Introduction to judicial review (Administrative law (Constitutional…
Introduction to judicial review
Control of governmental power - how it is exercised
Protect individual rights - including companies
Ensure accountability of government
Promote participation in decision-making process - also confidence
"The practical implementation of the Rule of Law has taken place primarily through judicial review of the actions of public officials" - Jeffrey Jowell, The Changing Constitution
Practical manifestation of key ROL values
Access to justice
Separation of powers
Development of common law controls over exercise of Executive power
Judicial activism? - growth of JR over last 30-40 years met with controversy from government and from within judiciary itself
Appropriate constitutional balance OR courts interfering in political decision-making?
Lord Sumpton - FA Mann Lecture (Nov 2011) - call to fellow judges to be cautious in applying process too boldly in political areas
Context of JR
Review - not appeal
Scrutiny of legality of decisions and not their merits - though now is developing to be more substantive
Distinguish from human rights law
Increasing cross-over in cases, however - HR decisions can be reviewed, and can be "grounds" for review
JR preliminary issues
Is the decision being challenged AMENABLE to review?
Is JR the ONLY appropriate form of challenge? - "exclusivity" principle
Procedural exclusivity - O'Reilly v Mackman (1983)
Public law decision - should be challenged using JR procedure
Private law matters - private law cause of action
To avoid abuse of process
To uphold protections given to public bodies by the rules
Mixed public and private law? - Roy v Kensington and Chelsea and Westminster FPC (1992)
Issue concerning public law decision exclusively - JR
Issue involving private law right but with ancillary public law element - ordinary (private) action may be acceptable
Mercury Communications v DG Telecommunications (1995)
Trustees of Dennis Rye Pension Fund v Sheffield City Co 91990)
Clark v Univ of Lincs and Humberside (2000)
CPR - "overriding objective" - part 1 - dealing with cases "expeditiously and fairly"/"cost-effectively"
Which/what type of decisions are challengeable by JR?
CPR 54.1(2) - "claim to review the lawfulness of... a decision, action or failure to act in relation to the exercise of a public function"
General situation - a public law decision taken by a public body
However, public bodies may exercise private law functions e.g. employment contracts - McClaren v Home Office (1990) - not subject to JR, even if it applies to public servents
Body making the decision
Classic public bodies
Some self-regulatory bodies
R v City Panel on Takeovers and Mergers, ex p Datafin plc (1987) - Datafin factors
Nature rather than source of power - significant
"Public element"/public duty
Is power "governmental" in nature?
If body did not exist, would government need to establish it?
Is body governed purely by private (contractual) law?
Other applications of Datafin approach
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Non-public regulatory bodies
Religion - R v Chief Rabbi ex p Wachmann (1993) - found Chief Rabbi not acting as public body - no link to government - only subject to private religious law
R v Football Association ex p Football League (1993) - agreed monopolistic powers of Association might affect the public, but powers created wholly through private law
R v The Jockey Club ex p Aga Khan (1993) - leading case
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R v Servite Houses ex p Goldsmith (2000) - only rights in private law
R (A) v Partnerships in Care 92002)
Additional statutory "under-pinning" - so, amenable to JR challenge
Compare with HRA s6 - YL v Birmingham City Council 92007)
Does the challenger have STANDING?
Has the claim been issued within time limitation?
CPR Rule 54.5
Claim form must be filed
a) promptly; and
b) in any event not later than 3 months after the grounds to make the claim first arose
1977 - Rules of the Supreme Court (RSC) - order 53 - had been developments in administrative law before this point, but 1977 a key year
1981 - Senior Courts Act 1981 - placed on a statutory footing
1998 - Civil Procedure Rules (CSR) - Part 54 - reform
Administrative Court - High Court/regional
Permission stage - "on the papers" - appellant must persuade court to succeed
Main hearing - "inter parties" - heard by both sides
Public law as a defence?
Civil law - Wandsworth LBC v Winder (1985)
Criminal law - Boddington v British Transport Police (1992)