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Public Law MG
Introduction to Administrative Law
| Question | Answer |
|---|---|
| Judicial Review | Anyone who believes they have suffered at the hands of a public body that has overstepped or misused its powers or acted unfairly may apply for Judicial Review. |
| Judicial Review | Specialist judges of the Queens Bench Division of the High Court hear these applications/courts seek to uphold Parliamentary supremacy/any body which derives its powers from Parliament must not be allowed to exceed them |
| /not an appeal process/also intended to protect public bodies from unnecessary interference | |
| The Parliamentary Ombudsman | injustice as a result of “maladministration” by a public body may complain to the Ombudsman via their MP/intended to deal with “secondary acts of injustice” rather than major scandals/as rudeness, neglect and refusal to answer reasonable question |
| Definition of Judicial Review/CCSU v Minister for the Civil Service [1985] per Lord Diplock. | “Judicial review is the means by which judicial control of executive action is exercised.” |
| Purpose of Judicial Review | allows people with a sufficient interest in a decision or action [taken by a public authority] to ask a judge to review the lawfulness of an enactment or a decision, in relation to the exercise of a public [as distinct from private] function.” |
| Rules which restrict those seeking judicial review | include a tight deadline for applications and/ a test of “sufficient interest”/also establish that the question at stake is one of public rather than private law. |
| Judicial review procedures | now governed by the Civil Procedure Rules/the Supreme Court Act 1981 and/ various Practice Directions. |
| Grounds for judicial review | Lord Diplock proposed a classification of categories for review in the Council of Civil Service Unions v Minister of State for Civil Service [1985] (also known as the GCHQ case). |
| The possible heads or categories of review fall into three | Illegality/Irrationality/Procedural Impropriety |
| Illegality | a decision-maker has either misunderstood the law which regulates his decision or has not given effect to it. |
| Irrationality | a decision has been taken which is “so outrageous in its defiance of logic or of accepted moral standard that no sensible person who has applied his mind to the question to be decided could have arrived at it.” (known as Wednesbury unreasonableness) |
| Procedural Impropriety | Either a failure to satisfy procedures laid down by enabling legislation or a breach of the rules of natural justice. |
| The Process of Judicial Review | Is the matter one of public law?/Does the applicant have sufficient interest?/Is the matter time-barred?/Does an effective ouster clause exist, restricting the court jurisdiction?/What remedies may be available? |
| Is the matter one of public law? | Any application for judicial review will fail if the complainant cannot show that the issue is one of public law/Although in most cases this will be a straightforward question to answer there are areas of difficulty. |
| O’Reilly v Mackman [1983] | put simply is that public law issues must be dealt with by judicial review or they may be struck out/Lord Diplock ruled that this was a blatant abuse of process. |
| Roy v Kensington & Chelsea and Westminster FPC [1992]/what about the private law rights of someone employed by a public body which is alleged to have abused its powers? | The courts appear to be willing to take a flexible approach if justice can be served by so doing |
| The source of a body’s power would | normally indicate its susceptibility to review/ a body established by prerogative, statute or delegated legislation is prima facie “public”. |
| R v City Panel on Take-overs and Mergers ex parte Datafin [1987] | even those bodies created privately, may be subject to review if they exercise “public law functions” or if their actions have “public law consequences” |
| R v Chief Rabbi ex parte Wachmann [1992]/R v Disciplinary Committee of the Jockey Club ex parte Aga Khan [1993] | However even bodies which regulate such significant areas of public life as horse racing, professional football or the Jewish religious community may not be considered appropriate matters for judicial review. |
| “public body”/“public authority” | Civil Procedure Rules in relation to judicial review refer to a “public body”/the Human Rights Act 1998 refers to a “public authority”/definition of a “public authority” is provided in Aston Cantlow v Wallbank [2003]/ L v Birmingham City Council [2007] |
| Supreme Court Act 1981 s31(3)/Does the applicant have sufficient interest? | must first convince the High Court that they have “sufficient interest”/must establish both an arguable case and some right, interest or legitimate expectation which has been damaged by abuse of power by a public body |
| where entire communities are affected | the court may have to decide whether each individual has standing and/or an application from a pressure group would be acceptable. |
| R v Inland Revenue Commissioners ex parte National Federation of Self Employed and Small Businesses Ltd. [1983]/Lord Diplock explained | the courts want to keep out “busybodies, cranks and mischief-makers”/ but that “a single public-minded taxpayer” should be able to challenge unlawful administrative action. |
| Supreme Court Act 1981 s31 (7)/Is the matter time-barred? | Applications for review must be made promptly and within three months of the date the grounds arose/The court has discretion to waive this deadline if there are good reasons. |
| Does an effective ouster clause exist, restricting the court jurisdiction? | |
| An ouster clause is | a provision inserted into legislation by Parliament in an attempt to protect from judicial review certain decisions by excluding or ousting the jurisdiction of the court. |
| Anisminic Ltd. v Foreign Compensation Commission [1969] | concerned ouster clause in The Foreign Compensation Act 1950 s4/decided that the FCC’s decision based on an error of law/ decision a “nullity”/not “determination”/side-stepped ouster clause/ruled that the FCC had acted ultra vires or outside its powers |
| Home Secretary David Blunkett | included a clause in the Asylum and Immigration Bill in 2004/The attempt provoked widespread opposition and does not appear in the act now on the statute book |
| Limited ouster clauses | such as those where the time allowed for court review is further restricted – have been more effective. |
| R v Secretary of State for the Environment ex parte Ostler [1976] | the court upheld a six week time limit in the context of a planning decision to prevent disruption to the planning process. |
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