#3119 - Judicial Review Illegality - GDL Constitutional and Administrative Law

- Definition: JR is the mechanism whereby courts able to scrutinise decision-making processes and legality of actions taken by public authorities

Preliminary Issues

1. Amenability to Judicial Review?: only public law decisions made by public body amenable to JR (CPR Pt 54.1).

- 2-part test – R v Panel for Takeover and Mergers ex p Datafin, [Lloyd LJ]:

• 1. source of power?: if statute/subordinated legislation public body.

• 2. public law function?: substitutability test – would govt. have to set body up if didn’t exist?

- application:

• regulatory agencies PB (R v ASA ex p Insurance Services; R v Bar Council ex p Percival).

• sporting bodies not PB (R v FA ex p Football League; R v Jockey Club ex p Aga Khan).

• religious bodies not PB (R v Chief Rabbi ex p Wachmann).

• contracting out: dep. on degree of statutory penetration / special powers.

  • R v Servite Houses ex p Goldsmith: elderly residential home not public function (just contract).

  • R (A) v Partnerships in Care: LA + private home regulated by statute public function.

  • YL v Birmingham CC: private care home not public function.

- overlap with HRA 1998 public authority – Aston Cantlow, [Ld Hope]: overlap between 2 tests.

2. Procedural Exclusivity?: is claim abuse of process? (JR: stricter procedures than civil action).

- general rule: public law decision only JR may be used (O’Reilly v Mackman: Irish prisoner).

• but exceptions recognise: 1. parties agree; 2. challenge to decision collateral.

- exceptions:

• 1. mix of private + public rights.

  • Roy v K&C FPC: dr. had pay reduced for too many private clients; contract + public law issues allowed to use private action.

  • current approach: courts should be flexible (can transfer case).

    • Trustees of Dennis Rye Pension Fund v Sheffield CC: if in doubt use JR.

    • Clark v University of Lincolnshire & Humberside, [Ld Woolf]: overall aim: prevent abuse of process: no need to prevent private action where both private + public law involved unless litigant trying to flout protection

• 2. raising public law as defence.

  • civil – Wandsworth LBC v Winder: public law as defence to claim for rent arrears.

  • criminal – Boddington v British Transport Police: challenging validity of byelaw.

3. Standing?

- applicant must have sufficient interest in matter HC will grant leave (s31(3) Supreme Court Act 1981)

• Fleet Street Casuals: sufficient interest if applicant directly + adversely affected.

- now 2-stage process:

• 1. initial permission stage: prima face case + a’s relation.

• 2. main hearing: respondent can challenge standing merits considered.

- individuals: liberal approach.

• ex p Venables: sufficient interest where individual ‘directly affected’.

• but not criminal cases: only Crown + d. have interest (ex p Bulger: not v’s father).

- groups/organisations: more restrictive.

• ex p Rose Theatre Trust: pressure group with no proximity no standing.

• ex p Greenpeace (nuclear licence): some members have individual standing; experience; whole purpose to challenge standing.

• ex p World Development Movement (investment in Malaysia dam for arms): importance of ROL, experience/advice of applicant, no other challengers standing.

• Liverpool Taxis Association: members directly affected standing.

• Equal Opportunities Comm. v SS Employment (sex discrimination): nature of role standing.

• R (Corner House Research) v Director of SFO (halt bribery investigation with Saudi Arabia): role standing.

(broader than HR ‘victim’ test: groups excluded – DG Fair Trading v Propriety Assoc of GB).

4. Time limit?: 3 months (CPR 54.5(4)) can be extended (CPR Pt 3: general power), but exceptional (ex p Carswell).

5. Ouster?

- complete ouster: v. restrictive: must be explicit – presumption that Parliament did not intend to exclude JR.

• Anisminic v FCC: ‘determination shall not be called into question in any court of law’ not valid.

  • rationale: mistake determination not determination.

- ouster by time limit: may be valid for practical + policy reasons.

• Smith v E Elloe RDC: 3 mths 6 wks.

• necessary: for effective admin (ex p Ostler, [Ld Denning]).

- implied ouster: applicant must have exhausted other options before JR.

(HR issues: a. may try to invalidate ouster under Art 6 ECHR).

Illegality

- Definition: DM must understand correctly the law that regulates his decision-making powers and must effect to it (GCHQ, [Ld Diplock]).

1. Simple illegality (ultra vires): decision goes beyond boundaries of power given to body.

• AG v Fulham Corporation: FC had power to set up baths, not municipal laundry.

• ex p Witham: LC had no power to raise court fees to raise revenue.

• R (Bancoult) v SS Foreign Affairs: Order-in-Council ordering removal of Chagossians ultra vires (but HoL allowed 2^nd OIC).

2. Error of law: DM makes mistake regarding q. of law.

- General rule: all errors of law reviewable.

• Anisminic v FCC: FCC misunderstood rules of scheme.

• ex p Page: confirms all errors reviewable.

- Exceptions:

• 1. error not decisive to decision: ‘but for’ test.

• 2. DM interpreting special system of rules (ex p Page: univ. statutes; Re Racal Comms: Parliament expressly makes 1^st instance decision final).

• 3. power can be broadly interpreted: BUT – must be reasonable (ex p S Yorkshire Transport).

3. Error of fact

- Precedent/jurisdictional facts: DM’s jurisdiction dep. on initial finding of fact.

• White & Collins v MOH: no power to purchase ‘parkland’, failed to realise.

• ex p Khawaja: power to detail ‘illegal immigrants’.

• A & Others: derogation must be proportional.

• BUT NOT subjective powers: DM has discretion to decide whether condition met.

- No evidence for a fact.

• Coleen Properties v MOH: no ev. for finding house should not be demolished.

• SS Education v Tameside MBC: no ev. for assertion that grammar schools would be disruptive.

- Ignorance/mistake of established fact.

• SS Education v Tameside MBC: mistake re: nature of advice available to LEA.

  • duty on DM to acquaint self with all relevant facts.

• R v CICB ex p A: inaccurate ev. about rape victim’s medical report.

• test: E v SSHD (refusal of asylum to Muslim Brotherhood member): mistake of fact leading to unfairness.

  • 1. mistake as to existing fact (inc. mistake as to existence of evidence).

  • 2. fact must be established: objectively verifiable + uncontentious.

  • 3. mistake played material part.

  • 4. appellant/advisor not responsible.

  • (has been applied: Assura Pharmacy Ltd; Connolly).

4. Abuse of discretion

- Relevant + irrelevant considerations

• 3 kinds of considerations (ex p Fewings: ban on stag-hunting for moral reasons, [Simon Brown LJ]):

  • 1. mandatory factors: DM must take into account.

  • 2. prohibitory factors: DM must not take into account.

  • 3. discretionary factors: DM may take account if thinks right (margin of appreciation).

• ex p Venables: HS took into a/c public opinion irrelevant consideration.

  • [Lds Goff + Steyn]: DM must act in judicial way.

  • [Lds B-W, Hope, Woolf]: must consider development of offenders.

• Roberts v Hopwood: DM raised wage, did not consider ratepayers’ interests relevant consideration ignored.

• resources: may be relevant factor.

  • ex p Barry: LA can consider own resources.

  • R v CICB ex p B: court ill-equipped to deal with funding disputes.

  • but: ex p Tandy: statutory duty to provide education cannot decide not to b/c resources.

- Improper purpose: DM should only use power for purpose intended by Parliament.

• Padfield v Minister of Agriculture: DM stopped milk marketing enquiry to avoid embarrassment.

• ex p WDM: aid to Malaysia given to secure arms, not for econ./humanitarian benefit.

• can be implied: Congreve v Home Office: power to revoke TV licences to prevent fraud, not raise money.

  5. Retention of discretion

- Fettering of discretion: policies.

• ex p Fire Brigades Union: HS fettered by refusing to consider whether to bring CIC scheme into force.

• policies: only if individual cases still decided on merits – ex p Brent LBC: ‘mind must be kept ajar’.

  • British Oxygen v Board of Trade: policy but application considered carefully OK.

  • ex p Collymore: flexibly worded policy, but award never made fettering.

  • ex p Corner House Research: yielding to threat fettering.

• HR issues: policy interfering with HR must be proportional.

  • ex p...