Judicial Review: Introduction, Procedural Hurdles and Remedies Notes

Fundamentals of Judicial Review

• Conceptual Definition: Judicial review (JR) is a legal process where the judiciary scrutinizes the decisions and actions of public bodies. It is defined as "the means by which judicial control of executive action is exercised," per Lord Diplock in CCSU v Minister for the Civil Service [$1985$] AC $374$.

• Legal Basis: The process is governed primarily by $S.31$ of the Senior Courts Act ($SCA$) $1981$ and the Civil Procedure Rules ($CPR$) $1998$.

• Scope of Challenge: Judicial review is used to challenge:

  • Decisions of local authorities (e.g., distribution of welfare).
  • Decisions made by ministers (e.g., human rights issues or legal fees).
  • Decisions made by committees or panels.

• Nature of Judicial Intervention: Courts review the legality of a "decision," "action," or potential "inaction" of a public body. Examples include examining if the procedure to raise tribunal legal fees was lawful or if a council followed lawful procedure when denying benefits to a citizen.

• Limits to Power: Judicial review does not permit courts to review the merits or quality of a decision (whether it was "good" or "bad," "right" or "wrong"). The court only determines if the procedure was lawful, fair, and rational. Furthermore, JR cannot be used to challenge the legality of an Act of Parliament, as established in R (Jackson) v Attorney General [$2005$] UKHL $56$.

Judicial Review vs. Statutory Appeal

• Distinction: JR is a review, not an appeal.

• The Football Referee Metaphor: Lord Donaldson in R v SoS for Environment ex p Hammersmith and Fulham LBC ($1991$) likened the judiciary's role to a football referee. He explained that in football, the moves and tactics are for the players and teams. The referee only intervenes when a player breaches the rules. The referee may stop play and take remedial action, but they expressed no view on player skill or how they would have acted in those positions. Most importantly, a referee does not take over the player's position after a breach; similarly, the judiciary does not substitute its own decision for that of the authority.

Recent Developments: Judicial Review and Courts Act $2022$

• The Judicial Review and Courts Act $2022$ introduced significant reforms to the process in England and Wales to streamline procedures and enhance court efficiency. Key reforms include:
  1. General reforms to the review process.
  2. Limiting the judicial review of Upper Tribunal Decisions.
  3. Granting new powers regarding Quashing Orders.
  4. Implementing various procedural changes.
  5. Broader impacts on Public Law.

The Five Procedural Hurdles

To bring a JR claim, an applicant must pass through five admissibility hurdles:

1. Matter of Public Law: The claim must concern a public law issue.
2. Not Time Barred: The claim must be filed within specific timeframes.
3. Claim against a Public Authority: The defendant must be a public body.
4. Locus Standi: The applicant must have the legal standing to bring the action.
5. No Ouster Clause: There must be no legislative clause excluding the court's jurisdiction.

Hurdle $1$: Matter of Public Law

• Definitions:

  • Public Law: Legal rules governing the relationship between the individual and the state (e.g., Constitutional Law, Administrative Law, Human Rights Law).
  • Private Law: Rules governing relationships between individuals or non-state institutions (e.g., Contract Law, Tort, Commercial Law, Equity and Trusts).

• The Exclusivity Principle: established in O’Reilly v Mackman [$1983$] $2$ AC $237$. Following a prison riot at Hull prison, four prisoners challenged their loss of remission via ordinary action (private law). The House of Lords held this was an abuse of process; public law decisions must be challenged by JR, whereas private law matters are handled by ordinary action.

• Related Case Law: See Cocks v Thanet District Council ($1983$), Clark v University of Lincolnshire and Humberside ($2000$), and Ahmet v Tatum & anor ($2024$).

Hurdle $2$: Statutory Time Bar

• Requirements: A claim must be filed "promptly" and within $3$ months of the date or time the decision/action occurred.

• Consequences: If a claim is not brought within this $3$-month window, it becomes "time barred," and the courts will refuse to hear it.

• Legal Basis: $s.31(7)$ Senior Courts Act $1981$ and Civil Procedure Rules $2000$ (SI $2000/2092$) Rule $54.5(1)$.

Hurdle $3$: Claim Against a Public Authority

• The Source of Power Test: Courts typically look at how a body derives its power. Power from statute or royal prerogative usually indicates a public authority (e.g., Police, NHS, Local Councils). Power from private arrangements (contracts) usually indicates a private company.

• The Public Function Test: A body may be considered a public authority if it exercises a "public function," regardless of its power source.

  • R v City Panel on Take-overs and Mergers ex parte Datafin [$1987$] QB $815$: A panel regulating market mergers was ruled a public authority because it performed a de facto public function despite lacking statutory or prerogative powers.
  • Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and anor [$2003$] UKHL $37$: The court examined whether a church council was a public authority. Generally, contractual/private sources of power mean a body is not a public authority.
  • R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan ($1993$): The Jockey Club, though holding a Royal Charter and regulating national racing, was ruled a private body not susceptible to JR because its powers derived from agreements with owners (like the drug-testing disqualification in this case).

Hurdle $4$: Locus Standi (Standing)

• Core Requirement: Per $S.31(3)$ Senior Courts Act $1981$, the applicant must demonstrate a "sufficient interest" in the subject matter.

• Historical Approach: Courts were initially restrictive, requiring an individual to be "directly affected" by a decision. This barred groups or those only "indirectly" affected.

• Liberalization of Standing: In Inland Revenue Commissioners v National Federation of the Self-Employed and Small Businesses Ltd [$1982$] AC $61$, Lord Diplock stated it would be a "grave lacuna" if pressure groups or public-spirited taxpayers were prevented by technical rules from stopping unlawful conduct and vindicating the Rule of Law.

• Case Examples of Standing:

  • R v Secretary of State for the Environment, ex parte Greenpeace No.2 ($1994$): Greenpeace granted standing to represent those concerned about a nuclear processing plant.
  • R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd ($1995$): A pressure group granted standing to challenge funding for the Pergau Dam project in Malaysia.
  • R v Secretary of State for Foreign Affairs ex p Rees-Mogg [$1994$] QB $552$: Lord Rees-Mogg (editor of The Times) allowed to challenge an EU Treaty ratification because of his interest in constitutional affairs, despite not being "directly affected."
  • R (Good Law Project & Anor.) v The Prime Minister & Anor. [$2022$] EWHC $298$: Challenged pandemic appointments without open competition; GLP was denied standing, but Runnymede Trust (a racial equality charity) was granted standing as its specific purpose aligned with the court's considerations.

Hurdle $5$: Ouster Clauses

• Definition: Clauses in legislation that attempt to exempt executive acts or decisions from judicial review.

• Controversy: These clauses conflict with the Rule of Law by attempting to restrict the court's jurisdiction.

• Judicial Interpretation:

  • Total exclusion of JR requires "extremely clear" wording (Anisminic v Foreign Compensation Commission [$1969$] $2$ AC $147$).
  • Courts are more accepting of "limited ouster clauses," such as restricted time limits (R v Secretary of State for the Environment ex parte Ostler [$1976$] $3$ WLR $288$).

• Modern Statutory Reform:

  • R (Cart) v Upper Tribunal [$2011$] UKSC $28$ was effectively reversed by the Judicial Review and Courts Act $2022$.
  • The $2022$ Act introduced a new $s.11A$ into the Tribunal, Courts and Enforcement Act $2007$, drafted specifically to prevent the "reading down" of ouster clauses seen in Anisminic.
  • R (Oceana) v Upper Tribunal [$2023$] EWHC $791$ (Admin): The High Court dismissed an appeal, affirming that the common law supervisory jurisdiction enjoys no immunity when Parliament uses clear language to express sovereignty.

Remedies in Judicial Review

• Quashing Order: Nullifies the challenged decision, treating it as if it never happened. The decision-maker is usually invited to make the decision again. (Modified by the $2022$ Act).
• Prohibiting Order: Forbids a public authority from acting in a specific way.
• Mandating Order: Commands a public authority to perform a specific action.
• Declaration of a Question of Law: The court declares what the law is for all affected parties if confusion exists.
• General Remedies:
  • Injunction: Forbids specific actions.
  • Damages: Financial compensation, though this is strictly controlled in judicial review context.