Chapter 13 End-of-chapter questions

The depth of review required under various judicial review grounds differs depending on the context and the nature of the claim. The Smith case had an outing in both the national courts and the European Court of Human Rights. Which statement accurately describes each court's findings based on different grounds of review?

Whilst the High Court found the decision to ban gay men and lesbians from the armed forces to be Wednesbury unreasonable, the Court of Appeal disagreed, finding that, since the Wednesbury standard was very strict it could not be used to invalidate the decision. The European Court, on the other hand, found that the decision was a disproportionate breach of Article 8 ECHR.

Both the High Court and the Court of Appeal applied a strengthened variant of the Wednesbury standard, but nonetheless held that the decision to ban gay men and lesbians from the armed forces was not so unreasonable as to breach this standard. The European Court, on the other hand, found that the decision was a disproportionate breach of Article 8 ECHR.

Both the High Court and the Court of Appeal applied a strengthened variant of the Wednesbury standard, but nonetheless held that the decision to ban gay men and lesbians from the armed forces was not so unreasonable as to breach this standard. Even the European Court, applying a more intense proportionality standard, found that the decision was not a disproportionate breach of Article 8 ECHR.

Whilst the High Court found the decision to ban gay men and lesbians from the armed forces to be Wednesbury unreasonable, the Court of Appeal disagreed, finding that, even when applying a strengthened variant of the Wednesbury standard, the decision was not Wednesbury unreasonable as to breach this standard. The European Court, applying a proportionality standard, found that the decision was a disproportionate breach of Article 8 ECHR.

Administrative law requires that decision-makers generally comply with a number of procedural standards. Some of these apply generally, and others only apply in specific circumstances or when fairness requires it. Which of the following requirements would generally be applicable?

The right to an oral hearing

The rule against bias

The right to a hearing featuring a lawyer

The duty to give notice

Compliance with the European Convention on Human Rights

The right to have a decision taken by an individual who is independent of the executive

There are many good examples of cases which demonstrate key grounds of judicial review. Match the cases below to a description of the point they demonstrate about judicial review.

The Suicide Act strikes an appropriate and proportionate balance between the interests of those who wish to take steps to end their own lives and the interests of protecting morality and the safety of others. It is not a disproportionate interference with human rights.

An individual who is placed in solitary confinement should ordinarily be told, at least in 'gist' format, of the reasons for their placement there.

An individual judge who holds a financial interest in the company involved in the case before them should recuse themselves, lest the case be tainted by impartiality.

It is inappropriate for a decision-maker to base their decision on considerations such as the political embarrassment that would ensue if they acted in a certain way.

It is inappropriate for the Secretary of State to set the minimum recommended term for a prisoner because to do so would be to improperly blur the relationship between the executive and judiciary; the decision-maker is too close to the act for their decision in this respect to be considered sufficiently impartial and independent.

In certain situations, such as when a decision affects the status or length of a prison sentence, the individual impugned should have not only a right to make their case, but to make oral submissions to the decision-maker.

Below are six situations which could be judicially reviewed. Match each of the descriptions below with the head of review which most appropriately relates to it.

Minister X has the power to appoint an individual to investigate companies which have been the subject of allegations of serious fraud and wrongdoing. Company Y is one of such companies, and Minister X appoints Investigator Z to investigate, write a report and present it to him for consideration. Minister X knows that Investigator Z used to be a board member of Company Y and still retains significant links with the company, formally and informally. Investigator Z's report suggests that no wrongdoing had occurred within Company Y and Minister X takes no action against them.

Minister X has the power to approve or deny visa applications. He has adopted a particularly hostile stance towards a foreign government. Y is a close family member of that foreign government, but has settled in the UK for many years and applies for a permanent visa. Y satisfies all of the procedural conditions, but Minister X, fearing that Y will embarrass him if settled in the UK, and that it would be degrading to approve the visa of a political opponent, rejects Y's application.

Minister X has the power to grant licences for large-scale building works, subject to an annual budget. Company Y approaches him with an impressive plan to build a new leisure complex in a town centre. Whilst the minister admits that he does not have the budget to approve of the plan at the time of the request, he does make a promise, orally and in writing, that he will approve the plan as soon as the money becomes available. Once the budget is refreshed, Minister X grants approval of many projects, but not the one Company Y requested.

Minister X has the power to increase the number of hours of community service an individual must serve if, during the course of completing some of that service, an individual behaves in a violent, dangerous or seriously inappropriate manner. Y is required to undertake 100 hours of community service. Unbeknownst to him, during the course of serving his hours, Minister X had added an additional 20 hours to his service requirements for his rowdy and insulting behaviour, but Minister X did not inform Y of this decision or of its basis.

Minister X has the power to subject an individual to an overnight curfew if he believes that they have committed a terrorist activity and is likely to commit another. Y has been made subject to such a curfew, based on the fact that he has been associating with a 'suspicious individual'. Y believes that he was misidentified, and that he has never knowingly associated with anyone involved in terrorist activities, and has never conducted any such activities himself. Nonetheless, he is subjected to curfew, but is given no opportunity to raise these concerns.

Minister X has the power to officially designate an area as an 'example of outstanding natural beauty'; local councils, as well as individuals, can apply to have a site so designated, and the Minister must consider each one. In practice, however, he simply approves any application in which it can be shown that granting the status would increase tourism in the area by over 25% and rejects all other applications.

It seems to be the case that judicial control over the executive is becoming stronger, and that judicial review is deepening. Which of the following statements, detailing evidence of this trend, are true? Select all that apply.

Wednesbury has evolved, first to a 'super-Wednesbury' standard and now to a proportionality standard.

Substantive legitimate expectation has emerged as a cogent ground of judicial review.

The Human Rights Act has introduced a new and rigorous ground of review.

There is now a general common law obligation for decision-makers to give reasons for their decisions.

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