Introduction to judicial review II (Rule of law # (R v SoS Foreign and…
Introduction to judicial review II
Senior Courts Act 1981
CPR Part 54 - "the court shall not grant leave (permission) unless it considers that the applicant has sufficient interest in the matter to which the application relates"
IRC v National Federation of Self-Employed and Small Businesses (1982) - "The Fleet Street Casuals" - did the National Federation have sufficient interest to challenge the decision?
Vindication of the Rule of Law - "It would be a grave lacuna in our system of public law if a pressure group or even a single public-spirited taxpayer were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the action lawfully stopped" - Lord Diplock - Fleet Street Casuals
Permission stage - threshold test - safeguards against "busybodies, cranks and mischief-makers"
Main hearing - standing can be challenged too - "mixed question of fact and law" - Scarman
Types of challengers?
Those directly affected
Associations of those directly affected
Associations/representatives - individuals can act through representatives
R v Liverpool Corp ex p Liverpool Taxi Fleet Operators Association (1972)
R v SoS Employment ex p EOC (1994)
R v IBA ex p Whitehouse (1984) - "scum"
R v Felixstowe Justices ex p Leigh (1987) - journalists challenging practices in Felixstowe Magistrates Court
R v SoS Foreign Affairs ex p Rees-Mogg (1994) - Maastricht Challenge
Pressure or interest groups
Fleet Street Casuals (1982)
R v SoS Environment ex p Rose Theatre Trust Co (1990) - Schiemann J - lack of local link
"It would be absurd, if two people, neither of whom had standing could... incorporate themselves into a company which thereby obtained standing"
Umbrella interest group
R (HS2 Action Alliance) v SoS Transport (2014)
Not for profit organisation - 90+ affiliated action groups and residents' associations
Challenge to procedural requirements of EU environmental/planning law
Status and connection to issue?
R v HM Inspectorate of Pollution ex p Greenpeace Ltd (No 2) (1994)
National and international reputation
UK membership - 400,000
Local interest/Cumbria - 2,500+
Rule of law
R v SoS Foreign and Commonwealth Affairs ex p World Development Movement Ltd (1995) - re Pergau Dam, Malaysia
Vindicating ROL - legality of "governmental" decisions
Importance of issue raised
Absence of other challenger
Nature of breach of duty
Vote of the WDM in giving advice, guidance, and assistance
R (Corner House Research) v Director SFO (2008) - CHR and Campaign Against Arms trade allowed standing
Walton v Scottish Ministers (2012) - ospreys - "constitutional function of maintaining the rule of law"
R (Bulger) v Lord Chief Justice and SoS Home Department (2001) - challenge to sentence given to (child) murderers of his son
Impartiality in sentencing
Only relevant parties were Crown and defendants
Exclusion of judicial review?
Anisminic Ltd v Foreign Compensation Commission (1969)
s.4(4) Foreign Compensation Act 1950 - "the determination by the Commission of an application... shall not be called into question by any court of law"
R v SoS Home Dept ex p Fayed (1997)
British Nationality Act 1981
Asylum & Immigration Bill 2004
Smith v East Elloe RDC (1956)
Time limitation - review restricted to 6 weeks for a CPO - accepted by court
Remedies - discretionary
Specific to JR
Quashing order (CPR 54.19)
Is decision challenged a "public law" decision - is it "governmental" in nature?
Does procedural exclusivity apply?
Does applicant have "sufficient interest"?
Time limits complied with?
Any ouster clauses