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Government Accountability part II - Legal Accountability via Judicial…
Government Accountability part II - Legal Accountability via Judicial Review
Process and procedure
What is JR (and what is it not)?
What can it do? Remedies.
Who can bring an application? Only those with 'sufficient interest' - what does that mean?
Who can be judicially reviewed? Public bodies - who does that mean?
How to make an application
Constitutional justifications? Ultra-vires versus common law theories
Legal basis of claims? Diplock classification of the legal grounds of challenge from CCSU. Be aware there are different ways to categorise the grounds of challenge. The lectures follow the Diplock classification from the CCSU case for simplicity.
Illegality.
How did Diplock define this ground?
Errors of fact (not covered in lectures but you may come across this sub-ground in your research)
Errors of law (not covered in lectures but you may come across this sub-ground in your research)
Ultra Vires
Abusing discretion
Relevant/irrelevant considerations
Improper purpose
Unlawful delegation
Fettering discretion
Breaching s6 HRA 98
Irrationality
. How did Diplock define this ground?
Definitions
Wednesbury
Manifestly unreasonable
Abusing discretion
Proportionality
What is it?
When can it be used?
Arguments to replace irrationality with proportionality - why?
Emerging as a fourth ground? Is the common law developing to include proportionality style test where 'important legal rights' are involved?
Characteristics
Deference/Varying level of review
Heightened/anxious scrutiny where rights are at stake
Political based decisions
High threshold to prove - why? Why are the judiciary reticent under this ground?
Poorly defined
Sub grounds (not covered in lectures but you may come across these in your research. These can include grounds that could be used under the illegality heading, but if they are so unreasonable that no reasonable decision maker could have reached them, then they may potentially also be argued under Irrationality as well
Relevant/irrelevant considerations
Improper purpose
Failure to give reasons
Procedural impropriety.
How did Diplock define this ground?
Express requirements
Consultation used as an example. Other requirements possible if they are expressly stated in the power conferring statute
What does the statute say? Has it been complied with? What were the consequences of non-compliance?
Implied requirements
Rules of natural justice
Bias
Actual bias
Apparent bias
Right to a fair hearing
Know the case against you
Reasonable time to prepare case
Right to be heard
Right to representation
Reasons for a decision
Legitimate expectations
JR is common law based so lives in caselaw. Each 'ground' of challenge has 'sub-grounds'. Learn the structure of each ground. Cases are needed for each ground and sub-ground. A decision may fall foul of more than one ground - the grounds can overlap.