417 terms

Judicial Review

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Terms in this set (...)

Feldman
Advance participation in the democratic process. Surrogate political process Hold to account. Directing role. Limiting role. Structuring role
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Directing role
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Limiting role
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Structuring Role
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Impact
Based on surroundings. Lord Steyn: in law, context is everything. constitutional background: democracy/ federalism/ ideology/ human rights/ rule of law/ adverse reaction/ Joys leaflet/ risk averse authorities/ uncertainty / cost and time delays/ Heavily weighted to asylum and immigration→ hence tribunals and Tribunals, courts an enforcement act 2007.
Expanded JR
1. demarcation disputes created by devolution and multi layered governance. Baroness Hale: UK a federal state.
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HR- increased prominence and 'rights based' statutory protection
3.
Increased in depth, scope (more substantive issues- impact of proportionality) and volume (appeals from tribunals- asylum)
Harlow and Rawlings
Red light theory- notion that government needs to be held to account by legal means. Need an external check provided by legal constitutionalism. Good administration flows from tension between branches. Feldman's notion of separation of powers. Public law as means to control government.
Green light theory- law has a framework setting role. Should provide pre-emptive and limited control. Main restrictions should be imposed by political process. Tomkins and Griffiths- notion that law cannot replace political control. Legal constitutionalism damages democracy. Need to reinvigorate politics. Fire watching, not fighting.
green light theory
Fire Brigade's union
Compensation scheme by statute to be introduced by minister. Minister never introduced it. Minister was usurping parliament's role and acting outside authority.
Lord Mustill: examination by the courts justified as political means of control had failed. To avoid a vacuum...courts have no option but to occupy the dead ground
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Appeal versus review
Appeal:
Look at substantive issues- may change actual result
Specialist tribunals
Statute provides terms
Right versus wrong
Review
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Look at the manner in which it was made- procedural
Doesn't make substantive judgements
Inherent jurisdiction of the courts. High court- unlimited jurisdiction.
May quash decisions- but doesn't prevent same decision being made in correct manner
Needs to be limited to maintain separation of powers
Theories of Judicial Review
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Ultra Vires Theory. Forsyth
Based on the idea that parliament only intended to act in a certain manner and the courts are simply imposing the wishes of parliament. Implied that parliament intends to act according to the rule of law, including fairness and reasonableness values.
Links to parliamentary sovereignty
Focuses on the 'review' nature- limits scope
Legitimises court's role
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Neglects reality- Anisminic/ R v C
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Implies that silence or ambivalence of legislature is implied authority → too simplistic to justify complex administrative laws
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Neglects expansion of JR to decisions not created by parliament (RP- GCHQ/ Ex P Bentley)
Modified Ultra Vires
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Elliott
Based on a middle ground. Provides a framework of 'values' such as fairness, reasonableness, rule of law etc that it can be implied democratic parliament intends to be bound by. Judicial review is made in relation to these values. Judges determine exactly how constitutional government to be delivered.
Foundations of JR important as linked to relationship between bodies of government/
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Reconciles PS and JR in better manner- Allen acknowledges that whilst PS accepted, is best
Explains courts ignoring parliament's immediate intentions
Accepts higher body of constitutional norms
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Perhaps a complicated means of attaching to PS- is this needed
Common law theory Allan
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Judicial review part of higher order common law principles that are above parliament. Reference is made to these. Parliament is not empowered to make decisions or act outside these values. Justifies court's actions as constitutional arbiters. The notion that common law developed JR. If no PS- JR is free to move into investigation based on broader and richer principles
Transparent- explains reality
Explains incremental advances in JR in response to changing constitutional landscape
Explains JR of non-parliamentary powers
Laws LJ: is parliament ambivalent or expresses no opinion- vacuum legitimately filled by common law
Feldman: constitutionally sounder
Craig: better represents parliament- courts relationship in representative democracy. Constitution, not parliament, assigns powers of branches
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Ignores role statute plays in signposting
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Assumption that parliament agnostic to rule of law flawed
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PS is neglected→ affects the superstructure constitution based on
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Forsyth: there is no grey area between authorisation and non authorisation of power
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Feldman- still tries to link to PS
Dyzenhaus
JR important not for protecting morality, but for preserving separation of powers.
Constitutional UV
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Allan
Allan takes this to the extreme in the constitutional UV principle- in that there is no PS and parliament not permitted to act outside common law values.
Lord Steyn (Jackson): is parliament tried to abolish JR, we would have to consider whether it was a constitutional fundamental even a sovereign parliament cannot abolish.
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Feldman
The theories of JR are flawed. There is no need to link JR to PS. Just because parliament sources its power from one place doesn't mean the courts need to be linked to it.
In reality courts sometimes follow PS (Anderson) and other times they reject it (Anisminic)
Multi-institutional nature of constitution doesn't mean power sourced from same place.
Craig
The theories explaining JR based on the content each attached.
UV- based on PS
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Modified/ Common law- based on rule of law/ higher order norm values, with differing levels of content.
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Degrees of JR constraints on power:
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1.
Literally- read without regarding rights
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Searching scrutiny- reference to rights and reasonableness
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Priority- read legislation to provide support for fundamental rights unless expressly provided
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HRA: read compatibly with convention rights
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Invalidation- invalidate if breach fundamental rights
Grounds of Judicial Review
Multiple grounds of JR- need to establish if a ground has been breached
Jurisdictional
Court needs to be satisfied that the decision maker acted within the jurisdiction provided to the decision maker
Courts best placed to look into legal errors
Farina- jurisdiction may lead to retroactive wrongness
Independence of judiciary
Consistency
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Limited importance when 1 decision maker- no consistency issue
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Williams: should only overrule decision maker when 1 objectively correct answer
Anisminic
Foreign Compensation Scheme- said to prohibit JR of decisions. Held that only meant to prevent investigation of true determinations, not purported. Allowed court to have institutional competence to decide breach to provide consistency. Lord Wilberforce: commission have authority determined by statute- has limits. Lord Reid- commission cannot determine extent of own power
Pearlman
Scheme allowed for grants for home improvement. Told that he didn't fall within scheme as central heating not structural. Jurisdictional error
Lane LJ: could have non-jurisdictional error of law- as in case
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Eveleigh LJ: could have non jurisdictional error- but not in the case
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Denning LJ: all errors of law jurisdictional. Court needed power to act consistently.
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Page
Statutes of hull university questioned. Lord Browne Wilkinson. All errors of law were jurisdictional. But greater discretion would be afforded where specialist rules or technical statute.
South Yorks Transport
Merger of companies. Allowed gov to intervene if would affect a substantial part of UK. Allowed greater discretion due to lose wording. Government best placed to decide. If statute ill defined- relaxed approach take
Pulhofer
C claimed eligible for LA homeless help. Took approach that statute allowed a broad approach.
Application of facts to statute
Notion that in some circumstances decision maker is best placed to exercise discretion.
A v Croydon LBC
Children Act required LA to provide care for children under 18. Asylum seekers refused care as couldn't prove that people under 18.
Baroness Hale- facts were a matter for decision maker. Entirely reasonable parliament intended to be made by authority.
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Khawaja
Immigration act 1971 allowed illegal immigrants to be detained before deportation. K claimed wasn't an illegal immigrant and so power used illegally.
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rationality test- reasonableness of decision maker
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correctness- balance of probabilities that conduct acceptable. Prevailed.
Correctness test qualified:
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if statute unclear- allow greater discretion
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if important interest at stake- courts need to be certain that power exercised correctly and within ascope
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If criterion to exercise power objective- correctness prevailed. If subjective- rationality idea.
Acting fairly
Substantive fairness: was the correct outcome reached?
Procedural Fairness: no bias/ considerations taken into account/ institutional independence/ right to partake in decision making.
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Instrumental procedural fairness
Idea that procedural fairness acts as a tool to make better decisions. Good government needs to collect raw data in correct manner
Association of health food stores
Dept of health banned sale of Kava kava. Had considered prescription only or ban. Claimed should have considered compulsory labelling. Held that woud have made no different to outcome.
Sedley LJ: need to be careful, can't truly know what decision would have been reached.
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Non-Instrumental fairness
Idea that fairness itself is important as a normative value. Human dignity and constitutional democracy requires decisions to be made in procedurally fair manner
John v Rees
Megarry J: need to be careful in adopting instrumental view.
Impartiality of decision maker
Idea that decision needs to be free of bias that could affect procedural fairness or substantive outcome
Automatic exclusion:
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being a party
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financial interest
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close alignment to parties and interests
Potential exclusion:
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1.
real possibility of bias to fair minded and informed observer
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personal/ political interests
Sussex Justices (Ex P McCarthy)
Dangerous driving conviction. Magistrates. Clerk was a partner in a law firm representing claimant in civil action against McCarthy.
Lord Hewart: it is of fundamental importance that justice is not only done, but manifestly and undoubtedly seen to be done.
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Dimes v Proprieters Grand Union Canal
Lord Chancellor acted in favour of canal when he was a shareholder. Held that even though wouldn't have effected decision, the maxim that no man may make a cause his own is not confined to being a party- also financial interest.
Locabail
Complex set of affairs. Created a de menimis exception where possibility of bias so limited
Pinochet no2
Lord Hoffman had decided on extradition case. Director of UK arm of Amnesty that had made representations. Lord BW- were part of movement working towards same goals. Close alignment to party.
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Unintended result of making judges withdraw from public life
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Uncertainty as to what will count as a close alignment
Porter v Magill
Could be procedural unfairness when circumstances would lead an independent and fair minded observer to conclude real possibility of bias.
Gillis
Doctor on board deciding benefits and on disability appeal tribunal. Fair minded observer knew facts known to public generally, not complacent, not unduly sensitive. Distinguish between relevant and irrelevant considerations and attach weight to different factors.
Taylor v Lawrence
Judge provided free legal advice just days before provided judgement in favour. Attached knowledge of internal workings of legal system to fair minded observer.
Olowofoyeku
Independent and fiar minded observer test is a guise for judges adopting own opinions. Should remove
Lord Roger
Risk that fair minded observer becomes too removed form the public
Application of impartiality to political decision makers
Personal: same approach
Political: need to give respect for political nature of decisions.
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Island Farm
Council elections interrupted sale of land to council. Some candidates openly said they rejected idea in election. Then voted against. Held that politics - political decision makers allowed to approach decision with pre-disposition, but pre-determination was illegal. Need open mind.
Independence of decision maker
• Article 6 requires independent decision maker in criminal liability and civil rights and obligations.
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Policy decisions are not suited to judges. Need individuals connected to the decision who understand the different pressures.
Anderson
Prisoner serving life sentence- determined by Home Secretary, who ignored judge advice. Claimed that sentence was part of trial and should be determined by judge. (Ex P Simms/ Venables/ Hindley/pierson). Held to have breached ECHR article 6- needed independent judiciary
Ali v Brum CC
LA had a duty to provide housing for homeless. This is discharged if C rejected reasonable offer of accommodation. C claimed involvement of housing officer denied independence. Held that no civil right to be housed. Needed an actual right that C could be considered holder of.
Curative function
Article 6 limited in effect. Allows for lack of independence by decision maker if there is the possibility of judicial review of the decision.
Bryan v UK
C told to demolish buildings built without planning permission. C claimed they were barns and didn't need it. Sec of state appointed a planning inspector to decide case. C claimed that sec of state shouldn't have been involved. Held there was a civil right under 6(1)- held that the sec of states power to remove authority of planning inspector prevented independence. But curative principle protected.
Right to be heard
Important element in fairness to allow someone the opportunity to put their point across.
Intensity of representation needed depends on circumstances.
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Written- challenge parking restriction
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Oral- revocation of taxi license
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Full oral with evidence and cross examination- Prison recall
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Ridge v Baldwin
Non judicial watch committee dismissed CC of Brighton following various allegations of corruption. Didn't allow him a hearing. Removed distinction between application of natural justice principles to administrative and judicial hearings.
The greater the impact on rights, the more likely a hearing needed to adhere to natural justice.
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Lord Reid- we do not have a developed system of administrative law.
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Lloyd v Mahon
City councillors found guilty of wilful misconduct in public office- caused £100000 of loss. Needed to reimburse and banned from office for 5 years. Claimed need oral hearing.
Lord Bridge: the so called rules of natural justice are not engraved on tablets of stone.
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Oral hearings would have added nothing in the case, as sincerity of acts doesn't justify them/
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Smith and West v Parole Board
Prison recall decision. No oral hearing. Held that when needed to test credibility of witnesses involved, important to provide oral hearing.
Lord Bingham: Need a more dynamic setting when truth and liberty involved.
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Tarrant
Prison mutiny. Prison discipline about spending more time in prison. In the case needed legal representation and hearing due to complexities. But also need to take into account ability to self- represent.
Right to notice- to know the allegations
Natural justice principles to allow an individual to make a proper defence.
Roberts v Parole Board
Not told of source of allegations to protect informer. Used SA procedure. Concerned drug dealing. Held that there was the express and implied authority to use SA. Lord Woolf: could use SA so long as not designed to lower fairness and was designed to mitigate lower standards that would otherwise be seen.
Lord Bingham- phantom hearing.
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Evans
Police officer dismissed about private life. Needed to be told of allegations to challenge
Ex P M
Name and address to sex offender's register. Needed to be told.
AF no 3
Used SA procedure when determining control orders. Claimed breach of Art 6. Z v UK determined no breach of article 6. Needed a balance- couldn't completely or mainly be based on closed material procedure. Needed to be told enough to make defence.
MB v Sec State home department
Claim that non derogating control orders under terrorism act were incompatible with article 6. Held not to deprive liberty- so compatible. Closed material proceedings needed to be qualified- 'except where to do so would impede rights to a fair trial'. Gist notion.
W (Algeria)
Deportation proceedings- do not fall under article 6. Wasn't told of allegations. Held that common law natural justice principles are not strong enough to survive explicit derogation from them in statute
Duty to give reasons
Instrumental- notion that need reasons to focus the minds of the decision makers and improve decision making.
Non-instrumental: people need to have reasons to preserve dignity.
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Generally there is no duty to give reasons
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Statutory exceptions:
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1.
FOIA
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Common law fairness
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Article 6(1) may do
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Legitimate expectations
Buckingham v Porter
Reasons need only be given for main issues- need to take into account burden imposed on decision maker
Doody
Home secretary increased manadatory life term. Held that natural justice needed reasons to be given to allow challenge
HEFC
University department had spending cut, needed to know why to appeal. Would be especially important to give reasons if rights were highly regarded by the law. When decision appears aberrant.
Fayed
Wanted decisions in home secretary's decision not to allow citizenship. Home secretary later changed rules to ensure reasons given
Fettering a discretion
Notion that a decision maker is unable to delegate decision making power given exclusively to them
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parliament chose
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institutionally qualified
3.
accountability
4.
need line between delegation and consultation
Barnard
National Harbour Board legally delegated to local board→ but further delegation to manager was unlawful
Lavender
L applied to housing minister to extract gravel. Minister gave ag minister effective veto. Held that need effective exercise (although ministers all members of crown- CCR)
Carltona doctrine
Principle that a civil servant may exercise decision making powers of minister on their behalf. Recognition of reality.
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How does Carltona and accountability work in relation to next steps agencies. Orthmosthosly rules.
Re Golden Chemicals
Lord Greene: parliament intended to entrust to the whole department- so Carltona valid.
Unable to adopt a rigid rule that effectively prevents future discretion
Rule→ Policy
Policy:
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Improves fairness
Consistent
Legal certainty
Accountability
Some level of flexibility
Kynock
A general rule that a decision maker is willing to move away from is acceptable
British O2 v Minister of Technology
Wanted grants for machine parts. Grants only available if each part cost more that £25. Each was actually £20. Held that large departments would have policy so precise to effectively be rules. But so long as willing to listen and doesn't shut eyes to application, it was sufficient.
Abuse of discretion
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Sydney v Campbell
Council allowed to compulsory purchase to improve highway. Purchased but used land to make money. Held acted UV
Wheeler v Leicester CC
Council refused to grant permit in retaliation for club allowing individuals to go to apartheid SA. Misuse of power to punish club for no legal wrong.
Pergau Dam
Even though Overseas Development Act didn't expressly state purpose- court interpreted it as only allowing spending in economically viable situations.
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Neglected political dimension. Too activist
Relevant considerations
Decision maker can only make decisions based on relevant considerations. Cannot take into account some. Others may be taken into account.
Padfield
Had to remake decision taking into account only relevant considerations→ still liable.
Ex P Venables
Discretion to decide life term. Took into account public opinion including sun protest. Held that in exercising judicial function needed to act in correct manner- so needed to be independent.
R v Serious Fraud Office
Took into account impact on contract with Saudi Arabia. Held that the matter of relevant considerations was a legal question- not moral.
Legitimate Expectation
Notion that once a decision maker implies they will follow a certain course- individual may expect it. Procedural and, increasingly, substantive matter.s
Procedural:
Laws LJ- Paradigm case that authority made representation that will not embark on change without consultation
Secondary case- where individual enjoyed a right and expects to continue to enjoy.
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AG HK v Ng Yeun Shiu
Illegal immigrant promised a fair hearing- but then deported without one. Legitimate expectation required one. At time provided greater protection than normal common law
Substantive
Notion that failure to reach decision would be so unfair as to be an abuse of power
MFK Underwriting
Needs to be unambiguous and devoid of relevant qualifications
Davies v Gaines Cooper
Possible to have legitimate expectation from past practice- but more difficult, would need to show consistent practice.
Begbie
Blair government removed funding for private school places. C at through school and wanted funding. Held that undertakings pre-election couldn't be enforced. Gibson LJ: consequences needed to be political.
R (Rashid)
Relied on legitimate expectation about not being deported to certain parts of Iraq, even though unaware at time. Allowed
R (bibi)
Less intrusive substantive notion- simply asked decision maker to reconsider
Coughlan
C long term hospital patient. Moved to another hospital unit 'for life'. Later told that needed to close due to cost. Held that the government should fulfil substantive legitimate expectations in the circumstances. Financial reasons alone insufficient. Needed to show no other proportionate means.
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Decision maker may need to consider previous representations
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Promise may involve procedural legitimate expectation
3.
Court may consider a substantive legitimate expectation made. Usually when confined to limited class and akin to contract
Protected vulnerable in specific case with an identifiable class
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Dangerous precedent created - too interventionist. Ignored policy and financial implications
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Polycentric issue beyond court's competence
Lumba and Kombadzi
Home secretary relied on unpublished policy to detain pre deportation. Even if relied on proper one, would have been detained. False imprisonment. Provided some damages- nominal for £1. Baroness Hale believed needed £500. Lord Walker believed needed £1000.
Notion that needed to act consistently with policy.
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Ex P Hargreaves
Prisoners were released after 1/3 sentence- increased to ½. Held that so long as change not manifestly unreasonable under wednesbury- would be ok.
Sales
If decision maker had ability to understand the consequences of decision- legitimate for court to intervene.
Reviewing outcome of the decision making process
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Wednesbury corp
Council only allowed Sunday cinema license if no under 15. Held unreasonable. Notion that a decision could be invalid if no reasonable council would have made it. Lord Green: So absurd that no sensible person would believe it fell within their powers.
Idea that the decision was one made within the range of decisions permitted.
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High threshold- deference notion
Acceptance that courts shouldn't readily interfere. Courts don't police policy
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Constitutional
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Pragmatic- institutional competence
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Democratic
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Circular
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Too much deference
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Smoke screen- adapted to judges' wishes- offended certainty.
Lord Cooke
There will come a day where it is recognised wednesbury reasonableness was an unfortunate retrogressive decision
Jowell and Lester
In practice wednesbury not followed. Too restrictive. Without elaboration doesn't provide justification for court interference,
Bradley
Judicial review of pensions promise case. Refused to implement parliamentary ombudesmen decision. No duty to accept as it was a political matter- unless wednesbury unreasonable.
GCHQ
Lord Diplock: so outrageous in its defiance of logic and moral standards
Ex P Brind
Dismissed criticism of Wednesbury- Lord Acker: needed high threshold to underline review notion
Ex P Smith
Banned homosexuals from army based on operational morale. Held that the decision was morally wrong but not illegal. Led to poor protection for human rights.
Nottinghamshire CC and Hammersmith and Fulham
Government cut LA funding as believed spending unwisely. Held that super wednesbury would apply where macroeconomic issues and politics involved. Courts poorly placed. Deference to government mandate.
Proportionality
Emerging test linked to the qualified ECHR rights. Following HRA 1998- incorporated into UK law. Life of its own- Lord Steyn
Higher standard of review better suited to HR issues
Less circular- substantive foundations
Less discretion- increased certainty
Balancing exercise- not measure of range.
De Freitas
1. objective sufficiently important to restrict right?
2.
Measures designed rationally connected?
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Means no more than necessary?
4.
Proportionate?
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Can method achieve aim?
Smith v UK
Smith in ECHR. Held that their was a legitimate aim, but it wasn't necessary to ban homosexuals. Issues could be resolved by tackling institutional homophobia. The Wednesbury test had placed the threshold so high that it effectively prohibited investigation of balancing of rights.
Debt of Honour/ British Civilian Internees
Notion that proportionality had not replaced Wednesbury. Only HL could do that. Proportionality only when qualified community right involved.
Sedley LJ
Proportionality had taken root and established a life of its own
Craig
Believes that proportionality is much better
More transparent
More structured
More precise
Forced to identify the normative values behind decision- no smoke screen
Ability to vary intensity of review more easily
Taggard
Believes that proportionality is not designed for normal decisions. Only rights.
Proportionality is inherently more intense and pushes too far beyond review.
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Rainbow of review
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Proportionality→ reaosanbleness
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Feldman
Proportionality is a different form of review. Based on presumption that the act is illegal and beyond competence unless can be shown to be proportionate.
Deference
Concept of recognising the democratic mandate or institutional competence of an authority. Idea that judiciary simply vary the weight they attach to parliament's opinion.
Justiciability
Is an issue one that can be reviewed
Partial justiciability→ Belmarsh→ National security couldn't, but whether necessary could be
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Handyside v Belmarsh
Applicants convicted for having a banned publication deemed 'obscene'- claimed to breach article 10. Needed to give a wide margin of appreciation considering different social and moral attitudes
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1. Nature of the decision maker
2.
Nature of the right
3.
Relative constitutional competence
4.
Relative institutional competence - polycentric
Quila
Wanted partner to live with them in UK. Law prevented this until 21 years old to prevent forced marriages. Held that, whilst should be deference in policy- government needed to provide evidence to show such deference needed.
Allan
Deference is a derogation of duty
Limitation of JR
Poorly received.
Anisminic- interpretation prevented. Lord Pearce- purported decision/ Lord Wilberforce- intention of parliament (modified UV)
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2003 Bill- attempted to limit in asylum decisions→ Back Lash
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Lord Steyn in Jackson- constitutional fundamental that even a sovereign parliament cannot overrule.
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Justiciability of different powers
Courts have sometimes been unwilling to extend scope of JR powers
GCHQ case
RP power used to change working conditions. Claimed legitimate expectation of consultation. Allowed RP to be subject to review.
Lord Roskill- Justiciable areas of RP varied
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Elliott- some areas of RP placed beyond control
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R (Abasic)
Foreign relations RP power. Held that the area was outside court jurisdiction.
Chandler v DPP
Charged with section 1 OSA 1911 for breaking into air force base (shows wide expansion of OSA). Control of troops is RP- national security not subject to JR (War probably wouldn't be)
Ex P Bentley
Mercy RP power. Procedural JR possible.
Fredman and Morris
Believe that there has been a decline in accountability and void in JR as a result of privatisation without statutory framework. Quasi-public operations need to be subject to control by the courts. Private relationship may still have public impact. Eg EX P Goldsmith
Beatson
Believes that the main determining factor should be whether decision making power has been conferred on the authority. Shouldn't allow historical accident to determine.
Hooper
Minister decided not to pay certain pensions to widows without stat power Held to be justiciable.
Aga Khan
Jockey club banned jockey for drugs test. Claimed not subject to JR
1.
no history
2.
no statutory power
3.
exercised authority by agreement alone
R (Farrakhan)
Spiritual leader of nation of islam banned from UK. No JR- court deferred to home secretary's competence.
Datafin
Wanted JR of takeover and mergers panel. Held to be exercising a government function. Source of power not sole test (Beatson).
1.
indirect legal support- public sanctions
2.
immense de facto regulatory power
3.
government reliance on its work
Law v Greyhound
JR of greyhound racing body. Claimed no choice of membership. Regulatory body exercised power at choice of members. No JR. Fredman and Morris criticise simplistic private/public idea.
R v Chief Rabbi
Wanted JR of rabbi. Held needed not only a public duty but a governmental interest.
Beatson criticises- neglects TU having to adhere to natural justice.
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HRA
Led to change→ now more closely connected to public authority under section 6 HRA
Hammer trout farm
Market operated by independent body- prevented having a stall. Market had been established by council. Held to be a hybrid public authority under Anston Cantlow tst.
Dyson LJ: unless the source of the power provides the answer, question requires looking at nature of power and function
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Ex P Goldsmith
LA legally obliged to provide housing- delegated to private company. C refused indefinite housing- wanted review. Held not open→ Probably not now Hammer trout.
Judicial review procedure
Part 54 Civil Procedure Rules
Permission of the court
Need an arguable ground of review with a realistic prospect of success
Deters unmeritous claims
Quick and cheap filter
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Discrepancy between judges
Feldman- irony that Anisminic would never have been decided
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Exhaustion of other remedies
Arbitration
Cheaper
More specialised
Better placed to resolve
Act within time limits
Needs to be made promptly, and in any case within 3 months of relevant decision
Designed to limit use
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Buglife
Following decision relating to directive- allowed review claim if not promptly but within 3 months. Uniplex EU decision that limitation period needed degree of certainty.
Avoids questions of fact
Lord Diplock- only rarely will leave be given to investigate questions of fact.
Supreme Court Order 53- 1977
Created new unified judicial review procedure- replacing old multiple procedures requiring the right action to be brought
Beatson- purpose was not to strictly enforce. Jurisdictional hurdles shouldn't be placed in path.
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O'Reilly v Mackman
4 prisoners in a riot- tried to claim against prison board for breach of natural justice. Held that since the disadvantages of old system removed- would be an abuse of process to try and enforce JR through an ordinary action.
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Technical barriers
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Created public/ private distinction alien to UK law→ Fredman and Morris
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Soon hollowed out by exceptions
Boddington
Smoking on train- claimed that believed the law was wrongfully made and he had a right to smoke. Held- first opportunity to challenge legality of the ban
Winder v Wansworth
Refused to pay increased rent as believed the decision was legally void. Allowed public law defence in criminal proceedings.
Lord Woolf- believed flawed. At time Winder had no greater right than anyone else. Law still has effect until UV
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Roy v Chelsea and Kensington
Doctor brought action fro cutting practice allowance- claim that dint spend enough time on NHS work.
When exclusively public law→ should be section 53
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When private right incidentally engaged a public right- no bar to using normal proceeding.
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Fredman and Morris- preferable flexibility.
Cocks v Thanet DC
Claimed council breached stat duty to house homeless family. Held that couldn't use JR in a private action as there was no private right to review as council not determined there was one. Needed separate JR to find right.
Mercury v DG telecoms
Needed to consider whether it would be an abuse of process. If original summons at least as well suited- then ok.
Clark v University of Lincolnshire
C challenged university marking system. Would not automatically strike out case that would have been better brought under 1977 proceedings.
Standing
Senior Courts Act 1981- Section 31(3)- required sufficient interest
Narrow:
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Protects from unmeritous claims
Limits number of claims
Ensures that individual impacted by breach are ones to bring action
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Allows veto on action
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Neglects wider public interest
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JR is about enforcing duties
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Constitutionally important- accountability
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Administratively important- encourages good practice 'judge over your shoulder'
Miles/Lord Woold: inappropriate to allow claimant to effectively veto action. Communitarian view that inactivity of C shouldn't limit rights
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Fleet Street Casuals
Fleet street workers were using false names for tax purposes. Government planned to provide amnesty if agreed to pay certain amount of tax. National federation of small businesses wanted to launch action on basis tax shouldn't be optional.
Held that in tax affairs principle of privacy key. No one tax payer has a sufficient interest to review another's tax affairs.
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Lord Frazer/Roskill- potential to claim for gross breach
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Ex P Greenpeace No2
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Associated standing
JR of discharge from sellafield. Allowed Greenpeace to stand.
Competence and expertise
Members in the Cumbria area
Well focused challenge
Respectable and genuine organisation.
Feldman
Believes that interest parties don't need to be successful to raise political awareness
Although traditionally didn't like TP using pressure and interest→ may be beneficial and in keeping with participatory political theory.
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ECHR liberal attitudes explains limited standing
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Amicus Curiae ideas in USA provides a happy medium
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Pergau Dam
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Public interest standing
Allowed world development movement to be involved in litigation. Government wouldn't renege on dam in Malaysia despite huge cost and 'bad buy' reports.
Important to vindicate role of law
Absence of another challenger
National and international expertise
Democratic engagement
Ex P Rees Mogg
Challenged decision to sign Maastricht treaty using RP- based on sincere concern for constitutional issues. Ratification was part of international relations RP that courts wouldn't adjudicate on R(abasic)
R (wheeler)
JR of decision to sign up to Lisbon treaty without referendum as promised for constitution. Legitimate expectation only for certain treaty. Lisbon treaty didn't have the same effect. Not wednesbury unreasonable not to offer a referendum.
Remedies
Civil Procedure Rules 1998-
1.
Quashing order
2.
Mandatory order
3.
Prohibition order
4.
Injunction under s30 senior courts act.
Quashing
Most common.
Procedural- order to remake decision in procedurally correct manner
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Substantive- compel the making of a different decision.
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Effectively erase the decision
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EX P NUT
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Mandatory
Compels authority to do the things required to do.
Ex P Equal Opportunities commission
To make a compelling order would be unnecessary and discourteous- only used when no other action worked.
Prohibiting Order
Prohibits anticipated unlawful conduct
Ex P Liverpool Fleet Taxi
Council were going to increase cap on number of taxi drivers. Wanted to restrict until consultation. Allowed a prohibiting order
Injunction
Preferred. Provide same effect as mandatory and prohibiting orders- but are more flexible as can be gained in normal and section 53 proceedings. Also available in interim and final form.
Re M
Failed to listen to order preventing removal of asylum seeker from UK pending appeal. Injunctions could be made against ministers in professional capacity.
RELIES ON POLITICAL ADHERENCE. SP ISSUES.
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Declarations would usually be sufficient
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Declaration
Authoritative statement by courts of the issue.
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public and private
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interim and full
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Non-coercive→ relies on political and public pressure
Re M: declaration would usually be sufficient. Injunction unlikely.
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Royal College of Nursing v Dept of Health- used declaration to give opinion on abstract point of law about nurses' roles in termination.
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Damages
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Civil Procedure Rules section 54(3)(2)
NOT AVAILABLE ALONE- discretionary alongside another remedy
Judicial review as a constitutional fundamental
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Lord Neuberger
Increasingly essential if we have an increasingly powerful executive.
Lord Hope
Legislative changes, such as cutting back on time limits have all sorts of consequences- better to left judiciary get on with it
Feldman
Time limits counter intuitive
Deterrence effect to unaccustomed authorities
Leads to litigious departments willing to fight (Home Office) versus non litigious LAs etc.
Growth of JR
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Feldman
No clear way to know how many judicial review claims. JR usually at peak when no clear check on executive. Lord Mustill in Fire Brigade's union
Access to JR
Limited- spatially and economically variable.
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Geographically- London centric
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Deprivation
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Social mobility- cost- legal aid cuts
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Judicial discrepancy
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Burdens on court service
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Alternative redress
Alternatives
Government tried to introduce alternatives to reduce cost and delay of judicial review
2002- JR lite- paper based statutory review
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2005- Single Tier immigration and asylum tribunal
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2009-2010- Tribunals, Courts and Enforcement Act 2007. Appeals process from first and upper tribunals in limited situations.
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Increased use of settlement/ arbitration under civil procedure rules.
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Cart
Contribution from ex husband amended without consultation- wanted review0 went through first tier and upper tribunal. Wanted JR. Held that could have JR of upper tier tribunal- but only on grounds of outright excess of jurisdiction. Only allow appeal of upper tribunal on same grounds as appeal to upper tribunal- where important point of principle or another compelling reason.
Bondy and Sunkin
62% resolved by dialogue
34% before permission of court
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most before substantial hearing
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Courts' suitable platform?
Lack institutional competence
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Not specialised
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Slow
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Expensive
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Unsuited to polycentric issues and matters of policy
Bromley
Decision that GLC acted improperly in not cutting fairs. Neglected wider impact. Polycentric.
Allison
Judicial restraint is unsatisfactory whilst judicial activism is ill informed
FP (Iran)
Rule to continue immigration appeal case in absence of C. Held that rule placed speed before fairness→ rules changed to allow that courts may continue
Burmah Oil Case
Compensation said to be payable to those who had property destroyed in Burma. Statute introduced to explicitly reject liability→ PS
Much impact of JR is political- consequences and ideas political.
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