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36 Cards in this Set
- Front
- Back
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What is judicial review?
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- The court reviews the legality of the decisions of ministers, government departments, local authorities and public bodies. - Can arise in relation to court fees, nuclear power policies, healthcare rationing, licence applications etc. - Varies in intensity depending on the subject matter - Court will look at governments stance on matter |
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Chief Constable of North Wales Police v Evans
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- Judicial review is concerned with the decision making process not the decision |
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Grounds for judicial review: Council of Civil Service Unions v Minister for the Civil Service |
1. Illegality 2. Irrationality 3. Procedural Impropriety |
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What can the Court do?
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- Order the public body to do something by making a mandatory order - Order the public body to do something by making a prohibiting order - Make a declaration that the defendant has acted unlawfully - Cannot be used to reverse or overrule or replace a decision |
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When is judicial review appropriate?
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- If D's decision is a public law matter |
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What is a public body?
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- A body's duties, powers an sanctions are public if they affect the general population and can be imposed without consent |
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R v Panel of Take-Overs and Mergers
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When deciding whether a body is a public body court must consider: - The source of power - Nature of bodies duties - Consequence of bodies decisions Can be subject to JR if source is not solely the consent of those over whom it exercises its power provided it performs PL duties and is supported by PL sanctions |
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R v Disciplinary Committee of the Jockey Club
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Bodies may be subject to JR if: - It has been woven into the fabric of public regulation - It is integrated into a system of statutory regulation - It is carrying out a function normally carried out by a government department - It is carrying out a function that would be done by a gov. dep. if it did not exist |
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O'Reilly v Mackman
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- Public matters brought to court by way of civil procedures may be seen as an abuse of process by C. - C may be seen to be trying to avoid the protection given to public bodies in JR. |
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What is the time limit on judicial review?
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C must seek permission within 3 months of becoming aware of D's decision.
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Rye v Sheffield City Council
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- Where it is unclear if it is a public matter C should seek permission anyway to avoid accusations of abuse of process. |
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Part 54 Civil Procedural Rules
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- Anyone other than C or D who is directly affected by the decision |
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Pre-Action Protocol
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- D is given 14 days to respond - If C is using a solicitor and relying on public funding this is the appropriate time to advise on and organise funding - If C does not think this is appropriate the reason must be stated on the claim form |
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Initial Procedure under Part 54 of the CPR
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- Claim form should include: decision being challenged; date of decision; date when C became aware of decision; factual background; grounds; remedy and whether there are any HRA 1998 issues - C must make a statement of truth and prepare a bundle of supporting documents - Copy of claim form should be served on D and any interested parties within 7 days |
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Illegality
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- Mistakes of jurisdiction - misinterpreting power or factual mistakes - Abuse of discretion - irrelevant considerations, not taking into account relevant considerations - Failure to exercise discretion - unlawful delegation - Acting contrary to s.6 HRA |
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Irrationality (Unreasonableness)
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Procedural Impropriety
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- Failure to deal with rules of natural justice -Failure to comply with other rules of procedural fairness |
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(Illegality) |
A public body must not go beyond its powers. |
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Simple Ultra Vires
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Court decides whether the PB has the power to do something.
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Ultra Vires of Statutory Powers
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- Established rules and presumptions of statutory interpretation are applied for this purpose together with the commonly used internal and external aids - Court then decides whether or not the action or decision lies inside the powers the statute confers |
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A-G v Fulham Corporation Ultra Vires Illegality |
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Fewings Case Abuse of Discretion Illegality |
- Local Authority had power to be used to the benefit of the society and community as a whole - Used personal morality as a factor - This was an abuse of discretion |
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Barnard v National Dock Labour Board Unlawful Delegation Illegality |
- Rules said they had to be sacked by a Committee of people - Successfully challenged sacking |
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Wednesbury Unreasonableness
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- Very high threshold - Abuse of discretion |
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Brind Case Unreasonableness Irrationality |
- Court justified need for such a high standard - Confines the jurisdiction exercised by the judiciary to supervisory as opposed to an appellate jurisdiction |
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Smith Case Irrationality |
- Argued that the decision interfered with their human rights and was irrational - Court refused to interfere as both Houses of Parliament had approved the legislation |
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R v Soneji Express Procedural Grounds Procedural Impropriety |
Court will consider the consequences of non-compliance as opposed to merely looking at whether or not it was a mandatory requirement. |
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Implied Procedural Requirements Procedural Impropriety |
- Court may imply in the circumstances that some forms of procedure should have been followed - About fairness, rules of natural justice |
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CCSU v Minister for the Civil Service Implied Requirements Procedural Impropriety |
- Always been consultation in the past - Court said there was legitimate reason to expect consultation now |
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Nemo Iudex In Causa Sua No Man Should be a Judge in his own Case Rules of Natural Justice Procedural Impropriety |
Actual Bias - hard to prove, person is unlikely to admit bias Apparent Bias - where actual bias can't be proved, persons can imply bias in circumstances. decisions can be challenged, quashed or set aside. Would the reasonably well-informed impartial person hold that there was a real danger of bias by this decision maker? |
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Gough Case No Man Should be a Judge in his Own Case Rules of Natural Justice |
- Defendant in robbery case claimed a juror may be biased due to his brother living next door and wanted a new trial - No real danger of bias |
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Audi Alteram Partem The Right to a Fair Hearing Rules of Natural Justice |
- Right to knowing case/decision against you - Reasonable time to respond to the case/decision - Polemis Case - served with a summons to court at 10:30am to appear at 2pm, tried to get case adjourned but couldn't and was convicted, conviction was quashed in JR - Right to be heard - the more serious the outcome of the decision the more likely you are to be granted an oral hearing - R (on the application of Shaffi) - C wanted to be reclassified, no courses he could take to qualify, court said he should be allowed to have an oral trial - Right to representation |
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Smith and Grady v UK Proportionality |
- Criticised the process of JR and irrationality saying it did not go far enough to protect peoples rights - Some people think that proportionality would fill that gap |
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DeFreitas v Minister for Agriculture Proportionality |
1. Is the objective you are trying to achieve sufficiently important to justify limiting a fundamental right? 2. Is the measure designed to meet the objective an rashly connected to it? 3. Is the means used to impair the right no more than is necessary? |
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R (on the application of Daly) Proportionality |
- Daly wanted to be allowed in to make sure they did not read legally privileged letters (breach art 8) - Court agreed and said less restrictive ways could be used, restriction was disproportionate
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