Full notes on judicial review for a problem question in the exam with full detailed case notes
How to answer exam question, grounds, illegality, ultra virus, bias, fair hearing, EU articles, procedural impropreity.
How to answer a problem question for
Judicial Review
Use the IRAC method: - Issue - Rule - Application – Conclusion
First talk about the grounds:
The decision must be made by a public body: local authorities; government departments;
regulators e.g. Ofcom; Non-governmental organisations (the Panel on Takeovers and
Mergers, Independent Press Standards Organisation, Advertising Standards Authority)
The decision must be made under delegated powers
There must be an existence of: a prima facia case and that the claimant has a locus
standi i.e. the right to bring the case.
Case example:
- R v Inland Revenue, ex parte National Federation of Self-employed and Small
Businesses [1982]
Facts: The federation sought to challenge the Inland Revenue’s procedures for
levying taxes on casual workers engaged by Fleet Street newspapers. The
federation argued that their members (who did not benefit from this arrangement)
were, therefore, disadvantaged.
Legal principle: - Held by HoL: the taxation agreement did not apply to the
individual members of the Federation, the federation could not bring an action.
Lord Roskill: it cannot be said that the respondents had a sufficient interest to
justify their seeking the relief claimed by way of judicial review. Sometimes it is
possible for a claimant to bring an action where they have no direct interest if
there is a wider point of public interest to be decided by the action
Sometimes it is possible for a claimant to bring an action where they have no
direct interest if there is a wider point of public interest to be decided by the action
- R v HM Inspectorate of Pollution, ex parte Greenpeace (No.2) [1994]
Facts: The environmental campaign group Greenpeace sought to bring an action
to challenge the policy of discharging toxic waste from the Sellafield nuclear plant
in to the Irish Sea.
Legal principle: Held: although Greenpeace wasn’t directly affected by the policy,
the fact that it was an internationally recognised organisation, with access to
resources and expertise, meant that it was much better equipped to bring an
action than the actual residents affected by the policy. Otton J: “it seems to me
that if I were to deny standing to Greenpeace, those it represents might not have
an effective way to bring the issues before the court”.
Illegality
Does the public body have the power/vires to take the decision?
- If they do not have the power then it is unlawful (ultra vires)
- The authority comes from different sources. These are:
- Statute
- Prerogative
- The Common law (e.g. contracting)
The GCHQ case
- This case established the idea by Diplock “the decision maker must understand
correctly the law that regulated his decision-making power and must give effect to it”
Laker Airways v Department of Trade [1977]:
- British airways monopoly
- Civil Aviation Act 1971- he needed to apply to the civil aviation authority for a license
- Freddie Laker’s “Skytrain”- wants to offer flights between London and new York
, - Oct 1972: Granted 10 year license
- July 1975: new government and change of policy
Regina (National Aids Trust) v National Health Service Comissioning Board (NHS
England) [2016]:
- NHS refusal to consider funding pre-exposure prophylaxis (PrEP) drug
- Did the NHS have the power to provide PrEP to individuals with a high risk of HIV
infection?
- No they only had the power to give cures. Only the local authority could authorise
funding
- Turns out the NHS did have the power to commission the drug and are rolling out
prep for it
R (The Public Law Project) v Lord Chancellor [2016]:
- Cuts to availability of legal aid
- The LC proposal to introduce a residence test for civil legal aid was lawful as it would
be done by amending the LASPO Act 2012 via secondary legislation
Anisminic v FCC [1969]:
- Foreign Compensation Commission (FCC)
- Duty under statute to distribute compensation which has property confiscated by the
- Egyptian Government
- No compensation awarded to Anisminic Ltd. TEDO (its successor in title was not a
British national)
- The FCC had jurisdiction in the narrow sense, but they had gone on to misinterpret
the statute
Post-Anisminic:
- Standard view- all errors of law are jurisdictional
- But courts are not always willing to intervene
Cart (2011) - new tribunal system:
- Tribunals, Courts and Enforcement Act 2007- the upper tribunal is a superior court
of record
- Mr Cart argues that changes to his child maintenance payments are unfair
- Unsuccessful and refused permission to appeal by UT
- JR to challenge the refusal
Illegality and Ultra Vires case
Attorney General v Fulham Corporation [1921]:
Facts - The corporation had a statutory obligation (in an attempt to prevent disease)
to provide washhouses for the poor.The authority sought to open a commercial
laundry under this power
Legal Principle: Held: purpose of the power was to provide washing facilities for the
very poorest people within the community. Opening a commercial laundry which
would charge money to clean clothes was ultra vires Sargant J “the matter turns on
this, whether or not the Council has, either expressly or impliedly, power to conduct
the operation which it is conducting. In my judgement, neither expressly nor
impliedly, under the Acts on which it relies, has it that power”
R v Richmond upon Thames London Borough Council, ex Parte McCarthy & Stone
(Developments)Ltd [1992]
Facts - Council was required to consider planning application. But also introduced a
system of ‘informal consultations’, for which they charged £25
Legal principle: HoL held that, although the system of ‘informal consultation’ with
applicants was helpful, there was no power to levy the £25 charge.Therefore, this
was ultra vires.
Procedural Impropriety
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