Judicial Review

Permission

Begin with courts permission under s 31(3) of SCA, must show arguable case with chance of success

1. Standing (sufficient interest)

2. Scope

3. 3 Month Time limit

4. Insufficiently arguable case

5. Effective alternative remedies

6. Premature

Grounds

1. Illegality

   1. Error of law/fact

   2. Improper purpose

   3. Irrelevant considerations

   4. Fettering of decision

   5. Unlawful delegation of power

2. Irrationality

   1. Wednesbury Unreasonableness

3. Procedural Impropriety

   1. Right to fair hearing

   2. Rule against bias

   3. Duty to give reason

4. Legitimate Expectations

   1. procedural or substantive

   2. Ultra vires promises

5. Human Rights Act s 6

   1. Convention rights

   2. proportionality standards

Remedies

1. Quashing order

2. prohibiting order

3. mandatory order

4. declaration

5. injunction

6. Damages (HRA)

Rights test

1. Was defendant exercising ECHR right?

2. Did public authority interfere with that right?

3. Was the interference ‘prescribed by law’

4. Was interference pursuing a legitimate aim?

5. Was it necessary in a democratic society?

   1. opens proportinality test

Proportionality test

1. Is the legislative objective sufficiently important to justify limiting the fundamental right?

2. Is the measure rationally connected to the objective?

3. Could a less intrusive measure achieve the same objective?

4. Has a fair balance been struck between the individual's rights and the community's interests? (Narrow proportionality / proportionality stricto sensu)

Sufficient interest cases

1. Fleet Street Casuals - standing is "acutely case-sensitive," requiring a balance between preventing frivolous litigation and allowing genuine challenges, now enshrined in s31(3) of the Senior Courts Act 1981

2. World Development Movement - allowed pressure groups standing to represent public interests, even without direct personal impact

3. Rose theater trust - public interest campaigners need more than general citizen interest. The trust was formed for this litigation specifically

4. Greenpeace - expertise of org allowed for sufficient interest

Scope cases

1. bodies exercising statutory or prerogative powers are within the scope - no case

2. Datafin - non-statutory bodies can also be amenable, using two tests: (1) the functional "but for" test — would the state have to regulate this area if the body did not exist? and (2) an institutional test — how closely is the body connected to government?

3. Aga Khan - where a body's power derives purely from contract and adequate private law remedies exist, it falls outside judicial review entirely

4. Aston Cantlow - HRA test: public funding, exercise of statutory powers, substituting for central/local government, and providing a public service

5. YL - showed the majority preferred a narrow reading (commercial profit motive = private)

6. Weaver - A privately constituted body performing functions sufficiently integrated into state provision (public subsidy, statutory regulation, nomination rights, former local authority stock) can be subject to judicial review and HRA obligations in respect of those functions. The private law/contractual source of a power does not automatically make its exercise a private act.

   Contrast with: YL v Birmingham CC [2007] — where the HL majority held a private care home was not a public authority, taking a more restrictive approach.

Error of law/fact cases

1. Law - Anisminic: CC's misinterpretation of the eligibility criteria as a jurisdictional error rendering the decision a nullity, it paved the way for the principle that all errors of law are jurisdictional and reviewable

2. Fact - E v Home Secretary: Error of fact causing unfairness that is 'uncontentious and objectively verifiable', & R(A) v Croydon LBC: some facts are "jurisdictional facts," whether someone is a child is a hard jurisdictional fact for the court; whether a child is in need involves evaluative judgment

Improper Purpose cases

Has the decision-maker used their discretionary power for a purpose consistent with what Parliament intended when it granted that power?

1. Padfield: broadly worded discretionary powers must be exercised consistently with the policy and objects of the Act

2. WDM: the statutory purpose sets the outer boundary of vires. it is for the courts, not the Secretary of State, to determine whether conduct falls within the statutory purpose

3. Corner House: The House of Lords held that taking national security threats into account was a lawful consideration, even though it led to halting a corruption investigation

Irrelevant considerations cases

1. Padfield: What is relevant or irrelevant is determined by construing the statute — always a question of law for the court, where a decision-maker gives no reasons, courts are more willing to infer that irrelevant considerations were taken into account

2. Corner House: courts will be deferential where the decision-maker is balancing genuinely competing public interest considerations

3. Venables and Thompson: public clamour is an irrelevant consideration in a quasi-judicial sentencing decision

Fettering of decision cases

Fettering means a decision-maker has stopped genuinely deciding — either by rigidly following a pre-set rule without considering individual circumstances, or by giving away or surrendering the decision to someone else.

1. British Oxygen v Minister of Tech: the policy must never be applied with a closed mind — the decision-maker must always be genuinely willing to hear an exceptional case and depart from the policy if good reason is shown.

2. Corner House: surrendering to external pressure is fettering if no exercising judgement is shown

Irrationality cases

1. Wednesbury: Broad sense — a decision is unreasonable if it involves taking irrelevant considerations into account, ignoring mandatory relevant ones, or misdirecting in law, Narrow Sense — a decision is so outrageous that no reasonable authority could ever have come to it, used when decision does not interfere with rights

2. GCHQ: a decision "so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it

3. Smith 1996: Anxious scrutiny — lower threshold where rights engaged, but still Wednesbury-based and still inadequate, used if HRA does not apply. Courts ask for more justification from the authority the more substantial the interference with human rights, used when decision interferes with rights

Legitimate expectations

1. Finucane: (1) there is no requirement of detrimental reliance — the claimant need not show they changed their position in reliance on the promise; (2) even where a legitimate expectation exists, it can be lawfully defeated if the public authority makes a bona fide decision on genuine policy grounds not to adhere to the original promise

2. Coughlan: Three categories - A) The expectation is a relevant consideration, Wednesbury applies B) The expectation requires consultation before it is defeated C) a public authority has made a clear, unambiguous and specific promise to a small and identifiable group, and frustrating that promise would be so unfair as to amount to an abuse of power ← Pam Coughlan is C

Human Rights JR cases

1. Smith 1996: art 8 and anxious scrutiny

2. Daly: Landmark case confirming proportionality as the applicable test where Convention rights are engaged

3. Huang: Under proportionality the court substitutes its own judgment on whether the interference with the Convention right was justified, courts do not defer to public authorities expertise, only consider it in decision

Right to fair hearing cases

1. Cooper v Wandsworth: The common law supplies a right to be heard even where statute is silent

2. Ridge v Baldwin: Natural justice applies to administrative decisions affecting rights, not just judicial ones

3. Doody: Fairness is contextual — what it requires depends entirely on the circumstances

   1. Where a statute confers an administrative power, there is a presumption it will be exercised fairly in all circumstances.

   2. Standards of fairness are not immutable — they change over time.

   3. Fairness is not applied identically in every situation — the context of the decision, including the statutory framework, shapes what fairness demands

   4. Fairness very often requires an opportunity to make representations before the decision is taken

   5. Since a person cannot make worthwhile representations without knowing the case against them, fairness often requires disclosure of the gist of that case.

4. AF No 3: There is an irreducible minimum of procedural fairness — the gist of the case must always be disclosed where serious consequences follow, even for national security

Rule against bias

1. Pinochet (No 2): (Actual Bias) Automatic disqualification applies where a judge has a direct interest in the outcome — financial or otherwise

2. Porter v Magill: (Apparent bias) The test for apparent bias is whether a fair-minded and informed observer would conclude there was a real possibility the tribunal was biased

3. Runa Begum

4. Alconbury

Duty to give reason

1. Doody: A duty to give reasons arises where it is necessary to enable effective challenge of the decision

2. Cunningham: A free-standing duty to give reasons can arise where the decision appears aberrant and explanation is required for the claimant to assess its lawfulness

3. Oakley: The law may be moving toward a general duty to give reasons, subject to justification for not doing so, reverses burden - it must be proven there is no need

Types of expectation

(1) Procedural protection of a procedural legitimate expectation — you expected a procedure, court requires that procedure to be followed.

(2) Procedural protection of a substantive legitimate expectation — you expected a benefit, court requires a hearing before the expectation is defeated.

(3) Substantive protection of a substantive legitimate expectation — you expected a benefit, court requires the benefit to be delivered.