Law & Government

Judicial Review

Judicial review is a process by which the lawfulness of the actions of public authorities can be challenged. Judicial review does not come from statute, it is inherently supervisory and simply exists.

Grounds of judicial review

IPP

• Illegality

• Irrationality

• Proportionality

• Procedural impropriety

Power

What the public authority may do.

Duty

What the public authority must do.

Ultra vires

“Beyond the powers": Means an act or decision made by a person or body (like a company or government agency) that exceeds the legal authority or powers granted to it by statute, charter, or constitution, rendering the action invalid, void, or subject to challenge in judicial review.

Parliamentary Sovereignty

Parliament has the power to make or unmake any law.

The Rule of Law

Council of Civil Service Unions v Minister for the Civil Service (GCHQ) [1984] UKHL 9

Grounds of JR: All of it is challenging the decision by claiming it is illegal.

1. Illegality (in a specific sense)

2. Irrationality

3. Proportionality

4. Procedural impropriety 

Scope of illegality challenge in JR

Illegality:

1. Ultra vires (beyond powers)

2. Discretion

   1. Proper and improper purposes (ministers cannot exercise their powers in whatever way they like, they must follow the restrictions to properly exercise their power)

   2. Relevant and irrelevant factors (if a minister took into account an irrelevant factor in their decision, their decision can be challenged based off of that)

   3. Unauthorized delegation (statutes delegates powers to minister, ministers cannot give powers to another person to make a decision)

   4. Fettering or surrendering discretion (if the public authority surrenders their discretion)

   5. Failing to meet legitimate expectations (if ministers release guidance on how they decide approval for meeting a policy but then deny you admittance despite meeting the requirements in the guidance)

McColl v Strathclyde Council [1983] S.C. 225

An example of a public authority acting ultra vires its powers that were granted to them by statute.

Scope of discretion challenge in JR

• Proper and improper purposes

• Relevant and irrelevant factors

• Unauthorised delegation

• Fettering or surrendering discretion

• Failing to meet legitimate expectations

Discretion definition

Discretion: 

1. To act with discretion: to act with good judgement

• The conduct is subject to normative standards

• ‘use your discretion’, ‘rely on your discretion’

2. To have discretion: To have a free choice

• In the absence of any governing standards bearing on your decision.

i. Proper & Improper Purposes

• Purpose(s) for which a discretionary power is granted are a matter of law.

• Purpose(s) with which a power is exercised depend on facts as found.

Highland Regional Council v British Railways Board [1996] SLT 274

Exercising discretionary powers for improper purposes to circumvent legislation is ultra vires.

Statutory purposes

1. Explicit statutory purpose 

2. Implicit statutory purpose 

3. Strained statutory purpose 

4. Mixed purposes of public authority

Municipal Council of Sydney v Campbell [1925] AC 338 (PC)

Exercising discretion for purposes other than what was explicitly set out in the same statute that granted the powers was ultra vires.

Wheeler v Leicester City Council [1985] AC 1054

Using a separate statute’s purpose to exercise discretion for improper purposes is unlawful.

Congreve v Home Office [1976] QB 629 (CA)

It is an improper exercise of a discretionary power to use a threat to exercise that power as a means of extracting money which Parliament has given the executive no mandate to demand.

R v Somerset CC, ex parte Fewings [1995] 1 All ER 513

Public bodies may only take into account lawful considerations when exercising their discretion.

British Oxygen Co Ltd v Minister of Technology [1971] AC 610

When an Act of Parliament confers unlimited discretion to the executive, the executive is free to implement a policy provided that it nonetheless considers applications contrary to the policy. ​​The general rule is that anyone who has to exercise a statutory discretion must not ‘shut his ears to an application’. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all.

ii. Relevant and Irrelevant Factors

• The public authority must take into account all relevant factors in their decision and if they do not, their decision can be challenged. 

• If the public authority takes into account an irrelevant factor, their decision can be challenged.

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Wednesbury test: 

For the court to adopt any remedies against decisions of public bodies, it would have to find that the decision-maker:

1. Had given undue relevance to facts that in reality lacked the relevance for being considered in the decision-making process.

2. Had not given relevance to facts that were relevant and worthy of being considered in the decision-making process

3. Had made a decision that was completely absurd, a decision so unreasonable that no reasonable authority could have possibly made it.

Wednesbury unreasonableness

Being so unreasonable that no reasonable authority could have decided that way. A decision will only be regarded as unreasonable on substantive grounds if it was so unreasonable that no reasonable decision-maker could have come to it. (3rd limb of the Wednesbury test).

Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1

A minister’s discretion in exercising his statutory powers is subject to the restriction that it cannot frustrate the purpose of the Act he derives. Unlimited discretion is not unlimited, the statute Parliament has passed has a purpose and by conferring the power upon a minister, the purpose for the minister is to accomplish Parliament’s goals using statute.

Unauthorized delegation

1. Explicit power to delegate 

2. Implicit power to delegate

   1.  Civil service: special position

   2.  The Carltona Doctrine 

3. No power to delegate

Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 

Estbalished the Carltona Doctrine

Carltona Doctrine

The acts of government departmental officials are synonymous with the actions of the minister in charge of that department. The minister is responsible for his department’s actions and departments even if they are not the one who made the decision.

R (Bourgass) v Secretary of State for Justice [2015] UKSC 54

A public authority cannot delegate power to another if doing so is against the statute’s intended purpose for empowering the public authority.

Sagnata Investments Ltd v Norwich Corp [1971] 2 QB 614 

Generally, it is unlawful for a public authority to adopt/apply an inflexible policy for a class of cases. Any general policy must not be universal, the public authority must leave space to consider exceptions.

R (Lumba) v SoS for the Home Department [2011] UKSC 12

Public authorities must follow published policies unless there is good reason to depart, and they must not act on undisclosed policies.

Through illegality JR, people can challenge:

1. Decision made by applying a policy

   1. Public authority has fettered its discretion 

2. Decision made by NOT applying a policy

   1. Policy created a legitimate expectation 

3. Decision to adopt the policy altogether

4. Decision NOT to adopt/publish a policy

Belfast CC v Miss Behavin’ Ltd [2007] UKHL 19

If statute allows a blanket ban, then the decision maker does not have to show that it carried out a proportionality inquiry itself to prove that its measures were proportionate.

Ayr Harbour Trustees v Oswald [1883] 20 SLR 873

A public authority can fetter its discretion by entering a contract to restrict itself, but if the fettering is unlawful then the contract is void.

R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44

Judicial review for illegality due to fettering of discretion does not apply to prerogative powers so blanket policies enacted under prerogative powers do not necessarily have to include exceptions to be lawful.

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

A legitimate expectation would arise when the representation:
1. A representation/undertaking must be made

• By identifiable statement and/or conduct

• Of person with actual/ostensible authority

• That applies to facts clearly/unambiguously

• And is “devoid of relevant qualification”

When considering if there was a legitimate expectation:

Legitimate Expectation:

• Has the applicant (A) been open and honest?

  • Has the applicant put ‘all cards face up on the table’ (R v IRC, ex parte MFK Underwriting [1990]) 

• Would A get unmerited or improper benefit?

• Has there been reliance? To A’s detriment?

• Are there 3^rd-party (or wider public) interests?

• Is the context appropriate? (Election context. R v Secretary of State for Education, ex parte Begbie [2000]).

A-G of HK v Ng Yuen Shiu [1983] 2 AC 629 (PC)

The applicant need not have known of the representation.

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

It is not necessary for the applicant to rely on the representation to their detriment.

R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213

If a public authority makes a promise, they cannot depart from it if departing from that promise was so unfair as to amount to an abuse of power.

R (A) v Secretary of State for the Home Department [2021] UKSC 37

Leading case that affirms the Gillick Test: A policy is unlawful if it sanctions, positively approves or encourages unlawful conduct by those to whom it is directed.

DPP v Purdy [2009] UKHL 45

The principle of legality in articles of the ECHR requires any interference with Convention rights to have a legal basis in domestic law, for the law or rule to be accessible and precise, and for the law and rule to be applied in a non-arbitrary and proportionate manner.

There must be grounding in domestic law to bring the case, then go to ECHR arguments. Domestic law must be argued first, then if that fails you may argue on ECHR grounds. 

Unreasonableness/Irrationality

“‘… there may … be cases in which it would be the duty of the Court to condemn by-laws… as invalid because unreasonable. But unreasonable in what sense? If, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say, “Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.”’ - Kruse v Johnson [1898] 2 QB 91

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Wednesbury test: 

For the court to adopt any remedies against decisions of public bodies, it would have to find that the decision-maker:

1. Had given undue relevance to facts that in reality lacked the relevance for being considered in the decision-making process.

2. Had not given relevance to facts that were relevant and worthy of being considered in the decision-making process

3. Had made a decision that was completely absurd, a decision so unreasonable that no reasonable authority could have possibly made it.

Pham v Secretary of State for the Home Department [2015]

‘It is for the court to assess how broad the range of rational decisions is in the circumstances of any given case. That must necessarily depend on the significance of the right interfered with, the degree of interference involved, and notably the extent to which, even on a statutory appeal, the court is competent to reassess the balance which the decision-maker was called on to make given the subject-matter’.

R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26

Lord Steyn’s criteria on proportionality:

1. The objective of the legislation must be deemed as sufficiently important to justify a restriction on a fundamental right;

2. The measures which are created to meet the objective are rationally connected to it, and;

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

Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39 

To determine whether an interference is proportionate:

1. Whether its objective is sufficiently important to justify the limitation of a fundamental right; 

2. Whether it is rationally connected to the objective; 

3. Whether a less intrusive measure could have been used; and 

4. Whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. (basically weighing one right against another and deciding which one is more important. Very simplistic and draws much criticism).

R (Begum) v Governors of Denbigh High School [2006] UKHL 15

A person's right to hold a particular religious belief was absolute (i.e. could not be interfered with), but that a person's right to manifest a particular religious belief was qualified (i.e. it could be interfered with if there was a justification).

Porter v Magill [2001] UKHL 67

The modern test for bias: Would the fair-minded and informed observer conclude that there was a real possibility of bias?

R v Sussex Justices ex p McCarthy [1924] KB 256

Even the appearance of something improper is a ground to set aside an order of a court, tribunal or quasi-judicial authority.

Locabail v Bayfield [2000] QB 451

Pecuniary interest leads to automatic disqualification except where minimal or indirect, or where claimant waives right to object upon full disclosure.

Otherwise the test is whether there is a real danger of bias.

Ridge v Baldwin [1964] AC 40

Established that the doctrine of natural justice and the right to be heard.

Surinder Singh Kanda v Federation of Malaya [1962] AC 322

Under the doctrine of natural justice, there is a right of notice (knowing the case against you).

McInnes v Onslow-Fane [1978] 1 WLR 1520

Authority for the distinction between application and forfeiture cases in cases concerning natural justice: ‘Application’ (asking for something you did not already have) v ‘forfeiture’ (losing something you already had).

Osborn v Parole Board [2013] UKSC 61

‘Generally, the board should hold an oral hearing whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and… the importance of what is at stake.’

R v Home Secretary, ex parte Tarrant [1985] QB 251

• No general right to legal representation but considerations to take into account for particular scenarios:

  • Seriousness of charge and potential penalty;

  • Whether points of law likely to arise;

  • Capacity to make own case;

  • Procedural difficulties/complexities;

  • Need for reasonable speed;

  • Need for fairness between parties.

R v Secretary of State for Trade, ex parte Lonrho plc [1989] 2 All ER 609

Under common law there is no general duty to give reasons and a decision will not automatically be unlawful simply because no reasons were given to you.

Doody v Secretary of State for the Home Department [1993] UKHL 8

Since the defendant usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will very often require that he is informed of the gist of the case which he has to answer.

R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed [1982] AC 617

In an application for judicial review, with the exception of cases where it is clear that the applicant has no sufficient interest, the merits of the case must be examined by the court at hearing to determine whether the applicant has sufficient interest.

Walton v Scottish Ministers [2012] UKSC 44

A busybody cannot simply apply for JR using public interest, the individual must be legitimately concerned about the matter to be deemed to have sufficient interest.

M v Home Office [1993] UKHL 5 

The Courts can enforce the law against the Crown and its ministers through the grant of injunctions.