Friday, June 17, 2016

Public Law - Judicial Review

PrincipleCase Name / Definition
Senior Courts Act 1981s31
Civil Procedure Rule (CPR)part 54
RemediesPrerogative orders: (CPR 54.2)
quashing order
prohibiting order
mandatory order

Non-prerogative orders:
injunctions (may include damages, but not damages alone) CPR 54.3(2), SCA s31(4)
using private law procedure for public law rights - abuse of process

Procedure Exclusivity
O'Reilly v Mackman [1983] - Prison Riot
Datafin 2 part testsource of power test - if setup under statute / delegated legislation / or derives power from a reviewable prergative power = public body

nature of power test - if the body making the decision is exercising public law functions = may still be a public body
Locus StandiiS31(3) Senior Courts Act - court must not grant leave for application for JR unless it considers that the applicant has a sufficient interest in the matter to which the application relates
whose rights or interests are directly affected by public decision or actionSchmidt v SS Home Affairs [1969] - Study Scientology
May recognise the sufficient interest of an individual to challenge a decision that affects society as a wholeR v SS Foreign Affairs ex p Rees-Mogg [1994] - former editor ot Times, regarding EU law power
courts will recognise the interests of organisations when decisions or actions affect members individuallyR v Liverpool Corporation ex p. Liverpool Taxi Fleet Operators Association [1972]
May recognise interest to decision or action that allegedly harms the public interestIRC v National Federation of Small Business [1982] - evade tax
Factors the court will take into account when deciding whether a pressure group has sufficient standing to bring a claim for JR:

1. the importance of the matter
2. whether anybody is better placed to bring the claim
3. the need to uphold the rule of law
4. the role of the pressure group
5. the relevant statutory duty involved
R v Secretary of States for Foreign Affairs, ex p World Development Movement Limited [1995]
Time LimitsCPR Part 54.5 - 3 months
SCA 1981 s31(6) - Without undue delay
Full Ouster - 'should not be called into question in any court of law'Anisminic v Foreign Compensation Commission [1969]
Partial Ouster - to exclude jurisdiction of the court once a time limit has expiredR v Secretary of State for the Environment ex p Ostler [1976]
In the absence of any negligence or breach of contract - no right to damages

may not seek damages alone
R v Knowsley MBC, ex p Maguire [1992]
Grounds for JRCCSU v Minister for Civil Service [1984]

GCHQ - Lord Diplock

1. illegality
2. irrationality
3. procedural improprietary

future - proportionality
Illegality (PREF WA)- Acting without legal authority
- Wrongful delegation
- Fettering of discretion
- Purposes
- Relevant / irrelevant considerations
- Error of law / Error of fact?
Procedural Impropriety (RM LOR)- procedural fairness
- natural justice
- bias?
- procedural ultra vires
Irrationalityso unreasonable - no reasonable recision-making would have come to it (Wednesbury)
Illegality - Acting without Legal AuthorityLaker Airways v Department of Trade [1977] - Airline operator license, also frustrating the purpose of the Act

SS for Education v Tameside MBC [1977] - Grammar school

AG v Fulham - laundry case
Illigeality - The rule against delegation - decision making powers once given by Parliament, cannot then be further delegated, or sub-delegatedVine v National Dock Labour Board [1957]
Exceptions to the rule against delegation

Ministers sub-delegateing decision making powers to civil servants in their departments provides an exception to the generul rule against delegation
- because of individual ministerial responsibility
- government ministers are utimately responsible for Parliament for their departments - there is an expectation that they act through their civil servants in taking even major decisions
Exceptions to the rule against delegation

s101 of the Local Government Act 1972
Local authorities may delegate decision-making powers to committees, provided they make a formal resolution so to do
Illigality - Fettering by Dictation

the decision is not based on a general policy, but based on another Minister's objection - fettered his discretion by not opening hist mind to hist application-
Lavender & Sons Ltd v Minister of Housing and Local Government [1970]
Illegality - Fettering by Self-created rules of policy

Lord Reid - The general rule is that anyone who has to exercise a statutory discretion must not shout his ears to an application
British Oxygen v Minister of Technology [1971]
Illegality - Improper purposesCongreve v Home Office [1976] - TV license $12 -> $18
Illegality - Dual purposes

Provided the permitted/authorised purpose is the primary purpose -> not ultra vires
Westminister Corporation v LNWR [1905] - Toilet Subway
Illegality - Material Influence TestR v ILEA, ex p Westminister City Council [1986] - $651000 ad campaign
Illegality - Taking account of irrelevant considerations or failing to take account of relevant considerationsRoberts v Hopwood [1925] - pay higher wage due to socialist policy
Illegality - Errors of law Anisminic v Foreign Compensation Commission [1969]
Illegality - Errors of FactSSHD ex p Khawaja
Irrationality - The Wednesbury Priniciple

The decision-maker came to a conclusion so unreasonable that no reasonable authority could ever have come to it
Associated Provincial Picture House v Wednesbury Corporation [1948]
Post-Wednesbury - to be irrational, a decision must be so outrageous in its difiance of logic or of accepted moral standards, that no sensible person could have arrived at itGCHQ
Post-Wednesbury - the decision should be beyond the range of reasonable responses open to the decision maker - even higher standardR v Ministry of Defence, ex p Smith [1996]
Proportionality - DefinitionR v Goldstein [1983] - You must not use a steam hammer to crack a nut, if a nutcracker would do
Case not involving human rights, EU law - test remains Wednesbury unreasonableness / irrationality. For human rights, EU law - proportionalityR v SS for Defence ex p Associate of British Civilian Internees (Far East Region) [2003]
Procedural Impropriety - including ...Statutory Procedural Requirements
- Procedural Ultra Vires

Common Law Procedural Requirements
- Procedural Fairness
- The Rule Against Bias
Procedural Impropriety - Procedural Ultra ViresLondon and Clyde Estates Ltd v Aberdeen DC

Lord Hailsham LC said: ‘When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events.

Aylesbury Mushroom
The procedure allowed for consultations with appropriate organisations but this procedure was not followed.
Procedural Impropriety - Procedural Fairness - natural justiceRidge v Baldwin [1963] - Chief Constable Dismissed without chance to defence
Procedural Fairness- Advance notice of the case to be met
- A reasonable amount of time to prepare a response
- An opportunity to make representations
- An opportunity to cross-examine persons who may have made adverse statements to the decision maker
- legal representation
- reasons for decision
Procedural Fairness - reasonable time to prepare responsesR v Thames Magistrates ex p Polemis [1974]
Procedural Fairness - An opportunity to make representationsMcInnes v Onslow Fane [1978]
Procedural Fairness - Legal Representations

Not an absolute right
R v Home Secretary ex p Tarrant [1985]
Procedural Fairness - An opportunity to cross-examineR v Hull Prison Board of Vistors, ex p St Germain
Procedural Fairness - Reasons for the decision

Reasons must be given when fairness requires it
R v Secretary of State for the Home Dept, ex p Doody [1994]
Direct Interest - Financial

decision automatically set aside
Dimes v Grand Junction Canal [1852]
The Appearance of BiasPorter v Magill

Re Medicaments and Related Classes of Goods [2001]

a fair-minded and informed observer would conclude that there was a real possibility that the judge was biased
Lord Hailsham LC said: ‘When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events.London and Clyde Estates Ltd v Aberdeen DC
Proportionality caseHook

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