Judicial Review I - Lecture 11

Wade’s commentary on Judicial Review

He outlined 4 components which form the JR -

1. Supervisory

   • Courts are exercising a supervisory function, rather than an appeal functions, have limited functions

2. Inherent

   • common law construction has developed the doctrine over time

   • doesn’t mean that AoP haven’t intervened

3. Grounds of Legality

   • courts check the decision makers for breaches they have created, not a review of facts

4. Public Bodies

   • cannot judicially review private bodies, only public bodies - such as police, ministers

Public Law Project commentary on defining JR

They are a set of legal principles governing the exercise of power by public bodies. If a public body makes a decision in breach of any public law principle then that decision may be challenged.

Harlow and Rawlings on the overlapping functions of JR

1. upholds rule of law

2. source of legitimacy

3. statutory interpretation

   • relates to principle of legality

4. protection of the individual

5. applying general principles

   • such as rationality, proportionality and no-fettering

6. transparency

What is the historical development of JR?

The Kings Bench would correct errors committed by courts and tribunals of inferior jurisdiction, they could seek to correct this by taking the erroneous decision to the High Court to be quashed.

Wednesbury Case on the JR

Context of the case → There were restrictions on what people can do on Saturdays, due to religious views and there was legislation which oversaw this. A local authority took the Saturday to be a family day, and instead of not going to the cinema, they utilised their power not to allow children with families to attend the cinema. The cinema company saw this as a financial loss by not letting children attend, so they took it to be judicially reviewed.

Outcome of the case → The court had aligned in favour of the local authority, stating that they had not gone ultra vires.

• (This is because it was uncertain as to whether there was Christianity or Secularism, and it was not for the Courts to decide the outcome as different authorities had different outcomes and as long as it aligned within the mainstream, then the court would not intervene - evidence of ‘judicial restraint’)

How can we read Lord Greene’s judgment on ‘reasonableness’ in the Wednesbury case?

‘Reasonableness’ can be read in 2 ways -

1. shorthand for a group of related grounds of review of the exercise of discretionary power (’umbrella’ sense of Wednesbury)

2. as an individual ground of review (’substantive’ sense of a ‘safety net’)

   • high threshold for judicial intervention with the criteria being a “decision […] so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere”

Ridge v Baldwin on JR

Context → This case was regarding a man being dismissed as chief constable on grounds of corruption, however he argued whether it could be subject to a hearing or judicial review before the dismissal was made.

Importance of the case → Ground-breaking case in allowing principles of natural justice to be applied to the statutory jurisdiction of a committee to dismiss a chief constable

Outcome → The decision was declared null and void, with Lord Reid stating that “it has been stated that a decision given without regard to the principles of natural justice is void […] cannot lawfully proceed to make a decision until it has afforded the person affected a proper opportunity to state his case.”

What impact has Ridge v Baldwin had on JR?

Judges began to speak of ‘procedural fairness’ more flexibly applicable to statutory powers - such as when individuals or private entities are subject to public authorities.

To note -

• The principle will be applied differently and there won’t always be a wide application of ‘procedural fairness’, hence the emphasis on contextualism within JR.

Padfield v Minister of Agriculture on JR

Context → It was regarding a milk marketing scheme under a system of state control, the minister refused to apppoint a committee of investigation into complaint by milk producers in the South-East that the price of milk in their region was low.

Outcome → The court concluded that the Minister did not have an unfettered/unlimited power to decide whehther to appoint a committee of investigation.

GCHQ case on JR

Context of the case → Workers at GCHQ, the Government's top-secret 'listening base', were employed under prerogative power (not statutory power).

Issue of the case →The case questioned whether you could have JR on the exercise of prerogative powers

Outcome of the case → It was held that a Prerogative Power can be subject to JR - this was ground-breaking as it was previously thought that it wasn’t possible.

What 4 grounds of JR did Lord Diplock propose in GCHQ case?

He outlined that there are four grounds in which administrative action is suspectible to control by JR -

1. Illegality = do they have the power and statutory interpretation?

2. Irrationality = repackaging of the Wednesbury ground, such as whether the public official was acting unreasonably

3. Procedural Impropriety = a breach of natural justice and unfair procedure

4. Proportionality = if a decision-maker is acting disproportionality, you would be able to challenge them

Does the Wednesbury Test prevail, or does the 4 grounds of review outlined by Lord Diplock in GCHQ prevail?

The principle of proportionality has not been developed for review at common law, since we have retained the Wednesbury Test.

Lord Reed’s commentary on UNISON and JR access

“Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of MPs may become a meaningless charade”

R(Imam) v London Borough of Croydon on application of remedies

Context →Ms Imam is a wheelchair user and mother of three, who has been living in accommodation accepted by Croydon to be unsuitable

Outcome → Supreme Court finds funding pressures don't excuse local authority failure to comply with duty to accommodate homeless in R (Imam) v LB Croydon as stipulated in statute.

What is the procedure to make an application for JR?

1. Not everyone can bring a claim - you must have a personal interest, for instance if it involves you personally or it is a matter of public interest.

2. There is a levee procedure, you have to have a levee of the court to make an application for JR.

3. A part of the levee procedure is sifting through cases and there have been alternative remedies explored.

What does the filtering process within JR consist of? There are 4 components to filtering

• arguable claim

• ‘sufficient interest’

• delay

• alternative remedies

What does S31(2) Senior Courts Act 1981 stipulate?

Section 31(3) provides that no application for judicial review shall be made unless -

• The leave of the High Court has been obtained.

• The applicant has “sufficient interest”

What does S29 Senior Courts Act 1981 stipulate?

Section 29 of the Senior Courts Act 1981 originally stated that the High Court shall have the jurisdiction to make orders of mandatory, prohibiting and quashing orders.

What is the relationship between JR and HRA 1998?

Claims under the HRA are often brought by judicial review proceedings.

Though, the Courts have however sought to emphasise the HRA as a fall-back and that the common law will often be sufficiently protective of Convention rights.

Osborn v Parole Board on relations between HRA 1998 and JR

Lord Reed’s statement stated “It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate”

Kennedy v Charity Commission on relations between HRA 1998 and JR

Lord Toulson’s stated “it was not the purpose of the Human Rights Act that the common law should become an ossuary.”