62 terms

Public- Judicial Review

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CCSU v Minister for Civil service
Diplock id-ed three gorunds for judicial review:
1. Illegality
2. irrationality
3. procedural impropreity.
Illegality and irrationality = substantive grounds for JR
Procedural impropriety = procedural grounds.

Illegality- Diplock def illegality is a failure by a decision maker to understand correctly and give effect to the law that regulates his decision making powers.
judicial review
JR is mechanisim by which courts can ensure that public bodies act within the powers that they have been granted and do not exceed or abuse those powers. Not concerned with merits of decision
illegality
heads of illegality
1. acting without legal authority
2. delegating powers
3. fettering of discretion
4. dual purpose
5. relevant/ irrelevant considerations
6 error of law/ error of fact

Illegality- Diplock def illegality is a failure by a decision maker to understand correctly and give effect to the law that regulates his decision making powers. CCSU v min for Health

Action is ultra vires if:
It is beyond the powers of the public body in question eiter bc the powers claimed do not exist or because they are exceeded or abused in some way.
acting without legal authority
mccarthy and stone. public auths cannot act without legal authority.
r v richmond-upon-thames LBC, ex p McCarthy and stone
Public auths cannot act without legal authority. HoL confirmed this here.
rule against delegation
General rule that decision making powers, once given by parliament, cannot be further delegated. Vine v Nat Dock labour Board.
Vine v National Dock labour Board
Confirmed the General rule that decision making powers, once given by parliament, cannot be further delegated.
ex p Association of first division civil servants
DPP subdelegated power to screen criminal cases to non lawyer executive officers who were not members of the CPS. HELD- beyond the powers of DPP to do this. Rules against delegation.
Carltona principle
exception to rules against delegation- Minister of Works subdelegated to a senior civil servant a decision whether to order the requisition of a factory during ww2. factory owner sought jr. HELD- Govt ministers subdelegating decision making powers to civil servants in their department IS ALLOWED.
Local Government Act 1972 s101
local auths may (subject to express provision) discharge their functions by committees, by sub-committees or through an officer or another local authority. Must make a formal resolution to do so. EXCEPTION TO RULES AGAINST DELEGATION.
Fettering discretion
If P provides a Public body witha discretionary power, the courts will not permit that body to restruct or 'fetter' that discretion.
2 ways:
1. Acting under the dictation of anohter. P auths cannot act under the dictation of another person or body. Lavender and sons v minister of hosuing and local governemt.
2. applying a general policy as to the exercise of discretion in too strict a manner. cases should be considered in like ways. pub auths often have to make decisions on many simililar cases, so may formulate their own policies to help them take consistent decisions, but anyone with a stat discretion must not shut their ears to an application and must be willing to listen to anyone with something new to say. British Oxygen v Minister of Tech
lavender & son v minister of housing and local government
Min of housing had fettered his discretion by not opening his mind to lavender's application. Decision was based on another minister's (Agriculture) objection.
British Oxygen v Minister of Technology
Mon of Tech developed a general policy and so rejected brit oxygens application. HELD- The min had right to make general policy, but only if it didnt preclude the Ministry from considering individual cases. ie applying general policy too strictly. must not shut ears to an app and listen to anyone with something new to say.
Using powers for improper or unauthorised purpose
Congreve v Home Office.
Congreve v home Office
Govt announces cost increase to TV licences, so people took out new licenses before ol ones expired to avoid extra cost. HO tried to revoke licenses unless they paid extra money.
HELD- HO had no authority to revoke licenses. Purpose was simply to raise revenure. This was a misuse of power conferred on Govt by P.
Dual Purposes
Westminster Corpn v LNWR
Westminster Corpn v LNWR
'Primary Purpose' Test
Pub auth arrived at decision based on more than one consideration, one was relevant - here to provide public toilets, the other- to create a public subway- was irrelevant.
HELD- Where there is a dual purpose behind a decision, provided the permitted/authorised purpose is the 'PRIMARY PURPOSE' then the decision is not ultra vire and should stand.
Here, the construction of the toilets was the primary purpose so found for Westminster Corpn.
R v ILEA ex p Westminster City Council
Dual purposes:
Test: Was the authority pursuing an unauthorised purpose, which primarily influenced the making of its decision?
Not established which test takes precedent yet.
Taking Account of Irrelevant Considerations or Failing to Take Account of Relevant Considerations
A pub auth must both disregard irrelevant considerations and take into account relevant considerations when exercising its powers.
Roberts v Hopwood
Roberts v Hopwood
Authority for taking account of irrelevant considerations.
Poplar council used powers to set wages 'as it saw fit'. They set a generous wage. District Auditor made Council made good losses stemming from paying so generously. Council sought JR.
HELD- Council took into account irrelevant considerations like 'social philanthropy' and 'feminist ambition.' Council also disregarded relevant considerations like wage levels in the market
Padfield v Minister of Agriculture
Taking into irrelevant considerations. Potential political embarrassment to the Minister was not a matter the Minister ought to have taken into account when refusing to consider the complaint.
Error of law
Errors of law which affect a decision will always be amenable to judicial review.
Confirmed in:
Anisminic Ltd v Foreign Compensation Commission
Anisminic Ltd v Foreign Compensation Commission
Error of law. HELD- The error of law that was made was not just wrong but outside the FCCs jurisdiction.
errors of fact
Courts more reluctant to allow JR for errors of fact than errors of law. Some are amenable though. Jurisdictional errors od fact: Khawaja

Other Errors of Fact
Not usually amenable to JR, though courts may still review in limited situations.
Khawaja
HELD- Decisions based on alleged errors of fact which go to the root of a public authority's capacity to act (ie. Jurisdictional facts) are reviewable.
R v London Borough of Croydon
Recent case confirming standpoint on errors of fact.
irrationality
Successful challenges under the irrationality ground of review require proof of a very high degree of unreasonableness.
Wednesbury Principle
CCSU v Minister of Health- So unreasonable that no reasonable authority would have have come to that decision.
Further development of Wednesbury principle.
Diplock- To be irrational the decision needs to be so outrageous in its defiance of logic, or of accepted moral standards that no sensible person would have arrived at it.
Associated Provincial Picture Houses v Wednesbury Corpn
Having regard to relevant considerations only, the decisionmaker came to a conclusion so unreasonable that no reasonable authority could ever have come to it.
Extended by CCSU.
R v ministry of defence, ex p Smith
To establish irrationality, the decision or policy should be beyond the range of reasonable responses open to the decision maker.
Wheeler v Leicester City Council
Irrationality: Not impossible to establish, though v hard.
Deo Prakash Limbu
Gurkha case. Gurkha could only stay if sufficient connection with UK. Irrational decision as reason ex-gurkhas hadn't spent much time in UK b/c they were abroad serving on behalf of the UK.
Procedural Impropriety
Third ground as stated by Diplock in CCSU.
About the steps leading to and the circumstances surrounding the tribunal's decision, rather than decision itself.
Many procedural reqs are found in statutes which confer the decision making powers.

Breach is called 'Procedurally ultra vires.'

Doctrine of Procedural Fairness
----Right to fair hearing
----Bias
Procedural Ultra vires
Rule against bias
PI. Depends on whether the interest the decision maker has in the outcome of the decision is direct or indirect.
Direct interest- Dimes v Grand Junction Canal Proprieters, ex p Pinochet Ugarte
Indirect interest- Indirect Interests
Eg. When a relative of the decision maker has an interest.
The court must investigate the relationship between the indirect interest and the decision, and decide whether the decision should be quashed on the basis of bias.
Magill v Porter, R (Gardner) v Harrogate Borough Council and Mr and Mrs Atkinson, ex p Hook
Dimes v Grand Junction Canal Proprieters
PI. bias. direct interest. HoL est'd: Interest which may lead to financial gain = direct interest.
Lord Chancellor made a decision in favour of Grand Junction, whom he had substantial shares in. He therefore had a direct interest.
ex p Pinochet Ugarte
PI. bias. direct interest. Catergory of direct interests extended to include non-pecuniary interests, where the decion maker is involved in promoting the same cause as a party to the case.
magill v porter
PI. bias. indirect interest. Test for indirect basis:
Would a fair-minded and impartial observer conclude that there had been a real possibility of bias?
What matter is how the decision would appear to an observer, not whether the decision was in fact decided by bias.
R (Gardner) v Harrogate Borough Council and Mr and Mrs Atkinson
PI. bias. Indirect interest. Case where magill vporter test applied.
ex p Hook
PI. bias. Indirect interest. Case where magill v porter test applied.
Right to a fair hearing
Board of Education v Rice, McInnes v Onslow-Fane
Board of Education v Rice
PI-fair hearing. Duty on decision makers to act in good faith and listen fairly to both sides.
Depends on context of individual cases.- A question of how much the claimant had to lose.
McInnes v Onslow-Fane
PI- fair hearing.
Three categories of claimant., depending on nature of their interest:
1. Forfeiture Cases
Cl has most to lose. Loss of something he had previously enjoyed.
Ridge v Baldwin

2. Legitimate Expectation Cases
Cl seeks renewal or confirmation of some license, or membership or office which he has previously held.
Liverpool Taxi Fleet Operators

Asif Khan

R (on the application of Greenpeace) v Secretary of State for Trade and Industry
3. Application cases.
First time applicants who merely seek license, membership or office not held previously. Should expect a lot less from their hearing than other 2.
McInnes v Onslow- Fane

Benaim and Khaida

This case was an application case.
Ridge v baldwin
PI. fair hearing. Forfeiture case authority. C has most to lose. Loss of something he had previously enjoyed.
Liverpool Taxi Fleet Operators
PI Fair hearing legitimate expectation case authority. Cl seeks renewal or confirmation of some license, or membership or office which he has previously held. Also Asif Khan and Greenpeace.
Benaim and Khaida
PI Fair hearing. Application cases.
First time applicants who merely seek license, membership or office not held previously. Should expect a lot less from their hearing than other 2. Also McInnes v onslow-Fane
losing right to fair hearing
If a decision is merely preliminary- may lose right to fair hearing. lewis v heffer
Lewis v heffer
PI Fair hearing. Example of where lost right to fair hearing, as only at preliminary stage.
Fairmount Investments v Sec of State for Environment
PI Fair hearing. CLAIMANTS MUST KNOW CASE AGAINST THEM AND HAVE THE RIGHT TO REPLY AT EACH STAGE OF DECISION MAKING PROCESS.
Right to reasons
No general duty to give reasons. R (On app of Hasan) v SoS for Trade and Industry. EXceptions- Cunningham, Doody
R (On app of Hasan) v SoS for Trade and Industry
PI. fair hearing. right to reasons. Law did not recognise a general duty to give reasons for an administrative decision.
ex p Cunningham
PI. fair hearing. right to reasons. exception to general rule. When a decision is taken which, in the absence of reasons, looks aberrant.
Ie. 'When the decision just looks wrong.'
Donaldson 'When it cries out for explanation.'
ex p Doody
PI. fair hearing. right to reasons. exception to general rule.
Personal liberty will give rise to reasons, but not many other cases will mean the reason has to be given. Where decision concerns length of prision sentence, cases where impact on person's rights is serious & where public interest reqs the giving of reasons.
right to oral hearing and cross examination of witnesses
Pi. Fair hearing. Every claimant is entitled to a FAIR AND REASONABLE hearing.
Authority:
Lloyd v McMahon
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Lloyd v mcMahon
PI. fair hearing. Right to oral hearing. What fairness requires will depend on the circumstances of each case, but every claimant, regardless of the category of case, is entitled to a hearing which is fair and reasonable in all the circumstances.

Claimant in a 'FORFEITURE CASE' is entitled to expect much more of a hearing for it to amount to a fair hearing, and that may include a full oral hearing.
ex p St Germain
PI fair hearing right to cross examination. There is a discretion whether cross examination should be permitted, but if fairness in the circumstances requires it, cross examination should be permitted.
making of delegated legislation
PI fair hearing making of delegated lex
bates v Lord Hailsham
Bates v Lord Hailsham
PI fair hearing making of delegated lex.
The natural justice rules DONT apply where the decisionmaker has a legislative rather than judicial function. This is because delegated lex ususally affects whole sections of the public rather than just individuals' rights. Fairness could req that each member of the public should be heard before legislation is made!
Procedural ultra Vires
Statutory procedural requirements placed upon decision makers by enabling Acts of Parliament which give them their powers.
Failure to comply with Mandatory reqs renders decision invalid on grounds of procedural ultra vires.
Failure to comply with a directory req does not.

If it is a mandatory requirement, the court would then look at whether there was substantial compliance.
Bradbury v London borough of Enfield
PUV. Non-compliance with a statute was a breach of a mandatory requirement. Education Act 1944 s13.
Borough failed to put up notices as required by statute.
mandatory requirement
PUV. failure to comply with mand req invalidates decisions on grounds of procedural ultra vires
directory requirement
PUV. Failure to comp with directory req does not invalidate decision.
Coney v Choyce
PUV. Same statute that required notice to be put up as in Bradbury- in a conspicuous place, in local newspaper and at entrance of school.
Complied with two out of three of these.
HELD- This was merely a directory breach.
In Bradbury, no notice given at all. In Coney they had not substantially prejudiced claims, because they had placed some notices.
Courts will look at wording of statute itself.
So test is: was it a mandatory req?
If yes, was there substantial compliance?

Has there been a failiure to fully/ substantially comply?
Is the procedural req'ment an important safegaurd? (eg time limit, notice, hearing, consultation, reaosns)
Has C suffered substantial prejudice?
If yes, likely to be a Mandatrory Req.
r v Soneji
PUV. Steyn- Courts should consider instead the consequences of non-compliance with a statutory procedure.
BUT this might be obiter, so can only be used in addition to test in Coney and Bradbury, not instead of.