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Public Law 2 (JR & HRA) Cheat Sheet (DRAFT) by

Public Law 2 (JR & HRA)

This is a draft cheat sheet. It is a work in progress and is not finished yet.

Judicial Review Availa­bility

............Amenab­ility...........
General rule:
Only public law decisions are amenable to JR.
Public law decisions:
A claim to review the lawfulness of a decision, action or failure to act in relation to the exercise of a public function.
JR is mostly approp­riate when the decision relates to a public body carrying out a public function.
Public bodies include:
central government depart­ments
 
local author­ities
 
inferior courts
 
statutory tribunals
 
statutory bodies, e.g. the Highway Agency
Decisions taken in the exercise of prerog­ative powers are amenable to JR.
Non-public bodies performing public law functions may be amenable to JR:
Decisions of regulatory author­ities are generally found to be amenable to JR if the functions they are carrying out have a suffic­iently public and govern­mental character.
 
But for that body's existence, would Parliament have to intervene and regulate the activity in question?
 
Decisions of some regulatory author­ities that are public but not govern­mental are not likely to be amenable to JR.
e.g. sport and religion.
Contracted out services:
Policies may contract out services to private service providers.
 
To be amenable to JR, these providers' services must be under a statutory duty and not just a contra­ctual one derived from the commercial relati­onship.
..........Procedural Exclus­ivity.........
Only public law decisions can be applied for in the admini­str­ative court.
Private matters must go to a private court as a private action, unless both parties agree to public actions or there is a mixed claim.
Bringing a a public law challenge in any other way than by JR would amount to an abuse of court process.
Mixed claims:
Where a claim involves both public and private law rights the courts may allow JR..
Note: public law grounds can also potent­ially be used as a defence in private law procee­dings.
..........Standing.........
The applicant must have sufficient interest in the decision.
Initial permission stage:
Here, the standing test is designed to turn away those with little hope of success or troubl­esome* litigants.
 
Busybo­dies, cranks and other mischi­ef-­makers.
Full hearing stage:
Standing can be recons­idered.
 
Here, the court could consider in more detail whether the applicant can show a strong enough case on the merits, consid­ering the proximity of their connection to the case issue.
Indivi­duals who are directly affected by a public law decision should have little difficulty satisfying the sufficient interest test.
Associ­ations of indivi­duals who all have sufficient interest may be allowed standing to challenge a matter of communal interest.
Pressure groups are unlikely to have all members directly affected so may not satisfy the sufficient interest test.
Pressure groups may be given standing consid­ering their expertise, reputa­tion, role and genuine concerns.
The absence of another respon­sible challenger and the amount of directly affected members is relevant.
Concerned citizens may be allowed standing but not where there are other better placed challe­ngers.
..........Time Limits.........
A claim must be filed promptly and without undue delay.
In any event no later than 3 months after the grounds to make the claim first arose.
Time limits can be extended by the court.
..........Ouster Clauses.........
Ouster clause:
A legisl­ative provision which appears to exclude the jurisd­iction of the Admini­str­ative Court to conduct a JR.
 
Such clauses are rare.
 
The judiciary take a very strong presum­ption that Parliament does not intend to exclude JR.
Leading cases:
Anisminic: 'shall not be called into question in any court of law'
This ouster clause did not take effect.
 
Privacy Intern­ational: 'shall not be subject to appeal or be liable to be questioned in any court’
This clause was held to not exclude JR. JR can only be excluded by clear or explicit words.
Time limit ousters:
This are partial ouster clauses.
 
They that excludes the jurisd­iction of the court once a time limit has expired.
 
Since they do not it remove access to JR entirely, the courts tend to enforce them.
 
The normal time limit does not apply when any other enactment specifies a shorter time limit for making a JR claim.

Judicial Review: Prelim­inaries

............Reform...........
The courts must now refuse to grant relief on a JR applic­ation if they deem it highly likely that the applic­ant's outcome would not have been that different had the conduct complained of not occurred.
............Exhaustion of Altern­atives...........
JR will only be approp­riate if there is no suitable altern­ative remedy, or altern­ative remedies have been exhausted.
If altern­ative remedies are available, the court can refuse permission to bring the claim or refuse a remedy.
Altern­atives include:
- statutory right of appeal
- internal complaints or appeal procedures
- complaint to an ombudsman
............JR Claim: Procedure...........
1. Ex parte applic­ation for permission
2. Permission granted where there is sufficient interest and an arguable case
3. Full inter partes hearing
............Remedies...........
The Admini­str­ative Court is not about compen­sating C but about acting as a check on exec power.
Quashing order:
Most common remedy.
 
Invali­dates the impugned decision.
 
Usually means the public­(/p­rivate) body will need to take the decision again, applying the correct law or following a fair procedure.
Prohib­itory order:
Prevents a public body from acting or continuing to act unlawfully.
Mandatory order:
Compels the public body to perform a public law duty imposed by law.
Declar­ation:
Court may declare what the legal position is or the rights of the parties.
 
This does not question the body's exercise of power.
 
Declar­ations can be made alone or alongside other orders.
Injunction:
Orders a party to perform, or refrain from performing, a specific act.
 
Relatively rare.
 
Sometimes granted at the permission stage as a form of interim relief - either before or after permission is granted.
Damages:
May be awarded but only if either
(i) the court is satisfied that damages could have been awarded in a private law action; or
(ii) the public body has breached its duties under HRA 1998.
Prerog­ative orders:
These are quashing, prohib­itory and mandatory orders.
 
They are not given as of right.
 
These are specific to JR.
Remedies are discre­tionary and should only act as a necessary counte­rba­lance.
They should be applied in a propor­tionate way to balance the degree of individual interest in the matter against the wider public interest.

Grounds for JR: Propor­tio­nality?

When human rights protected by the ECHR are engaged, the relevant test to be applied by the courts is that of propor­tio­nality, rather than Wednesbury unreas­ona­bleness test.
Propor­tio­nality requires that the means employed by a decisi­on-­maker to achieve a legitimate aim must be no more than is necessary to achieve that aim.
Unless and until Parliament incorp­orates the ECHR into domestic law, there may currently be no basis upon which propor­tio­nality as applied by the European Court can be followed by UK courts.
Arguably, the intensity of review is somewhat greater under the propor­tio­nality approach.
It is argued that propor­tio­nality should be recognised as an establ­ished principle of admini­str­ative law, not just limited to the ECHR and EU law.
It is not for the court to perform** Wednesbury unreas­ona­ble­ness' burial rites.
Propor­tio­nality is often viewed as a more forensic and precise legal test than Wednes­bury.
Wednes­bury's replac­ement by propor­tio­nality should only be sanctioned by a full panel of UKSC.
There is likely a need for author­itative review in this area.

HRA, ECHR & ECtHR

............Introd­uction...........
HRA:
Human Rights Act
ECHR:
European Convention of Human Rights
ECtHR:
European Court of Human Rights
HRA incorp­orated most of ECHR into UK domestic law.
Before the HRA, people wishing to enforce their rights under the ECHR against the UK had to take their case to ECtHR.
............Categories of Protected Rights...........
Absolute rights:
Rights that cannot be legiti­mately interfered with by the state.
 
E.g. Articles 3, 4 & 7.
Limited rights:
Rights which can, in certain prescribed circum­stances contained within the articles themse­lves, be legiti­mately interfered with by the state.
 
E.g. Articles 2, 5 & 6.
Qualified rights:
Rights where the 1st paragraph of the article sets out the substa­ntive right(s) and the 2nd paragraph lists the circum­stances and method­ology by which the rights may be lawfully interfered with by the state.
 
E.g. Articles 8, 9, 10 & 11.
 
To interfere with a qualified right, the PBL, legitimate aim and propor­tio­nality requires must be met.
............Judicial Principals & Techniques...........
1. Positive obligation:
Under this principle the state can in certain circum­stances be under a duty to prevent the violation of human rights being carried out by non-state actors.
 
The ECHR obligation requires the state to abstain from interf­ering with a human right.
 
Contra­cting states must enact laws in their domestic legal systems that prohibit, deter, and punish indivi­duals who commit Convention violat­ions.
 
There is an obligation on author­ities to take preven­tative measures where they know or ought to know that there is a real and immediate risk to the life of a person from third party acts.
 
If the author­ities fail to take measures within the scope of their powers which judged reasonably might have been expected to avoid that risk, there is likely a breach, especially if the authority had assumed respon­sib­ility and control over the person.
2. Margin of apprec­iation:
Contra­cting states are allowed a certain measure of discretion when taking measures that restrict ECHR rights.
 
State discretion is not unlimited.
 
The ECtHR affords the state a broader discretion in decisions concerning:
- morality & religion
- public emergency
- national security
- social, economic & enviro­nmental policies.
 
The ECtHR affords less discretion in decisions concerning individual rights:
- a person's existence or identity
- a person's liberty
- legal rights
 
The margins of apprec­iation here only apply to ECtHR cases**.
3. Principle of propor­tio­nality:
There is a search for a fair balance between the demands of the general interest of the community and the requir­ements of the protection of the indivi­dual's fundam­ental rights.
 
Different variations of the propor­tio­nality test are employed for different articles.

Section 2 HRA: ECHR Decisions

Mirror principle:
The domestic courts should follow any clear and consistent ECtHR jurisp­rudence unless there are special circum­stances or the ECtHR decision is fundam­entally at odds with the UK consti­tution.
Mirror to dialogue:
The relati­onship between the UK courts and the ECtHR has increa­singly been described as one involving dialogue.
 
It is argued that legal reasoning on ECHR issues in UK courts should have an influence over ECtHR, and not in one direction..
 
There are rare occasions where ECtHR decisions may not suffic­iently appreciate or accomm­odate aspects of a state's domestic process.

Section 6(1) HRA: Public Author­ities

There are legal duties imposed on public author­ities.
Parliament in its legisl­ative roles and any person exercising functions in connection with Parliament procee­dings are excluded from being public author­ities.
Core public author­ities:
Those that are clearly and inherently public.
 
Likely subject to legal duties in respect of all their actions.
 
A bod whose nature is govern­mental in a broad sense.
 
E.g. central govern­ment, local govern­ment, the police, immigr­ation officers, prisons, courts and tribunals.
 
Indicators of core public authorities:
- possession of special powers
- democratic accoun­tab­ility
- public funding in whole or in part
- obliga­tions to act only in the public interest
- a statutory consti­tution
Functi­ona­l/h­ybrid public author­ities:
Any person whose functions are of a public nature.
 
Likely subject to legal duties in respect of their public functions but not private functions.
 
Indicators of functi­ona­l/h­ybrid authorities:
- the extent to which the body is publicly funded for the relevant function
- exercising statutory power
- taking the place of central government or local author­ities
- providing a public service
 
A close relati­onship between the private body and delegating authority suggests a functi­ona­l/h­ybrid nature.
Private bodies:
Bodies with no public functions
 
No liability falls on private bodies.
 
Their conduct may however be regulated in a Convention compatible way under the indirect horizontal effect of the HRA.