Judicial Review Illegality Notes

• - 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:...

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