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Judicial-Review

Public law (University of London)

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Judicial Review

Part 54 of the Civil Procedure Rule (1997) covers the procedures in England and Wales for the claim of judicial review. Rule 54.1
states :

1. This section of this Part contains rules about judicial review.

2. In this section- a. a “claim for judicial review” means a claim to review the lawfulness of- (1) an enactment ; or (2) a decision,
action or failure to act in relation to the exercise of a public function.

In England and Wales, and in Northern Ireland, the JR procedure consists of two basic stages :

1. Permission stage- claimants must first obtain the permission of a judge to bring a claim.

2. Full hearing- only if permission is granted then the claim proceed to be dealt with by the court.

Permission.

a. the claim is made within time limit (within basically three months of the decision being challenged)

b. standing- the claimant has a sufficient interest in the case.

c. other potential avenues of remedies have been exhausted (eg. An internal appeal) and that there is no other suitable way of
challenging the decision (eg. A statutory appeal to the First-tier Tribunal).

The lawfulness of an enactment.

A claim for judicial review means a claim for :

1. to review lawfulness of an enactment.

2. to review the lawfulness of decisions or actions in relation to the exercise of a public function.

3. to question whether primary legislature is compatible with EU law.

4. to seek a DIO under s.4 of HRA 1998.

5. to challenge legislative provisions enacted by the National Assembly of Wales.

6. to challenge legislative provisions enacted by Scottish Parliament.

7. to review lawfulness of delegated legislature.

8. to review lawfulness of Constitutional Statutes.

Standing to make a judicial review claim or locus standi

It is of two types: 1) Victim /personal standing . 2) Representative standing.

Representative standing can be sub divided into three types.

a. Surrogate standing- refers to a situation in which the claimant purports to represent an individual with a personal interest in
the claim. Unless there was some good reason why that individual should not make the claim personally (individual’s age or
mental condition), a court would be unlikely to accord a surrogate standing.

b. Associational standing- refers to a situation in which the claimant purports to represent a group of individuals who have a
personal sufficient interest in the subject of the claim.

c. Citizen/ public interest/ action popularize standing- refers to a situation in which the claimant purports to represent “the
public interest” as opposed to the interests of any particular individual(s) (the IRC case and WMD). These two cases are
discussed below :

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The IRC case [1982]

The Federation, an interest group wanted to challenge the legality of a decision by the tax authorities to grant a tax ‘amnesty’ to
print workers employed on a casual basis by newspapers. The majority in House of Lords decided that the Federation did not
have a sufficient interest in the matter. But Lord Diplock took a concurring judgment on this matter. He decided against the
Federation, not on grounds of standing but because the Federation had failed to show IRC had acted unlawfully. Lord Diplock’s
this approach has become the dominant approach.

R v WDM [1995]

WDM is a pressure group that campaigns to improve the quality of aid to developing countries. It challenged the foreign
Secretary’s decisions to provide funding for the Pergau Dam project in Malaysia. It claimed to represent broader public interest.
Rose LJ provided three reasons why WDM had sufficient interest in the matter by following Lord Diplock’s footsteps in IRC case,
which are as follows:

1. absence of any other responsible challenger.

2. the nature of the breach of duty against which relief is sought.

3. the prominent role of these applicants in giving advice, guidance and assistance with regard to aid.

Source test

Traditionally the source test was used to identify which bodies were susceptible to review but a more recent development
recognised that public functions carried out by private (non-state) bodies may also be susceptible to judicial review where they
are seen to be exercising de facto (function test) public law powers. This stems from the 1987 Datafin case where it was held
that the test was to look at the nature rather than the source of power being exercised.

In this case the panel on takeovers and mergers was not a government body, nor was it established by statute or prerogative.
Datafin plc sought JR of the panel’s actions and the court held that the panel was exercising public functions and that ‘but for’ its
existence government would have needed to create a similar body hence it was susceptible to judicial review.

However, other bodies have been held to be insufficiently governmental in nature, for example in the Aga Khan case the Jockey
Club (which regulated horse-racing in Britain) had a contractual relationship with its members and thus judicial review would not
be the appropriate solution or remedy to pursue.

Grounds for judicial review

1. Illegality

2. Irrationality

3. Procedural/Impropriety

4. Legitimate Expectation

5. Proportionality

Illegality

Illegality as a ground for judicial review means that the decision-maker must understand correctly the law that regulates his
decision-making power and must give effect to it. Whether he has or not is a question to be decided in the event of dispute by
judges. This would mean that when a power vested in a decision-maker is exceeded, acts done in excess of the power are invalid
as being ultra vires (substantive ultra vires).

1. Discretionary power cannot be delegated

Oladehinde [1991]

Deportation under the Immigration Act 1971 was a two stage process: 1. The giving of a Notice of Intention to deport 2. The
signing of the Deportation Order. Under 1971 Act both functions were conferred on the Secretary of State. In this case he

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delegated the first stage to Immigration Officers. The delegation was challenged at judicial review on the grounds that, although
it was accepted that the power could be exercised on behalf of him by members of the Department, Immigration Officers had
separate functions under the Act. The House of Lords held that despite the distinct functions conferred on the Immigration
Officers, they were capable of exercising the power under the responsibility of the Secretary of State. But second stage of the
process remained his personal responsibility.

However, there are three exceptions to this.

i. Local Authorities

s.101(1) of the Local Government Act 1972 provides that local authorities may discharge their functions through committees,
sub-committees or their officers, provided that the delegation is in accordance with its ‘scheme of delegation’.

ii. Carltona doctrine

Following Carltona v Commissioner of Works (1943), it was recognised that the multitude of functions delegated to government
ministers could not possibly be undertaken by them personally. Lord Greene stated:

The whole system of departmental organisation and administration is based on the view that ministers, being responsible to
Parliament, will see that important duties are committed to experienced officials.

It appears this doctrine is regulated by Osmotherly Rule.

iii. Quasi-judicial function

Barnard case [1953]

The Dock Workers (Regulations) Order 197 set up a National Dock Labour Board to administer a Scheme under whicg powers
and relevant functions were to be delegated to local boards. Among these functions were disciplinary powers. The London Dock
Labour Broad passed a resolution which delegated to the port manager the port manager such disciplinary powers.
Subsequently, the post manager suspended a number of dockers as part of an industrial dispute. In the High Court this was
considered to be an administrative function that could be delegated, but this view was unanimously rejected by Court of Appeal.
Lord Denning LJ held that it was a judicial function because it affected the rights of the individuals, and that it was a basic
principle that no tribunal could delegate a judicial function. This principle was approved by the HL in a similar case Vine [1957].

2. Fettering discretion: treating policies as binding

It is proper, and often necessary, for public bodies to adopt policies in order to help them to make decisions and to provide
guidance as to how decisions will be reached.

BOC case [1971]

The Board of Trade had discretionary power to give grants. It adopted a policy not to pay grants in cases in which individuals
items cost less than 25 pounds. BOC spent 4m pounds buying new gas cylinders and applied for a grant. Its application was
turned down on the basis that, each cylinder cost less than 25 pounds. BOC unsuccessfully challenged the decision arguing that
the Board had applied the policy without considering the merits of its application. Lord Reid set out the key principles for
treating policies as rules which are as follows:

 The general rule is that anyone who has to exercise a statutory discretion must not ‘shut his ears to an application’.
There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging
a change of policy.
 A Ministry or large authority may have had to deal already with a multitude of similar applications and then they will
almost certainly have evolved a policy so precise that it could well be called a rule.

Relevant and irrelevant consideration

Roberts v Hoopwood [1925]

A decision was made by Poplar Borough Council to pay its employees uniform pay increases considerably higher than the rate of
inflation and unrelated to the sex of the employee and to the nature of work done. The authority had a wide statutory power to

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pay its employees salaries and wages as it thought fit. Following a challenge by the district auditor, this action was held to be
wrong in law. In the first place, the council had acted on the basis of irrelevant considerations in seeking to set itself up as a
model employer. Secondly, at a time when wages were actually falling it had taken insufficient account of ratepayers interests.

Padfield [1968]

The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for
agricultural produce under s. 19 of The Milk Marketing Act 1958. Milk producers complained about the price paid by the milk
marketing board for their milk when compared with prices paid to producers in other regions. The Minister refused to appoint a
committee. The milk producers applied for mandating order to force the minister to refer their complaint. The minister argued
that the section also provided him with the power to amend the scheme if he thinks fit to do so after considering, this gave him
complete discretion. In respond to the claim that he based his decision on irrelevant factors, he argued that since he was under
no obligation to give reasons for his decision, he could not be found to have acted improperly on the basis of reason that he had
voluntarily given.

The majority of House of Lords rejected the minister’s arguments. It held that the minister had misconstrued his legal powers
and acted for reasons that were irrelevant to the purpose of the legislation.

Irrationality/ Unreasonableness

The Wednesbury case

Local authorities had discretionary power to grant license to picture houses to open on Sundays, but they had freedom to
impose ‘such conditions as they thought fit’ under s.1(1) of the Sunday Entertainments Act 1932. Wednesbury granted the
claimants a license to open their cinema on Sundays, but imposed a condition that no children under 15, whether accompanied
by an adult or not, were admitted on Sundays. This was done to protect moral welfare of the children.

The claimants challenged the legality of the condition on two main arguments. First, they argued that, the legislation concerned
licensing of cinemas and not the protection of the moral welfare of children. Second, they argued that even if the public
authority could its discretion in order to protect the welfare of children, the actual condition imposed was unlawful because it
was unreasonably wide.

The Court of Appeal held that local authority could take the moral welfare of children into account. In relation, to the second
argument, the Court said that it would have intervened had the condition been so unreasonable that no reasonable authority
could have imposed it. However, this had not been establish and ultimately the claimants lost the case.

The decision in relation to second argument is commonly known as Wednesbury unreasonable test, which has been used in
subsequent cases related to the issue of judicial review. The burden of proof is on the claimant.

Procedural impropriety

It can be sub divided into statutes and common law (natural justice). Rule of natural justice can be further divided into rule
against bias and fair hearing.

Natural justice

Traditionally their application was confined to judicial or ‘quasi-judicial’ decisions but this restrictive approach was abandoned in
the seminal 1964 case of Ridge v Baldwin. Since Ridge v Baldwin the requirement of fairness or natural justice was applied in any
situation where the rights of individuals were at issue.

Rule against bias

It means that no man should be a judge in his own cause – that is should have no interest in the outcome of the case or decision
or have made any pre-judgement. It is encapsulated in Latin as nemo judex in causa sua. Rule against can also be further divided
into actual bias, which is very rare and difficult to prove, and apparent bias.

Lord Hewart CJ said in McCarthy case “It is not merely of some importance, but of fundamental importance that justice should
not only be done, but should manifestly and undoubtedly be seen to be done.”

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Apparent bias can arise where a decision-maker has:

• a direct personal or pecuniary interest in the outcome; or

• an indirect interest in the outcome arising from the institution which she represents.

The key authority here is Dimes v Grand Junction Canal Co in which a decision of Lord Chancellor was set aside by the House of
Lords because he owned shares in one of the parties. There was no imputation of actual bias, but it was held that the principle
that no man can be a judge in his own cause must be sacred.

Pinochet (no. 2) 1999

In this case the House of Lords considered an extradition request for Pinochet to Spain. Amnesty International had been heard in
the extradition proceedings as third party interveners. Lord Hoffman - one of the judges in the decision - did not declare he was
an unpaid Director and of Amnesty International Charitable Trust and his wife also worked for Amnesty. It was clear that that
Lord Hoffman had no pecuniary interest in the organisation, direct or indirect. The House of Lords held that these connections
effectively made him a party to the cause and, as such, automatically disqualified on the basis of his direct interest in the case.
Thus the previous decision of the House was quashed and a re-hearing ordered.

Porter v Magill [2001]

The House of Lords set out a two-stage test:

First, the court must first ascertain all the circumstances which give rise to bias, then;

Secondly, it must then ask whether in those circumstances a fair-minded and informed observer would conclude that there was
a real possibility of bias

Fair hearing

It is encapsulated in Latin as audi alteram partem meaning "listen to the other side", or "let the other side be heard as well". It is
the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to
the evidence against them.

Depending on the context the right to a fair hearing might include some or all of the following:

 opportunity to know case (cause/allegation) against you

 right to adequate time to prepare case/response & disclosure (defendant must have access to the evidence against
him/her) of evidence
 right to make representations
 right to cross examine witnesses
 nature of hearing – oral/written? When will a hearing be granted?
 right to be legally represented (can have access to a lawyer)
 the right to be given reasons (for the decision)- no general duty to the public body to give reason for their decision
except i. livelihood ii. Home iii. Education iv. Immigration v. tariff

Duty to give reasons?

There is no general statutory duty to give reasons and no general duty under common law on decision makers to provide
reasons for decisions, but a duty to provide reasons for a decision may arise in individual circumstances. As Lord Denning has
stated “giving reasons is one of the fundamentals of good administration.”

Doody v Secretary of State for Home Department

In this case the Home Secretary was required to give reasons when setting a mandatory life sentence tariff so that the prisoner
could make representations and, if need be, apply for judicial review.

Lord Mustill said there were two purposes for which reasons should be given:

1. to enable the individual to mount an effective attack on the decision; and

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2. reasons were required on the grounds of openness in decision making and fairness to the individual.

Legitimate Expectation

Legitimate expectation is a doctrine that an expectation of a procedure (or benefit) arising from a promise or practice may be
protected in law.

Such an expectation may arise as a result of:

• A Promise or Undertaking

• Past Practice

• Existence of general policies/guidance

However, the practice or promise made has to be: (i) clear, unambiguous and precise; (ii) legal; (iii) known about and relied on
by the person claiming it.

Promise or Undertaking

Liverpool Taxi Fleet case

Here the local authority had the statutory power to licence taxis in the area. It wrote to the association representing taxi cab
owners indicating that it would not increase the number of taxi cab licences it issued until certain legislation was passed.
However, the local authority subsequently recommended that the number of taxi licences should be increased. The court held
that the local authority was not at liberty to disregard their undertaking to the applicant without first consulting the applicants
and giving them an opportunity to put their case.

Past Practice

GCHQ case [1985]

Since 1947, staff at GCHQ (Government Communications Headquarters) had been permitted to belong to national trade unions,
and most had done so. There was a well-established practice of consultation between the official and trade union sides about
important changes to terms and conditions of service of staff. Then the Prime Minister banned trade union membership for
workers at GCHQ without consulting the trade union first. The House of Lords held that the trade union had a legitimate
expectation - based on past practice - that they would be consulted prior to any important changes to conditions of service for
staff.

Policy/Guidance

Khan case [1984]

A Pakistani couple who were resident in England wanted to adopt their brother’s child who was living in Pakistan. A Home Office
circular set out criteria for the entry of children into the UK and set out the procedure which the Home Office would adopt in
such cases. However, due to an administrative error, this procedure was not initiated and eventually resulted in a refusal of their
adoption application. The couple sought judicial review of the Home Office’s refusal, arguing that they had a legitimate
expectation that the procedures set out in the letter would be followed which gave rise to an obligation by the Home Secretary
to observe the stated procedures. The Court of Appeal held that a legitimate expectation had been created and a quashing order
was granted.

Caughlan case

the Court of Appeal held that a health authority’s decision to close a home for the severely disabled at which Mrs Coughlan
resided and to transfer her to the care of a local authority was unlawful, when assurance had been given that it would be her
home for life. It was held that the decision was unfair and frustrated Mrs Coughlan’s legitimate expectation. The unfairness
amounted to an abuse of power. There was no overriding public interest justifying the decision.

Proportionality

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According to Lord Kerr JSC the process stated in Aguilar Quila [2012] 1 AC 621 applied. The questions which had to be asked
were:

(a) is the objective sufficiently important to justify limiting a fundamental right?

(b) are the measures which have been designed to meet it rationally connected to it?

(c) are they no more than are necessary to accomplish it?

(d) do they strike a fair balance between the rights of the individual and the interests of the community?

In conducting this exercise, the court must exercise its own judgement. It is for the court, not the decision-maker, to decide that
the measures are no more than is required to achieve the objective and that a fair balance has been struck, i.e. that it is
proportionate. Courts have more discretionary power to scrutinize the activities of Public authorities than under
unreasonableness. The burden of proof is on the defendant.

Youssef [2016]

The case concerned the legality of the appellant’s inclusion in the United Nations Security Council’s list of persons associated
with terrorist organisations. One of the grounds for appeal in Youssef was the standard of review. Lord Carnwath JSC considered
proportionality and expressed the hope that an opportunity might arise in which a ‘comprehensive review of the tests to be
applied to administrative decisions generally’ could be undertaken by the Supreme Court. Referring to Lord Reed’s dicta in Pham
(below), Lord Carnwath reiterated his support for a more flexible approach where individual rights were at issue but also made
the point that in many cases, ‘perhaps most’, applying a proportionality test would not lead to a different result from the
traditional grounds for judicial review – especially where national security was involved (because national security is an area
where the courts are particularly slow to interfere in executive decisions).

Pham [2015] where the issue was whether the Home Secretary could lawfully deprive the appellant of his British citizenship.

Lumsdon [2015]

ECHR proportionality

Lord Reed reminded us that EU proportionality is not ECHR proportionality, governing the four stage justification of
interferences with fundamental rights under the HRA. He himself had set this out carefully in Bank Mellat [2013].It is necessary
to determine:

(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right,

(2) whether the measure is rationally connected to the objective,

(3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the
objective, and

(4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the
importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the
latter…. In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely
benefit of the impugned measure

EU proportionality

This is now part of the Treaty on European Union (art.5(4)) “Under the principle of proportionality, the content and form of
Union action shall not exceed what is necessary to achieve the objectives of the Treaties”. In the UK, the EU concept is put “in
more compressed and general terms” than in German and Canadian law: [69] of Bank Mellat, – and Lord Reed remarked the EU
cases are “not always clear, at least to a reader from a common law tradition”.

One very helpful thing he does is to set out the different circumstances in which proportionality may arise, and the different
roles it plays in those different circumstances. There are three main areas:

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(i) as a ground of review of EU measures themselves; this inevitably involves cases before the CJEU (a national court cannot
allow such a challenge, it can only refer such a case to the CJEU), and hence such challenges are relatively infrequent; [36]

(ii) a review of national measures relying on derogations from general EU rights; here proportionality is used as means of
preventing disguised discrimination and unnecessary barriers to market integration. In this context the court, seeing itself as the
guardian of the treaties and the uniform application of EU law, generally applies the principle more strictly [37]

(iii) a review of national measures implementing EU law; here member states are generally contributing towards the integration
of the internal market, rather than seeking to limit it in their national interests. So, proportionality functions in that context as a
conventional public law principle. On the other hand, (as per (ii)) where member states rely on reservations or derogations in EU
legislation in order to introduce measures restricting fundamental freedoms, proportionality is generally applied more strictly.

i) Challenges to EU measures

In a category (i) case, the appropriate test of review is that a court will only intervene if it considers the measure to be
manifestly inappropriate.

A leading example is Fedesa [1990], concerning an EU ban of certain hormones in livestock. In the classic statement of
proportionality the ECJ said at [13]

the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are
appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a
choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must
not be disproportionate to the aims pursued.

Lord Reed tells us to be cautious about the “least onerous” requirement in these circumstances; in practice, the court does not
apply it in any literal sense, but instead considers whether the measure chosen in manifestly inappropriate

(ii) National measures derogating from fundamental freedoms

The case law is well developed in the CJEU. The fundamental freedoms may be right of establishment and the provision of
services. The underlying Treaty provisions recognise limitations on those rights. See Gebhard v.Consiglio dell’Ordine degli
Avvocati e Procuratori di Milano [1995],

National measures liable to make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four
conditions: 1. they must be applied in a non-discriminatory manner; 2. they must be justified by imperative requirements in the
general interest; 3. they must be suitable for securing the attainment of the objective which they pursue; and 4. they must not
go beyond what is necessary in order to attain it.” (para 37, numbering added)

with the last two of these four conditions relating to proportionality.

These last two conditions are then explored at length. As for 3, the state does not have to show that the restriction is the most
appropriate of all possible measures to ensure achievement of the aim, but simply that it is not inappropriate. Contrast 4, where
it is necessary to establish that no other measures could have been equally effective but less restive of the freedom in question.

Justifications are examined in detail by the courts, in some cases, particularly those involving economic or social justification,
using considerable amounts of evidence [56], although, in certain areas involving risks to health, the precautionary principle
comes into play enabling measures to be passed sufficiently early before harm can actually be demonstrated [57]-[60]. Although
a purely hypothetical risk can be left out of account, a lesser evidential base may justify action than in other circumstances.

Where fundamental rights are in play, we are back into the Charter/BAT type arguments set out above. Lord Reed cites a nice
example, Schmidberger Internationale v Austria (Case C-112/00) [2003]. The Austrian government did not ban a demonstration
on a motorway, on the ground of respect for the rights of freedom of expression and freedom of assembly. The demonstration
resulted in the motorway’s closure for over a day, restricting the free movement of goods. But neither the freedoms nor the
rights were absolute. The right to free movement of goods could be subject to restrictions for the reasons laid down in the
Treaty or for overriding reasons of public interest. The rights to freedom of expression and freedom of assembly were also
subject to certain limitations justified by objectives in the public interest. Weighing these up, the court accepted that the action
in question had been proportionate.

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(iii) National measures implementing EU measures

Proportionality arises here, but the test to be applied is the manifestly disproportionate one looked at under (i) above.

At [75], Lord Reed turns to Sinclair Collis Ltd [2011], and on the Court of Appeal decision). It was a challenge to a ban on
cigarette machines. He points out that the CA analysed the cases on EU measures correctly (giving rise to the manifestly
inappropriate test) but wrongly applied them to the facts – a challenge brought in reliance on fundamental freedoms, where the
test under (ii) is the correct one. This was wrong.

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