What is Judicial Review?

Judicial review is the principal way of holding the Executive legally accountable. Judicial
review is a high court procedure. The court may examine a decision to ensure the body
which has made the decision has both the power to make it and adhered to principles of
fairness and reasonableness.
Constitutional justification

Power for JR not conferred on the courts by Parliament but stems from the common law.

Ultra vires theory: Courts may therefore intervene where a body acts ultra vires, meaning
“beyond the powers'', conferred by legislation Common law theory: It does not dispute the
authority of Parliament but argues the grounds for judicial review are judge-made, the
justification lying in principles of good and fair administration. This theory more easily
accommodates the changing nature of judicial review and its application to non-statutory
powers.

Modified ultra vires theory: Parliament has a presumed intent in granting discretionary
power and this should be exercised in accordance with the rule of law.

Relationship of JR to other constitutional theories

Parliamentary Sovereignty
• Underpins judicial review
• Ensuring government bodies act in accordance with the statutory powers given is one of
the main grounds of judicial review

The rule of law

•Judicial review is concerned with giving practical effect to the rule of law
•Seeks to control and impose limits on government by insisting that government acts in
accordance with law and operates within the law

Separation of powers
•The courts are giving expression to the doctrine by checking the exercise of power by the
Executive arm and ensuring it does not abuse its power and position.
•Also plays an important role not only in justifying court intervention, but also limiting the
role of the courts.
How does judicial review differ from an appeal?
Judicial review is not an appeal of the original decision, but a look at the legality of the
decision, focusing on matters of form, procedure and jurisdiction. The merits of the
decision are not in issue. The courts are not concerned with whether the substance of the
decision is good or bad, but rather with how that decision was reached. On finding against
a decision-maker, the courts do not substitute the original decision for their
own but refer the matter back to the body to make the decision again in the correct way.
Chief Constable of the North Wales Police v Evans [1982] 1 W.L.R. 1155
“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.'' (at p.1173)

Preliminary Hurdles
• Who can a case be brought against?
• Exclusivity function
• What are the time limits for bringing a case
• Who can bring a case
• Ouster Clases

Types of bodies subject to JR/ WHO CAN A CASE BE BROUGHT AGAINST?

Traditionally, judicial review was confined to bodies exercising statutory power

Ambit of judicial review has been increased in a number of ways.
1. Council of Civil Service Unions v Minister for Civil Service [1985] A.C. 374, the
exercise of prerogative power is considered judicially reviewable subject to
issues of justiciability
2. Inferior courts
3. Expansion of judicial review to cover decisions made by private or non-
governmental bodies who are seen to be exercising de facto public law powers.

Private / NG Bodies

R. v Panel v on Takeovers and Mergers Ex p. Datafin [1987] Q.B. 815.

“if the body in question is exercising public law functions, or if the exercise of functions
have public law consequences, then that may ... be sufficient to bring the body within the
reach of judicial review''.
The key to the “Datafin'' test is the nature of the body's function and the degree to which
that function is public. The Court concluded that the Panel was exercising de facto public
powers for the following reasons:
• it operated wholly within the public domain
• its code of conduct applied universally to all bodies within the city, and
• it operated and was incorporated into a regulated statutory framework.

nature of the decision being challenged rather than

the identity of the body in question
Development of Datafin principles
Regulatory Bodies
R. v Advertising Standards Authority Ltd Ex p. Direct Line Financial Services [1998] C.O.D.

R. v Bar Council Ex p. Percival [1991] 1 Q.B. 212

Private / NG Bodies

R. v Chief Rabbi of the United Hebrew Congregations of Great Britain and the
Commonwealth Ex p. Wachmann [1992] 1 W.L.R. 1036
“essentially intimate, spiritual and religious which the government could not and would
not seek to discharge in his place''

R. v Disciplinary Committee of the Jockey Club Ex p. Aga Khan [1993] 1 W.L.R. 909
The club was not in its origin, constitution, membership or history a public body and the
powers it exercised were in no sense governmental

R. (Williams Mullins) v Jockey Club Appeals Board [2005] EWHC 2197

“not merely a public but potentially a governmental interest'' such that the government
might intervene to perform the function in the body’s absence.

Contracting Out

R. v Servite Houses Ex p. Goldsmith (2001) 22 H.L.R. 35

Court dismissed the relevance of the enabling legislation and felt there was not
sufficient “statutory penetration" to bring the association with the ambit of judicial
review.
R (on the application of A) v Partnerships in Care (2002) EWHC 529 (Admin)
YL v Birmingham City Council [2007] UKHL 27,
Private care home was not to be a public authority under s.6 of the Human Rights
Act 1998.
Lord Scott noted however that the “position might be different if the managers of
privately-owned care homes enjoyed special statutory powers over residents''.

Procedure for Bringing a Judicial Review Application

Order 53 of the Rules of the Supreme Court and the Senior Courts Act. Now been brought
within the Civil Procedure Rules Pt 54 though standing requirements are still found in the
Senior Court Act

Pre-action protocol and claim

Claims for judicial review are made to the Administrative Court and follow two additional
stages: (i) permission and (ii) the substantive hearing. Cases are brought by the Crown on
behalf of the applicant against the defendant public body, e.g. R. (on the application of
another) v Hertfordshire County Council.

Permission to apply for judicial review Judicial review is not available as a right and under
r.54.4 the applicant requires the court's permission. The permission hearing acts as a filter
allowing the court to sift the vexatious claims. Its protects public bodies and facilitates
good administration by ensuring public bodies are not hampered by unnecessary litigation
in discharging their public duties Permission will not be granted unless the applicant is in
time and has standing

Procedural Exclusivity
Prior to 1977 there were several ways of enforcing public law rights, the appropriate
method being dependent on the remedy sought.
1978: a new procedure was introduced to standardise the application procedure under
Order 53 of the Rules of the Supreme Court, the main elements being given effect by s.31
of the Senior Courts Act.
O'Reilly v Mackman [1983] 2 A.C. 237
Exclusivity rule = a challenge to a public law decision should be by way of judicial review

Time Limits

Under r.54.5, there is a strict time limit completing a claim form. It must be filed
“promptly'' (r.54.5(1)(a)), and in any event no later than three months after the grounds to
make the claim first arose (r.54.5(1)(b)). Since 2013, all planning cases should be started
within 6 weeks from the date of decision.

Standing for judicial review/ WHO CAN BRING A CASE?

The Senior Courts Act 1981, Section 31(3): No application for judicial review shall be made
unless the leave of the High Court has been obtained in accordance with rules of court; and
the court shall not grant leave to make such an application unless it considers that the
applicant has a sufficient interest in the matter to which the application relates.
Note: leave is now called permission.
The crucial aspect of standing is the meaning of “sufficient interest"
R. v Inland Revenue Commissioners Ex p. National Federation of Self Employed and Small
Business Ltd [1982] A.C. 617

Individuals
The courts have been very flexible and have granted standing in a variety of situations
where the merits of the case appear to justify intervention
R. v Secretary of State for Foreign and Commonwealth Affairs Ex p. Rees Mogg [1994] Q.B.
552
Axa General Insurance Ltd v Lord Advocate [2011] UKSC 46; Lord Hope at para 63 stating “a
personal interest need not be shown if the individual is acting in the public interest”.

R (Miller) v Secretary of State for Existing the European [2017] UKSC 5

R (DSD and NBV and others) v The Parole Board EWHC 694

Representative standing:

Groups and organisations may be granted standing if they are a recognised group acting in
the interests of the wider public.

R. v Secretary of State for the Environment Ex p. Rose Theatre Trust [1990] 1 Q.B. 504
“It would be absurd, if two people, neither of whom had standing, could ... incorporate
themselves into a company which thereby obtained standing”
R. v HM Inspectorate of Pollution Ex p. Greenpeace (No.2) [1994]
R. v Secretary of State for Foreign and Commonwealth Affairs Ex p. World Development
Movement [1995] 1 W.L.R. 386.
R (Good Law Project Ltd) v Secretary of State for Health and Social Care [2021] EWHC 346
(Admin).
R (Good Law Project Ltd (2) Runnymede Trust v (1) The Prime Minister (2) Secretary of
State for Health and Social Care [2022] EWHC 298 (Admin)

“it cannot be right as a matter of principle that an organisation could in effect confer
standing upon itself by drafting its objects clause so widely that just about any conceivable
public law error by any public authority falls within its remit’.”

Standing under HRA

Where an application for judicial review is brought alleging a breach of human
rights, the test for standing is that found in s.7 of the HRA. The effect of this test prohibits
representative standing such as found in the World Development Movement case above
Unless the members of the pressure group are themselves directly affected by an
actual or potential violation of their human rights then they will not be given victim
status under the HRA.

Ouster Clauses
Parliament, as the supreme body, may seek to exclude the jurisdiction of the courts
in relation to the exercise of power “Shall not be questioned in any legal proceedings
whatsoever". Such exclusions by Parliament have the effect of undermining the rule of law
and the separation of powers by weakening the ability of the judiciary to curb arbitrary
rule, protect individual rights and check the Executive's power.
In Anisminic v Foreign Compensation Commission 2 A.C. 147, the House of Lords
interpreted a clause that “any determination by the FCC shall not be called into
question in any court of law" as meaning only a legal and valid determination
R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22;
s 67(8) Regulation of Investigatory Powers Act 2000 did not exclude judicial review

Partial Ouster Clause

Smith v East Elloe RDC [1956] A.C. 736

Grounds for Judicial Review

Council of Civil Service Unions v Minister for Civil Service [1985] 1 A.C. 374
(GCHQ), Lord Diplock
Judicial review has I think developed to a stage today when without reiterating any analysis
of the steps by which the development has come about, one can conveniently classify
under three heads the grounds upon which administrative action is subject to control by
judicial review. The first ground I would call `illegality', the second `irrationality' and the
third ‘procedural impropriety'.
Like other areas of the common law, the grounds for review have developed on a case-by-
case basis. In the GCHQ case, Lord Diplock famously assessed the existing authorities and
placed them under three grounds for review:
Illegality;
Irrationality (Wednesbury unreasonableness);
Procedural Impropriety.
We can now add a fourth ground following the Human Rights Act—
that is, proportionality.
Illegality as defined by Lord Diplock in GCHQ (at 410):
“By ‘illegality’ as a ground for judicial review I mean that the decision-maker must
understand correctly the law that regulates his decision-making power and must give
effect to it. Whether he has or not is par excellence a justiciable question to be decided, in
the event of dispute, by those persons, the judges, by whom the judicial power of the state
is exercisable.”

Illegality Broadly...
1. Narrow or simple Ultra Vires (when a body acts outside of the powers conferred on it)
Attorney-General v Fulham Corporation (1921)
2. Errors of law and Errors of Fact
Perilly v Tower Hamlets Borough Council (1973)
R (A) v Croydon LBC (2009)
3. Wide Ultra Vires
a. Improper Purpose - Porter v Magilll (2002)
b. Relevant and irrelevant considerations - R v Somerset County Council, ex parte Fewings
(1995)
c. Unauthorised delegation - Barnard v National Dock Labour Board (1953)
d. Fettering of discretion - British oxygen co v Board of Trade (1971)
e. Failure act
1. Narrow or simple Ultra Vires

Illegality is a broad ground of review, that has several different elements.

The most basic form of illegality review is simple ultra virus, when a public body acts
outside the powers confirmed on it by statute

Attorney-General v Fulham Corporation (1921)

Facts: Fulham Corporation ran a wash house allowing users to attend and to wash
their clothes. It introduced a new scheme under which a user would purchase a
wash bag, fill it with clothes and leave it to be washed by corporation employees.
This scheme was challenged. In essence the corporation interpreted this power as
granting it the power to provide a laundry service, and not just a wash house.

Held: The new scheme fell without the scheme authorised by the 1846 Act and
was unlawful. The corporation, a statutory body, was to be restrained from acting
outside its powers.

R (Public Law Project) v Lord Chancellor (2016)

Facts: Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012
(LASPO), Parliament had conferred on the Lord Chancellor a power to amend
primary legislation by means of secondary legislation (a ‘Henry VIII power’). The
Lord Chancellor proposed to amend the 2012 Act so as to introduce a residency
requirement into the qualifying criteria for legal aid.
Issue: Such a criterion fell outside the scope of the Act which did provide for
restrictions of the availability of legal aid but none of those restrictions – unlike the
proposed residency requirement – related to the personal characteristics or
circumstances of the claimant.
Held: That subordinate legislation intended to amend Schedule 1 (LASPO) was
ultra vires and invalid.

The idea of Jurisdiction

‘Jurisdiction’ refers to a legal power to decide something or make some determination
which is of legal effect. Courts have jurisdiction in respect of certain types of claim—e.g.
the High Court has an inherent jurisdiction to hear claims for judicial review.
However, ‘jurisdiction’ can also refer to the legal authority to decide where the
decision maker is a public body. For example:
A local authority has jurisdiction to decide on claims for housing benefit.
A university has jurisdiction to award degrees.
The Home Office has jurisdiction to decide claims for asylum.

Anisminic v Foreign Compensation Commission [1969]

Facts: After the Suez Crisis of 1956, a compensation fund was established to
make payments to companies who lost property as a result of the conflict and/or
seizure of property. The relevant Act of Parliament said 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.”
Held: The House of Lords said the ‘ouster clause’ did not preclude judicial review
because an unlawful determination would not be a determination at all. And the
court would be entitled to interfere where the determination is made in error of law
(the Commission had misconstrued the statute).
Legal Principle: Anisminic enhanced the role of the Administrative Court to
ultimately correct any error of law made by any public body (or at least this is how
Anisminic was understood by the courts in the years that followed).

2(a). Errors of Law

Errors of law may include:

the application of the wrong ‘test’
acting in bad faith
not taking something into account that ought to (by law) be taken into account
determining an issue that is not for that decision maker to determine.

Anisminic suggests that any of these errors of law may nullify a decision of a public
body—even if these errors are made within the jurisdiction of the decision maker.

R (Cart) v Upper Tribunal [2011] UKSC 28

Facts: The Upper Tribunal (which hears appeals from the First-Tier Tribunal)
refused two claimants permission to appeal to it. The claimants sought judicial
review of this refusal.

Issue: Could decision of the upper tribunal be judicially reviewed?

Held: Decisions of the Upper Tribunal may be judicially reviewed, but only if the
review poses an important point of principle or practice, or that there is some other
compelling reason to hear the case in judicial review. Baroness Hale (giving the
leading speech) was mindful that errors of law—including of the Upper Tribunal—
ought to be corrected on a similar basis to that of the High Court being supervised
by the Court of Appeal.

2(b). Errors of Fact

Like some courts, public bodies also decide questions of fact. In general, it is not open to
the Administrative Court to correct errors of fact in judicial review proceedings.
R v Hillingdon LBC, ex parte Puhlhofer [1986] AC 484
Facts: A family of four were living in one room of a guest house where only
breakfast was provided, with no cooking or laundry facilities. The family applied for
accommodation from the local authority under the Housing (Homeless Persons)
Act 1977.
Issue: The local authority refused to provide it as they did not consider the family to
be ‘homeless’ under the terms of the Act, as they were currently in accommodation.
Held: In the Court of Appeal, it was decided that Whether the family were enjoying
‘accommodation’ under the terms of the Act was a question of fact—and
Parliament, in enacting the 1977 Act, entrusted the local authority with that
determination of fact.
It was not open to the Administrative Court to substitute its assessment as to
the facts for those of the local authority.

R (A) v Croydon LBC [2009] UKSC 8

Facts: Two claimants from Afghanistan and Libya sought asylum in the UK. Both asserted
that they were under the age of 18, but did not have the necessary paperwork to prove it.
The local authorities deemed them to be 18 years or over, thus relinquishing them of
certain statutory responsibilities to provide accommodation under the Children Act 1989.
A doctor assessed the claimants to be 15 and 17 years old—but both local authorities
refused to accept this and relied instead on their own assessment as to their age.
Issue: In judicial review proceedings, the Administrative Court rejected the claim on the
preliminary issue of whether the court was entitled to review the authorities’
determination of fact (the age of the claimants).
Held: In the House of Lords the claimants’ appeal was allowed. Although the determination
of the claimants’ ages were questions of fact, they were facts precedent to the local
authorities’ jurisdiction and were therefore ultimately subject to scrutiny by the
Administrative Court in judicial review.

Why shouldn’t the Administrative Court decide questions of fact?

Parliament has intended it for another decision maker.
That decision maker is more likely to know (for example) the local housing
conditions and the availability of housing stock.
The local authority’s determination of fact provides for a degree of finality.
In R (A), the determination of fact was also a jurisdictional question—it went to the
very question of whether the Children Act applied.
In these cases, the Administrative Court may ultimately correct an error of fact
made by the public body.

3. Wide Ultra Vires

a. Improper Purpose
Public bodies should make decision based on the correct motivations behind the
decision making process. The court must ensure that the official is not acting upon
an unlawful motive “under colour and pretence” (Westminster v London and North
Western Railway Co. [1905] at 432) of a lawful motive.

R v Foreign Secretary, ex parte World Development Movement [1995]

Facts: Acting under powers conferred by the Overseas Development and
Cooperation Act 1980, the Foreign Secretary sought to provide £195m in aid to the
Malaysian Government to support the building of a hydroelectric dam.
Issue: The World Development Movement, who campaigns for more and better
aid, sought to challenge the decision to award aid to the dam-building project on the
grounds that the money could be better spent elsewhere—and indeed, that the
funding of the dam would actually cause Malaysians harm.
Held: The court sought to uphold the purpose of the Act—which was to provide aid
to the world’s poor. Because the project was economically unsound, and failed to
demonstrate more than marginal benefit for Malaysia, the decision to award aid
was deemed unlawful as being contrary to the purpose of the statute conferring
powers upon the Foreign Secretary to make aid decisions.

Porter v Magill (2002)

Facts: Conservative councilors sought to sell much of the social housing stock in
order to achieve electoral advantage within target wards.

Issue: Could the council sell social housing in order to achieve an electoral
advantage

Held: The House of Lords found that the selling of social housing to gain an
electoral advantage was an improper use of the power to sell social housing

b. Relevant and irrelevant considerations

In excursing its discretion a public body must be seen to take into account all
relevant considerations and not be swayed in its decision-making by irrelevant
ones.
Potential for overlap with Improper purpose here.

R v Somerset County Council, ex parte Fewings (1995)

Facts: The council acquired a large piece of land in 1921. Land which featured mature
woodlands and a population red deer. Acting under s.120 of the Local Government Act,
which allows councils to acquire and maintain land for “the benefit, improvement or
development of their area,” the council decided to ban deer hunting on the land because
hunting is unnecessarily cruel.
Held: In judicial review proceedings, the council’s decision to ban hunting was quashed.
This was because the council failed to take into account what would be for the “benefit,
improvement or development of their area” and were motivated instead by ethical or
moral considerations relating to hunting.

The decision was quashed because:

• the council did not direct its mind to the question of what was for the “benefit,
improvement or development of the area” (the lawful consideration).
• the council did take into account moral and ethical considerations (an unlawful
consideration it was not entitled to consider).

Wheeler v Leicester City Council (1985)

Facts: A local authority refused to permit a local rugby club to use is playing field,
after some of its members went on a Rugby tour of South Africa during the
apartheid regime.
Issue: Whether in banning the rugby club from using the playing field the public
body had taken into account an irrelevant factor.
Held: The House of Lords ruled that a political policy – however morally, justified –
could not provide the lawful basis on which to deprive the club of engaging in its
lawful activities.

c. Unauthorised delegation
Where powers are conferred by statute, the general rule is that they may not be
delegated unless that delegation is authorised by law.
However, not all delegations will be unlawful. The courts will not hold, for instance,
that a Minister must exercise each and every power personally. It is accepted that,
where statue confers powers on Ministers, the power are, in fact exercisable on his
behalf by the personnel of his department.
As explained in Local Government Board v Arlidge (1915), “a minister cannot do
everything himself”.

Barnard v National Dock Labour Board (1953)

Facts: The London Dock Board delegated some of its powers, mainly, disciplinary
measures to the port manager. In turn the port manager suspended 11 lighterman.
Issue: Could the board delegate its powers to the local port manager?
Held: That delegation was held to be ultra vires, on the basis that such a
disciplinary function could not lawfully be delegated to another and must be
exercised by the Board to whom the power was granted.

Carltona Principle
Delegation by a Minister to the personnel in their Department is not considered
unauthorised delegation. This is called the Carltona Principle.
Carltona v Works Commissioners (1943)
The commissioners were given powers, under wartime regulations, to requisition
property. Carltona’s property was requisitioned, the order for requisition being
signed, for and on behalf of the commissioners, by a Civil servant with the rank of
assistant secretary. Lord Green MR stated:
“It cannot be supposed that the particular statutory provision means that in every case the
minister in
person should direct his mind to the matter. Constitutionally the decision of such an officer
the decision of the minister; the minister is reasonable to Parliament. If the minister
delegated to a junior official that he would have to answer to Parliament.”

d. Fettering of discretion
This occurs when the decision-maker binds themselves to exercise their discretion
in a particular way, sometimes by imposing a rigid rule, so that they are no longer
able to exercise discretion in individual cases.
In the event that decision-makers have discretion it should be exercised in each
case according to its merits.

British Oxygen co v Board of Trade (1971)

Facts: The Board of Trade made available a grants scheme to assist industry with
the purchase of equipment (capital expenditure).The claimant, who manufactured
compressed gas products, sought a grant for several gas cylinders, each costing
around £20. As policy, the Board of Trade said it wouldn’t consider a claim for any
one item valued at less than £25. When their claim for a grant was rejected in
pursuit of this policy, the claimant sought judicial review.
Issue: Could the minister be forced to accept the application
Held: claim failed; the Board is entitled to formulate policy as long as they retain a
willingness “to listen to anyone with something new to say.” (Lord Reid, 625).

e. Failure to Act
This is where a body has a statutory duty too act and fails to do so. Whether the
duty to act is enforceable by the courts will depend on the wording of the statute: if
the obligation to act is clear and precise the court will hold it enforceable.
Conversely, if the duty is not specific the court will not hold it enforceable.
IRRATIONALITY

What happens though if a public body:

makes an arbitrary decision;
makes a decision without due regard to anything at all;
makes a decision that nobody else would ever make!
We call this ground of review, irrationality review—a name given to it by Lord Diplock
in the GCHQ case. But it is often referred to as Wednesbury unreasonableness, or
Wednesbury review.
Irrationality is a concept which take the courts further from reviewing the procedures
by which a decision has been made and testing its legality, and closer to
substituting the court’s own view of the merits of the decision.
Lord Diplock on Irrationality in the GCHQ case:
Lord Diplock’s definition (at 410):
“By ‘irrationality’ I mean 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.”
Associated Provincial Picture Houses v Wednesbury Corporation [1948]
Facts: The local authority for Wednesbury had the statutory power to licence cinemas
including for the showing of films on a Sunday “subject to such conditions as the authority
think fit to impose.” The local authority granted a licence to the claimant to show films on
a Sunday but required that no child under the age of 15 can be admitted on a Sunday—
with or without an adult.
Held: The claim failed, and an appeal to CA was dismissed. The case is notable for its dicta,
not its outcome. Lord Greene MR, in the CA, described the basis for review of this sort of
case as: “Once that question is answered in favour of the local authority, it may be still
possible to say that, although the local authority have kept within the four corners of the
matters which they ought to consider, the have nevertheless come to a conclusion so
unreasonable that no reasonable authority could ever have come to it. In such a case,
again, I think the court can interfere.” (at 234).
The test of Wednesbury unreasonableness is a high one; more than that, its approach is
altogether different because it recognises the role of the public body to decide the
substantive matter.
Lord Greene in Wednesbury:
“The have nevertheless come to a conclusion so unreasonable that no reasonable
authority could ever have come to it.”

Further case examples of Irrationality:

• Devon CC v George [1989]
• R v Secretary of State for the Environment, ex parte Nottinghamshire County Council
[1986]
• R (Daly) v Secretary of State for the Home Department [2001] HL
• R (Javed) v Secretary of State for the Home Department [2001]
Devon CC v George [1989] 1 AC 574
Facts: Upon reaching the age of 8, Devon CC decided to withdraw the provision of
free transport for a boy who lived just under 3 miles away from his school (3 miles
was the statutory threshold between the local authority’s discretion and its obligation).
The boy’s journey to school would include walking down country lanes with no footpaths
and regular farm traffic—including large milk tankers.
Held: “I am in agreement with Mann J that the impugned decision was not
unreasonable in the Wednesbury sense.” (at 607).
All of this shows just how difficult it is to prove Wednesbury unreasonableness.
R v Secretary of State for the Environment, ex parte Nottinghamshire County Council
[1986] AC 240
Facts: The Minister produced a report on local authority funding, which was approved by
the House of Commons in a vote (not an Act of Parliament). The report was implemented,
allowing for central government contributions to local authorities to be determined with
reference to the financial prudence of the local authority in the previous financial years.
Notts CC sought to judicially review the implementation of the report by the Minister.
Held: The claim ultimately failed:
“I can understand that there may well arise a justiciable issue... but I cannot accept that it
is constitutionally appropriate, save in very exceptional circumstances, for the courts to
intervene on the ground of ‘unreasonableness’ to quash guidance framed by the Secretary
of State and by necessary implication approved by the House of Commons.” –per Lord
Scarman at 247.
DUE DEFERENCE
This deference is ‘due deference’ because Parliament is the constitutionally appropriate
body to scrutinise central government policy. In Wednesbury contexts this is sometimes
referred to as ‘super-Wednesbury’ or “light touch” review.

R (Daly) v Secretary of State for the Home Department [2001] UKHL 26

Facts: The claimant was a prisoner who kept confidential and legally privileged
correspondence in his prison cell. Prison regulations required that prisoners be absent
whenever routine searches of prison cells were conducted by prison officers. The claimant
objected on the ground that this would compromise the privilege of his correspondence
and make such letters available for the prison officers to see.
Held: On appeal to the House of Lords, the claimant won. This is substantive Wednesbury
review, because the Secretary of State clearly has the discretion to create prison rules such
as these. The ‘substance’ of the decision was under scrutiny. It was deemed unlawful on
two grounds: it was, on common law principles (irrationality) flawed; it was a
disproportionate exercise of discretion on Human Rights Act grounds.
The court said that the common law right to confidentiality of legally privileged
correspondences meant that the court would ‘anxiously scrutinise’ the decision.
Anxious scrutiny
Anxious scrutiny review refers to a more stringent level of scrutiny that is applied when the
subject matter of a decision by a public authority relates to ‘constitutional right’ .
Where it is, the court will insist that the public body provides justifications for the
infringement of that right.

R. v. Ministry of Defence, ex parte Smith [1996] qb 517

Facts: Four appellants challenged the policy of the ministry to discharge homosexuals from
the armed services.
Held: Where Human rights are concerned, the courts will subject decisions to a higher level
of scrutiny than otherwise. Known as Anxious Scrutiny. Bingham adopted the following test
as the correct approach to irrationality:
"The court may not interfere with the exercise of an administrative discretion on
substantive grounds save where the court is satisfied that the decision is unreasonable in
the sense that it is beyond the range of responses open to a reasonable decision-maker.
But in judging whether the decision-maker has exceeded this margin of appreciation the
human rights context is important. 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 in the sense outlined above".
R (Javed) v Secretary of State for the Home Department [2001] EWCA Civ 789
Facts: The Minister sought to implement a new procedure in relation to immigration and
claims for asylum. Countries would be placed on a ‘white list’ if they were designated
‘safe’—that is, where the return of a failed asylum seeker would pose no risk of
persecution, inhumane or degrading treatment or torture. This would allow for the swift
return of failed asylum seekers from these countries. An Ahmadi women whose claim for
asylum was rejected brought a challenge.
Held: Their claim was successful, and confirmed on appeal to the Court of Appeal.
Even though both Houses of Parliament affirmed the Minister’s decision by
resolution, the decision (which in law is the Minister’s) could be judicially reviewed
on all grounds of review. Since the debate did not cover the position of Ahmadi women in
Pakistan, the deference due to Parliament would be altered accordingly.

INTENSITY OF REVIEW BY THE COURT

‘Super-Wednesbury orLight Touch Review’
(bordering on deference)
• Does the context in which decisions have been made induce ‘due deference’ to the
decision-maker?
• Ex parte Notts CC
• Javed
‘Standard Wednesbury’
• Has the public body acted so unreasonably that no public body
acting reasonably could have come to that decision?
• Wednesbury
• Devon CC v George
‘Anxious Scrutiny Wednesbury’
• Are common law constitutional rights engaged? If yes, does the
public body have justifications for infringing upon that right?
• Daly
• Ex Parte Smith

Lecture summary
Wednesbury unreasonableness is a far wider and vaguer ground for
judicial review than illegality. Consequently, this ground is one where the
court comes far closer to examining the merits of the decision. It is
because of this that the courts will generally only accept this ground if a
high level of unreasonableness is found, and such cases are rare.
This is seen in the Wednesbury case in which the court stated that it
would only interfere where a decision was “so unreasonable that no
reasonable authority could ever have come to it.”
Proportionality and the Role of Human Rights
Key features of the Human Rights Act 1998 in the administrative field:
1. It creates a new ground or basis for review under s.6;
2. It provides for a right to claim remedies including the usual judicial review
remedies, plus damages assessed according to ECtHR-developed principles;
3. It greatly enhances the role of the court in scrutinising the substantive decision
(not ‘merits’ review according to Lord Steyn);
Proportionality is now generally concerned to be a fourth separate ground for the
review when a claimant engages with a convention right. It is seen as similar to
irrationality and we will explore why this is.
The Doctrine of Proportionality
The requirement to act proportionally means that powers must be exercised in a
manner that is proportionate to the objective pursued: in other words, no more than
is necessary.
The need for proportionality is now accepted in the context of decisions impacting
on Convention Rights as a result of the passing of the Human Rights Act 1998. This
is because it is a doctrine favoured by the European Court of Human Rights, and s
2 of the Act requires the jurisprudence of the court to be taken into account
Generally considered in most of the literature and the courts to be a more
sophisticated approach to the issue of irrationality.
In other words, rights may lawfully be infringed upon by the State, providing the
State does so proportionately.
Proportionality after Huang
The de Freitas test still applies:
1. Is the public objective sufficiently important to justify limiting a right?
2. Are the measures adopted rationally connected to the public objective?
3. Are the measures adopted no more that what is necessary to achieve the
public objective?
4. BUT ALSO (following Huang): has a fair balance been struck between the
rights of the individual and the public/societal interests?
In clarifying both what Lord Steyn may have meant in Daly, and expanding the test
in de Freitas, proportionality review has become yet more sophisticated in that it not
only looks at the ‘means and ends’ of a legislative or other objective, but it appraises
the fairness of individual and societal interests being weighed against one another.

Proportionality Beyond Human Rights

The courts have indicated that proportionality may extend beyond human rights
cases:
R(Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and
the Regions (2001).
 In this case Lord Slynn argued for proportionality to become a separate fourth ground
for judicial review
“Trying to keep the Wednesbury principle and proportionality in separate compartments
seems to me to be unnecessary and conducing” Lord Slynn at 1406
The importance of context was emphasised by Lord Mance in Kennedy v The
Charity Commission (2014), who expressed the view, obiter, that proportionality
could be relevant in judicial review “even outside the scope of the Convention and
EU Law.
“The common law no longer insists on the uniform application of the rigid test of
irrationality once thought applicable under the so-called Wednesbury principle.
The nature of judicial review in every case depends upon the context”

Proportionality and Wednesbury

At present, the two tests, Wednesbury unreasonableness and proportionality, can
be applied, with the acknowledgment that cases involving human rights must use
proportionality. The Courts have recognised the co-existence of the tests:
 R (Association of British Civilian Internees: far East Region) v Secretary of state for
Defence (2003)
“... 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.” Dyson LJ at para 34-35
Yet in Fargie Petitioner (2008) the Court went as far as to say that proportionality
was not a ground of review, preferring the language of irrationality when considering
a cut-off date from the claiming of compensation.

Contrast between Wednesbury and Proportionality

“In R (daly) v Secretary of State for the Home Department (2001) Lord Steyn
examined the difference between reasonableness and proportionality, identifying
the following differences:
1. The doctrine of proportionality may require the reviewing court to assess the
balance which the decision maker has struck, not merely whether it is in the
range of rational or reasonable decisions;
2. The proportionality test may go further than the traditional grounds of review in
as much as it may require attention to be directed to the relative weight
accorded to interests and considerations;
3. Even the heightened scrutiny test is not necessarily appropriate to the
protection of human rights.”

Lecture summary
The requirement to act proportionally means that power must be exercised in a manner
that is proportionate to the objective pursued: in other words no more than is necessary.
At present the law continues to acknowledge that both tests play an important role within
the judicial review landscape
Procedural Impropriety
Lord Diplock in GCHQ (at 410):
I have described the third head as “procedural impropriety” rather than failure to
observe basic rules of natural justice or failure to act with procedural fairness
towards the person who will be affected by the decision. This is because
susceptibility to judicial review under this head covers also failure by an
administrative tribunal to observe procedural rules that are expressly laid down in
the legislative instrument by which its jurisdiction is conferred, even where such
failure does not involve any denial of natural justice. But the instant case is not
concerned with the proceedings of an administrative tribunal at all.
The Duty to Act Fairly
The Right to be Heard (Fair Hearing)
The Rule Against Bias
Failure to observe Procedural Rules laid down in Statute
Legitimate Expectations
The Right to a Fair Hearing
Right to be informed of the case against
Right to make representations
Right to call witnesses
Right to have legal representation
Right to have reasons for the decision

Procedural Fairness: Different arms

The Right to a Fair Hearing: General duty
• Provides a clear example of how the right to be heard can act as protection against the
coercive power by the state.
• In coming to his conclusions, Erle CJ, found that a duty to hear the plaintiff did exist and
that it was not restricted simply to those matters which were purely judicial in nature
• Held that he should have been entitled to prior notice of the charge and a proper
opportunity to contest it.

Cooper v The Board of Works for the Wandsworth District (1863)

• Echo's of Ridge, The Secretary of State’s decision was unlawful, as was the dismissal
which had been based on the Secretary of State’s directions
Ridge v Baldwin [1964] AC
R (Shoesmith) v OFSTED (2011).
General Rule: The concern of the court is to establish in all the circumstances what is
required in the interests of fairness.

McInnes v Onslow Fane [1978] 1 WLR 1520

FACTS: McInnes sought a declaration that a decision to not grant him a boxing
managers licence was flawed as he was given no oral hearing or notice of the case
against him.
Held: Sir Robert Megarry VC gave a three-fold categorisation of licensing. This is a
useful example of how fairness can be applied differently.
1. Forfeiture cases where a decision takes away some right or position would
attract a higher level of fairness
2. Application cases which generally involve nothing being taken away and so
level of fairness is much lower
3. Expectation cases which differ from application cases as the individual has
some expectation of receiving the benefit. This category would include
existing licence holders applying for a renewal
Right to be informed of the case against

The right to be heard is of limited value unless the person seeking the hearing is
aware of the nature of the case against them.
Lord Denning in Kanda v Government of the Federation of Malaya (1962)
“If the right to be heard is to be a real right which is worth anything, it must carry with
it a right in the accused man to know the case which is made against him. He must
know what evidence has been given and what statements have been made
affecting him” (at p337)
R v Governing Body of Dunraven School ex p B (2002) (CA)
Bank Mellat v HM Treasury (No 2) (2013)
Oral Hearing
• A person in a dispute should be allowed to make representations.
• Question is whether written format is sufficient to satisfy the duty
• No general duty to have an oral hearing see Lloyd v McMahon (1987)
• It depends upon the subject matter and the circumstances of the particular case;
upon the nature of the decision and whether there are substantial issues of fact
which cannot be satisfactorily resolved on the available written evidence”
R v Army Board ex p Anderson (1992)
• General guidance given in R (Osborn) v Parole Board [2013]
R (Osborn) v Parole Board [2013]
General guidance on when an oral hearing is required was provided in R (Osborn) v Parole
Board
1.1. When fairness to the prisoner requires that an oral hearing is held considering the
facts of theWhen fairness to the prisoner requires that an oral hearing is held considering
the facts of the case, and the importance of what is at stake.case, and the importance of
what is at stake.
2.2. Oral hearings are required when important facts are in dispute, or need to be
explained or Oral hearings are required when important facts are in dispute, or need to be
explained or mitigated.
3.3. Oral hearings ‘reflect the prisoner's legitimate interest in being able to participate in a
decision of Oral hearings ‘reflect the prisoner's legitimate interest in being able to
participate in a decision of considerable importance to him, where he has something useful
to contribute’.considerable importance to him, where he has something useful to
contribute’.
4.4. Oral hearings allow the prisoner (or their representatives) to put their case to the
board or to testOral hearings allow the prisoner (or their representatives) to put their case
to the board or to test the views presented to the board.the views presented to the board.
5.5. The board must not refuse oral hearings for the reason of saving time, trouble and
expense.The board must not refuse oral hearings for the reason of saving time, trouble and
expense.
These factors provide a good summary of the benefits of an oral hearing more generally.
The more important the decision to be made, the more likely that fairness will require an
oral hearing.
Right to call witnesses
• The main benefit of an oral hearing is the ability to determine questions of facts.
• The purpose of this is to allow each party to present their case, but also to test
the strength of the opposing case, through testing the credibility of the witnesses
or prising out inconsistencies in the opposing case.

R v Board of Visitors of Hull Prison, ex parte St Germain and Others (No 2)

Facts: Prisoner found guilty of a number of offences against prison rules following a
riot in prison complained he had not had the opportunity to call witnesses.
Held: The court held that this was a breach of natural justice, and that the
requirements of fairness ‘may oblige the board not only to inform the accused of the
hearsay evidence but also to give the accused a sufficient opportunity to deal with
that evidence’.

Right to have legal representation

Rule: No general Right
Statute will often allow for legal representation, however if the relevant statute is silent
then question of legal representation is at the discretion of the decision maker. In R v
Secretary of State for the Home Department, ex parte Tarrant, the High Court suggested
that the following factors should be considered;
1. The seriousness of the charge and of the potential penalty;
2. Whether any points of law are likely to arise;
3. The capacity of a particular prisoner to present his own case;
4. Procedural difficulties;
5. The need for reasonable speed in making their adjudication, which is clearly and
important consideration;
6. The need for fairness as between prisoners and as between prisoners and prison
officers.

Duty To Give Reasons

R v Secretary of State for the Home Department, ex parte Doody [1994] AC 532, 564,
The common law ‘does not at present recognise a general duty to give reasons for an
administrative decision’. However, it remains open to the common law to impose a duty to
give reasons on the grounds of fairness.

R v Civil Service Appeal Board, ex parte Cunningham [1992] ICR 816, 831.
Facts: A civil servant was unfairly dismissed from his position in the prison service. The Civil
Service Appeal Board awarded him significantly lower compensation than would have been
expected. The board gave no reasons for their decision.

Issue: Why wasn’t Cunningham given reasons.

Held: The Board should have given reasons for its decision as part of natural justice.

If Reasons Are Given, They Must Be Adequate

In Clarke Homes Limited v Secretary of State for the Environment and East Staffordshire
District Council, Sir Thomas Bingham MR stated, that:
"I hope I am not over-simplifying unduly by suggesting that the central issue in this
case is whether the [reasons provided] leaves room for genuine as opposed to
forensic doubt as to what he has decided and why. This is an issue to be resolved
as the parties agree on a straightforward down-to-earth reading of his decision letter
without excessive legalism or exaggerated sophistication".

Right to have reasons for the decision

A duty to give reasons, if it arises, means giving reasons for the decision after
making the decision. There are three main benefits to requiring public bodies to give
reasons for their decision.
1. Reinforcing the Rule of Law
2. Ensure Consistency of Decision Making
3. Legitimises Government Decision Making
Le Sueur, A. P. 1999. "Legal Duties to Give Reasons." Current Legal Problems 52 (1): 150-
172.

Lecture summary
With the right to a fair hearing, all the elements have developed to take a flexible approach
where fairness will depend on the circumstances of the case. The overriding importance in
all elements is fairness to the decision maker and applicant.

Rules against Bias

What is Bias?
Impartial and independent decision-making is a fundamental aspect of the Rule of
Law. The rule against bias is the second key element of the rules of natural justice.
This is the requirement that a decision-maker should not have their own personal
interest in the outcome or the decision made. If a decision-maker does have such
an interest, then the decision will not be considered to be fair.
Lord Philips in Re Medicaments and Related Classes of Goods (No 2)
Actual Bias
Examples of actual bias on the part of a judge are rare. As Lord Bingham states in
Locabail, this is because:
‘[hopefully] the existence of actual bias is very rare, but partly for other reasons also.
The proof of actual bias is very difficult, because the law does not countenance the
questioning of a judge about influences affecting his mind; and the policy of the
common law is to protect litigants who can discharge the lesser burden of showing
a real danger of bias without requiring them to show that such bias actually exists’.

Direct Interest: Finance

The Automatic Disqualification Rule applies in two main circumstances, when the decision
maker has a financial interest in the decision to be made, and when a non-financial interest
is so closely connected to the issues involved, that they should be treated as if they had a
financial interest.
Dimes v The Proprietors of the Grand Junction Canal (1852)
Facts: Claimants, the public company which the Lord Chancellor had an interest in as a
shareholder, brought an action against the landowner, the defendant. After the Vice-
Chancellor heard the case and found for the claimants, the case went to the Lord
Chancellor who affirmed Vice- Chancellor’s decision. The defendant was unaware of the
link between the Lord Chancellor and the company.
Issues: Was there potential bias as the Lord Chancellor was a shareholder of the claimant
company?
Held: The House held that the Lord Chancellor should have been disqualified from hearing
the case due to his interest in the company.

Direct Interest: Non-financial interests

It had been generally thought that the automatic disqualification rule applied to financial
interests only. Perhaps surprisingly, the automatic disqualification rule was applied to non-
financial interests in the unusual case of Pinochet (No 2).

R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet (No 2) [2000]

Facts: Claimant was a General Pinochet of Chile, who was facing extradition to Spain. he
claimed immunity as a former Head of State. The leading human rights organisation,
Amnesty International intervened in the case as a third party. The House of Lords agreed
tlo his extradition. Lord Hoffman a judge on that decision had been a chairman and
director of a charity wholly owned by Amnesty International..

Issue: Pinochet sought to have the decision set aside on the grounds of bias.

Held: The Court agreed and a new panel of judges was assembled to rehear the appeal.
However, the court found that there was no actual bias. But to avoid the appearance of
bias, not only to do justice but to be seen to do justice, Lord Hoffmann was disqualified
from the panel.

Non-direct interest: Apparent Bias

Apparent bias arises when the facts are such that there is a perception that the
decision maker maybe no longer impartial. Given the objective of ensuring that public
confidence is maintained in the decision- making process, this perception is sufficient to
mean that any decision is tainted by apparent bias.
The courts have attempted to establish the test for apparent bias, with the cases,
sometimes interchangeably using phrases such as whether there is a “probability”,
“danger” or “possibility” of bias. The current test for Bias comes from Porter v Magill

Porter v Magill [2001] UKHL 67

Facts: Westminster City Council had adopted a policy of selling council houses to tenants in
marginal council wards, in the belief that property owners are more likely to vote
Conservative. The auditor, investigated and found the leader and deputy leader of the
council guilty of wilful misconduct, and liable for the £31million that their actions had cost
the council.

Issue: They argued that the decision should not stand because it was tainted by apparent
bias, as the auditor held a press conference during the investigation, where he indicated he
believed the claimants were guilty.
Held: The court stated that it ‘must first ascertain all the circumstances which have a
bearing on the suggestion that the judge was biased. It must then ask whether those
circumstances would lead to a fair-minded and informed observer to conclude that there
was a real possibility... that the tribunal was biased’ It is now clear that the test is whether
there is a real possibility of bias. The Court found that the auditor's actions over the course
of the investigation meant that while the press conference was unwise, it did not give rise
to bias

Lecture summary
The rule against bias includes situations of actual bias and presumed bias. Where this is a
direct financial interest the decision maker is automatically disqualified. This can also
extend to parties to a case that extends beyond membership and interest
Where there is indirect bias, the courts must ascertain all the circumstances of
the case and ask whether a fair-minded and fully informed observer would
conclude there was a real possibility of bias
Legitimate Expectations:
The phrase legitimate expectation is a technical term, a legitimate expectation might
better be called a “legally protected expectation”. If a person has a legitimate expectation,
it is not merely legitimate for him or her to expect something; the law will give the
expectation some form of protection in judicial review. The general idea is that public
bodies should act in ways that we might legitimately expect them to act. But it does not
necessarily follow that a promise made, a practice established, or a policy published will
always lead to its protection by the courts. The Courts have been working in a process that
is still in flux to find a way for the law to protect expectations that public authorities
generate, without taking over the decision-making process of the public bodies.

Procedural Expectations v. Substantive Expectations

Procedural expectations
A procedural legitimate expectation is one when a public authority has made a
representation that it will follow a particular certain procedure before making a decision
on the substantive merits. For example R v Liverpool Corporation, ex parte Liverpool Taxi
Fleet Operators Association 1972

Substantive expectations
A substantive legitimate expectation arises where a public body makes a lawful
representation that an individual will receive, or continue to receive, a substantive benefit
of some kind. For example R v North & East Devon Health Authority ex p Coughlan [2001]
The extent to which judicial protection of substantive legitimate expectations risks
usurping the executive’s role turns on two key factors:
1. The circumstances in which substantive legitimate expectations can arise in the first
place.
2. The latitude which courts are prepared to grant public bodies in deciding whether the
public interest justifies dashing a substantive expectation.

What Generates a Legitimate Expectation?

An expectation does not deserve legal protection merely because it was reasonable for a
claimant to expect a particular action. There must have been a pattern of conduct, or a
representation, or a promise, that makes it unfair for the public authority to disregard the
expectation, then, it becomes the business of the courts to protect the expectation in
some way.

R v IRC, ex parte MFK Underwriting [1990] 1 WLR 1545

Facts: Investors sought assurances from the Inland Revenue on whether a particular type
of security bond would be taxed as income or capital gain. The IR made assurances that the
financial product would be treated as capital gain for the purposes of taxation. It later
changed its mind and decided to tax the product as income.
Held: Bingham LJ set out when a legitimate expectation would arise: When the taxpayer
has “put all his cards face upwards on the table;” When “the ruling or statement relied
upon [is] clear, unambiguous and devoid of relevant qualification.” (At 1569).
But also “The doctrine of legitimate expectation is rooted in fairness. But fairness is not a
one-way street. It imports the notion of equitableness, of fair and open dealing, to which
the authority is as much entitled as the citizen.”
■ Per Bingham LJ at 1569-1570.
R v IRC, ex parte Unilever [1996] STC 681

FACTS: For more than 20 years, the Inland Revenue accepted late claims for tax relief
(where company losses could offset any tax bill). Without giving notice, the Inland Revenue
decided that it would no longer accept late claims. It was argued that the established
practice of accepting late claims gave rise to an enforceable legitimate expectation, and
the court agreed.

HELD: The claimant had good cause to expect an established practice to continue, because
the repetition of the practice gave rise to a clear, unambiguous and unqualified
expectation of a certain treatment (that late claims would be considered).

Does reliance matter?

If a claimant acted to his or her detriment because of an expectation that a public authority
induced, then that fact will count in favour of an argument that it would be an abuse of
power for the public authority to ignore the expectation. But reliance is not conclusive,
because the requirements of public policy and the interest of third parties may mean that
it is not an abuse of power to disappoint an expectation, even after a claimant has relied
on it.

R (Bibi) v Newham LBC [2002] 1 WLR 237

FACTS: The claimants were families who had arrived in the UK, and were provided with
temporary accommodation by the local authority. The local authority promised the
families that they would be in secure, long-term accommodation within 18 months,
because the local authority thought that they were obliged by law to make such an
assurance. It turned out that the local authority was under no such duty, and declined to
treat the claimants more favourably than other families on housing waiting lists. In judicial
review, the High Court found for the claimants in requiring the local authority to be
bound by its promise.

What would this mean in practice?

• The council will have to consider the fact that it once created a legitimate expectation of
a secure tenancy within 18 months; this fact becomes a lawful consideration—one which
the local authority must consider when allocating housing.
• It is more likely, therefore, that the claimants will receive a secure tenancy sooner than
would otherwise be the case.
• But the discretion is still the local authority’s. The case also advances the point, discussed
to a lesser extent in MFK Underwriting, that reliance on a promise to the claimant’s
detriment would be relevant in assessing the fairness one might attach to enforcing (or
not) a legitimate expectation.
Consistency

R (Rashid) v Home Secretary [2005] EWCA Civ 744

Facts: The claimant was a Kurd from Iraq, whose application for asylum was
turned down on the basis that the could have escaped persecution within Iraq by
relocating to the Kurdish zone. Neither Rashid nor his advisers, nor the Home
Office caseworker who dealt with his claim knew that the Home Secretary had a
policy that asylum claims were not to be refused on that ground.
Held: The Court of Appeal held that the rejection of the claim was an instance of
unfairness amounting to an abuse of power.
Analysis: The Court of appeal described it decision in Rashid as an application of
the doctrine of legitimate expectation. But Rashid had no expectation, he did not
know about the Home Secretary’s policy. The result is that the public authorities
conduct was substantively unfair because the defendant had led the claimant to
expect a different course of conduct.
Nadarajah v Home Secretary [2005] EWCA Civ 1363
This claim also involves asylum; however, this time two different Home Office policies
applied:
◦ One policy required that claims from persons first entering the EU in another member
state be assessed in that other member state only;
◦ The other policy required that claims for asylum should be heard in the UK where there
are existing family ties to the UK.
The claimant arrived in the UK via Germany, yet argued that they had family ties to the
UK. The Home Office sought to rely on the first policy in seeking the claimant’s removal
to Germany. The claimant sought to rely on the second policy in judicial review—that
they had a legitimate expectation that the second policy would be enforced.
The claim failed.
For Laws LJ, the decisive point is whether the public body has, in frustrating the
expectations of the claimant, abused its power.
What about Political Promises?

R v Education Secretary, ex parte Begbie [2000] 1 WLR 1115

FACTS: The Government funded a number of places in private (fee-paying)
schools, so that children who could not afford such schools had an opportunity to
attend them. The Labour manifesto of 1997 sought to abolish this scheme of
assisted places. However, assurances were made that children already receiving
assistance would continue to receive assistance until the end of their schooling.
Held: The claim was rejected. No enforceable legitimate expectation arises where
compliance with it would run counter to an Act of Parliament; No pre-election promise can
give rise to any legal effect—whether in legitimate expectations or otherwise. Evidently
such a promise is to be enforced in the political sphere.
Wheeler v Office of the Prime Minister [2008] EWHC 1409 (Admin)

FACTS: In 2004, Tony Blair signed the Constitutional Treaty (EU Constitution), and
promised that a referendum will be held before ratification could take place.
Following rejection in France and the Netherlands, the project to have an EU
Constitution was abandoned. The Lisbon Treaty was later sought as a compromise.
When the Government refused to offer a referendum on ratification of the Lisbon
treaty, Wheeler brought a claim in judicial review.
Held: The claim failed: To hold a referendum would be a political judgement; The law on
ratification did not require a referendum; And besides, the Lisbon Treaty was a different
treaty to the EU Constitution.

The story of Legitimate expectations so far...

Perhaps all of the cases thus far could be read as giving effect (or not) to a procedural right:
That certain policies would be operational (Rashid, Nadarajah)
That certain factors would be taken into account when deciding the substantive matter
(MFK, Bibi, Begbie)
That a treaty would be ratified in a particular way
(Wheeler).
So far these all are procedural in nature
R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213
Facts: The claimant was severely injured in a road traffic accident in 1971 and
required care on an on-going basis. In 1993, she was asked to move to a new
NHS facility, Mardon House, with a promise that Mardon House would be her
home for life. In 1998, the health authority decided to close Mardon House on
financial grounds.

Held: In a claim for judicial review, the High Court quashed the decision to close
Mardon House on the basis that Coughlan had been made a specific promise,
and the defendant had not advanced an overriding public interest to break such a
promise. The health authority appealed, but the CA rejected the appeal, affirming
the High Court decision
Significance of Coughlan
1. It established beyond doubt that courts would recognise substantive legitimate
expectations.
2. It demonstrated judicial willingness to protect such expectations rigorously. Prior
to Coughlan, there had been sharp disagreement over how courts should
review government decisions to frustrate substantive expectations.
However...
The way in which the Court approached its task in Coughlan raises concerns.
Specifically that there is a real risk of the distinction between appeal and review
dissolving.

Lecture summary
Legitimate Expectation occur when the decision-maker, by either words or actions, creates
a reasonable and therefore legitimate expectation that certain procedures will be followed
in reaching a decision. Public bodies may limit what they might lawfully do in the future by
creating promises, practices or policies which give rise to enforceable legitimate
expectations. The doctrine of legitimate expectation requires judges to pass judgement on
the substantive fairness of administrative decisions, but there is still no general doctrine
that an administrative decision should be struck down just because it is substantively
unfair. Whilst Legitimate expectations as a ground for judicial review promotes the
certainty and trust in executive authority, thus upholding the rule of law, it must also be
recognised that the executive must be able to develop, adapt and change policies
particularly if in the public interest.