Exam Overview and Preparation

This lecture provides a review of judicial review for an upcoming two-hour, in-person exam. The exam will consist of one judicial review problem question and one essay question, each worth 50% of the module grade. Achieving 40% overall is necessary to pass the module. Effective preparation involves understanding the exam format, general advice, and a thorough review of the grounds for judicial review, with a focus on problem question application.

Exam Structure and Marking

Component	Weighting	Time Allocation
Judicial Review Problem Question	50%	1 hour
Essay Question	50%	1 hour

Grading Scale

Fail: 32-38%
Third: 42-48%
2:2: 52-58%
2:1: 62-68%
1st: 72-78%+

General Exam Advice

Read carefully: Understand the entire exam paper before starting.
Plan your answer: Structure is crucial; use headings to organize thoughts.
Consider the marker: Write clearly, possibly on alternate lines, and underline case names.
Use the Statute Book: Familiarize yourself with the latest edition for reassurance, not for learning new material during the exam.
Avoid large verbatim quotes: Focus on applying knowledge.

Grounds of Judicial Review

Judicial review allows courts to scrutinize the legality of decisions made by public bodies. The primary grounds for review are illegality, unreasonableness (irrationality), and procedural impropriety. This section provides an overview and illustrative case examples for each ground.

🧪 Illegality

Illegality occurs when a decision-maker misunderstands or fails to give effect to the law regulating their power. Lord Diplock in the 'GCHQ' case defined this as requiring the decision-maker to "understand correctly the law that regulates his decision-making power and must give effect to it".

Sub-grounds of Illegality

Ground	Description	Key Cases
"Simple" Ultra Vires	Acting beyond the scope of statutory powers.	Attorney General v Fulham Corporation, White & Colins v Minister of Health
Errors of Law	Misinterpreting or misapplying the law.	Anisminic v Foreign Compensation Commission, R (Privacy International) v Investigatory Powers Tribunal
Errors of Fact	Decisions based on incorrect factual premises, where those facts are preconditions to the power.	Secretary of State for Education v Tameside MBC
Ouster Clauses	Clauses attempting to exclude judicial review, which courts interpret narrowly.	Anisminic Ltd v Foreign Compensation Commission, R (Privacy International) v Investigatory Powers Tribunal
Irrelevant Considerations	Failing to take relevant factors into account or considering irrelevant ones.	R v Somerset CC, ex p Fewings, R v Secretary of State for Home Department, ex p Venables
Improper Purpose	Using a power for a purpose other than that for which it was granted.	Wheeler v Leicester City Council, Porter v Magill
Unlawful Delegation	Delegating powers to another body without proper authorization.	Barnard v National Dock Labour Board
Fettering Discretion	Pre-determining a decision or adopting a rigid policy without willingness to consider individual circumstances.	British Oxygen v Minister of Technology (policy), Lavender & Son Ltd v Minister of Housing and Local Government (abdication)

🧪 Unreasonableness / Irrationality

This ground, often termed "Wednesbury unreasonableness", applies to decisions that are "so outrageous in their defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it" (Lord Diplock, 'GCHQ' case).

Wednesbury Test: A decision must be truly unreasonable, not just a less preferred option.
"Super Wednesbury": A stricter test applied in certain contexts, akin to something "so absurd that no sensible person could ever dream that it lay within the powers of the authority."
Link to irrelevant considerations: Failing to consider relevant matters or considering irrelevant ones can lead to an unreasonable decision.
Examples: Re Duffy (Parades Commission appointments), R (Rodgers) v Swindon NHS Primary Care Trust (Herceptin prescriptions).

🧪 Procedural Impropriety

This covers failures to observe rules of natural justice or procedural fairness. Lord Diplock noted it includes failures to observe expressly laid down procedural rules.

Key Principles of Procedural Impropriety

Aspect	Description	Key Cases/Principles
General Principles	Fairness is presumed and context-dependent.	Doody Principles (1-4)
Right to a Fair Hearing (Audi Alteram Partem)	The right to be heard, present one's case, and respond to opposing arguments.	Baggs Case, Ridge v Baldwin, McInnes v Onslow-Fane (application vs forfeiture)
Right to Know Opposing Case	Being informed of the case against you.	R v SoS for the Home Department, ex p Al Fayed
Right to an Oral Hearing	May be required depending on the seriousness of the case and what is at stake.	R (Osborn) v Parole Board
Rule Against Bias (Nemo Judex in Causa Sua)	No one should be a judge in their own cause.	Actual Bias: Dimes v Grand Junction Canal (financial), Pinochet (No 2) (non-financial). Apparent Bias: Porter v Magill (fair-minded and informed observer test).
Statutory Requirements	Failure to follow mandatory or directory procedural rules.	Bradbury v Enfield London Borough Council (mandatory), Coney v Choyce (directory), R v Secretary of State for Home Department, ex p Jeyeanthan (substantial compliance test).
Statutory Duty to Consult	Consultation must be genuine, at a formative stage, informative, allow adequate time, and its outcome conscientiously considered.	R (Moseley) v Haringey LBC, Sedley criteria from R v Brent LBC ex parte Gunning.
Legitimate Expectations	Assurances from public authorities that are relied upon. Can be procedural or, exceptionally, substantive.	R v Liverpool Corporation, ex parte Liverpool Taxi Fleet (explicit), GCHQ (past practice), R North and East Devon Health Authority, ex p Coughlan (substantive factors).
Duty to Give Reasons	No general common law duty, but may be required by fairness, especially for drastic decisions.	R v Civil Service Appeal Board, ex parte Cunningham, R v Secretary of State for the Home Department, ex parte Doody.

💡 Problem Question Advice

When tackling a judicial review problem question, focus on applying the law to the specific facts. Avoid simply restating the law or rewriting the scenario.

🔑 What to Do

Focus on the question: Identify the specific issues raised by the facts.
Consider facts carefully: Assume no irrelevant information; analyze the significance of each detail.
Plan your answer: Note down issues and relevant legal rules.
Identify and state the law accurately: Explain unclear areas.
Apply the law to the facts: Advise each character systematically.
Use the IRAC structure: Issue, Rule, Application, Conclusion.

🚫 What to Avoid

Very lengthy introductions.
Rewriting the scenario.
Listing all known information about a topic without relevance to the facts.

Structure Outline

A clear structure is essential:

Brief Introduction: Identify the area of law (judicial review).
Common Points: Address issues affecting multiple parties if applicable.
Each Party in Turn:
- Identify key facts.
- State the legal issue(s).
- Explain the relevant legal rules (Rule).
- Apply the rules to the facts (Application).
- Reach a conclusion for that party regarding that issue (Conclusion).

📝 Example Application (Alvin's Case)

Alvin's license renewal was rejected without reason, with his ex-wife, Hannah, chairing the decision committee. The core issue is potential bias.

Issue: Bias in decision-making.
Rule: The law distinguishes between actual bias (rarely proven) and apparent bias. The test for apparent bias, from Porter v Magill, asks if a "fair-minded and informed observer" would perceive a "real possibility of bias." Financial or non-financial interests can taint a decision.
Application: Hannah's recent divorce from Alvin and their acrimonious separation suggest a potential personal animosity. While not a direct financial interest (distinguishing Dimes v Grand Junction Canal), a fair-minded observer might reasonably suspect Hannah's personal feelings could influence her judgment, creating a real possibility of bias. The lack of reasons also hinders the assessment of fairness.
Conclusion: Alvin could seek judicial review on the grounds of apparent bias, arguing the decision is tainted and should be set aside.

Case Study Breakdown: Other Parties

📦 Bertha: Procedural Impropriety

Issue: Revocation of license based on rumour without a hearing.
Rule: Procedural impropriety requires adherence to natural justice, including the right to a fair hearing (Doody principles), especially in forfeiture cases where livelihood is affected.
Application: Bertha's license was revoked immediately upon hearing rumours, without being given a chance to present her side or challenge the allegations. This violates the right to a fair hearing.
Conclusion: Bertha could seek judicial review for breach of procedural fairness.

📦 Callum: Illegality (Improper Purpose)

Issue: Licence condition requiring driving pensioners to the supermarket.
Rule: Public bodies must use discretionary powers for the statutory purpose for which they were granted. Using powers for an improper purpose is unlawful (Padfield, Wheeler v Leicester City Council).
Application: The Act likely concerns issuing taxi licenses, not providing a substitute bus service. Using the licensing power to address bus service cuts is an improper purpose, exceeding the Act's intent.
Conclusion: Callum could seek judicial review on grounds of illegality (improper purpose).

📦 David: Illegality ("Simple" Ultra Vires)

Issue: Licence condition requiring a specific vehicle colour.
Rule: A body cannot act outside the powers granted by statute ("simple" ultra vires).
Application: The Council has power to issue licences on "such conditions as the Council thinks fit." However, the express statutory provision that licence holders are "free to drive whatever colour of vehicle they wish" directly conflicts with the lime green condition. This condition goes contrary to the statute.
Conclusion: The decision imposing the lime green condition is ultra vires David's licence.

📦 Earl: Illegality (Fettering Discretion & Relevant Considerations)

Issue: Condition prohibiting driving a Bentley based on general pollution data, ignoring Earl's electric model.
Rule: A public authority with discretion must not fetter it by adopting a rigid policy (British Oxygen) and must consider all relevant factors.
Application: The Council applied a blanket policy against Bentleys due to pollution concerns, failing to consider the specific, relevant fact that Earl's Bentley is electric and non-polluting. This demonstrates fettering of discretion and a failure to consider relevant information.
Conclusion: Earl could seek judicial review on grounds of illegality (fettering discretion/irrelevant considerations).