Chapter 14 Self-test questions

Why have some commentators, such as Wade and Forsyth, characterised the House of Lords' decision in Anisminic as a judicial rebellion against Parliament?

The Law Lords upheld the ouster clause, but warned Parliament that if they enacted a provision which completely excluded judicial review in the future, they would strike it down.

The Law Lords interpreted the ouster clause in the legislation in such a manner so as to deprive it of any real relevance in practice.

The Law Lords, sitting in the legislative chamber of the House of Lords, had each opposed the passage of the legislation they ended up reviewing in this case.

The Law Lords disapplied the legislation in this case, contravening the sovereignty of Parliament.

What is the most significant aspect of the GCHQ case?

The Law Lords indicated that they were willing in principle to subject the exercise of prerogative powers to judicial review.

The Law Lords held that the ban on trade union membership was unlawful.

The Law Lords ruled that any use of prerogative powers by the executive clashed with their interpretation of the rule of law.

The Law Lords ruled that the exercise of prerogative could not be subject to judicial review.

Which of the following powers are reviewable by the courts (depending on subject matter)? Select all that apply.

The passing of legislation by Parliament

The exercise of a statutory power

The exercise of a prerogative power

The exercise of a power conferred upon a minister under a prerogative power

The acid test for whether decisions taken under de facto powers can be reviewed is whether the relevant decision-maker is performing a public function that is ____________ in nature.

What is the relationship between the existence of a contractual relationship between two parties and the question of whether a body is exercising a governmental function of the type identified in Datafin?

The existence of a contract between parties will not matter at all in the determination of whether a body is exercising a governmental function.

The existence of a contract between parties will suggest to the courts that the bodies involved had foreseen some degree of legal challenge to the exercise of their power and as such the courts will apply strict scrutiny to the question of whether the body exercises governmental power.

The existence of a contract between parties will suggest to the courts that that relationship should be governed by judicial review.

The existence of a contract between parties will suggest to the courts that that relationship should be governed by private, rather than public law.

Which of the following are genuine limitations that apply to judicial review proceedings? Select all that apply.

A claimant must demonstrate that he or she lives within one mile of the site affected by the disputed decision.

A claimant must usually have exhausted all means of challenging the decision.

A claimant must normally bring his or her case within three months of the disputed decision being made.

A claimant must demonstrate that he or she has an arguable ground for judicial review having a realistic prospect of success.

In order for a court to approve an application for judicial review to move forwards, it must be convinced that the applicant has already utilised existing avenues for review. Which of the following would satisfy that criterion? Select all that apply.

A claimant has already exhausted all non-judicial avenues for dealing with the case.

A claimant has already exhausted all non-judicial avenues for dealing with the case, but for an in-house appeals process which would take many years to complete and may not be able to provide sufficient remedies.

A claimant has already exhausted all non-judicial avenues for dealing with the case, but for an option which would be demonstrably inconvenient for them to pursue.

A claimant has no avenues by which to obtain redress outside of judicial review.

In the case of O'Reilly v Mackman the House of Lords laid out the doctrine of 'procedural exclusivity' in regards to pursuing judicial review claims. What does this doctrine mean in practice?

Claims which ought to be determined according to the principles of administrative law should be made straight to the courts, rather than following pursuance of alternative remedies such as in-house appeal services and tribunals.

Claims which ought to be determined according to the principles of administrative law should be pursued via judicial review. A claimant wishing to pursue such a claim is normally precluded from making a collateral private law claim.

Claims which ought to be determined according to the principles of administrative law can be brought under the conditions of a private law claim, but once the case is considered on the facts the claimant must determine whether to proceed on public law principles or private law principles.

Lawyers representing claimants in judicial review cases cannot cite precedents from the realm of private law in their arguments.

The case of R v Inland Revenue Commissioners ex parte National Federation of Self-Employed and Small Businesses, otherwise known as the Fleet Street Casuals case, is the bedrock of the modern liberal law of standing because the House of Lords granted standing to a pressure group, the National Federation of Self-employed and Small Businesses.

True

False

The cases of R v HM Inspectorate of Pollution ex p Greenpeace and R v Secretary of State for Foreign and Commonwealth Affairs ex p World Development Movement Ltd (the Pergau Dam case) provide examples of standing being granted to pressure groups. Which of the following factors were held in those cases to be relevant to pressure groups' satisfaction of the standing requirements? Select all that apply.

Expertise and experience

Whether a majority of members of the group would have had standing as individuals

Absence of an alternative challenger

The seriousness of the allegations

In judicial review proceedings, remedies are not available as of right, but are _____________.

The Criminal Justice and Courts Act 2015 amended the Senior Courts Act to the effect that courts must now decline to provide a remedy in judicial review under which circumstances?

If it appears highly likely that providing the applicant with a remedy would be disproportionately costly.

If it appears highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred, unless some exceptional public interest lies against this.

If it appears highly likely that providing the applicant with a remedy would not be in the public interest.

If it appears, on a balance of probabilities, that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

Match each of the remedies below to their descriptions.

Authoritatively establishes the unlawfulness of the decision.

Prevents unlawful action from being taken.

Compels public authorities to do things they are legally required to do.

Authoritative statement by court as to the legal position.

Both injunctions and prohibiting orders can require a body to refrain from pursuing certain actions. Which major benefit do injunctions have over prohibiting orders?

Injunctions can bind public bodies; prohibiting orders can only bind private bodies.

Injunctions can bind parties indefinitely; prohibiting orders can only bind parties for a short period of time.

Injunctions can be applied for in interim form; prohibiting orders can only be applied after a full legal hearing.

Injunctions can be applied for by any party; prohibiting orders can only be applied for by a directly affected party.

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