Introduction to Judicial Review - Lecture Slides PDF

Lecture 11 Introduction to judicial review Lecture 11 Learning outcome By the end of this lecture, you are able to:  explains the role and purpose of judicial review  discuss the difference between tribunal appeal and judicial review  discuss the constitutional basis of...

Lecture 11 Introduction to judicial review Lecture 11 Learning outcome By the end of this lecture, you are able to:  explains the role and purpose of judicial review  discuss the difference between tribunal appeal and judicial review  discuss the constitutional basis of judicial review  explain the ways in which the law attempts to restrict judicial review  4. Courts ensure 1. Parliament govt acts lawfully delegates and do not exceed administrative the limits of its power to powers government The chart of judicial review 2. Government takes 3. Judicial review decisions challenges against affecting the lawfulness of people government What judicial review is and is not about Judicial review represents the means by which the courts supervise the lawfulness of decisions made by public bodies carrying out their public functions.  Lord Neuberger, “There is President of the Supreme no more fundamental aspect ofCourt: the rule of law than that of judicial review of executive decisions or actions”. Features of JR  Judicial review is primarily concerned with the manner in which a government decision is taken, rather than the merits of a decision.  Courts are limited to reviewing the legality/lawfulness of government decisions/actions.  The courts do not ask themselves the questions, ‘Is this decisions right or wrong,’ or ‘Which view is better one.’  Sources of law: legislation and common law.  The courts examine the jurisdiction, decision-making process, reasonableness, and the compatibility with HRA.  The courts do not retake decisions. R (Friends of the Earth) v Secretary of State for Business, Enterprise and Regulatory Reform EWCA Civ 810, PTSR 635 Fact: Warm, Homes and Energy Conservation Act 2000 made it a duty of the Secretaries of State to publish and implement a strategy to eliminate fuel poverty. Section 2(2)(c) of the UK Fuel Poverty Strategy set a target that “In England, the Government as far as reasonably practicable will seek an end to fuel poverty for vulnerable household by 2010”. Unsurprisingly, the Government failed to deliver this goal. Questions: The CA was invited to answer two questions - The interpretation of the duty: to succeed or to try “to eliminate fuel poverty” - Whether had relevant secretaries unlawfully failed to perform their duty? Decision: In the first case. The CA thinks the legislative obligation is described in terms of effort or endeavour. The CA accepted that opinions could differ as to how best to implement such policy. It was nor for the court to adjudicate on the merits of the opinion formed, in the absence of a challenge as to its rationality. Appeal VS Review  The right to appeal is a statutory right created by the Parliament. The right to judicial review is a common law right. If the parliament has not created a right to appeal, individuals can still apply for judicial review.  Where tackle an appeal, tribunals or courts review the merits of impugned decision. They can replace the judgment of the lower court or tribunal with its own on issues of both fact and law.  By judicial review, courts primarily review the lawfulness of the decision, instead of their merits. They do not replace the decision with one that they think would be better on merits. (by reasonableness and proportionality, the court look into the content).  “Public bodies”: UK Government, devolved governments, local authorities, state agencies, tribunals, agencies, etc.  “Public functions”: the decisions are governmental and/or concern the general population affecting the people’s rights and interest. 1. Decisions by non-public bodies performing public function? 2. Decisions by government under non-statutory power? 3. Decisions by non-public bodies performing non- government function? Decisions by non-public bodies performing public function R v Panel on Take-overs and Mergers, ex parte Datafin plc QB 815 Facts: The claimant and company X attempted to take over company Y. The claimant complained to the Panel on Takeovers and Mergers that company X violated the Panel’s code of conduct. The Panel dismissed the compliant against company X. Then the claimant sought judicial review against the Panel’s decision. Question: Whether the decision of Panel fell within the jurisdiction of judicial review? Whether the Panel’s decision was lawful?  Decision: The Panel’s decision was subject to judicial review even though it was not exercising any legal power. And the Panel’s decision was lawful. Lloyd LJ stated that “I do not agree that the source of the power is the sole test whether a body is subject to judicial review… If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If, at the other end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review. But in between these extremes there is an area in which it is helpful to look not just at the source of the power but at the nature of the power. If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may, as Mr. Lever submitted, be sufficient to bring the body within the reach of judicial review.” Implication: The governmental and public nature of the functions performed by either public or private bodies is of central importance when assessing a decision subject to Decisions by government under non-statutory power R (Hooper) v Secretary of State for Work and Pension EWCA Civ 813. Facts: Mr. Hooper and other three appellants are widowers. Under the Social Security Contributions and Benefits Act 1992, widows received benefits or tax allowances in circumstances in which widowers did not. The appellants challenged the discrimination on the grounds of violation of the HRA. Question: Was the Minister’s failure to pay pensions to widowers violating the lawful? Decisions by government under non-statutory power R (Hooper) v Secretary of State for Work and Pension EWCA Civ 813. Decision: The Secretary of State had acted unlawfully by failing to pay pension to certain categories of widowers despite the lack of ant specific statutory power to do do. The CA stressed that “Acts of Parliament should be read, in so far as possible, as not precluding common law or prerogative powers of the Crown to take any action that may be necessary to prevent infringement of Convention rights. In so far as the HRA placed upon the Secretary of State an obligation to make extra statutory payments.” Implication: This case indicates the court’s willingness to review all justiciable decisions pertaining to governmental functions, whether or not they are taken under identifiable legal powers. Decisions by non-public bodies performing non-government function? R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan 1 WLR 909 Fact: In November 1990, the Jockey Club, the body that regulates the majority of horse racing conducted in the United Kingdom, disqualified Aliysa from the June 1989 Oaks at Epsom. The filly was found to have had a prohibited substance following a post-race test. There were various consequences for the Aga Khan flowing from this finding—namely, reputational damage, loss of prize money, a fine, and the loss of the financial value of the horse concerned. The Aga Khan sought a judicial review of the Jockey Club’s decision. Question: Whether or not the Jockey Club was susceptible to judicial review— that is, was it a public body or was it exercising a public function?  Decision: The decision of Jockey Club is not subject to judicial review. The Club ‘is not in its origin, its history, its constitution or (least of all) its membership a public body.’ In Datafin, the panel was clearly regulating an area of national activity that the government would otherwise have had to regulate itself. In contrast, the government would not regulate horse racing in the absence of the Jockey Club. Implication: Consistent with Datafin, in English law, the court seeks to identify the nature of the decision and the power used, not the general nature of the body making the decision under said power. Question for you: Was the private care home exercising a public function by accommodating and looking after A? Under the National Assistance Act 1948, local authorities are required to arrange the provision of residential care and accommodation for persons who by reason of age, infirmity or any other circumstances need care and attention. A local authority entered into a contract with a private care home, which is to provide accommodation for people who are need at public expense. A is an 80-year-old Alzheimer’s sufferer and duly accommodated in the private care home. The private care later home terminated the contract because A’s relatives behaved inappropriately  The procedure for applying for judicial review  Pre-action stage  Permission stage - obtain permission (AKA ‘leave’) to apply for judicial review from the court;  Hearing - substantive determination of the claim.  Pre-action protocol letter  Write a letter to the public body setting out why you think they have acted unlawfully and what you want them to rectify the situation. Also state the intention to apply for judicial review. Obtain permission to apply for judicial review Granting permission to apply for judicial review is discretionary power. Some judges are more willing to grant permission than others. a) exhaust available remedies before applying for judicial review b) sufficient interest c) time limits d) an arguable ground for judicial review having a realistic prospect of success e) a different outcome Exhaust available remedies  Judicial review is the last resort. Individuals usually must exhaust available remedies before applying for judicial review.  R. v Inland Revenue Commissioners, Ex p. Preston.  Permission to judicial review is court’s discretionary power.  The availability of other remedies does not affect the court’s jurisdiction to grant permission to judicial review. The courts will still allow judicial review when other alternative remedies are not inadequate, when it is onerous for the individual to be restricted to the appellate procedure, when other remedy procedure is likely slow. R. v Inland Revenue Commissioners, Ex p. Preston AC 835 Facts: The applicant, Mr. Preston, sought judicial review of the Inland Revenue Commissioners' (IRC) decision regarding his tax assessment. However, he had not exhausted the statutory appeal process provided under the Taxes Management Act 1970 before applying for judicial review. Decision: The House of Lords held that Mr. Preston could not seek judicial review because he had not exhausted the statutory appeal process. The court emphasized that the statutory appeal process was a more appropriate forum for resolving his dispute with the IRC. Sufficient interest  Senior Courts Act 1981, section31(3): No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.  Sufficient interest is not defined in legislation and it is left to the judges to determine.  In most cases, it is obvious that the claimants have a sufficient interest because the impugned decisions directly affect them.  A scenario: To build another airport at north Manchester. (1) People living close to the proposed site (light and noise pollution); (2) people living miles way from the proposed site (traffic congestion and business); (3) environmental pressure group. R v Inland revenue Commissioners, ex p National Federation of Self- Employed and Small Business Ltd AC 617 Fact: Some casual print workers on national newspapers avoided paying income tax by falsifying information provided to the tax authorities. In attempt to regularise the situation, a deal was offered: register and pay tax in the future, no investigation into the past. The Federation wanted to challenge this amnesty, arguing that this was unfair to law-abiding taxpayers such as its members. Decision: The claimant did not have standing to pursue its claim. Question: Did the Federation have a standing to make a judicial review claim? R v Inland revenue Commissioners, ex p National Federation of Self- Employed and Small Business Ltd AC 617 Decision: The claimant did not have standing to pursue its claim. The majority held that ‘in order determine whether the Federation had a sufficient interest in the matter, it was necessary to look at the substance of the claim. They examined the legal and factual context. They considered that ‘one taxpayer has no sufficient interest in asking the court to investigate the tax affairs of another taxpayer or to complain that the latter has been under-assessed.’ Moreover, ‘an aggregate of individuals [like the Federation] each of whom has no interest cannot of itself have an interest’. R v Inland revenue Commissioners, ex p National Federation of Self- Employed and Small Business Ltd AC 617 Implication: This case established a principle that standing is to be assessed in accordance with the substance of the case, within the “legal and factual context” of the case. The standing is assessed with reference to the strength and seriousness of the claim. It would, in my view, be a grave lacuna in our system of public law A relativeif restrict approach. a pressure group, What is the like the implication? federation, 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 unlawful conduct stopped. Lord Diplock The current stance – a more open approach  An individual has personally affected by a decision, they undoubtedly have standing.  A group, association or corporation represents its members or acts in general public interests. R v Inspectorate of Pollution, ex p Greenpeace (1994) R v Secretary of State for Foreign Affairs, ex p World Development Movement (1995)  The court can take into account: - importance of the issue raised; - the importance of vindicating the rule of law; - nature of the breach of duty against which relief is sought; - likely absence of any other responsible challenger; - the reputation of the body; - whether a significant number of its members are affected by a decision;  The open approach and its concerns  Abuse of judicial review  Using judicial review as a platform to pursue political ends or protests; In practice, challenges to legislation on the ground of discrimination have become increasingly common in the United Kingdom. They are usually brought by campaigning organisations which lobbied unsuccessfully against the measure when it was being considered in Parliament, and then act as solicitors for persons affected by the legislation, or otherwise support legal challenges brought in their names, Lord as aReed means ofincontinuing argued their ofcampaign. R (SC) v Secretary State for Work and Pensions UKSC 26 ’s your opinion? A more open or a more restrained approach to the standing in judicial review? Time limits  Judicial review must generally be brought about within three months of the date on which the relevant decision was made.  For planning claims, the application must generally be made within 6 weeks of the date of the decision.  What if the claimant failed to bring a case within three months?  The courts have discretion to continue judicial review provided that there is “good reason” for doing so, e. g. the importance of the issues, the prospect of success, the presence or absence of prejudice or detriment to good administration, and the public interest. Arguable ground for judicial review having a realistic prospect of success  While the courts have discretion to grant permission to proceed and the the test is a flexible one, a claimant must demonstrate that it has an “arguable” case.  To eliminate at an early stage claims which are hopeless, frivolous or vexatious. Different outcomes Senior Courts Act 1981, section31(2)(2A) & 2(B) The courts must refuse to grant to relief on an application for judicial review if “appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.” The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest. This shifts the focus of judicial review from the consideration of whether or not a public body has acted unlawfully to considering the impact of the alleged conduct on the applicant. Concerns: if the applicant cannot prove the outcome would have been  Refusal of permission rmission granted proceed to hearing rmission refused as totally without merit end the case rmission refuses request reconsideration at an oral hearing submit a written applicatio Refuse: end the case Grant permission 3,597 claims for judicial review were lodged in the High Court in 2018. Only 184 cases, about 5% of the total cases, reached a full hearing. The rest were mostly refused permission to proceed, withdrawn, or resolved out of court. The grounds of judicial review The grounds of judicial review were discussed and outlined in Council of Civil Service Unions v. Minister for the Civil Services A.C. 374 Facts: The Minister for the Civil Service, Margaret Thatcher, had made a decision that those who worked for the British Intelligence Agency at GCHQ ought not to be allowed to join a trade union on the grounds of national security. This was a decision which was made by Thatcher through the use of prerogative power with the issuance of an order in council. Justiciability The House of Lords concluded that the decision was justiciable. It was held that the justiciability of a decision made by prerogative power can be legitimized on one of the two grounds: The decision altered the right and/ or obligations in the private law; They deprived a benefit which they either did have or were reasonably expected to have. Grounds of judicial review Illegality Procedural impropriety Irrationality The remedies of judicial review  The granting of remedy in judicial review is at the discretion of the court.  Quashing order (certiorari)  Prohibiting order (prohibition)  Mandatory order (mandamus)  Declarations  Injunctions  Damages, restitution and recovery The constitutional basis of judicial review  Unique nature of the UK’s uncodified constitution  Two sources of law: legislation and common law  Important to understand the constitutional basis of JR – what gives the courts the constitutional authority to review governmental actions and decisions  This has the impact on the jurisdiction, grounds, intensity of judicial review, etc.  Two theories: ultra vires theory and common law theory The constitutional basis of judicial review – ultra vires theory  Ultra vires = beyond the powers.  Linked to Parliamentary sovereignty.  Parliament delegates statutory powers to public bodies.  Courts ensure public bodies do not act outside their legal jurisdiction – the scope of their statutory powers.  In this way, courts enforce intention of Parliament. The constitutional basis of judicial review – ultra vires theory Example  Minister has statutory power to approve building of new airport.  This excludes building a prison or motorway.  Parliament only intended building of an airport.  Courts will police the exercise of this power.  Courts can strike down anything that goes beyond this power – to uphold parliamentary sovereignty. Weakness of this theory  Not all public powers are statutory.  Non-statutory powers include various prerogative powers, e.g. granting or refusing a UK passport.  The problem: no Parliamentary intention because power is non-statutory.  Courts have held that some prerogative powers are subject to judicial review, eg GCHQ case – relationship between ministers and civil servants governed by prerogative – court held this was in principle open to judicial Weakness of this theory, cont’d  Ultra vires theory provides only a partial explanation of judicial review, inadequate to explain the court’s power to rule on certain aspects of decision making  Courts say that statutory powers should be exercised through a fair process.  Courts will insist on procedural fairness – even if the relevant statute is silent on procedure to be followed.  Courts say: “the justice of the common law shall supply the omission of the legislature” (Cooper v Wandsworth 1863)  Problem: again, no Parliamentary intention here. The constitutional basis of judicial review – common law theory  This theory view judicial review as rooted in the common law.  Courts will correct any abuse of power – whether statutory power involved or not  Concept of abuse of power is common law construct – court made – based on long-standing principles of judge made law  Besides ultra vires, acting improperly, unreasonably, or in breach of natural justice A set of constitutional basis of judicial review – middle way  The constitutional basis does not lie on a single foundation, but rest on a set of constitutional foundations.  The justification for judicial review is to be found within the context of the interaction of the key principles of constitution: separation of power, rule of law, and parliamentary sovereignty. Limitations on judicial review: Sceptical view of judicial review 1. Government is elected to govern – not the courts (democracy argument). 2. Judges do not have expertise in public administration (expertise argument). 3. Government decisions often have a political dimension (politics argument). 4. Spending public money – deciding on political priorities – is classic example of an area particularly suited to the political, not legal, process. 5. Demarcation of power issues. Whether the executive has relevant 5. Adversarial judicial process not effective means of resolving complex social and economic problems (process argument). 6. For example, Government can consult with public generally. 7. Judicial review should not become a surrogate political process. 8. Past concerns from the left-wing that conservative judges would defeat progressive social policies. Therefore, the courts should have a modest, though important, role – but their role should be limited. Limitations on judicial review – justiciability This concept marks out certain exercise of public power as not judicially reviewable on any grounds. In other words, the courts has no judicial review jurisdiction over these relevant issues.  Parliamentary privilege  Prerogative power  Ouster clauses Parliamentary privilege Freedom of speech in Parliament is protected from any legal liability. This also extends to proceedings in committees of the Houses. A MP is protected from being sued for defamation. Exclusive cognisance. The Parliament has the right to determine its own rules and the procedure it used to legislate, and to regulate its internal affairs, including disciplinary and penal rules. The courts usually do not question the proceeding by which an acted was passed. Prerogative power The existence/scope of prerogative power: The courts have long claimed their authority to determine the scope or limits of the prerogatives. The exercise of prerogative power. GCHQ, a watershed The exercise of some prerogative power is still beyond the jurisdiction of courts, e. g. in GCHQ, the court held that appointment of ministers, grant of honours, dissolution of Parliament, foreign affairs, and national security were not subjects for review by courts. Ouster clause A clause in legislation which seeks to deny, or ‘oust’, the courts’ supervisory jurisdiction over the exercise of public power. E. g. Dissolution and Calling of Parliament Act 2022, Section 3 (Non- justiciability of the prerogative powers to dissolve Parliament and call a new Parliament. (Miller 2 case) Judicial Review and Courts Act 2022, Section 2 (Exclusion of review of Upper Tribunal’s permission-to-appeal decisions. (Cart case) Ouster clause The courts interpret the ouster clauses in a way of limits the scope of statutory exclusion of judicial review. Cart Anisminic Privacy International R (Cart) v Upper Tribunal UKSC 28 Facts Court of Appeal Section 13(8)(c), decisions on application for permission are excluded from the right to appeal to CA. Upper Tribunal The FTT and UT refused to grant permission to appeal to UT. First-tier Tribunal Social security and child support decision  Question: Could Cart (who was unsuccessful in FTT and had been refused permission to appeal to the UT) seek judicial review in High Court of the refusal of appeal? Decision: The 2007 Act did not contain the clear words necessary to oust or exclude judicial review of unappealable decisions of the Upper Tribunal. Clear words would be needed to do this and they are not here. The scope of judicial review was an artefact of the common law the object of which was to ensure that within the bounds of practical possibility decisions were taken in accordance with the law. Neither tribunals nor courts were infallible and a judge at any level might be wrong in law, there should be the possibility that a second judge could check for errors in the case. Without judicial review, there was a real risk of the Upper Tribunal becoming Government’s response to Cart In 2020, the Government set up an independent review of administrative law, which was tasked with considering whether changes were needed to judicial review. Its findings and recommendations were published in March 2021. The Independent Review of Administrative law report recommended reversal of Cart decision. Judicial Review and Court Act 2022 inserted Section 11A to the TCEA, which ousts the judicial review of the UT’s decisions about permission to appeal. Anisminic Ltd v Foreign Compensation Commission 2 AC 147, House of Lords Fact: In October 1956, the UK and France invaded the Mediterranean seaports at the mouth of the Suez Canal. The appellants, Anisminic, owned property in Egypt (valued at £4–4.4 million) was damaged during the invasion, subsequently sequestrated by Egypt in 1957, and later sold to an Egyptian company TEDO for £500,000. In 1959 a diplomatic agreement was reached between the UK and the United Arab Republic to return sequestrated property. A settlement of £27.5 million was also made to the UK. The disposition of that sum was at the discretion of the UK Government. Under the Foreign Compensation Act 1950, which established the Foreign Compensation Commission (FCC), the Foreign Compensation (Egypt) (Determination and Registration of Claims) Order 1959 created a route through which Anisminic could apply for compensation. Fact (cont’d) : The FCC was, by article 4(1) of the that Order, to treat a claim as established if a claimant satisfied it that: i. its claim was in respect of certain property in Egypt; ii. the claimant was the owner of that property at the date of sequestration, or the then owner’s successor in title, and iii. the owner or successor is title was a British national at the date of sequestration and at the date of the 1959 Treaty. The FCC concluded that Anisminic did not have a valid claim because TEDO was not a British national, but a Egyptian national.  The claimant argued that the nationality of the successor in title was irrelevant where it was the original owner and sought a declaration that the determination was a nullity (which means no determination had ever come into being). The House of Lords were invited to answer two questions: Whether the FCC had made an error of law when construing the term "successor in title”? Whether the court was excluded from reviewing a tribunal's decision could be excluded by an "ouster clause" in the relevant legislation even if the tribunal had made an error of law?  Decision: The FCC made an error of law. It wrongfully interpreted Section 4 paragraph (1)(b) (ii) of the Order as requiring them to inquire when the applicant is himself the original owner (Anisminic), whether he had a successor in title. On a true construction of the Order, a claimant who is an original owner does not have to prove anything about successors in title. The word "determination" in section 4 (4) of the Act of 1950 should not be construed as including everything which purported to be a determination but was not in fact a determination because the commission had misconstrued the provision of the Order defining their jurisdiction. The court accepted the claimant’s argument, the determination was a nullity. Only valid determinations were ousted from judicial review by section 4 (4). Decision (cont’d): ‘If the draftsman or Parliament had intended to introduce a new kind of ouster clause so as to prevent any inquiry even as to whether the document relied on was a forgery, I would have expected to find something much more specific than the bald statement that a determination shall not be called in question in any court of law.’ An error in interpreting an Order in Council justified judicial intervention, even in the face of an ouster clause. Limitations on judicial review – deference The courts have authority to speak something different from the legislature or the executive but sometimes they choose not to. Courts defer to the executive or legislature when they feel the subject matter is more in their area of competence. It marks out certain grounds of judicial review as not being available when reviewing the exercise of a particular type of power No jurisdiction broad deference limited deference The Independent Review of Administrative Law 2021 Deference Different grounds of judicial review enable distinct extent of judicial scrutiny. Irrationality – very close to the substance of a decision Proportionality – merits of a decisions Error of law, bad faith, improper motive, unfair process Deference There is no “the rule of deference”. Each case is judged in its own context. Balance between providing adequate protection for rights and interests of individuals and enabling public bodies to make decisions in pursuit of their policy goals. High policy about money, such as budget allocation, social & economic rights protection Problem is so serious and solution difficult, such as issues concerning moral value (assisted suicide, marriage) Summary: Features of judicial review 1. It’s concerned with reviewing the legality of government decisions - not with the merits of such decisions - the courts do not tell government which decision it should make, but only that whether or not a decision was lawful. 2. It provides the legal framework within which public administration operates. 3. JR is not usually concerned with disputed issues of fact. 4. JR is undertaken by senior – mostly High Court – judges. 5. JR principles are made and developed by the judges rather than the executive or Parliament. Tribunal appeals and judicial review compared Judicial review Tribunals the courts review the lawfulness of Tribunals decide appeals against government decisions administrative decisions the courts can only strike down an Tribunals are not limited just to striking administrative decision and send it back down an administrative decision to the public body to be re-decided The courts cannot substitute their own Tribunals can remake the administrative decision for that of the government decision on issues of fact and law The courts are limited in this way Tribunals can take their own decisions because they have a common law because they have a statutory jurisdiction jurisdiction Tribunal appeals and judicial review compared, cont’d Judicial review Tribunals the courts follow more formal procedure Tribunals take more flexible procedure More complex legal issues and usually Self-representation, limited legal aid represented by lawyers Adversarial hearing Adversarial or inquisitorial hearing Common law right to judicial review Statutory right to appeal to Tribunals, which can be limited by Parliament