lOMoARcPSD|121 008 37
How to answer a problem question
for judicial review
Constitutional and Administrative Law (University of Leicester)
)
, lOMoARcPSD|121 008 37
How to answer a problem question for judicial review
Use the IRAC method:
- Issue
- Rule
- Application
- Conclusion
First talk about the grounds:
The decision must be made by a public body!
- Local authorities
- Government departments (including executive agencies)
- Regulators- Ofcom
- Non-governmental organisations- the Panel on Takeovers and Mergers, Independent Press
Standards Organisation, Advertising Standards Authority
The decision must be made under delegated powers
There must be an existence of:
- A prima facie case (that there appears to be a case to answer)
- That the claimant has a locus standi (i.e. the right to bring the case)
Case example:
R v Inland Revenue, ex parte National Federation of Self-employed and Small Businesses [1982]
Facts:
- The federation sought to challenge the Inland Revenue’s procedures for levying taxes on
casual workers engaged by Fleet Street newspapers.
- The federation argued that their members (who did not benefit from this arrangement)
were, therefore, disadvantaged.
Legal principle:
- Held by HoL: the taxation agreement did not apply to the individual members of the
Federation, the federation could not bring an action
- Lord Roskill: it cannot be said that the respondents had a sufficient interest to justify their
seeking the relief claimed by way of judicial review
Sometimes it is possible for a claimant to bring an action where they have no direct interest if there
is a wider point of public interest to be decided by the action
Case example:
R v HM Inspectorate of Pollution, ex parte Greenpeace (No.2) [1994]
Facts:
The environmental campaign group Greenpeace sought to bring an action to challenge the policy of
discharging toxic waste from the Sellafield nuclear plant in to the Irish Sea.
)
, lOMoARcPSD|121 008 37
Legal principle:
- Held: although Greenpeace wasn’t directly affected by the policy, the fact that it was an
internationally recognised organisation, with access to resources and expertise, meant that it
was much better equipped to bring an action than the actual residents affected by the policy
- Otton J: “it seems to me that if I were to deny standing to Greenpeace, those it represents
might not have an effective way to bring the issues before the court”.
The GCHQ case (Council of Civil Service Unions v Minister for the Civil Service [1985]):
- This case also established the three grounds of judicial review
Facts:
- Decided by the govt that workers at the secret Government Communications Headquarters
(GCHQ) should not be allowed to join a trade union in case this led them to going on strike
- The govt altered, by means of prerogative power, the terms of employment of the workers to
prohibit union membership.
- The union sought judicial review of the policy
Legal principle:
- It was held by Lord Diplock “One can conveniently classify under three heads the grounds
upon which administrative action is subject to control by judicial review. The first ground I
would call “illegality”, the second “irrationality” and the third “procedural impropriety”.
Illegality
Does the public body have the power/vires to take the decision?
- If they do not have the power then it is unlawful (ultra vires)
- The authority comes from different sources. These are:
- Statute
- Prerogative
- The Common law (e.g. contracting)
The GCHQ case
- This case established the idea by Diplock “the decision maker must understand correctly the
law that regulated his decision-making power and must give effect to it”
Laker Airways v Department of Trade [1977]:
- British airways monopoly
- Civil Aviation Act 1971- he needed to apply to the civil aviation authority for a license
- Freddie Laker’s “Skytrain”- wants to offer flights between London and new York
- Oct 1972: Granted 10 year license
- July 1975: new government and change of policy
- Guidance issues by the SofS (Secretary of State)- there should be no competition with BA and the
license should be revoked- question of the courts was whether the SofS had the power to revoke the
license
)
, lOMoARcPSD|121 008 37
- … no doubt … the Secretary of State acted with the best of motives … - and it may well have been
the right policy - but I am afraid that he went about it in the wrong way. … he should have introduced
an amending Bill and got Parliament to sanction it. He was advised, apparently, that it was not
necessary, and that it could be done by "guidance." That … was a mistake. … Laker Airways are
entitled to complain …. It was … ultra vires …. (Lord Denning)
Regina (National Aids Trust) v National Health Service Comissioning Board (NHS England) [2016]:
- NHS refusal to consider funding pre-exposure prophylaxis (PrEP) drug
- Did the NHS have the power to provide PrEP to individuals with a high risk of HIV infection?
- No they only had the power to give cures. Only the local authority could authorise funding
- Turns out the NHS did have the power to commission the drug and are rolling out prep for it
R (The Public Law Project) v Lord Chancellor [2016]:
- Cuts to availability of legal aid
- The LC proposal to introduce a residence test for civil legal aid was lawful as it would be done
by amending the LASPO Act 2012 via secondary legislation
Anisminic v FCC [1969]:
- Foreign Compensation Commission (FCC)
- Duty under statute to distribute compensation which has property confiscated by the
Egyptian Government
- No compensation awarded to Anisminic Ltd. TEDO (its successor in title was not a british
national)
- The FCC had jurisdiction in the narrow sense, but they had gone on to misinterpret the
statute
- But this did not matter
Post-Anisminic:
- Standard view- all errors of law are jurisdictional
- But courts are not always willing to intervene
Cart (2011)- new tribunal system:
- Tribunals, Courts and Enforcement Act 2007- the upper tribunal is a superior court of record
- Mr Cart argues that changes to his child maintenance payments are unfair
- Unsuccessful and refused permission to appeal by UT
- JR to challenge the refusal
- DC- the UT is the alter ago of the High Court and only subject to JR in the in the ‘grossly improbably
event’ of it acting clearly beyond the four corners of its statutory remit
- CA- not alter ego, but JR limited to where it exceeds its jurisdiction
- SC- a principled and proportionate approach (Hale):
)
How to answer a problem question
for judicial review
Constitutional and Administrative Law (University of Leicester)
)
, lOMoARcPSD|121 008 37
How to answer a problem question for judicial review
Use the IRAC method:
- Issue
- Rule
- Application
- Conclusion
First talk about the grounds:
The decision must be made by a public body!
- Local authorities
- Government departments (including executive agencies)
- Regulators- Ofcom
- Non-governmental organisations- the Panel on Takeovers and Mergers, Independent Press
Standards Organisation, Advertising Standards Authority
The decision must be made under delegated powers
There must be an existence of:
- A prima facie case (that there appears to be a case to answer)
- That the claimant has a locus standi (i.e. the right to bring the case)
Case example:
R v Inland Revenue, ex parte National Federation of Self-employed and Small Businesses [1982]
Facts:
- The federation sought to challenge the Inland Revenue’s procedures for levying taxes on
casual workers engaged by Fleet Street newspapers.
- The federation argued that their members (who did not benefit from this arrangement)
were, therefore, disadvantaged.
Legal principle:
- Held by HoL: the taxation agreement did not apply to the individual members of the
Federation, the federation could not bring an action
- Lord Roskill: it cannot be said that the respondents had a sufficient interest to justify their
seeking the relief claimed by way of judicial review
Sometimes it is possible for a claimant to bring an action where they have no direct interest if there
is a wider point of public interest to be decided by the action
Case example:
R v HM Inspectorate of Pollution, ex parte Greenpeace (No.2) [1994]
Facts:
The environmental campaign group Greenpeace sought to bring an action to challenge the policy of
discharging toxic waste from the Sellafield nuclear plant in to the Irish Sea.
)
, lOMoARcPSD|121 008 37
Legal principle:
- Held: although Greenpeace wasn’t directly affected by the policy, the fact that it was an
internationally recognised organisation, with access to resources and expertise, meant that it
was much better equipped to bring an action than the actual residents affected by the policy
- Otton J: “it seems to me that if I were to deny standing to Greenpeace, those it represents
might not have an effective way to bring the issues before the court”.
The GCHQ case (Council of Civil Service Unions v Minister for the Civil Service [1985]):
- This case also established the three grounds of judicial review
Facts:
- Decided by the govt that workers at the secret Government Communications Headquarters
(GCHQ) should not be allowed to join a trade union in case this led them to going on strike
- The govt altered, by means of prerogative power, the terms of employment of the workers to
prohibit union membership.
- The union sought judicial review of the policy
Legal principle:
- It was held by Lord Diplock “One can conveniently classify under three heads the grounds
upon which administrative action is subject to control by judicial review. The first ground I
would call “illegality”, the second “irrationality” and the third “procedural impropriety”.
Illegality
Does the public body have the power/vires to take the decision?
- If they do not have the power then it is unlawful (ultra vires)
- The authority comes from different sources. These are:
- Statute
- Prerogative
- The Common law (e.g. contracting)
The GCHQ case
- This case established the idea by Diplock “the decision maker must understand correctly the
law that regulated his decision-making power and must give effect to it”
Laker Airways v Department of Trade [1977]:
- British airways monopoly
- Civil Aviation Act 1971- he needed to apply to the civil aviation authority for a license
- Freddie Laker’s “Skytrain”- wants to offer flights between London and new York
- Oct 1972: Granted 10 year license
- July 1975: new government and change of policy
- Guidance issues by the SofS (Secretary of State)- there should be no competition with BA and the
license should be revoked- question of the courts was whether the SofS had the power to revoke the
license
)
, lOMoARcPSD|121 008 37
- … no doubt … the Secretary of State acted with the best of motives … - and it may well have been
the right policy - but I am afraid that he went about it in the wrong way. … he should have introduced
an amending Bill and got Parliament to sanction it. He was advised, apparently, that it was not
necessary, and that it could be done by "guidance." That … was a mistake. … Laker Airways are
entitled to complain …. It was … ultra vires …. (Lord Denning)
Regina (National Aids Trust) v National Health Service Comissioning Board (NHS England) [2016]:
- NHS refusal to consider funding pre-exposure prophylaxis (PrEP) drug
- Did the NHS have the power to provide PrEP to individuals with a high risk of HIV infection?
- No they only had the power to give cures. Only the local authority could authorise funding
- Turns out the NHS did have the power to commission the drug and are rolling out prep for it
R (The Public Law Project) v Lord Chancellor [2016]:
- Cuts to availability of legal aid
- The LC proposal to introduce a residence test for civil legal aid was lawful as it would be done
by amending the LASPO Act 2012 via secondary legislation
Anisminic v FCC [1969]:
- Foreign Compensation Commission (FCC)
- Duty under statute to distribute compensation which has property confiscated by the
Egyptian Government
- No compensation awarded to Anisminic Ltd. TEDO (its successor in title was not a british
national)
- The FCC had jurisdiction in the narrow sense, but they had gone on to misinterpret the
statute
- But this did not matter
Post-Anisminic:
- Standard view- all errors of law are jurisdictional
- But courts are not always willing to intervene
Cart (2011)- new tribunal system:
- Tribunals, Courts and Enforcement Act 2007- the upper tribunal is a superior court of record
- Mr Cart argues that changes to his child maintenance payments are unfair
- Unsuccessful and refused permission to appeal by UT
- JR to challenge the refusal
- DC- the UT is the alter ago of the High Court and only subject to JR in the in the ‘grossly improbably
event’ of it acting clearly beyond the four corners of its statutory remit
- CA- not alter ego, but JR limited to where it exceeds its jurisdiction
- SC- a principled and proportionate approach (Hale):
)
