Jr Prelims Notes

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...

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