Grounds of Judicial Review

Grounds - legal reasons that a courts can use to hold a decision unlawful

Grounds categories

  • procedural fairness

    • process used to create decision

    • hearing rule - the right to a fair opportunity to present one’s case before a decision is made

    • bias rule - the decision maker must be impartial + free from bias

  • constraints on discretion

    • reasoning used to create decision

  • substantive review

    • what was decided

How to approach a grounds question

  • Identify the decision: What is being challenged? Who made it? Under what power?

  • Identify what went wrong: Read the facts carefully. What smells wrong? Bias? No hearing? Rigid policy? Ignoring evidence?

  • Match to a ground: Which legal ground captures the defect? There may be more than one.

  • Apply the test: State the legal test for that ground and apply it to the facts. Use case law.

  • Consider remedies: Quashing order? Mandatory order? Declaration

procedural fairness (natural justice) - requires fair process behind decision making when taking decisions that adversely affect individuals

Things that make procedural fairness important

  • instrumental justification

    • fair procedures lead to better decisions

    • affected parties can provide decision makers with relevant information

    • impartial decision makers can weigh evidence objectively

    • reduces error + improves accuracy

  • non-instrumental justification

    • respects dignity of individuals

    • people are treated as participants

    • enhances legitimacy of government action

actual fairness - biased decision makers may reach wrong conclusions

perceived fairness - public confidence in administrative justice requires the appearance of impartiality

Actual bias

  • decision maker is perceived to be biased

  • requires evidence

  • very difficult to prove in practice

Apparent bias

  • a real possibility of bias based on circumstances

  • no need to prove actual prejudice

  • focus is on objective appearance

  • protects public confidence in justice

  • claimants typically rely on this

factors for automatic disqualification

  • no need to apply apparent bias test

  • party to the case

  • direct financial interest - financial stake in outcome (Dimes v Grand Junction Canal (1852))

  • close non-financial connection - extended by R v Bow Street Magistrate, ex p Pinochet (No 2) [2000]

Dimes v Grand Junction Canal (1852)

  • rule for direct financial interest in the outcome of a case automatically disqualifying the decision maker

  • Lord Cottenham owned shares in the Grand Junction Canal Company + he sat in a judgement on a case concerning it

Locabail (UK) Ltd v Bayfield Properties [2000]

  • extended the scope of Dimes principle

  • direct interest in the outcome is needed for decision to be automatically disqualified

R v Bow Street Magistrate, ex p Pinochet (No 2) [2000]

  • General Pinochet challenged his extradition to Spain but HoL ruled against him - Lord Hoffmann was a director of Amnesty International Charitable Trust which was involved with the case

  • extended automatic disqualification beyond financial interest to sufficiently close connection to the party in the litigation

Porter v Magill [2002]

  • unified the old reasonable suspicion + real danger tests

  • test = would a fair-minded (reserves judgement until all evidence is reviewed) + informed observer, considering the facts, conclude that there was a real possibility that the tribunal was biased, Taylor v Lawrence [2002]: The observer is taken to know what the decision-maker knew at the time — they are "imputed with knowledge" of
    relevant circumstances

  • Dame Shirley Porter led the Westminster Council was accused of gerrymandering by someone who was alleged to be biased based on the public statements he had made

Localism Act 2011, Section 25
Parliament has now codified the approach in Island Farm:
Section 25(2): A councillor is not taken to have had "a closed mind when making a decision just because the decision-maker had previously
done anything that directly or indirectly indicated what view the decision-maker took, or would or might take, in relation to a matter"
Effect:
• Prior indication of views does not automatically equal predetermination
• Councillors can campaign on issues and still make decisions
• But a genuinely closed mind will still amount to bias

requirements for independence - concerns decision makers structural arrangements

Article 6(1) ECHR: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing... by an independent and impartial tribunal established by law."

  • only applies when civil rights + obligations or criminal charges have been determined

  • Ali v Birmingham City Council [2010]: Article 6 does not apply where the decision involves the allocation of public resources and there is no underlying private law right

R (Anderson) v Secretary of State [2002]

  • example of fact finding + right determining

  • secretary of state set the minimum term for mandatory life sentence (tariff) + Anderson argued it violated Article 6

  • it was held that the home secretary was not independent - had to be performed by an independent court not a member of the executive

not all administrative decisions require an independent tribunal, policy decisions do not while fact-finding / rights do

R (Alconbury) v Secretary of State [2001]

  • example of policy decision

  • developers challenged planning decisions made by secretary of state - believed it violated Article 6 as the minister was not independent

  • Article 6 is satisfied if an initial decision by a non-independent body can be reviewed by a court with full jurisdiction over questions of law + fact

  • planning involves policy choices that are properly made by democratically accountable ministers + they can decide

Factors that the courts consider to determine fairness

  • nature of decision

    • disciplinary action requires more than routine administration

  • impact on the individual

    • loss of livelihood requires more than minor inconvenience

  • statutory context

    • parliament may indicate what procedures are appropriate

  • administrative burden

    • practicalities of requiring extensive procedures

  • the more severe the consequences the more procedural protection is required

Lloyd v McMahon [1987]

  • Liverpool councillors were surcharged for financial misconduct - they argued for an oral hearing

  • it was held that there is no automatic right to an oral hearing

    • fairness is flexible

cases that require oral hearings

  • credibility is in issue

    • assessing who is telling the truth

  • key factual disputes

    • cross-examination is needed

  • serious consequences

  • dignitary interests

    • participation has inherent value - Osborn v Parole Board [2013]

Osborn v Parole Board [2013]

  • prisoners challenged decisions not to grant them oral hearings before parole board when considering their release

  • it serves inherent value of allowing individuals to participate meaningfully in decisions affecting them

  • expanded understanding of procedural fairness (non-instrumental value included)

courts now recognise there is a duty to provide reasons for decisions in various circumstances

R v Secretary of State, ex p Doody [1994]

  • prisoners facing life sentences challenged the secretary of state’s failure to give reasons for setting their minimum terms

  • fairness required reasons, decision profoundly affected prisoners’ liberties + without reasoning prisoners could not effectively make representations / seek review

factors that show why reasons are required

  • following doody

  • statute requires them

  • right of appeal

  • departure from policy / precedent

  • serious impact on individual

South Buckinghamshire v Porter (No 2) [2004]

  • example of the standard for adequate reasons

    • must be intelligible + adequate, reader must understand why decision was made

    • address only the important controversial issues

a person given power cannot delegate power to someone else

  • distinguished between true delegation + acting through officials (on behalf of another minister

Carltona v Commissioners of Works [1943]

  • statute gave commissioners power to requisite property - decision taken by assistant secretary

  • The Carltona Doctrine
    When Parliament confers powers on Ministers, it is presumed to intend that officials may exercise those powers on the Minister's behalf. The official acts as the Minister, not as a delegate.

limits of carltona doctrine

  • statute expressly requires personal decision

  • insufficient seniority

  • constitutional functions

    • some powers are so significant they require a ministerial decision

R (Adams) v Secretary of State [2020]

  • example of carltona not applying

  • during the troubles executive certificates (exclusion orders) prevented individuals from entering England - these had been signed by junior ministers not secretary of state

  • this decision was of such constitutional significance that it required the secretary of state to make the decision personally

fettering of discretion - When Parliament grants a discretionary power, the decision-maker must not surrender that discretion

British Oxygen v Minister of Technology [1971]

  • The Minister had a policy of not giving investment grants for items costing less than £25. British Oxygen's cylinders cost £20 each (though collectively worth millions).

  • The British Oxygen Principle

    • A decision-maker may adopt a policy to guide the exercise of discretion, provided they remain willing to hear arguments that an exception should be made in a particular case


lawful policy

  • guides decision making

  • promotes consistency

  • allows exceptions

  • decision makers willing to hear arguments

unlawful rigid rule

  • dictates out comes

  • no room for exceptions

  • closed minded

  • treats policy as binding

  • fetters discretion

Nzolameso v Westminster CC [2015]

  • A homeless family was offered accommodation 50 miles away. The council's policy was to offer out-of-borough housing without properly
    considering the impact on individual families.

  • Held: The decision was unlawful

  • The council had applied its policy without genuinely engaging with the family's individual circumstances

The doctrine of legitimate expectations - holds government to its promises and policies. If a public body creates an expectation, fairness may require it to be honoured.

types of legitimate expectation

  • procedural

  • substantive

    • expectation of a particular outcome / benefit

  • sources

    • express promise / representation

    • past practice

    • published policy

R v North and East Devon HA, ex p Coughlan [2001]

  • Miss Coughlan was severely disabled. The health authority promised she could live at Mardon House "for as long as she chose". Later, it decided to close Mardon House.

  • held the promise must be honoured

    • breaking the promise to small group who relied on it to their detriment would be unfair + an abuse of power

coughlan framework

  • category 1

    • the authority is only responsible to bear in mind its previous policy - give it weight but no more

  • category 2

    • authority must follow a fair procedure before departing from the expectation

  • category 3

    • the expectation is so specific + relied upon it would be an abuse of power to not honour it - unless there is an overriding public interest

    • controversial as this provides substantive protection not just procedural

    • cases where it is likely

      • promise to individua;

      • detrimental reliance

      • clear + unambiguous

      • no overriding interest

R v Secretary of State, ex p Begbie [2000]

  • Before the 1997 election, Labour promised to retain the assisted places scheme. After winning, they abolished it. Parents who had relied on the promise challenged this.

  • it was held hat there was no enforceable expectation

    • The promise was made to the public at large about macro-political policy. Such promises are different from individual representations — they are more appropriately enforced through the ballot box.

R v Secretary of State, ex p Venables [1998]

  • The Home Secretary set the tariff for the killers of James Bulger. He took into account a petition and media campaign demanding they be imprisoned for life.

  • it was held that public clamour was irrelevant

    • Sentencing must be based on proper penological considerations — public opinion expressed through petitions and media campaigns was legally irrelevant

factors courts use to determine what is relevant

  • the statutory framework

  • purpose of the power

    • parliament’s goal

  • common sense

Closely related to relevant considerations is the requirement to act for proper purposes.

This requires courts to identify why Parliament granted the power and to ensure the decision-maker is pursuing that purpose.

Using a power for an unauthorised purpose is an abuse of power, even if the decision might otherwise seem reasonable.

Padfield v Minister of Agriculture [1968]

  • Dairy farmers complained about milk pricing. The statute gave the Minister discretion to refer complaints to a committee of investigation. The Minister refused to refer, fearing an adverse report would be politically embarrassing.

  • it was held that the refusal was unlawful

    • The statute created the complaints machinery to ensure fair treatment of farmers. Refusing to use it to avoid political embarrassment frustrated the purpose of the Act.

factors that make padfield significant

  • no unfettering discretion

  • purpose interpretation

  • political convenience irrelevant

Associated Provincial Picture Houses v Wednesbury [1948]

  • A local authority granted a cinema licence subject to a condition that no children under 15 could be admitted on Sundays. The cinema
    challenged this as unreasonable.

  • The Wednesbury Test
    A decision can only be struck down if it is "so unreasonable that no reasonable authority could ever have come to it"

  • sets a high threshold for intervention

    • courts will not substitute their view for the decision maker but they will intervene if the decision is beyond the range of responses open to a reasonable decision maker

CCSU v Minister for the Civil Service [1985]

  • The Prime Minister banned trade union membership at GCHQ without prior consultation. The unions challenged this decision.

  • Significance

    • Lord Diplock's famous classification of the grounds of judicial review

  • Illegality

    • Decision-maker must understand the law correctly

  • Irrationality

    • Wednesbury unreasonableness

  • Procedural Impropriety

    • Fair procedures must be followed

criticisms of wednesbury

  • too deferntial

    • height of threshold = intervention is a rare result, no effective protection for individuals

  • circular reasoning

    • tells us little about standard

  • lacks structure

    • no framework for weighing + comparing considerations

Proportionality is a more structured approach to substantive review - It asks whether the means used are proportionate to the ends pursued.
Even if a decision pursues a legitimate aim, it may be unlawful if it goes further than necessary to achieve that aim
Proportionality originates in EU law and the European Convention on Human Rights, and has become increasingly important in UK public law.
Unlike Wednesbury, proportionality requires courts to examine the balance struck by the decision-maker

R (Daly) v Secretary of State [2001]

  • Prison policy required prisoners to be absent from their cells during searches, meaning staff could read privileged legal correspondence. Daly challenged this.

  • Held: The policy was disproportionate

    • A blanket rule was not necessary — the legitimate aim could be achieved by less intrusive means that still protected legal professional privilege

Bank Mellat v HM Treasury (No 2) [2013]

  • The Treasury imposed sanctions on an Iranian bank, effectively excluding it from the UK financial system. The bank claimed this was
    disproportionate.

  • Significance: Lord Sumption set out the definitive four-stage proportionality test:
    1. Is the objective sufficiently important to justify limiting a right?
    2. Is the measure rationally connected to the objective?
    3. Could a less intrusive measure have been used? (necessity)
    4. Has a fair balance been struck between the rights of the individual and the interests of the community? (balancing)

stages explained

  • legitimate aim

  • rational connections

  • necessity

  • fair balance

cases that proportionality applies to

  • hra cases

  • eu law cases

  • common law fundamental rights

Kennedy v Charity Commission [2014]

  • A journalist sought disclosure of documents from the Charity Commission. No Convention right was directly engaged.
    The Supreme Court Declined
    The court was not prepared to adopt proportionality as the universal test. Wednesbury remains the default standard where Convention rights are not engaged.