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78 Cards in this Set
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- 3rd side (hint)
Grounds for Review |
Illegality Procedural Impropriety Unreasonableness/Irrationality Legitimate Expectation |
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Judicial Review |
- Vitaly important - Practical implementation of the Rule of Law, taking place through the review of the actions of decision-makers. (Jowell) |
Why JR is important? |
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Illegality Wrong Person Error of law Beyond powers Ignoring relevant consideration Fettering of discretion |
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Vine v NDLB |
Only the designated decision maker will make a decision. The Court may strike down as an ultra vires. |
decision maker must be designated |
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Ex p MaCarthy and Stone |
A decision will be quashed if the decision maker has no power to make it. |
decision maker has no power |
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Anisminic v FCC Re:
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- Error of law will make a decision a nullity - ouster clause will not deprive the court to judicially review decisions. |
- error of law - misunderstood the rules - ouster clause |
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AG v Fulham Corp Re: Ultra Vires |
Means an act or decision that goes beyond the boundaries of the legal power accorded to the body concerned. |
act or decision above its powers |
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Liversidge v Anderson |
Ultra vires can be allowed in times of emergency |
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Improper Use (Abuse of Discretion) |
When power is granted by statute, it must be used for the purpose that the statute intended. Padfield v Min of Agriculture and Congreve v HO |
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Padfield v Min of Agriculture |
Held that the minister's decision was unlawful because the statute did not intend him to exercise his discretion in that way. |
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Congreve v Home Office |
Statutory powers cannot be used for unauthorised purpose. |
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ex p Venables and Thompson |
SSHD had taken into account public opinion and had not considered the welfare of applicants. |
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Anisminic v FCC |
'Shall not be questioned' clauses - but a decision was made in mistake of law can be quashed by court. |
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Colleen Properties v Minister of Housing Re: Lack of evidence |
Decision must base its conclusion of fact on the evidence before it. |
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Fettering of Discretion (Abused of Power) |
If the decision maker was granted a discretion, he must not refuse exercise that discretion Example: British Oxygen |
British Oxygen v Board of Trade |
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Relevant and Irrelevant Considerations |
Decision maker must have regard to relevant matters and disregard irrelevant matters |
R v CICB ex parte A where the Doctor's advise should not have been disregarded as it was a relevant consideration and crucial in the decision. |
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Error of Fact |
The factual basis of the decision is incorrect. R v Criminal Injuries Compensation Board ex parte A |
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Criminal Injuries Compensation Commission ex p A |
A decision in "crucial matter" that was taunted with a material error of fact could be quashed. |
crucial matter with error of fact --> decision is quashed. |
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British Oxygen Re: Unlawful failure to exercise discretionary power |
It must not apply policy rigidly, but rather decided on the merits of each case -whether exception to policy should be made. Compare: R (Corner House Research) v Director of SFO |
Decided on merits --> is there merits? |
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Irrationality Grounds |
Is the decision is unreasonable that no reasonable person acting reasonably could have made it, or outrageous that it defies logic? CCSU |
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Roberts v Hopwood |
Discretionary powers must be exercised reasonably |
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Wednesbury Principle |
A conclusion which is so absurd that no reasonable authority could have ever come to it. |
Unreasonableness |
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Backhouse v Lambeth LBC |
Increased rent of an unoccupied and unfit house by £18,000 a week! |
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Proportionality |
Means that there must be a reasonable relationship between the objective being sought and the means used to achieve it. |
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Razgar v SSHD UKHL |
Is the interference in accordance with the law and is it proportionate to the legitimate aim being pursued? |
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Al Rawi v Foreign Secretary |
Decision should be reasonable andproportionate to the legitimate aim. |
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Lloyd v McMahon Re: What fairness requires |
what fairness requires depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework |
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Procedural Impropriety |
A failure to observe express procedural rules laid down by statutes (Aylesbury v Mushrooms) |
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Rule Against Bias |
Direct Interest = Automatic Disqualification (Dimes v Grand Junction Canal) Compare: McGonnel v UK |
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Ex p Pinochet |
It is not enough to simply say bias - without more |
Bias |
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Nemo Judex in Causa Sia |
Forbid bias in decision making. |
Forbid bias |
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Locabail (2000) |
Personal animosity could tantamount to bias.S |
Animosity |
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Audi Alteram Partem Right to be heard |
Both sides should be heard in making certain decisions. |
Both sides should be heard. |
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Lloyd v McMahon |
Opportunity to make full representation UNLESS - waived the right to a fair hearing |
Full representation unless waived the right to a fair hearing. |
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Ex p Shoosmith |
Without improper motive, a decision will stand. |
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Legitimate Expectation |
A legitimate expectation may arise from a representation or promise, a consistent past practice and the conduct of the decision maker. |
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Ex p Liverpool Taxi Fleet |
Taxi drivers' legitimate expectation for them to be consulted to increase taxi cabs. |
Legitimate expectation |
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GCHQ Case |
Legitimate expectation may arise on express promise or from existence of regular practice which claimant can expect. Decision to refuse defies logic. |
Legitimate expectation. Decision defies logic. |
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AXA General Insurance Ltd v Lord Advocate |
It is not unthinkable that the gov't may seek to abolish judicial review. But the Rule of Law requires that judges must retain the power to insist that legislation of that kind is not law. |
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Governing Body of Dunraven School ex p B |
Successfully applied for JR as he had not been informed of the main evidence against him. |
Applied JR as no information given against him. |
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Ex p Datafin Ltd |
If the body is a public body OR exercising public function, then it is subject to JR. |
JR only applies to public bodies. |
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Jowell |
Judicial review is vitally important as it is the practical implementation of the Rule of Law through the review of the executive's actions. |
JR of executives actions. |
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The 6 Preliminary Requirements of JR |
1. Amenability to JR - Public Body or Public Law? - ex p Datafin 2. Standing - locus standi; ex p Greenpeace; ex p WMD 3. The Limits - CPR 54.5(1)(b); S.31 (3) Senior Courts Act 4. Ouster Clause? Total -Anisminic v FCC; Partial - Ex p Ostler 5. Grounds of Challenge? Irrationality; Illegality; Procedural Impropriety; Breach of the ECHR right; (use words like: irrelevant considerations, legitimate expectations, and rules against bias) 6. Remedies? |
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S.31 (3) Senior Courts Act and CPR 54 |
The court shall not grant permission unless it considers that the applicant has sufficient interest in the matter to which application relates. COMPARE: Ex p Rose Theatre Trust Co. |
"Locus standi" or Standing |
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CPR 54.5(1)(b) |
Claims must be brought promptly and in any case within 3 months from the date of the judgment. COMPARE: O'Reilly v Mackman and ex p Ostler and ex p Carswell |
JR claim must be made "promptly" and /or within 3 months. |
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Ex p Carswell |
The court may extend the time limit if there is a good or exceptional reason. Compare: O'Reilley v Mackman |
Extension of time can be granted on good and exceptional reasons. |
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Porter v Magill |
The decision will be quashed if 'fair-minded after considering [relevant] facts believe that there is bias, the decision will be quashed. |
'Fair-minded' believe there is bias. |
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O'Reilly v Mackman |
Failure to bring a JR action in time will not be allowed. COMPARE: CPR 54.5(1)(b) |
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Ex p Philippine Airlines |
A person need to know the case against him as confirmed in W (Algeria) v SSHD COMPARE: Governer of Dunraven School ex p B |
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Ex p Rees Mogg |
It was found that the applicant has standing "because of his sincere concern for constitutional issues". |
Standing granted -->sincere concern |
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Ex p World Development Movement |
Was granted 'locus standi' because of several factors such as their expertise of the related issue. Compare: Ex p Rose Theatre Trust Co |
Locus standing --> pressure group |
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Ex p Greenpeace |
The courts recognise the importance of the presence of groups representing affected people living in the area. COMPARE: ex p National Federation |
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Ex p National Federation |
Courts sometimes show reluctance to allow challenges by interested groups. COMPARE: with ex p Greenpeace |
Standing |
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Ex p Rose Theatre Trust Co |
Pressure groups whose only interest in a decision is concern about the issues involved will not in general have locus standi to challenge decision. Compare: Ex p Greenpeace; ex p WDM |
Standing |
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Jowell and Lester |
Tautologous - a decision is unreasonable if a reasonable an could not have made it. Compare: Wednesbury principle |
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Railtrack plc v Guiness Ltd |
Judicial review maybe appropriate where decision is reached upon an incorrect basis of fact 'due to misunderstanding or ignorance' |
JR on incorrect fact --> misunderstanding and ignorance |
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Ex p Khawaja |
Error of fact in the decision will be quashed. |
error of fact |
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MaCarthy Ltd v Smith |
Judicial observations that it is possible for Parliament to expressly repeal ECA 1972 |
express repeal of ECA 1972 |
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Ex p Ostler |
A clause limiting appeals of decision less than 3 months was allowed. |
< 3 months to appeal was allowed |
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Remedies for Judicial Review |
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R (Corner House Research) v Director of SFO |
The duty to exercise discretion may be trumped by national security concerns Compare: British Oxygen |
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S.7 HRA 1998 |
A person who claims that a public authority has acted in a way which is made unlawful by section 6(1) may—(a)bring proceedings against the authority |
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S6 (1) HRA 1998 |
It is unlawful for public body to act in not in accordance with Convention rights |
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Duty to give reasons |
There is no general obligation to give reasons for a decision in English law. |
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No duty to give reasons |
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Ex p Doody |
No general duty to give reasons if no interference with legal rights. |
No duty to give reasons -if no interference with legal rights |
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ex p Institute of Dental Surgery |
no duty to give reasons where to do so would be excessively onerous due to complexity |
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Ex p Huddleston |
No general duty to give reasons on administrative decisions.
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Duty to give reasons |
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R (West) Parole Board |
Oral hearing would not be considered necessary in marginal cases. |
No oral hearing for marginal cases. |
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Duty to Give Reasons (exceptions) |
Duty to give reasons where there is conflict of factual evidence and it is unclear what view of the facts the decision maker took.Ex p Cummins
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Duty to give reasons. |
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Ridge v Baldwin |
Lord Reid (obiter) "the crucial characteristic of a hearing is that a person's rights would be affected by the outcome. |
Crucial characteristic of a hearing -->person's rights are affected. |
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Stefans v General Medical Council |
Duty to give reasons for cases with 'judicial character' |
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Lord Bingham on ex p Murray stated whether reasons should be given: |
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When is it reasonable to give reasons? per Lord Bingham on ex p Murray |
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JR will unlikely to succeed |
Just because no reason was given doesn't mean that JR will succeed, |
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'Shall not be questioned' clauses |
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ex p Al Fayed |
S.44(2) BNA 1981 SSHD stated that in naturalisation: 'shall not be subject to appeal or review in any court.' Lord Woolf: "Parliament did not intend to exclude judicial review in cases alleging unfairness and discrimination". |
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Finality clauses |
'shall be final' clauses does not impair judicial review. See ex p Gilmore |
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