Judicial review in English Law

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Judicial review is a procedure in English administrative law by which the courts supervise the exercise of public power on the application of an individual. A person who feels that an exercise of such power by a government authority, such as a minister, the local council or a statutory tribunal, is unlawful, perhaps because it has violated his or her rights, may apply to the Administrative Court (a division of the High Court) for judicial review of the decision and have it set aside (quashed) and possibly obtain damages. A court may also make mandatory orders or injunctions to compel the authority to do its duty or to stop it from acting illegally.

Unlike the United States and some other jurisdictions, English law does not know judicial review of primary legislation (laws passed by Parliament), save in a few cases where primary legislation is contrary to EU law and the European Convention of Human Rights. A person wronged by an Act of Parliament therefore cannot apply for judicial review unless this is the case.

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[edit] Constitutional position

The English constitutional theory as expounded by A.V. Dicey does not recognise a separate system of administrative courts that would review the decisions of public bodies (as in France, Germany and many other European countries). Instead, it is considered that the government should be subject to the jurisdiction of ordinary Common Law courts.

At the same time, the doctrine of Parliamentary sovereignty does not allow for the judicial review of primary legislation (Acts of Parliament). This limits judicial review in English law to the decisions of public bodies and secondary (delegated) legislation, against which ordinary common law remedies as well as special "prerogative orders" are available in certain circumstances.

The constitutional theory of judicial review has long been dominated by the doctrine of ultra vires, under which a decision of a public authority can only be set aside if it exceeds the powers granted to it by Parliament. The role of the courts was seen as enforcing the "will of Parliament" in accordance with the doctrine of Parliamentary sovereignty. However, the doctrine has been widely interpreted to include errors of law[1] and of fact and the courts have also declared the decisions taken under the Royal Prerogative to be amenable to judicial review.[2] Therefore it seems that today the constitutional position of judicial review is dictated by the need to prevent the abuse of power by the executive as well as to protect individual rights.

[edit] Procedural requirements

Under the Civil Procedure Rules a claim (application) for judicial review will only be admissible if permission (leave) for judicial review is obtained from the High Court, which has supervisory jurisdiction over public authorities and tribunals. Permission may be refused if one of the following conditions is not satisfied:

  1. The application must be made promptly and in any event within three months from the date when the grievance arose.[3] Note that legislation can impose shorter time limits while a court may hold that an application made in less than three months may still be not prompt enough.
  2. The applicant must have sufficient interest in a matter to which the application relates.[4] This requirement is known as the requirement of locus standi, or standing.
  3. The application must be concerned with a public law matter, i.e. the action must be based on some rule of public law, not purely tort or contract.

However, the Court will not necessarily refuse permission if one of the above conditions is in doubt. It may, in its discretion, to examine all the circumstances of the case and see if the substantive grounds for judicial review are serious enough.[5] Delay or lack of sufficient interest can also lead to the court refusing to grant a remedy after it had considered the case on the merits.[6]

[edit] Amenability to judicial review

The decision complained of must have been taken by a public body, i.e. a body established by statute or otherwise exercising a public function. In R v Panel for Takeovers and Mergers Ex p Datafin [1987] 1 QB 815, the Court of Appeal held that a privately established panel was amenable to judicial review because it in fact operated as an integral part of a governmental framework for regulating Mergers and Takeover, while those affected had no choice but to submit to its jurisdiction.

[edit] Ouster clauses

Sometimes the legislator may want to exclude the powers of the court to review administrative decision, making them 'final', 'binding' and not apellable. However, the courts have consistently held that none but the clearest words can exclude judicial review.[7] When the Government wanted to introduce a new Asylum and Immigration Act containing such clear words, members of the judiciary protested to the extent of saying that they will not accept even such an exclusion.[8] The Government withdrew the proposal.

The courts however do uphold time limits on applications for judicial review.[9]

[edit] Exclusivity Rule

The House of Lords held in O'Reilly v Mackman[1983] 2 AC 237 that where public law rights were at stake, the claimants could only proceed by way of judicial review. They could not originate their action under the general civil law procedure, because that would be avoiding the procedural safeguards afforded to public authorities by the judicial review procedure, such as the requirement of sufficient interest, timely submission and permission for judicial review. However, a defendant may still raise public law issues as a defence in civil proceedings. So for example, a tenant of the public authority could allege illegality of its decision to raise the rents when the authority sued him for failing to pay under the tenancy contracts. He was not required to commence a separate judicial review process (Wandsworth London Borough Council v Winder (1985)). If an issue is a mix of private law rights, such as the right to get paid under a contract, and public law issues of the competence of the public authority to take the impugned decision, the courts are also inclined to allow the claimant to proceed using ordinary civil procedure, at least where it can be demonstrated that the public interest of protecting authorities against frivolous or late claims has not been breached (Roy v Kensington and Chelsea and Westminster Family Practitioner Committee (1992), Trustees of the Dennis Rye Pension Fund v Sheffield City Council (1997)).

[edit] Grounds for review

In Council of Civil Service Unions v Minister for the Civil Service[1985] AC 374, Lord Diplock summarised the grounds for reversing an administrative decision by way of judicial rewiew as follows:

  • Illegality
  • Irrationality
  • Procedural impropriety

The first two grounds are known as substantive grounds of judicial review because they relate to the substance of the disputed decision. Procedural impropriety is a procedural ground because it aims at the decision-making procedure rather than the content of the decision itself. The three grounds are mere indications: the same set of facts may give rise to two or all three grounds for judicial review.

[edit] Illegality

In Lord Diplock's words, this ground means that the decision maker "must understand correctly the law that regulates his decision-making power and must give effect to it."

A decision may be illegal for many different reasons. There are no hard and fast rules for their classification, but the most common examples of cases where the courts hold administrative decisions to be unlawful are the following:

[edit] The decision is taken by the wrong person (unlawful sub-delegation)

If the law empowers a particular authority, e.g. a minister, to take certain decisions, the Minister cannot subdelegate this power to another authority, e.g. an executive officer or a committee. This differs from a routine job not involving much discretion being done by civil servants in the Minister's name, which is not considered delegation.[10]

[edit] Error of law or error of fact

The court will quash a decision where the authority has misunderstood a legal term or incorrectly evaluated a fact that is essential for deciding whether or not it has certain powers. So, in R v Secretary of State Ex Parte Khawaja [1984] AC 74, the House of Lords held that the question whether the applicants were "illegal immigrants" was a question of fact that had to be positively proved by the Home Secretary before he could use the power to expel them. The power depended on them being "illegal immigrants" and any error in relation to that fact took the Home Secretary outside his jurisdiction to expel them. However, where a term to be evaluated by the authority so broad and vague that reasonable people may reasonably disagree about its meaning, it is generally for the authority to evaluate its meaning. For example, in R v Hillingdon Borough Council ex Parte Pulhofer [1986] AC 484, the local authority had to provide homeless persons with accommodation. The applicants were a married couple, who lived with her two children in one room and applied to the local authority for aid. The local authority refused aid because it considered that the Pulhofers were not homeless and the House of Lords upheld this decision because whether the applicants had accommodation was a question of fact for the authority to determine.

[edit] The powers used for the purpose different from the one envisaged by the law under which they were granted

A good example of this is the case of R v Secretary of State for Foreign Affairs Ex p The World Development Movement. Section 1 of the Overseas Development and Co-operation Act 1980 empowered the Secretary of State for Foreign Affairs to assign funds for development aid. The Secretary assigned the funds for a project to construct a power station on the Pergau river in Malaysia (see Pergau Dam). The House of Lords held that this was not the purpose envisaged by the enabling statute and the Minister therefore exceeded his powers. A similar principle exists in many continental legal systems and is known by the French name of détournement du pouvoir.

[edit] Ignoring relevant considerations or taking irrelevant considerations into account

This ground is closely connected to illegality as a result of powers being used for the wrong purpose. For example Wheeler v Leicester City Council, where the City Council banned a rugby club from using its ground because three of the club's members went on a tour in South Africa at the time of apartheid. In R v Somerset County Council Ex parte Fewings the local authority decided to ban stag hunting on the grounds of it being immoral. In Padfield v Ministry of Agriculture, Fisheries and Food, the Minister refused to mount an inquiry into a certain matter because he was afraid of bad publicity. In R v ILEA Ex parte Westminster City Council [1948] 1 KB 223, the London Education Authority used its powers to inform the public for the purpose of convincing the public of its political point of view. In all these cases, the authorities have based their decisions on considerations, which were not relevant to their decision making power and have acted unreasonably (this may also be qualified as having used their powers for an improper purpose).

Note that the improper purpose or the irrelevant consideration must be such as to materially influence the decision. Where the improper purpose is not of such material influence, the authority may be held to be acting within its lawful discretion. So R v Broadcasting Complaints Commission Ex parte Owen (1985), where the Broadcasting authority refused to consider a complaint that a political party has been given too little broadcasting time mainly for good reasons, but also with some irrelevant considerations, which however were not of material influence on the decision.

[edit] Fettering discretion

An authority will be acting unreasonably were it refuses to hear applications or takes certain decisions without taking individual circumstances into account by reference to a certain policy. When an authority was given discretion, it cannot bind itself as to the way in which this discretion will be exercised either by internal policies or obligations to others. Even though an authority may establish internal guidelines, it should be prepared to make exceptions on the basis of every individual case.[11]

[edit] Irrationality

Under Lord Diplock's classification, a decision is irrational if it 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 could have arrived at it." This standard is also known as Wednesbury unreasonableness, after the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, where it was first imposed.

Unlike illegality and procedural impropriety, the courts under this head look at the merits of the decision, rather than at the procedure by which it was arrived at or the legal basis on which it was founded. The question to ask is whether the decision "makes sense". In many circumstances listed under "illegality", the decision may also be considered irrational.

[edit] Proportionality

Proportionality is a requirement that a decision is proportionate to the aim that it seeks to achieve. E.g. an order to forbid a protest march on the grounds of public safety should not be made if there is an alternative way of protecting public safety, e.g. by assigning an alternative route for the march. Proportionality exists as a ground for setting aside administrative decisions in most continental legal systems and is recognised in England in cases where issues of EC law and ECHR rights are involved. However, it is not as yet a separate ground of judicial review, although Lord Diplock has alluded to the possibility of it being recognised as such in the future. At present, lack of proportionality may be used as an argument for a decision being irrational.[12]

[edit] Procedural impropriety

A decision suffers from procedural impropriety if in the process of its making the procedures prescribed by statute have not been followed or if the 'rules of natural justice' have not been adhered to.

[edit] Statutory procedures

An Act of Parliament may subject the making of a certain decision to a procedure, such as the holding of a public hearing or inquiry,[13] or a consultation with an external adviser.[14] Some decisions may be subject to approval by a higher body. Courts distinguish between "mandatory" requirements and "directory" requirements. A breach of mandatory procedural requirements will lead to a decision being set aside for procedural impropriety.

[edit] Breach of natural justice

See also: Natural Justice

The rules of natural justice require that the decision maker approaches the decision making process with 'fairness'. What is fair in relation to a particular case may differ. As pointed out by Lord Steyn in Lloyd v McMahon [1987] AC 625 "the rules of natural justice are not engraved on tablets of stone." Below are some examples of what the rules of natural justice require:

[edit] The rule against bias

The first basic rule of natural justice is that nobody may be a judge in his own case. Any person that makes a judicial decision - and this includes e.g. a decision of a public authority on a request for a license - must not have any personal interest in the outcome of the decision. If such interest is present, the decision maker must be disqualified even if no actual bias can be shown, i.e. it is not demonstrated that the interest has influenced the decision.[15] The test as to whether the decision should be set aside is whether "a fair-minded and informed observer would conclude that there was a real possibility [of bias]".[16]

[edit] The right to a fair hearing

Whether or not a person was given a fair hearing of his case will depend on the circumstances and the type of the decision to be made. The minimum requirement is that the person gets the chance to present his case. If the applicant has certain legitimate expectations, for example to have his licence renewed, the rules of natural justice may also require that he is given an oral hearing and that his request may not be rejected without giving reasons. [17] Where the decision is judicial in nature, for example a dismissal of an official in punishment for improper conduct, the rules of natural justice require a hearing and the person question must know the case against him and be able to examine and object to the evidence.

[edit] Duty to give reasons

Unlike many other legal systems, English administrative law does not recognise a general duty to give reasons for a decision of a public authority.[18] A duty to give reasons may be imposed by statute. Where it is not, Common Law may imply such a duty and the courts do so particularly with regard to judicial and quasi-judicial decisions.[19]

[edit] Remedies

The remedies traditionally available in judicial review are the so called prerogative orders, formerly prerogative writs: certiorari, mandamus and prohibition. Certiorari quashes unlawful decisions; mandamus forces a public body to exercise its legal powers when it refuses to do so; prohibition orders the defendant to cease a course of action. In the language of the new Civil Procedure Rules, these orders are now known respectively as the quashing order, the mandatory order and the prohibiting order. A claimant for judicial review may also seek an injunction, a declaration and/or damages.[20]

Injunctions and prohibiting orders are similar, the former generally being used to forbid an action, and the latter a decision. A declaration 'declares' the law on a particular subject and when used to declare a decision void it is effectively equivalent to a quashing order. It is usually used to declare a statute or a regulation incompatible with a higher norm of law, such as EC law or the European Convention of Human Rights, via the mechanism of a 'declaration of incompatibility' [21]

The preroagative orders, declarations, injunctions and damages are discretionary remedies.[22]

[edit] References

  1. ^ Anisminic v Foreign Compensation Commission [1969] 2 AC 147
  2. ^ Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
  3. ^ Civil Procedure Rules, Part 54.5.
  4. ^ Section 31(3) Supreme court Act 1981
  5. ^ See e.g. R v Inland Revenue Commissioners ex p National Federation of Self-Employed and Small Businesses [1982] AC 617
  6. ^ See Section 31(6(b) Supreme court Act 1981 and R v Secretary of State for Foreign and Commonwealth Affairs Ex p World Development Movement Ltd [1995] 1 WLR 386
  7. ^ R v Medical Appeal Tribunal ex parte Gilmore [1957] 1 QB 574; Council of Civil Service Unions v Minister for the Civil Service[1985] AC 374
  8. ^ See Lord Woolf: The Guardian Profile
  9. ^ R v Secretary of State for the Environment ex parte Ostler [1976] 3 All ER 90
  10. ^ Allingham v The Minister of Agriculture and Fisheries (High Court, 1948); Carltona v Commissioner of Works (Court of Appeal, 1943); R v Secretary of State for the Home Office Ex p Oladehinde (House of Lords, 1990)
  11. ^ Lavender v Minister of Housing and Local Government [1970] 1 WLR 1231; British Oxygen v Minister of Technology [1971] AC 610
  12. ^ R(Daly) v Secretary of State for the Home Department [2001] 2 AC 532
  13. ^ Jackson Stansfields v Butterworth
  14. ^ R v Social Services Secretary ex parte Association of Metropolitan Authorities
  15. ^ R v Bow Street Magistrates Ex p Pinochet [1999] 2 WLR 272
  16. ^ Magill v Porter [2002] AC 347
  17. ^ McInnes v Onslow-Fane [1978] 1 WLR 1520
  18. ^ R v Secretary of State for the Home Department Ex p Doody [1993] 3 All ER 92
  19. ^ Doody (above), R v Civil Service Appeal Board Ex p Cunningham [1991]4 All ER 310
  20. ^ Civil Procedure Rules, Part 54.2, 54.3
  21. ^ Section 4 Human Rights Act 1998
  22. ^ Section 31(2) and (4) Supreme Court Act 1981

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