given opportunity to prepare your case
Ex P Polemis [1974]
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Right to Legal Representation
Ex P Tarrent [1985]
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Ultra Vires Case
AG v Fulham [1921] - built a municiple laundrey when only allowed a self service one... also exceeing statutory powers includes: acting in bad faith, misinterpreting issues/facts, acting wrongly)
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Improper Purpose (Must use all powers for purpose they were granted)
Congreve v HO [1976] (cannot remove TV license to raise money), If DM acts on more than one purpose, the principle one is decided upon R v ILEA [1986]
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PB's must base conclusions on the evidence in front of them
Coleen Properties v Minister of Housing [1971]
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Non Delegation Principle (Unless explicitly stated by the legislation, discretionary powers are to be exercised by those whom they are prescribed too) 3 reasons
1. It reflects parl. intention – if a specified agency has been given the power to take a decision clearly parliaments will should prevail. 2. They are intuitionally qualified to act having been chosen by parl. 3.Allows the DM to be held accountable
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Non Delegation Cases
Barnard v National Dock Labour Board [1953] which sets the general rule. High v Billings [1903] reflects the real power ruling and the automatic adoption rule is found in Lavender and Sons Ltd v Minister of Housing and Local Government [1970]
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Non-Fettering Principle
Ministers are not allowed to adopt rigid rules which fetter the exercise of a discretion.. (but as long as the minister shows he will depart from his rule in exceptional circumstances the policy is lawful (British Oxygen Co Ltd v MO Tech. [1970]
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LE's 2 methods of arising
undertaking must be “clear, unambiguous, and devoid of relevant qualification” (R v Inland Revenue, ex p MFK) or inferred from past conduct GCHQ [1985}
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LE Defences
Begbie, whereby if someone has a legitimate reason to depart from a promised principle (here a general election manifesto) they may be excused. It is not possible to have an LE if you have no knowledge of the representation (R (Rashid) v SS Ho Dep.
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Wednesbury unreasonable
Greene (Wednesbury [1948]: “so unreasonable that no reasonable authority could ever have come to it” Diplock (GCHQ): “which is so outrageous in its defiance of logic or of accepted moral standard that no sensible person” could’ve reached it
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Proportionality Questions (R Alconbury v SS of Envir. Trans. and Regions [2003])
1. Has a protected interest been compromised? 2. Legitimate Aim? 3. Was compromise necessay? 4. Adequate relationship of prop. from harm caused to objective reached?
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Proportionality Cases
Only EU/HRA. Steyn said intensity is higher in R (Daly) and Taggert said only useful in rights based cases
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Promises create LE's
EX P Liverpool Taxi Fleet [1975]
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Don't have to give reasons for decisions/ unless appears to defy logic
EX p Beniam and Khaida [1970] / Ex P Murray [1998]
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Backhouse v Lambeth LBC [1972]
18K rent on unoccupied house unreasonable case
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Card 2

Front

Who Can Challenge on JR Grounds? (Per Lord Diplock: Someone who has been affected in the following manners...)

Back

1. Altering the rights/obligations of A (which are enforceable against him in private law) 2. Removing a benefit or advantage which he (A) had in the past (and legitimately could expect to keep) or had received assurance would not be touched

Card 3

Front

3 Grounds of JR

Back

Preview of the front of card 3

Card 4

Front

Ultra Vires

Back

Preview of the front of card 4

Card 5

Front

Prerogative Orders

Back

Preview of the front of card 5
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