What is judicial review?
Judicial review is the process by which the High
Court under Part 54 of the Civil Procedure Rules, Rule 54.1 review the
lawfulness of an enactment or the exercise of a ‘public function’.
Persons against whom judicial review may lie: Judicial review claims challenge
the way in which ‘public functions’ are exercised. There is no single test for
determining whether a body will be amenable to judicial review. The source of the
body's power is a significant factor. If the source of the body's power is statute or
subordinate legislation it will usually be amenable to judicial review. Decisions of
bodies whose authority is derived solely from contract or from the consent of the
parties will usually not be amenable to judicial review. If the duty is a public duty or
the function a public function, then the body in question will be subject to public
law.
Locus standi/ who can sue: In order to obtain permission to seek judicial review,
applicants must show that they have ‘sufficient interest in the matter’ (s.31 of the
Senior Courts Act 1981), otherwise known as ‘standing’. 'Sufficient interest' is not
defined, but it is in practice a broad, flexible concept. What is a 'sufficient interest'
is a mixed question of fact and law. There is no statutory definition of ‘sufficient
interest’, but judges have generally taken a fairly open approach to allowing
pressure groups and other organisations without a direct financial link to the dispute
to participate.
R v IRC exparte National Federation of Self Employed and Small Business
was a case of associational standing. “Associational standing” most commonly
involves an unincorporated group or a corporation claiming on behalf of (the
interests of) identifiable individuals who are its members or whom it claims to
represent. The main justifications for associational standing are to facilitate access
to justice by making it easier for groups to invoke the judicial process, and to
promote the efficient conduct of litigation in one set of proceedings.
Problem arises in case of public interest standing. “Public interest standing”
involves an individual, corporation or group purporting to represent “the public
interest” rather than the interests of any identified or identifiable individuals. Such
standing can be justified on the basis that courts have a legitimate role in
protecting certain fundamental rights of the public, just as they have a legitimate
role in protecting fundamental rights of the individual against undue encroachment
by government. In R v Secretary of State for Foreign Affairs, ex p World
Development Movement Ltd (1995), the applicant was able to bring a judicial
review action in relation to the Foreign Secretary’s decision to use development aid
to fund a controversial Malaysian dam. As a pressure group seeking to improve the
quality of British aid to developing countries, it was held to have sufficient standing.
But not all persons should be given public interest standing.
The Law Commission in its report Law Com. No. 226. proposes a “two track system
of standing” under which, first, an application for judicial review could be made if
the court was satisfied that “the applicant has been or would be adversely affected”
by the challenged decision; and secondly, an application could be made if the court
considered that “it is in the public interest for an applicant to make the application”.
Such a reform confuses representational standing with public interest standing.
Rules governing access to the judicial process should not be a matter for
wide judicial discretion in individual cases but should be dealt with by reasonably
precise, even if somewhat flexible, rules.
Grounds of Judicial review: In Council of Civil Service Unions V Minister for
the Civil Service (1985) Lord Diplock was confined to three grounds of judicial
review namely, illegality, irrationality and procedural impropriety.
Illegality: By ‘illegality’ Lord Diplock mean that the decision maker must
understand correctly the law that regulates his decision-making power and must
give effect to it. One key aspect where illegality has been considered by the courts
is the exercise of discretionary powers by a decision maker. A statute will commonly
give a minister or local authority, for example, broad instructions but leave it to
them to decide the detailed implementation. Such discretionary decisions will
sometimes be deeply unpopular, but it is important to note that a judicial review
challenge is not an appeal on the merits of the decision itself.
If the law empowers a particular authority, for example a local authority, to make
certain decisions, the local authority cannot sub-delegate this power to another
authority, such as an executive officer or a committee unless the statute authorises
it. Otherwise by allowing another person to take a decision for them, they are giving
their power away hence fail to be properly accountable. The principle of non-
delegation is well-illustrated by Barnard v National Dock Labour Board. In this
case the power to suspend dockers delegated to port manager instead of exercised
by local board was held to be unlawful. Courts have, however implied, a power to
delegate where government officials and ministers have been concerned – this
exception is referred to as the Carltona principle. In the Carltona case the court
concluded that the power in question could be exercised by a departmental official
for and on behalf of the Minister. The court’s reasoning indicated that there are two
grounds which justify a Minister being able to authorise an officer to exercise a
power vested in the Minister: the Minister is ultimately responsible to Parliament
for the decision of an authorised officer; and in modern government, Ministers
have so many functions and powers that administrative necessity dictates that they
act through duly authorised officers.
Ministers and other decision makers should not allow detailed policies to limit
(‘fetter’) the exercise of their discretion. They should remain willing to consider new
arguments: British Oxygen Co Ltd v Minister of Technology (1971). Where the
statute appears to grant a very wide discretion, ministers must, nonetheless, act in
accordance with the general purposes of the Act: Padfield v Ministry of
Agriculture, Fisheries and Food (1968). Improper purposes are not permitted.
One of the most notorious examples of improper purposes for the exercise of
discretion was in Porter Magill v Weeks (2001), where housing stock was sold by
the council under statutory powers with the intention of giving the ruling
Conservative Party a political advantage
Illegality as a ground of judicial review is often unhelpful in limiting exercise of
discretionary powers by public authorities. As such
Procedural fairness: Genevra Richardson in ‘Existing approaches to process in
administrative law: the legal regulation of process’ in Administrative law and
government action (1994) has identified two justifications for fairness. First there
is a pragmatic reason for fairness – it will lead to the correct decision being taken
and prevent miscarriage of justice. On the other hand process values emphasises
the wider benefits that fair procedures in achieving dignity and autonomy of
individuals.
Procedural fairness, or the duty to act fairly, are the terms now generally used to
describe the range of procedural standards which are applied to the administrative
decision-making process. They encompass both specific statutory requirements as
to consultation, notice or hearings, and the requirements of natural justice derived
from common law. A duty to act in accordance with natural justice will arise when a
decision directly affects any proprietary or personal right or interest.
There are two basic rules of natural justice. First that no man is to be a judge in his
own cause (nemo judex in causa sua). Second, that no man is to be condemned
unheard (audi alteram partem). In Porter v Magill the House of Lords finally
decided the proper test for finding perceived or apparent bias. The test is now
whether the fair-minded observer, having considered the facts, would consider that
there was a reasonable possibility that the tribunal was biased. Since the HRA has
come into force, Art 6 is relevant in this arena. The test has had to be modified to
take the convention duty into account. Under the case law of the European Court of
Human Rights impartiality has both a subjective and an objective dimension (De
Cubber v Belgium, 1984). It is submitted that the Porter v Magill test is not the
perfect test for apparent bias but indeed it is the best test.
The audi alteram partem rule requires that those who are likely to be directly
affected by the outcome should be given prior notification of the action proposed to
be taken, of the time and place of any hearing that is to be conducted, and of the
charge or case they will be called upon to meet.
The concept of legitimate expectation also developed to ensure fair procedure. In R
v North and East Devon Health Authority, ex p Coughlan (2001) a clear
statement that a woman would be able to stay in a particular nursing home ‘for life’
was held by the Court of Appeal to create a legitimate expectation, preventing the
health authority from closing it. The court stated that the requirements of fairness
had to be balanced against any overriding interest in favour of a change of policy.
The courts will accept legitimate expectations as an alternative ground for judicial
review if: a. the representation does not conflict with statute In R v Department of
Education and Employment, ex p Begbie (1999), a promise of an assisted
place at an independent school was not held to be a legitimate expectation when
the scheme was abolished by statute. b. the representation is clear and unequivocal
c. the representation is directed towards particular individuals and groups.
Although there is no general duty on public bodies to give reasons for their actions
or decisions a decision-maker exercising discretionary power in the area of public
law may not exercise the discretion arbitrarily. As such Lord Steyn in Cullen v Chief
Constable of the Royal Ulster Constabulary [2003] observed that a duty to give
reasons "imposed a discipline ... which may contribute to [decisions] being taken
with care". Lord Phillips MR said "Justice will not be done if it is not apparent to the
parties why one has won and the other has lost" (English v Emery Reimbold & Strick
Ltd [2002] The right to reasons for decisions also serves a practical purpose.
Reasons enable parties to a decision to scrutinise its internal logic and to consider if
the decision is capable of appeal or judicial review. The giving of reasons also
upholds confidence in the judicial or decision-making process. Without reasons,
people with an entitlement to be heard may be suspicious of the impartiality of
fairness of a judicial process.Law relating to procedural fairness seeks to ensure
that discretion is exercised in accordance with past practices and with no bias.
Irrationality and proportionality: A decision of a tribunal or other body
exercising a statutory discretion will be quashed for 'irrationality', or as is often said,
for 'Wednesbury unreasonableness': Associated Provincial Picture Houses Ltd
v Wednesbury Corpn .It is well established as a distinct ground of review that a
decision which is so perverse that no reasonable body, properly directing itself as to
the law to be applied, could have reached such a decision, will be quashed.
Ordinarily the circumstances in which the courts will intervene to quash decisions
on this ground are very limited. The courts will not quash a decision merely because
they disagree with it or consider that it was founded on a grave error of judgment,
or because the material upon which the decision-maker could have formed the view
he did was limited.
Doctrine of Proportionality is sometimes replacing the doctrine of irrationality in
recent time. The emergence of the doctrine can be attributed to Human Rights ACT
1998.The HRA 1998 partially incorporated rights contained in ECHR into domestic
law. According to S.2 of the Act domestic court must follow the legal reasoning
adopted in Strasborough which includes the principle of Proportionality. In R v
Secretary of State for Home Dept ex parte Daly [2001] Lord Steyn stated
that-
a) Doctrine of Proportionality requires reviewing court to assess the balance
which the Decision maker has struck not merely whether it is a rational or
reasonable discussion.
b) Doctrine of Proportionality may go further than the traditional grounds of
judicial review as it addresses the quality of decision made. Academicians
fund this ensure standards of legal fair and reasonable administration based
on practical morality(Jeffrey Jowell QC)
In R v Ministry of Defence Exparte smith (1996) the Ministry of Defense’s
policy against inclusion of homo-sexual men and women in armed forces were
questioned. The CA stated that policy was not irrational because parliament
supported the policy. But the policy which required automatic discharge on basis
of sexual orientation could not be justified as it was a disproportionate interference
with their right of private life. The test of proportionality has a controversial element
in that it requires court to assess the quality of the decision made and to determine
if the appropriate balance between means and objective has been achieved.
The doctrine of proportionality increases the review powers of Courts. So in A and
other v Secretary of state for Home Department [2004] the HL held that
detention of foreign national suspected of terrorism under S.23 of anti-terrorism
crime and security was a disproportionate response to threat of terrorism. The
traditional Wednnessbury approach is no longer appropriate to form a judgment
whether a convention right is breached.
Proportionality has not yet been adopted as a free-standing standard of review and,
therefore, irrationality remains the standard in public law claims that do not raise
EU or human rights issues. In R (Countryside Alliance and others) v Attorney
General & Another [2007] (the hunting-ban case), the House of Lords afforded
a wide "margin of discretionary judgment" to the legislature in this matter of social
policy and found that any interference with the claimants' proprietary rights under
Article 1 of the first Protocol to the ECHR was justifiable. The difference in approach
between the traditional ground of judicial review and proportionality may
sometimes give rise to different results. But equally Lord Steyn stressed that the
arrival of doctrine of proportionality did not involve a shift to a merit review.
