Self-test questions: The judiciary & standing for judicial review

1. While the courts have a long tradition of examining the legality of the exercise of public powers, the contemporary meaning given for a claim made under 'judicial review' (as defined by the Civil Procedure Rules, part 54 – Authorised by Civil Procedure Act 1997) refers to:

A claim to review the lawfulness of an enactment; or a decision, action, or failure to act in relation to a public function.

A claim to review the lawfulness of an enactment; or a decision, action, or failure to act in relation to act of a public authority.

An appeal made from a previous decision of a public body (including the courts) on the grounds that it was the decision was unlawful.

An appeal made from a previous decision of a public authority (including the courts) on the grounds that it was the decision was wrongly decided.

An appeal made from a previous decision of a public authority (including the courts) on the grounds that it was the facts were wrongly decided.

2. Which of the following describes a reason for the finding that the Panel of Takeovers and Mergers was subject to judicial review in R (Datafin) v Panel on Takeovers and Mergers [1987] 2WLR 699?

Because the source of the power exercised by the panel was provided by an Act of Parliament.

Because the source of the power exercised by the panel was provided by a statutory instrument.

Because the panel received public funding to exercise to exercise functions that would have otherwise been exercised by government.

Because the powers exercised by the panel where of a public nature.

Because the source of the powers exercised by the panel was provided by royal prerogative.

3. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd. [1981] 2 W.L.R. 722 (often referred to as the 'Fleet Street' case), the court found that the question of whether the applicants had sufficient interest in the matter to which the application related could only be determined with consideration of the full merits of the case rather than as a preliminary issue. This was because:

The court required full consideration of the facts to determine whether the applicants were individually affected by the action which they claimed to be unlawful.

The court required full consideration of the facts to determine whether the applicants were presenting their case in good faith.

The court required full consideration of the facts and law to determine whether the Board of Inland Revenue had failed in their duty.

The court required full consideration of the facts and law to determine whether prima facie the claims made by the applicants were frivolous or vexatious

The court required full consideration of the facts and law to determine whether the Board of Inland Revenue had exceeded their powers to the detriment of the applicants.

4. A group of people who oppose the demolition of several buildings in the centre of town (buildings of the modernist 'brutalist' style) have formed a group – the 'Brutalist Appreciation Society' – to bring a claim for judicial review of the decision by the local council to allow the demolition. The group claims that while the council has broad discretion to allow the demolition of non-listed (non-protected) buildings, they argue that greater weight should have been given to the aesthetic and historic value of the brutalist style in the decision.

Which of the following best describes the likely reason for why the court would, or would not, find the applicants to have standing?

The applicants would not have standing because only individual (natural) persons can bring a claim under judicial review.

The applicants would not have standing because their legal rights must be directly affected by a decision to bring a claim under judicial review.

The applicants would have standing as the formation of a group provides greater weight to the significance of the issue than if an individual had made the application.

The applicants would not have standing because there is no prima facie (arguable) case that the council acted unlawfully, and an aggregate of individuals does not (in itself) create sufficient interests where those individuals did not have sufficient interest in the first place.

5. 'Friends of the Sands' is a charity created to protect wild sand dunes in the UK on the basis of their ecological importance. The organisation has a significant national reputation and has been included in government consultation processes in recognition of both their expertise and the public interest they represent. Friends of the Sands are seeking judicial review of a recent decision taken by a group of private landowners who have agreed to sell their land to a development company who plan to build a large hotel complex close to the shore. Friends of the Sands claim the planned development will detrimentally affect local sand dunes in contravention of the Beaches and Wildlife Act 2001.

Which of the following correctly describes procedural issues arising? (The Beaches and Wildlife Act 2001 is a fictional Act of Parliament.)

Friends of the Sands are unlikely to be granted permission to bring the claim because none of the members are individually affected by the decision and an aggregate of individuals does not (in itself) create sufficient interests where those individuals did not have sufficient interest in the first place. In addition, because the decision makers are not part of government, they are not subject to judicial review.

Although the decision makers are a group of private landowners, they are exercising a public function and therefore subject to judicial review. However, Friends of the Sands are unlikely to be granted permission to bring the claim because none of the members are individually affected by the decision and an aggregate of individuals does not (in itself) create sufficient interests where those individuals did not have sufficient interest in the first place.

The group of landowners does not appear to be exercising a public function in their decision to sell their land, and therefore would not be subject to judicial review. However, Friends of the Sands may have been found to have sufficient interests at the merits stage (given their expertise, reputation and if the court found it served the public interest to have the claim considered) if the body making the decision had been subject to judicial review.

Friends of the Sands would likely be found to have sufficient interests at the merits stage (given their expertise, reputation and if the court found it served the public interest to have the claim considered). In addition, as the group of landowners they would be subject to judicial review.

6. Natalia claims that the local authority has failed to follow the correct procedure of consultation before beginning the building of a new concert hall adjacent to her property. Which of the following describes the remedy available through judicial that would halt the building process?

A declaration

A mandatory order

An injunction

A quashing order

Damages

7. Which among the below answers best describe the legal significance of the court's findings in (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61:

That Legislation created according to the Colonial Laws Validity Act 1865 could not be reviewed by English courts.

That the lawfulness of a statutory instrument may be reviewed by the courts.

The lawfulness of primary legislation derived from prerogative powers may be reviewed by the courts.

That the lawfulness of the exercise of discretionary prerogative powers may be reviewed by the courts.

That the lawfulness of primary legislation created by Parliament may be reviewed by the courts.

8. Which among the below answers best described the legal significance of the court's findings in Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374 (often referred to as the 'GCHQ case'):

That Henry the XIII clauses are unlawful.

That the lawfulness of a statutory instrument may be reviewed by the courts.

That the lawfulness of primary legislation derived from prerogative powers may be reviewed by the courts.

That the lawfulness of the exercise of discretionary prerogative powers may be reviewed by the courts.

That the lawfulness of primary legislation enacted by Parliament may be reviewed by the courts

9. The local Community Art Council has been enabled by statute to make decisions on artwork to be commissioned for display in public spaces. The enabling Act also specifies that 'no decision of the Community Art Council shall be called into question by any court of law.' Jonathan – an artist whose work was submitted for consideration but not selected for commission – seeks to have the decision judicially reviewed on the grounds that the Community Art Council had unlawfully delegated their powers by hiring a consultant make a short-list of work to be considered. The short-list as produced by the consultant meant that many proposals, including Jonathan's, were not directly considered by the Council.

The decision is not subject to judicial review because the enabling Act has ousted the jurisdiction of the courts with the words 'no decision of the Community Art Council shall be called into question by any court of law.'

Due to the words 'no decision of the Community Art Council shall be called into question by any court of law,' the decision would not normally be subject to judicial review. However, as Jonathan's interests are directly affected the court has jurisdiction to assess the fairness of the decision.

The lawfulness of the decision may still be addressed despite the wording 'no decision of the Community Art Council shall be called into question by any court of law.' This is because if the decision was not lawfully made, it would not be a valid decision of the Council in the first place.

The lawfulness of the decision may still be addressed despite the wording 'no decision of the Community Art Council shall be called into question by any court of law.' This is because Parliament has no authority to regulate court processes.

10. Assuming the relevant issue is deemed justiciable, which of the following may potentially be challenged through a process of judicial review?

Statutory Instruments

Decisions of non-governmental bodies exercising public functions

Orders in Council

Prerogative powers of the Executive

Acts of Parliament

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