Judicial Review

what is judicial review

a set of legal principles governing the exercise of power by public authorities. If a public authority makes a decision in breach of these principles, that decision can be questioned

How does Wade describe judicial review

a supervisory inherent jurisdiction directed on the grounds of legality to the decision of other public functions of public bodies.'

supervisory

the courts exercise a supervisory function rather than an appeal function. The grounds on which the courts will intervene are more limited

inherent

judicial review in the UK is a construction of the common law

directed on the grounds of legality

asks the question: have decision makers gone wrong in law (statute and common law principles)

when is a decision unlawful

if the public body did not have the authority to make that decision, the decision is irrational, or the decision did not follow the fair procedure

JR and parliamentary sovereignty

JR does not overule acts of parliament as courts do not have the power to do this - courts can still interpret a statute on a JR action

functions of JR

1. Legal accountability

2. upholding the rule of law

3. Source of legitimacy

4. Stautory interpretation — determines how wide statutes can be interpreted

5. Protection of the individual against the state

6. Fundamental human rights protection

ultra vires

beyond power

Wednesbury Associated Provincial Picture Houses v Wednesbury Corporation [1948]

Lord Green held that in coming to their decision, decision makers must take all relevant considerations into account and must not consider irrelevant considerations.

Wednesbury Unreasonableness

the decision is so unreasonable that no reasonable authority could ever have come to it

Ridge v Baldwin [1964]

Natural justice/procedural fairness should be the default position whenever an individual is affected by state action — they should know the case against them and be able to put a case forward

Chief Constable should not be dismissed for allegations of corruptions without being given the opportunity to defend himself

Padfield v Minister of Agriculture [1968]

The padfield principle - a public authority exercising discretionary power under a statute must use that power in a way that aligns with the overall purpose and policy of the Act not just their own interpretation.

how does the padfield principle uphold parliamentary sovereignty

if the executive is using its discretion outside of what parliament intends then the court can keep the executive in line

GCHQ 1985

Prerogative powers could be justiciable and reviewable by courts

Lord Diplock's 3 heads for JR

illegality - ultra vires (do they have the power to do what they are doing

irrationality - failing to take relevant considerations into account/considering irrelevant ones

procedural impropriety

R (Unison) v Lord Chancellor [2017]

Judicial review is an essential element for upholding the rule of law

Procedure for JR

1. receive leave from court to apply

2. make an application for JR

When can you bring a claim for JR

when it is personal to you or a matter of public interest

when might leave be refused?

if the courts think it is highly likely that even if the JR succeeds, the decision maker will make the same decision again

what are the 5 remedies

1. quashing order

2. mandatory order

3. prohibiting order

4. injunction

5. declaration

Quashing order

overturns or undoes a decision already made.

prohibiting order

stops a public body from taking an unlawful decision or action it has not yet taken.

injunction

a temporary order requiring a public body to do something or not to do something until a final decision has been made.

mandatory order

makes a public body do something the law says it has to do

declaration

The court can state what the law is or what the parties have a right to do.

what are the two sources for judicial review

1. common law

2. procedural requirements in statutes

instrumental reasons to prioritise procedural fairness

fair procedure has a functional purpose. Allowing individuals to know the case against them and contradict the cases against them contributes to the accuracy of decisions

dignitarian resons to prioritise procedural fairness

we should treat individuals with dignity by allowing them to express their concerns when the government makes a decision that affects their interest

legitimacy reasons to priorities procedural fairness

fair procedure is an important factor in receiving public confidence in decision making

rule of law reasons to prioritise procedural fairness

fair procedure is a part of the day-to-day operations of the rule of law

what are the 4 strands of procedural fairness

1. A fair hearing — 'right to be heard'

2. Decision makers should not be biased and should approach the decision making with an open mind

3. Reasoning must be given for decisions

4. Consultations — when a project is being put forward which could have an impact on several people, they should be consulted

7 aspects of fair proceeding

1. Give proper notice

2. Make available relevant information

3. Consult and/or receive written representations

4. Provide oral hearings

5. Allow legal representation

6. Permit cross-examination

7. Give reasons for the decision

what are the three factors Paul Craig identifies that influence the dose of procedural review

The importance of the interest infringed

The value to the claimant of the addition process right

The cost of providing the additional safeguard

Lord Mustill in R v Secretary of state for Home Affairs ex parte Doody [1994]

Lord Mustill held that procedural fairness is in play whenever a public authority makes a decision, BUT the standard of fairness is flexible and depends on context. HOWEVER, typically fairness requires a person to be able to make representations and be informed of the case beforehand

Prevention of Terrorism Act 2005

The Strasbourg Court held that under the ECHR, you cannot prevent a person from having specific information needed to present an argument as there is a limit on what is required for there to be fair procedure — This only applies in cases where the interest is liberty

Osborn v Parole Board 2013

Lord Reed held that the default position should be an oral hearing rather than a written one when a serious interest is in question

What are three reasons to give the reasons behind decision making

1. Administrative discipline — ensure that there is careful deliberation and consistency

2. Appeal/review — facilitates checks when things go wrong

3. Public confidence

when does a duty to give reasons arise

it is not a general rule that reasons are given for all decisions, but the trend is that reasons should be given, unless there is a good reason not to give reasons

what are the four requirements Lord Woolf gave for a consultation to be proper

1. It has to take place at the formative stage

2. you have to set out the proposals and give sufficient information for people to respond intelligently

3. You have to give adequate time to respond

4. The product of consultation has to be taken into account when the decision is made

intensity of review

the degree of scrutiny a court applies when examining a decision made by a public body during a judicial review process,

when is the intensity of review stronger

when it relates to the fundamental right of an individual

R v Secretary of state for the Home Department ex parte Bugdaycay 1987

when deciding whether to deport someone back to a foreign country, the courts use an intense level of scrutiny

whats the most common reason for JR

the decision maker has not followed the words of the statute

statutory discretion

no criteria for how this should be exercised. Statutes that say a minister "may" do a particular thing means they can exercise their discretion

how is statutory discretion controlled

Wednesbury reasonableness and irrationality

decision makers cannot undermine the policy of a statute

In the Miller I case, it was argued that the government triggering the leave of the EU would undermine the policy of the European Communities Act 1972

example of decision makers undermining the policy of a statute

Fire Brigade Union Case - legislation for compensation for those hurt by criminals was about to be enacted, and the executive used the prerogative power to introduce a different act. This undermined the policy of a statute.

relevancy

there are some things you can imply from the statute that you have to consider.

permisable considerations

where the decision-maker may take a factor into account but does not have to do so

R (Friends of the Earth) v Heathrow Airport Ltd 2020

there are some things which you can imply from the statute that you have to consider and other things you can imply from the statute that you have to exclude

principle of legitimate expectations

where there is a promise given to someone that the government body will act in a specific way or there is a specific practice of doing something, this should be followed unless there are overriding reasons in public interest not to

Mandalia v Secretary of State for the Home Department 2015

there is a policy that applicants have to disclose bank statements, and if they do not, they can be asked for more info - Mandalia did not disclose, and his visa was refused. Overruled by the supreme court as the public officials had a duty to ask for more info

proportionality

a test of whether there is an approximate similarity between the means and ends of the decision makers decision - many are in favour of this instead of the Wednesbury principle

principle of nullity

if a public body's decision is outside the power of the body either because they have not complied with the words of the statute or they have acted irrationally, the decision has not been authorised by parliament and cannot have any legal effect - there is no need for JR as you can just ignore the decision

R (Majera) v Secretary of State for the Home Department [2021]

unless a public decision has been JR proceedings, it has to be complied with as it is still valid - against the principle of nullity

ouster clauses

attempts made within statute to shield decisions from judicial review by setting out it cannot be questioned in court

Anisminic v Foreign Compensation Commission 1969

an ouster clause does not protect unlawful decisions. If a public body misinterprets the law, its decision is invalid and can still be reviewed by courts.

JR in the Miller II case

There was a question of whether prerogative powers were justiciable as there are no legal frameworks to decide whether they are lawful or unlawful - held that ignoring parliamentary sovereignty and ministerial accountability made the decision to prorogue justiciable