PL2 Lecture 3 -

Overview of Judicial Review Process

  • Permission Requirements

    • Public function

    • Time limits

    • Standing

    • Arguable case

    • Likelihood of substantially different outcome

    • Exhaustion of alternative remedies

  • Grounds for Review

    • Illegality

    • Reasonableness

    • Human Rights Act

    • Procedural impropriety and fairness

  • Justiciability

    • Determines the appropriateness of court reviewing an administrative decision.

  • Remedies

Justiciability Definition

  • Suitability of a case to be judicially reviewed.

Case Studies

Corner House Research

  • Case: R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60

    • Allegations against British Aerospace for bribery.

    • Threat by Saudi Arabia to cease anti-terrorism cooperation led to the DFSO not investigating.

    • High Court quashed this decision, but the House of Lords overturned it, emphasizing non-justiciability.

Al-Haq

  • Case: R (Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1910 (Admin)

    • Al-Haq requested a mandatory order for suspending military assistance to Israel.

    • High Court deemed foreign affairs decisions as executive-only, ruling against intervention.

Hammersmatch Properties

  • Case: First Secretary of State v Hammersmatch Properties Ltd [2005] EWCA Civ 1360

    • A planning inspector's decision to preserve a building was quashed by the High Court but was reinstated by the Court of Appeal due to exceeding judicial powers over planning merits.

Ex p Hammersmith and Fulham LBC

  • Case: R v Environment Secretary, ex p Hammersmith and Fulham LBC [1991] 1 AC 521

    • Court ruled that policy merits of decisions by ministries are not subject to judicial review unless completely arbitrary.

Judicial Review and Resource Allocation

  • Emphasis on rational set of criteria for resource allocation, with courts ensuring decisions are not arbitrary.

Justiciability in Practice

  • The claim itself may be non-justiciable, or certain issues within the claim may not be.

  • A claim may proceed if it involves a mix of justiciable and non-justiciable issues.

Deference in Judicial Review

  • Judges show deference to initial decision-makers, requiring special reasons for court interference.

Reasons for Deference

  • Legislative delegation of powers

  • Expertise of decision-makers

  • Political accountability of decision-makers

  • Methods of information gathering by decision-makers

Case Analysis: R (Miranda) v Secretary of State for the Home Department [2016] EWCA Civ 6

  • Examined police detention and items seizure for national security.

  • Emphasized need for courts to defer to police expertise in assessing national security risks.

Criteria for Court Interference

  • Not a simple yes/no—a nuanced approach based on situation specifics.

  • Comparing expertise and political accountability of decision-makers versus courts.

Deference and Comity

  • Deference is not servility; it respects the separation of powers.

Lord Hoffman’s View

  • Court decisions on justiciability reflect legal authority, not mere deference.

Degrees of Deference

  • Complete deference: non-justiciability (e.g., national security)

  • Massive deference: parliamentary acts and funding allocations

  • Minimal deference: legal rights protection

  • Zero deference: unlawful actions.

Problem Question Analysis

  • Scenario: Adam's deportation claim due to national security concerns post-protest.

  • Considerations:

    • National Security and statutory powers

    • Political responsibility and expertise of the Home Secretary

    • Counterargument on reasonableness: assessing if the decision is irrational.