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JR - Can a judge disregard findings of unlawfulness?

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JR - Can a judge disregard findings of unlawfulness?

Postby Denning » Fri Dec 23, 2016 6:59 am

The public authority in this case is neither a tribunal nor a court of law so Section 31(5)(b) of the Senior Courts Act 1981 is not engaged.

A rule in a regulation gives a public authority the power to make a fatal decision against any individual within its jurisdiction who breaches his rule on two occasions but with a discretion that on good reasons provided by the individual for the breaches then the individual can be forgiven.

So if the public authority makes a fatal decision against an individual solely on grounds that the individual breaches the said rule not on two occasions but on four different occasions and that the reasons provided on all the four occasions by the individual were not good reasons to be forgiven.

If the individual decides to judicially review the public authority on grounds of unlawfulness not to accept the good reasons and the Administrative Court was to make the following two findings that the individual:
(1) breaches the rule on two occasions and therefore the decision of the public authority was lawful on these two occasions.
(2) provided exceptional good reasons for the other two occasions and therefore the decision of the public authority was unlawful on these other two occasions.

My question is that given that the rule requires a fatal decision to be made without good reasons by the public authority will it be an error of law for the judge of the Administrative Court to affirm the fatal decision on the basis of (1) above notwithstanding his findings of unlawfulness against the public authority on the other two occasions as in (2) above?
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Re: JR - Can a judge disregard findings of unlawfulness?

Postby atticus » Fri Dec 23, 2016 7:09 am

I would take the advice of specialist counsel if instructed in such a case.
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Re: JR - Can a judge disregard findings of unlawfulness?

Postby dls » Fri Dec 23, 2016 5:13 pm

If they do make a fatal decision no doubt South's personal representatives would have to worry about this.
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Re: JR - Can a judge disregard findings of unlawfulness?

Postby blig » Fri Dec 23, 2016 8:38 pm

A rule ... gives a public authority the power to make a fatal decision against any individual ... who breaches his rule on two occasions

the Administrative Court .. make[s] the ... finding that the individual ... breaches the rule on two occasions


My question is ... will it be an error of law for the judge of the Administrative Court to affirm the fatal decision


I really can't see why it would be an error of law.
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Re: JR - Can a judge disregard findings of unlawfulness?

Postby Denning » Fri Dec 23, 2016 10:20 pm

blig wrote:
A rule ... gives a public authority the power to make a fatal decision against any individual ... who breaches his rule on two occasions

the Administrative Court .. make[s] the ... finding that the individual ... breaches the rule on two occasions


My question is ... will it be an error of law for the judge of the Administrative Court to affirm the fatal decision


I really can't see why it would be an error of law.

In law the content is key! If the way you presented it then the judge is correct but you removed the material facts upon which the fatal decision was predicated thus you creating a case of unfairness.

If Judicial Review has nothing to do with the resultant outcome but the legality, fairness or lawfulness of the decision making process then would it not be the correct thing for the judge to revert the decision to the public authority for the public authority if so advised for the basis of the decision to be retaken the right way. This time the public authority should make it plain that the decision was based on breaches on two occasions? The benefit on the individual includes that the individual would not pay for the fees of the public authority who insisted that they issued the fatal decision because the individual breached on four occasions and not on two occasion. Have you given consideration to the likelihood of the affected individual knowledge on a number of other individuals who have breached on two occasions but the rules were not used against them?
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Re: JR - Can a judge disregard findings of unlawfulness?

Postby dls » Fri Dec 23, 2016 10:44 pm

If Judicial Review has nothing to do with the resultant outcome but the legality, fairness or lawfulness of the decision making process then would it not be the correct thing for the judge to revert the decision to the public authority for the public authority if so advised for the basis of the decision to be retaken the right way.


That is what is asked for when applying for judicial review. If a review is successful, the decision is returned to the authority to do it again. That is what it is all for.
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Re: JR - Can a judge disregard findings of unlawfulness?

Postby Denning » Sat Dec 24, 2016 12:09 am

dls, the question is how do you define a successful review given that certainty, predictability and consistency are essential to the Rule of Law?
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Re: JR - Can a judge disregard findings of unlawfulness?

Postby dls » Sat Dec 24, 2016 6:29 am

You define a successful review by looking at the judgment - The judge says 'you win'.

It is all and only about the process used to reach the decision, not the decision itself. On some occasions that result will be much clearer in anticipation where the challenge is on the basis that this was a decision not properly reachable by a public body, but otherwise, it is exactly the judiciary recognising its constitutional position of not itself making administrative decisions.

Of course many decisions are made in circumstances where a specific remedy is given for error. Judicial review is a catch all for the rest.
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Re: JR - Can a judge disregard findings of unlawfulness?

Postby Denning » Sat Dec 24, 2016 4:50 pm

Are you saying the scenario I presented above that despite the finding of unlawfulness on the two occasions the judge should not send the decision back to the public authority for it to be retaken so that there would not be any unlawfulness in the final decision process?
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Re: JR - Can a judge disregard findings of unlawfulness?

Postby dls » Sat Dec 24, 2016 7:08 pm

Are you saying the scenario I presented above that despite the finding of unlawfulness on the two occasions the judge should not send the decision back to the public authority

No. I am saying the opposite, that if you ask for a judicial review and it succeeds, then the usual outcome is that the decision is vacated, and is sent back to the authority to do it again. That a decision may have been made incorrectly twice makes little difference. That is what a request for a judicial review is. It is essential to a review that the responsibility for the decision stays where it is.
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