Chapter 13 Judicial review- Scope, Procedures and Remedies
What decisions can be judicially reviewed?
Three factors deem whether a decision is judicially reviewable: 1) whether the statute
contains an ouster clause prohibiting judicial review, 2) the type of power under which the
decision was taken and 3) whether the claimant’s case raises justiciable issues
Ouster Clauses
- Since parliament is sovereign – can prohibit judicial review of decisions taken under
certain powers.
- The Foreign Compensation act 1950 is a rare example of Parliament doing exactly
this: a company, Anisminic, sought compensation from the commission but was
turned down. When they later challenged that decision, the House of Lords had to
decide whether the Act preluded Judicial review. House of Lords put in a delicate
position as two fundamental principles were pulling either way. Parliamentary
sovereignty would say if Parliament don’t want to permit a review then they don’t
have to but the rule of law demands people should be able to have legal disputes
resolved in courts; demanded the opposite outcome.
- Even if courts could not enforce limits on the decision-makers power laid down in
the statute, there might be other, political ways of enforcing such limits.
- One option that Parliament sometimes takes is to, in effect, rule out the exercise of
the courts normal judicial review powers while giving them statutory powers of
judicial review. Such statutory powers normally have a smaller scope of what they
can do.
Type of power
- Statutory powers- the majority of governmental decisions are taken under statutory
powers. Generally, such decisions are judicially reviewable to the extent that they
raise justiciable issues
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Prerogative Powers- De Keyser case – was held that prerogative powers are placed in
abeyance, or suspended, when statutory powers cover the same ground.
Courts felt it would have been constitutionally improper or at least unseemly to
interfere with the Royal Prerogative – not generally the case the today: GCHQ case
all 5 law lords accepted that the exercise of the prerogative power was subject to
judicial review. R (Sandiford) v Secretary of State for Foreign and Commonwealth
Affairs- UK government’s refusal to make representations to the US government on
behalf of a British citizen held by the US at Guantanamo Bay in Cuba.
De Facto powers – decisions taken by government bodies and others, under neither
statutory not prerogative power. This category is several different types of decisions,
so called because they are powers that, as a matter of fact, the decision maker
possesses, even though there is nothing in law that specifically gives them such
powers. Datafin case – was concluded that the Takeover panel was subject to judicial
review as the government relied on the Panel to regulate Takeovers and mergers
and was closely linked to the executive. The purpose, and so the scope, of judicial
review is conceived of more narrowly: courts have settled on the view that judicial
review is for controlling the use of governmental power. The test for whether
decisions taken under de facto powers can be reviewed is therefore whether the
relevant decision maker is performing a public function that is governmental in
nature- a test that courts have tended in practice to apply by asking whether, if the
defendant were not already performing the function, the government would have
had to step in and perform itself.
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Experience shows that the courts find it especially difficult to work out whether
judicial review should lie in areas which contracts are involved. Distinguish between
two situations: those in which there is a contract between the claimant and the
defendant and where there is a contract between a government body and a service
provider – courts have generally ruled against the possibility of judicially reviewing
the service provider, this has been heavily criticised. Views on this are different in
Scotland
Procedure
Special procedure that those wishing to issue judicial review claims are generally
expected to use, laid out in pt. 54 of the Civil Procedure Rules, much in common with
major reforms to judicial review proceedings introduced in the period 1977-81.
Different procedure to ordinary civil proceedings as it contains several protections
for respondents (usually public authorities)
Limitations that apply to Judicial proceedings
- Litigants must secure the permission of the court to launch a judicial review
challenge, is therefore a two-step process: first the courts permission must be
sought, only if permission is granted can there be a substantive hearing of the issues.
Has been argued that this system is advantageous to public bodies as it allows
unmeritorious cases to be filtered out with relatively little fuss. The way courts
decide if permission is granted is
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Limitations that apply to Judicial review
Litigants must secure the permission of the courts to launch a judicial review
challenge. Favours public Bodies. Can easily throw out cases that are unmeritorious.
Claimants are generally required to take various steps before judicial review e.g.
mediation. Judicial Review viewed as a last resort
Must act quickly for Judicial Review, generally needs to be brought forward within 3
months of the decision that was made
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Procedural Exclusivity
Not especially attractive to prospective claimants
Difference between judicial review and ordinary proceedings:
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Judicial Review
Time limit – 3 months
Permission needed
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Cross Examination rarely available
Disclosure rarely available
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Ordinary Proceedings
Time limit – 6 years
No permission needed
More liberal approach to Cross examination
More liberal approach to Disclosure
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Restrictions with judicial review are safeguards in the eyes of public bodies e.g.
O’Reilly v Mackman established principal of Procedural Exclusivity; Judicial review
was the only way which claimants could raise public law issues in the courts.
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Courts have recognised several exceptions to the requirement that judicial review
proceedings must be used to litigate public law issues: courts may be prepared to
allow the use of ordinary proceedings in cases that turn on disputed points of fact.
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Principle of procedural exclusivity should not prevent people from attacking the
legality of government decisions and measures to defend themselves in criminal or
civil proceedings.
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If courts conclude that Judicial review should have been used but wasn’t, it is no
longer automatically assumed that there has been an abuse of process. Ask if it was
used would permission have even been granted? Only if these answers are yes can
the claim be allowed to continue as the claimant can show they have been put at an
unfair advantage.
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Standing
Set out in the Senior Courts Act 1981: Courts may not grant permission for judicial
review ‘unless it considers the claimant has a sufficient interest in the matter to
which the application relates.
Adopt a narrow approach to standing
Narrowest approach – only persons directly affected may seek judicial review
Most liberal approach- anyone at all can seek judicial review
Fleet Street Casuals case
Courts do now consider the prospect of associational standing which generally
involves a group or corporation claiming on behalf of the interests of identifiable
individuals who are its members or who it claims to represent.
Also, willing to recognise ‘public interest’ standing, Pergau Dam case illustrates this.
Courts can hear cases in which victims do not want to come forward or in which the
illegality is victimless
Remedies
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aren’t available of right, are discretionary.
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Important factor that distinguishes it from private law
Senior Courts Act 1981 – relief must be declined if ‘ it appears to the court to be
highly likely that the outcome for the applicant would not have been substantially
different if the conduct complained of had not occurred’ – argument against: if they
did do it it could be educational, but not doing it would waste resources.
3 main Remedies are available in Judicial Review are:
Quashing orders – most commonly sought, quashes unlawful admin decisions.
Impacts of this: decision forced to be quashed may be able to just be made again In a
different way. Unlawful decision is being treated as a lawful one just the way it was
carried out was unlawful; having a retrospective effect.
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Mandatory and Prohibiting Orders – issued to prevent unlawful action being taken
where it seems that such action is being planned, compel legal authorities to do
things they are required to do.
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Injunctions – equivalent to a prohibiting order, could be preferable to a prohibiting
order: can be obtained in ordinary as well as Judicial review whereas Prohibiting
orders can only be given in Judicial Review. Can be obtained in interim as well as
final form (possible to get a temporary one as well as a permanent one)
3 stage test whether an Injunction can be granted
- Has the claimant shown that there is, on the face of it, a serious issue to be tried?
- If so, would the claimant have an adequate remedy in damages if the act in question
were to be carried out later and found to be unlawful?
- How do the parties for granting and not granting temporary relief compare?
Declarations
- Authoritative statement by the court about the legal issue that has been brought to
its attention, are non- coercive remedies (can be disregarded without legal
consequences)
- More appropriate on decisions where they aren’t sure about the decision, not a crisp
legal dispute
- Advisory Declarations – answer any legal questions, however abstract. Should be
cautious of their use of these.
Judicial Review- plays an important role in ensuring good governance and ensuring the rule
of law