Judicial Review

Illegality

Procedural Impropriety

Unreasonableness/Irrationality

Legitimate Expectation

- Vitaly important

- Practical implementation of the Rule of Law, taking place through the review of the actions of decision-makers. (Jowell)

1. The decision is made by the wrong person.
2. Error of law or error of fact
3. The decision maker went beyond their power: ultra vires
4. Ignoring relevant considerations or taking irrelevant considerations into account.
5. Fettering discretion

Only the designated decision maker will make a decision. The Court may strike down as an ultra vires.

A decision will be quashed if the decision maker has no power to make it.

- Error of law will make a decision a nullity

- ouster clause will not deprive the court to judicially review decisions.

Means an act or decision that goes beyond the boundaries of the legal power accorded to the body concerned.

Ultra vires can be allowed in times of emergency

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

Held that the minister's decision was unlawful because the statute did not intend him to exercise his discretion in that way.

Statutory powers cannot be used for unauthorised purpose.

SSHD had taken into account public opinion and had not considered the welfare of applicants.

'Shall not be questioned' clauses - but a decision was made in mistake of law can be quashed by court.

Decision must base its conclusion of fact on the evidence before it.

If the decision maker was granted a discretion, he must not refuse exercise that discretion

Example: British Oxygen

Decision maker must have regard to relevant matters and disregard irrelevant matters

The factual basis of the decision is incorrect. R v Criminal Injuries Compensation Board ex parte A

A decision in "crucial matter" that was taunted with a material error of fact could be quashed.

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

Is the decision is unreasonable that no reasonable person acting reasonably could have made it, or outrageous that it defies logic? CCSU

Discretionary powers must be exercised reasonably

A conclusion which is so absurd that no reasonable authority could have ever come to it.

Increased rent of an unoccupied and unfit house by £18,000 a week!

Means that there must be a reasonable relationship between the objective being sought and the means used to achieve it.

Is the interference in accordance with the law and is it proportionate to the legitimate aim being pursued?

Decision should be reasonable andproportionate to the legitimate aim.

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

A failure to observe express procedural rules laid down by statutes (Aylesbury v Mushrooms)

Direct Interest = Automatic Disqualification (Dimes v Grand Junction Canal)

Compare: McGonnel v UK

It is not enough to simply say bias - without more

Forbid bias in decision making.

Personal animosity could tantamount to bias.S

Both sides should be heard in making certain decisions.

Opportunity to make full representation

UNLESS

- waived the right to a fair hearing

Without improper motive, a decision will stand.

A legitimate expectation may arise from a representation or promise, a consistent past practice and the conduct of the decision maker.

Taxi drivers' legitimate expectation for them to be consulted to increase taxi cabs.

Legitimate expectation may arise on express promise or from existence of regular practice which claimant can expect.

Decision to refuse defies logic.

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.

Successfully applied for JR as he had not been informed of the main evidence against him.

If the body is a public body OR exercising public function, then it is subject to JR.

Judicial review is vitally important as it is the practical implementation of the Rule of Law through the review of the executive's actions.

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?

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.

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

The court may extend the time limit if there is a good or exceptional reason.

Compare: O'Reilley v Mackman

The decision will be quashed if 'fair-minded after considering [relevant] facts believe that there is bias, the decision will be quashed.

Failure to bring a JR action in time will not be allowed.

COMPARE: CPR 54.5(1)(b)

A person need to know the case against him as confirmed in W (Algeria) v SSHD

COMPARE: Governer of Dunraven School ex p B

It was found that the applicant has standing "because of his sincere concern for constitutional issues".

Was granted 'locus standi' because of several factors such as their expertise of the related issue.

Compare: Ex p Rose Theatre Trust Co

The courts recognise the importance of the presence of groups representing affected people living in the area.

COMPARE: ex p National Federation

Courts sometimes show reluctance to allow challenges by interested groups.

COMPARE: with ex p Greenpeace

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

Tautologous - a decision is unreasonable if a reasonable an could not have made it.

Compare: Wednesbury principle

Judicial review maybe appropriate where decision is reached upon an incorrect basis of fact 'due to misunderstanding or ignorance'

Error of fact in the decision will be quashed.

Judicial observations that it is possible for Parliament to expressly repeal ECA 1972

A clause limiting appeals of decision less than 3 months was allowed.

1. Quashing order to set aside the public body's decision;
   
2. Mandatory Order to require public body to carry out its duties;
   
3. Prohibitory Order to prevent public body from acting beyond its powers.
   
4. Injunction to prevent public body from acting on enforcing a decision
   

The duty to exercise discretion may be trumped by national security concerns

Compare: British Oxygen

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

It is unlawful for public body to act in not in accordance with Convention rights

There is no general obligation to give reasons for a decision in English law.

1. ex p Doody -
2. ex p Institute of Dental Surgery -
3. ex p Huddlestone -

No general duty to give reasons if no interference with legal rights.

no duty to give reasons where to do so would be excessively onerous due to complexity

No general duty to give reasons on administrative decisions.

Oral hearing would not be considered necessary in marginal cases.

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

Lord Reid (obiter) "the crucial characteristic of a hearing is that a person's rights would be affected by the outcome.

Duty to give reasons for cases with 'judicial character'

1. absence of right of appeal;
   
2. importance of detecting error that requires the courts to intervene.

1. a decision without reasons is insufficient to achieve justice;
2. the decision appears abnormal.

Just because no reason was given doesn't mean that JR will succeed,

1. Anisminic v FCC - a decision was made in mistake of law can be quashed by court.
2. ex p Al Fayed - S.44(2) BNA 1981 SSHS 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".

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".

'shall be final' clauses does not impair judicial review.

See ex p Gilmore