judicial review


Vavilov – a restatement of reasonableness – Adrienne Copithorne (2)

6 February 2020 by

In the previous post under this topic, I referred to Mr Justice Binnie’s proposal for the exercise of the standard of reasonableness review in the 2007 case of Dunsmuir v New Brunswick. This would eventually resurface in Vavilov, where the majority of the Supreme Court of Canada held that the starting point should be a presumption that the reasonableness standard applied. In the interim, there had been much academic, practitioner and judicial commentary on the lack of clarity and consistency in the application of the principles espoused by the majority in Dunsmuir in subsequent cases and on the difficulty in applying such principles in claims. Members of the Supreme Court also expressed concerns in subsequent cases, for example, Abella J in Wilson v Atomic Energy of Canada Ltd 2016 SCC 29. The majority in Vavilov explicitly refers to such criticism coming from the judiciary and academics but also from litigants before the Court and organizations representing Canadians who are affected by administrative decisions. As the Court stated,

These are not light critiques or theoretical challenges. They go to the core of the coherence of our administrative law jurisprudence and to the practical implications of this lack of coherence.

The Court also referred to concerns that the reasonableness standard was sometimes perceived as “advancing a two-tiered justice system in which those subject to administrative decisions are entitled only to an outcome somewhere between “good enough” and “not quite wrong”.


Continue reading →

The Standard of Reasonableness in Canadian and UK Judicial Review (1) – Adrienne Copithorne

4 February 2020 by

Stratas JA has said, “Administrative law matters”. Every individual’s life is affected, in some cases profoundly, by administrative decisions. Judicial oversight of administrative decisions engages questions of importance and sensitivity in democracies where separation of powers is an intrinsic principle. In the view of the Supreme Court of Canada, the act of judicial review by a court is a constitutional function that ensures executive power is exercised according to the rule of law. At the same time, review must be exercised without undermining the democratic legitimacy of the executive or the intention of the legislature. The standards applied by courts to determining the lawfulness of administrative decisions are therefore of central importance to the proper functioning of our country.

Disclaimer here, to apply to this and the next post. The views expressed here are purely in a personal capacity, as I am now counsel with the UK charity, Justice.

This and the following post will consider what a ‘reasonableness’ standard of review means in the contexts of Canadian and UK administrative law. The standard has recently been given new emphasis by the handing down of the judgment of the Supreme Court of Canada in Vavilov [2019] SCC 65 in which the court restated its conception of reasonableness and how a decision should be analysed in light of that standard.

In the UK, a series of cases has revealed that jurisdiction’s Supreme Court grappling with reasonableness primarily in its relationship with the other standard of review, proportionality. As this essay will show, both Canadian and UK courts have struggled ever since the advent of judicial oversight of administrative decisions to formulate a standard of reasonableness which ensures unlawful decisions do not stand but does not allow the court to remake the decision that is the proper remit of the administrator.


Continue reading →

Pet Shock Collar Ban (Part 2)

2 November 2019 by

Back in 2010 Catriona Murdoch wrote about the High Court’s decision that a Welsh ban on the use of collars designed to administer electric shocks to cats and dogs did not breach Article 1 of the First Protocol of the ECHR or impinge upon the free movement of goods protected under European Union Law. I followed with a comment on the status of animal welfare in EU law here.

Any pet owner living near a busy road or with less than adequate fencing will be aware of the availability of an electronic containment system which prevents animals escaping by administering a shock via a collar, a system to which they become conditioned by the warning of a radio signal as they approach the boundary. Hand-held e-collar devices are different in that the shock can be administered anywhere and at any time at the whim of the animal’s owner.


Continue reading →

Jackson LJ on costs in all judicial reviews: Aarhus rules to apply

31 July 2017 by

 

Review of Fixed Recoverable Costs: Supplemental Report, 31 July 2017 – here

Jackson LJ is still toiling away at costs issues some 8 years after his main report. The original report changed the whole way in which the civil courts go about working how much, if anything, is due from one side to another at the end of a case – budgets being one key element. The main part of this new report concerns extending fixed costs further.

This post is about something different, judicial review. Rather different factors may come into play when you are challenging public authorities. You may have a direct financial or other interest in the outcome, or you may just think that the law needs properly enforcing against those authorities. It does not follow that the winner should recover costs on the same rules as elsewhere in the civil system. And Jackson LJ returns to the question of costs in this context in Chapter 10 of his report.

Since 2013, things have been different in the area of environmental judicial reviews. With substantial prods from the EU, things are now better off for claimants, though recent reforms have sought to put further obstacles in the way of claimants: see my post here.

So it is refreshing to read something from a very senior judge which recognises the true value of judicial review as a whole and why the costs rules need adjusting in this area for the benefit of claimants.

Continue reading →

Latest twist on standard of review in Aarhus cases

3 May 2016 by

_88207153_treeR (o.t.a. Dilner) v. Sheffield City Council [2016] EWHC 945 (Admin), Gilbart J, 27 April 2016, read judgment

A quick note on the latest Aarhus Convention point to come before the domestic courts.

In November 2015, I posted on the decision by Ouseley J in McMorn here that a gamekeeper’s challenge fell within the scope of Aarhus, and that as a result there should be a more intense scrutiny of the underlying merits of the claim than would typically be allowed under domestic public law principles.

The current case bears on the standard of review point. Mr Dilner and other environmental campaigners challenged the tree-felling policies of Sheffield City Council, and one of his arguments was that tree-felling required an environmental assessment under the Environmental Impact Assessment Directive. This environmental claim fell within the protections conferred by the Aarhus Convention, and hence, it was said, required such an intense scrutiny. Mr Dilner relied upon Ouseley J’s reasoning.

Gilbart J robustly rejected the argument, and did not follow Ouseley J’s ruling.

Continue reading →

Gamekeeper’s environmental Aarhus claim to shoot buzzards?

14 November 2015 by

Buteo_buteo_-Netherlands-8McMorn (R, on the application of) v Natural England [2015] EWHC 3297 (Admin) – read judgment

An interesting point arose in this judicial review (for which see Rosalind English’s post here). Could the claimant could get the benefit of an order that any costs he might have had to pay were capped at £5,000? The original judge, Thirlwall J, when granting permission, had refused this costs protection. Ouseley J granted it, though, because the claimant won, the order is academic (short of a successful appeal by the defendant). 

This kind of costs protection only applies when the claim is an environmental claim covered by the Aarhus Convention: see a whole list of posts at the end of this one, including the true bluffer’s guide here. The UK has been dragged kicking and screaming into compliance with the Aarhus costs requirements, that environmental challenges not be “prohibitively expensive”, thanks to a combination of the Convention’s own enforcement body and the EU Court in Luxembourg.

But the domestic courts have had some difficulty in deciding what is or is not comes within an environmental challenge.

As we will see, the judge also thought that an Aarhus claim requires a more intensive review of the substantive decision than might have been applied had the claim been a typical domestic challenge on grounds of irrationality. I deal with that point first.

Continue reading →

Buzzards should not be protected any more than herring gulls and cormorants: High Court

14 November 2015 by

buzzard06McMorn (R, on the application of) v Natural England [2015] EWHC 3297 (Admin) – read judgment

Public opinion regarding raptors and pheasant shoots should not influence the authorisation of buzzard control, the Administrative Court has ruled. Any derogations to the EU protection of wild birds should apply equally across wild avian species, irrespective of their popularity.

This was a gamekeeper’s challenge to the refusal by the defendant statutory body (Natural England) to grant him a licence under the Wildlife and Countryside Act 1981 to kill buzzards which he said were destroying such high numbers of game birds as to render his shoot unviable.

At the heart of the claimant’s challenge was his contention that NE treated raptors differently from other wild birds, making it far harder, well-nigh if not quite impossible, for anyone to meet the statutory conditions for the issue of a licence.
He maintained the defendant treated these licence applications differently because of the public controversy which the grant of a licence for the killing of buzzards would engender. This was because of perceived adverse public opinion about the protection of a pheasant shoot. Hence, the decision was based on unjustified inconsistencies in NE’s treatment of raptor and other birds equally protected under the law. 
Continue reading →

Challenge to prosecution policy on assisted suicide in Scotland fails – Fraser Simpson

10 September 2015 by

Holyrood-GettyRoss, Re Judicial Review, [2015] CSOH 123 – read judgment

The Outer of House of the Court of Session has refused an individual’s request for clarification of the prosecution policy relating to assisted suicide in Scotland.

by Fraser Simpson

Factual Background

The Petitioner, Mr Ross, suffers from Parkinson’s disease and currently resides in a care home due to his dependence on others. Although not wishing to currently end his life, Mr Ross anticipates that in the future he will wish to do so and will require assistance.

In July 2014, the Petitioner requested from the Lord Advocate – the head of the prosecution service in Scotland – guidance on the prosecution of individuals who assist others to commit suicide. The Lord Advocate replied that such cases would be referred to the Procurator Fiscal – the Scottish public prosecutor – and dealt with under the law of homicide. The Lord Advocate further stated that decisions regarding whether prosecution would be in the public interest would be taken in line with the published Crown Office and Procurator Fiscal Service Prosecution Code (“COPFS Code”). However, he admitted that it would often be in the public interest to prosecute such serious crimes as homicide.
Continue reading →

When can the courts rule on the legality of future behaviour?

4 August 2015 by

toad_white_natterjackKent & others v Arun District Council and others [2015] EWHC 2295 – read judgment

Iain O’Donnell of 1COR acted for the Council in this case: he played no part in the writing of this post.

This case concerned the application of the law in relation to future conduct, in particular, the role of the judicial review procedure in determining what precisely is meant by the prohibition on the selling of live animals under the Pet Animals Act 1951.

This is a detailed statutory provision inspired by welfare and conservation concerns. It has a complicated legislative history, and essentially the judge hearing the application was being asked to decide whether certain future activities might be caught by it.

For the record, the statute was introduced to protect the welfare of animals sold as pets. It requires any person keeping a pet shop to be licensed by the local council, which will only license such a business if they are satisfied as to the suitability of the accommodation, nutrition and safety of the animals concerned. Section 2 bans the selling of animals in the street, including on barrows and markets.

Councils are responsible for enforcing the law in this area.
Continue reading →

Spiritual Injury voids Mayor’s Election

3 May 2015 by

0BCCE818000005DC-3052100-image-m-33_1429813413592Erlam et al v. Rahman et al, Richard Mawrey QC, April 2015, judgment here

The Guardian has reported that Lutfur Rahman, the former directly elected mayor of Tower Hamlets is “exploring the possibility” of judicially reviewing the judgment of the Election Commissioner, Richard Mawrey QC declaring his 2014 election void and barring him from standing in the mandated repeat of the poll.

The only surprise is the qualified nature of the statement as his website had already announced his decision to appeal two days before. This site also directs readers to a petition which describes the case as, “a politically-charged stitch up and an anti-democratic coup.” The Guardian quotes the Head of the Tower Hamlets branch of UNITE as describing the judgment as “an undemocratic assault on the people of Tower Hamlets” which was both “racist” and “Islamophobic”.

Continue reading →

The worrying new anti-terrorism measures that are set to become law – Angela Patrick

2 February 2015 by

Credit: guardian.co.uk

Credit: guardian.co.uk

The Counter-Terrorism and Security Bill begins its final stages in the House of Lords today. This blog considered the Bill on its introduction to the Lords. In the interim, both the Joint Committee on Human Rights and the Constitution Committee of the House of Lords have reported, both recommending significant amendments.

Despite repeat flurries of excitement as a coalition of Peers suggest time and again that most of the controversial Communications Data Bill – popularly known as the Snoopers’ Charter – might be a late-stage drop in; the press has, perhaps regrettably, shown little interest in the Bill.

Continue reading →

Wind turbines, noise and public information

7 November 2014 by

3844964938R (o.t.a Joicey) v. Northumberland County Council , 7 November 2014, Cranston J  read judgment

An interesting decision about a Council not supplying some key information about a wind turbine project to the public until very late in the day. Can an objector apply to set the grant of permission aside? Answer: yes, unless the Council can show that it would have inevitably have come to the same conclusion, even if the information had been made public earlier.

Mr Barber, a farmer, wanted to put up one turbine (47m to tip) on his land. The claimant was an objector, another farmer who lives 4km away, and who campaigns about subsidies for renewables – it is him in the pic. The planning application was complicated by the fact that an application for 6 turbines at Barmoor nearby had already been approved (where Mr Joicey is standing), and the rules on noise from wind turbines looks at the total noise affecting local people, not just from Mr Barber’s turbine.

Continue reading →

No binding assurances about badgers, says Court of Appeal

4 November 2014 by

BadgerR (o.t.a. Badger Trust) v. SoS for Environment and Rural Affairs, CA, 29 October 2014, read judgment, on appeal from Kenneth Parker J, Admin Ct, 29 August 2014 read judgment

The Court of Appeal has dismissed an attempt by the Badger Trust to quash Defra’s unwillingness to retain an Independent Expert Panel on future badger culls. The arguments mirrored those before the judge (summarised in my previous post here), and were dismissed for pretty much the same reasons.

The background was the pilot cull in Somerset and Gloucester in 2013-14. It sought to remove at least 70% of the badger population in the area. The Panel reviewed its results, and concluded that in terms of effectiveness, shooting badgers removed less than 24.8% in Somerset and less than 37.1% in Gloucestershire. It decided that in terms of humaneness, something between 7.4% and 22.8% of badgers shot were still alive after 5 min. Not quite what had been promised for shooting.

Continue reading →

Three strikes and out? Major defeats for Government Judicial Review reform plans in the Lords

28 October 2014 by

Pannick Faulks

Lords Pannick and Faulks

Last night saw the important Report Stage consideration of Part 4 of the Criminal Justice and Courts Bill in the House of Lords. Angela Patrick, Director of Human Rights Policy at JUSTICE provides a summary.

Widely – and quickly – reported as a “crushing” or an “emphatic” defeat – in a rare turn – the Government was last night defeated in three consecutive votes on its proposals to restrict access to judicial review. With a ‘hat-trick’ of blows, on three crucial issues, votes on amendments tabled by Lords Pannick, Woolf, Carlile and Beecham were decisive. On the proposal to amend the materiality test – the Government lost by 66. On the compulsory disclosure of financial information for all judicial review applicants, and again on the costs rules applicable to interveners, the Government lost by margins on both counts by 33. A fourth amendment to the Government proposals on Protective Costs Orders – which would maintain the ability of the Court to make costs capping orders before permission is granted – was called after the dinner break, and lost.

Continue reading →

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: