1. ‘How, one wonders, is good administration ever assisted by upholding an unlawful decision?’

R (Corbett) v Restormel Borough Council[2001] EWCA Civ 330 (Sedley LJ [32]).  Can you answer Lord Justice Sedley’s question?

• When could it be said that good administration is assisted by upholding an unlawful decision?  Consider where…

(1) Overturning a decision would damage a public project, or

(2) Upholding a decision will enable public authorities to rely on similar decisions in the future.

Could these be reasons for not interfering with an unlawful decision which go beyond that in Corbett (fairness to a third party)?

• Consider R v Dairy Produce Quota Tribunal for England and Wales, ex p Caswell [1990] 2 AC 738.  Was good administration assisted by upholding an unlawful decision?
• What about time limits in planning decisions?  They enable public authorities or third parties to rely on planning decisions when organizing their affairs.
• Is it necessarily unjust to give effect to an unjust decision? Consider the Oxford school reorganization case (R (M) v Oxford County Council [2001] EWHC Admin 245).  Would you agree that even if the decision to close the middle schools was unlawful, there is good reason to uphold it, if quashing it would throw the education system into unmanageable chaos a week or two before the children are supposed to be in the classroom?  Could it be said that the reasons for upholding the unlawful decision include both the public interest in a functioning school system, and the interests of the children in a good education?
• In these cases, where good administration arguably is aided by upholding an unlawful decision, might there be good reason to give compensation to anyone who suffered injury as a result of the unlawful decision? Does English law provide such a general right to compensation?

2. ‘…the judicial review court, being primarily concerned with the maintenance of the rule of law by the imposition of objective legal standards upon the conduct of public bodies, has to adapt a flexible but principled approach to its own jurisdiction.’ R v Secretary of State for Trade and Industry, ex p Greenpeace Limited[1998] Env LR 415 (Laws J, 424).

Is it possible for the law on access to judicial review to be both flexible and principled?

• Consider the time limit for seeking permission to apply for judicial review.  Could the three month time limit be said to generally uphold a principle of speedy certainty?  And does the fact this limit can be departed from mean access to judicial review is in some sense flexible, when other principles (e.g. the legality principle) override the certainty principle?
• What about the requirement of standing to seek judicial review?  Could this requirement be said to exemplify principled flexibility in the law of access to judicial review?  Consider how a range of factors of differing strengths (depending on the facts) such as the statutory context, the suitability of the applicant and the subject matter of the proposed claim, help determine what amounts to ‘sufficient interest’ in a given case (Supreme Court Act 1981 s 31(3)).

3. Do the judicial processes measure up to the requirements of due process that judges impose on other public authorities?

• First, are judges bound by the rule against bias (nemo judex in causa sua; no one is to decide his own case)?  Consider R v Bow Street Magistrates, ex p Pinochet (No 2) [2000] 1 AC 119.
• Secondly, does the function of the court in resolving a dispute between two parties, and the orientation of the court procedures towards this role, allow the courts to hear each side of the story (audi alteram partem)? 
• Thirdly, might it be said the 1978 reforms, introducing disclosure and cross-examination in judicial review, improved the adherence of judicial processes to the principle of listening to each side of the story?
• What of the duty to give reasons? Do the expository judgments characteristic of the English legal tradition fulfil this requirement?
• Note that the right of appeal to a higher court is another way in which the judicial processes satisfy the requirements of due process.

4. What is the purpose of the requirement of permission to apply for judicial review? Is it to control the workload of the Administrative Court? Is it to protect defendants from litigation?

• Does the permission stage work to control the caseload of the Administrative court?  Since it necessitates an extra procedure (or procedures, since an unsuccessful claimant may be given leave to appeal from a refusal of permission), might it not be said to increase the workload of the court?
• Can a permission requirement protect defendants from litigation in general?
• Is the purpose of permission to protect defendants from litigation by timewasters, rather than in general?

Additional Question:

Why is it contempt of court for a public authority to decide that a court order is invalid, but it is not contemptuous for a court to decide that a decision of another public authority is invalid?

• Is it true to say the independent judiciary has the monopoly, in the last instance, on what is lawful, and public authorities are constitutionally required (by the doctrine of the separation of powers) to adhere to these determinations?
• Does such a responsibility for upholding the rule of law mean that the courts decide in the final instance whether the decisions of other public authorities are or are not valid according to the law?