Questions

1. What is the constitutional role of judicial review?
2. What is an ouster clause? Can the courts be prevented from judicially reviewing decisions of other bodies?
3. What is the exclusivity principle?
4. What is the Datafin test?
5. What is the test for standing? Why is the claimant’s standing important in judicial review cases?
6. Why did the government propose narrowing the test for standing? Was the proposal adopted?
7. Why is permission stage needed? What test does the claimant need to satisfy?

Answers

1. It provides accountability of the executive. It upholds parliamentary sovereignty by ensuring that public bodies act within their lawful authority; the courts interpret and apply the statutes conferring legal powers on those bodies. It maintains the rule of law by helping to protect the public from arbitrary or unreasonable exercise of government power, reinforcing the fundamental idea of government according to law.
2. It excludes the jurisdiction of the courts and the judicial review process. The courts generally interpret ouster clauses restrictively in a way that protects the jurisdiction of the court (Anisminic). See also R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22.
3. The judicial review procedure must be used exclusively to challenge the abuse of public law powers. An incidental public law issue can be questioned in ordinary court proceedings that are primarily intended to enforce a private law right.
4. Where a private body exercises public law functions, or its functions have public law consequences, it may fall within the reach of judicial review. Look not only at the source of the power, but the nature of the power being exercised.
5. The applicant must have ‘a sufficient interest’ in the matter to which the application relates (section 31(3) Senior Courts Act 1981). This excludes busybodies with no genuine interest but the courts may recognise the standing of individuals without any direct interest where the public body’s breach affects the public generally.
6. It was concerned that the courts’ generous approach to the test for standing was allowing judicial review to be used for publicity or to hinder the proper decision-making process. The government’s proposal was not adopted.
7. It filters out inappropriate actions. The claimant must show an arguable ground for judicial review having a realistic prospect of success.