Law and Government Judicial Review

CCSU v Minister for the Civil Service (GCHQ)

- Prerogative powers are amenable to judicial review

- Judicial review has come to such a stage where we can describe the grounds fitting under 3 heads:

- Illegality

- The decision maker must understand the law regulating his decision making power correctly and give effect to it

- Irrationality

- The standard here is ‘Wednesbury Unreasonableness’ (See Associated Provincial Picture Houses Ltd v Wednesbury Corp)

- A decision that is 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

- Procedural Impropriety

- A failure to observe basic rules of natural justice, failure to observe procedural rules expressly laid down in legislation or failure to act with procedural fairness towards the person to be affected by the decision

R (Quintavalle) v Secretary of State (Statutory Interpretation)

The courts role is to give effect to Parliament’s purpose, within the confines of interpretation

R (O) v SoS for the Home Department (Statutory Interpretation)

- The words which Parliament had chosen to enact are the primary source by which meaning is ascertained

- External aids do not displace the meanings conveyed by words, where the words are clear and unambiguous/do not produce absurdity

Carltona Ltd v Commissioner of Works

The duties imposed upon Ministers can be exercised under the authority of the Minister by responsible officials of the department, while the Minister remains responsible

R v Somerset County Council, ex parte Fewings

- Creatures of statute can only act on positive law, they need positive approval for acts

- Legislation cannot be without a purpose, the Court will always strain to find a purpose where it’s not plain

R (Christian Concern) v SoS for Health and Social Care

Judicial review proceedings are to determine lawfulness of the decision, nothing else

R v Richmond Council, ex parte McCarthy and Stone Ltd

Creatures of Statute can only act on positive law

Jackson v AG

Acts of Parliament cannot be judicially reviewed, except in extreme cases that would undermine the Rule of Law, such as abolishing judicial review

R (Cox) v Oil and Gas Authority

The Courts will defer to the judgement of specialists where statutory language is broad, and where there is only one decision maker

Chandler v DPP

- Prerogative powers are amenable to judicial review

- The policy of an elected government can’t be challenged just because it’s disliked

Anisminic Ltd v Foreign Compensation Commission

- Any error of law made by a public body will make its decision ultra vires, and null

- A statutory exclusion clause (ouster clause) does not deprive the courts of their jurisdiction in judicial review unless expressly stated in its intention

Padfield v Minister for Agriculture, Fisheries and Food

A minister’s discretion in exercising his statutory powers is subject to the restriction that it cannot frustrate the purpose of the Act he derives power form

Congreve v Home Office

It is an improper purpose to use an exercise of a discretionary power as a means of carrying out something Parliament gave no mandate to demand

R v Inner London Education Authority, ex parte Westminister City Council

- Decision makers must take into account all relevant factors, and disregard all irrelevant factors

- Where a decision has been made where a relevant factor has not been taken into account, or irrelevant factor has been taken into account, the decision was not validly reached

- Where an act serves two or more purposes, some authorised and some not, the general rule is that its action will be lawful provided the permitted purpose is the true and dominant purpose behind the act

R v Home Secretary, ex Parte Venables

Decisions must be made with regard only to the relevant factors and factors stated/implied to be taken account for in the legislation, it cannot be made with regard to irrelevant factors

R (Imam) v Croydon London Borough Council

- Whether money is a relevant factor is highly contextual, particularly where there is a duty

- Look to the statute to help determine the duty and whether the resources are a factor

Miller 2

Prerogative powers must be exercised for a proper purpose

Associated Provincial Picture Houses Ltd v Wednesbury Corporation

- Decision makers must have regard for express or implied factors

- A decision is only unlawful on the grounds of unreasonableness where it is so unreasonable no sane decision maker could have reached it.

Wheeler v Leicester City Council

The decision maker has discretion when it comes to what weight is to be given to relevant factors

British Oxygen Co Ltd v Minister of Technology

When an Act of Parliament confers unlimited discretion to the executive, the executive is free to implement a policy on its implementation provided that it considers applications contrary to the policy

R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs

The rule against fettering of discretion does not apply to non-statutory powers, such as central government

Sagnata Investments Ltd v Norwich Corporation

- Applying a universal/inflexible policy is not genuinely exercising discretion

- A general policy must not be universal, there must be space to consider exceptions, and it must be operationalise in practice

R (P; Q) v SoS for the Home Department

Decision makers must always be open to exceptional circumstances that could demand departure from the rule

R v Warwickshire CC, ex parte Collymore

Policies must be operationalised, not just purported to be hearing exceptions

R (Lumba) v SoS for the Home Department

Cannot operate a secret 2nd policy fettering discretion

Belfast CC v Miss Behavin’ Ltd

Read the statute, as it can permit the operation of a blanket rule

Ayr Harbour Trustees v Oswald

A creature of state cannot fetter its decision making by entering into a contract, the contract will be void.

Ellis v Dubowski

The decision maker must genuinely consider the matter themselves, it is unlawful to follow someone else’s decisions, as it is an unlawful surrender of discretion

R (Bourgass) v Secretary of State for Justice

- You cannot delegate contrary to the purposes of the legislation

- Where independence from a body is required, you cannot delegate to that body, particularly when exercising judicial acts

R v Adams

- Parliament is taken to legislate with the Carltona Doctrine in mind

- There should not be an assumption that the Carltona Doctrine applies unless expressly stated otherwise

R v Race Relations Board, Ex Parte Selvarajan

Delegation can be lawful where the function is non-judicial, if the decision is judicial it cannot be delegated

R v Secretary of State for the Home Department, ex Parte Simms

Common law fundamental rights cannot be overridden by general or ambiguous words in Acts of Parliament, they must be expressly stated

Lennon v Hamilton District Council

Policy can establish a substantive right, which the decision maker can be held to

R (Rashid) v Home Secretary

Knowledge of the policy is not required for there to be a legitimate expectation

R v SoS for Education, Ex parte Begbie

Legitimate expectations can only be created by someone in a place of actual authority

R v North and East Devon Health Authority, Ex parte Coughlan

- Legitimate expectations comes from a background of fairness

- Where there is a promise by a public body inducing a legitimate expectation of a benefit, frustrating that expectation can be so unfair as to be an abuse of behaviour

MFK Underwriting Agents Ltd v Inland Revenue

There must be a clear and unqualified representation in order for a legitimate expectation to be established

R (A) v Home Secretary

A policy is unlawful if it positively approves unlawful conduct, per Gillick, it is not enough that it does not forbid a course of action

Braganza v BP Shipping

You can challenge the outcome of the decision on the grounds of irrationality

R (Law Society) v Lord Chancellor

You can challenge the process a decision was reached on the grounds of irrationality

R v Ministry of Defence, Ex Parte Smith

A more substantial interference with human rights requires more justification

Pham v Secretary of State for the Home Department

- The Court decides the range of rational decisions, in line with these factors:

- The significance of the right interfered with

- The degree of interference

- The extent to which the court is competent to reassess the balance which the decision maker was called on to make

YL v Birmingham City Council

Whether someone is providing a function of a public nature, look to whether it has a duty under statute and the function it provides.

Bank Mellat v HM Treasury (2)

- Test for proportionality:

- Was the objective of the interference sufficiently important to justify the limitation of the fundamental right

- Is the interference rationally connected to the objective

- Can a less intrusive measure be used

- Having regard to the matters and their consequences, has a fair balance been struck between the rights of the individual and interests of the community

Begum v Governors of Denbigh High School

Where the decision maker is best qualified to make the decision, deference is shown in terms of proportionality

R (Daly) v Secretary of State for the Home Department

Where there is a common law interference, the Courts may use the Bank Mellat test

R v Soneji

Look to the construction to the statute in order to determine whether failure to meet statutory procedural requirements results in total invalidity

R v Sussex Justices, Ex Parte McCarthy

Justice not only must be done, but be seen to be done

Porter v Magill

When checking if there’s bias, apply the Porter Macgill test - Would a fair minded and informed observer, having considered the facts, conclude there was a real possibility of bias?

Locabail (UK) Ltd v Bayfield

You cannot argue a case was biased on de minimus grounds

Helow v Advocate General for Scotland

There cannot be a claim of bias that rests entirely on what others have said and done

R (Alconbury Developments Ltd) v Secretary of State for Environment, Transport and the Regions

Article 6 right to an independent and impartial tribunal can be satisfied by political and judicial accountability

Poshteh v Royal Borough of Kensington and Chelsea

Housing decisions alone do not engage Article 6, because they’re based off of a series of evaluative judgements

Ali v UK

- Article 6 rights to a fair and independent tribunal in determination of civil rights/obligations can be cured by the availability of judicial review, but this is not guaranteed, it depends on:

- The subject matter of the decision

- The manner in which the decision was arrived at

- Procedural guarantees available in the proceedings

- The content of the dispute

Dr Bentley’s Case

There is a common law right to be heard, even where the facts of the case are known

Ridge v Baldwin

The rules of natural justice apply to judicial decisions and administrative decisions, depending on the context

Bank Mellat v HM Treasury (No 1)

Every party has a right to know the full case against him and the right to test and challenge that case fully.

Lloyd v McMahon

- Where there is a statutory mechanism for decision making, the court can only infer enough to ensure the attainment of fairness

- This depends on:

- The character of the decision making body

- The kind of decision

- The frame work within the body operates

McInnes v Onslow-Fane

The Right to an Oral Hearing is only for application cases, not forfeiture cases