ZAMBIAN OPEN

UNIVERSITY

SCHOOL OF
LAW

NAME : SHEPHERD CHIBUNE

STUDENT NO : 22010528

EMAIL ADRESS : vachibune@gmail.com

COURSE : ADMINISTRATIVE LAW 11

ASSIGNMENT NUMBER : ONE

YEAR OF STUDY : 2021 SECOND SEMESTER

PHONE NUMBER : +263774485071

CONTACT LECTURER : MR. BESA

Question. Making reference to decided cases, discuss the principle of judicial review and
explain how judicial review is different from an appeal.

INTRODUCTION

Judicial review enables the judiciary to counter balance the exercise of the powers of the state
and makes sure that everything that is done by the various state bodies and public officials are
within the border of the law and the constitution. This assignment endeavours to discuss the
principle of judicial review and explain how judicial review is different from an appeal.

JUDICIAL REVIEW

Actions for judicial review of administrative action, employing concepts of intra and ultra
vires and the rules of natural justice, ensures that the executive acts within the law 1. Judicial
review is a way by which administrative authorities whether ministers, government
departments, local authorities or others with law making and administrative powers are kept
within bounds by the courts within the powers granted to them by parliament 2. After the
granting of an application for judicial review it’s up to the courts to determine whether the
body in question has acted intra vires or ultra vires (that is, inside or outside its powers) 3.
Judicial review is bound to matters of the public, and not private law 4. It is important in the
interest of good administration that the aggrieved party have the locus standi which is the
sufficient interest in the matter to bring it to the court. There are a number of grounds on
which judicial review may be sought. A body may act ultra vires if it abuses its power, or if it
adopts a policy which is so rigid that fails to exercise a discretion with which it has been
invested5. The law puts standards of reasonableness upon administrative bodies. Failure to act
in a reasonable way may cause the body to act ultra vires.

A body may act ultra vires if it is granted with delegated powers but delegates them further to
another. At times, statutes may require administrators to adopt certain procedures in the
exercise of these powers and they fail to do so, when procedures are judicially deemed to be
mandatory and not directory, that body will be held to be acting ultra vires. If a public body is
given a duty to act by the court and it fails to act according to the expectations of the court,
the court can order it to do so by a mandatory order6. Rules of natural justice must also be
observed in making of decisions for example, where an individual has the right or interest at
stake because of an administrative decision, he or she is entitled to fair treatment. All these
grounds have been compelled by the House of Lords into three categories which are:
Irrationality, illegality and procedural impropriety.

1
Barnett H.(2002). Constitutional and Administrative Law(4 th ed),London: Cavendish Publishing Limited
2
ibid
3
ibid
4
Robson V.D.(1976). Justice and Administrative Law. (6 th ed) London: Butterworth
5
Massy I.P.(2012).Administrative Law251(Eastern Book Company), 8th ed.
6
https//:www.lawteacher.net
In Council of Civil Service Unions v Minister for the Civil Service 7, the House of Lords
established categories of decision which would be immune from judicial review which is
non-justiciable. Amongst these and the list is not all-encompassing are the making of treaties,
the dissolution of parliament, the appointment of ministers, the declaration of war and peace,
and matters to do with granting honours.

Judicial review is available to test the lawfulness of decisions made by public bodies. If
someone applies for judicial review, and the court rules that the body whose decision is being
challenged by a private body, then the remedy of the aggrieved party will lie in private law
and not public law proceedings8.

The nature and scope of judicial review is stated in Nyampala Safaris and others v Zambia
Wildlife Authority9, in this case the court held that the remedy of judicial review is
concerned not with the merits of the decision, but the decision making process, and that
purpose of judicial review is to ensure that the individual is given fair treatment by the
authority to which he has been subject and that it is not part of that purpose to substitute the
opinion of the judiciary or of individual judges for that of the authority constituted by the
law to decide the matter in question.

GROUNDS FOR JUDICIAL REVIEW

Basically, there are three grounds for judicial review namely, illegality, irrationality and
procedural impropriety10. Under the grounds for judicial review, the case to focus on is the
case of Council of Civil Service Unions v Minister for the Civil Service 11, in this case the
House considered an executive decision made pursuant to powers conferred by a prerogative
order. The Minister has ordered employees at GCHQ not to be members of the trade union. It
was held that the exercise of a prerogative power of a public nature may be, subject to
constraints of national security and the like, as susceptible to review as that of a statutory
power. The controlling factor in determining whether the exercise of a power by a body is
subject to judicial review is not in its source but its subject matter. Challenges to the
lawfulness subordinate legislation or rather administrative decisions and acts may take under
the headings of illegality, procedural impropriety and irrationality.

7
(1985) AC 374
8
Barnett H. (2002). Constitutional and Administrative Law(4 th ed),London: Cavendish Publishing Limited
9
(2004) ZR 47
10
Barnett H. (2002). Constitutional and Administrative Law(4 th ed),London: Cavendish Publishing Limited
11
(1985) 1 AC 374
ILLEGALITY

Any public body that operates in bad faith, intentionally exceeding statutory conferred limits
by the parliament is guilty of illegality. This include but not limit to lack of jurisdiction,
working beyond the limited powers defined by the statute, errors of law and facts and failure
to take relevant fact into account12.

In the case of Anisminic Ltd v Foreign Compensation Commission13, the plaintiff brought
an action for a declaration that a decision of the Foreign Compensation Commission was a
nullity. The Commission replied that the courts were precluded from considering the question
by section 4(4) of the 1950 Act which provided that, “The determination by the commission
of any application made to them under this Act shall not be called in question in any court of
law. The respondent said these were plain words one meaning. Here is a determination which
is apparently valid, there is nothing on the face of the document to case any doubt on its
validity. If it is a nullity, that could be only established by raising some kind of proceedings
in court. But that would be calling the determination in question, and that is expressly
prohibited by statute.

Holding: this was rejected. All forms of public law challenge to a decision have the same
effect, to render it a nullity. The decision of the commission was wrong in law and therefore,
a nullity, rather than a determination within the protection of the ouster clause. The House
made obsolete the historic distinction between errors of law.

IRRATIONALITY

The question of unreasonable is not very clear; it must always be decided in the contexts of
particular statutory powers. Irrationality may also be as the result of taking irrelevant factors
into account in decision making.

PROCEDURAL IMPROPRIETY

An authority is guilty of procedural impropriety if in exercising a statutory procedural

including; violating statutory decision making procedure, lack of fair hearing against rules of
natural justice, biasness and failure to give reasons for the decision.

LIMITATION OF JUCIAL REVIEW

12
Allen M. and Thompson Brian.(2008). Constitutional and Administrative Law,(9 th ed) Cases and Materials.
London: Oxford University Press.
13
(1969) 2 AC 147
The first principle of justice and the rule of law is that public bodies are required to act within
the scope of the powers allocated to them by parliament, according, in principle, judicial
review should lie wherever the vires of administrative action is in question 14. However, the
principle must be set in order to strike a balance against the needs of certain administration,
and the necessary restrictions which may be imposed on individuals or bodies seeking to
disrupt the administrative process, without a good cause. It is a very difficult matter to strike
a balance between these often competing principles 15. Where parliament limits the
availability of judicial review, the court will adopt a restrictive interpretation to the statutory
words, employing the presumption that parliament did not intend to save in the most express
manner to exclude the jurisdiction of the court16.

The following is the summary of means parliament may adopt17:

(i) The general requirement that applications for judicial review are brought within
three months of the challenged decision.
(ii) Clauses which are intended to prevent any challenge.
(iii) Clauses which are designed to limit reviews to a specified period of time in
relation to certain matters where delay needs to be avoided.
(iv) Conclusive evidence clauses.

DIFFERENCE BETWEEN JUDICIAL REVIEW AND AN APPEAL

It is necessary to distinguish judicial review from an appeal. The case of R v Cambridge

Health Authority18 gives a clear distinction of judicial review and an appeal. The court and
tribunal structure provides a more or less rational appeal structure for those that are aggrieved
by the judicial decision. On an appeal, the appellate court will have the power to reconsider
the case and to substitute its own decision of the lower court. An appeal may be made on both
the law and the fact of the case, so that full re-hearing may take place. 19 On the other hand,
judicial review is concerned with the manner in which the decision has applied the relevant
rules, in other words, judicial review is concerned with the manner in which the public body
made a decision, and thus it is procedural in nature. In judicial review it is not for the court to
substitute its judgement for that of the decision making body to which the powers have been
14
Jackson P. and Leopold P.(2001). Constitutional and Administrative law, 5 th ed
15
ibid
16
Robson V.D (1976). Justice and Administrative Law, (6 th ed).London: Butterworth
17
Massey I.P.(2002). Administrative Law251(Eastern Books Company) 8 th ed
18
(1995) 1 WLR 898
19
Jackson P. and Leopold P. (2001). Constitutional and Administrative Law, 5 th ed
delegated but rather, it ensures that the adjudicator has kept within the rules laid down by
statute and the common law. In short, the role of the court in a judicial review is to exercise a
supervisory, and not an appellate, jurisdiction 20. Appeals deals with the merits of the case
whereas review deals with the legality of the exercise of power.

Judicial review is not an appeal, but it is a review of the matter in which a decision was made.
Judicial review derives from the courts inherent powers to keep decision making bodies
within the bounds of their powers, and to provide remedies for abuse of power, and its
purpose is not to substitute a decision of the court for the decision of the administrative
body21. The other distinction relates to the subject matter of the court’s jurisdiction. The
appeal court has to decide whether a decision was right or wrong based on the considerations
of the law. The judicial review court has the ability to decide if the question was legal, based
upon the appropriate powers that the public body have been endowed with22.

CONCLUSION

The doctrine of judicial review nevertheless represents bedrock for the application of the rule
of law, keeping those with law making and discretionary powers within the law. Judicial
review deals with supervisory powers of the High Court to judicially review administrative
functions of public administrative bodies to ensure that the performance of their
administrative functions they are adhering to the law establishing them, they are following
the procedure and acting fairly in the course of performing their functions.

20
Burnett H.(2002).Constitutional and Administrative Law(4 th ed), London: Cavendish Publishing Limited
21
ibid
22
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BIBLIOGRAPHY

Allen M. and Thompson B. (2008). Constitutional and Administrative Law, (9th ed).Cases
and Materials. London: Oxford Press

Barnett H. (2002).Constitutional and Administrative Law, (4th ed).London:Cavendish

Publishing Limited.

Jackson P. and Leopold P. (2001). Constitutional and Administrative law, (5th ed).
Massey I. P. (2012). Administrative law251 (Eastern Book Company) 8th ed.

Robson V. D. (1976). Justice and Administrative law, (6th ed). London: Butterworths.

CASES

Nyapala Safaris and others v Zambia Wildlife Authority (2004) ZR

Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374

Anismic Ltd v Foreign Compensation Commission (1969) 2 AC147

R v Cambridge Health Authority, ex (No. 1) (1995) 1 WLR 898

OTHER SOURCES

https://www.lawteacher.net