SQE 1 - Public Law (Judicial Review)

What is judicial review?

Judicial review is a process by which the courts (the judiciary) control the decisions and actions of the government (the executive). The courts ensure that the government is acting legally, within the powers granted by an Act of Parliament or the royal prerogative.  

What is ultra vires?

Latin for 'beyond one's powers'. 

What does ultra vires mean in the context of judicial review?

In a judicial review, the court does not look at the merits of the decision or whether the court considers that it was the right decision, but at the process by which it was made. In that way, judicial review differs from an appeal, in which the merits of the decision may be reconsidered. 

What is the procedure of judicial review? 

The procedure for judicial review is laid down by s 31 of the Senior Courts Act 1981 and part 54 of the Civil Procedure Rules. The claimant applies to the Administrative Court, which is part of the High Court, to 'review the lawfulness of a decision, action or failure to act in relation to the exercise of a public function'. 

What is Leave - permission to proceed?

Unlike other court actions, the claimant must first seek permission to apply for judicial review. This is usually decided by a court official looking at the claim form, which will state the grounds, the remedy sought and the facts relied upon. If permission is refused, the claimant may request an oral hearing.  

What are the grounds for permission to be granted?

Permission will be granted if: 

1. The claim is arguable it has a reasonable prospect of success. 

2. The claim form is filed not later than three months after the grounds to make the claim first arose – the time limit for planning decisions is six weeks and these time limits are strictly applied.  

Can the 3-month time limit for bringing a judicial review claim be amended by an Act?

Yes - if the Act contains an ouster clause the court has no power to extend the time limit, even if there's good reason

What are the grounds for permission to be refused?

Permission will be refused if: 

1. there is a suitable alternative remedy, such as a statutory appeal or an internal appeal 

2. it is highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred, meaning that the public body's decision would have been the same if it had been made lawfully. 

A client has been convicted at the magistrates' court, but he disagrees with his conviction and sentence and seeks a judicial review. Advise him. 

There are statutory rights of appeal from the magistrates' court. There is a rehearing in the Crown Court, or a case can be stated for the divisional court of the High Court. The latter procedure raises a point of law, so it resembles judicial review. It is extremely unlikely that your client would be given leave for judicial review, unless they could show that the magistrates' court had made a serious legal error that could not be corrected in either type of statutory appeal. 

What is sufficient interest? 

The claimant must have a sufficient interest in the matter to which the application relates. This means that the decision affected some right or interest of the claimant, such as students expelled from the UK in Schmidt v Secretary of State for Home Affairs [196912 Ch 149. Sufficient interest is flexible and is more likely to be granted if the court considers that the claimant has a strong case, or they raise an important issue has needs to be decided.  

A client wishes to challenge the length of the prison sentence given to his brother who has been convicted of terrorism. He alleges that the power given to the Home Secretary to determine the length of a prison sentence of a convicted terrorist is incompatible with his Convention rights. 

What of the following best describes the response of the court which hears the case? 

The court is a public authority and must make its decision in a way that is compatible with Convention rights. However, the court would not agree to hear this case because the client was not the victim of the Home Secretary’s decision. 

Option E is the best description of how the Court will act in these circumstances. Under s.7 HRA, a person who wishes to plead a breach of a right must be the victim of that breach. Here, it was the client’s brother who was the victim. If the brother were to challenge the decision, then it is likely that the court would issue a declaration of incompatibility with the brother’s article 6 rights. 

What is sufficient interest?

Means the right or capacity to bring an action or appear in court. It used to be called locus stand or standing. 

Interest or pressure groups may seek permission to bring judicial. 

Can judicial review be brought against a Public body? 

Judicial review may only be brought against a body or person exercising a public function. A public body is one that derives its powers from an Act of Parliament or the royal prerogative. It would also include people or bodies that are non-statutory, but perform a government or public function. For example, in R City Panel on Takeover and Mergers ex parte Datafin [1987] (A PRIVATE BODY MAY PERFORM A PUBLIC FUNCTION) QB 815, the Stock Exchange and City of London appointed the members of the panel, which regulated the Stock Exchange. This was a public function. The government had decided that there was no need to create a statutory body because this panel was incorporated into its regulatory system. 

Can pressure groups bring an application/satisfy sufficient interest?

Yes, pressure groups are able to apply for judicial review.

Examples of pressure group applications for judicial review: R v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators' Association 

The association could apply when the corporation increased the number of taxi licences, as it affected their livelihood. 

Examples of pressure group applications for judicial review: Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses [1982]

The federation complained about the tax assessments of Fleet Street workers. They did not have sufficient interest as these assessments were confidential and solely the concern of the taxpayer and the Inland Revenue. 

Examples of pressure group applications for judicial review: R v Foreign Secretary ex parte World Development Movement [1995] 1 All ER 611 

A respected and well-established pressure group had sufficient interest. They raised a serious legal issue and no one else was able to bring the case.

Essentially: SUFFICIENT INTEREST IS A FLEXIBLE TEST 

Examples of pressure group applications for judicial review: R v Secretary of State for the Environment ex parte Rose 

A group formed for the sole purpose of bringing this case, about the listing of an historic building, had no standing. A public consultation process provided an alternative remedy. 

Example of pressure group applications for judicial review: R V Disciplinary Committee of the Jockey Club

The body regulating horse racing was not created by statute and had no statutory powers. Nor did it perform any public function because it was not part of any government system at regulation. It could be sued for breach of contract, but not judicially reviewed. 

What is a public body?

A public body is a body exercising a public function. This can include non-statutory bodies. 

Excluding judicial review 

Excluding judicial review 

An Act of Parliament might try to prevent any challenge to a decision. The courts will generally not accept this, as it restricts access to justice, so they have interpreted Acts of Parliament in an extremely cunning way to evade such restrictions.

Anisminic v Foreign Compensation Commission

- Example of exclusion of judicial review

The Foreign Compensation Act 1950 stated that a 'determination' by the Foreign Compensation Commission (FCC) of any application made to them 'shall not be called in question in any court of law'. If the 'determination' of the FCC was ultra vires it was not valid. The wording of the Act only prevented the court reviewing a 'determination', it did not say that the court could not review a purported or incorrect determination. 

What are the remedies for judicial review?

1. Quashing order

2. Prohibiting order

3. Mandatory order

4. Injunctions

5. Declarations

6. Damages

1. Quashing order

The court rules that the decision of the public body is of no effect and instructs that body to take the decision again, this time legally, The court might substitute its own decision. 

1. Prohibiting order

The court orders the public body not to make or implement an illegal decision.

1. Mandatory order

The court orders the public body to fulfil its legal duties.

1. Injunctions

An order to do something or not to do something. An injunction can be interim (interlocutory) and issued to preserve the position before the full trial. 

1. Declarations

The court states the legal position. Public bodies would comply. 

1. Damages

Damages or other forms of compensation are not awarded for judicial review. Damages could only be given if there was also a successful civil case, say in contract or tort, as part of the review. 

Summarise application for judicial review: what is judicial review?

The court checks the legality of a decision. 

Summarise application for judicial review: WHEN is it used?

Against a person or body exercising a public function. 

What are the grounds for judicial review?

1. Illegality

2. Irrationality

3. Procedural impropriety

4. Proportionality (informally)

What is illegality?

- Ground for judicial review

The decision maker must correctly understand the law that regulates his decision-making power and give effect to it. 

What is irrationality?

- Ground for judicial review

A decision that is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. 

What is procedural impropriety?

- Ground for judicial review

A failure to follow procedural rules laid down in legislation or not following the basic rules of natural justice. 

What is proportionality?

- Informal ground for judicial review

The decision of the public body may only restrict rights to the minimum necessary to achieve a legitimate objective. 

Is proportionality part of judicial reviews? 

Lord Diplock thought that proportionality would eventually become part of judicial review, but it is only used in European Convention on Human Rights (ECHR) and EU law cases. 

Can a court only rely on one ground?

Lord Diplock's categories are a convenient way for revising judicial review, but a judge might hold that a decision is ultra vires on several different grounds (eg it is both illegal and irrational). There are also many subcategories, or a judge may give reasons that do not seem to easily fit into any of the categories.  

What happens when a ground is illegality?

The court will look closely at the wording of the whole Act of Parliament to decide what decisions are allowed. They will look at the policy and objective of the act.  

In a case, the minister had the power to regulate the price of milk in different regions of the country. He could establish a committee to investigate disparities in the price of milk 'if the minister in any case directs’. The words seem to give the minister absolute discretion, but the court held that he could not ignore differences in price between regions and issued a mandatory order for him to constitute a committee. 

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

- Illegality

In R v Foreign Secretary ex parte World Development Movement [1995], the foreign secretary had power to give money to promote the development and economy of a country. It was illegal for him to finance a dam, where evidence indicated that it was economically unsound. 

What must be applied when interpreting statute for illegality ground?

The statute must also be interpreted in the context of the general principles of the constitution. In R (Unison) v Lord Chancellor [2017], the legislation seemed to give the Lord Chancellor a general power to set court fees, but this did not allow him to require excessively high fees, because access to the courts was a basic right required by the rule of law.  

What is improper use?

- Illegality

A statutory power must not be used for a purpose for which it was not intended. For example, in Porter V Magil [2002], the council had the legal power to sell council houses, but could not use this power to encourage buyers to vote for them. 

A teacher is dismissed for constantly being late for work. The head teacher, who has always disliked her, refers her case to the Teaching Regulation Agency, who ban her from teaching. The agency has the power to do this for unacceptable professional conduct or conduct that may bring the profession into disrepute.

Has the agency acted legally? 

No. The court would look closely at the powers of the agency and would conclude that the teacher's behaviour was not serious enough to be unacceptable or disreputable. The head teacher's prejudice might also be an example of improper purpose. 

What are relevant and irrelevant considerations?

- Illegality

The decision maker must only consider relevant matters and not be misled by irrelevant matters.

Examples:

• In R v Somerset County Council ex parte Fewings [1995], the council had the power to manage their land for its benefit, improvement or development. This did not allow them to ban stag hunting on their land, to which they had a moral objection. 

• In Wheeler v Leicester City Council [1985] AC 1054, the council banned Leicester rugby club from using a council playing field, because they disapproved of its tour of South Africa. The management of open spaces did not permit the council to ban the club for political reasons. 

What is fettering of discretion?

- Illegality

A public body may adopt a general policy for taking decisions, but it must not stick to the policy rigidly and fail to properly consider individual cases. For example, in Rv Secretary of State for the Home Department ex parte Simms [2000] 2 AC 115, the home secretary's policy of never allowing journalists to visit prisoners was illegal. It was legitimate for journalists to investigate alleged miscarriages of justice. 

What are unauthorised delegation?

- Illegality

If legislation clearly entrusts a decision to a specified public body, that body cannot allow someone else to take that decision. In Lavender v Minister, the minister of housing rejected a planning application because the minister of agriculture objected to it. The reject was void.  

What is error or fact?

- Illegality

Formally the decision maker is entitled to decide disputed facts, but a decision cannot be based on facts that are incorrect, are relevant to the decision and cause unfairness. For example, in R y Criminal Injuries compensation Board ex parte A [19991 2 AC 330, the board did not see a vital doctor's report when assessing compensation. 

Summarise illegality: what is illegality?

A decision maker misunderstands or misapplies their legal powers. 

Summarise illegality: how does a court decide what is illegal?

By closely examining the statutory power. 

Summarise illegality: what are the consequences of illegality?

The decision is void and has no effect. 

What are the different types of Irrationality? 

• Wednesbury unreasonableness 

• Human rights

What is Wednesbury unreasonableness?

This is a decision that is so perverse or absurd that it cannot be allowed to stand. It is sometimes called 'Wednesbury unreasonableness', because it was defined in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 (DEFINITION OF UNRESONABLE). Wednesbury had the power to license cinemas and required that children under 15 should not be admitted on Sundays. Lord Greene MR stated that he could overrule 'a conclusion so unreasonable that no reasonable authority could have come to it.' 

This case is the accepted definition of Wednesbury unreasonableness, but, on the facts, the court did not think Wednesbury's decision was unreasonable. At that time religious observance on Sunday was more common. 

What are human rights?

- Irrationality

In human rights cases, the court will investigate reasonableness more closely, but it is still difficult to prove that a decision is irrational, as shown in R v Ministry of Defence ex parte Smith [1996] QB 517. The ministry's policy was that homosexuality was incompatible with service in the armed forces. Although the judges personally disagreed, they did not think that it was irrational. It was not beyond the range of responses .

What is unreasonable? 

In Roberts v Hopwood [19251 AC 528, Poplar council adopted a policy of paying a wage of £4 a week to all its employees,, male and female. This was unreasonable. The average wage was £2.50 a week and falling.  It was a socialist policy at the expense of the ratepayers. 

Unreasonableness is hard to prove. 

The local council has used its statutory power of investment to buy a shopping centre for £50 million. Many other councils had made similar purchases and the council took professional advice. A local council taxpayer thinks that this is an unwise and risky use of public money.

Advise the council taxpayer. 

We are told that the council has the legal power to do this, so the council taxpayer would have to show that this was an irrational or unreasonable decision. That would be difficult, particularly as the council were just doing as other councils had done. It is not a perverse or absurd decision. 

Summarise irrationality: what is irrationality?

A decision so absurd that no sensible person could have reached it. 

Summarise irrationality: when is it used?

Not very often. It is hard to prove that a government decision is not just wrong, but irrational. 

What is procedural impropriety: the requirement to consult?

An Act of Parliament may lay down a procedure to be followed, such as the serving of notices or the consultation of interested parties, before a decision is taken or delegated legislation is enacted. The court will decide whether the procedure is mandatory (one that must be followed) or directory (optional). That will depend upon how important the consequences of failing to follow the procedure are. Below there are two examples where failure to consult was unlawful.  

1. Enfield had to give public notice of proposals to close schools so that interested parties could comment. They planned to close eight schools and failed to do this. Lord Denning ordered Enfield to give notice. 

2. The minister had to consult before he made regulations. He could not just consult the National Farmers Union but must consult all the organisations affected.  

What is natural justice?

- Procedural impopriety

Natural justice is a legal concept with two main elements:

• the rules against bias

• the right to a fair hearing. 

Natural justice is the right to a fair hearing and applies when a decision of a public body affects the rights of an individual. It applied when the chief constable of Brighton was dismissed from office in Ridge v Baldwin [1964] AC 40 (THE BASIC REQUIREMENT OF NATURAL JUSTICE) and when the council knocked down a man's house without consulting him in Cooper v Wandsworth Board of Works (1863). 

What are the rules against bias?

- Natural justice

A person should not take a decision if they have a personal interest in the outcome. It is not necessary to prove that the decision maker was actually biased, merely that it is the impression they give. The test to decide this comes from Porter v Magill [20021 2 AC 357: Whether the al-minded and informed observer, having considered the facts, would include that there was a real possibility that the tribunal was biased. 

What is the right to a fair hearing?

- Natural justice

What is a fair hearing depends upon the body taking the decision, the questions that need to be decided and the consequences of the decision for the claimant.  

Ridge v Baldwin (1964) 

(THE BASIC REQUIREMENT OF NATURAL JUSTICE)

- Example of apparent bias

The council dismissed the chief constable based on newspaper reports of a trial. They had already decided he was unsuitable and so were incapable of giving him a fair hearing. 

Dimes v Grand Junction (1852) 

- Example of apparent bias

Lord Chancellor Cottenham decided this case. He was a substantial shareholder in the company, so his decision was quashed.

R v Bow Street Magistrate (2000)

Lord Hoffman, a member of Amnesty, sat on a human rights case, where Amnesty International gave evidence to the court. The case had to be heard again, without Lord Hoffman.

What is the right to a fair hearing?

The accused person must be given the opportunity to put their side of the case. What amounts to a fair hearing very much depends upon the circumstances, but the minimum would be that the person should be told what they are accused of and allowed to respond before the decision is taken: Ridge v Baldwin [1964] AC 40. (THE BASIC REQUIREMENT OF NATURAL JUSTICE The more serious the consequences of the decision, the more rights the claimant has. 

Lloyds v McMahon [1987]

- right to fair hearing

The claimants were only entitled to a written hearing because they knew the charge against them and had the right of appeal to the High court anyway.

Osborn v Parole Board [2013] UKSC 61

- right to fair hearing

The Parole Board should have offered the applicants oral hearings. The liberty of the prisoners was at stake. Important facts were in dispute, so witnesses needed to be questioned to establish the truth of those facts.

R (G) v Governors of XSchool [2012]

- Right to fair hearing

Allowing the claimant legal representation is appropriate when they could be banned from teaching.

Rv Secretary of State for the Home Department ex parte Doody [1994]

- right to fair hearing

Fairness required that life prisoners should be told the reasons for their minimum period of detention. There is a general duty to give reasons unless there is justification for not doing so.

The Southtown Archaeology Club allows any member of the public to join. The club is conducting an excavation in Southtown and are told that a member, Joanna, has stolen jewellery discovered in the dig. The chair of the club sends Joanna a text message cancelling her membership. No reason is given, nor is Joanna given any chance to explain.

Can Joanna seek judicial review? 

No. By any standards her treatment is unfair and none of the basic standards of natural justice have been met. The catch is that, although the club is open to the public, it is not a public body, nor is it carrying out any public functions. Depending upon the rules of the club, she might be able to sue for breach of contract, but not judicial review. 

What are the two types legitimate expectation?

• procedural legitimate expectation

• substantive legitimate expectation. 

What is procedural legitimate expectation?

As part of natural justice, a claimant may have a legitimate expectation that they will be consulted about a change in the rules or a decision that will affect them. This can be seen in Council for Civil Service Unions v Minister of State for Civil Service [1985], (THE BASIC GROUNDS OF JUDICIAL REVIEW) where the minister proposed to ban trade union membership. The council had a legitimate expectation that they would be consulted, as they had been in the past about changes to terms and conditions. 

What is substantive legitimate expectation?

Legitimate expectation has been extended so that, in certain circumstances, public bodies may be obliged to keep a promise that they have made about their future policies.

R v North and East Devon

- Substantive legitimate expectation

In R v North and East Devon, Coughlan and seven other severely disabled patients had been told that they could stay in the National Health Service (NHS) accommodation for life. Later, Devon wanted to close their facility.  

The patients had a substantive legitimate expectation and Devon must keep their promise. It would be unfair and an abuse of power to close and Devon could not show that there was an overriding public interest that justified closure. 

What are the rules of substantive legitimate expectation as explained in R (Niazi) v Secretary of State?

R (Niazi) v Secretary of State for Home Afrairs 2008] EWCA Civ 755 clarifies the rules for substantive legitimate expectation. There must be: 

• a clear and unequivocal undertaking 

• given to a particular group or individual 

• but the defendant could defeat the claim by showing that there was good reason for departing from the undertaking. 

How to determine if a SBAQ is asking about judicial review?

Look for someone questioning a decision taken by a government body or government official, then think of the main areas of judicial review. Does anyone have sufficient interest and was the decision illegal, irrational or procedurally improper?