How to answer a JR exam Question

Faced with a problem question in a law exam about whether Judicial Review can be used? This flowchart suggests a logical approach to structuring your answer.

(click on the image for a full sized version)

Don't forget that as well as problem questions on Judicial Review - which are all about specific decisions, the issue of Judicial Review is relevant to the Constitutional issues of Separation of Powers and Parliamentary supremacy. So do reflect on those issues.

Judicial Review Flowchart

Faced with a problem question in a law exam about whether Judicial Review can be used? This flowchart suggests a logical approach to structuring your answer.

(click on the image for a full sized version)

Judicial Review Flowdiagram

The above (which if clicked, becomes full sized) is a flow diagram I have shared with many generations of Constitutional & Administrative Law students. It is a logical pattern for dealing with a practical Judicial Review (UK) problem. If you are studying the topic of the British Judicial Review (it is wholly unlike the American action of the same name) - or you know someone who is - please feel free to use or share.

Abolishing Rights?

Yesterday's post dealt with the difficulties that most national constitutions place in the way of Constitutional Reform. The reason is simple - abolishing safeguards against the abuse of powers, or taking away citizens' rights - should only be done if the clear will of the people is for such a change. (Sadly people will vote to destroy their own safeguards and rights - but that's up to them).

In Britain, changes don't need the approval of the people. While legislation is a major source of the British Constitution - it is not the only one. Even then, as Lord Hailsham pointed out in 1976 (significantly, when he was an un-elected member of the House of Lords - in Opposition; he was less concerned about the concept when he held the power) - Britain can be an "elective dictatorship" - great power is concentrated in the hands of people who can have received less than half the votes cast in a general election - and the support of an even smaller proportion of the total electorate.

Two (relatively) recent developments have sought to safeguard rights (the Human Rights Act of 1998) and to give an opportunity to challenge decisions in the Courts on the grounds that a decision has not been taken properly (Judicial Review).

The current government is seeking to reduce the effectiveness of these. Having to abide by the principles that we have argued for others (Britain played a key role in drafting the European Convention on Human Rights), and having decisions made by public officials struck down because they haven't been taken in accordance with the principles of good practice - is inconvenient!

For a politically neutral (they are produced by the House of Commons Library) explanation and analysis of proposals for change - follow these links.

Human Rights Act

Judicial Review

The examination of Judicial Review

Today I want to discuss the English remedy of "Judicial Review". It is nothing like Judicial Review in the USA. The latter involves the Court deciding to strike down legislation. Of course in the UK we have "parliamentary sovereignty".

At Law Degree level Judicial Review can be looked at from a number of angles. If you are facing an exam question - make sure that you answer the specific question set, not the question you'd have liked to have been asked. [You'd be surprised that there are some people who will try to answer the question they wanted, rather than the one on the paper - some do so deliberately, because they don't know how to answer the question set - sadly the examiner is not likely to take pity on them. Others have "prepped" a particular answer - one of the dangers to watch out for if you are using model answers or previous exam papers to guide you - and when they identify the JR question imagine that the learned answer is appropriate. READ THE QUESTION. That's what you'll be assessed on. The key is to be flexible - have a sound foundation of knowledge - and deploy that knowledge and understanding to answer whatever question you face.]

One type of question invites reflection on the constitutional issues raised by Judicial Review. How does it fit in with Parliamentary Sovereignty? Is challenging a decision made by the Executive strengthening or undermining Parliament? Have Judges given themselves too much power? Does JR give them an opportunity to impose their own values (or views on what is unreasonable/irrational) over those who are ultimately accountable to parliament? Was JR necessary to fill in a gap in ministerial responsibility to Parliament? How have the courts dealt with decisions based on statute or the Royal Prerogative?

[A list of cases to prepare should include AG v DeKeyser's Royal Hotel Ltd; CCSU v Minister for the Civil Service [the GCHQ case]; and Anisminic Ltd v FCC]

A second type of question asks for a problem to be solved. Someone is upset by a decision. Can that decision be challenged by JR? It's worth going through this logical pattern to solve the problem

Is the decision making body susceptible to JR? (Public Body or Public Law?)

-          Public Body?

-          Carrying out public functions? R v City Panel on Takeovers & Mergers ex p Datafin Ltd [1987] QB 815

-          No private law issues? O’Reilly v Mackman [1983] 2 AC 237

                                                                (* The exclusivity rule*)

 

Does the claimant have ‘Standing’

-          Sufficient interest s31(3)  Senior Courts Act 1981

-          Inland Revenue Commissioners v NFSESB [1982] AC 617

-          R v HM Inspector of Pollution, ex parte Greenpeace Ltd (No. 2) [1994] 4 All ER 329

-          R v SoS for Foreign Affairs ex parte World Development Movement Ltd [1995] 1WLR 386

 

Time Limits?

-          Normal– without (1) undue delay and in any event (2) within 3 months – s31(6) Senior Courts Act 1981 & 55.4 Civil Procedure Rules  [UNLESS]

-          Specified in relevant Statute

Ouster Clause?

 

 

-          Total - Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147

-          Partial – (time-limit clauses) – R v SoS for the Environment ex parte Ostler [1977] QB 122

 
Grounds of Challenge?

-          Illegality

-          Irrationality

-          Procedural Impropriety

-          Breach of ECHR Right

 

(make sure you use one of the frequently used ‘labels’ – for example: irrelevant considerations; legitimate expectations; rule against bias; unlawful delegation…)

Remedies?

Revision

My Open University students (on the W200 and W201 Law courses) - plus other OU students face exams this autumn. I will be using Washminster to publish material that they should find useful for revision.

The courses cover -

W200 - [Major Subjects] - English Legal System; EU Law
[Short introductions to] - UK Constitutional Law; Rights & Police Powers; Contract; Tort; Criminal Law.

W201 - UK Constitutional Law; Human Rights Law; Administrative Law (focused in on the UK's 'Judicial Review'); and Criminal Law.

But Washminster will continue to follow US Congress; UK Parliament; the European Parliament and the French Assemblee nationale. There will still be posts about history; jazz - and of course the American Football season is about to begin!

It is possible to subscribe to Washminster (see above).

A while ago I made and posted a video about techniques for retaining information from studies. It is republished below

Does it matter who we vote for?

I care less and less about which members of the political elite hold key offices. Does it really make any difference as to whether its the Old Etonian Boy's Club (Cameron et al)? privately educated MPs [ALL parties - 54% of Conservative MPs attended fee paying schools, compared with 40% of Liberal Democrat MPs, and 15% of Labour MPs.]? or the extremely wealthy (Essential if you want to be a Senator; Congressman and to an increasing extent an MP or Peer)?

[Well yes, if you believe in a representative democracy]

But my point isn't to decry the "pay to play" principle; or to deny that there are vastly different policies being put forward by the different parties - but to consider the implications of an important point made by Lord Acton in 1887.

 "Power tends to corrupt, and absolute power corrupts absolutely."

Sadly, Acton's words are true. There is a tendency for power to corrupt - perhaps not in its grossest form - but subtly, by desensitising people once they achieve power. Recent history is full of examples - the expenses scandal at Westminster is classic. Decent, hard-working, dedicated people ended up making claims which were outrageous - but their time in power had desensitised them. "Group-think" took over. Benefits became entitlements - and the public purse dipped into in a way they'd have condemned before they entered the Westminster village. We've read in the papers over recent months of how people thrust into power - whether they be performers or DJs; or politicians - abused their positions to claim sexual victims. Senator Fulbright spoke of the "arrogance of power" that can be shown by nations - but it can often be shown by individuals.

One of the defining demands of 'Extreme-Conservatives' is for less regulation. Cast off regulation and everyone would be better off. Their little experiment now has its results - the banking crisis; Enron; the horsemeat scandal...

We can't alter human nature - but we can put in safeguards to lessen the change of power corrupting. The Americans when they drew up their Constitution were keen to insert "checks and balances".

Montesquieu proposed 'separation of powers' as one way to lessen the likelihood of tyranny developing. Even medieval Kings required 'weights and measures' laws to stamp on the 'rip-off merchants.

Requiring greater accountability from those who exercise power is the only way to take on our human failings. Judicial Review in the UK has developed to challenge - not the substance of decisions - but the way they've been taken. A decision made by a public official who has a financial interest in the result of that decision, will be declared invalid. Decisions can be challenged and struck down where there is irrationality; or irrelevant considerations have been taken into account.

At Westminster and in Congress - our representatives can investigate and question how decision makers have acted. The National Audit Office [NAO] and the Government Accountability Office [GAO] can undertake professional, in-depth investigations and report their findings to our representatives. In Britain MPs and Peers can ask oral questions during question times - and grill Ministers in committee.

Freedom of Information laws can also shed sunlight upon decisions made - allowing questions to be asked.

It does matter who we vote for - because our representatives can call decision makers to account. The issue for us as voters is whether our Parliament/Parlement/Congress has the powers; tools and commitment to holding decision makers to account.

Legal Privilege and Parliament

Lawyers; Law Students and followers of Parliament may find the following exchanges interesting.



The transcript is available here.

The letter from Dave Hartnett, Permanent Secretary for Tax referred to - which puts HM Revenue & Custom's view on the disclosure of taxpayer confidential information to a Parliamentary Committee is available here.
Any comments would be welcome.

Judicial Review

The same words mean very different things in the UK and the USA. In the USA Judicial Review is the process by which the Supreme Court can declare an executive act OR a piece of legislation - passed by the two Houses of Congress - and signed by the President - to be unconstitutional - and of no legal effect.

In the UK Judicial Review is more modest. It allows the Courts to review decisions made by public bodies (the Courts will consider not the form of the person or body taking the decision, but whether the powers exercised are of a sufficiently public nature.) They cannot strike down decisions made by Parliament (particularly Laws passed! - a principle deriving from the doctrine of Parliamentary Sovereignty).

The "GCHQ case" gave up the "Diplock Criteria" - a threefold classification of grounds for Judicial Review.

• Illrgality
• Irrationality
• Procedural Impropriety

Subsequently the UK passed the Human Rights Act 1998 which allows the Courts to review decisions which breach the European Convention of Human Rights.

it is important to remember that the Courts often attach labels to the most frequent types of decision which can be challenged - so look for for (in textbooks; and in law reports) such as -

"ultra vires"; "irrelevant considerations"; "improper purpose"; "error of law"; "unauthorised delegation"; "fettering discretion"; "failure to perform a statutory duty"; "breach of natural justice"; "the rule against bias"; "the right to a fair hearing"...

Delegation

It is a principle of Administrative Law in the UK that only the person or body given the power to make a decision, can take that decision. Where it is passed on to someone else, the decision can be challenged on the grounds of "unlawful delegation".

One example of this would be where a committee is given a statutory power to make a decision, but appoints an advisory committee or an individual to make recommendations. That in itself is fine. The problem arises if the committee merely rubber stamps the recommendation. There needs to be evidence that they have considered the recommendation - and come to a decision themselves that the recommendation merits being adopted.

One "exception" to the rule is that a senior civil servant can make decisions on behalf of the Minister. This was established in the Carltona Ltd v Commissioners of Works case. [1943] 2 All ER 560. Martin Stanley in his note "How to be a Civil Servant" explains "It is essential to note at the outset that a person exercising a power for and on behalf of another does so as the ‘agent’ or ‘alter ego’ of the person in whom the power is vested. That is, the act of the authorised person is, at law, the act of the person in whom the power is vested. This is fundamentally different to the act of a delegate which, at law, is the delegate’s and not the delegator’s act."

Threats to Liberty

Western political and legal theory stresses the potential threats to liberty that can come from "the State". The doctrine of "Separation of Powers" is a classic example. Montesquieu warned that if the three functions of government (1 Making Law - legislating (2) Carrying out the law - the job of the 'Executive' and (3) Judging - interpreting the law and applying the law in disputes) were in the same hands, tyranny would follow. Other legal doctrines such as 'the Rule of Law' should govern the action of the State (illustrated by the provisions of the Magna Carta and today's remedy of Judicial Review.

But the State isn't the only source of threats to the rights of citizens. As Magna Carta sought to curb the excesses of a monarch, it didn't seek to curb the actions of 'over mighty subjects'. The Barons at Runnymede didn't want that issue addressed!

The phone-tapping scandal involving the News of the World (another part of Rupert Murdoch's global media empire); the damage to the livelihood of people affected bt the BP scandal; the ability of corporations to use their money to influence the political process - show that powerful business interests are a threat too.

Judicial Review

Winston Churchill once described Britain and the USA as "two nations divided by a common language". This is evident in the use of the term "Judicial Review".

In the USA the term can be used to describe the review of the constitutionality of legislation passed by Congress and signed by the President. Of course it cannot have that meaning in the UK.

In Britain "Judicial Review" is limited to the review of executive decisions. (Although it can extend beyond Government institutions [local and national] to other bodies, who may be private, but exercise 'public functions'. {R v Panel on Take-overs and Mergers ex parte Datafin plc}. Allen & Thompson define the UK power of judicial review "as the jurisdiction of the superior courts (the High Court, the Court of Appeal, and the House of Lords [now the 'Supreme Court'] to review the acts, decisions, and omissions of public authorities in order to establish whether they have exceeded or abused their powers."

There are Four main grounds. The first three were set out by Lord Diplock in the GCHQ case (one of the most important cases in 'Constitutional & Administrative Law') - and the fourth results from the Human Rights Act 1998. They are

1. Illegality
2. Procedural Impropriety
3. Irrationality
4. Breach of a European Convention [ECHR] right

There are a number of labels used - such as "improper purpose"; "irrelevant considerations" "fettered discretion"; "the rule against bias"; "right to a fair hearing"; "legitimate expectations" - which law students will be familiar with - and the succesful ones know the circumstances which can give rise to complaints associated with those labels.