#15516 - Jr Prelims - GDL Constitutional and Administrative Law

Con & Ad : Judicial Review, Intro & Prelims

Intro to Judicial Review (JR)

• JR = review, NOT appeal. It is scrutiny of the legality of decisions, not their merits. Review of the process of decision-making.

• Rationale for JR:

  • (1) traditional justification = ultra vires doctrine—public bodies & officials can only act within their legal powers. R to make sure they act intra vires.

  • (2)-further recent justification: function of courts through JR to enforce common law standards of good administration and thus prevent misuse/abuse of power.

Constitutional context: Administrative law and JR

• Admin law = the law relating to the exercising & control of governmental power.

• Encompasses a number of areas including JR—mechanism by which the courts are able to scrutinise the decision-making processes and legality of actions/decisions taken by public authorities and officials.

• Such bodies range from: ministers, department, tribunals, local authorities, quangos, and professional & trade bodies (when exercising a public law function).

• Is a form of legal accountability—relates to ROL, SoP, Parl sov, and prerog power.

• In its current form, JR is largely a product of a development in judicial attitudes: a number of landmark decisions in the 1960s, led principally by Lord Reid—eg Ridge Baldwin (1964). + supplemented by parliamentary reforms.

Control of governmental power

• Ensure accountability of government.

• Protect individual rights.

• Promote participation in decision-making process.

• Huge growth in last 40 yrs in JR—fastest growing area along with EU law.

• JR now touches almost every aspect of public decision-making: planning, financial services, export licences, housing law, immigration & asylum, prisoner’s rights, public transport, public inquiries, social security, university discipline, controls on broadcasting, professional discipline, general licensing and environmental regulation.

JR and Constitutional law

• Administrative law = relating to exercising & control of gov power.

• JR is a form of legal accountability—relates to RoL, SoP, Parl Sov and prerog power.

• JR developed from landmark decisions in 1960s, led by Lord Reid, eg Ridge Baldwin

• Link to RoL: Jeffrey Jowell, The Changing Constitution: ‘the practical implementation of the Rule of Law has taken place primarily through judicial review of the actions of public officials’.

• Key ROL values: legality, certainty, consistency, accountability, due process etc.

• Link to SoP/prerog power:

  • R (Miller) v SoS Exiting European Union case—a JR case. Control of prerog through JR.

  • Lord Irvine of Lairg, HL debate, 27 Oct 2014: The judiciary is a vital component in our separation of powers. JR is indispensable in a democracy proud to be governed by the rule of law.

Grounds for JR

• Illegality

• Unreasonableness

• Procedural Impropriety/Fairness

• Legitimate Expectation

Preliminaries

DEALING WITH PRELIMS IN EXAM

• (1) Amenability: Is decision challenged a “public law” decision – is it “governmental” in nature?

  • (Datafin is key case, but for test)

• (2) Does procedural exclusivity apply?

  • Base case: O’Reilly

• (3) Standing: Does applicant have “sufficient interest”?

  • Base case: Fleet Street Casuals

  • Pressure groups

• (4) Time limits complied with?

• (5) Any ouster clauses?

  • Base case: Anisminic

(1) Amenability

• CPR Part 54.1(2): ‘in relation to the exercise of a public function’.

• Ex P Datafin;

  • (1) Source test—if source of power is statute/subordinate legislation/ prerog body = amenable. [[CF purely contractual]]

  • (2) Nature test—does body exercise ‘public law’ functions, or have ‘public law consequences’? Factors:

    • Is power ‘governmental’ in nature?

    • ‘But for’ existence of private body, would gov step in?

    • Statutory source of power?

    • Governed entirely by contractual relationships?

    • Does it have necessary public element?

• Self-regulatory bodies, yes public function:

  • Ex p Datafin: re the City Panel on Takeovers & Mergers.

  • Advertising Standards Authority: yes.

  • Bar Council: Yes.

• Sports/religion, no:

  • Aga Khan: re disciplinary committee of Jockey Club.

  • R v FA: FA not amenable.

  • R v Chief Rabbi ex p Wachmann: Chief Rabbi decision, not amenable.

• Contracting out:

  • Goldsmith—care home, not amenable, no statutory underpinning, purely contractual/private law.

  • CF Partnerships in Care—amenable, governed by statutory underpinning, Mental Health Act applied to any private hospital dealing with mental health.

(2) Procedural exclusivity

• O’Reilly v Mackman:

  • Public law = public law courts (Admin Court, JR, advise client to issue claim in Admin Court under CPR Part 54)

  • Private law = private law courts

• [[very unlikely to come up]]: if mixed public & private law, courts are flexible

  • Roy v Kensington & Chelsea: although public body, had private law rights, could bring private action. Re a GP, working for NHS body, but he had a contract with the so had private law rights. Where C asserting a private law right, which incidentally involves examination of a public law issue (the FPC’s decision) can bring private claim.

  • Clark v University of Lincolnshire: University of Lincs a public body (statutory underpinning); but JR procedures shouldn’t get in away of justice, may be possible to bring a private action if only way to obtain justice.

  • If unsure, bring a JR first, Trustees of Dennis Rye Pension Fund v Sheffield CC (Lord Woolf, applying Roy).

• Cannot raise public law arguments as a defence in civil law (Wandsworth LBC v Winder: tried to use defence of JR ‘unreasonableness’ ground in an action, couldn’t do so).

• Criminal law—can bring a ‘collateral challenge’ to an allegedly unlawful administration action (Boddington v British Transport Police: could challenge validity of a bylaw in criminal proceedings as a defence).

(3) Standing

• s31(3) SCA 1981: must have ‘sufficient interest’.

• Fleet Street Casuals:

  • Re newspaper workers; IRC struck deal with them; National Federation of Self-Employed & Small Businesses refused same deal, could they challenge?

  • No—didn’t have sufficient interest (was an intra vires decision, didn’t have good claim, not directly affected).

  • (1) Logical connection between applicant and decision

  • (2) ‘Mixed question of fact and law’—can consider merits of case alongside issues of standing.

  • (3) Cranks, busybodies & timewasters kicked out at permission stage.

  • Functional approach—‘generous conception’

  • Standing if ‘directly affected’

  • Two stages:

    • (1) Permission stage—kick out busybodies/cranks/mischief-makers.

    • (2) Main hearing: standing can be reconsidered, if respondent feels lack of ‘sufficient interest’.

• Directly affected individuals:

  • Venables: the convicted murderers themselves had standing to challenge Home Sec tariff, as directly impacted.

  • CF Bulger: father of murdered children no standing to challenge tariff sentence by Home Sec of murderers in criminal case, the only 2 parties with an interest are the Crown and Defendant, third party doesn’t have standing.

• Concerned citizens:

  • Ex p Rees-Mogg, challenge to Maastricht Treaty

  • Ex p Whitehouse: challenge to controversial broadcast on TV

  • R (Miller) v SoS for Exiting the EU: Art 50 challenge

  • Ex p Leigh

  • Ex p Dixon

  • Walton v Scottish Ministers: Walton should have standing to challenge a proposed scheme on environmental grounds, as chair of a local organisation to oppose road scheme re harming Ospreys. Concerned citizen had sufficient interest without showing any greater impact upon himself than other members of public upholding ROL, ‘constitutional function of maintaining the ROL’.

• Associations (of those directly affected):

  • Ex p Liverpool Taxi Fleet Operators Association: re Liverpool Corp granting taxi licences; Yes, standing, directly represent the drivers, who are directly affected.

  • Ex p Equal Opportunities Commission.

  • Eg a trade union could count, although may also come under pressure group.

• Pressure group

  • Ex p Rose Theatre Trust: (Schiemann J): restrictive approach; banded together just for that purpose, not previously established; individuals weren’t affected; lack of local link.

  • Ex p Greenpeace (No 2): re Sellafield challenge, Factors:

    • Expertise in relevant area under challenge

    • Genuine concern for the issue (the environment)

    • Local membership

    • Nationwide membership

    • Reputation/status of group (national & international reputation)

    • Likely absence of another challenger

  • World Development Movement, re Pergau Dam, Malaysia, argument UK gave money for dam in return for Malaysia buying arms from UK. Factors:

    • Only challenger/absence of another challenger

    • Specific expertise & reputation of WDM.

    • Upholding Rule of Law—holding gov decisions to account/state transparency

    • Importance of the issue

    • Prominent role of WDM in giving advice/guidance on overseas aid.

    • Nature of breach of duty: statutory duty for overseas aid budget.

  • Similar approach to WDM- Corner House Research: Corner House Research and Campaign Against the Arms Trade given standing, re challenge of Director of SFO’s decision to halt investigations into allegations of bribery re arms contracts with Saudi Arabia.

  • Umbrella interest group, HS2 Action Alliance: contained over 90 groups; given standing. Re challenge to procedural requirements of EU environmental/planning law.

• Possibility of being an intervener—R (T) v Chief Const Greater Manchester:

  • Group didn’t satisfy ‘sufficient interest’, didn’t have standing to bring challenge. But could act as an intervener, highlighting issues of public importance, even though refused standing.

• [NB: litigation friend—for someone if they are minor, eg a parent—will...