Judicial Review

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Bear in mind, however, that some of the cases, which are classified below under ‘illegality’, are referred to as ‘unreasonable’ or ‘Wednesbury unreasonable’ in parts of the relevant literature. There are several grounds for the courts to rule illegality or unreasonableness, as shown below. Lack of authority In its least problematic version the doctrine of ultra vires covers the ‘illegality’ of actions/decisions taken by public bodies that had no statutory authority to act/decide.
For example, in R v Richmond upon Thames City Council ex parte McCarthy and Stone Ltd [1992] AC 48 – It was illegal for the local planning authority to levy a fee of ? 25 for informal consultation between corporation officers and property developers: charges can be levied on the public only on the basis of statutory authority and making charges was not an ‘incidental’ aspect of the normal functions of the planning authority. Compatibility/proportionality
Any administrative interference with the rights enshrined in the Human Rights Act 1988 (HRA) must be compatible/proportional. Under s. 6 of the HRA, all public authorities are obliged to act/decide in a manner compatible with that Act, in other words either with full respect to the fundamental human rights it enshrines or by relying on legitimate reasons for interfering with such human rights (and only to the necessary degree). All public bodies, including courts and tribunals, are subject to the requirements of the HRA.
Within JR the legality or illegality of any administrative decision/action’s interference with human rights will be determined by employing the principle of proportionality – a principle of Continental European jurisprudence which is now considered part of English law, at least with regard to human rights cases. The principle of proportionality commands that power must be exercised only by means that are proportional to the objective that is being pursued.
Thus, in R v Chief Constable of Sussex ex parte International Trader’s Ferry Ltd [1999] 2 AC 418 The court assessed the proportionality of the decision of a Chief Constable to restrict the number of police officers present at a scene of confrontation between live animal exporters and animal rights activists: the number of police present had to be proportionate to the right of the exporters to export and of the demonstrators to engage in peaceful demonstration.
There is discussion as to whether the proportionality test constitutes a new heading of JR. In this regard, in R (on the application of Alconbury Developments Ltd and Others) v Secretary of State for the Environment, Transport and the Regions [2001] 2 All ER 929 Lord Slynn expressed the opinion that ‘proportionality’ should be seen as part of the heading of ‘irrationality’ The compatibility of JR proceedings with human rights was itself questioned in Kingsley v United Kingdom, Application No 35605/97 (2001) 33 EHRR 13.
The Strasbourg-based European Court of Human Rights (ECtHR) ruled that the JR proceedings, restricted as they are to examining the quality of a decision making process rather than the merits of a decision, cannot be said to fully satisfy the ‘right to a fair trial’. Error of law * If a public authority is to act within its powers (intra vires) it must conduct itself according to law. An ‘error of law’ takes place either when the authority misinterprets its legal powers Perilly v Tower Hamlets Borough Council [1973] QB 9) –
The local authority believed –erroneously- that it was obliged to consider applications for stall licenses in a street market in the order in which they were received. The effect of this was to deny a license to Perilly even though his mother, by then deceased had held a license for some 30 years. The license granted to an incoming applicant in preference to Perilly was set aside by the court. * Another instance would be when it comes to an unreasonable conclusion (see Coleen Properties Ltd v Minister of Housing [1971] 1 All ER 1049 and Secretary of State for Education v Tameside Council [1977] AC 1014). In addition, when Parliament entrusts an administrative body with powers to determine cases, it intends that body to reach a decision based on the ‘correct facts’. In this regard, courts of law are said not to be well suited to undertake fact-finding tasks but if an administrative body wrongly interprets the facts of a case, this may result in the court intervening to correct the error in fact (see Pulhofer v Hillingdon London Borough Council [1986] AC 484). * Overall, the distinction between errors of law and errors of fact is not always clear.
A major example of this was provided in the case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. There, the House of Lords decided that the error of fact committed by the public authority (the Foreign Compensation Commission) was of such magnitude as to be a jurisdictional error of law: the commission had deprived itself of the right to determine the claim because of its error in law. Not all such errors will have this effect. Or, to be more precise, a court will not always assume the link between errors of fact and errors in law as they did in Anisminic.
Failure to act A public authority may be under a statutory duty to take action and, depending on the specificity of that duty, may be held to be acting unlawfully if it fails to act. This is a difficult area of law in that some duties imposed are clear and precise and hence enforceable by the courts, whereas others may be of a general non-specific nature and thus the court cannot enforce them. Acting in bad faith In Cannock Chase District v Kelly [1978] 1 WLR 1, bad faith was defined as follows: …bad faith, or…lack of good faith, means dishonesty; not necessarily for a financial motive…It must not be treated as a synonym for an honest, though mistaken, taking into consideration of a factor which is in law irrelevant. ’ Using powers for the wrong purpose or inconsistently with the purposes of an Act In Attorney General v Fulham Corporation [1921] 1 Ch 440 The authority was entitled under statute to open non-profit washhouses for the public’s use, but, instead, it used its powers to open a commercial laundry. At times, however, an authority using its statutory powers in pursuit of the right purpose may be seen as lawfully taking other action which is incidental to its main task: Westminster Corporation v London and Northern Railway Company [1905] AC 426 – The corporation, which was entitled to build public conveniences, constructed a subway under the road and placed the conveniences there: the court agreed with the corporation that they did not exceed their powers by building the subway. * R v Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement Ltd [1995] 1 All ER 611 –
The Foreign Secretary had decided to grant financial aid of ? 234 million to the Malaysian government for the building of the Pergau dam, despite warnings from officials that the project was uneconomical and a waste of money. This decision was ultra vires because the Overseas Development and Cooperation Act 1980, under which the Secretary was claiming his powers, empowered him to authorise payments only ‘for the purpose or promoting the development or maintaining the economy of a country or territory outside the UK or the welfare of its people’.
A House of Commons Foreign Affairs Committee Inquiry found that the Secretary had decided to authorise the grant in a secret deal with the Malaysian government involving the sale of British arms to Malaysia, worth ? 1. 3 billion. Onerous conditions attached to a decision A public authority may not attach to its decision any conditions that are difficult or impossible to perform. Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958] 1 QB 554 The condition attached to the building permission that the developers must construct a road ancillary to the development at their own expense was ‘onerous’.
Abuse of discretion * The allegation of illegality may also take the form of the public authority abusing the discretion that it was given by statute. The limits of JR with regard to discretion are that, in some instances, a statute has conferred very broad discretionary powers on an administrative body. Generally, the broader the conferred discretion, the more difficult it will be to seek review of a discretionary action/decision. A number of categories of abuse of discretion fall under this heading: (I) Relevant and irrelevant considerations An authority may have acted beyond its powers (ultra vires) because, in deciding, it took irrelevant considerations into account or, conversely, it failed to take relevant considerations into account. For example, in – Roberts v Hopwood [1925] AC 578 The local authority was empowered by statute to pay its workers ‘as it thought fit’. Nevertheless, when the council decided to pay wages that were higher than the national average and to pay men and women equally, it was held to have been acting beyond its powers.
Its duty to ratepayers overrode its desire to improve the lot of its workers. * Similar considerations applied in Bromley London Borough Council v Greater London Council [1983] 1 AC 768 The Greater London Council (GLC), wishing to increase the number of passengers using public transport by decreasing fares, sought to pay for this by seeking a higher level of subsidy, the burden of which would fall on the ratepayers of London boroughs. The House of Lords held the GLC to be acting ultra vires. Wheeler v Leicester City Council [1985] AC 1054
Leicester City Council had suspended a local rugby club from using a local playing field because the club did not follow the advice of the council to cancel their tour of South Africa, which was then under the regime of apartheid. The House of Lords concluded that the council’s political policy, though morally justified, did not entitle the council to interfere with the club’s lawful activities. * Where, however, an irrelevant consideration does not affect the outcome of a decision, the court may hold that the authority acted within its powers (intra vires). R v Broadcasting Complaints Commission ex parte Owen [1985] QB 1153
The Broadcasting Authority – with the statutory responsibility of ensuring fairness in the allocation of broadcasting time for political parties at election time – refused to consider a complaint that a political party had been given too little broadcasting time. That decision was not challenged in the courts. However, while the Commission had some good reasons for not considering the complaint, it had also erred by giving weight to an irrelevant consideration, namely that the task would be burdensome. The court nevertheless held that the Commission was acting within its lawful discretion. (II) Unauthorised delegation
Where powers are conferred by statute, they may not be delegated unless that delegation is authorised by law. Not all delegations will be unlawful: for instance, the courts do not hold that a minister must exercise each and every power personally. Thus, where the statute gives powers to a minister, these powers are also deemed to be conferred on his/her department. (III) Fettering discretion An authority may act ultra vires if, in the exercise of its powers, it adopts a policy which effectively means that it is not truly exercising its discretion at all. R v Port of London Authority ex parte Kynoch [1919] 1 KB 176
It was held that an authority could not adopt a rigid policy which had the effect of ensuring that applications of a certain category would not be invariably refused. In Kynoch, the applicant sought judicial review of the decision of the Port of London Authority to refuse him permission to construct a wharf on the land he owned adjoining the Thames river. Permission was refused on the basis that the Authority itself had a duty to provide the facilities. The challenge to the Authority’s decision failed, on the basis that it appeared to court that the Authority had given genuine consideration to the application on its merits.
Irrationality This heading covers cases where an authority has acted, or reached a decision, in a manner ‘so unreasonable that no reasonable authority could ever have come to it’, or ‘a decision so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it’. The classic case is Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 22, but see also Padfield v Minister of Agriculture [1968] AC 997 and Secretary of State for Education v Tameside Council [1977] AC 1014. When a public body gives some reasons for its decisions/actions, the ‘irrationality’ test is very strict and the threshold of irrationality is very high. Hence, in R v Secretary of State for the Home Department ex parte Brind [1991] 1 All ER 720, it was not ‘irrational’ that the Home Secretary had ordered the BBC not to broadcast on radio or television the voices of any person speaking on behalf of a ‘proscribed organisation’, even if such persons could be interviewed and their words read out by actors.
In R v Ministry of Defence ex parte Smith [1996] 1 All ER 257, it was not ‘irrational’ (or otherwise illegal) that the armed forces excluded homosexuals from their ranks even if those persons’ sexuality had become known only through official investigations, and despite the judges in the case stating that the policy was out of step with the morality of modern British society and in violation of the European Convention on Human Rights (at the time the Human Rights Act 1998 did not yet exist).
The applicants then took their case to the European Court of Human Rights, which found that the ban on homosexuals in the British armed forces violated Article 8 of the European Convention on Human Rights (the right to have one’s private sexual life respected) (Smith and Grady v United Kingdom (2000) 29 EHRR 548). * Where a public body reaches a decision but does not supply the reasons for this decision, the court may infer from this that the decision was irrational (see also below: ‘The right to a fair hearing: the right to be given reasons’).
The narrow concept of ‘irrationality’ is often used interchangeably with the wider notion of ‘unreasonableness’ or ‘Wednesbury unreasonableness’. ‘Unreasonableness’, however, is a general notion and as such it runs like a thread through judicial review. A person may be ‘unreasonable’ in reaching an irrational decision, or unreasonable by failing to take into account relevant considerations, taking into account irrelevant considerations, wrongly interpreting facts or law or wrongfully delegating decision-making power. Unreasonableness’, therefore, can be seen as an ‘umbrella term’ under which may fall many other heads of judicial review, examined above under ‘illegality’. Procedural impropriety Under this heading we consider actions against administrative decisions or actions, which either failed to comply with procedures that are specified by law or were taken in an ‘unfair’ manner, according to the principles of ‘natural justice’ developed over time by the courts.
The second class of cases concerned with natural justice is particularly significant since in this part of JR the judges control the exercise of administration with reference not to the will of Parliament, but to principles of legal/political morality. In this area, it is argued by many, a balance needs to be struck between making public administrators act as fairly as any court of law, while respecting the pragmatic need for swift and efficient administration. (a) Under statute
A public body’s failure to comply with procedures laid down by the legislative instrument – by which its jurisdiction was conferred – may invalidate their decision or action. The courts distinguish between those procedural requirements which are ‘mandatory’, the breach of which will render a decision void, and those which are ‘directory’ which may not invalidate the decision taken. London and Clydesdale Estates Ltd v Aberdeen District Council [1979] 2 All ER 876
The House of Lords emphasised the inherent vagueness in the distinction and stressed that the court would not make a demarcation between them: it is all a matter of degree and the particular circumstances of the case must be examined. Natural justice The rules of ‘natural’ justice are common law rules – although their requirements may be made statutory. Two principal rules exist: the rule against bias and the right to a fair hearing. (I) The rule against bias This is known as nemo iudex in causa sua (Latin for: ‘no one should act as a judge in their own case’).
Put simply, this is a rule against both actual and potential bias by a public body against the affected party. Thus it is not necessary to show that actual bias existed, as the mere appearance or possibility of bias will suffice; public officials not only have to be just but must be seen to be just. The suspicion of bias, however, must be a reasonable one. Bias takes two forms: financial and ‘other’ bias. * Financial bias – whether it is actual or potential, will always disqualify a public official from exercising his or her functions.
Thus, in R v Sussex Justices ex parte McCarthy [1924] 1 KB 256, McCarthy successfully challenged his conviction for dangerous driving, in separate JR proceedings, by alleging that the clerk to the magistrates’ court that had convicted him was a solicitor to the person who was suing McCarthy for damages. The court accepted the argument about potential bias even though, as a matter of fact, the clerk in question could not have influenced the magistrates’ decision.
See also Dimes v Grand Junction Canal (1852) 3 HL Cas 759 and Metropolitan Properties Co Ltd v Lannon [1969] 1 QB 577. The alleged financial bias, however, has to go beyond the ordinary financial interest of any citizen: Thus, in Bromley London Borough Council v Greater London Council [1983] 1 AC 768, the fact that all the judges in the Court of Appeal were taxpayers and users of public transport did not disqualify them from hearing the case. Other biases may exist by virtue of race, sex, politics, social background, association and opinions.
The principle is that any public official making a decision or taking an action affecting others, like any judge adjudicating a dispute in a court of law, must consider all the facts and arguments impartially and come to a conclusion irrespective of his or her personal views about the parties that are affected. * Other bias – In order to decide an allegation of ‘other bias’ the court will ask itself whether, in the event, there was ‘a real danger’ that the public decision-making process may not have been fair as a result of bias. This is known as the ‘real likelihood test’ and it is found in R v Gough (1993) 2 All ER 727.
The ‘real likelihood test’ was slightly modified in view of the requirements of the HRA 1998 in Director General of Fair Trading v Proprietary Association of Great Britain [2000] EWCA Civ 350; [2000] Times LR 2 February, as follows: the court will first ascertain all the circumstances that had a bearing on the suggestion of bias; then it will ask whether those circumstances would lead a ‘fair-minded and informed observer to conclude that there was a real possibility, or real danger – the two being the same -that the decision was biased’.
Other important cases are – R v Bow Street Metropolitan and Stipendiary Magistrate and Others ex parte Pinochet Ugarte (No 2) [1999] 2 WLR 272 (the Pinochet case); Locabail (UK) Ltd v Bayfield Properties Ltd (Leave to Appeal) [2000] 1 All ER 65, CA; and Porter v Magill [2002] 2 AC 357. (II) The right to a fair hearing The Latin term here is audi alteram partem (Latin for: ‘listen to/consider the other’s point of view’).
It is a fundamental requirement of justice that, when a person’s interests are affected by a judicial or administrative decision, he or she should have an opportunity both to know and to understand any allegations/considerations made against him or her, and to make representations to the decision-maker to counter the allegations/considerations – Cooper v Wandsworth Board of Works [1893] 14 CB(NS) 180 Cooper had – without giving notice to the Board, as required by law – started to erect a house.
The Board had the power to demolish building built without the requisite permission, and had exercised their power to do so. Cooper applied for – and recovered – damages from the Board for trespass to his property. Byles J held that the plaintiff should have been given a hearing before the Board exercised their powers, even though there was no express statutory requirement to do so. There is a vast amount of case law in this area and, confusingly, the standards of ‘fair hearing’ are not generally applied in a consistent manner.
You are expected to understand the principles applied, as evidenced at least in the following major cases. More generally, you will need to know that: What is specifically required under the ‘right to a fair hearing’ depends on the facts of each case. Thus, the right may include: * The right to be given the reasons behind any adverse decision R v Secretary of State for the Home Department ex parte Al Fayed [1997] 1 All ER 228; R v Secretary of State for the Home Department ex parte Doody [1993] 3 WLR 154 R v Trade Secretary ex parte Lonrho plc [1989] 2 All ER 609.
In sum, although there is no general duty to provide reasons under common law, the courts assign great importance to the giving of reasons and may infer from their absence that the decision in question had no rational reasons behind it. The reasons need not be given in detail, however: Selvanathan v General Medical Council [2001] Lloyd’s Rep Med 1. * The right to be given notification of a hearing Hardie v City of Edinburgh Council 2000 SLT 130; Ostreicher v Secretary of State for the Environment [1978] 1 WLR 810; Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876. The right to be given indications of adverse evidence R v Board of Visitors of Hull Prison ex parte St Germain (No 2) [1979] 1 WLR 1401 * The right to have hearsay evidence excluded R v Board of Visitors of Hull Prison ex parte St Germain (No 2) [1979] 1 WLR 1401 * The right to be given an opportunity to respond to the evidence: R (on the application of Gupta) v General Medical Council [2001] EWHC Admin 631. * The right to an oral hearing Ridge v Baldwin [1964] AC 40; Lloyd v McMahon [1987] AC 625. In sum, an entitlement to make representations does not necessarily entail a right to an oral hearing.
It may well be the case that the opportunity to make written submissions will satisfy the requirements of justice and fairness. * ? The right to question witnesses see Errington v Wilson 1995 SLT 1193; R v Commissioner for Racial Equality ex parte Cottrell and Rothon [1980] 3 All ER 265; and R v Board of Visitors of Hull Prison, ex parte St Germain (No 2) [1979] 1 WLR 1401; in sum, where there is to be an oral hearing, it should not necessarily be conducted according to the strict rules, which would apply in a court of law.
Accordingly, it should not be assumed that a party would be entitled to cross-examine ‘the other side’. * The right to legal representation at a hearing: see, inter alia, R v Board of Visitors of HM prison The Maze ex parte Hone [1988] 1 AC 379 and Pett v Greyhound Racing Association Ltd (No 2) [1970] 1 QB 46. In sum, whether or not legal representation is available as of right will partly depend upon the nature of the hearing and the nature of the ‘rights’ affected. The following are the most important factors that the courts consider before deciding the content of the ‘right to a fair hearing’ in particular cases: The judiciary, in imposing standards of fairness on administrative bodies, is concerned not to entirely deprive such bodies of ‘flexibility’ and ‘efficiency’. A balance between efficiency and fairness is hard to come by, however. One solution is to divide public bodies into judicial or quasi-judicial bodies (i. e. ‘bodies resembling a court of law’ and bodies that are ‘purely administrative’ – see Nakkuda Ali v Jayaratne [1951] AC 66). In essence, the more the public body in question resembles a court of law, the more the above listed elements of fairness should exist in its proceedings.
This, however, is an old distinction, which, for a time, seemed oblique. Thus, in the aftermath of Ridge v Baldwin [1964] AC 40, the judiciary would insist on procedural fairness irrespectively of the type of public body determininga question. However, the distinction has been partly revived in the aftermath of McInnes v Onslow Fane [1978] 1 WLR 1520 where it was said that, for a public body to have to act fairly, in a strict sense, it has to be at least quasi-judicial. There is no general common law ‘duty to act fairly’, other than when a statute so provides. The courts, however, have been creating a series of exceptions, ensuring that a duty can be inferred from previous behaviour of the public body in certain circumstances. In these circumstances, it is said that the person seeking JR had a legitimate expectation that their case would be treated according to certain standards of procedural fairness. Specifically, a duty to act fairly may exist when: An individual or a group had been led to believe that a certain procedure would apply: see, for example, R (on the application of B) v Newham LBC [2001]EWHC Admin 677; R v North and East Devon Health Authority ex parte Coughlan [1999] LGR 703; Attorney General for Hong Kong v Ng Yuen Shiu [1983] 2 AC 629. * An individual or group relies upon a policy, or guidelines, which have previously governed an area of administrative action: see Council for the Civil Service Unions v Minister of State for the Civil Service [1985] AC 374 (the GCHQ case); R v Secretary of State for the Home Department ex parte Asif Mahmood Khan [1984] 1 WLR 1337.
But the policy or guidelines in question have to be ‘unambiguous and clear’ for the ‘legitimate expectation’ to arise – see R v Secretary of State for the Home Department and Another ex parte Hargreaves and Others [1997] 1 WLR 906; [1997] 1 All ER 397. When JR is concerned with the legality of administrative actions in a narrow sense – In other words when the court checks whether Parliament’s explicit will, as found in the words of statute, is respected by the administration’s actions/decisions, JR fits easily within the doctrine of parliamentary sovereignty.
When, however, JR controls administrative action with reference to the principles of ‘natural justice’, which are of judicial provenance, then the court is asserting a right to implement principles of political/legal morality. Legal theorists are not in agreement as to whether a court is constitutionally entitled to exercise such a moral function. (For a discussion of the opposite views on this see Cotterrell, R. ‘Judicial review and legal theory’ in Richardson, G. and Genn, H. (eds) Administrative law & government in action. (Oxford: Clarendon Press, 1994) [ISBN 978-0198762775]. ) What are the available remedies?
The granting of remedies occurs at the discretion of the court even if the applicant manages to establish his or her case. The court may refuse to grant a remedy if the commencement of proceedings was delayed, or if the applicant has acted unreasonably, or if the granting of a remedy would damage the public interest in efficient administration. The court may grant one or more of the following remedies or ‘orders’: (i) Quashing orders (formerly known as certiorari) An order of certiorari is a public law remedy, which quashes an original decision by a public body or nullifies an action by a public body.
It is both negative and retrospective in nature. This remedy overlaps with that of prohibition (below). No quashing order can be made against decisions by the higher courts. For an example see O’Reilly v Mackman [1983] 2 AC 237. It is an important remedy whereby: Whenever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs. R v Electricity Commissioners ex parte London Electricity Joint Committee Company (1920) Ltd [1924] 1 KB 194, per Lord Atkin) Prohibiting orders (formerly known as prohibition) Prohibition is a public law remedy that prevents a body from making a decision or taking an action that would be capable of being quashed/destroyed by certiorari. It is thus negative and prospective in nature. Prohibiting orders cannot be made against decisions of the higher courts. Mandatory orders (formerly known as mandamus) This order compels an authority to act.
See Padfield v Ministry of Agriculture [1968] AC 997 and Secretary of State for Education v Tameside Metropolitan Borough [1977] AC 1014. However, an order of mandamus cannot lie against an authority which has complete discretion to act. Declarations Declarations are private law remedies that are available in JR proceedings. They are statements of the legal position of the parties and, therefore, a declaration is not strictly speaking a ‘remedy’. See Airedale NHS Trust v Bland [1993] AC 789. Injunctions
Injunctions are private law remedies that are available in JR proceedings. They are orders that prevent an administrative body, including a minister, from acting unlawfully. They can be interim (temporary) or permanent. For an example of an injunction against a minister, see M v Home Office [1993] 3 WLR 433. Damages A JR applicant may be awarded damages in combination with one of the other remedies. Damages will only be awarded if they would have been recoverable had the applicant been the successful party in a private law action.

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