Judicial review

What is judicial review?

Judicial review is the process by which courts assess the legality of decisions made by public bodies.

What is the main purpose of judicial review?

To ensure public bodies act lawfully, fairly, rationally, and within the limits of their powers

Is judicial review an appeal on the merits?

No. Judicial review focuses on whether the decision was lawful, not whether the court would have made a better decision.

What is the key distinction between review and appeal?

An appeal considers whether a decision was correct; judicial review considers whether the decision-making process was lawful.

What are the three traditional grounds of judicial review from GCHQ?

Illegality, irrationality, and procedural impropriety.

What case established the modern classification of judicial review grounds?

Council of Civil Service Unions v Minister for the Civil Service.

What is illegality in judicial review?

Illegality occurs where a public body misunderstands, exceeds, or misuses its legal powers.

What is irrationality in judicial review?

Irrationality means a decision is so unreasonable that no reasonable public body could have made it.

What case is associated with irrationality?

Associated Provincial Picture Houses v Wednesbury Corporation.

What is Wednesbury unreasonableness?

A decision is unlawful if it is so unreasonable that no reasonable authority could ever have reached it.

Why is Wednesbury considered a high threshold?

Because courts will not interfere merely because they disagree with the decision; the decision must be extremely unreasonable.

What is procedural impropriety?

A decision is unlawful if the public body fails to follow required procedures or basic standards of fairness.

What are the two main aspects of procedural fairness?

The right to a fair hearing and the rule against bias.

What does the rule against bias require?

Decision-makers must not have actual bias or appear to be biased.

What case expresses the principle that justice must be seen to be done?

R v Sussex Justices, ex parte McCarthy.

What does natural justice mean?

Basic fairness in decision-making, including impartiality and giving affected persons a fair opportunity to respond.

What is ultra vires?

Acting beyond legal powers granted by statute, prerogative, or common law.

Why is ultra vires important?

It reflects the rule of law by ensuring public bodies only act within lawful authority.

What is a relevant consideration?

A factor the decision-maker must take into account when making a lawful decision.

What is an irrelevant consideration?

A factor the decision-maker must not rely on when making the decision.

What case is associated with relevant and irrelevant considerations?

Padfield v Minister of Agriculture.

What did Padfield establish?

Discretionary powers must be used to promote the purpose of the Act, not frustrate it.

What is improper purpose?

Using a legal power for a purpose different from the one Parliament intended.

What case is linked to improper purpose?

Congreve v Home Office.

What does fettering discretion mean?

A public body unlawfully restricts its own discretion by applying a rigid policy or refusing to consider exceptions.

Can public bodies use policies?

Yes. Policies are allowed, but decision-makers must remain willing to consider individual cases.

What is legitimate expectation?

A public law expectation created by a public body’s promise, representation, or consistent past practice.

What are the two types of legitimate expectation?

Procedural legitimate expectation and substantive legitimate expectation.

What is procedural legitimate expectation?

An expectation that a person will receive a particular procedure, such as consultation or a hearing.

What is substantive legitimate expectation?

An expectation that a person will receive a specific benefit or outcome promised by a public body.

What case is important for substantive legitimate expectation?

R v North and East Devon Health Authority, ex parte Coughlan.

What did Coughlan establish?

A clear promise by a public authority may be enforceable where it would be unfair to depart from it.

What is standing in judicial review?

The requirement that a claimant must have a sufficient interest in the matter being challenged.

What statute sets out the standing requirement?

The Senior Courts Act 1981, section 31.

What case shows a liberal approach to standing?

R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed.

What is proportionality?

A standard of review asking whether a measure pursues a legitimate aim and goes no further than necessary.

When is proportionality especially important?

In human rights cases under the Human Rights Act 1998.

How does proportionality differ from Wednesbury review?

Proportionality is more structured and intensive, while Wednesbury is more deferential.

What remedies are available in judicial review?

Quashing orders, prohibiting orders, mandatory orders, declarations, injunctions, and damages in limited cases.

What is an ouster clause?

A statutory provision that attempts to exclude or limit judicial review of a public body’s decision

Why are ouster clauses constitutionally problematic?

They restrict access to justice and may undermine the rule of law by protecting unlawful decisions from review.

What is the leading case on ouster clauses?

Anisminic v Foreign Compensation Commission [1969].

What happened in Anisminic?

A statute said the Commission’s decisions could not be questioned, but the court held that legally flawed decisions were not valid determinations.

What principle came from Anisminic?

Errors of law can make a decision legally invalid, so courts will interpret ouster clauses narrowly.

Why is Anisminic important?

It made it very difficult for Parliament to exclude judicial review of legal errors.

What interpretive technique did the court use in Anisminic?

Narrow interpretation of the ouster clause to preserve judicial review.

What is the modern key case on ouster clauses?

R (Privacy International) v Investigatory Powers Tribunal [2019].

What did Privacy International decide?

The ouster clause did not clearly exclude judicial review for errors of law.

What principle does Privacy International reinforce?

There is a strong presumption against excluding judicial review unless Parliament uses very clear words.

What important obiter point was suggested in Privacy International?

Some judges suggested courts may always retain supervisory jurisdiction to protect the rule of law.

What is the main difference between ouster clauses and time limit clauses

Ouster clauses try to exclude review entirely; time limit clauses allow review but only within a set period.

What is the general time limit for judicial review?

A claim must be brought promptly and usually within three months.

Why do some statutory schemes impose shorter time limits?

To provide certainty in areas like planning, land use, and compulsory purchase

What is the key case on statutory time limits?

Smith v East Elloe Rural District Council [1956].

What happened in Smith v East Elloe?

A challenge to a compulsory purchase order was brought years after a six-week time limit and was rejected.

Why did the court uphold the time limit in Smith v East Elloe?

Because the statute imposed a clear time limit and the claimant had an alternative private law remedy.

What does Smith v East Elloe show?

Courts may uphold strict time limits where access to justice is not completely removed.

What did R v Secretary of State, ex parte Ostler confirm?

Statutory time limits remain enforceable, and out-of-time claims can be struck out.

Why are time limits less objectionable than ouster clauses?

They do not fully remove judicial review and help public bodies and third parties rely on decisions.

What was controversial about the Asylum and Immigration Bill ouster clause?

It attempted to exclude all court supervision, including supervisory jurisdiction, to avoid Anisminic-style interpretation.

Why did the proposed asylum ouster clause fail?

It faced strong opposition from Parliament, the judiciary, and the legal profession.

What did Lord Donaldson suggest about extreme ouster clauses?

He suggested courts might refuse to give effect to an ouster clause that tried to exclude judicial review completely

How does Jackson v Attorney General relate to ouster clauses?

It suggests courts may resist legislation that fundamentally undermines the rule of law.

What is a quashing order?

A remedy that nullifies an unlawful decision.

Why is a quashing order important in judicial review?

It is the most common remedy and removes the legal effect of the unlawful decision.

What is a mandatory order?

A remedy requiring a public body to perform a legal duty or act lawfully.

What is a prohibiting order?

A remedy preventing a public body from taking unlawful action in the future.

What is a declaration?

A court statement clarifying the legal position, without directly forcing action.

Are judicial review remedies automatic?

No. Remedies are discretionary even where unlawfulness is proved.

Why might a court refuse a judicial review remedy?

Because of delay, bad faith by the claimant, prejudice to third parties, or where the outcome would not have changed.

What did the Criminal Justice and Courts Act 2015 change about remedies?

It directed courts to refuse relief where the outcome would likely have been substantially the same.

Why is the “substantially different outcome” test controversial?

It shifts attention from legal process to likely outcome, risking weaker control of unlawful decision-making.

What is the limit of success in judicial review?

Winning may only require the public body to remake the decision lawfully, not necessarily reach a different result.

Why has judicial review reform been politically controversial?

Because judicial review protects legality but can frustrate government decision-making and major policies.

Why was Miller No 1 important in debates about judicial review reform?

It showed courts limiting executive prerogative power in the Brexit process, intensifying political criticism of judicial review.

What did the Criminal Justice and Courts Act 2015 require about claimant funding?

Claimants must disclose information about financial support at the permission stage.

Why is financial disclosure controversial?

It may discourage funders, crowdfunding, and public interest litigation, reducing access to justice.

What new remedies did the Judicial Review and Courts Act 2022 introduce?

Suspended quashing orders and prospective-only quashing orders.

What is procedural impropriety in judicial review?

Procedural impropriety occurs when a public body fails to follow required procedures or breaches basic standards of fairness.

What are the two main forms of procedural impropriety?

Failure to follow statutory procedures and failure to comply with common law fairness.

Why is procedural fairness important in public law?

It ensures public bodies make decisions fairly, transparently, and without abusing power.

Is procedural fairness concerned with the outcome or the process?

The process. Judicial review asks whether the decision was made lawfully and fairly, not whether it was the best decision.

What is natural justice?

A basic fairness principle requiring fair hearing and absence of bias in decision-making.

What are the two core rules of natural justice?

The right to a fair hearing and the rule against bias.

What does the right to a fair hearing require?

A person affected by a decision should have a fair opportunity to know the case against them and respond.

What does the rule against bias require?

Decision-makers must not be biased or appear biased

What is the key case on apparent bias?

Porter v Magill.

What is the test for apparent bias from Porter v Magill?

Whether a fair-minded and informed observer would conclude there was a real possibility of bias.

What case states that justice must be seen to be done?

R v Sussex Justices, ex parte McCarthy.

Why is ex parte McCarthy important

It shows that even the appearance of bias can make a decision unlawful.

What is actual bias?

Actual bias occurs where a decision-maker is genuinely prejudiced or has a personal interest affecting the decision.

What is automatic disqualification for bias?

Where a decision-maker has a direct financial or personal interest in the outcome, they must not decide the case.

What case is linked to automatic disqualification?

Dimes v Grand Junction Canal.

What did Dimes establish?

A judge or decision-maker with a financial interest in the case is automatically disqualified.

Why is procedural fairness flexible?

Because what fairness requires depends on the context, the decision, and its impact on the individual.

What case shows that fairness is context-specific?

Lloyd v McMahon.

What did Lloyd v McMahon establish?

Fairness is not fixed; its requirements depend on the circumstances of the case.

What did Ridge v Baldwin establish?

A person dismissed from public office was entitled to procedural fairness before the decision was made.

Why is Ridge v Baldwin important?

It revived natural justice in administrative law and confirmed that public bodies must act fairly.

What is the right to know the case against you?

A person must usually be told the substance of the allegations or reasons so they can respond effectively.