#14970 - Judicial Review - Constitutional Law

JUDICIAL REVIEW

Step 1: procedural requirements

Does the decision-making body exercise a “public function”?

• If yes, open to judicial review by the High Court, on the basis of R54.1 Civil Procedure Rules (CPR)

Possible claimants would have to seek the court’s permission to apply for JR – r54.4 CPR

• Must be done without undue delay – s31(6) Senior Courts Act 1981 (SCA)

• “Promptly” and no later than 3 months after grounds to make the claim first arose – s54.5 CPR

Court has discretion to extent the time limit but C must hence be advised to file their application swiftly

Step 2: does the C have standing?

S31(1) SCA – claim can be made only if individual has “sufficient interest” to challenge the decision

• Will have locus standi if person directly affected by the decision

Fleet Street Casuals (1982): standing = question of both fact and law, having regard to all the circumstances merits of challenge are an important if not dominant factor in determining whether C has sufficient interest.

• Lord Fraser: C must have a “reasonable concern” with the matter – here taxpayer will not normally have sufficient interest in dealings of Inland Revenue with other taxpayers.

Associational standing – ex parte Greenpeace No 2 (1994): pressure group allowed to issue a claim on behalf of local members individuals must be identifiable who are members or whom it claim to represent

Public interest standing – World Development Movement (1995): highly-respected pressure group successful challenged gov decision to spend very large amounts of money in economically-flawed oversea dev scheme

• Rose LJ: in absence of a challenge by the pressure group, hard to see who could be an alternative challenger importance of vindicating RoL as key argument in favour of acknowledging standing

• Factors: seriousness of the allegations, strength of the C’s case, expert and informed character of C

Under HRA: only victim can bring proceedings in the meaning of s7 HRA person directly affected

Step 3: is there an ouster clause?

Courts have narrowly construed legislative provisions appearing to inhibit recourse to judicial review

Ouster clause will be ineffective where decision resulted from a determination ultra vires (error of law) – Anisminic: error of law made by the Commission in rejecting an application made the purported determination a nullity review of a purported determination was not precluded

• Lord Woolf MR in Ex parte Al-Fayed (1997): ouster provision did not affect the power of the court to ensure that the requirement of fairness was met – inference that Parl did not intent to exclude JR in cases alleging unfairness or discrimination

Step 4: grounds of challenge

1. Illegality

Decision-maker must correctly understand the law regulating their decision-making powers and must give effect to the law – Lord Diplock in GCHQ (1985)

1. Narrow ultra vires: lack of jurisdiction

Requirement that the decision falls within the statute that confers the power focus upon statutory interpretation (hence associated with Parliamentary intention)

2. Excess of jurisdiction

1. Error of law

Body may misinterpret its legal powers by misunderstanding the statutory provision enabling it to act

• Any error of law affecting the decision is ultra vires can be quashed by the court – Anisminic

2. Error of fact

Court will intervene where the authority has incorrectly evaluated a fact that is essential for deciding whether or not it has certain powers

• Ex p Khawaja (1984): Question = is there sufficient evidence to justify the public body’s belief?

  • HoL held that court could substitute its view for the decision of the immigration officer as to whether a person was an “illegal entrant”

Ex p Pulhofer (1986): where term to be evaluated by the authority is so broad and vague that reasonable person may disagree about its meaning generally for the authority to evaluate its meaning, unless obvious that public body acted perversely.

• Here whether the applicants were homeless was a question of fact for the authority to determine

3. In which situations should the court intervene?

R (A) v Croydon (2009): court would look at quality of initial decision-making process: better it was, less willing the court would be to interfere important feature of JR emphasising the way a decision is reached

3. Wrongful delegation of power

An official who is entrusted with power should not transfer that power to someone else – Barnard (1953)

• Lavender & Son (1970): minister had dismissed a planning appeal based on policy objections entered by another minister Minister failed to exercise of his discretion, had acted under the dictation

Exception: Carltona principle: minister can act through a civil servant in department

• Rreaffirmed in Golden Chemical Products (1976): duties imposed on ministers and their powers can normally be exercised by officials in the department

• Minister’s discretion to devolve decision to officials may not be unqualified open to challenge on ground of irrationality where designated officials of wholly inappropriate standing or qualification

  • Oladehinde (1991): responsible official suitably experienced to exercise this power

4. Improper purpose

Powers should be exercised for purposes for which have been conferred, not for ulterior motive/purpose

World Dev Movement: gov had statutory power to give financial aid to other countries for “eco purposes”

• CA: Minister’s decision was unlawful because it was not within the statutory purpose Parliament must have intended the word “economic” to include only “sound” eco decisions so the court was entitled to infer that decision had been made primarily for an ulterior motive

Porter v Magill (2002): local authority could dispose of land under Housing Act 1985 to achieve proper housing objectives, but cannot distort policies to seek electoral advantage deliberate misuse of power

5. Fettering discretion:

Decision-maker can abuse their discretion if unnecessarily restrict the circumstances in which they will use it

British Oxygen (1971): policy that grants would be payable only in respect of products above a certain size

• Ministry entitled to have general policy – assists authority in making decision-making more efficient

• However, Lord Reid: adoption of over-rigid policy, excluding any exception in any circumstances, could be challenged by a C affected by it.

6. Relevancy and irrelevancy

1. Decision-maker must consider relevant factors

Singh (1986): immigrant adjudicator ignored relevant factor of third party interests regarding deportation of individual individual in question was an important member of his community

2. Decision-maker must disregard irrelevant factors

Padfield (1968): unlawful for a Minister, in refusing to order an investigation into arrangements for sale of milk, to consider the fact that such an investigation may arrive at politically embarrassing conclusions

2. Procedural impropriety – duty to act fairly

GCHQ: decision-maker will breach this ground of review if ignores either statutory requirements or principles of natural justice under CL (duty to act fairly)

1. Statutory requirements

Mandatory requirement = essential requirement will invalidate an action if not followed ( merely directory)

2. Absence of bias

Entails that a decision-maker should be judge in his or her own cause, key requirement

Key requirement for the notion of fairness, divided into:

• Actual bias

• Appearance of bias – ex parte McCarthy (1924): justice should “manifestly and undoubtedly be seen to be done” – suspicion that there was improper interference with course of justice

In what circumstances will rule against bias prevent someone from participating in a decision?

1. Interests that automatically disqualify the decision-maker

Where decision-maker has a financial interest in the matter to be decided – Dimes v Grand Junction (1852):

• Locabail (2000): highly speculative financial interest= insufficient to trigger automatic disqualification

Where decision-maker has close institutional link to one of the parties in the proceedings:

• Pinochet (No 2) (2000): concerned Lord Hoffmann’s association through Amnesty International Charity, to Amnesty International, a party to the litigation – meant he was involved in promoting the same causes held to have an interest that automatically disqualified him.

2. Situations giving rise to appearance of real possibility of bias

A decision-maker may be disqualified where “the fair-minded and informed observed, having considered the facts, would conclude that there was a real possibility” of bias – Porter v Magill (2001)

3. Right to be heard – right to participate in decision

Concerned with when and to what extent an ind may be entitled to participate in the decision-making process by entering in a dialogue with decision-maker

When will there be an entitlement to participate?

• Ridge v Baldwin (1964): duty to act fairly where decision affects ind’s rights, interests/ expectations

Setting the level of fairness: when will an oral hearing be required?

• Lloyd v McMahon (1987): depends on the circumstances of the case here oral hearing would not have added anything, right to make written representations was entirely appropriate

• Smith v Parole Board (2005): failure to give oral hearing to prisoners who had their licences revoked

  • Degree of appropriateness must be appropriate given what is at stake for the individual:

L Bingham if decision may result in loss of liberty, indication of necessity of oral hearing

• Question of fact better resolved through oral hearing than written proceedings

Trading fairness for other considerations

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