Judicial Review

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Judicial review is a procedure used by an individual to make an application to the courts if it is believed that a public body has acted unlawfully.

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Unlawful in public law includes:

Illegality - failing to apply the relevant law to a decision

Irrationality - taking the most obviously illogical decision / 'manifestly absurd decision'

Procedural impropriety - following the wrong procedure to come to a decision.

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Preliminary issues:

Delay

Ouster clause

Standing

Time Limits

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Delay: under Senior Courts Act 1981 s.31 (6) & the Civil Procedure Rules 54 (CPR 54) an application could be rejected if there is a delay of more than 3 months between the date of the decision and the application made. (Jackson 1985).

Ouster Clause: states that a decision will not be in question in any legal proceeding as seen in Anisminic Ltd v. Foreign Compensation Commission (1969). The case explains that if a decision is valid it is protected from review & if it is not valid then the ouster clause will not protect the decisions.

Standing: This decides who can & cannot bring in a claim for judicial review. Under Senior Courts Act 1981 s.31 (3) the courts will not grant the permission unless it is belived that the application has a sufficient interest in the matter which the application relates. A fexible test which gives the courts some discretion as to whether a decision should be accepted will be carried out.

Time limits: sometimes a statute will contain an ouster clause which operates after a time limit (usually 6 weeks) has expired for judicial review.

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Illegality (abuse of power) - Failing to apply the relevant law to the decision:

The power can be used where there is a wrongful delegation & where one is acting under the direction of another.

It can be used when the Human Rights Act 1998 has been breached & where the policy has been abused.

Illegality can be applied to fettering of discretion, unauthorised purpose & irrelevant considerations as well as material influence and dual purpose.

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Error of fact: Getting the facts wrong (i.e. R v. Secretary of State for the Home Department, ex parte Khawaja (1984) - removal was unlawful as there was NO JURISDICTIONAL ERROR OF FACT.

Error of law: getting the law wrong, where the decision maker misunderstands his power (Anisminic Ltd v. Foreign Compensation Commission 1969) - the foreign compensation act had been misinterpreted

If a decision is one of illegality - ultra vires - error of law / error of fact which effects a decision will always be subject to judicial review.

Irelevant considerations: Public bodies making irrelevant considerations when making a decision.

Public bodies can't take actions unless they have been given the power to do (usually by an act of parliament).

Dual purposes: The powers being used partly for the purpose & partly for other purposes.

Ultra vires: Beyond powers - exceeding the powers given by statue. Public authorities must not exceed the jurisdiction by purporting to excercise powers which they do not possess, by the House of Lords. (R v. Richmond-Upon-Thames LBC, ex parte Mc Carthy Developments Ltd (1992) - Richmond-Upon-Thames Ltd were held ulta vires as they did not have the power to charge under the statute.

No 'fettering discretion': No chaining up. This deals with a body when it has discretionary powers & decided to follow specific policy & fetter their discretion.

(British Oxygen Co. Ltd v. Minister of Technology 1971): House of Lords said that anyone who excercises discretion must not shut his ears to an application & must always listen to someone who has something new to say, even though they can create precise policies.

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Procedural Impropriety

Board of Education v. Rice: fair hearing (decision maker has a duty to act in good faith & listen fairly to both sides.

Procedural ultra vires: Soneji v. (2005) Lorships discussed the significance of non-compliance with statutory procedural requirements - rather than making a rigid distinction between mandatory / directory requirements, the consequences of non-compliance should be considered.

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Following the wrong procedures to come to a decision.

Covers areas where there has been a breach of statutory reqirements & case law / common law.

Procedural ultra vires

Procedural legitamite & substancive legitimate exectations - claims that have a legitimate expectation have a matter of substance which require: ( R IRAC, ex parte MFK Underwriting agents Ltd)

1. A full disclosure by the individual to the public authority.

2. The statement relied on should be clear, unambiguous & devoid of relevant qualifications.

Procedural fairness which is based on principles of natural justice which have been developed by the courts using inherent jurisdiction to determine common law principles.

Procedural fairness has been divided into 2 parts:

1. Bias - no man will be a jude in his / her own cause. Decision maker must not support 1 side with no material interest - if this is proven then the decision maker must be disqualified (R v. Gough 1993)

2. Principles of a fair hearing - Whether a person has been granted a fair hearing (i.e. Ridge v. Baldwin (1964) the courts would not apply the rules of natural justice unless they thought the body in question was performing a judicial function). Forfeiture case - Claimant was given no warning of dismissle & was not told about the case against him. Decision therefore was unlawful.

Bias direct, financial / other or indirect.

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Irrationality - taking the most obviously illogical / 'Manifestly absurd' decisions.

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The decision-maker must use his powers reasonably (i.e Associated Provincal Picture House Ltd v. Wednesbury Corporation 1948) - decision made was so unreasonable that no other reasonable body could have come to the same decision

Wenesbury principle:

If a local authority comes to a concludion that it is so unreasonable that no reasonable authority could ever come to it, then the court can interfere.

Very few cases succeed on the grounds of irrationality.

Proportionality: R (on the application of Daly) v. Secretary of State for the Home Department (2001) - the House of Lords refused to apply the proportionality test to the doctrine of Europe until the ECHR was incorporated into domestic law.

The proportionality test allows the courts to go further in reviewing executive decisions, because it enables them to consider the alternative measures which is subject to judicial review. With Irrationality a measure must be upheld so long as it is irrational in itself.

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Exclusivity rule was introduced in O'Reilly v. Mackman (1983):

The effect of this rule is that review proceedings against a public authority may fail because the applicant has chosen the wrong procedure & regardless of whether he / she has established the grounds of challenge.

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It would as a general rule be contary to public policy to permit a person to enforce public law rights via ordinary (private law) action.

Two exceptions to the rule:

1. Where the invalidity of the decision arises as a 'collateral issue' in a private rights claim.

2. Where non of the parties objects to the use of private law procedure.

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The judicial remedies include

Public law remedies:

- Injunction

- Damages

- Declaration

Preogrative orders:

- Quashing order

- Mandatory order

- Prohibiting order

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Public law remedies:

Injunction - an injunction can prevent a decision until its final hearing & it can be granted under section 31 (1) of the Senior Courts Act 1981 against government ministers (R v. Secretary of State for the Home Department, ex parte Factortame).

Damages - court may be able to award damages in ordinary civil proceedings & is able to grant damages even if the claimant is seeking other relief i.e Quashing order. (R v. Secretary of State for Transport, ex parte Factortame Ltd (1998)

Declaration - the court will declare means that it will confirm but will not change the legal position or the rights of a party.

Prerogative orders: (Senior Courts Act 1981 s.31)

Quashing order - deprives a decision of legal effect

Mandatory order - enforcing performance of duties onto public bodies

Prohibiting order - orders a public body to refrain from an illegal action

Declaration - confirms but does not change legal position of parties (R v. Panel on Takeovers and Mergers, ex parte Datafin 1987) -

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The Datafin (1987) case must be used to decide whether the decision maker is a public body.

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According to the Civil Procedure Rules 54 (CPR 54) a claimant must complete the claim form within a minimum of 3 months after the grounds arose.

Jackson (2005): there were difficulties in obtaining a legal aid grant, therefore a copyright certificate for plans / good reasons is required for time to be extended.