Public Law Ii Judicial Review

Front 1

What is judicial review?

Back 1

Supervision by the courts of decisions made by public bodies that affect individuals.

Front 2

What does judicial review check that public authorities are doing? (2)

Back 2

Using their powers properly.

Adhering to the intention of parliament.

Front 3

What do the courts not do in judicial review?

Back 3

Remake, change or substitute decisions.

The decision making post is given back to the public body.

Front 4

Why do courts not change decisions?

Back 4

This goes against parliamentary sovereignty.

Parliament choose who makes what decisions.

Front 5

What do the courts assess and not assess about decisions during judicial review?

Back 5

Assess if it was lawful.

Do not assess if it was good or bad.

Front 6

Why does judicial review need to be limited?

Back 6

To prevent floodgates.

Front 7

How is judicial review limited? (3)

Back 7

Grounds of review.

Procedures.

Remedies.

Front 8

Who outlined 3 grounds of review and in what case?

Back 8

Lord Diplock.

GCHQ case.

Front 9

What are the 3 grounds of review outlined by Lord Diplock?

Back 9

Illegality.

Irrationality.

Procedural impropriety.

Front 10

Give an example of a judicial review and what was the ground?

Back 10

Challenge to SEN cuts.

Procedural impropriety.

Front 11

What does Lord Diplock say about illegality?

Back 11

The decision maker must correctly understand the law that regulates their decision making power and give effect to it.

Front 12

What are the 5 examples of types of illegality?

Back 12

Exercising a power they do not possess.

Using the power for an improper purpose.

Taking into account irrelevant considerations and not taking into account relevant ones.

Delegating power without authorization.

Unlawfully limiting their power.

Front 13

Who says that judges must determine the scope of the statutorily given power and monitor it's use?

Back 13

Lord Neuberger.

Front 14

What case is an example of exercising a power they do not possess?

Back 14

Public Law Project.

Introducing a residency test for legal aid was not in the scope of power given by s9 of LASPO to vary/omit legal aid services.

Front 15

What did Lord Neuberger say in Public Law Project?

Back 15

The court is upholding the supremacy of parliament.

Front 16

What case is an example of using a power for an improper purpose?

Back 16

Wheeler v Leicester City Council.

Front 17

What case shows irrelevant and relevant considerations being taken into account?

What was taken into account?

Back 17

Ex parte Venables.

Took into account public petition.

Did not take into account expert psychiatric report or mitigating circumstances.

Front 18

Why is it illegal to delegate power without authorization?

Back 18

Goes against parliamentary sovereignty as they chose to give a specific person the power to do something.

Front 19

What case shows delegated power being illegal?

Back 19

Barnard.

Front 20

What case shows delegated power not being illegal and why?

Back 20

Carltona.

Ministers have too many decisions to make on their own so can delegate power to their departments.

Front 21

What is the issue for the courts with claims that power is unlimited?

Back 21

Suspicious that power is unlimited.

Have to be careful in case that is what parliament intended.

Front 22

How do courts find limits to power?

Back 22

Look at the aims and objectives of the act.

Front 23

What case is an example of claimed unlimited power being illegal and what happened?

Back 23

Padfield.

Did not refer complaint as said he could chose when to refer them.

Had to refer all genuine and substantive complaints.

Front 24

What did Lord Reid say in Padfield?

Back 24

If the minister does not refer the complaints he is depriving the complainers of a remedy parliament intended them to have.

Front 25

What is the principle from British Oxygen?

Back 25

Cannot adopt a rigid policy and not hear arguments for exceptions to the policy.

Front 26

How does Lord Diplock outline irrationality?

Back 26

A decision that is so outrageous that no sensible person would have arrived at it.

Front 27

Why is irrationality hard to use?

Back 27

There is a very high threshold.

Front 28

What was outlined in Wednesbury?

Back 28

Something overwhelming is required to prove a decision was so unreasonable.

Front 29

When is the threshold for irrationality reduced slightly?

Back 29

When the decision interferes with fundamental rights.

Front 30

What does Smith outline about interference with fundamental rights?

Back 30

The more interference with human rights, the more justification required by the courts that the decision was reasonable.

Front 31

In which case was the lowered irrationality threshold still too high for?

Back 31

Smith.

Front 32

What has irrationality been argued to be?

Back 32

Near impossible to use.

Front 33

What was outlined about fundamental rights in Pierson?

Back 33

Courts will assume that parliament did not intend to interfere with fundamental rights.

Front 34

What is proportionality seen as an alternative test to?

Back 34

Irrationality.

Front 35

Why do some people prefer proportionality to irrationality? (3)

Back 35

Irrationality is too hard to use.

Due to the high irrationality threshold public bodies could pretty much do what they wanted.

It better protects fundamental rights.

Front 36

What is proportionality?

Back 36

Courts assessing the balance struck between meeting legislative objectives and adhering to fundamental rights.

Front 37

What are the 3 questions to be asked for proportionality?

Back 37

Is the legislative objective important enough to justify limiting a fundamental right?

Does the decision give effect to the objective?

Does the decision limiting the right do more than is strictly necessary?

Front 38

What does proportionality bring courts closer to doing?

Back 38

Assessing the merits of a decision.

Front 39

What happened in the case of Daly?

Back 39

Decided there was a disproportionate balance between prisoner privacy and meeting the objective of prisoner security.

Front 40

What happened in the case of Pham?

Back 40

Lords Nance, Sumption and Reed suggested that proportionality has been accepted by courts.

Front 41

What did Lord Mance say in Pham?

Back 41

Proportionality and reasonableness are the same at their core.

Front 42

What happened in the case of Kenyu?

Back 42

The supreme court refused to say if proportionality has replaced irrationality as they said it was not a decision for 5 people to make.

They said the two existed alongside one another.

Front 43

How does Lord Diplock outline procedural impropriety?

Back 43

Failure to act with procedural fairness and to follow procedural rules.

Front 44

What do courts supervise in procedural impropriety?

Back 44

The way in which decisions were taken.

Front 45

What are the two parts of procedural impropriety?

Back 45

Rule against bias.

Right to a fair hearing (not studied).

Front 46

What case shows that public bodies must comply with statutory rules (as well as common law rules)?

Back 46

Herron.

Front 47

What do courts look at to decide if non compliance with statutory procedural rules is sufficient to justify judicial review?

Back 47

Look at the consequences of non compliance.

If the consequences are not bad the non compliance will not justify judicial review.

Front 48

When are decision makers automatically disqualified for bias?

Back 48

If they have an economic interest in the outcome of the case.

Front 49

What happens to the decision if the decision maker is automatically disqualified?

Back 49

The decision it automatically quashed as they were not allowed to make that decision.

Front 50

Does it matter if the actual decision was bias?

Back 50

No, just if the decision maker was bias.

Front 51

What case shows automatical disqualification for economic interest?

Back 51

Dimes.

Judge had shares in the defendant company.

Front 52

What was outlined in the case of Pinochet?

Back 52

Automatic disqualification for a non economic interest was allowed.

Front 53

What did Lord Browne-Wilkinson say in Pinochet?

Back 53

If the impartiality of the judiciary is to be maintained there must be a rule which automatically disqualifies a judge who is involved.

Front 54

What test outlines the rules for non automatic disqualification?

Back 54

Magill v Porter.

Front 55

What is the test for non automatic disqualification?

Back 55

Ask if a fair minded and informed observer would conclude that there is a real possibility that the decision maker is biased.

Front 56

What case shows that influence from a lobby group (expert, politics and a manifesto) is not bias?

Back 56

Kensington and Chelsea RBC.

Front 57

What is the fourth ground of review not mentioned by Lord Diplock?

Back 57

Legitimate expectations.

Front 58

What does legitimate expectations deal with? (2)

Back 58

Promises and guarantees made by public authorities.

Fairness and legal certainty.

Front 59

What are the two types of expectation?

Back 59

Procedural (about conduct).

Substantive (about rights/benefits).

Front 60

What happened in the Attorney General of Hong Kong case?

Back 60

Promise to hear all cases.

Deportation issue without the case being heard.

Public authority had to follow the promised procedure.

Providing it did not interfere with the statutory duty.

Front 61

How does a procedural legitimate expectation come about without an express promise being made?

Back 61

Public body uses a consistent practice regarding decision making for a long period, suddenly for one decision it is not followed.

Front 62

What happened in the GCHQ case?

Back 62

Employment terms changed without discussion with the union first.

This was something that was always done.

Front 63

What is a substantive expectation?

Back 63

The decision maker promises a right or a benefit.

Front 64

What happened in the case of Coughlan?

Back 64

Injured lady was promised that she could stay in the residential care home as long as she needed.

It was closed down.

Promise to let her stay gave rise to a legitimate expectation.

Front 65

What circumstances were important to the Coughlan decision? (4)

Back 65

Promise was highly significant.

Promise was made to a small number of people.

Health authority did not offer an alternative home, they just offered care.

The consequences for the health authority were purely financial.

Front 66

What test was favoured in the Coughlan case and why?

Back 66

Proportionality.

Closing it was reasonable due to the cost.

Front 67

What happened in the case of Begbie?

Back 67

They believes there was a legitimate expectation but there was not as the minister did not have the power to do the thing expected.

Front 68

When is the court more likely to protect a substantive legitimate expectation?

Back 68

When it affects a small group of people.

Front 69

What are procedures?

Back 69

Specific procedural requirements for a judicial review claim.

Front 70

What are the 3 elements of procedures?

Back 70

Standing.

Time limits.

Permission.

Front 71

Why are there procedures for judicial review? (3)

Back 71

To make it sufficiently difficult to use.

To prevent floodgates.

To ensure the right people get access to the courts.

Front 72

What section of what act defines standing and what is the definition?

Back 72

S.31(3) Senior Courts Act.

Applicant must have sufficient English interest in the matter to which the application relates.

Front 73

What does standing decide?

Back 73

Who can access the courts.

Not just anyone can challenge any decision.

Front 74

What case shows that third parties normally do not have sufficient interest?

Back 74

Inland Revenue Commissioners.

Front 75

What case shows that third parties acting on behalf of people affected, have expertise, have resources and have funding have sufficient interest?

Back 75

Greenpeace.

Front 76

What is outlined in the case of World Development Movement?

Back 76

Pressure groups whose job is to challenge decisions have sufficient interest.

Front 77

What happened relating to standing in the Plantagenet Alliance case and what did this show?

Back 77

Standing was barely assessed.

Suggests that the test has become too liberalised.

Front 78

What is the rule regarding time limits?

Back 78

The claim must arrive:

Promptly.

No later than 3 months after the grounds to make the claim first arose.

Front 79

What does S.31(6) of the Senior Courts Act outline?

Back 79

With undue delay the first may refuse to grant leave for the making of the application or relief if it would cause substantial hardship.

Front 80

What is the permission requirement for judicial review?

Back 80

Judicial review requires the applicant to seek the courts permission to proceed.

Front 81

What rule is the permission rule?

Back 81

Rule 54.4 of the Civil procedure Rules.

Front 82

What can permission be given with or without? (2)

Back 82

Hearing.

Direction.

Front 83

What do the courts decide when assessing permission?

Back 83

Whether the case is sufficiently important to be heard.

Front 84

What do courts check when assessing permission?

Back 84

Whether all other possible remedies have been used as judicial review is a last resort.

Needs to be a reasonable attempt at using all other ways to solve the issue in order to get permission.

Front 85

What are some other possible remedies other than judicial review? (2)

Back 85

Mediation.

Try to amicably settle the disputes.

Front 86

What are remedies?

Back 86

What you ask the court for in judicial review.

Front 87

What are the 3 remedies?

Back 87

Prerogative orders.

Injunctions and declarations.

Damages.

Front 88

Which is the main remedy used for judicial review?

Back 88

Prerogative orders.

Front 89

What section of what act outlines the prerogative orders?

Back 89

S.31(1) Senior Courts Act.

Front 90

What are the 3 prerogative orders and what do they do?

Back 90

Quashing order: quashes the decision.

Prohibiting order: prohibits a decision before it is made.

Mandating order: compels the decision maker to make a decision/do something.

Front 91

What section of what act outlines injunctions and declarations?

Back 91

S.31(2) Senior Courts Act.

Front 92

What are injunctions and declarations?

Back 92

Injunctions = similar to prohibiting order.

Declarations = courts asked to clarify what the law is.

Front 93

What section of the Senior Courts Act outlines damages and what does it say?

Back 93

S.31(4).

Applicant must include a claim and the court must be satisfied that the claim would have succeeded in a separate action.

Front 94

Why are damages not often awarded for judicial review?

Back 94

Judicial review is about decisions.

Front 95

Which remedies are discretional so courts can say no to giving them?

Back 95

Injunctions and declarations.

Damages.

Front 96

When must courts refuse to grant relief and damages?

Back 96

If the outcome for the applicant would not have been substantially different if the complained conduct had not occured.

Front 97

When can the courts go against the damages refusal?

Back 97

For reasons of exceptional public interest.

Front 98

What are the 3 frontiers to judicial review?

Back 98

Publication authority.

National security.

Ouster clauses.

Front 99

What is the public authority frontier?

Back 99

The decision maker being challenged must be a public authority.

Front 100

What was outlined in the Datafin case?

Back 100

Anyone performing a public duty is a public authority.

Front 101

What is the test for the public authority frontier?

Back 101

If the group did not exist would parliament step in to give a minister that job?

If yes, they count as a public authority.

Front 102

What was outlined in the Wachmann case?

Back 102

Parliament would not step in to sort spiritual issues if the rabbi did not have the power to do so, so no judicial review.

Front 103

What is the national security frontier?

Back 103

Decisions regarding national security are not subject to judicial review.

Front 104

Why are national security decisions not subject to judicial review?

Back 104

The courts do not have sufficient knowledge of that area.

Front 105

What must the government do regarding national security considerations?

Back 105

Provide evidence to support them.

The evidence burden is quite low.

Front 106

What are ouster clauses?

Back 106

Provisions by parliament that attempt to exclude judicial review.

Front 107

Why are ouster clauses seen as parliamentary sovereignty v rule of law?

Back 107

Courts must give effect to parliamentary intention, so if they want to exclude judicial review the courts should respect this.

Rule of law shows everyone has the right to question the decisions of government to ensure it complies.

Front 108

What is there a strong presumption about regarding parliament and ouster clauses?

Back 108

Parliament has not intended to exclude judicial review.

Front 109

When do courts test the presumption that parliament has not intended to exclude judicial review?

Back 109

If there is a clearly worded statement of intent to exclude judicial review.

Front 110

What happened regarding the ouster clauses in the Acquisition of Land Act?

Back 110

Six week period to challenge the decision.

After that the decision was protected by statute.

Front 111

What happened in the Anisminic case?

Back 111

Act said no determination shall be called nto question by any court of law.

PS: very clear they do not want the courts involved.

RoL: illegal decision should be challenged.

Held: ouster clauses only protected lawful decisions so courts could question the illegal ones.

Front 112

What happened in the Privacy International case?

Back 112

Genuine attempt to exclude judicial review.

Expressly worded.

Decision from the UK Supreme Court is still pending on whether this is allowed.