10. Introduction to Administrative Law: The Foundations and Extent of Judicial Review

  • Judicial review allows people with a sufficient interest to ask a judge to review the lawfulness of a decision of a public body carrying out its public functions and enactments where there is no right of appeal or where all avenues of appeal have been exhausted.
  • Judicial review is based on the constitutional principles of the rule of law and the separation of powers.
  • The defendant must be a public body, the subject matter of a claim must be a public law matter, and the claimant must have the right to claim (they must have sufficient interest in the matter).
  • CoA stated that if it is unclear that a case is a public law matter, the claimant should seek judicial review to avoid an accusation of abuse of process.
  • The key principle is that it is not an abuse of process for someone to raise a public law matter as a defence in civil proceedings.
  • Declarations, injunctions, and damages may be sought by judicial review procedure.
Exclusion of Judicial Review by Parliament
Finality Clauses
  • If a statute says that some decisions or orders ‘shall be final’ this means merely that there is no appeal. Judicial review remains unimpaired.
  • The key principle is that it would be contrary to the rule of law to give tribunals the power to determine their own jurisdiction and that the words used in a statute must be sufficiently clear to show that Parliament intended to exclude judicial review.
‘Shall Not Be Questioned’ Clauses
  • Some statutes say that an order or determination ‘shall not be questioned in any legal proceedings whatsoever’.
  • The key principle is that a provision that a determination shall not be called in question in any court of law does not protect a determination which is made as a result of a mistake of law which is a nullity and can be quashed by the court.
Time Limit Clauses - Partial Ouster
  • Under Pt 54 Civil Procedure Rules a claim for judicial review must be made promptly and in any event not later than three months after the grounds to make the claim first arose.
The Criminal Justice and Courts Act 2015

  • The courts have long held that judges may refuse to provide a remedy where there would have inevitably been no difference to the outcome even if the reason for bringing the judicial review had not occurred.

Comments

Post a Comment

Popular posts from this blog

Criminal Law Cases

Case Name / Relevancy / Facts / Held Airedale NHS v Bland [1993] Actus Reus: Medical Treatment Doctors were granted approval to remove the feeding tube of Bland who had been left in a vegetative state after an injury suffered by the Hillsborough disaster. It was lawful to withhold life-extending treatment as the doctors have a duty to act in the best interests of their patients. R v Kimsey (1996) Actus Reus: Legal Causation D admitted engaging in a chase but not to trying to overtake just before the accident which left Osbourne dead. The dangerous driving did not have to be considered a ‘substantial’ cause of death but rather a cause of death which was sufficient to convict D. R v Dalloway (1847) Actus Reus: Legal Causation D was not holding on to the reins on a horse and cart which resulted in a child running out into the road was killed by one of the wheels. D was charged for driving in a negligent fashion and causing the death of the c
Read more

Madzimbamuto v Lardner-Burke [1969] AC 645

Facts: Crown colony of Southern Rhodesia, which had been self-governing since 1923, declared independence from Britain in 1965 British government considered its UDI to be illegal and refused to recognize the legitimacy of the Rhodesian government Before 1965, Madzimbamuto was detained under section 21 of the Regulations Madzimbamuto's wife challenged the legality of her husband's detention, on the grounds that the prolongation of the state of emergency was unlawful Issue: Whether a convention would be enforceable and have legal position of United Kingdom and Southern Rhodesia Held: The case reached the Privy Council who rejected the Rhodesian Minister for Law and Order's argument that because of the convention, the United Kingdom legislation overriding the Rhodesian detention law was invalid
Read more

According to the Terrorism and Immigration Act 2018, all recent refugees arriving in the UK seeking asylum are to be kept detained until their claims are processed and it can be ascertained that they do not pose a terrorist threat. The local detention centres are run by a private firm, ‘Home Away from Home.’ Estela, a recently arrived asylum seeker has been detained in one of the privately run facilities, and has had her room searched regularly by ‘Home Away from Home’ private security guards in case she has any contraband in her possession. As she has to wait outside while they are searching her room, Estela fears that the security guards may go through her private correspondence whilst searching. Advise Estela on any claims she may make on the grounds of the HRA 1998, including reference to any procedural requirements. [Note: This is a hypothetical scenario and the Terrorism and Immigration Act 2018 is not real legislation.]

It is unlawful for a public authority to act in a way which is incompatible with Convention rights. Estela could argue that these actions were illegal under Article 5 and 8. Estela has sufficient interest in the matter so therefore fulfills this requirement. This Act breaches Convention rights, as the public authorities must act fairly and without bias. Estela could therefore seek judicial review under procedural impropriety, and that the Act is therefore unlawful.
Read more