JUDICIAL REVIEW: GROUNDS of REVIEW, I: Illegality and Ultra Vires

SECTION1 – JUDICIAL REVIEW QUESTION

•Who is the client you are asked to advise?

•Do they have standing? Consider what rights have been affected if Convention
Rights victim status needed.
•What remedies are they seeking?
•What grounds are they relying on?
•Error of Law
•Misuse of powers
•Wednesbury irregularity
•Procedural Irregularity – bias
•Legitimate expectation
•Failure to give reasons
•Breach of European Rights/ Proportionality
Conclusion Prospects of Success?

INTRODUCTION

 Judicial review is the High Court’s power to police the legality of decisions
made by public bodies.
 Both the separation of powers and the European Convention on Human
Rights require the courts to check misuse of power by the executive but also
to avoid trespassing into the political territory of the government.
 Judicial review is regarded as a last resort method of challenge and there are
procedural barriers intended to prevent it being too easily taken up.
 The courts are simply concerned with whether the decisions fall within their
authorising legislation and meet legal standards of fairness and
reasonableness – not merits R (Fewings) v Somerset CC
 In Council of Civil Service Unions v Minister for the Civil Service – it was
suggested that some matters are non-justiciable, as in that they may be too
sensitive for the courts to deal with.
 Courts are less willing to interfere with public bodies whereby they are
negotiating the distribution of scare resources etc… R v Cambridge Health
Authority ex parte B
 Sir John Laws – “where the courts correct these errors it does so upon the
insistence that reasonableness is a condition of democratic government”
 The courts therefore have the powers to where it sees fit:
 1. Declare the decision void (empty of legal effect) by making a quashing
order
 2. Order the public body to do something by making a mandatory order.
 3. Stop a public body from doing something by making a prohibition
order
 4. Make a declaration that the defendant has acted unlawfully

 Is the defendant a public body??

 Case of Datafin - established that the decisions of a private body exercising
public functions may be amenable to judicial review. Before Datafin, only
bodies established by statute were so amenable, while private bodies could
only be sued for their actions in contract or tort.
 A public body is governmental in its nature and functions.
 A bodies duties are public if they affect the rights of citizens generally rather
than private individuals. - Exercising public function ( If there is no such body,
it is exercised by government body test). Privatized water and sewage company,
Marcic v Thames Water and Where there is a dispute as to whether they are a
public body, must consider: the source of power, the nature of the bodies
duties, the consequences of the bodies decisions.
 Agan Khanl: “if doing something normally performed by government, or
something that would be performed by government if said body did not exist.”
 Is the claim a public law matter?
 O’Reilly v Mackman – decide on a case by case basis whether it is a public law
matter
 Has the applicant got a locus standi???
 According to the pre-action protocol for JR - a person can bring a claim if they
have sufficient interest in the matter. Sufficient interest as defined in the case
of IRC v National Federation of the Self Employed and Small Businesses –
individual
 For a body the case is – R v Inspectorate of Pollution ex parte Greenpeace –
members of the group lived within proximity of the power plant
 Must be considered in the legal and factual context of the whole case, not simply a
preliminary issue.
 Judicial review may only be used once all other avenues have been exhausted, this
was demonstrated by the case of R (Carnell) v Regents Park College

JUDCIAL REVIEW ON SUBSTANTIVE GROUNDS

Grounds have the potential to overlap…

 When a public body is intending to exercise a power vested in it by legislation, it

must do so in accordance with the legislation, both in regards to limits of powers
and details of its powers.
 Public Authority acts beyond its powers – its acts are to that extent ultra vires
 R v Richmond Council ex p McCarthy and Stone Ltd – planning officials
charged £25 per informal consultation. Although it was conductive to the purposes
– no charge can be levied on the public without clear statutory permission
 Hazel v Hammersmith Counil – council was swapping interest rate – council had
no power to enter into these transactions, involved speculation, inconsistent with
the statutory borrowing powers and therefore not “conductive or incidental.”
 Council may not use its powers to directly conflict with other statutes or exceed its
powers in other ways - R v Social Security, ex parte Joint Council for the
welfare of Immigrants –
UNLAWFUL USE OF DISCRETIONARY POWERS

 Discretion, according to the Rookes case 1598 – “discretion means.. that

something is to be done according to the rules of reason and justice, not
according to private opinion.”
 Known as wide ultra vires
 Even if language of a statue confers absolute discretion, courts very reluctant that
they have no power – Padfield v Minister for Agriculture – Under Agricultural
marketing Act 1958, exist a complaints procedure. Minister refused to direct a
complaint from Padfield and his reasons were not good reasons in law and showed
that he had not exercised his discretion in a manner, which promoted the intention
and objects of the Act.
 A planning authority may be capable of granting planning permissions “subject to
such conditions they see fit” yet, courts have severely limited this power. Not as
open as it appears.

IRRELEVANT CONSIDERATIONS

 Powers are not lawfully exercised if the decision maker takes into account factors
that in law are irrelevant – or leaves out relevant matters
 R v Home Secretary ex party Venebales– Home Secretary in deciding whether or
not to release to your men from prison – took into account demonstrations
demanding they remain imprison and failed to take into account their progress and
development.
 Council house awarded to a councilor before others with the view that it would
help her become re-elected - R v Port Talbot Council ex party Jones
 If undue wait is given to ONE factor then this decision may be reviewed on
grounds of reasonableness of proportionality.

IMPROPER PURPOSES

 Exercise of power for an improper purpose is invalid

 Malice/Personal Dishonesty on the part of the officials making the decision.
 Often it is mistakenly done – Council bought a piece of land for the purpose of
extending streets or improving the city could not buy it because it anticipated an
increase in value – Municipal Council of Sydney v Campbell
 Porter v Magill – unlawful for the Conservatives majority on the Westminster
Council to adopt a policy of selling council houses in certain parts of the city in
the view that they believed homeowners are more likely than tenants to vote
conservative.

ERROR OF LAW
 An authority which is entrusted with a discretion must direct itself properly on the
law or its deicison may be declared invalid – R v Home Secretary ex p Venebles
– Decision to give two children the equivalent of adult sentences during her
majesty’s pleasure. Error of law – need to consider from time to time the sentence
under her majesty’s pleasure, can not therefore have a maximum sentence. Home
Secretary had “misdirected himself”
 Also can be regarded as failing to take into account certain key relevant
considerations.
 Therefore has to be greater than a simple mistake with statute, must be something
which he/she could not reasonably be expected to have come based on the
evidence – Council of Civil Service Unions v Minister for the Civil Service

UNAUTHORISED DELEGATION

 A body to which the exercise of discretion has been entrusted by statue may not
delegate this to another person or body unless the statute can be read as having
authorised this.
 Barnard v National Dock Labour Board – the national board acted lawfully in
delegating the disciplinary function over registered Dockers to local boards –
illegal when this was again delegated to the port manager.
 Task may be given to officials for who the official is responsible however.
 When a discretion is vested in a junior it may not be taken away by someone
senior, Simms Motor Units Ltd v Minister of Labor

DISCRETION MAY NOT BE FETTERED

 Decision must take into account all relevant consideration when deciding whether
or not to award a license
 Legislation may prevent an official from exercising any discretion however may
adopt a general policy in the absence of exception circumstance – R v Home
Secretary ex p Q & R - allowed mothers to keep their baby in prison under 18
months
 Therefore individuals have a right to ask for an individual policy to be changed.
 Public authorities that do adopt policies must bring them to the attention of the
actual decision makers, R (Rashid) v Home Secretary – a government department
that is unable to make known a policy to guide its staff can not be working
effectively.

UNREASONABLENESS (Irrationality)

 Lord Diplock in Education Secretary v Tameside Council – “conduct which is

no sensible authority acting with due appreciation of its responsibilities would
have decided to adopt”
 Meaning of unreasonable was central to the Tameside case. Lord Diplock further
defines it as “conduct which no sensible authority acting with due appreciation of
its responsibilities would have decided to adopt.”
 A decision which is otherwise within its powers is unreasonable – difficult for the
courts to decide upon this.
 Associate Provincial Picture Houses Ltd v Wednesbury Corp – Children under
the age of 15 not allowed within the cinema on a Sunday, held that this was
neither ultra vires or unreasonable.
 Wednesbury test – Lord Greene: authority has come to the conclusion “so
unreasonable that no reasonable authority could ever have come to it.”
 Often stated by critics that Wednesbury was too high a hurdle to get over –
European test of proportionality preferred.

PROPORTIONALITY

 Where action is taken in a certain situation, which will restrict a fundamental

right, the effect on the right must not be disproportionate to the public purpose
sought to be being achieved.
 Test applies in respect of the ECHR – rights are subject to restrictions, “as are
prescribed by law and are necessary in a democratic society’ for specified public
purposes.” – Art 10 (2)
 Dudgeon v UK – must be proportionate to the legitimate aim pursued.
 Courts are now almost expected to apply the test of proportionality in almost
every situation in which there is an infringement of human rights.

OTHER GROUNDS

 No point mentioning unlawful delegation in most cases as it is authorised by

statue, Local Government Act 1972 s 101
 Acting incompatibly with Convention Rights – Human Rights Act 1998 s 6 (1)
provides – ‘it is unlawful for a public authority to act in a way which is
incompatible with a convention right.” s 6 (1)

REVIEW ON PROCEDURAL GROUNDS

 Even if the content of a public body’s decision may be within the powers of the
body taking it, it is only lawful if the proper procedure for making the decision has
been observed.

THE RULE AGAINST BIAS

 The essence of a fair judicial decision is that it has been made by an impartial
judge.
 Subject to many decisions at common law and also art 6 (1), “independent and
impartial tribunal.”
 The test in Porter v Magill is “ whether the fair minded and informed observer,
having considered the facts would conclude that there was a real possibility that
the tribunal was biased.” Lord Hope
 R v Secretary of State for the Environment and another ex aprte Kirkstall
Valley Campaign, applicants challenged a decision on the development property
belonging to the rugby club. One of the people on the authority deciding on the
 planning application was the professional adviser to the rugby club - would
benefit financially
 Metropolitan Properties Ltd v Lannon – father – son relationship was enough t
give rise to the suspicion of bias, even though there was no financial interest.
 Potential for Judge’s to be bias – Locabil case, Judge wrote in a local newspaper
in which said the ECHR was “a field day for crack pots, a pain in the neck for
judges and legislators, and a gold mine for lawyers” Gave the impression he
would be biased in relation to any judgment in which the ECHR was considered

The right to be fairly heard

Natural justice= fairness.
Ridge v Baldwin; Lord Hotson said three features of a fair hearing;
-          The right to be heard by an unbiased tribunal
-          The right to have notice of charges of misconduct
-          The right to be heard in answer to those charges
Errignton v Minister of Health, hearing of evidence from only one side in the absence
of the other, order quashed.
Ex p Polemis; D was not given sufficient time to respond or an opportunity to prepare
a defence and so conviction quashed.
However.... they may be exceptional circumstances where a party is not entitled to
know all the material considered by the other party e.g. welfare of children; R(West) v
Parole Board.
 
Right to give reasons
There is no general obligation to give reasons for a decision in English law.
Legislation can require reasons to be given, and courts often require reasons to be
given.
Ex p Doody; no obligation but failure to give reasons is often unfair.
Reasons must be given if without them it would look arbitrary; Ex p Cunningham.
The courts will assess the facts of the case, in a case by case manner to see ‘whether
or not fairness demands reasons’; R v Higher Education Funding Council, ex parte
Institute of Dental Surgery.
However there are some exceptions.

E.g. legitimate expectation...

Some advantage may be given to a person in a situation where they have no apparent legal
right due to a legitimate expectation of a particular type of treatment.
Arising from, for example;
-          A representation or promise
% R v North and East Devon Health Body ex p Coughlan
-          A consistent past practice
% Council of Civil Servants v Minister for the Civil Service; would have had a legitimate
expectation that unions would be consulted before the decision.
-          The conduct of the decision maker