Judicial Review

Lecture
LECTURETwo - Constitutional
TWO: ADMINISTRATIVE LAW Law
Judicial Review
• Judicial review lies at the heart of administrative law.

• It is a procedure that is designed to test and ensure the legality of acts

of those public bodies on which Parliament has conferred powers.

• Public bodies: ministers of the Crown, local authorities, National

Health Service Trusts, universities, and so on…
• The requirement that public bodies act according to law involves a number of
issues, such as:
• whether the public body has correctly interpreted its powers granted by statute or
common law;

• whether any discretion conferred by statute has been lawfully exercised;

• whether the decision-maker has complied with the requirements of natural justice (or
fairness);

• whether the decision-maker has violated a person’s human rights as protected under
the Human Rights Act 1998;

• whether the decision-maker has acted in a manner proportionate to the objective.

• From a constitutional standpoint, judicial review upholds both the
will of Parliament and the rule of law by ensuring legality of those to
whom power has been delegated.

• However, it is important that the judiciary does not interfere in

decisions that are more appropriately taken by the democratically
elected and accountable government.
The issue of “justiciability”

• The judges use the concepts of justiciability and non-justiciability to

decide where the boundary lies between the correct scope of the
judicial function and areas best left to the executive.
Applying for judicial review
• The basis for judicial review lies in section 31 of the Supreme Court Act
1981 and the Civil Procedure Rules 1998.

• Combined, the law requires that the applicant must have a ‘sufficient
interest’ in the matter to which the application relates,

• …and that the application must be made within three months of the
decision against which review is sought, unless statute provides for a
shorter period for challenge.
Public Bodies

• It is for the court to decide, on an application for judicial review, whether

or not the body in question is a ‘public body’ for judicial review purposes

• Difficult decision as it is not a matter simply of whether the body is owned

by the State or is in private ownership.

• Nowadays, many functions for which the State is responsible are in fact
undertaken by bodies that are privately owned.
Two cases to look at

• R v City Panel on Takeovers and Mergers ex parte Datafin Ltd (1987)

• The court ruled that although the City Panel had no statutory or
other legal source of power,

• … it was nevertheless subject to judicial review on the basis that if

the Panel did not exist, its functions would have to have been
undertaken by a government department.
• Compare that case with,

• R v Disciplinary Committee of the Jockey Club ex parte Aga Khan (1993)

• The Jockey Club disqualified a winning horse from a race for failing a dope
case.

• On an application for judicial review of the decision, the Court ruled that the
relationship between racehorse owners and the Club, and the powers of the
Club, derived from an agreement between the parties. Accordingly it was a
matter of private, not public law.
 Exclusivity Principle
• Judicial review includes safeguards for public bodies to prevent unjustified
challenges to the administrative process.

• If an issue is governed by private law, then the aggrieved person should

pursue a legal remedy in private law proceedings: not through judicial review.

• The case of O’Reilly v Mackman (1983) illustrates what has become known as
the ‘exclusivity principle’, by which public and private law are kept separate.
 Matters of both public and private
• There may be cases that involve matters of both public and private law, and here the
court has a discretion as to whether or not to grant an application for judicial review.

• Wandsworth London Borough Council v Winder (1985) –

• The House of Lords allowed a matter of public law (the lawfulness of the Council’s
decision) to be used as a defence to private law proceedings (for possession of
property) commenced by the Council.

• Winder sought to argue in his defense that the decision of the Council to raise rents
was void on the ground that it was unreasonable.
 Wandsworth London Borough Council v
Winder continued…
• The Court, citing O’Reilly v Mackman, recognised that the interests of
good administration required protection from ‘unmeritorious
challenges,’

• …but that this had to be weighed against the rights of private citizens to
protect themselves against unfounded claims.

• In this case, Winder had not initiated proceedings: he was merely trying
to defend himself against the act of the Council.
“Sufficient Interest” or “locus standi”
• The requirement of sufficient interest is designed to ensure that individuals
who have only a casual or passing interest in the matter do not interfere
with the administrative process.

• The test is designed to strike a balance between ensuring that public

bodies act lawfully and enabling those who are carrying out state
functions to achieve their legitimate objectives without undue
interference.
The test: sufficient interest

• Individuals whose legal rights are adversely affected by a decision of a

public body will generally be deemed to have sufficient interest.

• The courts recognise that there are also representative bodies and
pressure groups that act on behalf of others, or act more generally in
the public interest, and where this is the case the court may hold that
the body in question has sufficient interest.
The test: sufficient interest
• Individual interest
• Schmidt v Secretary of State for Home Affairs (1969) –

• Students who had been refused permission to remain once their

permitted period of stay in the United Kingdom had expired had
sufficient interest to challenge the decision of the Home Office which
affected their personal liberty.
• Representative groups acting on behalf of their members

• R v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators’

Association (1972)

• The Association which represented taxi drivers had standing to apply

for judicial review of the Corporation’s decision to increase the
available number of taxi licences without consulting the taxi drivers.
• Representative groups acting on behalf of their members

• Royal College of Nursing v Department of Health and Social Security

(1981)

• The Royal College had sufficient interest to challenge the

Department’s circular relating to the role of nurses in abortions
operations.
• Groups acting in the public interest

• Here, in order to prevent too wide a scope for interference in the

administrative process, the courts may be restrictive.

• Compare the following cases:

• R v Secretary of State for the Environment ex parte Greenpeace Ltd (No 2)

(1994)

• R v Secretary of State for the Environment ex parte Rose Theatre Trust

Company Ltd (1990)
R v Secretary of State for the Environment ex parte
Greenpeace Ltd (No 2) (1994)
• The court ruled that Greenpeace had sufficient interest to challenge
the decision of the Inspectorate of Pollution to allow the siting of a
nuclear reprocessing plant at Sellafield.

• Greenpeace had over 400,000 supporters in the United Kingdom and

it was in the interests of justice to allow the action on behalf of all
those concerned with the decision.
R v Secretary of State for the Environment ex parte
Rose Theatre Trust Company Ltd (1990)
• The Court ruled that the company did not have sufficient interest to
challenge a decision affecting the future of the Shakespeare’s Globe
Theatre site in London.

• The Company had thousands of supporters but there was no

membership list as such.
Time Limits

• Under the Civil Procedure Rules 1998, an application for judicial review
must be made within three months of the decision being challenged.

• This rule does not apply where an Act of Parliament provides for a shorter
time limit.

• A shorter time limit is applied, for example, in relation to planning matters.

 Ouster Clauses
• In order to protect the administrative process, Parliament may attempt to
exclude any judicial review of decisions.

• It does this by inserting an ‘ouster clause’ in an Act of Parliament.

• This is problematic for the courts.

• On the one hand they are under a duty to respect Parliament’s will,
• …but on the other hand, they have the duty to ensure that public bodies who have been
entrusted with powers keep within the scope of those powers and comply with the rule
of law.
• R v Medical Appeal Tribunal ex parte Gilmore (1957)

• The statute provided that ‘the decision on any medical question by a

medical appeal tribunal . . . is final’.

• Gilmore had lost his sight and applied for compensation under an
accidental industrial injuries scheme. Rather than be assessed at 100
per cent disabled, the tribunal assessed his disability at 20 per cent –
a misinterpretation of the law (an error of law).

• Could the court correct the error or was its jurisdiction ousted?
• Lord Denning stated that the word ‘final’ only meant ‘without appeal’.

• It did not mean that the jurisdiction of judicial review was excluded.

• Accordingly ‘certiorari (now known as a quashing order) can still issue

for excess of jurisdiction or for error of law...’.
• South East Asia Firebricks v Non-Metallic Mineral Products
Manufacturing Employees’ Union (1981)

• The Privy Council distinguished between

• an error of law that was within jurisdiction
• and one that took the tribunal outside its jurisdiction.

• Here, the tribunal had applied its mind to the correct questions and
any error was not so fundamental as to deprive it of jurisdiction.

• Accordingly, the ouster clause was respected.

• Anisminic v Foreign Compensation Commission (1969)

• The House of Lords refused to have its jurisdiction ousted.

• Concerned a property of Anisminic which was sequestered in Egypt

and Animistic sought compensation.

• The Foreign Compensation Act 1950 provided that the decision of the
Foreign Compensation Commission (FCC) ‘shall not be called into
question in any court of law’.
• The House of Lords ruled that its jurisdiction was not ousted,
• … and that the FCC’s decision was null and void on the basis that it
had misinterpreted the Foreign Compensation Order,

• … and that the nationality of the successor in title was not a relevant
consideration when the applicant was the original owner of the
property.

• The FCC had acted outside its jurisdiction and the court –
notwithstanding the ouster – was entitled to correct its error.
Problems with Anisminic
• Anisminic raises difficult issues and demonstrates that the courts
must be very careful not to have their jurisdiction ousted, even in the
face of clear words in a statute.

• However, it is not always clear when a decision will be so ‘bad’ that

the tribunal had no jurisdiction to make it (and the decision will be
declared void) and when a decision is within jurisdiction and the
courts will respect the ouster clause.
Revisiting: Justiciability and non-justiciability
• In order to avoid trespassing on matters that, for the sake of
separation of powers, should be left to either the executive or
Parliament to decide, the judges employ the concepts of justiciability
and non-justiciability.
• ‘Justiciability’ means that a matter is regarded as suitable for review
by the courts.
• ‘Non-justiciability’ means that the judges regard the matter as one
that should not be reviewed by the courts, but left to the executive or
Parliament to determine.
• Council for Civil Service Unions v Minister for the Civil Service (1985)
• The House of Lords examined the concept of justiciability, holding that
matters such as,

• the appointment of ministers,

• dissolution of Parliament,
• grant of honours,
• Treaties, and,
• matters of national security

• … were not appropriate subjects for review by the courts.

• Matters of public policy are also regarded as non-reviewable,
particularly when the issue relates to economic policy such as the
funding of local authorities.

• The concept of non-justiciability therefore restricts the scope of

judicial review.
The Grounds for Judicial Review

• Two key concepts in judicial review are intra and ultra vires.

• In other words has the public body acted within the power granted by
statute, or has it in some way acted unlawfully and outside its power?

• Council for Civil Service Unions v Minister for Civil Service (the GCHQ
case) the House of Lords took the opportunity to rationalise the
heading for judicial review…
• Lord Diplock stating that these were:

• illegality
(has the decision-maker correctly interpreted the relevant law?)

• irrationality
(is the decision so outrageous that no sensible person could have
arrived at it? A standard derived from the case Associated
Provincial Picture Houses Ltd v Wednesbury Corporation and
referred to as Wednesbury unreasonableness);

• procedural impropriety
(has the decision-maker failed to observe the required procedural
rules or failed to observe the rules of natural justice and/or
fairness?).
• Lord Diplock also recognised that there may be additions to these three
principal grounds, most particularly that of proportionality, which is a
well-established principle of law in many European countries.

• The three established broad headings each represent an umbrella term

for more detailed failures on the part of administrators, some of which
may overlap in any given situation.
• Irrationality

• Wednesbury unreasonableness;
• failing to act proportionately, especially under the Human Rights Act
1998
• Illegality

• errors of law and/or fact;

• attaching onerous conditions;
• using powers for the wrong purpose;
• taking irrelevant factors into account;
• failing to take relevant factors into account;
• acting in bad faith;
• fettering discretion;
• unauthorised delegation of decision-making power;
• failure to act;
• failing to comply with Convention rights.
• Procedural impropriety

• failing to comply with mandatory procedures;

• breach of natural justice (the right to a fair hearing; rule against bias);
• breach of Article 6 of the European Convention on Human Rights;
• failing to respect legitimate expectations;
• failing to give reasons.
Next Lesson

• We will look at each ground with more detail..!