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55 Cards in this Set
- Front
- Back
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What is the scope of Judicial Review in Scotland? |
The court of session has territorial scope over people in scotland |
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What case established "scope" of JR in Scotland? And what was the principle established? |
Tehrani v Secretary of State for the Home Department. - It was held that the petitioner must be able to show sufficient connection to Scotland in order to invoke the supervisory jurisdiction of the court of Session |
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what were other factors that were established in the Tehrani case about territorial scope? |
- in order to invoke the supervisory jurisdiction of the court of session, the petitioner must show a sufficient connection to Scotland. - The petitioner must be a resident in Scotland - The harmful effects that would occur of review wasn't taken in Scotland, must be felt in Scotland |
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How is the determination of any case to be made |
this is to be done by exercising UK jurisdiction even if it is in Scotland. the case is always to be determined by the court that first seized the matter- they must exercise their jurisdiction to provide the remedy sought |
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What is the exception to the "first court seized matter" rule? |
The existence of "forum non convenient' which means that if there is a more convenient court, it can take place there. |
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What is required for a competent judicial review to take place? |
There must be a tripartite relationship between: -the source of the decision making power, -the person or persons to whom that decision making power has been delegated. -and the person or persons affected by that decision making power. |
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What case deals with the requirements of a competent judicial review? |
West v Secretary of State Scotland 1992 |
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Locus standi in judicial review? |
This is a preliminary issue to be decided by the courts BEFORE proceeding to examine the issue under review. The court of session cannot review act of decision makers on its own initiative. |
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Who has standing in England? |
a person or applicant must have a sufficient interest in the decision. |
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Who has standing in Scotland? |
Before AXA: title and interest to sue was required After AXA/NOW/ The applicant must have sufficient interest in the decision, this is in line with the English Requirement. |
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Before AXA what did interest mean? |
This mean that the inters must have been such as to be seen to be MATERIAL OR SUFFICIENT. But interest is essentially a matter depending upon the particular circumstances of the case. |
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Cases dealing with interest (material and sufficient interest) |
Scottish Old People's Welfare council case |
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What happened in the Scottish Old people's Welfare case? |
in this case, the scottish old people's welfare sought judicial review of a circular that was distributed by the secretary of state for social security claiming that some of the provisions were ultra vires and erroneous in law. It was held in this case that the interest that the petitioner has must be seen to be material or sufficient and there must be a real issue. |
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what happened in the rape crisis case? |
boxer who had been convicted of rape had been allowed into the country as an exception, which was authorised by the secretary of state for the home office, as legislation allowed that people who had been convicted of a criminal offence would not normally be allowed into the country, unless in exceptional circumstances in this case it was held that although the petitioners did not have title, they had sufficient interest to challenge the decision. |
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case dealing with not having title |
rape crisis case |
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where can the procedure for judicial review be found? |
section 89 of the Courts Reform (s) act |
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step 1 of judicial review? |
before a petition for judicial review can proceed to a full hearing, there is a requirement for permission |
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in what circumstances would a court grant permission when it comes to judicial review? |
only if it is satisfied the the applicant has sufficient interest in the matter on a if the application has a real prospect of success. (the burden to prove this would be on the applicant for the review) |
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what is the power of the court in judicial review? |
the court exercises its supervisory jusridiction on petition for judicial review. Therefore they can make an order as it thinks fit - this is whether or not the order was sought in the petition |
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what are the remedies in JR? |
1. an order for reduction 2. order of declarator 3. suspension 4. interdict 5.implement 6. restitution 7.payment. e.g damages 8. or any interim order |
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where can the remedies of JR be found? |
rule 58.4 of the rules of the court of session |
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what are the grounds for judicial review? |
1. illegality 2. irrationality 3. procedural impropriety 4. proportionality |
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what comes under the heading of illegality? |
error of law unlawful delegation unlawful fettering improper purposes irrelevant considerations breach of convention rights |
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what does illegality mean? |
the GCHQ case defined it as: the decision maker understanding the law correctly which regulates his decision making and then giving effect to that (LORD DIPLOCK) |
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which case deals with the definition of illegality? |
GCHQ case - Lord Diplock |
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Which cases deal with excess of powers in illegality? |
D & J Nichol v Dundee harbour Trustees Mccoll v Strathclyde Regional council **** Bromley v Greater London council*** |
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mccoll v strathclyde regional council case? |
local authorities wanted to add floride into water supply in order to improve dental health. Statute (the water (s) act) had provision about providing "wholesome" water. Petitioner argued that it could be detrimental to health. Held, ultra vires. |
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Bromley LBC v Greater London council case facts? |
about GLC trying to increase price of public transport in order to fund another project. held ultra vires. |
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Bromley LBC v Greater London council case (other principles) |
- LA owed a fiduciary duty to its rate payers - LA has a position of trust - LA cannot unduly burden rate payers -the fact it was part of their election manifesto could not override its statutory obligations, and therefore their election manifest could not be regarded as binding. |
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where can the express powers of the local govt. be found? |
- Local Government (s) Act 1973 section 69 - Local Govt. in scotland Act 2003 section 20 (1) |
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local govenment (s) act 1973 section 69 states: |
a local authority shall have the power to do anything which is calculated to facilitate or is conducive or incidental to the discharge of any of its functions. |
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local government in scotland act 2003 section 20(1) states: |
A local authority has power to do anything which it considers is likely to promote or improve the well being of (a) its area and the persons within that area |
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What is error of law? |
where an administrative decision may be deemed unlawful where the decision maker has misconstrued the provisions empowering them to act. in this case the authority which made the decision must directs itself properly on the law or its decision MAY be declared invalid |
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what are the "Error of law" cases? |
r v home secretary ex parti venables anisminic v foreign compensation commission |
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r v home secretary ex parti venables |
this case was concerning young offenders who had committed murder the home secretary imposed a harsh sentence, it was held that due to legislation in place preventing the young offenders receiving the same treatment as adult offenders. This was said to be an error in law. |
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what is unlawful delegation? |
a person to whom an authority or decision making power has been delegated to from a higher source, cannot in turn delegate again to another, unless the original delegation explicitly authorised it. |
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cases to do with unlawful delegation? |
young v fife regional council |
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what happened in the case of young v fife? |
?? |
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what are the exceptions to delegation? |
local government scotland act 1973 s56-57 states that a LA may arrange for the discharge of any of their functions by a committee of the authority, a sub committee, an officer of the authority or by any other local authority in scotland. and these arrangements made shall not prevent the authority or committee by who, the arrangement is made from execising those functions. |
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what is the carltona principle? |
That officials are seen to be alter egos of their ministers and that powers and duties given to a minister can be exercised by officials that the minister is responsible to parliament. |
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in what case was the carltona principle founded? |
Carltona Limited v Commissioner of works 1943 |
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What happened in the carltona case? |
An order to requisition a factory was issued under defence regulations by an assistant secretary in the Ministry of Works. It was challenged on the ground that the minister had not personally considered the matter. It was held that government could not carry on efficiently unless civil servants could take decisions on behalf of the minister. |
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what is the scottish equivalent to the carlton case? |
Somerville v The Scottish Ministers 2007 SC 140 |
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what is unlawful fettering? |
this is where a decision maker has been given the discretion by parliament to make a decision, this discretion must not be prejudged or restricted by a binding rule the authority adopts. Decision makers must consider the matter on its merits and individual circumstances. |
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what is procedural impropriety? |
this is failure to observe basic rules of natural justice, failure to act with procedural fairness towards the person who will be affected by the decision BUT MAINLY it is failure by and administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred AND even when such failure does not involve any denial of natural justice |
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what case gives us the definition of procedural impropriety? |
CCSU v Minister for the civil service (GCHQ case) |
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what are the types of procedural impropriety? |
- breach of a express decision -breach of an implied provision or common standard. |
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what case illustrates procedural impropriety? |
Moss Empires ltd v Assessor for glasgow the petitioner was not informed that a right of appeal was available to him, which was enough to render the decision a nullity as there was an express provision |
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when can a decision be quashed under procedural impropriety? |
- if it does the wrong thing - if it does the right thing but in a wrong way |
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does the idea of procedural impropriety mean that courts need to follow everything enacted? |
not necessarily. Because there a mandatory and non mandatory requirements, however this is not used much anymore |
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what case deals with mandatory and non mandatory requirements? |
r v sonje in this case it was held that the mandatory/ directionary distinction had "outlived" its effectiveness. and this should be replace with the question: "whether parliament can fairly be taken to have intended total invalidity as a result go non compliance - Lord Steyn |
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when do provisions need to be followed? |
Wang v Commissioner of Inland revenue states that you look at: 1- legislatures intention 2- and if legislatures intention was that failure to comply with the provision should render a decision null and void INTENTION OF PARLIAMENT |
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what is the definition of irrationality in JR |
where a decision is so outrageous, illogical, and against moral standards that no sensible person who had applier his mind to the question could have arrived at that decision - this definition is found in CCSU v Minister for the civil service (GCHQ case) - this definition is also known as wednesbury unreasonableness |
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What is wednesbury unreasonableness? |
where a decision is so unreasonable, illogical and and defies acceptable moral standards that no sensible person who had applied his mind to the question could have arrived at that decision. (irrationality) - this was established in the: Associated provincial picture houses ltd v wednesbury corporation |
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what is the test for proportionality? |
1. has a protected inters been compromised by the decision in Q 2.was the interest compromised in the pursuit of some legitimate aim? 3. was it necessary to compromise the protected interest in order to achieve the legitimate aim? 4. is there an adequate relationshio of proportionality between that damage caused to the protected interest and the positive consequences that flow from achieving the legitimate aim? |
