JUDICIAL REVIEW

INTRODUCTION
The focus thus far in our course has been primarily on the constitutional law aspects of public
law. With this chapter, we will study the core principles of administrative law, which constitutes
the other side of public law.This is not to say that judicial review does not contain important
principles of constitutional law, however it remains a core principle of administrative law.

Administrative Law Defined

Administrative law has been described by Wade and Forsyth as “…the body of general
principles which govern the exercise of powers and duties by public authorities.”

Administrative law, and in particular judicial review, is very closely linked with the fundamental
public law concepts of power, accountability and control.

 Who exercises power in a state and how is the exercise of that power controlled? These
questions lie at the heart of public law.

De Smith, Woolf & Jowell correctly stated that “judicial review should be seen in the context of
the general administrative system where different mechanisms are employed to hold public
bodies accountable”

You will have noted so far in public law that there exist a whole range of accountability
mechanisms which ensure that power is correctly exercised in the UK. These include political
mechanisms - such as the checks and balances within Parliament - and legal mechanisms.
Judicial review is one of the main methods by which legal accountability of public bodies takes
place in the UK.

JUDICIAL REVIEW – DEFINITION & OVERVIEW

- Judicial review is a type of court proceeding which reviews the lawfulness of a decision
or action made by a public body.

- Judicial review is the process by which the legality of the exercise of public functions
may be challenged in the United Kingdom. (Le Sueur)

- It constitutes the principal means of upholding the rule of law - it gives practical effect to
the principle of the rule of law.
- It enables people the challenge the actions of public authorities on the grounds that the
authorities have misunderstood, exceeded or abused their legal powers, or breached
rights protected by the common law. It also provides a route for protecting rights under
European Union law and under the Human Rights Act, 1998.

- Not only does judicial review provide legal redress against public bodies, it also imposes
legal accountability on public bodies by requiring them to justify the legality of their
actions to the courts.

- In many constitutional systems, judicial review refers to the power of the constitutional or
Supreme Court to strike down legislation which is contrary to the written constitution.
The position is more limited in the UK, as evident from our lectures on parliamentary
sovereignty.

o In the UK, judicial review is mostly concerned with the legality of executive
action – particularly those actions taken by government ministers and their
officials as well as local authorities.

o It can be used to challenge delegated legislation.

o It can also challenge decisions taken by the lower courts and tribunals.

- Judicial review has grown in importance over the past few decades and in several high
profile cases, judges have forced the government to rethink important decisions,
including in areas as sensitive as counter-terrorism.

- The value of JR is that it requires public bodies to comply with the law in their decision-
making. It sets the standard for good administration and hopefully improves the quality of
government. To what extent it actually does so, is a question you should keep in mind
throughout this chapter.

- In this chapter, it is important that you understand the judicial review procedure and the
grounds for judicial review.

- It is also critical for students to understand and debate the constitutional foundations
for judicial review in the UK. There has been a constant debate over the constitutional
basis for JR in UK on the relationship between two fundamental principles i.e. PS and
ROL.
 - Some argue that JR is based on Parliament’s supremacy; that the role of judges is to give
effect to the expressed or implied intention of Parliament, as expressed in the words of
Parliament. The advocates of this approach (mainly Professor Christopher Forsyth) say
that the essential task for the courts when asked to review the actions of public bodies is
to ensure that these bodies have not exceeded the powers conferred upon them by
Parliament.

- Others argue that JR is not rooted in parliamentary intent but in common law principles
that enshrine the ROL. Paul Craig and Jeffery Jowell are the advocates for this approach.
They say that since the developments in JR are judge made, it is therefore unrealistic to
say that they have been driven by Parliaments intent. (you should be able to give your
opinion on this matter in conclusion)

JUDICIAL REVIEW VS APPEAL

It is imperative to understand the difference between an appeal and judicial review.

The classic statement derives from Lord Brightman’s words in the 1982 case of Chief
Constable of North Wales Police v Evans where it was stated that:

“Judicial Review is concerned, not with the decision, but with the decision-making
process. Unless that restriction of the power of the court is observed, the court will in
my view under the guise of preventing the abuse of power, be itself guilty of usurping
power.”

This demonstrates a clear contrast between judicial review and an appeal:

Laws J in R v. Somerset County Council, ex parte Fewings [1995] 1 All ER 513

. . . [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?’

Other distinctions between the two concepts

• JR is a supervisory not an appellate jurisdiction

• There is no automatic or ‘unfettered’ right to JR: an applicant must seek the court’s ‘leave’ or
permission to apply for JR

• JR is about the process and lawfulness of a decision or action NOT the merits

• In JR the court does not substitute its own decision for that of the decision-maker

• Remedies are discretionary in JR

Note: Judicial review is a remedy of last resort i.e. claimants can only turn to judicial review
when they have exhausted all other avenues of appeals or when no such avenues exist. But it is
important to understand the JR is a limited remedy since the courts cannot substitute the original
decision with its own decision. It cannot stand in the shoes of the public authority that made the
challenged decision.

This is because judicial review is generally about the way a decision was made (e.g. was a
procedure followed, were people consulted) and the limits of an authorities legal powers (could
they make such a decision) rather than on the merits of the decision – i.e. was this the best or
wisest decision in the circumstances. Judges often stress in JR proceedings that it is irrelevant
whether they agree or disagree with the challenged decision.

When a JR claim is successful:

- Matter is usually sent back to the original decision maker for a fresh decision in light of
the judgment. When this happens, the decision maker can make the same decision but
hopefully this time will follow the correct procedure and act lawfully.

- UNLESS the court finds that the decision maker in question has violated the Human
Rights Act, 1998. In such a situation, the decision maker may not be able to reach the
same decision again.

SCOPE AND PROCEDURAL REQUIREMENTS

Procedural Requirements

In addition to Part 54 of the CPC 1998, the JR procedure in the UK is also regulated by s.31 of
the Senior Courts Act 1981.

- Remember, as mentioned earlier, there is no automatic or ‘unfettered’ right to JR – an

applicant must seek the court’s ‘leave’ or permission to apply for JR [Rule 54.4]

Therefore, the JR procedure in the UK consists of two basic stages.

1. Permission to bring a claim must be obtained from a judge

 2. If permission is granted, the court will proceed to deal with the claim – i.e. move to the
substantive hearing.

Permission (the first step)

In order to obtain permission, the claimant must persuade the judge, usually in writing, that:

i) The claimant must prove amenability (against whom he can bring a claim for JR)
ii) The claim is made within the proper time limits (i.e. three months from the date of the
decision in dispute)
iii) The claimant has sufficient interest (standing) in the case
iv) All other methods of challenging the decision have been exhausted.

v) Most importantly, the claimant must satisfy the judge that their claim is arguable i.e.
it is prime facie justiciable.

These criteria can be described as ‘filter mechanisms’. The rationale for these ‘filter
mechanisms’, in Lord Diplock’s words is ’to prevent the time of the court being wasted by
busybodies with misguided or trivial complaints of administrative error’ and to reduce
uncertainty.

Lord Diplock - R v IRC, ex p Federation of Self-Employed and Small Businesses Ltd [1982]
AC 617

 Refer to Statistics on Pg. 697 in the book

Amenability [Against Whom]

The first question to consider is who is subject to judicial review?That is to say whose
decisions are subject to or amenable to judicial review?

Part 54 of the Civil Procedure Rules covers the judicial review procedures in England and
Wales.

Rule 54.1 states:

1. This Section of this Part contains rules about judicial review.

2. In this Section –

a. a ‘claim for judicial review’ means a claim to review the lawfulness of –

i. an enactment; or
 ii. a decision, action or failure to act in relation to the exercise of a public
function.00

Focus on ‘public function’ for now.

The main method of checking whether a body may be subjected to judicial review is by
identifying whether its powers derive from statute or the prerogative (GCHQ). If it does, its
actions can be subjected to judicial review.

Therefore, public bodies deriving their power from statute or prerogative are amenable to judicial
review.

Hence, decisions taken under powers that are contained in a contract are not considered to be
amenable, such they derive from a private agreement.

- Now it is clear that public bodies deriving their power from statute or the prerogative are
subject to JR – but what about private (non-state) bodies who perform a public
function?

Traditionally, there was no question of such bodies being subject to JR but a more recent
development recognized that public functions carried out by private (non-state) bodies
may also be susceptible to judicial review where they are seen to be exercising de facto
public law powers.

 R v Panel on Takeovers and Mergers ex p Datafin [1987] QB 815

This stems from the 1987 Datafin case where it was held that the test was to look at the
nature rather than the source of power being exercised.

In this case the panel on takeovers and mergers was not a government body, nor was it
established by statute or prerogative. Datafin plc sought JR of the panel’s actions and the court
held that the panel was exercising public functions and that ‘but for’ its existence government
would have needed to create a similar body hence it was susceptible to judicial review.

R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 2 All ER 833

However, other bodies have been held to be insufficiently governmental in nature, for example in
the Aga Khan case the Jockey Club (which regulated horse-racing in Britain) had a contractual
relationship with its members and thus judicial review would not be the appropriate solution or
remedy to pursue.
Justiciability

There is also the question of whether something is justiciable, that is, something upon which the
courts are willing to adjudicate. There are certain non-justiciable matters, for example national
security, which the courts are generally unable or unwilling to subject to review.

The notion of justiciability and closely related to it judicial deference tie back to the idea of the
Separation of Powers.

Time Limits & Rationale

Claims for JR must be brought “promptly, and in any event not later than three months…”
(Part 54.5(1))

However, if the court believes it necessary then it has discretion to extend this time limit, which
it did in the case of R v Secretary of State for Foreign Affairs ex p World Development
Movement [1995]

- Rationale for Time Limits

According to Lord Diplock in O’Reilly v Mackman: ‘The public interest in good administration
requires that public authorities & third parties should not be kept in suspense as to the legal
validity of a decision … for any longer than is absolutely necessary in fairness to the person
affected…’

Exhaustion of Alternative Remedies

JR is described as a ‘remedy of last resort’ which means that if any alternative remedies exist
they should first have been exhausted. The general rule is thus that permission should not be
granted to apply for judicial review where an alternative remedy, for example an appeal, exists.

Standing

Under the ‘amenability’ heading above, we discussed who may be subject to JR. The issue here
is the reverse, i.e. who can bring a claim for JR?

This is a particularly important and interesting aspect of the judicial review procedure and it
ensures that there must be a connection between the claimant and the contested action.

 In order to obtain permission to seek judicial review, applicants must show that they have
‘sufficient interest in the matter’ (s.31 of the Senior Courts Act 1981), otherwise
known as ‘standing’ or locus standi.
 - There is no statutory definition of ‘sufficient interest’ and has been left to judges to
determine.

- Usually, the standing question is easy to determine, since the claimant would be
challenging a decision that clearly and directly affects them. The question however,
becomes more difficult when claimants claim they are representing others (e.g. a trade
union) or where they claim to represent more general public interests (e.g. claims made
by campaigning environmental organizations).

- Although some judges have taken a closed approach to this matter, nowadays the legal
principles on this issue favour a much broader and open approach and it is unusual for a
claim to fail on this point unless the claimant really is a mere busybody!

- R v Inland Revenue Commissioner ex p National Federation Of Self-Employed And

Small Businesses [1982] AC 617 also known as the ‘Fleet Street casuals’ or ‘Mickey
Mouse’ case lays down the original test for sufficient interest.

- House of Lords held that standing should be considered in two stages. Firstly, at the
leave stage the court should refuse locus standi to anyone who appears to be a mere
busybody or mischief maker (per Lord Scarman). Secondly, if leave is granted, the court
may consider standing again as part of the hearing of the merits of the case, where it may
decide that in fact the applicant does not have a sufficient interest.

Individual Standing

An individual who has been directly or personally affected by a decision or action is likely to be
granted standing without much difficulty.

- There is also a more unusual category of individual standing, where an individual is

indirectly affected but has a genuine public/constitutional interest in the matter.

- The key example here is the Rees-Mogg case of 1994 where a Member of House of
Lords sought JR of the Foreign Secretary - seeking a declaration that the UK could not
lawfully ratify the Maastricht Treaty. Whilst on the facts the claim failed, the court noted
that there was no dispute as to his standing since it accepted “without question that Lord
Rees-Mogg brings the proceedings because of his sincere concern for constitutional
issues.”

Note: The line between a person with a genuine constitutional interest and a mere busybody
will be a fine one at times.
Representative Standing: Associational

Associational standing refers to representative groups acting on behalf of their members, for
example a professional body or a trade union. Where a group is acting in relation to a decision
which directly affects its own interests, no problem arises as it is acting in the same way as an
individual, that is, essentially acting as proxy for the members.

This was the case in R v Liverpool Corporation ex p. Liverpool Taxi Fleet Operators
Association [1972]

However, in IRC v Federation of Self-Employed and Small Businesses Ltd did not have
standing as ‘one tax payer does not have an interest in the tax affairs of another.

Representative Standing: Public Interest

What if groups are acting in the public interest?

In the IRC case, the majority of the House of Lords held that the Federation did not have
locus standi. However, Lord Diplock took a different approach and argued that the issue of
standing should only be a preliminary or threshold issue which is used to reject ‘simple’ cases.

The whole purpose of requiring permission for judicial review would be defeated if the
court were to go into any depth at that early stage. If on a quick perusal of the available
material, the court thinks that an arguable case exists, it should grant leave in its
discretion. It would be a grave lacuna in our system if a pressure group or even single
public-spirited person was prevented by technical rules of locus standi to bring the
matter to the attention of the court to vindicate the rule of law.

Lord Diplock’s approach in that case has now become the dominant approach. This was seen in
R v Secretary of State for Foreign Affairs ex parte World Development Movement Ltd in
which WDM, a pressure group campaigning for improving the quality of aid to developing
countries, was able to judicially review a decision by the Foreign Secretary to provide funding
for a controversial dam in Malaysia. WDM did not claim to represent any particular group of
people adversely affected in the UK but rather claimed to represent broader public interests.
WDM was held to have sufficient interest in the matter because of the importance of the issue
and role and experience of WDM (as an anti-poverty campaign group) supported their being
granted standing in this situation.

 Requirement for standing of ‘campaign litigants’ as noted in WDM:

1) the issue is important to the public;

2) no-one else could make a responsible challenge; and

3) the claimant has a ‘prominent’ role in the field

Other Examples

In R v Inspectorate of Pollution ex p Greenpeace Ltd (No 2) [1994] 4 All ER 329

There was a challenge to authorizations relating to the discharge of radioactive waste from a
plant in Sellafield, Cumbria.

The court held that a combination of factors including its size, local membership (of some 2,500
people) the practices and expertise of Greenpeace supported it being allowed standing in this
instance.

Criticism: Pressure groups should not be allowed to use JR as a platform for achieving political
ends.

Answer: The courts are very careful to ensure that the claimant has an arguable case in law.
Where the matter is not justiciable, the courts will not interfere – R (on the application of
Wheeler) v Office of the Prime Minister.

HISTORICAL DEVELOPMENT OF JUDICIAL REVIEW

- Many of the underlying principles of judicial review are centuries old. Entick v
Carrington enunciated the core principle of JR (even though it wasn’t a JR case) – that
government bodies and others exercising public functions must have legal authority for
their actions and must act in accordance with the law.

- This principle has been continually developed and expanded by judges and forms the
bedrock of JR today.

- It is important to recognize that JR has seen a meteoric rise in recent times, but this was
not always the case. In fact, during the first half of the twentieth century, the courts
were reluctant to develop JR and took a very cautious approach as seen in Liversidge v
Anderson where the courts refused to review the legality of detention without trial
during World War II.

- Two factors were relevant for this cautious approach:

i) World War II: Discouraged judicial activism and encouraged deference to the
executive. There was a general consensus that all institution of the State needed to
pull together in times of war.
 ii) This time period also saw a growth in the democratic legitimacy of Parliament
and of the government itself since it became involved in developing systems
improving the quality of life of people in education, health, land use planning,
general welfare etc.

- The mood of the judiciary however changed in the 1960’s under the judicial
leadership of judges such as Lord Reid and Lord Denning. Three key decisions of the
House of Lords rejuvenated the principles of judicial review.

a. Ridge v Baldwin: Placed the principles of natural justice on a modern footing, applying
them to a wide range of government actions, and not only to the decisions of courts and
administrative tribunals.

b. Padfield v Minister of Agriculture: Legislation never gives unfettered discretion to

ministers – they must use their discretion to further the ‘policy and objects’ of the Act.

c. Anisminic v Foreign Compensation Commission: The jurisdiction of the courts to

review the decision of public bodies cannot be ousted by Parliament without the clearest
of words. [Legislation had said that the determination of a public body could not be
called into question in any court of law – held: not sufficiently clear].

THE GROUNDS FOR JUDICIAL REVIEW

In the previous lecture, we studied the judicial review procedure. This basically introduced you
to the scope and procedural requirements for a JR claim.

- Who is subject to JR
- How to get permission for a JR application
o Time Limits
o Standing
o Exhausting Alternative Remedies
o Justiciability
- Remedies for a successful claim

Next, we will focus on the grounds for judicial review. This relates to the substantive part of
the claim (as opposed to the first procedural stage). The grounds for judicial review relates to
the reason under which the courts review the legality of the exercise of public functions.
These grounds have been, and continue to be, developed by judges. Hence, they are completed
regulated by the common law and have not been codified by statute.

Historically, the only ground for a JR challenge was whether the body in question had acted
ultra vires – or beyond its powers. Therefore, in deciding JR applications, the courts would
simply see whether the body in question had acted beyond its powers.

But over time, with the growing use of the doctrine, this simple test was no longer enough to
cover the various types of cases that appeared before the courts. It was therefore time for a
restatement of the grounds, and this came with the groundbreaking GCHQ Case in 1985.

In this case, Lord Diplock enunciated the three heads under which administrative action could
be reviewed by the courts. Illegality, irrationality and procedural impropriety.

In GCHQ, Lord Diplock predicted that a fourth ground – proportionality – may develop at a
later date. This prediction came true with the implementation of the Human Rights Act, 1998.

The Modern Grounds for Judicial Review

1) Illegality
2) Irrationality
3) Procedural Impropriety
4) Proportionality

Note: There is rapid development in this area of the law and the grounds are always in a state of
refinement and redevelopment. They serve a useful guide, but sometimes overlapping in nature,
so that specific arguments can sometimes fall under multiple headings.

1) ILLEGALITY
Lord Diplock - in GCHQ - went on to define illegality:

“…by ‘illegality’ as a ground for judicial review I mean that the decision maker must understand
correctly the law that relates to his decision making power and give effect to it. Whether he
had...is...to be decided...by...the judges.”

Hence, decision makers must always ensure that whatever they do is permitted by the law.

- They must properly understand their legal duties and powers.

- They must properly perform their duties
- They must ensure that their powers are used to further the aims and policies for which
those powers were given
There are many cases where these basic requirements have been reiterated and cover a broad
range of situations. These situations include situations where a public authority acted clearly in
bad faith to less black-and-white situations, for e.g. where the authority misunderstood its powers
or uses its discretion in an unlawful manner.

For the purposes of your course, these are divided in the subject guide, VLE and textbook into a
number of sub-categories.

Illegality

The Ultra Vires Rule Exercise of Discretionary Powers

Failing to Exercise Discretion

o Unlawful Delegation
o Fettering of Discretion

Abuse of Discretion

o Relevant & Irrelevant Considerations

o Improper Purpose

a) Illegality Sub-Heading: The Ultra Vires Rule

As mentioned above, the ultra vires rule provides the classic case for judicial review.

Crux: The public body acts in an unauthorized manner. It can do this either by simply exceeding
its jurisdiction (simple ultra vires) or either by making an error in fact or law.

Attorney-General v Fulham Corporation

Fulham Corporation (a local authority) had a statutory power to provide washhouses (i.e.
facilities) for its residents to wash their own clothes.

Fulham Corporation set up a laundry business where the Council did the washing for a payment.

The court held that this was ultra vires. The local authority’s powers did not extend to running a
commercial laundry business – this was an entirely different enterprise and not authorised by the
relevant statutes.
McCarthy and Stone Ltd

The council imposed charge for giving (pre-application) advice to developers in connection with
speculative planning proposals.

The House of Lords held that the charge for pre-application advice was unlawful - under the
terms of the relevant statute (the Local Government Act 1972) the charge for such advice did not
facilitate (nor was it conducive or ‘incidental’ to) the council’s planning powers.

A local authority can charge for services only where specifically authorised to do so by statute.

b) Illegality Sub-Heading: The Exercise of Discretion

One key aspect where illegality has been considered by the courts is the exercise of discretionary
powers by a decision maker. A statute will commonly give a minister or local authority, for
example, broad instructions but leave it to them to decide the detailed implementation.

Discretion is a key part of most legislative instruments, whereby a public authority is given the
choice to decide whether and how to act to further the aims of the legislations.

E.g. – ‘may’, ‘thinks fit’, ‘is satisfied’, ‘has grounds for believing’, ‘if the Minister so directs’
etc.

What is discretion?

According to Davis “a public officer has discretion whenever the effective limits on his power
leave him free to make a choice between possible courses of action or inaction”.

Discretion is necessary because:

- An Act cannot foresee the different and changing circumstances that can arise in the
application of the law so the relevant authority is given the necessary flexibility to adapt
to the situation.
- Allows public bodies to make decisions in accordance with their view of the public
interest
- The body is considered best placed to make a relevant decision – for e.g. a local authority
is better placed to make decisions for its particular locality than Parliament is when
passing the law.

Reviewing the Exercise of Discretion

Lord Greene in the important case Associated Provincial Picture Houses Ltd v Wednesbury
Corporation (1948) summed up the questions the court will consider as follows:

The exercise of...a discretion must be a real exercise of the discretion. If, in the statute
conferring the discretion, there is to be found expressly or by implication matters which the
 authority exercising the discretion ought to have regard to, then in exercising the discretion it
must have regard to those matters.

I. Failing to exercise discretion

i) Discretionary powers cannot be delegated

The basic rule is that public officials entrusted with discretion cannot rid themselves of that
discretion by delegating it to someone else, unless the statute clearly allows for such delegation.
Clearly Parliament intended that person or body to make the decision themselves and it would
not be appropriate for the responsibility to be passed to someone else – loss of accountability.

The principle of non-delegation is well-illustrated by Barnard v National Dock Labour Board

In this case the power to suspend dockers delegated to port manager instead of exercised by local
board was held to be unlawful.

At this point some practical difficulties start to emerge. Local authorities consist of a limited
number of councilors who do not have enough time or expertise to carry out every function
delegated to them personally.

Recognizing this reality, s.101(1) of the Local Government Act 1972 provides that local
authorities may discharge their functions through committees, sub-committees or their officers.
However, the local authority is required to adopt a ‘scheme of delegation’ which specifies who
can exercise a statutory power in the authority.

A different approach is taken in relation to delegation to ministers. Following Carltona v

Commissioner of Works (1943), it was recognised that the multitude of functions delegated to
government ministers could not possibly be undertaken by them personally. These could be
properly exercised by the relevant civil servants in his department in his name without a need for
a scheme of delegation (as above). But under the Carltona Principle – the minister is ultimately
responsible for every decision of his department and is accountable to Parliament for it.

R v Secretary of State for the Home Department ex parte Oladehinde

Deportation under the Immigration Act 1971 was a two stage process – 1) notice of intention to
deport and 2) signing of the deportation order. Both functions were conferred under the 1971 Act
of the Home Minister. The Minister delegated the first of these functions to Immigration Officers
which was challenged by judicial review. The House of Lords held that the first function could
be delegated, but the second could not, since it was the personal responsibility of the Minister to
sign the deportation order after reviewing each case.

Lavender v. Minister of Housing

This case establishes that a public authority vested with discretion cannot surrender its power by
falling to the dictation of other. In this case, the Minister for Housing refused a planning
permission on the basis of a policy which required the permission of the Minister for Agriculture.
While it was no doubt sensible for the Minister to take into account his colleague’s view, he
could not treated himself as being bound by it – the discretion had been given to him, not the
other minister.

ii) Fettering Discretion: Treating Policies as Binding

Self-created rules – such as internal policy guidelines – are very important in the workings of
government, providing guidance to citizens and saving time & money.

There is nothing wrong with adopting such policies, but policies must be adopted keeping the
following factors in mind:

- Policy itself must be lawful

- Policy ought to be published
- If it isn’t published, it must not conflict with a policy that is published (WalumbaLumba
v. Secretary of State for the Home Department – UKSC 2011)

- Public bodies must always be prepared to depart from a policy if a particular case
justifies doing so. This is the core provision – the policy should not be so rigid that it
excludes the use of discretion altogether. There must be scope for each individual case to
be considered on its merits. In other words, self-created rules or policies must be applied
flexibly, not rigidly.

Key Authority: British Oxygen Co v Board of Trade

Lord Reid’s famous words: “The general rule is that anyone with a statutory discretion
must not shut his ears to an application . . . what it must not do is refuse to listen at
all…”

R v. Secy of State for Home Dept ex parte Venables

Lord Browne-Wilkinson: The adoption of an inflexible and invariable policy will lead to
both the policy and the decision taken under it to be unlawful.

Pate v. Secretary of State for the Home Department – Good example of this
requirement on Pg. 716 of the textbook.
II. Abuse of Discretion

i) Relevant and Irrelevant Considerations

Padfield v. Ministry of Agriculture

This is one of the founding cases of modern judicial review, where it was held that members of
the executive do not have unfettered discretion, even when their legislative powers appear
unlimited.

[Note: it is interesting to note how the previous category set limits on public authorities fettering
their discretion, whereas this category tries to set the limits of that discretion – i.e. discretion
cannot be unfettered).

In this case the Milk Marketing scheme required all producers to sell milk to the Milk Marketing
Board for a set price according to region. In the South East Region (Padfield and others) were
not happy with the prices set and made a complaint. A statute gave the Minister a power - a
discretion to establish a complaints committee to deal with such complaints ‘if the minister in
any case so directs’. The Minister refused to send the complaint to the complaints committee,
arguing that the law gave him complete discretion on the matter and had no obligation to give
any reasons for his decision.

The majority of the House of Lords held that the discretion was not unlimited as it was conferred
on the minister so that he could promote the policy/fulfil the objectives of the Act – one of which
was to provide a remedy where necessary. Therefore substantial and genuine complaints were to
be investigated.

Hence the Minister had failed to exercise a discretionary duty by acting for reasons that were
irrelevant to the purposes of the legislation.

Fewings Case

A decision maker should take into account relevant information and ignore irrelevant
information.

Hence JR would be possible if it could be argued that:

- Had a relevant factor been considered, a different decision might have been made
- Had an irrelevant factor been ignored, a different decision might have been made

Domb&Ors Case (2009)

Where legislation specifies that certain factors should be taken into account, there is a duty to
have due regard to such factors with vigor and an open mind.
Venables Case

In the infamous Venables case the House of Lords held that in his decision on length of sentence
for two children who had murdered another child, the Home Secretary had failed to consider
some relevant factors and taken account of some irrelevant ones. He had misdirected himself in
law by considering an irrelevant consideration – namely public protest and a media campaign
concerning the sentences to be imposed - and he had ignored relevant considerations – namely
the progress & development of the individuals whilst detained.

ii) Improper Purpose

Power should be used for its proper and lawful purpose - that is the purpose for which it has been
conferred. Any action contrary to the express or implied purpose of power is unlawful and thus
amounts to illegality.

Congreve v Home Office

The power of the Home Office to revoke a TV licence could not be used for the improper motive
of seeking additional revenue from the consumer.

Wheeler Case

In Wheeler the court held that in seeking to use its statutory powers to punish the rugby

club for several of its members taking part in a tour to South Africa during apartheid, the

council was misusing its power.

Magill v Porter; Magill v Weeks

One of the most notorious examples of improper purposes for the exercise of discretion. Housing
stock was sold by the council under statutory powers with the intention of giving the ruling
Conservative Party a political advantage. Read page 721 of the textbook for Lord Bingham’s
(the Beast) reasoning.

2) IRRATIONALITY (WEDNESBURY UNREASONABLENESS)

The notion of ‘Wednesbury Unreasonableness’ stems from the seminal case of Associated
Provincial Picture Houses Ltd v Wednesbury Corporation [1948].
In this case, the Local Authority ‐thatis,theWednesburyCorporation ‐hadastatutorypower to grant
licences for cinema performances on a Sunday “subject to such conditions as it thought fit to
impose.”

In relation to granting a licence for Sunday performances the local authority attached a condition
that “no children under the age of 15 years shall be admitted to any entertainment whether
accompanied by an adult or not.”

This was challenged but the Court of Appeal decided that the Wednesbury Corporation had not
acted ultra vires orunreasonablyinsetting the condition with regards to Sunday performances.

Definition of Wednesbury Unreasonableness by Lord Greene MR

Similarly, there may be something so absurd that no sensible person couldever dream that it lay
within the powers of the authority. Warrington L.J. in Short v Poole Corpgave the example of the
red-haired teacher, dismissed because she had redhair. It is true to say that, if a decisionon a
competent matter is so unreasonable that no reasonable authority could ever have cometo it,
then the courts can interfere. That, I think, is quite right; but to prove a case of that kindwould
require something overwhelming, and, in this case, the facts do not come anywherenear anything
of that kind.

Lord Diplock in GCHQ

In explaining irrationality as a ground for judicial review, Lord Diplock restated the position in a
more helpful way:

“…what can by now be succinctly referred to as ‘Wednesbury unreasonableness’. It applies to a

decision which is so outrageous in its defiance of logic or accepted moral standards that no
sensible person who had applied his mind to the question to be decided could have arrived at it.”

Problems with Irrationality as a Ground for Judicial Review

Unlike the grounds of procedural impropriety and illegality, which both ‘fit’ with the classic
notion of judicial review as being all about the process rather than the merits of a decision or
action, irrationality causes something of a problem.

This is because in determining the ‘rationality’ of a decision, the court is coming closer to
examining the substance of the decision and not merely the process behind which that decision
was made. This goes against the fundamental essence of judicial review.

Judicial Solutions to the Problem of Irrationality

Because of the constitutional difficulty in irrationality as a ground for judicial review, the courts
have adopted a two-fold approach in attempting to mitigate this problem.

1) Where irrationality is considered, there is a very high threshold for court intervention.
This means the courts will usually defer to the executive, unless the public body has
acted in a manner which no reasonable authority would have.

2) Even if the court decides to intervene in irrationality cases, it may vary the intensity of
the review based on the nature of the case. This means that the level of scrutiny might
vary.

a. Super-Wednesbury – Light Scrutiny: If the case involves complex policy

decisions, politically controversial issues, national security or financial decisions,
the courts will adopt a ‘light touch’ approach to review. [Very high degree of
irrationality should be demonstrated]

b. Heightened-Wednesbury – Anxious/Intense Scrutiny: If the decision involves

fundamental human rights, the courts will be more rigorous in the scrutiny of
whether the decision was reasonable. [Lower degree of irrationality to be
demonstrated]

 Super-Wednesbury – Light Scrutiny

RvSecretaryofStatefortheEnvironmentexparte Nottinghamshire County Council

The Environment Secretary’s guidance on the amount of funding local councils would receive
was challenged as being Wednesbury unreasonable since it disproportionately disadvantaged a
small number of councils. The House of Lords held that the Secretary had not acted
unreasonably. The fact that the scheme was passed with approval of the House of Commons was
another reason that the courts were reluctant to interfere.

RvCambridgeHealthAuthorityexparteB[1995]

In this case, the health authority decided not to fund potentially life saving treatment for a young
girl. The girl’s father sought judicial review of this decision. The Court of Appeal held that the
authority had acted lawfully in its refusal, since the authority was entitled to take into account its
budget. Difficult judgments have to be made on how to allocate a limited budget and the court
would defer to the health authority in these judgments.

 Heightened-Wednesbury – Anxious/Intense Scrutiny

Unlike the ‘Super-Wednesbury’ cases, before the enactment of the Human Rights Act 1998,
the courts were more rigorous in their scrutiny of the reasonableness of a decision involving
fundamental or human rights.

In R v Ministry of Defence ex parte Smith [1996] 1 All ER 257 the Ministry of Defence had a
policy of excluding gay service men and women. The appellants had been discharged on
this basis and they challenged lawfulness of their discharge on the basis that it was in
accordance with a policy which was irrational.

Lord Bingham - “the more substantial the interference with human rights, the more the court will
require by way of justification before it is satisfied that the decision is reasonable.”

Lord Bingham’s statement signified the heightened scrutiny of the courts in human rights cases,
although ultimately, the appellants were unsuccessful in their claim since the policy was
supported by both House of Parliament and the HRA 1998 had not yet been enacted.

Following the enactment of the HRA 1998, judicial review cases involving interference with
rights contained in the HRA are usually approached by judges under the new ground of
proportionality and not Wednesbury unreasonable cases.

But heightened-Wednesbury continues to apply to any rights not contained in the HRA/ECHR
(its scope therefore seems to be very limited today).

Criticism of Wednesbury as Ground for Review by Jowell & Lester (1987)

One can understand that Lord Greene’s definition of unreasonableness sought to make
the judges think twice about interfering with the merits of official decisions, but a test
which requires the official action not to be ordinarily unreasonable, but only, in effect,
extremely unreasonable, is unhelpful as a practical guide.

a) Inadequate: The word ‘unreasonable’ simply does not provide sufficient justification for
judicial intervention. The lack of a principled justification of the concept leads to the
suspicion that prejudice or policy considerations may be hiding beneath Wednesbury’s
ample cloak.

b) Unrealistic: The concept seeks to prevent judicial review except in cases where the
official has behaved absurdly or taken ‘leave of his senses’. But in practice, the courts are
willing to question decisions that are far from absurd and indeed often coldly rational.

c) Confusing: a test which requires official action not to be ordinarily unreasonable,

extremely unreasonable, is unhelpful as a practical guide.

3) PROPORTIONALITY
Owing to the conceptual and practical difficulties of the Wednesbury test as a ground for judicial
review, an alternative test of ‘proportionality’ has frequently been advocated in recent years.

It is important at this point to be aware that proportionality is a well‐establishedprinciplein

European Union Law (and in the administrative law of many EU Member States); and is
also reflected in the jurisprudence of the European Court of Human Rights.

What is Proportionality?

Essentially proportionality allows a court to intervene if it considers

that the harm associated with a particular exercise of power is disproportionate to the
benefit to be achieved.

Hence, there must be a reasonable relationship between the end to be

achieved and the means used to achieve it. Another way of thinking of proportionality is
the idea of doing no more than necessary to achieve an aim – using the least restrictive
means.

Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26 laid
down the three part test for the courts when applying the proportionality test: Ask whether:

1. the legislative objective is sufficiently important to justify limiting a fundamental

right;

2. the measures designed to meet the legislative objectives are rationally connected
to it; and

3. the means used to impair the right or freedom are no more than is necessary to
accomplish the objective.

Example:

Legislative Objective behind 21st Amendment: To ensure that those waging war on the State are
prosecuted.

Measures designed to meet this objective: Establishment of military courts

Fundamental Right Limited: Right to fair trial by an independent judicial tribunal

Means used to limit these rights: Would be disproportionate if the rules of procedure of the court
do not follow due process basics. Would be proportionate if they do.
Prior to the enactment of the HRA 1998, the courts
decisively rejected a proportionality test at common law.

In the Brind Case the House of Lords held that the Government’s ban on broadcasting
the direct speech of groups associated with terrorism in Northern Ireland was not irrational and
by four to one they rejected admitting proportionality as a ground of review.

Ex parte Smith (1996) – Illustrating the difference between Proportionality & Irrationality

After the Court of Appeal held that the dismissal of several gay servicemen and women was
not irrational, the applicants then took their case to the European Court of Human Rights
contending that the Ministry of Defence policy violated Article 8 ECHR – the right to private
life.

The European Court of Human Rights held that the blanket policy which required automatic
discharge on the basis of sexual orientation could not be justified as it was disproportionate
interference with their right to a private life. Thus this court found that the ban on
homosexuals in the British armed forces violated Article 8 of the European Convention on
Human Rights.

Essentially the Domestic Court and ECtHR tests were different.

- The Court of Appeal test was

whether a reasonable body could have come to that policy (i.e. irrationality)

- The European Court of Human Rights test was whether the interference with the
individual’s right to a private life was justified and proportionate.

- So, proportionality can be described as a stricter and more exacting test, but,
controversially, it requires court to assess the quality of the decision.

Post‐HRAProportionality

Since the enactment of the Human Rights Act proportionality has been used as a test in
cases involving human rights.

In the Daly Case (2001), a prisoner challenged a policy whereby prisoners were excluded from
their cells during searches which also include examining their legal correspondence.
The House of Lords looked at both the common law and the ECHR and held that requiring
prisoners’ absence for cell searches extending to their correspondence was unlawful both as
in excess of statutory powers and as, being disproportionate, a breach of Article 8 ECHR
rights.

Lord Steyn explicitly addressed difference between Wednesbury unreasonableness and

proportionality. Students should read page 725 of the textbook

- There is an overlap between the traditional grounds of review and proportionality

therefore many cases would be decided the same way regardless of which approach is
adopted by the court.

- But the proportionality test is more refined and sophisticated than the traditional grounds
of review

- The intensity of review is greater under proportionality because:

a. Proportionality requires the court to assess the balance struck by the primary decision
maker (potential harm vs. potential benefit) rather than merely considering whether
the decision was within the range of a ‘reasonable’ decision.

b. Even the heightened scrutiny test of ex parte Smith is not necessarily appropriate for
protecting human rights. In Smith, the Court of Appeal reluctantly rejected a
challenge to a ban on homosexuals in the Army, since the challenge did not attract the
application of even a heightened scrutiny (Wednesbury) test. But the ECtHR came to
the opposite conclusion, using the proportionality test.

Lord Cooke: ‘And I think that the day will come when it will be more widely recognised that
[Wednesbury] was an unfortunately retrogressive decision in English administrative law,
insofar as it suggested that there are degrees of unreasonableness and that only a very
extreme degree can bring an administrative decision within the legitimate scope of judicial
invalidation.’

Association of British Civilian Internees (Far East Region) v Secretary of

State for Defence (2003)

Issue: whether proportionality could exist as a separate ground for review in cases not involving
EU law or human rights under the ECHR.

Dyson LJ: ‘… we have difficulty in seeing what justification there now is for retaining the
Wednesbury test…But we consider that it is not for this court to perform its burial rites. The
continuing existence of the Wednesbury test has been acknowledged by the House of Lords on
more than one occasion.
Proportionality vs. Wednesbury Unreasonableness: Current Status

Following Daly, there are essentially two different tests for cases involving fundamental rights:

1) Proportionality for cases involving human rights found in the HRA/ECHR

2) Heightened Wednesbury (intense scrutiny) for rights beyond those contained in the
HRA/ECHR

The situation is summed up very appropriately by Wade and Forsyth who say that ‘ the
Wednesbury doctrine is now in terminal decline’ but the ‘coup de grace has not yet fallen
despite calls for it from very high authority’.

 Kennedy vs. The Charity Commission (2014) Supreme Court

Lord Mance expressed the view (in obiter dicta) that proportionality could be relevant in judicial
review ‘even outside the scope of Convention and EU law’. Lord Mance stated the advantages
of proportionality in the following terms:
- The advantage of the terminology of proportionality is that it introduces an element of
structure into the exercise, by directing attention to factors such as suitability or
appropriateness, necessity and the balance or imbalance of benefits and disadvantages.
On whether proportionality had developed into domestic public law, Lord Carnwath was
doubtful, expressing the view that:
- it is at best uncertain to what extent the proportionality text, which is an essential feature
of Article 10.2 as interpreted by the Strasbourg court, has become part of domestic public
law.

4) PROCEDURAL IMPROPRIETY
What is Procedural Impropriety?

GCHQ – Lord Diplock: This ground for judicial review can involve two types of claim:

i) Decision maker failed to comply to procedures specified by law; or

ii) Decision was taken in an ‘unfair’ manner by not following the principles of natural
justice developed over time by the common law

Importance of Procedure

1) Contribute to the accuracy of a resulting decision

 2) Confer legitimacy on the decision or action taken and thereby make it more effective
3) Express respect for human dignity

I) PROCEDURAL ULTRA VIRES – STATUTORY PROCEDURAL REQUIREMENTS

If legislation imposes express procedural conditions which must be followed before a power can
be exercised, then a failure to do so would invalidate the action or decision. These requirements
are known as mandatory requirements.

[For e.g. before a Department makes a decision on XYZ, it must consult with the local authority
or publish its decision in draft form or consider any objections before making a decision.]

Cases

Agricultural Training Board v Aylesbury Mushrooms an Act provided for prior consultation
by the Ministry of Labour with interested organisations. The Mushroom Growers Association
had not been consulted about an order to establish a training board and impose a levy. The
court held that consultation was a mandatory requirement.
Similar decision in ex parte Association of Metropolitan Authorities[1986].
- Sometimes however, legislation only imposes trivial or technical requirements, which are
known as directory requirements. A failure to follow a technical procedural
requirement will not necessarily result in the decision being invalidated.

II) THE RULES OF NATURAL JUSTICE

The rules of natural justice have been developed at common law by the courts and are generally
regarded as constituting two core principles:

A. Decision-makers must be neutral, independent and unbiased (the rule against bias)
B. The right to a fair trial

Traditionally their application was confined to judicial or ‘quasi-judicial’ decisions but this
restrictive approach was abandoned in the seminal 1964 case of Ridge v Baldwin. This related
to the dismissal of a Chief Constable by his local watch committee without notice or the
opportunity to make representations.
Although the Court of Appeal held that the committee was not required to observe the
requirements of natural justice because its action was ‘administrative or executive‘ this was
overruled by the House of Lords who held that the dismissal without following the rules of
natural justice was unlawful as the consequences were serious.

So, since Ridge v Baldwin the requirement of fairness or natural justice was applied in any
situation where the rights of individuals were at issue.
 A. NATURAL JUSTICE: THE RULE AGAINST BIAS

No man should be a judge in his own cause – that is should have no interest in the outcome of
the case or decision or have made any pre-judgement.
- Actual Bias: Where a person is motivated by a desire to favour one side or disfavor
another.If actual bias is found on behalf of the decision maker, the victim of the decision
is entitled to have the decision quashed. But finding actual bias is rare.

- Presumed Bias: The rule against bias includes cases where there is an appearance of a
bias. Because as per Lord Hewart CJ in R v Sussex Justices, ex parte McCarthy “It is
not merely of some importance, but of fundamental importance that justice should not
only be done, but should manifestly and undoubtedly be seen to be done.”
- So there is no need to show actual bias – it is irrelevant whether the decision-maker was
influenced - an appearance of bias may suffice.
- Presumed Bias – Direct Interest will lead to automatic disqualification.
o Where a decision maker has a direct personal or pecuniary interest in the
outcome, this will automatically disqualify the decision maker.
 Dimes v Grand Junction Canal Co(Lord Chancellor owned shares in
one of the parties – direct pecuniary interest)
 Pinochet Case (non-pecuniary direct interest also leads to automatic
disqualification)
- Apparent Bias – Non-direct Interest will not lead to automatic disqualification

Porter v Magill test applies in such cases

o First, the court must first ascertain all the circumstances which give rise to bias;
o Secondly, it must then ask whether in those circumstances a fair-minded and
informed observer would conclude that there was a real possibility of bias

Lord Hope in Porter v Magill: “the question is whether the fair minded and informed observer
having considered the facts, would conclude there was a real possibility that the tribunal was
biased.”
 B. NATURAL JUSTICE: THE RIGHT TO A FAIR HEARING
The second rule of natural justice is the right to a fair hearing – the essence of this is the idea
that no man is to be condemned unheard.
But the right to a fair trial is very context specific and depends on a variety of factors which may
vary over time [ex parte Doody – 1994]
What might a right to a fair hearing consist of?
Depending on the context the right to a fair hearing might include some or all of the following:
- opportunity to know case against you
- right to adequate time to prepare case/response & disclosure of evidence
- right to make representations
- right to cross examine witnesses
- right to be legally represented
- the right to be given reasons (for the decision)

Duty to give reasons?

There is no general statutory duty to give reasons and no general duty under common law on
decision makers to provide reasons for decisions.
But the Courts have recently used the requirement of fairness to shift the balance so that reasons
will often now be required.
The key case in this context is Doody v Secretary of State for Home Department in which the
Home Secretary was required to give reasons when setting a mandatory life sentence tariff so
that the prisoner could make representations and, if need be, apply for judicial review.
Lord Mustill said there were two purposes for which reasons should be given:
1. to enable the individual to mount an effective attack on the decision; and
2. reasons were required on the grounds of openness in decision making and fairness to the
individual.

Breen v Amalgamated Engineering Union [1971] - Lord Denning - “giving reasons is one of
the fundamentals of good administration.”

 LEGITIMATE EXPECTATIONS

As we have seen, there is no general common law ‘duty to act fairly’, other than when a statute
so provides. However, the courts have created a series of exceptions, ensuring that such 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 judicial review had a legitimateexpectation
that their case would be treated according to certain standards of procedural fairness.
Thus legitimate expectation is a doctrine that an expectation of a procedure (or benefit) arising
from a promise or practice may be protected in law. It is gradually developing as a separate
ground for judicial review although for now, it can be said to still fall under the general heading
of fairness.Ultimately the courts reserve the right to determine what constitutes a legitimate
expectation.
Such an expectation may arise as a result of:
 A Promise or Undertaking
 Past Practice
 Existence of general policies/guidance

However, the practice or promise made has to be:

(i) Clear, unambiguous and precise;
(ii) Must not conflict with statute
(iii) Must be directed towards a particular individual or group

Other Examples of the Legitimate Expectations Doctrine

Liverpool Taxi Fleet Case
Legitimate expectation based on a promise or undertaking. Here the local authority had the
statutory power to licence taxis in the area. It wrote to the association representing taxi cab
owners indicating that it would not recommend increasing the number of taxi cab licences until
certain legislation was passed. However, the local authority subsequently recommended that the
number of taxi licences should be increased.
The court held that the local authority was not at liberty to disregard their undertaking to the
applicant without first consulting the applicants and giving them an opportunity to put their case.

GCHQ Case

This is an example of a when a decision-maker seeks to depart from past practice generating a
legitimate expectation of its continuance or previous enjoyment of a benefit. Since 1947, staff at
GCHQ (Government Communications Headquarters) had been permitted to belong to national
trade unions, and most had done so.

There was a well-established practice of consultation between the official and trade union sides
about important changes to terms and conditions of service of staff. Then the Prime Minister
banned trade union membership for workers at GCHQ without consulting the trade union first.
The House of Lords held that the trade union had a legitimate expectation - based on past
practice - that they would be consulted prior to any important changes to conditions of service
for staff.
However, the Lords refused to find that the Prime Minister acted unfairly. The Prime Minister
indicated that the decision to ban union membership without consultation was taken on national
security grounds, and the judges held this issue was non-justiciable.

Khan Case

This is an example of a legitimate expectation arising from following a department’s policy

guidelines.

In Khan, a Pakistani couple who were resident in England wanted to adopt their brother’s child
who was living in Pakistan. A Home Office circular set out criteria for the entry of children into
the UK and set out the procedure which the Home Office would adopt in such cases.
However, due to an administrative error, this procedure was not initiated and eventually resulted
in a refusal of their adoption application.
The couple sought judicial review of the Home Office’s refusal, arguing that they had a
legitimate expectation that the procedures set out in the letter would be followed which gave rise
to an obligation by the Home Secretary to observe the stated procedures.
The Court of Appeal held that a legitimate expectation had been created and a quashing order
was granted.
Note: All the cases above dealt with procedural legitimate expectations – failing to uphold a
promise, departing from past practice or from one’s own policy/guidelines etc. The legitimate
expectation arises because the applicant felt that a certain procedure should have been followed.
But there is one problematic case involving a substantive legitimate expectation - where
assurances involved expectation of substantive benefit (rather than merely procedure)
In R v North and East Devon Health Authority, ex p Coughlan the Court of Appeal held that
a health authority’s decision to close a home for the severely disabled at which Mrs Coughlan
resided and to transfer her to the care of a local authority was unlawful, when assurance had
been given that it would be her home for life

It was held that the decision was unfair and frustrated Mrs Coughlan’s legitimate expectation.
The unfairness amounted to an abuse of power. There was no overriding public interest
justifying the decision.