JUDICIAL REVIEW HANDBOOK

Transcription

1 JUDICIAL REVIEW HANDBOOK THIRD EDITION by Michael Fordham Barrister, Blackstone Chambers BA (Oxon) BCL (Oxon) LLM (Virginia) College Lecturer, Hertford College, Oxford Advisory Board, British Institute of International and Comparative Law Foreword by The Rt Hon The Lord Woolf Lord Chief Justice Related publication: Judicial Review (quarterly Journal, since 1996) Editors: Michael Fordham and James Maurici Consultant Editors: Michael J Beiorf QC and Lord Woolf CJ Published by Hart Publishing ( ) cross-references to artides in JR are included in this book HART- PUBUSHING OXFORD - PORTLAND OREGON 2001

2 PART I. ESSENTIAL JUDICIAL REVIEW outline and key sources xxi (1) OUTLINE OF JUDICIAL REVIEW xxiii (a) judicial review in a nutshell xxv (b) hallmarks of a viable judical review xxvi (c) key procedural Steps in a judicial review xxvii (2) CPRPART54 xxviii (3) CPR PART 54 PRACTICE DISCRETION xxxv (4) SUPREME COURT ACT1981 SECTION 31 xl (5) ADMINISTRATIVE COURT NOTES FOR GUIDANCE xlii (6) CLAIM FORM (N461) li (7) ACKNOWLEDGMENT (N462) liv (8) JUDICIAL REVIEW PRE-ACTION PROTOCOL lvü PART II. GUIDE TO THE LAW 1 detailed guide to the law and practice Overview of Part II 5 A. NATURE OF JUDICIAL REVIEW 19 keys to understanding what the Court is doing Pl Supervisory jurisdiction Supervision and control of public bodies Importance and ränge of judicial review subject-matter Judicial review as a cooperative enterprise 29 P2 Procedural rules Introducing the relevant rules General rules of the CPR Procedural rules regarding permission Procedural rules regarding Standing Procedural rules regarding delay Procedural rules regarding the claim form and documents Procedural rules regarding the acknowledgment Procedural rules regarding the Substantive response Procedural rules regarding the Substantive hearing Procedural rules regarding appeals The modernisation of the procedural rules Other procedural aspects of judicial review 62 xi

3 P3 Effect of victory Remitting the matter for reconsideration by the public body Sterile victories? Knock-on effect of a judicial review Victory in judicial review as a springboard to damages Securing assurances from public bodies Provoking judicial comment 78 P4 Materiality The substance behind the grievance Discretionary remedies and the substance of the matter Material flaw Lack of prejudice Futility Dangers of materiality, prejudice and futility Hypothetical and academic issues Prematurity 101 P5 Targets Identifying the v targef for judicial review Sample targets for judicial review Spot the target Multiple targets and target-selection P6 Power levels Powers and duties: the basic sources and hierarchy The legal Status of guidance/policy Interpretation of legal sources 130 P7 Legislative supremacy Respect for piain legislative words and necessary implication Corollaries of legislative supremacy Legislative supremacy at the margins 138 P8 EC law Principles of EC law supremacy EC Treaty rights Judicial review for incompatibility with EC law Article 234 references to the ECJ Damages under EC law 154 P9 Human Rights Act Human Rights Act: key features and themes Codified Convention rights 163 xii

4 9.3 Human Rights Act: legislative compatibility (s.3) Human Rights Act: compatible public authority action (s.6) Testing for an unjustified interference with a Convention right 182 P10 Common law fundamentals Principles of legality Natural justice/procedural fairness Unreasonableness/abuse of power Access to law Constitutional/common law rights Relationship between the ECHR and the common law 197 Pll Precedent and authority Useofcaselaw Academic commentary/comparative caselaw 209 P12 Vigilance Judicial review and the rule of law Promoting consistency Reviewing Courts as guardians of the public "Abuse" modeis 218 P13 Restraint "Soft" review: reasonableness Standard and decision-maker's "latitude" Restraint and questions of fact Restraint and matters of discretion/judgment Restraint and matters of expertise Judicial restraint in action Protecting public decision-makers Review from the decision-maker's point of view 241 P14 Critical balance Judicial review and striking a balance Striking a balance: grounds for judicial review Holding the balance: nothing personal 247 P15 The forbidden method "Soft" review and the forbidden substitutionary approach Judicial review is "not an appeal" Judicial review concerns not the decision but the manner of reaching it Judicial review is concemed with "legality" not "correctness" 253 xiii

5 15.5 Judicial review is not concerned with "the merits" Judicial review Court does not "substitute its own judgment" 255 P16 Hard-edged questions Objective questions for the reviewing Court: correctness Standard Precedent fact: hard-edged questions of fact Error of law: questions of law as hard-edged questions Questions of interpretation as hard-edged questions Procedural fairness as hard-edged review Other grounds for judicial review as hard-edged questions Hard-edged questions: further matters 266 P17 Case-management The fear of floodgates and the Substantive law Strict case-management 273 P18 Related proceedings Judicial review principles outside CPR Part P19 Evidence and fact General nature of judicial review evidence Fresh evidence in judicial review Judicial review and factual disputes Disclosure, further information and cross-examination 294 P20 Costs Costs: general matters Summary assessment/detailed assessment of costs Costs and the permission stage Costs and the public interest Costs and "early disposal" Special costs threats 329 P21 Permission The permission stage Permission and arguability Pre-permission Steps Case-management at the permission stage Claimant's duty of candour Challenging the refusal of permission Challenging the giving of permission Transfer out of or into Part xiv

6 P22 Interim remedies Interim remedies The balance of convenience 373 P23 Substantive hearing Pre-trial steps Third party participation Hearing/disposal of the judicial review Substantive appeals 391 P24 Remedies Unified remedies The role of the declaration Remedy as a discretionary matter The remedies in action 404 P25 Damages Damages available in judicial review No damages for maladministration Recognised species of damages claim 418 B. PARAMETERS OF JUDICIAL REVIEW 429 further dominant themes shaping the law and practice P26 Ouster The approach to delay Promptness and the running of time Good reason to extend time Hardship, prejudice and detriment 457 P27 Public/private Public/private and "public law" Limitations of the public/private distinction 461 P28 Ouster The approach to legislative preclusive clauses Time Umit clauses 466 P29 Legislative purpose The purposive approach to legislation Legislative purpose and judicial review Discerning the legislative purpose: statutory interpretation The use of Hansard 488 xv

7 P30 Function Understanding the defendanf s function Functional labeis The judicial/administrative distinction Other aspects of function 497 P31 Context Contextualism Circumstances Characterisu'cs of the claimant The Court's Controlling discretion/judgment "Flexi-principles" 514 P32 Modified review Partial reviewability of Crown Courts Modified grounds Enhanced domestic review and fundamental rights 529 P33 Flux The developing law Lessons from the past Two-stage approaches to legal development Star-gazing 542 P34 Reviewability Surveying the field Principles of reviewability Conquests of reviewability 554 P35 Non-reviewability Immunity from review Private law matters 564 P36 Alternative remedy General effect of other safeguards Exclusive alternative remedy Alternative remedy and discretion/case-management Other remedy curing public law wrong 585 P37 Exclusivity Procedural exclusivity: abuse of process Exclusivity: a principle in transition 593 xvi

8 P38 Standing The requirement of Standing The approach to sufficient interest Standing at the permission/substantive stages Standing under the HRA: the victim test 620 P39 Discretion/duty No unfettered discretion Discretion/power. the essential duties Discretion and duty in action 631 P40 Inalienability Preservation of powers and duties Inalienability and estoppel/legitimate expectation 640 P41 Legitimate expectation The role of legitimate expectation Anatomy of a legitimate expectation 656 P42 Onus Onus generally on the claimant Onus on the defendant in particular contexts 666 P43 Severance Substantial severability 670 P44 Nullity Beware of unhelpful terminology Matters labelled as "nullity" Purpose/effect of "nullity" 678 C. GROUNDS FOR JUDICIAL REVIEW 683 public law wrongs justifying the Court's Intervention P45 Classifying grounds Formulating grounds The conventional threefold division Whether ultra vires the sole underpinning for review grounds Reviewing discretion: Wednesbury and abuse of power Overlapping grounds and interchangeable labeis 695 xvii

9 P46 Ultra vires The basic ultra vires principle Wider senses of ultra vires Interference with rights as ultra vires: the principle of legality Scope/meaning and validity: reading down 709 P47 Jurisdictional error Jurisdiction/jurisdictional error as a flexi-principle Jurisdictional error as hard-edged review (correctness) Error of law and jurisdictional error 718 P48 Error of law Error of law/misdirection in law Error of law and courts of law: the scope of Anisminic 724 P49 Error of fact Precedent fact Judicial review for fundamental error of fact 729 P50 Abdication/fetter Basic duty not to abdicate/fetter Acting under dictation Improper delegation Fetter by inflexible policy 746 P51 Badfaith Badfaith 751 P52 Improper motive Improper motive 753 P53 Frustrating the legislative purpose Duty to promote the legislative purpose 757 P54 Substantive unfairness Substantive unfaimess Unjustified breach of a Substantive legitimate expectation 766 P55 Inconsistency Equality, arbitrariness and certainty 770 P56 Relevancy/irrelevancy The relevancy/irrelevancy principle Obligatory and discretionary relevance Relevance and weight 784 xviii

10 P57 Unreasonableness The unreasonableness principle Unreasonableness in action 793 P58 Proportionality The proportionality template Latitude and intensity of review Proportionaliry under domestic common law 814 P59 Procedural ultra vires Procedural ultra vires 821 P60 Procedural unfaimess The basic concept of procedural fairness Procedural fairness as a flexi-principle Procedural fairness: supplementing the legislative scheme The basic right to be heard The basic right tobeinformed Other rights of procedural fairness 858 P61 Bias Automatic disqualification Actualbias Apparentbias 867 P62 Reasons Importance of reasons in the developing law Judicial review for failure to give reasons Adequacy of reasons Timing of reasons Remedy for absence/inadequacy of reasons 900 P63 Extemal wrongs External wrongs 902 PART III. CASESYNOPSES 907 short case summaries Tableofcases 1211 Tableof Statutes 1285 Table of statutory instruments 1288 Index 1293 xix