2/10/21 1 Introduction to Administrative Law Dr Muin Boase 2 Housekeeping m.boase@derby.ac.uk Office hours: Fridays 4-5pm (Teams) Drop me an email and we can arrange a time to meet. • 3 Structure of the Course 1. Introduction to Judicial Review 2. Procedure for lodging a claim and standing 3. Illegality 4. Irrationality 5. Procedural Impropriety 6. Human Rights Act 7. Proportionality 8. Judicial Review: Health and Social Care 9. Judicial Review: Criminal Justice System 10.Judicial Review: International Law and Human Rights 11.‘Judicial Activism’ and the Independent Review of Administrative Law 12.Revision Lecture and Assessment Preparation 4 Reading • George Ellison’s Course Handbook – combines several textbook (Part 2) • Mark Elliot’s books are excellent – Public Law or Administrative Law: Text and Materials Assessment • Formative Assessment: Skeleton Argument • Summative Assessment: Moot Presentation (100%) of your final mark. This will take the format of a recorded video presentation. Permission to apply for judicial review. 5 1 2/10/21 5 Structure of the Lecture 1. What is judicial review 2. Rationale behind judicial review 3. Relationship between judicial review and the Constitution 4. Different Grounds for Judicial Review 5. Ouster Clauses 6. Question of Reforming Judicial Review 7. 6 1. What is Judicial Review Judicial Review ‘may be defined as the jurisdiction of the superior courts ... to review the acts, decisions, and omissions of public authorities in order to establish whether they have exceeded or abused their powers’ (Allen and Thompson) And ‘an important accountability tool’ which ‘sets the legal framework within which decisions … affecting the rights, interests, or legitimate expectations of individuals are taken’ (Elliott and Thomas) 7 What is Judicial Review? • A ‘claim for judicial review’ means a claim to review the lawfulness of – –(i) an enactment; or –(ii) a decision, action or failure to act in relation to the exercise of a public function. • • Civil Procedure Rules, 54.1(2) 8 What decisions may be judicially reviewed? • Decisions, acts and failures to act by public bodies exercising public functions can be challenged. Government Departments 2 8 2/10/21 Government Departments • Home Office (refuse someone asylum – deportation claims) • Government Ministers Public Bodies • Decision by a Hospital Refusal to fund potentially life-saving medical services (ex p. B) • Decision by the Schools Exclusions • Decision by Universities (disciplinary proceedings against students for plagiarism etc…) Zahid v Manchester University 9 • Parole Board to release a prisoner • Certain lower Judicial Bodies –Decisions by the High Court/Administrative Court above are NOT subject to judicial review!!! – CAN’T JUDICIALLY REVIEW A HIGH COURT DECISION • Certain Non-Governmental Bodies when exercising Public Functions Datafin • • 10 Examples of Judicial Review cases/issues • Challenge to a decision of the Secretary of State to extend custodial sentences of infamous murdered (Venables) • Refusal to fund potentially life-saving medical services (ex p. B) • Decision by the made by the Foreign Secretary that Mrs Sacoolas had diplomatic immunity R (Charles & Dunn) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWHC 3185 (Admin) • 11 Note: Review Not Appeal • JR – is NOT an ‘appeal’ but rather a means of ‘supervision’ to ensure governance under the law. • • The Court’s role under JR is not to consider the ‘MERITS’ but 3 12 11 2/10/21 • • The Court’s role under JR is not to consider the ‘MERITS’ but rather the ‘LEGALITY’ of the decision. • • JR – focus - procedural irregularities in the way in which a decision is reached or questions of whether a power was actually within the remit of a public body. 12 • ‘Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the Court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power’ .. Lord Bingham at 1173 R v Chief Constable of North Wales Police, ex parte Evans [1982] 1 WLR 115 • ‘Judicial review is an important mechanism for the maintenance of the rule of law. It serves to correct unlawful conduct on the part of public authorities. However, judicial review is not an appeal against governmental decisions on their merits. The wisdom of governmental policy is not a matter for the courts and, in a democratic society, must be a matter for the elected government alone. We stress these fundamentals in this case because there have been times when *4173 sight appears to have been lost of them. As we have mentioned earlier, a huge amount of factual material has been placed before the court. Many of the grounds of challenge have either been abandoned or, as has been explained above, have turned out on proper analysis not to raise points of law at all. Judicial review is not, and should not be regarded as, politics by another means.’ R (Ho • • • • 13 14 Which Court Administers Judicial Review • Starts in the Administrative Court, part of the Queen’s Bench Division of the High Court. 4 15 13 2/10/21 14 • Starts in the Administrative Court, part of the Queen’s Bench Division of the High Court. • Administrative Court Office also has offices in regions. So, for example, in the Midlands, you can file an application with the ACO in the Birmingham Civil and Family Justice Centre. • Judicial Review is discretionary – the Court may reject the application. 15 Discussion Question 1 Can you think any examples of a case of a current example of judicial review: 1. What were the facts? 2. What was the case about? 3. What stage is the case at? 4. Why do you think the case is important? 16 2. Rationale behind Judicial Review • Ultra Vires: JR enforces the will of Parliament (Dicey) • Common Law Model • The ‘modified’ ultra vires model – even if courts develop rules, Parliament allows them to, thus upholding a ‘general intent’ (Elliott) • The normative constitutional model – Parliament ‘ought’ to be bound by the precepts of a modern constitutional democracy, articulated by the courts in defending the rule of law (Woolf et al.) • Which explanation do consider the most convincing and why? • 17 3. Relationship between judicial review and the Three Pillars of our Constitution 18 JR & Rule of Law • The core task of administrative law is to impose the rule of law on public authorities and ensure they do not exceed their powers. 19 5 18 2/10/21 powers. 19 JR & Executive • JR forms acts as a check on the executive. • ‘Judicial Review requires the Courts to step into the territory which belongs to the executive’ - R v Secretary for the Home Department, ex parte Fire Brigades Union [1995] 2 All ER 244, 267 (Lord Mustill) • Courts have however begun to appreciate that there is a need for political scrutiny of government activity in order to protect individuals from badly made decisions. • Is there an overreach? • 20 JR & Parliamentary Sovereignty • ‘The Principle of parliamentary sovereignty means …that Parliament … has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament’ (Dicey) • Courts cannot challenge the contents of Acts of Parliament or alleged irregularities in the manner of their enactment – British Railways Board v Pickin [1974] AC 765 • Upholds Parliamentary sovereignty by ensuring that public bodies act within the powers allocated to them by Parliament. 21 General Limits on the Availability of Judicial Review 1.It must be a Public body decision. 2.The Applicant must have "a sufficient interest in the matter to which the application relates." - locus standii 3.The subject matter of the decision brought forward for review must be of public interest and be of a justiciable nature. 4.No judicial review of a decision should be sought if it is possible to appeal the decision to some higher authority. 5.If the applicant has some other means of redress his application is likely to be rejected. 6.The application for judicial review normally must be made within 3 months of the date of the action which is complained of. 22 Mechanical Parts of Judicial Review 1. Who can bring a claim? 6 23 2/10/21 22 Mechanical Parts of Judicial Review 1. Who can bring a claim? 2. About what? 3. Against who? 4. Grounds 5. Remedies 23 4. What are the main grounds for judicial review? The three main grounds for review, famously articulated in the GCHQ case (Council of Civil Service Unions v Minister for the Civil Service [1983]), are: 1. Illegality – acting ultra vires, error of law/fact, relevancy, unlawful delegation 2. Irrationality – Wednesbury unreasonableness 3. Procedural Impropriety – the duty to act fairly and the rule against bias Since the GCHQ case and the Human Rights Act 1998 we can also add: 4. Proportionality 24 1. Illegality • Illegality: ‘the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it’ (GCHQ) • ultra vires: if body is given power to do x and y, but in fact does z it is acting ultra vires • Error of law/Error of fact (Anisminic) • Relevant/Irrelevant considerations (Venables) • Improper purpose (Wheeler) • 25 2. Irrationality • “Wednesbury unreasonableness” • Is it ‘a decision ... so unreasonable that no reasonable authority could have come to it’ Lord Greene MR in Associated Provincial Picture Houses v Wednesbury [1948] • Difficult to prove, brings the courts to (if not beyond) the borders of merits 26 7 2/10/21 26 3. Procedural Impropriety • previously referred to as ‘natural justice’, has two main elements (1) The duty to act fairly: audi alteram partem (hear the other side) • Ridge v Baldwin [1964] • Elements: notice; oral hearing; challenge witnesses/evidence; legal representation; reasons • What is required in any given case depends very much on the context 27 3. Procedural Impropriety (2) Rule Against Bias ‘justice must not only be done, but seen to be done’ (ex p. McCarthy) • The rule against bias: nemo iudux in causa sua - let no man be a judge in his own cause • Actual bias, rarely arises • Automatic disqualification: Dimes [1852], Pinochet (No.2) [2000] • Apparent bias: ‘The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’ Porter v Magill [2002] • Applying this test is not straightforward, see: Helow v Secretary of State for the Home Department [2008] (Palestinian asylum case) • 28 Emerald Supplies Ltd v British Airways [2015] EWHC 2201 (Ch) MR JUSTICE PETER SMITH: Right, Mr Turner, here is 6 a question for you. What happened to luggage? 7 MR TURNER: My Lord, the position remains that set out in 8 the letter from Slaughter and May of 15 July, that we 9 are not dealing with that as parties in these 10 proceedings. 11 MR JUSTICE PETER SMITH: I am asking you: what has 8 2/10/21 10 proceedings. 11 MR JUSTICE PETER SMITH: I am asking you: what has happened 12 to the luggage? 13 MR TURNER: My Lord, so far as the parties to these 14 proceedings, including Slaughter and May as the 15 representative of British Airways for these proceedings, 16 are concerned, we have said, and we maintain, that we 17 are not getting involved because we trust that that will 18 be dealt with expeditiously, in the ordinary course of 19 events. 20 MR JUSTICE PETER SMITH: In that case, do you want me to 21 order your chief executive to appear before me today? 22 MR TURNER: I do not wish your Lordship to do that; and 23 I would say, if your Lordship will permit me to develop 24 my submissions, that that would be an inappropriate 25 mixture of a personal dispute –– 29 4. Proportionality • 1) What were the aims of the decision maker? • 2) Whether the means to achieve that objective are proportionate? • Human Rights Act 1998 • R(Daly) –(i) is the legislative objective is sufficiently important to justify limiting a fundamental right; –(ii) the measures designed to meet the legislative objective are rationally connected to it; and –(iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective." 30 Ouster Clauses • 'Ouster clauses' aim to ensure the finality of a decision made by a minister or public authority. • E.g. ‘The Determination by the Commission of any application made to them under this Act shall not be called in question in any court of law’ • They are seen as a negation of the courts' constitutional role of securing the rule of law. • 31 9 2/10/21 securing the rule of law. • • 31 Ouster Clauses (Exclusion of Review) • The courts have viewed very unfavourably ouster clauses which seek to bar review under any circumstances. • • Anisminic v Foreign Compensation Commission [1969] 2 AC 147, HL: 32 Anisminic v Foreign Compensation Commission [1969] 2 AC 147, HL: • • ‘The Determination by the Commission of any application made to them under this Act shall not be called in question in any court of law’ (Ouster Clause) • Held (HL), whilst quashing the Commission’s determination of an application made to them under the act, • “...no decision-making body has the jurisdiction to make errors of law on which the outcome of a case depends” • 33 Efforts to Reform Judicial Review • "It is essential to democracy that the elected representatives of the people make the laws that govern this country - and not the judges” (Theresa May) • The Criminal Justice and Courts Act 2015 substantially curbs access to judicial review, and limits instances in which judicial review can be invoked • Need to reform judicial review so it “is not abused to conduct politics by another means or to create needless delays”. Conservative Manifesto 34 35 10 2/10/21 34 Discussion Question 2 “Judicial review is not, and should not be regarded as, politics by another means.” Do you agree with this statement? 35 Key Questions to Consider when confronted with judicial review problem 11