Judicial Review

Judicial review is the legal process by which an individual challenges a public authority's
decision or action in court.When a public authority acts outside of their authorized scope
of power, this is referred to as acting ultra vires.This can be done substantively or
Procedural, substantive ultra vires is simply doing the wrong thing while procedural
ultra vires is doing something right but in the wrong way. Judicial review prohibits
public authorities from abusing their power by allowing citizens to seek justice for abuses
of their rights or doubts about authority decisions, and by holding authorities
accountable to the law and constitutional principles. requiring them to act within their
authority or intra vires.The grounds for ultra vires on the judicial review are namely,
illegality ,Wednesbury unreasonability. and Procedural impropriety.

A. Judicial Review on Substantive Grounds

1. Illegality – this ground occurs where the decision maker has failed to understand
correctly the law which regulates his decision making power.

a. Abuse of Discretionary powers

In exercising discretion an official or public body may intentionally or

inadvertently make a decision or embark on action which the court considers to
be unlawful. The court may intervene where a discretion appears not to have been
lawfully exercised.
The attitude of the courts to claims that a minister has unlimited discretion was
shown in Padfield v Minister of Agriculture courts held that a Ministers discretion
in a manner which promoted the intention and objects of the Act o 1958.

b. Irrelevant Considerations: Powers are not lawfully exercised if the decision

maker takes into account factors that in law are irrelevant or leaves out of
account relevant matters. However to invalidate a decision it is not enough that
considerations have been ignored which could have been taken into account; it is
only when the statute expressly or impliedly identifies considerations required to
be taken into account by the authority as a matter of legal obligation that a
decision will be invalid because relevant considerations were ignored.

c. Improper purposes/ error of jurisdictional fact : Purpose in this context refers to

the intention of the statute. A statutory power must be exercised for the purpose
for which it was intended. Thus if the proper purpose of the stature has not been
served then the functionary would have acted ultra vires. The exercise of power
 for an improper purpose is invalid. This often arises out of a mistaken
interpretation by a public authority of its powers usually contributed by an excess
zeal in the public interest. Improper purposes include malice or personal
dishonesty on the part of the officials making the decision.

d. The no-evidence rule, a decision may be ultra vires if it was

a. Based on no evidence whatsoever

b. The evidence available was minimal that no reasonable decision maker
could have base a decision of any kind upon it
c. It was based on a wholly mistaken understanding of the facts.

e. Fettering Discretion- this usually occurs in two varying circumstances firstly

when one contracts away their statutory powers and secondly where one resolves
to apply general public policy blindly.

e.g In Singh v Chinilall rent assessment committee had statutory power to do periodical
reviews, pursuant to this they fixed a five yearly rent. This decision was challenged by the
landlord, justice Persuad held that the fixing of the rents for five years amounted to the
contracting away of the powers of the rent assessment committee.

In Enmore Estates v Buxton Village Council where the council was unauthorised to
collect tolls from pontoons using the canal they decided to lease it to a company and
charge them an annual sum for use of the canal rather than an individual pont. The
courts held the contractual agreement was an exercise of the council’s discretion in
charging tolls and that did not constitute a contracting away of its powers.

d. Error of Law and fact

Public bodies may make mistakes in their decisions and where those decisions are
fundamental they are required to go to jurisdiction, the courts may declare it ultra vires.
Where an error of law has been made the courts may declare that the decision is ultra
vires.

Where there has been an error of fact the courts may review a decision without evidence.
In Canada it has been argued that 'the legislative grant of power is upon the condition
that the statutory tribunal will only proceed where it has evidence to go on.’ In Bovell v
COP, the applicant was charged with a disciplinary offence and found guilty, he applied
for judicial review arguing that since there was no evidence to support the
Commissioner’s finding then there was an error of law to make a finding of fact for which
there was no basis. Justice Waterman held that ‘to find facts on no evidence is to err in
law.’ Thus the conclusions reached by the Commissioner were unreasonable.
 2. Irrationality

Wednesbury Unreasonableness

Some discussion on whether unreasonableness should fall under the umbrella of

irrelevant considerations, as a decision which is unreasonable is one where the decision
maker has taken into account something which is irrelevant.

Lord Diplock in Council of Civil Service Union v minister for the Civil Service upheld the
principle of unreasonableness as a separate principle. Lord Diplock established the
Wednesbury principle in Associated Provincial Picture Houses Ltd v Wednesbury
Corporation (1947) this established a wide test where a decision was said to be
unreasonable if it is so unreasonable that no reasonable person acting reasonably could
have made it or if it so absurd that no reasonable authority could have come to that
conclusion.

Lord Diplock in the GCHQ Case said that this 'applies to a decision which 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.'

Unreasonableness is often found where there has been an improper purpose or irrelevant
consideration.

The Courts have made it clear that they were not willing to categorise a decision as
unreasonable merely because it was inconvenient, unwise or unjust. In the case of Red v
Gaskin, a hotelier applied to the licensing authority to renew his liquor license. The
police rejected on two grounds but only one ground was sustained, namely annoyance to
persons living in the area during the night. The licensing authority however still granted
the license on the strict condition that there was to be no noise nor dancing. Hotelier
went to Court arguing that the decision was unreasonable. The Court outlined that had it
been the authority, it would not have granted the license but felt that the decision was not
so unreasonable that no reasonable authority could have come to that decision.

Where the governing Statute outlines a requirement for reasonableness, the Court will
insist on an objective or standard. Moreover, in Kingston Wharves Ltd v Port Authority
shows reasonableness in public law is not measured by the reasonable man on the
Clapham bus but rather by the true scope and policy of the statute in question.

The doctrine of proportionality is also recognized as an aspect of unreasonableness.

Some have argued that the UK legal system has always recognized the issue of
proportionality. The doctrine is simply that a public body should only do that which,
within a reasonable margin of discretion is proportionate to the end to be achieved.

Proportionality was mentioned in the GCHQ case as an additional ground. It is is linked

to irrationality and the wednesbury unreasonableness as if the course of action is
unreasonable under wednesbury then it must also be disproportionate to the problem.
Procedural Ultra Vires

3. Procedural Impropriety

Procedural impropriety as a ground for judicial review covers the failure by the
decision-maker to observe procedural rules that are expressly laid down in the legislation
by which its jurisdiction is conferred, or a failure to observe basic rules of natural
justice, or a failure to act with procedural fairness (procedural ultra vires).

Natural Justice

For natural justice to occur the decision maker must approach the issue with fairness

The main rules for Natural Justice are:

I. The rules of a fair hearing/ right to a fair trial ( the audi alteram partem rule)
II. secondly, a breach of the rule against bias ( the nemo judex in causa sua rule)

Both rules are often described as the principle of fair play.

The Right To A Fair Hearing

Will involve any of the following:
● The right to be informed in advance of the case to be met
● The right to a reasonable time in which to respond
● The right to be heard verbally or in writing
● The right to be legally represented
● The right to reasons for the decisions

The requirements are not fixed or constant as it is a flexible concept. The right to a fair
hearing was thought to only apply to judicial decisions, however the landmark case
Bridge v Baldwin extended it to administrative decisions as well and not just judicial
decisions. The right to be heard had to depend on the consequences of the decision to the
individual rather than upon the nature of the power in question.

This was taken further in Durrayapah v Fernando it was held that a hearing was
dependent upon: (1) the nature of the property, office or status of the complaint (2) the
circumstances in which the authority is entitled to interfere and (c) whether the authority
can impose punishment or sanctions.

Fair hearing for a judicial review is not the same as a court hearing but simply an
opportunity to present your side of the case before a decision is made. The adjudicator is
only required to exercise a basic duty of fairness.
In deciding what is fair many aspects must be taken into account such as those of the
State, principles of good administration, speed and efficiency in decision making and the
level of injustice suffered by the individual.

a. The right to be informed in advance of the case to be met

A person who has been affected by the decision of a public body will be entitled in
advance to know at least the substance of the case on which that decision will be based.
Lord Denning in Kanda v Government of Malaya noted, ‘ if a right to be heard is to be a
real right which is worth anything it must carry with it a right in the accused man to
know the case which is made against him.’

In Booker v Widdup, a bus conductors license was revoked without hearing, the Courts
held as he was condemned without a hearing, the cancellation of his license was illegal
and the conviction wrongful.

In Smith v COP, the appellant a taxi driver was convicted of possession of ‘ganja’.
Without giving notice the Assistant COP revoke her taxi driver’s license and did not give
grounds for doing so. The appellant argued under the Traffic s.43 (2) stated that the COP
‘may’ revoke a license and not shall revoke a license. Court of Appeal held that the
nature of the discretionary power was for the COP to act judicially and can only validly
revoke the license if he observed the rules of natural justice and particularly the right to
a fair hearing. The licensee was entitled to a hearing by an unbiased tribunal, with notice
of the charges and a full opportunity to answer them and the evidence on which they were
based. The COP had acknowledged none of these rules and his order was invalid.

Booker v Widdup The Courts have insisted that adequate notice of a charge should be
provided to a party. They must be given sufficient time in which to digest the information
and formulate a response. However there is some debate on what amounts to fair or
adequate notice.

Instant notice of a charge is inadequate. In R v Thames Magistrates, ex parte Polemis, a

cargo ship docked at the Thames and shortly afterwards an oil slick appeared. A
summons to answer a charge was served and the ship master was required to appear in
the local magistrate’s court the same afternoon. His subsequent conviction was quashed
for unfairness.

In Re Manpower Citizens Association it was held 3 days notice to a trade union of

cancellation of its certificate was inadequate.

Important to note notice on one matter cannot amount to notice on another matter.

b. The Right to be legally represented

 This right will be recognised only where the individual has a right to be hear orally and
all the surrounding circumstances indicate that the hearing cannot be conducted fairly
unless legal representation is allowed.

The criteria to be taken into account were outlined in R v Secretary of State for the Home
Department, ex parte Tarrant:

a) the seriousness of the charge and the potential penalty

b) where any points of law were likely to arise
c) the capacity of the prisoner to present their own case
d) the complexity of the procedure
e) the need for reasonable speed in decision making
f) the need for fairness between prisoners and between prisoners and prison
officers.

c. The right to be heard

This right is not an absolute right. The right to be heard may be curtailed where there are
national security considerations. Lord Fraser in R v Secretary of Home Affairs ex p
Hosenball explained the decision on the whether the requirements of nation security
outweigh the duty of fairness in any particular case is for government and not for the
Courts.

The right does not only apply to the right to be heard orally before the decision maker but
also that the individual must be given a reasonable opportunity of conveying their views
to the decision marker whether this be orally or by written representations.

d. The right to reasons for the decisions

A duty to give reasons may be imposed by Statute. Where this is the case the reasons
given should be proper, intelligible and adequate.

Sedley J used two cases of Cunningham and Doody to establish two principal categories
of cases in which fairness required the giving of reasons
a) where there was an obvious consequence of the nature of the process and its effect
on the person concerned where the subject matter was an ‘interest so highly
regarded by the aw that fairness requires that reasons be given as of right’
b) where there was something peculiar about the decision which operated a trigger
factor for the giving of reasons

The Rule against Bias

That no one should be a judge in his own case and that justice should not only be done
but should also seem to be done.

The right to a fair hearing must be before an unbiased decision maker. Every person has
a bias in one form or the other, hence bias a narrower meaning. Thus A person who is
empowered to make decisions which may have a detrimental effect for the rights, interests
or legitimate expectation of others, should not act if they have any actual, financial or
apparent interest in the subject matter at hand.

Pecuniary Bias-
● Financial Interest - it is clearly established that a personal financial
interest in a case, however small constitutes bias which would disqualify a
person as a decision maker. The rule is very strict and applies whether the
financial interest is large or miniscule. Even if the pecuniary benefit does
not come to the adjudicator directly it will still amount to a bias. The
Jamaican case of Re A Solicitor illustrates this. A solicitor sat as a
member of a disciplinary committee and a partner in his law firm
represented the committee, the fee received was for the firm. The Court
held that the relationship breached the rule against bias.

Non-Pecuniary Bias
● Actual Bias- if the decision maker has a preconceived personal bias in the
outcome of the decision or consciously favors or disfavors one of the
parties who may be affected by it, this may well amount to bad faith in
addition to representing a blatant contravention of natural justice. Lord
Goff noted in R v Gough if actual bias is proved that is an end of the case,
the person concerned must be disqualified.

● Personal Bias /Apparent Bias/ Appearance of Bias – Justice should not

only be done but must also be seen to be done. Should there be a test for
this? One school argues that the test should be a test of “ real likelihood
of bias” and another a “reasonable suspicion of bias”. Debatable
whether there is any real difference between these two tests.
In R v Gough, Lord Goff noted that the test to be used is whether there is
“real danger of bias”. This test was finalised in Porter v Magill which
noted it must considered. ‘whether the fair minded and informed observer
having considered the facts, would consider that there was a real
possibility that the tribunal was biased. The real danger test is applied in
the Caribbean.
● Instant Bias – where a person tries to operate in the dual capacity of
prosecutor and a judge in one and the same case. R v Panton and Sons

Exception to the Rule of Bias

There are times when the rule against bias must give way on grounds of necessity. For
example where there are no other decision makers available to adjudicate on matter.
Presumption that Parliament would have implied this.

Legitimate Expectation
Allied to the ground of procedural impropriety is the notion of "legitimate expectation".
This is sometimes considered as a discrete ground for judicial review and arises where a
party has been given an expectation that a body will act in a certain way, either because
of express statements from the authority, or from prior conduct.

Thus the relationship between public administration and the individual. Thus
expectations raised as a result of administrative conduct may have legal consequences.
Balance between expectations and a change in policy objectives.

(1) If the public authority has distinctly promised to consult those affected or
potentially affected, then ordinarily it must consult (the paradigm case of
procedural expectation).

(2) If the public authority has distinctly promised to preserve existing policy for a specific
person or group who would be substantially affected by the change, then ordinarily it
must keep its promise (substantive expectation).

(3) If, without any promise, the public authority has established a policy distinctly and
substantially affecting a specific person or group who in the circumstances was in reason
entitled to rely on its continuance and did so, then ordinarily it must consult before
effecting any change

http://www.academia.edu/2413478/The_Doctrine_of_Ultra_Vires_and_Judicial_Review_
of_Administrative_Action