I’m currently studying law and doing a lot of writing up of notes. So here’s a write up of my notes of Judicial Review.
“judicial review is the exercise of the court’s inherent power at common law to determine whether action is lawful or not, in a word to uphold the Rule of Law.”
Simon Brown J, R v HM the Queen in Council, ex parte Vijayatunga  QB 322.
Judicial Review (JR) is the mechanism for supervising and controlling the use of State power by public bodies, by way of the High Court. JR is not concerned with whether the decision being reviewed was right or wrong, but is instead concerned only with whether the decision was made correctly by the correct person. JR is not an appeals process and does not provide the courts with the power to substitute its own decision or judgement in place of the one being reviewed (doing so would be a breach of the doctrine of separation of powers and would be contrary the purpose JR). JR has widened in scope over the last century as a result of the increased size of Government and the increased volume of regulation/legislation.
Judicial Review (JR) is the mechanism for supervising and controlling the use of State power by public bodies, by way of the High Court. Public bodies include
- Local Authorities,
- inferior courts,
- quasi-autonomous non-governmental organisations (quangos), and
- parts of the Executive
Additionally private bodies which exercise a public function can be considered a public body and are subject to JR (see R v. Panel on Takeovers and Mergers, ex parte Datafin Plc  QB 815). JR has two purposes. These are;
- to protect individuals in their dealings with the state; and
- to enforce the separation of powers and the rule of law.
There are three grounds on which a decision by a public body may be challenged. These are;
- Illegality, meaning that the body failed to apply the relevant law to their decision, or acted ultra vires;
- Irrationality (and/or Proportionality), meaning that the decision was “manifestly absurd” or “obviously illogical”; and
- Procedural impropriety (and/or Unfairness), meaning that the wrong procedure was followed, or the procedure was followed incorrectly.
There are three remedies available for the court to grant. These are known as prerogative orders and they are;
- to strike out decision which was made;
- to restrain the body which made the decision from making the same decision again; and
- to force the public body to perform duties imposed on it by law.
Any may be granted in a single instance, or any combination could be granted together. When a decision has been struck out or quashed the body which made the decision is then required to reconsider it and to act in accordance with the relevant law. When the court seeks to prevent the decision from being made again in the future, or seeks to force the public body to perform its duties, it is issuing a court order. Failure to comply with a court order is the criminal offence of contempt of court. Where a case which touches on private law matters three private law remedies are also available, these are;
- declaration of illegality,
- injunctions and damages (see Cooper v. Wandsworth Board of Works (1863) 14 CB NS 180).
The Senior Courts Act 1981 (SCA) Section 31 along with the Civil Procedure Rules (CPR) Part 54 set out the specific procedure required to start the JR process by applying for a “public law remedy”. The procedure requires that the applicant has standing, has grounds for challenge and has already exhausted alternative remedies. The term standing is used to mean that the applicant must have ‘sufficient interest’ in the decision to be reviewed and is historically referred to as locus standi; “The right person must seek the right remedy in the right proceedings” (HWR Wade and CF Forsyth, Administrative Law, 8th edition, p. 287). After meeting the requirements for the procedure it is still possible for the application to be refused. Some of the reasons this may occur are:
- statutory exclusion of review,
- public interest in upholding the decision,
- or a delay in making the application.
As such even unlawful decisions, as defined by the grounds of challenge, may be upheld as a result of not being subject to JR. Unlike an ordinary civil claim under public law, JR procedure requires that the court gives permission for the case to proceed, known as ‘leave’, and imposes a duty of ‘full and frank disclosure’ on the applicant. Under this duty all relevant facts are provided at the outset in the form of statements, or ‘affidavits’; including relevant facts which are not in support of the application. Regardless of the merit of the application, a failure to comply with this duty may result in permission being set aside.
Grounds for challenge
Attorney-General v. Fulham Corporation, ex relatione Yapp  1 Ch 440
Ultra vires – Challenge against provision of laundry services not authorised by relevant statute resulting in an injunction against the council.
Anisminic Ltd v. Foreign Compensation Commission  2 AC 147
Error of law – FCC misinterpreted an Order and was judged to have made an error of law.
This case is also important for it’s logical refusal to honour ouster clauses.
R v. Secretary of State for the Home Department, ex parte Khawaja  AC 74
Jurisdictional error of fact – The courts must require the Home Secretary to prove that the applicants were indeed illegal entrants, and not merely that he reasonably believed them to be so.
Barnard v. National Dock Labour Board  2 QB 18
Unauthorised delegation – No implied entitlement to delegate powers.
H Lavender & Son Ltd v. Housing and Local Government  1 WLR 1231
Acting under the direction of another – Application for planning permission refused based on policy from a different department.
Belfast City Council v. Miss Behavin’ Ltd  UKHL 19
Breach of Human Rights Act (HRA) 1998 – Council did not have to consider human rights because they were not being breached.
British Oxygen Co. Ltd v. Minister of Technology  AC 610
Fettering of discretion – Allowed to formulate policy to guide decisions but the policy must reflect the statutory given to the body and in using the policy, the body must not refuse to listen to new arguments.
R v. ILEA, ex parte Westminster City Council  1 WLR 28
Improper or unauthorised purpose – The body must use the powers it was given for the correct purpose.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223
“it may be possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case I think the court can interfere”, Lord Greene.
Council of Civil Service Unions v. Minister for Civil Service  AC 374
“so outrageous in its defiance of logic or accepted moral standards that no sensible person who applied his mind to the question . . . could have arrived at it”, Lord Diplock
R (on the application of Daly) v. Secretary of State for the Home Department  2 AC 532
Disproportionate interference with human rights – Both Lord Steyn and Lord Hoffmann rely on the doctrine of proportionality as a principle of judicial review for cases where ECHR rights are infringed.
Coleen Properties Ltd v. Minister of Housing and Local Government  1 WLR 433
Not providing reasons for a decision will leave it open a challenge on the basis of irrationality.
Considerations which are irrelevant but are considered.
Considerations which are relevant but are ignored.
Generally irrationality is used if illegality is not provable.
Council of Civil Service Unions v. Minister for the Civil Service  AC 374
“Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue.”, Lord Fraser.
R v. Soneji  UKHL 49
Procedural ultra vires – strict non compliance with a procedure within statute may invalidate a decision, except where the outcome provides the result as was expected of the procedure by Parliament.
R v. Gough  AC 646
Bias Indirect – If a decision is made while there is a bias either consciously or unconsciously there are grounds for challenge.
Dimes v. Grand Junction Canal Co. (1852) 3 HLC 759
Direct Financial Advantage – Lord Chancellor disqualified from deciding a case involving a company in which he held shares.
R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2)  1 AC 119
Any close connection or potential direct advantage – Lord Hoffman was a member and chairman of Amnesty International which was involved in the proceedings.
Nemo index in sua causa – no man shall be a judge in his own cause.
R v. Civil Service Appeal Board, ex parte Cunningham  4 All ER 310
Duty to give reasons – decision quashed where without explanation it awarded an unusually low level of compensation for dismissal.
R v. Secretary of State for the Home Department, ex parte Doody  1 AC 531
Duty to give reasons – reasons are not always required, but are necessary when a decision may “appear wrong” in order to provide “an effective means of detecting the kind of error which would entitle the court to intervene”, Lord Mustill.
Ridge v. Baldwin  AC 40
Fairness – Rights and Benefits – Duty to act fairly. Decision-maker has no authority on rights of individuals.
Fairness – Audi alteram partem – failure to give a fair hearing.
Board of Education v. Rice  AC 179
Fairness – “[the decision-maker] must act in good faith and listen fairly to both sides, for that is a duty lying upon everyone who decides anything.”, Lord Loreburn. Although there is discretion which can be exercised (Fairmount Investments Ltd v. Secretary of State for the Environment  1 WLR 1255).
Lloyd v. McMahon  1 All ER 1118
Fairness – Type and Scope of Hearing – including character of the decision maker, kind of question and operating frameworks.
McInnes v. Onslow-Fane  3 All ER 211
Fairness – doctrine of legitimate expectation.
European Convention on Human Rights (ECHR)
Fairness – Article 6: Right to a fair trial.
There is much more to say on this subject, but that’s all of my notes for the time being.
Points not (fully) covered;
- Sufficient standing a.k.a locus standi
- Remedy of last resort
- Appropriate subject; The public/private law divide is blurring. The court will examine the functions the defendant performs and determine whether those functions have public law consequences.
- Timing; An application for JR must be made within three months from the date when grounds for the application first arose (CPR 54.5(1)).
- Appropriate Remedy; What will judicial review achieve? Can the outcome be achieved by other means?
- What type of order is required? The orders available include:
- a mandatory order requiring the public body to do something;
- a prohibiting order preventing the public body from doing something;
- a quashing order quashing the public body’s decision;
- a declaration; or
Please note that at the time of writing I am a student and am not a qualified lawyer; caveat emptor.
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