Administrative Law: An Introduction to

Administrative Law
1 What is Administrative Law?
Topics will be covered in the following order in this lecture course:

• The constitutional foundations and legitimacy of judicial review

• Jurisdiction
• Collateral challenge and nullity
• Bias and procedural fairness
• Legitimate expectations
• Retention of discretion: dictation, delegation, over-rigid policies, fettering by contract
• Abuse of discretion I: irrelevant considerations, improper purposes
• Abuse of discretion II: unreasonableness and disproportionality
• The scope of the public law principles
• Remedies I: restrictions, including permission, exhaustion, time limits, standing and
ouster
• Remedies II: remedies available in judicial review proceedings

Public Law = Administrative Law + Constitutional Law (+ Criminal Law, on some views)

• Constitutional law is about the structure and operation of the 3 branches of government, to
which is always added human rights and civil liberties.
• What is unique about administrative law is that it concerns the exercise of discretion.

1.1 Administrative Law

• Can be used as a broad term to describe the whole range of methods by which the
process of governance is subjected to legal regulation and control; this would include,
for example, ombudsmen, tribunals, and inquiries – and indeed JR.
o All governmental power (excluding parliament) is subject to legal control. The
primary purpose of administrative law then, is to keep this power in check
protecting citizens against it’s abuse. (‘Abuse’ doesn’t imply maliciousness – often
decisions and actions performed in good faith can be beyond the prescribed legal
boundaries. The law in this area is often complex and uncertain.)
o As well as power there is duty – administrative law also sees that public authorities
can be made to carry out there duty, if this is able to remedy the situation of an
aggrieved person.
• Can also be used to describe the broad set of underlying principles that govern the
exercise of governmental power by state bodies.
o This is a narrower definition, distinguishing the law regarding the manner of
governance from the much wider body of law concerning its structure. Under this
definition, law concerning the process of by-elections or the process of rejecting a
planning application are not part of the body of administrative law. Instead, the
principles that underlie those processes are.
o This definition isn’t perfect though – sometimes the structure of governmental
processes can be very relevant to whether the process of governance is meeting it’s
 aims and goals with regard to the citizen. The machinery of statutory inquiries and
special tribunals is often key when it comes to whether appropriate justice is being
dispensed.

Characteristics of administrative law:

• Ordinary courts, and not special administrative courts, decide cases involving the validity of
governmental action. This is the Anglo-American system.
o Pros
§ Citizens can turn to courts they know and trust
§ Highly efficient remedies available
§ No demarcation issues between areas of the law
§ Government perceived to be governed by and operate under the same law
as everybody else – inspires confidence in the provision of effective
administrative justice.
o Cons
§ Judges may not have specialist knowledge
§ The key underlying principles of administrative law may be lost under the
mass of miscellaneous legal considerations ordinary courts are accustomed
to administering.

The Continental system used in France and elsewhere utilises discrete administrative courts, able
to develop the law along their own lines, free from the ‘constraints’ of ordinary private law and legal
machinery. But remedies can be narrow in scope and not always effective, plus the public may not
have he same level of confidence in the justice administered through courts they may view as less
independent and trustworthy.

• How far can public law now be seen as a distinct branch of law, separate from private law?

The Anglo-American system provides that ordinary courts, and not special administrative courts
decide cases involving the validity of administrative action – alongside disputes involving private
bodies. In that sense the overarching legal framework and mechanism is the same – useful for
inspiring confidence and suggesting true independence.

But as to whether public law can be seen as a distinct branch, we must recognise the special
position of government. Public bodies are monopoly providers, with no competition, no possibility
of exit short of emigration and particularly no choice on behalf of consumers/citizens. This
inherently places public bodies in a powerful position liable to abuse. It’s clear therefore that
although legal regulation is necessary in both spheres, it needs to take a different form in the public
context. (P.43 privatisation, and therefore increased contractualisation of government.)

Much of what government does can be – and is – regulated by ordinary private law. When
public bodies enter into contracts, and carry out tortious behaviour for example, they are governed
in exactly the same way as a private body. But sometimes their unique position enables them they
make decisions and commit acts that can’t be meaningfully regulated under the same body of law.
The body of law that regulates these powers is public law (first definition above).

1.2 Judicial Review

Judicial Review is just one of those methods of regulation falling under that first definition of
Administrative Law. It is a procedure where the independent judiciary review the action or inaction
of a body exercising public or governmental power.

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In assessing whether judicial review will lie in any particular case, it is necessary to ask whether
three conditions have been complied with:

1. Does the applicant [the public law word for claimant] have a substantive ground of review
(illegality, procedural impropriety, irrationality, proportionality, breach of human rights, etc.)?
2. Are they challenging an exercise of public power by a public body (the respondent)? If not,
the case cannot be brought via judicial review. But what is a public body? Does it have to
be statutory?
3. Have they complied with the relevant procedural requirements (does the applicant have
locus standi? Are they bringing their case within the short time limit? Are they using the
right procedural route?)?

2 Judicial review: some initial perspectives

Much of this course will be concerned with the details of the law of judicial review. However, before
we consider that, we need to consider some preliminary questions.

2.1 Development of JR
2.1.1 The prerogative remedies
Prerogative remedies were originally used by the crown and the royal courts in order to prevent
hierarchically inferior courts and tribunals from getting involved in disputes that it was thought
should be handled elsewhere – namely further up the food chain. Their key purpose therefore was
demarcating different jurisdictional areas.

o Certoriari – quashing of a lower decision which was extra-jurisdictional or patently

contrary to the law.
o Prohibition – prevents lower court(s) from deciding on an issue deemed outside of
their jurisdiction.
o Mandamus – a command to a lower court or tribunal to carry out their legal duty if
they were in default.
o Habeus corpus (only one still called this) – order to release an unlawfully detained
individual.

They were called prerogative remedies because they were issued under the royal prerogative (there
being no strict legal basis for their use), by the crown or royal courts.

Where a prerogative remedy is utilised (as they still are, under different nomenclatural guises), the
crown remains the nominal plaintiff in the action, as in the past. This makes them particularly useful
where no recognisable individual is injured by the administrative illegality enough to bring their own
action. (e.g. failure by a public cinema license authority have an appropriate test in place for
identifying obscene films).

Prerogative powers are the common law powers of the crown. The common law allowed the
prerogative writs too.

Unlike the crown, subjects have no right to apply for judicial review. Applicants must go to the
court and ask for permission to apply for judicial review.

There were issues with the prerogative writs as a means of keeping the government under control.
They had various deficiencies – primarily procedural ones. If you applied for a prerogative remedy,
you won’t be entitled to ‘disclosure’. In ordinary private law litigation, you need to disclose all
information – it is litigation with ‘all the cards face up on the table’. This was another issue in regard
to the lack of interim relief, as was the lack of cross-examination. In practice, this meant that in an

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action for certiorari, the government said A, while the individual said B, the former would be
accepted.

Anisminic, Ridge v Baldwin, Padfield – they all form the basis of Administrative Law, but they were
all private law disputes – there was a feeling around the 60’s that if you had a public law dispute,
you had a choice between a prerogative remedy, or simply sue the defendant in private law
proceedings. All of the above chose the latter – seeking declarations or injunctions.

2.1.2 The Application for JR

For a long time, the remedies available in Administrative law belonged to three distinct families:

• Private law remedies à damages, injunction, declaration etc.

• Prerogative remedies à certiorari, prohibition, mandamus.
• Statutory remedies à used in special situations to exclude/extend other remedies such as
in the HRA 1998.
This – although W+F suggests it ‘caused little difficulty in practice’ – was clearly a target for reform.
There needed to be one single procedure by which citizens aggrieved by administrative action or
inaction could seek a single procedure which would allow for remedies of both families to become
interchangeable. In 1977 the LC put together a proposal for a review procedure free of exclusive
remedies, which were implemented by the Rule Committee of the Supreme Court- which was the
creation of the ‘application for judicial review’. Many of the reforms were then incorporated into
the Senior Courts Act 1981. (Order 53).

The application for judicial review is a particular procedure whereby the lawfulness of the exercise
of discretionary powers is tested. But the key point is that the new, all singing and all dancing
procedure lacked all of the flaws of prerogative remedies. (The only flaw it has inherited is the short
time limit between a decision being made and JR being instigated).

The intention is that it is a non-exclusive remedy – you could still sue privately if you wished. Then
came O’Reilly v Mackman.

2.2 What is judicial review?

We will refine our definition, and understanding, of judicial review as the course progresses. But
what amounts to a workable first approximation?

• Review by whom?
Review is carried out by independent courts and judges.

• Review of whom?
It’s review of bodies exercising public, or governmental power. Where the demarcation between
this kind of power and other actions lies is a fundamental issue.

• Review on what grounds?

Some examples may help to illustrate what judicial review is about. Consider (briefly for now—we
will return to these cases later in the course) the following:

• R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213
C tetraplegic, moved to a new home on the basis of a promise of a ‘home for life’. But the new
home was closed due to a lack of resources. As we know, she had an enforceable substantive
legitimate expectation, and the home was kept open.

The case illustrates some of the key functions of administrative law. Conscionable dealing between
the state and the individual, but also the treading of a line between interests of the individual and
the [official perception of] the public interest.

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 • Ahmed v HM Treasury (No 1) [2010] UKSC 2, [2010] 2 WLR 378
UN Resolution required states to freeze assets of those involved in terrorism. This lead to
Parliament passing an Act authorising Orders in Council (executive leg) ‘when necessary or
expedient’ for giving effect to UN Security Council directions. The gvt. made two orders. The first
allowed the freezing of assets of anyone reasonably expected of being involved in terrorism
(different to the wording of the resolution). The second authorised the freezing of assets of those
on UN suspect lists. The case arose not on the legality of being put on that list, but on the creation
of the executive legislation that gave the government that power under the UN act. The claimants
argued that claimed they had exceeded the power that that act conferred on them. It was also held
that the section 1(1) of the UN Act (which authorised the orders in council) should be construed
narrowly and that there had therefore been a breach of the conferred power.

Questions of the lawfulness of administrative action operated side by side with constitutional
issues.

• R (Smith) v Parole Board [2005] UKHL 1, [2005] 1 WLR 350

Convicts recalled to prisons based on breach of license conditions. Procedure did not allow for an
oral hearing. It was held that this was a breach of the right to a fair hearing.

This is significant – it was on a micro-level an example of judicial insistence on the administrative

principle of natural justice/procedural fairness. But the consequences rippled out far further than
those involved in the case. The machinery of the parole board had to change – at huge expense –
almost overnight.

These cases illustrate that:

• Public law plays an important counter-majoritarian role – protecting the interests of

individuals.
• Constitutional and Administrative law form part of a wider notion of public law – serving a
similar overarching function.
• Admin is a delicate line drawing exercise:
o Individual interests v. public interests
o Administrative autonomy v. judicial control
o Legality v. merits
o Political will v. judicial protection of the rule of law

2.3 Why is judicial review necessary?

There several ways of approaching this question, all of which are important and interrelated:

• Special position of the government: ‘public’ and ‘private’ law

Private bodies and individuals have interests of their own. There are choices of providers, market
forces operating in order to limit abuse of price, and help lead to quality. There is also a possibility
of exit out of relationships with private parties, and a widely accepted legitimacy of self-interested
behaviour within any capitalist society.

These statements aren’t true when it comes to public providers. They have a monopoly, and there
is (short of emigration) no route of escape from relationships. The law needs to ensure – indeed it is
the only vehicle that there is to ensure – that the power this position facilitates isn’t abused.

It’s very obvious that legal regulation is necessary in both – but it needs to take a particular
form in the public sphere.

• Eccentric implementation of the separation of powers doctrine in the UK

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Paradoxically, our unusual constitutional architecture only allows the judicial review of the
executive – parliament is sovereign. But the relationship of the legislature and executive make that
judicial function all the more important.

• Need to uphold standards of good governance: ‘Public law is not at base about rights, even
though abuses of power may and often do invade private rights; it is about wrongs—that is
to say misuses of public power’ (R v Somerset County Council and ARC Southern Limited
[1998] Env L.R. 111 at 121, per Sedley J)
Public Law is not at base about rights – at base it is about wrongs. Public Law is less about
individuals and more about ensuring that everybody plays to the game.

• Importance of safeguarding the rule of law and individual rights

The latter point is worth unpacking further.

First, note the principle of legality. In R v Secretary of State for the Home Department, ex parte
Pierson [1998] AC 539 at 573-5, Lord Browne-Wilkinson said:

It is well established that Parliament does not legislate in a vacuum: statutes are drafted on
the basis that the ordinary rules and principles of the common law will apply to the express
statutory provisions … A power conferred by Parliament in general terms is not to be taken
to authorise the doing of acts by the donee of the power which adversely affect the legal
rights of the citizen or the basic principles on which the law of the United Kingdom is
based unless the statute conferring the power makes it clear that such was the intention of
Parliament.

This view was strongly endorsed and applied by the Supreme Court in Ahmed (No 1) (above).

Secondly, notwithstanding Sedley J’s comments above, judicial review has become an
increasingly important vehicle for upholding individuals’ fundamental rights, both at common law
(see, eg, R v Lord Chancellor, ex parte Witham [1998] QB 575) and, at least for the time being,
under the Human Rights Act 1998.

The enabling legislation conferred a power to make orders setting court fees. The executive then
made an order to increase fees – which everybody, even the poor, had to pay. The court said that
there is a common law right of access to the courts, and only such orders as were compatible with
that right could be lawfully made. The act limited the discretion. Witham, then, upholds the
principle of legality by stopping Gvt. from exceeding its powers. But the courts also recognised the
wider, substantive conception of the rule of law. Legaltiy and substantive rule of law values
operate in tandem.

Osborn v Parole Board [2013] On similar facts to Smith, it concerned the legality of decisions taken
without oral hearings. The case was argued primarily under Art. 5(4) of the ECHR. But Lord Reid
said that human rights is not a distinct area of the law, but ‘permeates our legal system’. He said
that the HRA does not ‘supersede’ common law rights. He decided the case on the position at
common law.

This is a hugely relevant insinuation – this means that should the HRA be repealed (which could
very much happen, it seems), we shouldn’t disregard some of the core values which have
stemmed from it and ‘permeated’ our legal system, mutating into common law constitutional
rights. Administrative law will not change too much.

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2.4 How much judicial review?
Few people would argue that there should be no judicial review. But there is sharp disagreement
about the desirable extent—in several senses—of judicial review. In this context, the following
questions arise:

• How should the role of judicial review be conceived?

This is where the ‘red light/green light’ question comes in. What is JR for?

• What should be the reach, or scope, of judicial review?

What sorts of power? What sorts of decisions?

• What should be the depth, or intensity, of judicial review?

Should courts defer to government decisions on the simple basis that because it is the
government, it has a democratic mandate? (Deference) How do or should we strike a balance?
Legality and merits distinction (appeal v review) is also key here.

• How should judicial review relate to other administrative justice mechanisms?

JR isn’t the only mechanism of scrutiny – ombudsmen, tribunals, parliamentary inquiries etc. also
play a role. How do you balance it all out?

We need to consider each of these questions in turn. Disagreement on these points reflects more
fundamental disagreement about the role of courts and judges, and about the balance between
what we will call the notions of ‘legal constitutionalism’ and ‘political constitutionalism’.

3 The role of judicial review: red lights and green lights

What is judicial review for? The beginnings of an answer to this question can be discerned from the
factors considered above. But to say that judicial review is necessary because there must be a
counterweight to the executive in order that the rule of law may be upheld leaves a number of
questions unanswered. One way of examining these issues is through the divergent perspectives
offered by so-called red-light and green-light theory, on which see generally Harlow and Rawlings,
Law and Administration (Cambridge 2009), ch 1.

Harlow and Rawlings say that Wade and Forsyth are red light theorists, relying on the following
passage from Administrative Law (Oxford 2009) at 4-5 (albeit that other parts of Administrative Law
arguably evidence a subtler view on the part of the authors):

‘The primary purpose of administrative law, therefore, is to keep the powers of the
government within their legal bounds, so as to protect the citizen against their abuse. The
powerful engines of authority must be prevented from running amok. ‘Abuse’, it should be
made clear, carries no necessary innuendo of malice or bad faith. Government
departments may misunderstand their legal position as easily as may other people, and the
law which they have to administer is frequently complex and uncertain. Abuse is therefore
inevitable, and it is all the more necessary that the law should provide means to check it.’

It’s borne out of a suspicion of administrative power/concern about the risk of abuse. The result of
this is a perceived need for control. The theory puts its faith in the judiciary in the courts, and
places them as combatants. Elliott suggests it sees Public Law as ‘the stick, rather than a carrot’.

The red light model preferred by Wade and Forsyth, has two primary characteristics. It is the courts
that are centrally charged with securing good administration, and there is an emphasis on
administrative law essay control upon government. Administrative law is there to retrospectively
and combatively right administrative wrongs. It’s serves a corrective function – it is to be invoked

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after power has been abused. Administrative law is an external, combative and retrospective limit
on abuse of power.

This school of thought is to be contrasted with the views expounded by green light theorists.
Harlow and Rawlings, Law and Administration (London 1997) at 67 describe the emergence of

[n]ew accounts of administrative law… [which] were administration centred — the role of
administrative law was not to act as a counterweight to the interventionist state but to
facilitate legitimate government action — and collectivist in character, advancing the claim
to promote the public interest or common good ...

Administrative law is under this view a facilitator of good administration. It provides a template of
good practice – not a stick with which to beat the government. Underlying this is a political
dispute. GL theorists support collectivism as opposed to individualism. State intervention is on this
view a force for good, and by extension individual rights are perceived as an obstacle to the
collective interests.

The green light approach downplays the role of the judiciary as an agency which exerts external
control over administrative bodies, and instead prefers to place greater trust in the political
process. It proposes the should be done not only through the somewhat fragile doctrine of
ministerial accountability, but also by means of more robust techniques of internal administrative
regulation. The approach therefore changes the purpose of administrative law itself - it shifts
it from being external restriction upon state power largely concerned with writing wrongs and
instead to sees it as a framework which facilitates good governments by providing a template of
good practice and practical mechanisms which permits the administration to regulate itself.
Administrative law is an internal, preventative and prospective limit on abuse of power.

One of the leading green light theorists was Griffith: see, in particular, ‘The Political Constitution’
(1979) 42 MLR 1. For a more recent perspective which is sceptical about according an extensive
role to judges, see Tomkins, Our Republican Constitution (Oxford, Hart 2005).

Nobody is suggesting that our system sits on either end of the spectrum – proponents of both
views recognise that in reality, our Administrative law sits somewhere in between – an ‘amber light
reality’.

The wider debate here is one between legal and political accountability. To what extent should we
rely on courts? To what extent should we rely on other mechanisms of control? What kind of
accountability can courts provide? What other kinds of accountability are needed?

4 The scope of judicial review

Our attitude to the sort of matters already considered necessarily influences our view of other
issues. For instance, how extensive should judicial review be? This question can be understood in
at least two relevant senses.

4.1 What sort of powers should be open to judicial review?

The general principle is that it is public bodies that are reviewable. Refined in Datafin to mean
those bodies exercising a ‘public law function’. This is uncontentious in most cases –
governmental bodies are very clearly public, and there is precedent for most other bodies that
might otherwise fall on the periphery. But there is very little in the way of positive guidance – so
when new bodies on the margins are submitted to review applications, we must look at the bevy of
borderline cases to determine the outcome. On the periphery, the meaning of ‘public body’ is far
from clear-cut.

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Includes statutory powers (Pepper), prerogative powers (GCHQ) and de facto powers (Datafin).

This issue will be considered later in the course in more detail. For now, consider the following
types of power:

• Statutory power
o R v Bolsover District Council, ex parte Pepper [2001] BLGR 43;
The local authority refused to sell land to the claimant – but the court held that what had taken
place was a commercial/contractual decision, and therefore a private law matter. It was suggested
that it might have been different if some public law issue (eg failure to follow statutory procedure)
had arisen.

o Bailey, ‘Judicial Review of Contracting Decisions’ [2007] PL 444

Bailey suggests that this is a wrong turning. He suggests that it is improper/unnecessary to search
for particular ‘public law element’ in contractual cases. If statutory power is being exercised,
decision should be reviewable as long as public law ground of challenge is raised. Recently
endorsed in R (A) v Chief Constable of B [2012] EWHC 2141 (Admin).

• Prerogative power
o Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (‘the
GCHQ case’);
C challenged ministerial decision, taken under prerogative power, to ban workers at the
government’s communication headquarters from being members of trade unions in the interests of
national security. It was argued by the applicants that previous important changes to employment
conditions had been preceded by consultation, and that there was therefore a legitimate
expectation that had been breached by the minister’s decision. The significance of GCHQ lies in
the fact that the law lords were willing to judicially review the exercise of prerogative powers, on
the same grounds as the exercise of statutory powers.
Lord Diplock famously said that the courts will intervene in the face of illegality, irrationality and
procedural impropriety.
The question that the case left unresolved was that what if the Order in council itself had been
challenged? Would that have been reviewable?

o R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008]

UKHL 61, [2009] 1 AC 453
Chagos islands case. The crown argued that an order in council is the equivalent of an Act of
Parliament – they said that they were both forms of primary legislation. The HRA backs up this
argument – suggesting that they are effective equivalents *s.21(1). The HOL held, however, that the
characterisation of OIC as primary legislation was not determinative of reviewability – Acts are only
unreviewable because of our constitutional fundamental of sovereignty. The crown in Council, as
distinct from the Crown in Parliament, lacks that status.

• ‘De facto’ power

o R v Panel on Takeovers and Mergers, ex parte Datafin plc [1987] QB 815; R v
Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 1 WLR 909;
Harris, ‘The “third source” of authority for Government action revisited’ (2007) 123
LQR 225)
Concerned a ‘Takeover Panel’ with immense de facto powers over the takeovers and mergers of
businesses in the City of London. The question was whether this body’s actions could be judicially
reviewable – were they a public body. Held, it was exercising a ‘public law [governmental] function’
so it’s actions could be subject to judicial review. (The case also excludes JR of cases based on
contract).

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Courts have settled on the view that judicial review is for controlling the use of governmental
power. The test for whether a de facto power is reviewable, therefore, is whether the decision
maker is performing a public function that is governmental in nature. The courts have tended
to apply this test in practice by asking whether, if the body was not performing the function, the
government would have to step in and perform it itself.

It now seems then, that the less ‘governmental’ the function of a body becomes, the lower the
possibility of judicial review. So a non-governmental body performing a governmental function is
reviewable (Datafin), where a non-governmental body performing a non-governmental function
could not be reviewable (Aga Khan).

4.2 What sort of decisions should be open to judicial review?

The court uses three increasingly granular tools by which to determine whether, and if so to what
extent review of a decision should be available.

Here, we encounter the concept of justiciability, on which see generally Harris, ‘Judicial Review,
Justiciability and the Prerogative of Mercy’ [2003] CLJ 631. We should contrast two potential
modes of analysis:

• Primary justiciability This analysis was advocated by Lord Roskill in the GCHQ case. He
said (at 418):

‘Prerogative powers such as those relating to the making of treaties, the defence of the
realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the
appointment of ministers as well as others are not, I think susceptible to judicial review
because their nature and subject matter are such as not to be amenable to the judicial
process. The courts are not the place wherein to determine whether a treaty should be
concluded or the armed forces disposed in a particular manner or Parliament dissolved on
one date rather than another.’

The question here is can exercises of this power ever be reviewed? There is an issue here though –
can it ever be confidently said that no exercise of a given power will ever give rise to issues
suitable for adjudiacation?

•Secondary justiciability Thinking has moved on since Lord Roskill said this. The better
view is now based on the concept of secondary justiciability. See, eg, R v Secretary of State
for the Home Department, ex parte Bentley [1994] QB 349; Lewis v Attorney General of
Jamaica [2001] 2 AC 50.
Can this exercise of power be reviewed on this ground?

Properly understood, the concept of secondary justiciability is a close relative of deference, in the
sense that the same set of factors may, depending on the circumstances, either support the view
that a given decision should not be reviewed on a given ground at all (justiciability) or that it should
be subjected only to light-touch review (deference). We return to this point—including by
considering what those factors might be—below.

Deference is the last question the court must consider when deciding on whether a decision
should be open to judicial review – and furthermore, how intense that review should be. Deference
is therefore relevant (if ever) when looking at the substance of the decision.

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5 The intensity of judicial review: ‘legality’ v ‘merits’
5.1 The basic idea
In R v Somerset County Council, ex parte Fewings [1995] 1 All ER 513 at 515, Laws J said:

... [I]n most cases, the judicial review court is not concerned with the merits of the decision
under review. The court does not ask itself the question, ‘Is this decision right or wrong?’
Far less does the judge ask himself whether he himself would have arrived at the decision
in question ... [T]he task of the court, and the judgment at which it arrives, have nothing to
do with the question, ‘Which view is the better one?’

On appeal, the question is ‘right or wrong’. On review, the question is ‘lawful or unlawful’.
(Wade)

W&F: The two systems are really very different.

o Appeal à a court considers the merits of a decision, is it right or wrong? (Wrong

decisions are substituted for what the court considers to be right).
o Review à a court considers the legality of a decision, is it lawful or unlawful?
(Unlawful decisions are simply struck down.)

The difference between deciding on merits and deciding on legality is not as clear as it may initially
seem however. In practice, review often equates to examining the procedure by which a decision
is made. But many Acts of parliament only authorise acts which are reasonable or have some
particular purpose – so much so that merits determine legality. But the more which the courts are
required to decide on merits in this way, the more they place themselves at risk of being accused
of exceeding their constitutional function.

Perhaps therefore the best way to distinguish the two is to look at the basis of appeal and review:

• “Rights of appeal are always statutory.

• Judicial review, on the other hand, is simply the court exercising it’s ordinary function of
determining the legality of actions and providing appropriate relief. JR is therefore a
common law process – one which parliament cannot preclude. (AnisminicI?).

The basic idea, then, is that judicial review is about the legality of the decision; it is not an
opportunity for courts to pass judgment on the merits of the decision by asking themselves
whether they would have taken the same view if they had been in the decision-maker’s shoes. But
this begs a number of questions. Why draw this distinction? Are those reasons convincing? And
what in practice is the form that this distinction takes?

5.2 Why draw the distinction?

Why should courts limit themselves in the way set out above? There’s in interesting suggestion by
Lord Irvine that there are three key reasons that we draw a distinction between review on merits
and legality – and why the courts pursue the latter. Three answers to this question were advanced
by Irvine, ‘Judges and Decision-Makers: The Theory and Practice of Wednesbury Review’ [1996]
PL 59 at 60-1:

• ‘Constitutional imperative’
o The first is constitutional – parliament has assigned the power and authority to make
a certain decision to a certain individual. By deciding on merits, the courts would be
undermining parliament’s sovereign choice.
• ‘Lack of judicial expertise’

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 oThe second is the lack of judicial expertise. Generalist courts aren’t in an
appropriate position to perform that decision maker’s specialist function.
• ‘Democratic imperative’
o The final is a democratic justification – ‘the democratic imperative’. Some
decision-makers are elected (directly or indirectly). Others are accountable to
democratic institutions.
There are various types of review that don’t fit into the legality/merits distinction. Wednesbury
unreasonableness is ostensibly a decision on legality – but it of course requires an analysis on
policy as opposed to black letter law.

5.3 Are the arguments in favour of the distinction convincing?

Are these reasons convincing? If Irvine’s arguments are convincing, then an obvious question is
begged: why do they not tell against any judicial review, as opposed to limiting judicial review by
reference to the legality/merits distinction? The answer, it may be argued, lies in important
differences between (on the one hand) review for legality and (on the other hand) review of merits:

• Nature of review
o Relevance of expertise – review on merits necessitates subject matter expertise,
legality requires only legal expertise.
o Making of policy choices – legality should have nothing to do with policy, merits
clearly, inherently does.

But is it as simple as this?

• Impact of review
o Effect on options open to decision-maker
o Involvement in polycentric issues (see, eg, R v Cambridge Health Authority, ex parte
B [1995] 1 WLR 89). Political polycentric issues are ones about which decisions
have ripple effects. Courts shouldn’t adjudicate because they are unqualified to
anticipate the effects. Challenge to refusal to fund (very expensive) treatment.
Requiring that patient to be given that treatment would impact on other patients is
not an area that the courts are equipped to decide on properly. It was a polycentric
decision.

5.4 What does the legality/merits distinction mean in practice—and is it

sustainable?
There are three points to note here.

• In traditional theory, the grounds of judicial review are said to be centrally concerned with
the procedure by reference to which decisions are taken and the legal preconditions
applicable to decision-making, but unconcerned (or only marginally concerned) with the
substance of administrative decisions.
• However, contemporary administrative law places less weight on the legality/merits
distinction than traditional theory implies. Hence the emergence of more-substantive
grounds of review.
• Finally, the thinking upon which the legality/merits distinction is built is in any event
highly suspect. Consider the following:
o A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68
The Belmarsh case shows us that substantive questions may not engage expertise.
The government had conceded that it wasn’t necessary to detain equally dangerous
non-foreign terror suspects. This meant that the court was able to make the

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 decision without expertise. It was at base a question they were more than qualified
to answer - one of necessity.
o R (Smith) v Parole Board [2005] UKHL 1, [2005] 1 WLR 350 Procedurally unfair
decision not to re-release prisoners that were called in for an alleged breach of their
licence conditions – natural justice required an oral hearing. Ostensibly a classic
question of legality, but had enormous and unpredictable systematic implications –
a polycentric issue.
o R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World
Development Movement Ltd [1995] 1 WLR 386 Legal questions don’t necessarily
have objectively right 
answers –
 does ‘development’ mean ‘economically sound
development’? Here economic soundness was the jurisdictional trigger condition.
When should a fair hearing be accorded?

6 Judicial review and the wider administrative justice landscape

So far, we have seen that judicial review has both expanded and deepened in recent decades. Why
has this happened? And are these welcome developments?

6.1 Lord Mustill’s speech in Fire Brigades Union

Consider the following remarks made by Lord Mustill in his dissenting speech in R v Secretary of
State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513 at 567:

It is a feature of the peculiarly British conception of the separation of powers that

Parliament, the executive and the courts have each their distinct and largely exclusive
domain. Parliament has a legally unchallengeable right to make whatever laws it thinks
right. The executive carries on the administration of the country in accordance with the
powers conferred on it by law. The courts interpret the laws, and see that they are obeyed.
This requires the courts on occasion to step into the territory which belongs to the
executive, to verify not only that the powers asserted accord with the substantive law
created by Parliament but also that the manner in which they are exercised conforms with
the standards of fairness which Parliament must have intended. Concurrently with this
judicial function Parliament has its own special means of ensuring that the executive, in the
exercise of delegated functions, performs in a way which Parliament finds appropriate.
Ideally, it is these latter methods which should be used to check executive errors and
excesses; for it is the task of Parliament and the executive in tandem, not of the courts, to
govern the country. (…)

We should look first and foremost to political constitutionalism to ensure that we can ensure good
administration.

(…) In recent years, however, the employment in practice of these specifically

Parliamentary remedies has on occasion been perceived as falling short, and sometimes
well short, of what was needed to bring the performance of the executive into line with the
law, and with the minimum standards of fairness implicit in every Parliamentary delegation
of a decision-making function. To avoid a vacuum in which the citizen would be left without
protection against a misuse of executive powers the courts have had no option but to
occupy the dead ground in a manner, and in areas of public life, which could not have been
foreseen 30 years ago.

But increasingly we are having to turn to legal constitutionalism to ensure that power isn’t abused.
The underlying assumption is that JR capable of substituting those things that do not work well.
But is this assumption defensible? Can JR substitute? Aren’t different accountability mechanisms
supposed to be complementary?

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6.2 Other forms of accountability
Judicial review is an important way in which administrative justice may be pursued and public
bodies held to account; and judicial review is the focus of this course. But it is important to
appreciate that judicial review exists within a much broader system for securing administrative
justice and pursuing executive accountability. In this regard, consider the contributions made by
three of the other principal administrative justice institutions:

• Tribunals
o Distinguishing characteristics (as compared to JR): informal, capable of appeal, no
legal costs, direct participation, mass administration (as opposed to courts’ small
caseload) – 600,000 cases pa v. 6,000 applications pa.
o New tribunals system: Tribunals, Courts and Enforcement Act 2007
o Upper Tribunal’s ‘judicial review’ powers
• Inquiries
o Examples: Saville (Bloody Sunday, not Jimmy); Hutton; Butler; Chilcot; cf Leveson.
o Reasons for holding inquiries: Walshe and Higgins (2002) 325 British Medical
Journal 896
§ Establishing the facts
§ Learning from events
§ Catharsis or therapeutic exposure for victims and the public at large
reassurance
§ Accountability, blame and retribution
§ Political considerations – e.g. Leveson.
o Political/non-legal form of accountability
o Reform: Inquiries Act 2005
o Problem (?) of executive ‘ownership’
• Ombudsmen
o Distinguish public sector ombudsmen from other ombudsmen schemes
o ‘Redress’ and ‘control’ functions: Seneviratne, Ombudsmen: Public Services and
Administrative Justice (London 2002), ch 1
§ The role of the ombudsman is one of both redress (i.e. the resolution of
individual grievances), and control (looking at the bigger picture, trying to
identify and fix systematic maladministration).
o Non-legal form of accountability: R (Bradley) v Secretary of State for Work and
Pensions [2007] EWHC 242 (Admin)); [2008] EWCA Civ 36, [2009] QB 114; R
(Equitable Members Action Group) v HM Treasury [2009] EWHC 2495 (Admin)

6.3 Legal and political constitutionalism

No serious commentator argues that all accountability should be via the courts through judicial
review, or that all accountability should be supplied by the political system (eg parliamentary
processes) and related devices (eg select committees, inquiries and ombudsmen). The real
question, then, is what constitutes an appropriate balance between legal and political control of
government. There is clear evidence in the UK of a drift (or perhaps a more deliberate move)
towards placing greater emphasis on legal forms of control.

• What is the evidence for this shift towards a more-legal form of constitutionalism?
We can see a trend towards ‘judicialisation’. Tribunals have been given court-style independence,
judicial nomenclature and more. Inquiries have been judicialised too – now they are very often
headed up by highly qualified judges, because they are the only people with the knowledge and
ability to reach all corners of the problem. The Leveson enquiry is an example.

• Why is this happening?

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 • What does all of this mean for our study of judicial review?
o Scope of judicial review
JR is becoming wider, deeper and more substantive. A shift towards proportionality, as well as the
obligation to protect substantive values through things like the HRA mean that Judicial Review is
playing an increasingly key role in ensuring good administration.

Remember that judicial review is not a panacea – diverse forms of accountability require a
diversity of accountability institutions. Courts play an important, but not the only role.

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