Public -> Judicial Review

“Principles of JR give effect to the rule of law. They ensure administrative decisions will be taken rationally in accordance with a fair procedure and within the powers conferred by Parliament” – Lord Hoffman.

JR not an appeal process; in finding a public body has exceeded its lawful authority; the court will not enquire into the subjective correctness of the decision but only into the process by which the decision was reached. JR procedure applies only to ‘public functions’ and when an issue of public law is in question, JR being an appropriate procedure (O’Reilly v Mackman (1982)).

Requirements:

(a) Leave: Apps for JR are made to Administrative Court (s31 Supreme Court Act (1981)) to filter out unmeritorious claims and made no later than 3 months after.

(b) Sufficient Interest: App must have ‘locus standi’ per s 31 in order to bring an action.

Grounds:

The GCHQ case identifies 3 heads for grounds on review:

(a) Illegality – narrow ultra vires – if a body acts outside their authority/jurisdiction (AG v Fulham Corporation).

An error in law: a mistake in legal interpretation leads to an error on the face of the record (Perilly v Tower Hamlets).

An error in fact: a mistake that leads to a critical error in decision making process a finding of fact that is totally unreasonable and lacking any evidential basis will be reviewable (R v Secretary of State for Home Department exp Khawaja).

Wide Ultra Vires: when a decision maker its within his powers but does so in a manner that abuses its discretion:

a) Acting for an improper purpose (World Development Movement case)

b) Taking irrelevant factors into account or leaving out relevant material (Bromley LBC v GLC).

c) Unauthorised delegation (R v Talbot)

Fettering Discretion: the decision maker has discretion, thus they should consider each case on its merits (BOC v Board of Trade).

(b) Irrationality/unreasonableness (Wednesbury unreasonableness)

When a decision maker comes to a decision that is so unreasonable no other body would have come to that decision. Or the decision is lawful but imposes conditions that are unreasonable (R v Hillington).

(c) Procedural Impropriety: failure to follow the correct procedure can invalidate a decision (Bradbury v Enfield LBC).

Natural Justice:

(a) a right to a hearing: Ridge v Baldwin HL concluded that an individual severely affected by a decision must be afforded an opportunity to hear and refute the case against them.

(b) Duty to give reasons: although there’s no strict duty to give a reason the courts however have held failure to give reasons may invalidate a decision if in order to have a fair hearing the applicant requires an explanation (R v Doody).

(c) Bias: A decision maker must act free from bias (impartially) i.e. financial interest no matter how small (Dime v Grand) or a member of an organisation party to the case (R v Bow Magistrates Court).

TEST FOR BIAS: Whether a ‘fair minded and informed observer would consider there is a real possibility or danger of bias’ (Porter v Magill).

(d) Legitimate Expectation: where a prior course of dealing with the decision maker leads to a reasonable legit expl on the part of the app regarding future decisions.

(e) Legal Representation: a right to be legally represented before the decision maker, criteria set out by R v Home Sec, Exp Tarrant:

1. Seriousness of charge & penalty.
2. A point of law likely to arise.
3. The capacity of the defendant to present their own case.
4. Complexity of procedure.
5. A need for reasonable speed in decision making.
6. Need for fairness between students and teachers.

(f) Cross-examination; oral hearings automatically carry a right to cross examine those who give evidence (Bullshell v Sec of State for Environment).

Remedies

Quashing Orders (certiorari) - such an order renders the original order invalid once grounds for finding it unlawful/irrational or procedurally improper have been found.

Mandatory orders (mandamus) – An order that compels a body to take action i.e. ordering a tribunal to hear a case that it has refused to deal with.

Prohibiting Orders (prohibition) – Prevents a body from making a decision that would be susceptible to a quashing order.