53 terms

Judicial Review

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Scottish Old People's Welfare Council
a) Extended the definition of "title". Members had the rights in question (since they were conferred on citizens in general) so the organisation had title to bring the claim on their behalf.
b) Standard of "interest" required to be material/sufficient. They were not looking for a specific benefit for them or their members but a broader public interest and so was not enough.
D&J Nicol v Dundee Harbour Trustees
The original definition of title to sue which includes any party to a legal relationship that confers a right on the person seeking to show title (a right that has been infringed/denied).
Rape Crisis Centre
a) Association sought to ban Mike Tyson from entering the country however the right to do so was conveyed on the officials (of the immigration board) and not the general public so the organisation had no title.
b) As they were dedicated to the awareness of the dangers of rape the issue went to the heart of the organisation and this was a relevant "interest" even if it was not pecuniary.
AXA General Insurance
The test of "title and interest" was replaced by the requirement of "sufficient interest" and no need for title at all. Scottish judges in the Supreme Court denounced the old test, the new being far less restrictive and not based on private law, whilst still noting the difference between someone with interest and a general busy body.
GCHQ (CCSU v Minister for Civil Service)
Civil servants were banned from entering trade unions by the Prime Minister without any outside consultation. The case outlined the grounds for judicial review as "illegality, procedural impropriety and irrationality" non-exclusively, with the possibility for development in areas such as "proportionality".
D&J Nicol v Dundee Harbour Trustees (2)
Illegality: There was a legal power to run commercial ferries back and forth but this did not extend to a right to run "pleasure trips" and was struck down on the grounds of excess of powers.
Bromley LBC v Greater London Council
Illegality: Duty imposed to develop policies for integrated and efficient transport (including deficits being made up in consecutive accounting periods). A manifesto claim to reduce fairs was offset by increasing rates in the boroughs. The power to make such grants was discretionary but limited and running in a deficit was in excess of the powers. Also a breach of fiduciary duty.
R v Home Secretary ex parte Venables
Illegality: 8 year olds who murdered a toddler and the sentencing officer (Home Sec) said he would treat them as though they were adults. This was a misdirection as by statute he must have regards to the interests of a child offender. This was an error in law on his part, and invalid.
Anisminic v Foreign Compensation Commission
Illegality: companies in Egypt were sequestrated by Egyptian authorities during wartime. Later a compensation fund was set up but drafted to exclude Anisminic. They protested on the basis of an error in law and it was found that there is no distinction between jurisdictional and non-jurisdictional errors and was allowed.
Young v Fife Regional Council
Illegality: Committee structure was used to make decision with further sub-committees to make some of these. The sub-committees were held to be an unlawful delegation and the decisions had to be taken by the top committee.
Ellis v Dubowski
Illegality: Statute required the local authority make decisions on cinemas but it was delegated to the BBFC as they seemed more qualified in a contentious area. This was an unlawful delegation as the power was strictly conferred on the council.
Local Government (Scotland) Act s56/57
Illegality: In general, local authorities have the power to act through sub-committees/officers.
Carltona Principle (Carltona Ltd v Commissioners of Works)
Illegality: Ministers do not have the time to perform every decision of their office and so sub-delegation is allowed through an official (civil servant) as an alter ego of their minister.
Sommerville v The Scottish Minsters
Illegality: The Carltona Principle applies in Scottish Government as well.
Sagnata v Investments Ltd v Norwich Corp
Illegality: a blanket ban on amusement arcades in Norwich was not allowed as it meant certain applications would always be refused (an unlawful fettering of their discretionary power).
Miss Behavin' v Belfast CC
Illegality: A blanket ban on sex shops in Belfast is technically unlawful fettering but was allowed on the grounds of public policy. City locations were in too close proximity to schools/family shopping areas/bus stops etc.
R v North & East Devon HA ex parte Coughlan
Illegality: A severely disabled woman was guaranteed a place for life at a nursing home (an unlawful fettering of a place) nut which also creates a legitimate expectation. This can be allowed only where there is an "overreaching justification" as in this case where there is a substantive legitimate expectation.
Municipal Council of Sydney v Campbell
Illegality: Compulsory purchase power was granted where necessary for development and improvement of the city. Here, it was done for investment purposes. This was an invalid/improper purpose.
Congreve v Home Office
Illegality: Licenses bought before a planned rise in cost were threatened to be invalidated. However the Home Sec did not do this for the general public benefit and so he had improper purpose and the action would be invalid.
Highland Regional Council v British Railways Board
Illegality: A popular service was switched to times that no one would want so that they could be shut down on account of being "ghost trains". However, this was held as a device to avoid proper procedure for closure of a line (as the closure was contentious). Invalid on the grounds of an improper purpose to avoid costs and time of the full procedure.
R v Home Secretary ex parte Venables (2)
Illegality: The Home Sec stated that he was basing his decision to treat them as adults on public opinion and petitions however this was held to be an irrelevant consideration and could be struck down on those grounds. It is also the case that relevant considerations must be considered.
Human Rights Act 1998
s6(1) - A public authority is compelled to act in a manner which is not incompatible with the ECHR.
s6(2) - Exceptions.
R (Begum) v Denbigh High School
Illegality: Argued that uniform policy was contrary to religion and as such a restraint on her Article 9 rights. Held to be lawful on the basis of proportionality (the school is the best judge of what is needed in their individual environment).
Moss' Empires Ltd v Assessor for Glasgow
Procedural Impropriety: Even where the correct decision is reached it is possible a decision can be struck down on a procedural flaw, including the failure to inform the applicant of a right of appeal (as was required here).
Project Blue Sky Inc v Australian Broadcasting Authority
Procedural Impropriety: Non-compliance with procedure may be excused where it is not fatal to the decision (directory) but not where it is fatal (mandatory). This approach has been criticised for being too vague.
London and Clydeside Estates Ltd v Aberdeen District Council
Procedural Impropriety: The question of whether a failure in procedure is directory or mandatory is a spectrum of possibilities more than absolute alternatives.
Wang v Commissioner of Inland Revenue
Procedural Impropriety: Important test is whether the maker intended the specific part of the procedure to be complied with and a failure to result in complete nullity.
R v Soneji
Procedural Impropriety: Upheld the Australian position that the "directory v mandatory" was outdated. The question is whether the court could be fairly taken to have intended the decision be totally invalid if the procedural step in question was failed.
Shahid v The Scottish Ministers
Procedural Impropriety: The Scottish Courts embraced the new question however there is still confusion as he seemed to use the old definition and distinction.
McDonald v Burns
Procedural Impropriety: Where a private body is involved such as in this case (an ecclesiastical decision of dismissal) then there is a higher standard of "denial of natural justice" not simple failed procedure.
R v Secretary of State for Foreign Affairs and Commonwealth Affairs
Procedural Impropriety: As well as express provisions there are also generally implied conditions of "natural justice and fairness". This was held to include neither party communicating with the judge.
Hong Kong v Ng Yeun Shiu
Procedural Impropriety: Where it is not express, entitlement to a hearing can be implied from a legitimate expectation. Policy was laid down stating that a merit based decision formed during an interview for illegal immigrants, yet the applicant was expelled without this. Despite being illegal etc, the promise created a legitimate expectation and so not holding an interview was a breach of procedure.
Rooney v Chief Constable of Strathclyde Police
Procedural Impropriety: There is a legitimate expectation that all procedure laid down by the home secretary will be followed.
Walsh v Secretary of State for Scotland
Procedural Impropriety: There is a legitimate expectation that a prisoner will be released from prison on the originally appointed date.
Ridge v Baldwin
Procedural Impropriety: Audi alteram partem (right to a hearing) - "Is there an expectation of a hearing to be given? What is the content of that duty in the circumstances?"
R v Sussex Justices ex parte McCarthy
Procedural Impropriety: Justice must not only be done but be seen to be done "manifestly and undoubtedly" - Lord Hewart. Bias can amount to an automatic or potential disqualification.
Sellar v Highland Railway Co
Procedural Impropriety: Historically bias only applied in a pecuniary sense such as were an arbiter held shares in the company being arbitrated.
R v Bow Metropolitan Stipendiary Magistrates, ex parte Pinoche Ugarte
Procedural Impropriety: Lord Hoffman had at one time been a member Amnesty International who were lobbying strongly for extradition of the Chilean dictator. This amounted to "promotion of a cause" and is included in the definition of actual bias now.
Johnson v Johnson
Procedural Impropriety: The test for a potential disqualification is "fair minded and informed observer having considered the facts would conclude there is a real possibility of bias in the trial". The observer is a reasonable member of the public who is neither complacent nor unduly sensitive or suspicious.
Helow v Secretary of State for the Home Department
Procedural Impropriety: "fair minded and informed observer" also includes characteristics of reserving judgement until they understand both sides of the argument and approach and is still detached.
Locabail Ltd v Bayfield Properties Ltd
Procedural Impropriety: Every case turns on the fact but a judge will not be excluded on bias grounds based on religion, ethnicity, age, gender, class, color etc. Nor on upbringing/background.
Davidson v The Scottish Minsters
Procedural Impropriety: One of the judges on a case about an Act of the Scottish Parliament was Lord Advocate at the time it was passed. His role in creation disqualified him.
English v Emery Reimbold & Strick
Procedural Impropriety: Justice will not be done where it is not apparent to the parties why one has won and the other lost.
Lutton v General Dental Council
Procedural Impropriety: There is no general rule that reasons must be given but fairness and determining whether is intra vires may require it.
Rooney v Strathclyde Joint Police Board
Procedural Impropriety: Where there is no duty to give reasons but reasons are given (which disclose an error in law) there is no defence that there was no duty yo give reasons and a review can be based on the reasons given.
Wordie Property Co Ltd v Secretary of State for Scotland
Procedural Impropriety: A decision must leave the informed reader and the court in no real/substantial doubt as to what the reasons and material considerations were.
Associated Provincial Picture House Ltd v Wednesbury Corporation
Irrationality: "A conclusion so unreasonable that no reasonable authority could ever have come to it". Wednesbury Unreaonableness - a decision so outrageous it defies logic and accepted moral standards that no sensible person could have arrived at it.
R v Chief Constable of Sussex, ex parte International Ferry Traders
Irrationality: Wednesbury definition was too strict and the test should be simplified to a general standard of reasonableness, not a super standard.
R v Secretary of State for the Environment, ex parte Nottingham CC
Irrationality: Courts will only intervene in extremely exceptional circumstances with regards to routine allocation of finances by qualified bodies as they are unelected and unqualified in specific areas and should not place their views over those of the officials.
R v Secretary of State for the Home Department, ex parte Bugdaycay
Irrationality: courts are far more willing to intervene where there is a potential human rights issue. A decision about an asylum seeker who would be harmed on return to his country must undergo "most anxious scrutiny".
R v Ministry of Defence, ex parte Smith
Irrationality: The more substantial an interference with human rights the higher the justification required to be satisfied the decision was reasonable. A ban on homosexuals in the army was something the courts felt unable to displace even with this consideration.
Woods v Secretary of State for Scotland
Irrationality: Refusal to reward an entire allowance of a student based on a missed deadline was held to be "highly unreasonable" and so met the test and was voided.
La Belle Angele v City of Edinburgh Licensing Board
Irrationality: Issue with flyer-posting by bands of the venue and this was used in considerations when refusing a bar license renewal. This was an irrelevant consideration and the decision was struck down as the decision was "highly unreasonable".
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