Public II Consolidation Lecture Weeks 1-5

Role of JR constitutionally:
- Mechanism whereby governmental actions can be subject to challenge in courts.
- Relates back to relationship between Executive and Judiciary:
 Key component of rule of law – control over legality of gov power and control
over exercise of discretionary gov power.
 Significant feature of separation of powers balance

Rationale for JR:

- Traditionally seen as an adjunct to the principle of parl sovereignty:
 Notably in relation to illegality
 Pure ultra vires = does gov have power to carry out action between challenged
(Entick v Carrington).
 Wider illegality = powers have been given by Parl to administer the state; have
these powers been used as Parl intended (-> statutory interpretation).

Modern rationale:
- In relation to JR as a whole, arguably the rationale for JR should be seen in broader
terms:
 Courts have a key role in interpretation and enforcement of the law
 Through the common law, they create principles of good governance -> to
ensure that public bodies are exercising their powers according to appropriate
standards:
o i.e. not just ‘legally’ but also rationally, fairly and with due consideration
for expectations they have created – aka ensuring better standards of
administration etc.
 thus, this is now part of the SOP arrangement in the UK.

Balance of interests – individual v public:

- remember: not the same as ‘constitutional review’ but it allows gov actions to be
quashed -> a significant power.
- Courts – self regulate however Gov/parl can of course also apply stat rules regulating
the JR process (e.g. time limits).
- -> procedural rules are thus important in balancing individual interest and public
interest.

Procedural rules – a balance:

Individual:
- Standing:
 Liberal policy (Fleet street causals)
 Pressure groups (WDM)
- Court protection re ouster clauses – rule of law:
 Anisminic; Privacy International
- Amenability:
  Datafin – governmental decisions. Nature of

Public Interest:
- Time limits – very strict:
 CPR Part 54.5(1)
 Time limitation clauses upheld – Smith v E Elloe RDC
- Procedural exclusivity:
 O’Reilly v Mackman
- Government review of JR – Lord Faulks.

Different types of review:

- Traditional/absolute grounds of review:
 Ultra vires – illegality
 Fairness – inc. procedural LE
- Substantive grounds:
 Unreasonableness /irrationality
 Substantive LE.

Illegality:
- Elaboration of principle from basic ‘vires’ considerations to more sophisticated
variations on the theme:
 difference between need for a basic authority for governmental action and
controlling how discretionary power is exercised
- ‘Abuse of discretion’:
 have irrelevant considerations been taken into account or relevant
considerations not been taken into account? (eg Venables)
 has the D-M used the power for the purposes provided for in statute? (eg
Padfield, Fewings)
- Has discretion been exercised (at all)?
 has it been wrongly delegated? (eg Lavender, but Carltona.)
 has the DM fettered its own discretion? (eg British Oxygen, FBU)

Procedural impropriety:
1. Statutory procedural obligations – a hybrid – illegality in a “fairness” context (R v Soneji;
JN (Cameroon))

2. Common law fairness:

- As with illegality, it is fair or it isn’t… “one-dimensional”
- But it requires keen evaluation of the case context
- Level of fairness is v. important background factor

- Note too trend towards greater accountability and transparency – eg on reasons for
decisions; and in importance of participation and openness (eg Osborn v Parole
Board)
Substantive grounds:

Cases are more ‘multi-dimensional’

- Not just an issue of whether the decision is within the law or not, or fair or not …
- Courts here are delving more into the substance of the case:
 intensity of review therefore comes into play
- In relation to “unreasonableness”, the analysis has revolved for many decades
around the Wednesbury case
- This is inherently problematic, given concerns over the clarity of the test
- However, the courts have adapted and modified it …

Intensity of review:

Alternative basis of review?

- Proportionality:
 UK courts have developed experience in assessing cases on this basis through
EC?EU law and HRA
 Other domestic statutes also contain a proportionality standard e.g. Equality Act
 It has gained a foothold in LE cases but remains controversial in relation to
rationality cases
 Consider in relation to appropriate balance between individual and
public/societal interests.

Equality Act:
- Supplementary to main JR syllabus:
 wide-ranging codifying statute, bringing together law in relation to direct and
indirect discrimination.
- Establishment of ‘protected characteristics’:
 application to private and public law
- In relation to “Public Law”, note that this represents another basis for challenge in
relation to ‘rights’:
 considerable crossover with HRA and mainstream JR
 PSED – form of procedural legality – PAs must have “due regard” to eliminate
discrimination, advanced equality of opportunity etc.