Summary Constitutional Law FLK1 Cheat Sheet

Backbones notes: Constitutional
Judicial Review
 Applications Process
o Amenability – is the decision appropriate for the judicial process
 Datafin: Must serve a public law function
 Ex parte insurance: but for the body,, parliament would need to
intervene
o Procedural exclusivity – exclusive procedure for challenging public law
decisions, to challenge in another way would be an abuse of process.
o If there are private elements, JR cannot usually be brought
 Unless
 Neither party objected to the use of private law procedure
 Contested decision is collateral to another claim
o Standing
 Applicant must have sufficient interest
 Fleet Street: liberal approach
 Pressure/interest groups will only be given standing if there an absence
of another challenger.
 Individual concerned citizens could where there were no better placed
challengers
o Review Process – brought to the administrative court
 Will only be successful where there are no alternative remedies or they
have been exhausted
 Application made for permission
 Initial permission may be granted
 Inter-partes hearing if grated
o Time-limit for review to be brought
 Promptly and no later than 3 months from when the grounds arose
 Undue delay, could refuse
 Planning decisions – 6 weeks
o Ouster clauses
 There is a strong presumption that parliament does not intend to
exclude JR.
 Explicit, clear wording required
 Strike a balance between parliament and ROL
 Remedies
o Quashing order
o Prohibitory order
o Mandatory Order
o Injunction
o Damages
 Grounds for Judicial Review

, o Illegality
 Simple illegality – went beyond the boundaries of the power afforded
to that body.
 Errors of law – decision made a mistake when interpreting the law
 Errors of fact – no evidence of fact, mistake as to fact or finding of a
fact.
 Irrelevant considerations
 Improper purpose – discretion used for the wrong purpose
 Fettering Discretion – hampered its own exercise of power
 Unlawful delegation – public body not normally allowed to delegate
discretion unless government ministers delegate to sufficiently senior
official in own departments.
o Unreasonableness
 Wednesbury test – so unreasonable that no reasonable authority could
have ever come to it. A relatively high bar.
 Classes of unreasonableness
 Material defects in the decision-making process
o Weighing up the wrong factors
o Failure to provide a comprehensive chain of reasoning
 Oppressive decisions
o Imposes excessive hardship or infringement of rights
 Violates constitutional principles – the law should be consistent
and sufficiently certain.
 Intensity of review
 Decisions affecting fundamental/human rights – higher
intensity
 Decisions concerning broader policy – lower intensity
o Procedural Impropriety – failed to follow the correct procedure
 Failure to observe statutory rules – would parliament have ntended that
the outcome of the non-compliance would be the invalidity of the
decision.
 Duty to act fairly
 Right to be heard
o Duty arisen?
o Level of duty owed – depends on character of body and
stake of decision
 Licensing – usually no right to oral hearing
 Generally should be given a ‘gist’ of reasoning
o Duty breached?
 Case against the person – were not given
evidence against them.
 Representations – no automatic duty
 Witnesses – no automatic duty