Read Law Right

You’ve just taken a look at your problem question in public/constitutional law. You find yourself confronted with a lengthy problem scenario involving several potential clients. You are asked to advise them on potential grounds of judicial review. How do you even get started with this?

Judicial review problem questions can be answered following the same IRAC process that I’ve explained in earlier posts. However, there are some differences to consider.

You should begin by reading the question carefully, especially the part that instructs you what to do. Questions about judicial review might require you to address one or more of the litigation stages: pre-action, permission and/or substantive hearing. If the instruction part of the question is not clear, it is worth asking your tutor or lecturer.

This post addresses questions that instruct you to advise a client if their situation gives rise to arguable grounds of review. Your task is to explain those grounds that on balance stand a chance of success for your client.

The challenge with judicial review problem questions is that the arguable grounds may not be obvious at first glance. This is in stark comparison to, e.g. a criminal law problem scenarios. These likely have obvious offences to consider and may even specify the offences you should focus on. With judicial review it is easier for you to miss arguable grounds.

Therefore, you should take a systematic approach to identifying the arguable grounds. The way to do this is to have all the judicial review options in mind. Then, when you analyse the scenario, you should consciously ask yourself, ‘is this ground arguable?’

Here are the steps you should take.

Stage 1

Read the scenario slowly (maybe more than once). Highlight anything that your common sense tells you the client would want to challenge. You may highlight more issues than judicial review can address, but don’t worry about that just yet.

Stage 2

List the main types of judicial review and break them down into their sub-types. Here are some examples:

Illegality breaks down into:

• Simple ultra vires
• Improper/ulterior purpose
• Incompatibility with ECHR/HRA
• Breach of equalities legislation

and others…

Procedural impropriety breaks down into:

• Failure to follow statutory procedures
• Actual, apparent or presumed bias
• Predetermination

etc…

Legitimate expectation, which has two distinct ‘flavours’. You should consider both to see if they apply.

And finally irrationality, sometimes referred to as unreasonableness.

Add a brief statement encapsulating the legal ‘rule’ for each of those grounds.  At this stage this can come from the textbook. It just needs to be enough to remind you what that ground encapsulates. So your plan would look something like this:

[…]

Irrationality/unreasonableness

Rule: where the public authority makes a decision that is “So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, Lord Diplock.)

[…]

Stage 3

Now, re-read the scenario. This time ask yourself two question:

• 1. do any of these grounds align with facts in the scenario?
• 2. do any of the issues previously identified align with any of these grounds?

You should constrain yourself to the facts provided in the question. Don’t speculate on the facts or your answer will drift off topic.

Categorise your results in three ways:

• A. If a ground and issue align, highlight it for further research.
• B. If a ground and issue do not align, strike it out. You can ignore it going forwards.
• C. If you are not sure whether a ground and issue align, mark it as such. If the first draft of your essay is short, consider researching items in this category.

The key here is to identify all the grounds and issues that align. Your further research on each will help you to decide if the ground and issue is arguable.

Next steps

You can now start researching your essay proper. Focus on issues/grounds of review in your A category. Add issues/grounds from your C category if you have space to do so. Now is the time to explore the reasoning of the judges in past cases. Follow my earlier posts on IRAC and problem-style questions.

Final thoughts

You may conclude that a particular ground more than likely won’t be successful for your client. Distinguish ‘likely success’ from ‘arguability’, and ‘arguability’ from ‘irrelevant’. An arguable ground is fine to include in your essay even if you think it won’t succeed. It is an opportunity to demonstrate understanding and application of relevant law.

You may find that a particular ground of judicial review applies to more than one issue in the scenario. Consider being more succinct when explaining that ground on subsequent occasions. However, take care to fully explain the application of the law and your conclusion to each relevant issue.

You may find that a particular issue in the scenario can be addressed by more than one ground of review. In which case, address both possibilities. Each needs its own conclusion.

Each ground you discuss should have its own reasoned conclusion. Explain why a specific ground on a particular issue is likely to succeed.

Your overall conclusion for each client should summarise to that client their overall likelihood of success. You might include some advice on potential remedies here too.

Where the question requires you to advise multiple clients, each cleint needs their own overall conclusion. The essay as a whole does not need a separate conclusion.