Introduction to Judicial Review

Wednesday 22nd January, 5PM Shilling Auditorium

  • The Rt Hon Victoria Prentis KC, a former Attorney General and a Royal Holloway alumna, reflected on her legal and political careers in a talk entitled: “A Lawyer in Politics”.
  • Victoria studied in the English department at Royal Holloway and, after graduating, studied Law at Downing College, Cambridge.
  • She qualified as a barrister in 1995 before joining the Civil Service, where she worked as a government lawyer for 17 years.
  • In 2015, Victoria was first elected to the House of Commons as the Member for Banbury.
  • She was appointed as a minister in 2020 and became the Attorney General for England and Wales (attending Cabinet) in October 2022.
  • Opportunity to ask questions about Victoria’s legal and political careers, as well as her thoughts on the current state of UK law and politics.
  • No need to book a ticket, but arrive promptly to secure a space.

Lecture 11: Introduction to Judicial Review

Today’s Topics

  • What is administrative law?
  • What is judicial review?
  • What remedies are available in a judicial review?
  • What is the judicial review ‘permission stage’?

Constitutional Law vs. Administrative Law

  • Keith (1931): “It is logically impossible to distinguish administrative from constitutional law and all attempts to do so are artificial”.
  • Webley and Samuels (2021): Constitutional law relates to the structure/framework of the state and its political and judicial institutions, including the theories/principles that underpin the state.
  • Administrative law is the law that these institutions use to run the country.
  • Administrative Law = the law which governs the way in which executive powers are exercised.

Separation of Powers

  • Parliament: Power to make and change the law.
  • Executive Government: Power to put law into action.
  • Judiciary: Power to make judgements on law.
  • The focus of administrative law is the Executive Government.

‘The Government’ / ‘The Executive’

  • Rhodes & Dunleavy (1995): Core executive is the complex web of institutions, networks, and practices.
  • Includes the PM, Secretaries of State, Junior Ministers, government departments, civil servants, local councils, and 400+ agencies who carry out work on behalf of the government.
  • See: https://www.gov.uk/government/how-government-works
  • Poole (2019): The executive exercises basic powers of state (military, police, fiscal, diplomatic, organizational) and is responsible for many other functions necessary for social well-being such as health and education.
  • It makes the majority of the policies and rules that structure public life and organizes the most significant part of the public administration.
  • Key concepts: ‘public/administrative authority/body’, a ‘body exercising a public function’, and the ‘administrative state’.

Powers and Functions of Administrative Authorities

  • Administrative authority action includes:
    • Rule making (particularly by government using delegated/secondary legislation).
    • Adjudication.
    • Enforcement of specific regulatory agenda(s).
  • Example: the pandemic
    • The government made rules, some of which took the form of secondary legislation à lockdown regulations passed under the Public Health (Control of Disease) Act 1984.
    • Some disputes about the lawfulness of those rules end up being reviewed in court à R (Dolan) v SS Health and Social Care [2020] EWCA Civ 1605; R (Article 39) v SS Education [2020] EWCA Civ 1577.
    • Vaccinations treatments are assessed and approved by the Medicines and Healthcare Regulatory Authority (MHRA); government vaccination policy is advised upon by the Joint Committee on Vaccination and Authorisation (JCVI) and the Health Protection (Vaccination) Regulations 2009 require the SS Health to follow them where appropriate.

What is Administrative Law?

  • Webley and Samuels (2021): Administrative law deals with the workings of the state, along with the statutory and common law powers and duties of government departments, local authorities and public bodies, and public authorities that assist in the everyday life of the country.
  • Administrative Law is concerned with the:
    • Scope and nature of powers and functions of public bodies/authorities.
    • Procedures to be followed by those public bodies/authorities in exercising those powers/fulfilling those functions.
    • Remedies available when those public bodies/authorities breach those powers.
  • Administrative Law is a body of law which has developed principles which seek to ensure that public bodies/authorities act in a way which is legal, reasonable and fair.

Administrative Law’s Purpose

  • To ensure that public bodies/authorities act in a way which is:
    • Legal
    • Reasonable
    • Fair

The Evolution of Administrative Law

  • Pre-revolutionary England
  • Post-revolutionary change
  • 19th century
  • 20th century
  • Taylor (1965): “Until August 1914, a sensible law-abiding Englishman could pass through life and hardly notice the existence of the state, beyond the post office and the policeman”.
  • 21st century
  • Donaldson MR, R v Lancashire CC ex parte Huddleston [1986] 2 All ER 941, 945: “the evolution of what is, in effect, a specialist administrative … court is a post-war development. This development has created a new relationship between the courts and those who derive their authority from public law, one of partnership based on a common aim, namely the maintenance of the highest standards of public administration”.

Models of Administrative Justice

  • Administrative law does not exist in a vacuum à we can begin to understand its operation through the lens of models of administrative justice
  • Red light à courts should be hands- on (interventionist), to limit government activity and promote a smaller state
  • Green light à courts should be more passive, to encourage government to achieve its goals in an effective and efficient way
  • ‘Hortatory’ function à educating public bodies on standards of good governance?
  • Harlow and Rawlings (1984): “Behind every theory of administrative law lies a theory of the state”.

What is Judicial Review?

  • A special court procedure which (in England and Wales) begins in the High Court (Administrative Division).
  • A way of assessing the lawfulness of decisions made by public bodies or of secondary legislation created by them.
  • A means of providing remedies for unlawful decisions where appropriate.
  • Two stages: the ‘permission’ and ‘merits’ stages.

Important Characteristics of Judicial Review

  • Supervisory jurisdiction: Lord Lloyd, R v Home Secretary ex parte Fire Brigades Union [1995] 2 AC 513, 572: “part of the court’s ordinary function in the day to day administration of justice”.
  • Review NOT appeal:
    • Laws LJ, R v Somerset County Council ex parte Fewings [1995] 1 All ER 513, 515: “The judicial review court is not concerned with the merits of the decision under review”.
    • Lord Clyde, Reid v Secretary of State for Scotland [1999] 2 AC 512, 541-2: “Judicial review involves review of the decision. It does not allow the court … to examine the evidence with a view to forming its own view about the substantial merits of the case”.
    • Lord Bingham, R (Corner House Research) v Director of Serious Fraud Office [2008] UKHL 60 [41]: “The issue in these proceedings is not whether his decision was right or wrong, nor whether the Divisional Court or the House agrees with it, but whether it was a decision which the Director was lawfully entitled to make”.

A Challenge to Parliamentary Sovereignty?

  • Lady Hale, R (Jackson) v Attorney General [2005] UKHL 56 [159]: “The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny.”
  • Sales LJ R (Privacy International) v Investigatory Powers Tribunal [2017] EWCA Civ 1868 [25]: “[A] provision which isolates a tribunal from any prospect of appeal … involves a substantial inroad upon usual rule of law standards in this jurisdiction”.

Examples of Judicial Review

  • Heathrow anti-expansion campaigners sought JR of government’s decision to build 3rd runway. Claimed that environmental targets could not be met, plus flawed consultation.
    • Held: Public consultation process used was invalid as it was based on out-of-date figures. Consult again, using correct data.
  • JR of an order imposing fees for certain kinds of Employment Tribunal Claims.
    • Held: The fees prevented workers’ access to justice – a fundamental principle of the UK’s constitution.
  • JR was sought of the decision to prorogue Parliament for an unusually long period of time.
    • Held: This use of prerogative power was unlawful and void.
  • Judicial Review of Sport England’s refusal to classify bridge as a sport. English Bridge Union argues that decision was unreasonable on the basis that bridge is based on rules, fairness and competition, like other activities classified as sports.
    • Held: Sport England did not err in law. Entitled to conclude that bridge’s lack of physical activity meant it was not a sport.

Judicial Review’s Constitutional Role

  • Separation of powers: the judiciary’s ‘inherent jurisdiction’
  • Rule of law: ensure that government operates within the law
  • Parliamentary sovereignty: ensure that statutory powers are exercised according to Parliament's intentions

The Constitutional Basis for Judicial Review

  • Traditional: Ultra vires
  • Emerging:
    • Common Law
    • Rule of Law
    • ‘Modified’ ultra vires
  • Nason ‘Reconstructing Judicial Review’ 2016, p1: “evolution of the UK constitution from one marked by parliamentary sovereignty to a more balanced system based on the values of liberalism and democracy, twin or bipolar sovereignties of Parliament and the courts”.

The ‘Grounds’ of Judicial Review: Lord Diplock in GCHQ

  • ‘Judicial review has I think developed to a state today when…one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call ‘illegality,’ the second ‘irrationality’ and the third ‘procedural impropriety’…That is not to say that further development on a case by case basis may not…add further grounds…[e.g.] the possible adoption in the future of the principle of ‘proportionality’…’

Can Judicial Review Be Excluded?

  • Parliament is sovereign – so can it pass legislation which states that certain decisions taken using that legislation cannot be subject to judicial review?
    • Ouster clauses
  • Can this cause issues for the separation of powers and the rule of law?
  • How do the courts respond?

Ansiminic Ltd v Foreign Compensation Commission [1969] 2 AC 147

  • Anisminic owned a mine in Egypt which was confiscated by the Egyptian government during the Suez Crisis. The Foreign Compensation Act 1950 allows them to apply for compensation to the Foreign Compensation Commission
  • Section 4(4): ‘the determination by the commission of any application made to them under this Act shall not be called in question in any court of law’
  • House of Lords distinguishes between a ‘purported’ determination made in excess of the FCC’s legal powers and a ‘lawful’ determination made consistently with those powers
  • Therefore the FCC’s decision can be reviewed for an ‘error of law’

R (Privacy International) v Information Commissioner [2019] UKSC 22

  • Privacy International claims that GCHQ’s mass surveillance programme was unlawful. This is rejected by the Investigatory Powers Tribunal.
  • Section 67(8) Regulation of Investigatory Powers Act 2000: ‘determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court’
  • Lord Carnwath: ‘it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review’
  • Lord Wilson: ‘every legal system has to identify some end-point beyond which there can be no challenge or further challenge to a judicial decision’
  • NB: The government has proposed legislation that would prevent a tribunal’s decision being judicially reviewed

Judicial Review Procedure

  • Common law origins, now a statutory process – apply for permission
  • Civil Procedure Rules 54.1 …..(2) In this Section (a) a claim for judicial review means a claim to review the lawfulness of – (i) an enactment; or (ii) a decision, action or failure to act in the relation to the exercise of a public function

What Remedies are Available in Judicial Review?

  • Quashing order (writ of certiorari)
  • Prohibiting order (writ of prohibition)
  • Mandatory order (writ of mandamus)
  • ‘Prerogative’ Remedies:
    • Injunction
    • Damages
    • Declaration (e.g. Miller No. 1)
  • Private law remedies:

Remedies: s 31 Senior Courts Act 1981 (types)

  • Section 31 Application for judicial review (1) an application (claim) to the High Court for one or more of the following forms of relief, namely –
    • mandatory, prohibiting or quashing order;
    • a declaration or injunction under subsection (2) or
    • an injunction under section 30 restraining a person not entitled to do so from acting in an office to which that section applies,
    • shall be made in accordance with rules of court by a procedure to be known as an application for judicial review.

Judicial Review Thresholds

  • Amenability: who can be reviewed?
    • Exercising a public function
    • Can include private bodies
    • Excludes Parliament and the High Court
  • Justiciability: what can be reviewed?
    • Subject matter and ouster clauses
  • Standing: who can claim?
    • The ‘sufficient interest’ test (s 31(3) Senior Courts Act);
    • ‘victim’ test (s 7 HRA)
    • Individuals and organisations (charities etc)

What is the Judicial Review Permission Stage?

  • The Administrative Court https://www.gov.uk/courts-tribunals/administrative-court
    • specialist court within QBD of HCJ
    • single judge or Divisional Court (2+ judges)
    • paper/in chambers applications
    • 5 regions
    • London (c80%), Birmingham, Leeds, Manchester, Cardiff
    • relatively inexpensive
  • JR a two-stage process
    1. Permission stage
    2. Substantive stage

Practical Function of Permission Stage?

  • Exclusionary à busybodies R v Dean & Chapter of St Paul’s Cathedral [1998] COD 130
  • Protective à 2 dominant policy goals
    1. protecting the court
    2. protecting respondents
  • LeSueur and Sunkin ‘Applications for Judicial Review: The Requirement of Leave’ [1992] PL 102, 110: “fashioned by a compromise between two principal interests: efficient court administration … and the interests of government departments”
  • Access to justice?
  • LeSueur & Sunkin Applications for Judicial Review: The Requirement of Leave [1992] PL 102, 104: “facilitating access to justice has never been more than a bit player”

Key Aspects of the Permission Stage

  • Claims which are not based on a breach of the HRA 1998
    • Is there an alternative remedy (e.g. a tribunal)?
    • Has the claim been filed ’promptly’ and at least within three months of the grounds for a claim arising? > Civil Procedure Rules 1998, part 54.5
    • Is the claim against a ‘body exercising a public function’? > Civil Procedure Rules 1998, part 54.1
    • Does the claimant have a ‘sufficient interest’? > Senior Courts Act 1981, section 31(3).
  • Claims which are based on a breach of the HRA 1998
    • Is there an alternative remedy (e.g. a tribunal)?
    • Has the claim been filed ’promptly’ and at least within three months of the grounds for a claim arising? > Human Rights Act 1998, section 7(5)
    • Is the claim against a ‘public authority’? > Human Rights Act 1998, section 6
    • Is the claimant a ‘victim’? > Human Rights Act 1998, section 7(1), 7(7)

What is ‘a Body Exercising a Public Function’?

  • One using a statutory power
  • One using a prerogative power (e.g. GCHQ)
  • But it can also include bodies which are not ‘governmental’ and which do not enjoy statutory powers
  • Look at the functions being carried out …
  • R v Panel on Takeovers and Mergers, ex parte Datafin Plc [1987] QB 815: an anomaly that the Panel was not a statutory body
  • R (Beer) v Hampshire Farmer’s Markets Ltd [2003] EWCA Civ 1056: ‘steps into the shoes’ of the council
  • Compare this to e.g. R v Disclipinary Committee of the Jockey Club, ex parte Aga Khan [1993] 1 WLR 909; R (Liberal Democrats) v ITV [2019] EWHC 3282 (Admin) 32

‘Public Authority’ Under the HRA

  • Section 6(1): ‘it is unlawful for a public authority to act in a way which is incompatible with a Convention right’ – i.e. all of their actions can be subject to an HRA claim, even if they are private law ones e.g. hiring a cleaner
  • Section 6(3)(b) adds that bodies ‘certain of whose functions are of a public nature’ can count as a public authority
  • Section 6(5) confirms that a s6(3)(b) authority is not liable under the HRA for private actions

Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37

  • The Wallbanks are ‘lay rectors’ who are liable to pay £95,000 to repair a church’s chancel
  • Is a Parochial Church Council of the Church of England a ‘public authority’ under s6 HRA?
  • The House of Lords distinguishes between s6(1) ‘core’ authorities and s6(3)(b) ‘hybrid’ or ‘functional’ authorities.
  • The PCC is not a core authority: the Church’s activities are not governmental, and if it was a core authority, it would not be protected by the ECHR
  • The PCC is not a hybrid authority in this context: it was acting to enforce a civil law debt

'Core’ and ‘Hybrid’ Authorities Continued

  • Lord Nicholls in Aston Cantlow: core authorities are ‘governmental in the broadest sense’
  • When defining hybrid authorities, need to look closely at the specific function they were carrying out
  • Lord Nicholls: consider ‘the extent to which in carrying out the relevant function the body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service’
  • Lord Bingham in YL v Birmingham City Council [2007] UKHL 27: must also consider whether the function being performed was one that the state regulated closely; whether the state was, or would be prepared to, pay for the service; whether the improper performance of the function risked creating liability for the UK before the ECtHR
  • The hybrid authority test can lead to disagreement and controversy, e.g. in YL – a care home provider was not a hybrid authority even though it was carrying out the Council’s obligations on its behalf – this was overturned by Health and Social Care Act 2008
  • But the tests in YL remain good law: R (Weaver) v London Quadrant Housing Trust [2009] EWCA Civ 587

‘A Sufficient Interest’ (‘Standing’ or Locus Standi) – Not Used Under the HRA

  • Intended to ‘prevent abuse by busybodies, cranks, and other mischief-makers’
  • If directly affected by the decision being challenged, you will have standing:
  • R (Miller) v Secretary of State for Exiting the European Union: this can be very wide - almost all UK citizens would have standing to challenge the start of the Brexit process.
  • The courts adopt a ‘liberal approach’ to standing so as to avoid ‘a grave lacuna in our system of public law if a pressure group … or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law’ (Lord Diplock, R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 (HL).
  • See e.g. Axa v Lord Advocate [2011] UKSC 46; Walton v Scottish Ministers [2012] UKSC 44

Permissive/Open Access to JR

  • Benefits (NB: Red light)
    • Illegality checked
    • Care taken
    • ‘Bad’ decisions expunged
    • No false legitimacy
    • Wide(r) avenue of challenge
    • Representation
    • Agenda-setting
    • Diffuse/collective rights

Permissive/Open Access to JR

  • Drawbacks (NB: Green light)
    • Unmeritorious cases
    • Hampers administration
    • Resources stretched
    • 'Politicised' judiciary
    • Publicity generation

Summary

  • Judicial review is a procedure used to check the lawfulness of decisions taken by bodies exercising public functions/public authorities
  • Important constitutional roles: sovereignty, rule of law, separation of powers …
  • An ‘inherent’ part of the judicial function
  • Permission stage (helpful for context) and merits stage (our focus).