Judicial review, (2023)
For educational use only
Judicial review
Last date of review:
06 February 2023
Last update:
General updating.
Authored by
Maureen O'Brien
Thomson Reuters
Daniel Greenberg CB
Daniel Greenberg
An action for judicial review is a claim to review the lawfulness of: (a) an enactment; or (b) a decision, action or failure to
act in relation to the exercise of a public function. Judicial review is only available as against public bodies in relation to their
public functions.
The following lower-level articles deal with specific issues:
•
Judicial review: grounds for review
•
Judicial review: legitimate expectation
•
Judicial review: procedure
•
Judicial review: remedies
Overview of Topic
1.
An application for judicial review is not an appeal. The court's function is to review the decision-making process of a
public body to consider whether there has been: (1) illegality, i.e. whether the public body has misdirected itself in law;
(2) Irrationality, i.e. whether the public body's decision 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; or (3)
Procedural impropriety, i.e. a departure by the public body from any procedural rules governing its conduct or a failure
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to observe the basic rules of natural justice, which is probably better described as "fundamental unfairness". See R. v
Panel on Takeovers and Mergers Ex p. Datafin Plc [1987] Q.B. 815.
2.
"Judicial review is a supervisory jurisdiction at common law, with an important statutory overlay, and an important
procedural rule-book. The supervisory jurisdiction applies to secondary legislation, including the regulations which
imposed the PCW. The statutory overlay includes the HRA, which imposes duties on public authorities to act compatibly
with Convention rights, and duties on courts to determine whether they have done so. Among the Convention rights is
Article 9, which provides: 1. Everyone has the right to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief and freedom, either alone or in community with others and in public or private,
to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one's religion
or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society
in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights
and freedoms of others. Judicial review's essential purpose is to vindicate the rule of law and promote the public
interest, securing accountability of public authorities to objective legal standards (including under the HRA), while
at the same time recognising the primacy of each public authority's (contextually-applicable) 'latitude' to evaluate for
itself questions of judgment, appreciation and policy. Procedurally, the supervisory jurisdiction operates using a set of
important (contextually-applicable) principles, themselves designed to promote the interests of justice and the public
interest. Three of the procedural principles of judicial review are particularly relevant to what I have to decide in this
case. (1) Where a judicial review claim is or has become "academic", the judicial review Court may decline to determine
the legal merits of the claim; but may proceed to do so if there is a good reason in the public interest (see Dolan
§§39-42, 99). (2) The Court has the power to strike-out a judicial review claim (see R (Kumar) v Secretary of State for
Constitutional Affairs [2006] EWCA Civ 990 [2007] 1 WLR 536 at §65), and may do so "in exceptional cases" where to
do so is "appropriate" in the light of grounds which have "arisen after the date on which permission was granted" (see
R (Suleiman) v Secretary of State for the Home Department [2017] EWHC 3308 (Admin) at §3). (3) There is a need for
"procedural rigour" in judicial review, one manifestation of which is the general disinclination (though "there is no hard
and fast rule") to allow "rolling judicial review" where "fresh decisions, which have arisen after the original challenge"
are "sought to be challenged by way of amendment" of the pleaded judicial review grounds ("JRG") (see Dolan §§118,
29)." - Hussain, R (On the Application Of) v Secretary of State for Health And Social Care [2022] EWHC 82 (Admin).
3.
"In judicial review claims the court resolves questions of law. Judicial review is the means of ensuring that public
bodies act within the limits of their legal powers and in accordance with the legal principles governing the exercise
of their decision-making functions. In addition, Parliament requires that public bodies act consistently with the rights
and freedoms guaranteed by the ECHR: see section 6 of the Human Rights Act 1998). The court is not responsible for
making political, social or economic choices - for example to determine how best to respond to the challenges presented
by asylum seekers seeking to cross the Channel in small boats or by other means. Those decisions, and those choices,
are ones that Parliament has entrusted to ministers. The approach of ministers is a matter of legitimate public interest
and debate and, in this instance, has stirred public controversy about whether the relocation of asylum seekers to a
third country such as Rwanda is an appropriate response to the problems that the government has identified. But those
matters are not for the court. The role of the court is only to ensure that the law is properly understood and observed, and
that the rights guaranteed by Parliament are respected." - AAA v Secretary of State for the Home Department (Rwanda)
[2022] EWHC 3230 (Admin).
4.
There is now, post the Human Rights Act 1998, a requirement to consider "proportionality" in relation to the decision.
5.
The court's permission is required to bring a claim for judicial review.
6.
The Administrative Court is part of the King's Bench Division of the High Court and hears the majority of applications
for judicial review. It is not the function of the Administrative Court to regulate or police decision-makers; its function
is to review the lawfulness of a decision in relation to an exercise of a public function: R. (on the application of P)
v Essex CC [2004] EWHC 2027 (Admin). In R. (on the application of Yousuf) v Secretary of State for Foreign and
Commonwealth Affairs [2016] EWHC 663 (Admin) the court refused to stay a judicial review claim where a decision-
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maker had agreed to reconsider its decision with a fresh and open mind. The court held that judicial review did not
exist to regulate or micromanage public authority decision-making, but to consider the lawfulness or rationality of a
decision which had already been made. Where a claimant refused to withdraw a claim in such circumstances, the court
should either allow or dismiss it.
7.
Subject to two exceptions, the courts have no jurisdiction to review the lawfulness of Acts of Parliament. The exceptions
are:
a.
the court's jurisdiction to disapply the provisions of an Act of Parliament which conflict with any directly
effective provision of European Union law: R. v Secretary of State for Transport Ex p. Factortame Ltd (No.2)
[1991] 1 A.C. 603
b.
the court's jurisdiction, pursuant to the Human Rights Act 1998, to determine whether an Act of Parliament
contravenes certain rights enshrined in the European Convention on Human Rights. However, the court can
only declare the Act as incompatible, it cannot set it aside or disapply it.
8.
Secondary legislation (for example most Orders in Council and Statutory Instruments) are re-viewable by the court to
determine their lawfulness Whether Orders in Council issued under the royal prerogative (rather than under an Act of
Parliament) can be subject to judicial review was considered by the House of Lords in Council of Civil Service Unions
v Minister for the Civil Service [1985] A.C. 374. It was held by Lord Diplock that there was no reason why, simply
because a decision-making power was derived from a common law and not a statutory source, it should for that reason
only be immune from judicial review. Lor Roskill agreed but considered that the right to challenge was not unqualified.
It seems clear that prerogative powers such as, for example, those relating to the making of treaties, the defence of the
realm, the dissolution of Parliament etc. are not susceptible to judicial review.
9.
The tacit assumption underpinning the judicial review mechanism is that the Government will obey the courts when
the courts tell the Government what they should do or not do:
The Government's compliance with court orders, including declaratory orders, is one of the core principles of
our constitution, and is vital to the mutual trust which underpins the relationship between the Government and
the courts. The courts' willingness to forbear from making coercive orders against the Government, and to make
declaratory orders instead, reflects that trust. But trust depends on the Government's compliance with declaratory
orders in the absence of coercion. In other words, it is because ours is a society governed by the rule of law, where
the Government can be trusted to comply with court orders without having to be coerced, that declaratory orders
can provide an effective remedy. Although cases have occurred from time to time in which ministers have failed
to comply with court orders (such as M v Home Office and the recent case of R (Majera (formerly SM (Rwanda))
v Secretary of State for the Home Department [2021] UKSC 46; [2021] 3 WLR 1075), they are exceptional, and
can generally be attributed to mistakes and misunderstandings rather than deliberate disregard. However, where
a legally enforceable duty to act, or to refrain from acting, can be established, the court is capable of making
a coercive order, as M v Home Office and Davidson v Scottish Ministers [2005] UKHL 74; 2006 SC (HL) 41
demonstrate. Furthermore, a declaratory order itself has important legal consequences. First, the legal issue which
forms the subject matter of the declaration is determined and is res judicata as a result of the order being granted: St
George's Healthcare NHS Trust v S [1999] Fam 26, 59-60. In addition, a minister who acts in disregard of the law
as declared by the courts will normally be acting outside his authority as a minister, and may consequently expose
himself to a personal liability for wrongdoing: Dicey, Introduction to the Study of the Law of the Constitution,
10th ed (1959), pp 193-194." - Craig v HM Advocate [2022] UKSC 6.
10.
"Drawing together the authorities and texts we have referred to above, we summarise the principles as follows: (i)
Judicial review is a remedy of last resort and may not be the only available avenue of challenging a particular decision.
That is because statute may have provided an appellate machinery to deal with appeals against decisions of public
bodies. (ii) A court may, in its discretion, refuse to grant permission to apply for judicial review or refuse a remedy
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at the substantive hearing if an adequate alternative remedy exists, or if such a remedy existed but the claimant had
failed to use it. (iii) The general principle is that an individual should normally use alternative remedies where these
are available rather than judicial review. The courts take the view that save in the most exceptional circumstances, the
judicial review jurisdiction will not be exercised where other remedies were available and have not been used. (iv) The
rationale for the exhaustion of alternative remedies principle is that it is not for the courts to usurp the functions of the
appellate body which has the expertise and ability to determine disputes. (v) The courts will not insist that claimants
pursue an alternative remedy which is inadequate. The principle can be defined as one that requires the use of adequate
alternative remedies, or the fact that an alternative remedy is inadequate may be seen as an exceptional reason why
judicial review may be used. (vi) There may be other exceptional reasons why judicial review is the preferred course
as each case is fact sensitive and the court must consider in exercising its discretion to hear a judicial review where an
alternative remedy is available the overall circumstances including in some cases the urgency of the case, delay, cost,
or public interest concerns." - Alpha Resource Management Ltd, Re Application for Judicial Review [2022] NICA 27.
11.
"In judicial review proceedings, this court will not engage in a general inquiry about the facts of the case. In
judicial review proceedings, it is not the function of judges to enter into an inquiry about the relative advantages and
disadvantages of any aspect of education policy in the UK generally or in any particular county. The court's jurisdiction
is supervisory which means (in very broad terms) that it will interfere with a decision of a public authority only if there
is an error of law. A person who applies for judicial review must have standing to bring the claim. That means that the
person must have a sufficient interest in the matter to which the application relates. Parliament has determined that the
court shall not grant permission to apply for judicial review unless it considers that the applicant has such an interest:
see section 31(3) of the Senior Courts Act 1981. Not everyone who has a personal interest in an issue will necessarily
have standing (R (Good Law Project) v Prime Minister [2022] EWHC 298 (Admin), para 28). Even if the beliefs or
concerns of a person are strongly held, the court must consider whether they have a sufficient interest as a matter of
law." - AB, R (On the Application Of) v A County Council & Anor [2022] EWHC 2707 (Admin).
Judicial review versus civil suit
12.
In O'Reilly v Mackman [1983] 2 A.C. 237, Lord Diplock stated that it would:
as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person
seeking to establish that a decision of a public authority to infringe rights of which he was entitled to protection
under public law to proceed by way of an ordinary action and by this means to evade the provisions of [CPR Part
54] for the protection of such authorities.
13.
O'Reilly was decided well before the implementation of the CPR and the overriding objective and the court's increased
management powers. Post-CPR, the important differences between judicial review and civil suit are the differing
time limits for commencing action and the fact that the court's permission is require for judicial review. See Clark v
University of Lincolnshire and Humberside [2000] 1 W.L.R. 1988. The commencement of civil proceedings by way
of an ordinary action, rather than by application for judicial review, which deprives the defendant of protection that
they would otherwise enjoy, has been held to be inconsistent with the just conduct of the proceedings. See Jones v
Powys Local Health Board [2008] EWHC 2562 (Admin), where it was ordered that the proceedings be struck out on
that ground. See also Trim v North Dorset DC [2010] EWCA Civ 1446; [2011] 1 W.L.R. 1901, where proceedings that
had been commenced by a landowner seeking declarations in respect of a breach of condition notice were struck out
as an abuse of process. The service of a breach of condition notice was a purely public law act and the appropriate
means of challenge to its validity was by way of judicial review and not by private law proceedings. See also O'Dea
v Hillingdon LBC [2013] EWHC 4407 (QB).
14.
However, in Richards v Worcestershire CC [2016] EWHC 1954 (Ch); [2016] Med. L.R. 534 it was confirmed that there
were exceptions to the rule that challenges to public authorities' decisions should normally be by way of judicial review.
It was relevant whether the claimant had suffered an infringement of a private law right. The claimant in Richards was
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asserting a private law claim, albeit one that raised a question as to whether the defendants had failed to perform their
statutory duty to assess and determine his needs.
15.
In any event, the judicial review procedure must be used where the claimant is seeking:
a.
a mandatory order;
b.
a prohibiting order;
c.
a quashing order; or
d.
an injunction under Senior Courts Act 1981 (restraining a person from acting an any office in which he is
not entitled to act).
When will permission to commence proceedings for judicial review be granted?
16.
The applicant must show reasonable grounds to satisfy the court that:
a.
there has been an administrative act by a public body which is tainted by at least one of the following - illegality,
Irrationality, and/or Procedural impropriety;
b.
the applicant has sufficient interest in the matter to which the claim for judicial review relates; and
c.
the application has been made promptly and in any event within three months from the date when grounds
for the claim arose.
17.
If the application is out of time, the applicant must convince the court that the case is one in which a late application
should be allowed. See, for example, Hardy v Pembrokeshire CC (Permission to Appeal) [2006] EWCA Civ 240;
[2006] Env. L.R. 28 and R. (on the application of Shiner) v Revenue and Customs Commissioners [2010] EWCA Civ
558; [2010] B.T.C. 615.
18.
At the permission stage, the court's focus is to refuse cases where the applicant can be described as "a meddlesome
busy-body" interfering in matters which do not concern him: R. v Monopolies and Mergers Commission Ex p. Argyll
Group Plc [1986] 1 W.L.R. 763. The courts will not normally grant permission to apply for judicial review where there
is an adequate alternative remedy which the applicant could use or could have used. See R. (on the application of Cowl)
v Plymouth City Council [2001] EWCA Civ 1935; [2002] 1 W.L.R. 803. It is necessary, therefore, for the applicant to
show that he has exhausted all other available routes to gain the remedy sought, such as:
a.
internal complaints procedures and rights of appeal;
b.
alternative dispute resolution;
c.
appeals to Ombudsmen; and
d.
statutory appeals processes.
19.
The courts will normally expect all parties to have complied with the Pre-Action Protocol for Judicial Review except
where the matter is urgent, for example in the case of a refusal by a local housing authority to provide a homeless
person with interim accommodation.
20.
Where relevant, the applicant should consider gathering pre-action evidence and information by exercising statutory
rights of access to information under, for example:
a.
Data Protection Act 1998;
b.
Freedom of Information Act 2000;
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c.
Environmental Information Regulations 2004/3391.
21.
Section 31(2A) of the Senior Courts Act 1981 provides that the courts must refuse permission to apply for judicial
review if it appears to the court highly likely that the outcome for the claimant would not be substantially different even
if the conduct complained about had not occurred. The court has discretion to allow the claim to proceed if there is an
exceptional public interest in doing so: s.31(3E) of the Senior Courts Act 1981. See, for example, R. (on the application
of Hawke) v Secretary of State for Justice [2015] EWHC 4093 (Admin); [2016] A.C.D. 56.
22.
If the judge considers that the application for permission is "totally without merit" then he/she may refuse permission
and certify the claim as being totally without merit in the order. The term "totally without merit" has been defined
broadly and applies to a case that is bound to fail, not one that is necessarily abusive or vexatious. See, for example, R.
(on the application of W) v Secretary of State for the Home Department [2016] EWCA Civ 82; [2016] 1 W.L.R. 2793,
where the court gave guidance about the correct approach to considering whether to certify applications for permission
to seek judicial review as being totally without merit: No judge should certify an application as totally without merit
unless he is confident that it is truly bound to fail, but the criteria to be applied in answering that question were distinct
from those pertaining to applications for permission to seek judicial review.
23.
Where a case is certified as totally without merit there is no right to a renewed oral hearing and the claim is concluded
in the Administrative Court, albeit rights of appeal do apply.
24.
"108 The well established rule in respect of claims for judicial review is that "it is a cardinal principle that, save in the
most exceptional cases, the jurisdiction will not be exercised where other remedies were available and have not been
used": per Sir John Donaldson MR R v Epping and Harlow General Commissioners ex p Goldstraw [1983] 3 All ER 257
at p262. That was applied by the Court of Appeal even after the Administrative Court had made a decision on the merits
in R v Birmingham City Council ex p Ferrero Ltd [1993] 1 All ER 530 . That judicial review is a remedy of last resort
has been reiterated on numerous occasions notwithstanding the introduction of the CPR . There is nothing exceptional
in this case which would have made proceeding by means of an ordinary claim inadequate or inappropriate. Far from
this claim being "infused with public law elements", it is hard to identify anything in it which might realistically add
anything material to any allegation that could be made in proceedings under the Landlord and Tenant Act 1988 that
the imposition of the condition on its consent by NSHC was not reasonable." - R. (on the application of McIntyre) v
Gentoo Group Ltd [2010] EWHC 5 (Admin).
25.
"It is well recognised in law that a decision cannot be challenged by way of judicial review proceedings if other remedies
are available. The opportunity to make submissions before a decision is made cannot be such a remedy barring judicial
review of a decision. Judicial review proceedings and appeal proceedings challenge a decision. The opportunity to
make submissions before a decision is made is not a challenge to the decision itself. A decision can be challenged only
after it is made." - Tasmina Ahmed-Sheikh Against Scottish Solicitors' Discipline Tribunal [2019] ScotCS CSOH 104.
26.
"In my view, the principle is based on the fact that judicial review in the High Court is ordinarily a remedy of last resort,
to ensure that the rule of law is respected where no other procedure is suitable to achieve that objective. However, since
it is a matter of discretion for the court, where it is clear that a public authority is acting in defiance of the rule of law the
High Court will be prepared to exercise its jurisdiction then and there without waiting for some other remedial process
to take its course. Also, in considering what should be taken to qualify as a suitable alternative remedy, the court should
have regard to the provision which Parliament has made to cater for the usual sort of case in terms of the procedures
and remedies which have been established to deal with it. If Parliament has made it clear by its legislation that a
particular sort of procedure or remedy is in its view appropriate to deal with a standard case, the court should be slow
to conclude in its discretion that the public interest is so pressing that it ought to intervene to exercise its judicial review
function along with or instead of that statutory procedure. But of course it is possible that instances of unlawfulness
will arise which are not of that standard description, in which case the availability of such a statutory procedure will
be less significant as a factor. Treating judicial review in ordinary circumstances as a remedy of last resort fulfils a
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number of objectives. It ensures the courts give priority to statutory procedures as laid down by Parliament, respecting
Parliament's judgment about what procedures are appropriate for particular contexts. It avoids expensive duplication
of the effort which may be required if two sets of procedures are followed in relation to the same underlying subject
matter. It minimises the potential for judicial review to be used to disrupt the smooth operation of statutory procedures
which may be adequate to meet the justice of the case. It promotes proportionate allocation of judicial resources for
dispute resolution and saves the High Court from undue pressure of work so that it remains available to provide speedy
relief in other judicial review cases in fulfilment of its role as protector of the rule of law, where its intervention really
is required." - Glencore Energy UK Ltd, R (On the Application Of) v Revenue And Customs [2017] EWCA Civ 1716.
Grounds for obtaining judicial review
27.
Where a claim is purely academic it will generally not be appropriate to bring judicial review proceedings. Such a
scenario would be, for example, where the defendant decision-maker has agreed to reconsider the decision challenged.
But see R. (on the application of Yousuf) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWHC
663 (Admin) where the court refused to stay a judicial review claim where a decision-maker had agreed to reconsider
its decision with a fresh and open mind. The court held that where a claimant refused to withdraw a claim in such
circumstances, the court should either allow the claim or dismiss it.
28.
An application for judicial review is not an appeal. The court's function is to review the decision-making process of a
public body to consider whether there has been: (1) illegality, i.e. whether the public body has misdirected itself in law;
(2) Irrationality, i.e. whether the public body's decision 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; or (3)
Procedural impropriety, i.e. a departure by the public body from any procedural rules governing its conduct or a failure
to observe the basic rules of natural justice, which is probably better described as "fundamental unfairness". See R. v
Panel on Takeovers and Mergers Ex p. Datafin Plc [1987] Q.B. 815. Each of these grounds are discussed further below:
29.
"The High Court has a general supervisory jurisdiction over public authorities, including inferior courts, which it
exercises through the judicial review procedure, governed by CPR Part 54. CPR rule 54.1(2)(a) defines a claim for
judicial review as "a claim to review the lawfulness of (i) an enactment; or (ii) a decision, action or failure to act in
relation to the exercise of a public function". This effectively defines the function of the Administrative Court in judicial
review proceedings, which is "to adjudicate upon specific challenges to discrete decisions…": it is no part of its role to
"monitor, regulate or police the performance by [a public authority] of its statutory functions on a continuing basis" (R
(P) v Essex County Council [2004] EWHC 2027 (Admin) at [33] per Munby J (as he then was), cited with approval in
R (O) v Hammersmith and Fulham London Borough Council [2011) EWCA Civ 925; [2012] 1 WLR 1057 at [51] per
Black LJ (as she then was)). Therefore, a judicial review claim is required to identify the decision which is alleged to
be unlawful, the public body responsible for that decision, and the duty or obligation of that public body which is said
to have been breached. "Decision", for these purposes, of course includes all the matters to which reference is made in
CPR rule 54.1(2)(a), including an enactment, an action, and a failure to act. In making a decision, the relevant public
body must adopt the minimum standards of procedural fairness imposed by the common law, as now reinforced by the
procedural guarantees deriving from the European Convention on Human Rights ("ECHR"). In considering procedural
fairness, the function of the court is not merely to review the reasonableness of the decision-maker's judgment of what
fairness required: the court must determine for itself whether a fair procedure was followed (Gillies v Secretary of
State for Work and Pensions [2006] UKHL 2; [2006] 1 WLR 781 at [6] per Lord Hope of Craighead, as confirmed
in R (Osborn) v Parole Board [2013] UKSC 61; [2014] AC 1115 at [67] per Lord Reed JSC). Most cases of alleged
procedural unfairness by a public body are brought by an individual who considers and asserts that, had that body acted
fairly, a decision it had made affecting that individual would or might have been different. However, the courts have
recognised that a scheme may be inherently unfair if the system it promotes itself gives rise to an unacceptable risk of
procedural unfairness, such that the scheme (or, at least, the part that gives rise to that risk) is unlawful. Where such a
public law challenge is made, it is often referred to, by way of shorthand, as a "systemic challenge". ... In any event,
as I have explained, in promoting a systemic challenge by way of judicial review, it is incumbent upon a claimant to
consider and analyse the relevant scheme itself, and identify what, within the scheme, gives rise to the unacceptable
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risk of procedural unfairness which lies at the heart of any systemic challenge. Ms McGahey, very properly, sought
to do so." - Woolcock, R (On the Application Of) v The Secretary of State for Communities and Local Government &
Ors [2018] EWHC 17 (Admin).
Illegality
30.
In Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374, Lord Diplock stated that "the
decision-maker must understand correctly the law that regulates his decision making power and must give effect to it".
Where the decision-maker fails to do so by, for example, purporting to exercise a power which in law it does not have,
his or her decision can be challenged on the ground of illegality.
31.
In practice, claims of illegality usually contain elements of irrationality/procedural impropriety. See further: R. (on the
application of S) v Secretary of State for the Home Department [2007] EWCA Civ 546; [2007] Imm. A.R. 781 and R.
(on the application of Scotland) v Secretary of State for the Home Department [2009] EWHC 3005 (Admin).
Irrationality/proportionality
32.
In Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374, Lord Diplock stated that
"irrationality" could be succinctly referred to as "Wednesbury unreasonableness" as defined in Associated Provincial
Picture Houses Ltd v Wednesbury Corp [1948] 1 K.B. 223. It 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.
33.
The threshold for showing irrationality is high - it has to be shown that the power has been "exercised in a manner
which no reasonable [person] could consider justifiable" (per Lord Diplock L.J. in Luby v Newcastle under Lyme Corp
[1964] 2 Q.B. 64, approved by the House of Lords in Wandsworth LBC v Winder (No.1) [1985] A.C. 461.
34.
The Wednesbury unreasonableness test is moving closer to the proportionality test introduced by virtue of European
Convention law. The Court of Appeal has taken the view that retaining the Wednesbury test in domestic law is no longer
justified: see R. (on the application of Association of British Civilian Internees (Far East Region)) v Secretary of State
for Defence [2003] EWCA Civ 473; [2003] Q.B. 1397. However, it did not feel that it could "perform its burial rites"
as the continuing existence of the Wednesbury test had been acknowledged by the House of Lords on more than one
occasion. See: R. v Secretary of State for the Home Department Ex p. Brind [1991] 1 A.C. 696 and R. v Chief Constable
of Sussex Ex p. International Trader's Ferry Ltd [1999] 2 A.C. 418.
35.
Indeed, the Wednesbury test is still being actively considered in judicial review cases. In R. (on the application of
Hoyte) v Southwark LBC [2016] EWHC 1665 (Admin); [2016] H.L.R. 35 the judge noted:
It is not in dispute and I of course accept that the decision as to whether to process a fresh application on the basis
of new facts was one for the decision maker and this court can only interfere with that decision on conventional
judicial review grounds. In other words, it is not enough to conclude that the decision was not one that I would
have reached. Rather, I must consider whether the decision was not in accordance with the law; omitted to consider
some relevant factor or was perverse or unreasonable in the Wednesbury sense. In order to quash the decision,
I would have to conclude that no reasonable authority acting rationally and properly directed in law could have
concluded that the application was "exactly the same" as the previous one and so refused to process it.
36.
Support for the recognition of proportionality as part of English domestic law in cases which do not involve Community
Law or the European Convention on Human Rights is to be found in the speeches of Lord Cooke in R. (on the application
of Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 A.C. 532 and Lord Slynn in R. (on
the application of Holding & Barnes Plc) v Secretary of State for the Environment, Transport and the Regions [2001]
UKHL 23; [2003] 2 A.C. 295. These speeches imply a recognition that the Wednesbury test survives notwithstanding
their Lordships' clearly expressed view that it should be laid to rest.
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37.
Lord Steyn concluded in Daly that the criteria governing the principles of proportionality are more precise and more
sophisticated than the traditional grounds of review, for example the Wednesbury test. He cited the three-stage test set
out by the Privy Council in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing
[1999] 1 A.C. 69. In determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court
should ask itself whether:
a.
the legislative objective is sufficiently important to justify limiting a fundamental right;
b.
the measures designed to meet the legislative objective are rationally connected to it; and
c.
the means used to impair the right or freedom are no more than is necessary to accomplish the objective.
38.
See also R. (on the application of Evans) v Secretary of State for Communities and Local Government [2013] EWCA
Civ 114, in which the Court of Appeal considered the Wednesbury approach and proportionality in relation to a planning
application.
39.
For more detailed discussion see: Irrationality.
Procedural impropriety
40.
Failure to observe procedural rules stipulated within a statute or delegated legislation and/or failure to observe basic
rules of natural justice are examples of procedural impropriety. Put simply, there is a duty to act fairly when carrying
out public functions.
41.
Failure to perform a duty to consult or failure to satisfy a legitimate expectation of consultation are common grounds
for judicial review. However, the rules of procedural propriety must give way to considerations of national security
when these are in conflict: Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374.
42.
Where a party has a legitimate expectation that a public body will act in a certain manner prior to making a decision,
a failure so to act can amount to procedural impropriety. See, for example, R. (on the application of Patel) v General
Medical Council [2013] EWCA Civ 327; Times, June 21, 2013 where it was held that although it had been rational in
the circumstances to change the registration criteria for doctors trained overseas even without transitional provisions,
the claimant had a legitimate expectation that he could rely on individual and specific assurances that he would be
allowed to register on completion of his training.
43.
Legitimate expectation also comes into play when there is a promise or a practice to do more than that which is
required by statute. In R. (on the application of Majed) v Camden LBC [2009] EWCA Civ 1029; [2010] J.P.L. 621,
the claimant applied for judicial review of a planning permission granted by the defendant local planning authority to
the interested party for the erection of a first-floor side extension to his home. It was held that there had been a breach
of the claimant's legitimate expectation that he would be notified of the planning application. However, an otherwise
legitimate expectation cannot require a public authority to act contrary to statute: R. (on the application of Albert Court
Residents' Association) v Westminster City Council [2011] EWCA Civ 430; [2012] P.T.S.R. 604.
44.
See also R. (on the application of Luton BC) v Secretary of State for Education [2011] EWHC 217 (Admin); [2011]
Eq. L.R. 481 where it was held that the secretary of state's decision to stop certain school building projects which had
received on-line business case approval under the Building Schools for the Future programme was unlawful as he
had failed to consult the local authorities affected and he had failed to discharge his statutory duties under equality
legislation and R. (on the application of Shoesmith) v Ofsted [2011] EWCA Civ 642; [2011] P.T.S.R. 1459, where the
Court of Appeal held that a direction made by the secretary of state under the Education Act 1996 removing a Director
of Children's Services from office had been unlawful because of the lack of procedural fairness leading to the direction.
The Director's consequent summary dismissal by her local authority had also been unlawful. The fact that the secretary
of state wrongfully assumed that Ms Shoesmith had had the opportunity to put her case, including her case on personal
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responsibility, to the OFSTED team did not assist him. The question was whether the procedure, taken as a whole, was
objectively fair, not whether the secretary of state honestly believed that it was fairer than in fact it was (per Kay L.J.).
45.
For more detailed discussion see: Procedural impropriety.
Effect of the Human Rights Act 1998
46.
The Human Rights Act 1998 (the Act) requires the courts to decide all cases before them in a manner that is compatible
with the fundamental rights guaranteed by the European Convention on Human Rights 1950 (the Convention), unless
prevented from doing so by primary legislation. Even before the Act cam into force on 2 October 2000, the courts
were actively considering human rights issues. See R. (on the application of Mahmood) v Secretary of State for the
Home Department [2001] 1 W.L.R. 840 and the cases cited therein. The earlier cases cited in Mahmood all addressed
the question of the approach to the reviews of executive discretion in circumstances where human rights were at stake
but where the Minister was not required as a matter of domestic law to comply with the Convention. They supported
the application of three principles to that situation, as follows:
a.
even where human rights were at stake, the role of the court was supervisory. The could would only intervene
where the decision fell outside the range of responses open to a reasonable decision-maker;
b.
in conducting a review of a decision affecting human rights, the court would subject the decision to the most
anxious scrutiny; and
c.
where the decision interfered with human rights, the court would require substantial justification for the
interference in order to be satisfied that the response fell within the range of responses open to a reasonable
decision-maker. The more substantial the interference, the more that was required to justify it.
47.
In Mahmood, the Court of Appeal considered that the first two principles still applied to decisions made after the
coming into force of the Act. The third principle, however, had to be modified because the court can no longer uphold
an executive decision on the general ground that there was "substantial justification" for interference with human rights.
Interference with human rights can only be justified to the extent permitted by the Convention itself, which generally
only allows interference with rights in accordance with the law and insofar as such interference is necessary in a
democratic society in the interests of specified legitimate aims. When anxiously scrutinising an executive decision that
interferes with human rights, the court will ask, using an objective test, whether the decision-maker could reasonably
have concluded that the interference was necessary to achieve one or more of the legitimate aims recognised by the
Convention.
48.
Administrative decisions and orders made by Government ministers under various statutes are unlikely to constitute
"determinations" for the purposes of art.6(1) of the Convention, which provides that:
In the determination of his civil rights and obligations everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law.
49.
The judicial review procedure itself provides an opportunity to challenge the legality etc. of administrative decisions
and is compliant with the Convention. See: R. (on the application of Holding & Barnes Plc) v Secretary of State for
the Environment, Transport and the Regions [2001] UKHL 23; [2003] 2 A.C. 295.
Who can bring a claim for judicial review?
50.
The claimant must have a sufficient interest in the matter to which the claim for judicial review relates: Senior Courts Act
1981, s.31(3). The term "sufficient interest" is not defined although, sometimes, the act being reviewed may expressly or
impliedly give the applicant an interest in any decision made under it. Generally, if the administrative action complained
of directly impacts the claimant's personal or public rights or adversely affects him or her financially, a sufficient
interest will arise.
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51.
The courts tend to be pragmatic when considering a claimant's standing to seek judicial review. Indeed, the House of
Lords held in R. v Inland Revenue Commissioners Ex p. National Federation of Self Employed and Small Businesses
Ltd [1982] A.C. 617 that questions as to sufficient interest should not, except in very obvious cases, be dealt with
at the preliminary permission stage. However, see R. v Dean and Chapter of St Paul's Cathedral Ex p. Williamson
[1998] C.O.D. 130 where a priest objecting to the ordination of women was refused permission as he was held to be a
"busybody" with insufficient interest in the decision of the Church in Wales to ordain women into its priesthood.
52.
If the claimant's interest is not direct or personal but a serious issue of public importance has arisen by virtue of an
administrative decision, the court is likely to recognise a challenge to it by a public-spirited citizen: R. v Secretary
of State for Foreign and Commonwealth Affairs Ex p. Lord Rees-Mogg [1994] Q.B. 552. The courts have permitted
public interest organisations and pressure groups such as Help the Aged, World Development Movement Ltd and
Greenpeace to bring proceedings. See also Walton v Scottish Ministers [2012] UKSC 44; [2013] P.T.S.R. 51, where the
Supreme Court clarified the law relating to an individual's standing to challenge administrative decisions concerning
the environment.
53.
A claimant does not have to be active in a public campaign to have an interest in its outcome provided he or she would
be adversely affected by the administrative decision the subject of the campaign. See R. (on the application of Edwards)
v Environment Agency (No.1) [2004] EWHC 736 (Admin); [2004] 3 All E.R. 21, where it was held that a homeless
person who was a long term inhabitant of the town had sufficient standing to bring a claim for judicial review of the
grant of a permit from the Environment Agency to a cement company allowing it to continue operations at the cement
plant and authorising the use of tyre chips as a partial substitute to existing fuels, despite the fact that it was fairly
obvious that Mr Edwards was chosen to be the claimant to enable the action to be paid for by public funding.
54.
Public bodies can be claimants in judicial review proceedings. The Attorney General has a common law power to bring
proceedings. Local authorities may bring proceedings by virtue of s.222 of the Local Government Act 1972.
55.
"Since the early 1980s, the courts of England and Wales have generally adopted a liberal approach to the question
of standing. Two important propositions can be derived from the Divisional Court's judgment in World Development
Movement at 395G-H and the case law cited there. The first is that, particularly once permission has been granted, "the
merits of the challenge are an important, if not dominant, factor when considering standing". The second is that a nongovernmental organisation with genuine expertise and experience in the area of decision-making under challenge may
have standing depending on a holistic assessment of other factors: "the importance of vindicating the rule of law…; the
importance of the issue raised…; the likely absence of any other responsible challenger…; the nature of the breach of
duty against which relief is sought…; and the prominent role of the applicants [in the relevant subject area]". See also
Auburn, Moffett and Sharland, Judicial Review: Principles and Procedure (2013), §24.26; R (Jones) v Commissioner
of Police for the Metropolis [2020] 1 WLR 519 (Div. Ct), [38], and R (McCourt) v Parole Board [2020] EWHC 2320
(Admin) (Div. Ct), [31]-[32]. However, the application of these general principles is acutely sensitive to context. This
is because the question whether it is necessary to confer standing to vindicate the rule of law depends, among other
things, on the availability in principle and in practice of alternative challengers and alternative remedies. The case
law on which the parties have focussed in this case applies the general principles relevant to standing to the particular
context of challenges to individual procurement decisions alleging breaches of the relevant procurement regime. With
that context in mind, the proper starting point is the judgment of the Court of Appeal in Chandler. The reasoning
in that case was strictly obiter, but is nonetheless entitled to considerable weight, carrying as it does the imprimatur
of such a distinguished constitution. (Although the regime under the PCR 2015 differs in certain respects from that
under the PCR 2006, the aims of the regimes are similar and the differences are not material.) I draw the following
propositions from the reasoning of the Court of Appeal in Chandler: (a) In the context of an individual procurement
decision, a failure to comply with the 2006 Regulations is an unlawful act and thus "a paradigm situation in which a
public body should be subject to review by the court", even where there is no economic operator who wishes to bring
private law proceedings: [77]. (b) A claimant may have standing to challenge an individual procurement decision if:
(i) despite not being an economic operator, he "has a sufficient interest in compliance with the public procurement
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regime in the sense that he is affected in some identifiable way" by the challenged decision (for example, because
compliance "might have led to a different outcome that would have had a direct impact on him"); or (ii) "the gravity
of a departure from public law obligations" justifies the grant of a public law remedy: [77]. (c) The recognition that
standing may arise in situation (ii) shows that, even where the challenge is to an individual procurement decision, the
Court of Appeal in Chandler did not intend to make it a precondition of standing that the claimant could show that
he was personally "affected in some identifiable way" by the challenged decision. This is consistent with the general
principles enunciated in World Development Movement. (d) Alongside the "gravity" of the breach alleged, the court
must also consider whether there are other more appropriate ways for the alleged breach to be litigated. In the context of
an individual procurement decision, that requires a recognition of the special remedies available under the procurement
regime. In that context, "[e]conomic operators can test the question of legality" (see [72]), so, "the court is in general
bound to ask itself why a public law remedy is necessary when private law remedies are available": [77]. This too
is consistent with the identification in World Development Movement of "the likely absence of any other responsible
challenger" as a factor relevant to standing. (e) In considering whether a public law remedy is necessary, the court
should consider whether the claimant is "attempting to use the public procurement regime for a purpose for which
it was not created": [78]. The two examples of cases where the claimant failed this test, Chandler itself and Kathro,
were both cases in which the claimant had no "interest in the observance of the public procurement regime" but was
seeking to use that regime as a tool with which to challenge a decision to which she or he was opposed. This again
seems to me to be consistent with the focus in World Development Movement on the experience, expertise and aims
of the challenger. (f) Unless it is appropriate to deal with standing as a preliminary issue, once permission to apply
for judicial review has been granted, courts are not encouraged to spend valuable court time on the issue of standing,
especially in a borderline case: [77]." - Good Law Project Ltd & Ors, R. (On Application of) v Secretary of State for
Health And Social Care [2021] EWHC 346 (Admin).
56.
"Every legal system has to determine who has "standing" to challenge the decisions of bodies subject to public law.
In England and Wales, judicial review is the procedure for challenging such decisions. The standing requirement for
judicial review is contained in s. 31(3) of the Senior Courts Act 1981, which provides as follows: "No application for
judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and
the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest
in the matter to which the application relates." In defining the standing requirement, Parliament chose a deliberately
open-textured phrase: an applicant must demonstrate a "sufficient interest in the matter to which the application relates".
In R (Jones) v Commissioner of Police for the Metropolis [2020] 1 WLR 519, at [38], the Divisional Court (Dingemans
LJ and Chamberlain J) cited Auburn, Moffett & Sharland, Judicial Review: Principles and Procedure (Oxford, 2013),
paragraph 24.26, where it was said that: "The courts have adopted an increasingly liberal approach to both individuals
and groups bringing judicial review claims in the public interest. If an individual or group seeking to represent the
public interest demonstrates that they have a real and genuine interest in the decision under challenge, they are likely to
have standing to bring a claim, although other factors to consider in this context will include the merits of the claim, the
existence of better placed challengers, and the nature and the reputation of the individual or organisation in question."
This is an accurate high-level summary of the law on standing. It reflects a series of decisions in which the courts have
accepted the standing of concerned individuals, public interest groups and non-governmental organisations to challenge
decisions even though they cannot themselves claim to be more affected by those decisions than anyone else: see e.g.
R v HM Treasury ex p. Smedley [1985] QB 657 (in which the Court of Appeal accepted the claimant's standing, "as
a taxpayer", to challenge budget payments made by the UK to the European Economic Community without specific
Parliamentary authority: see esp. at 669 (Slade LJ)); R v Secretary of State for Foreign and Commonwealth Affairs ex
p. Rees-Mogg [1994] QB 552 (in which the Divisional Court accepted the claimant's standing to challenge the decision
to ratify the Maastricht Treaty because of his "sincere concern for constitutional issues", despite the submission that
the proceedings were "the continuation by other means of arguments ventilated in Parliament": see at 561 (Lloyd LJ));
and R v Secretary of State for Foreign and Commonwealth Affairs ex p. World Development Movement [1995] 1 WLR
386 (in which the Divisional Court accepted the standing of a UK-based pressure group to challenge the government's
decision to allocate development aid to the Pergau Dam in Malaysia). In the latter case, Rose LJ explained at 395 that
the factors justifying the conclusion that the claimants had standing were: "the importance of vindicating the rule of
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law", "the likely absence of any other responsible challenger", "the nature of the breach of duty against which relief
is sought" and "the prominent role of these applicants in giving advice guidance and assistance with regard to aid".
There are, however, cases in which the standing requirement has been more restrictively interpreted. One such case
arose from decisions taken in relation to the murderers of James Bulger. They were sentenced to detention during Her
Majesty's pleasure in 1993. At that time, responsibility for setting the minimum term lay with the Home Secretary. In
V v UK (1999) 30 EHRR 121, the European Court of Human Rights held that this gave rise to a violation of Article 6
ECHR. To remedy this, legislation was introduced under which minimum terms would be set by the trial judge, subject
to appeal to the Court of Appeal (Criminal Division) by the offender (where it was said that the term was manifestly
excessive) or by the Attorney General (in cases of undue leniency). For existing detainees, the Home Secretary said that
he would accept the recommendation of the Lord Chief Justice, which was to be made after considering representations,
including from the victim's family. A recommendation in the case of the boys who murdered James Bulger was made
by the Lord Chief Justice and accepted by the Home Secretary. James Bulger's father sought judicial review of both
decisions. ... In any democracy subject to the rule of law, all public power is limited by law. When Parliament establishes
a public body such as the Parole Board, it confers on that body limited powers. When the body exceeds those limits,
it oversteps the authority given to it by Parliament. The main task of the courts in the field of public law is to ensure
that those exercising public power do not overstep the legal limits on their powers. But courts can only perform that
task if arguably unlawful exercises of public power are brought before them. Their ability to preserve and vindicate the
rule of law depends on the existence of effective mechanisms which enable that to happen. Without such mechanisms,
"laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic
election of Members of Parliament may become a meaningless charade": R (Unison) v Lord Chancellor [2017] UKSC
51, [2017] 3 WLR 409, [68] (Lord Reed). ... What counts as a "sufficient interest" for the purposes of s. 31(3) of the
Senior Courts Act 1981 will vary depending on what the rule of law requires in the particular context of the decision
under challenge. For some decisions (such as those in the Smedley, Rees-Mogg and World Development Movement
cases), it may not be possible to identify any class of persons, or any class of persons within the jurisdiction, who
are more affected than the public at large. In other cases, the direct impact of the challenged measure falls on a class
whose members are likely to lack the financial and organisational resources required to litigate. This is one reason why
organisations like the Child Poverty Action Group, the Joint Council for the Welfare of Immigrants and the Howard
League for Penal Reform (to name a few) have sought to challenge measures of general application in areas falling
within their purview, for the most part without dispute as to their standing. Another reason is that a suitably expert
organisation may be better placed to present arguments about the impact of policy on the affected class as a whole,
rather than one individual in particular. Decisions taken by the Parole Board in individual cases, however, are different
from measures of general application. In one sense, they affect the population as a whole, because the task of the Parole
Board is to assess risk; and any member of the public could in principle be exposed to risk by the release of an offender.
But the rule of law does not require that Parole Board decisions in individual cases should be challengeable by any
member of the public. In most cases, there is likely to be a small class of persons who are much more directly affected
than the public at large. If no-one in this class is prepared to bring a challenge, it can be properly assumed, without
offending the rule of law, that there is no need for the court to entertain one. The members of this class obviously
include the offender himself and the Secretary of State, both of whom are parties to the Parole Board proceedings.
DSD establishes that they do not include the Mayor of London or elected local politicians in a comparable position.
Do they include the victim or, in a case where the victim is deceased, the victim's close relative? Looking at the matter
from first principles, we would answer that question in the affirmative. We do not see how it could be said that the
victims in DSD were other than directly affected by the decision to release the offender. Not only were they victims
of serious sexual assaults by him; on their case, he posed a continuing risk to them. By the same token, it seems to us
that Mrs McCourt is directly affected by the decision to release Simms. Not only had he killed her daughter; one of the
issues before the Parole Board was whether his refusal to reveal the whereabouts of her remains was motivated by a
desire to exert psychological control over the remaining family members. In those circumstances, it would in our view
be inappropriate to make the possibility of a challenge to a Parole Board decision dependent upon a decision of the
Secretary of State to bring judicial review proceedings. If that had been the position, there would have been no way
for the court to examine and quash the Parole Board's unlawful decision to release Worboys. ... All counsel before us
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agreed that, if the only party who could challenge a release decision were the Secretary of State, the latter's decision
whether to bring such a challenge would itself in principle be amenable to judicial review at the instance of a victim
or relative. The prospect of this sort of satellite litigation is unattractive. Many of the same points as could be taken in
a direct challenge to the Parole Board's decision could be taken in a challenge to a decision of the Secretary of State
not to bring a challenge himself, though the success of any such points would depend on the basis for the Secretary of
State's decision. If a challenge were successful, it might then be too late for separate proceedings to challenge the Parole
Board's decision. Even if it were not, the result would be complexity and delay, with the prospect that a release decision
might be either delayed or quashed long after it had been given effect. The better course, in our view, is to recognise
that, in an appropriate case, a victim or (where the victim is deceased) a relative will have standing to challenge the
Parole Board's decision directly. Whether the victim or relative can identify an arguable challenge sufficient to justify
the grant of permission to apply for judicial review is, of course, another question." - McCourt, R (On the Application
Of) v The Parole Board for England And Wales & Ors [2020] EWHC 2320 (Admin).
57.
For detailed illustrative discussion of the standing threshold for bringing judicial review proceedings see Good Law
Project Ltd, R. (On the Application Of) v The Secretary of State for Health and Social Care [2022] EWHC 2468 (TCC).
Who can be sued?
58.
Judicial review only applies to decisions of public law bodies, carrying out public law functions. It will usually be clear
whether the proposed defendant is, in fact, a public body. Persons exercising powers or performing duties derived from
statute or from the prerogative (Orders in Council) are generally held to be public bodies and their decisions/actions
are amenable to judicial review.
59.
However, it is not always clear-cut and, historically, the courts have been reluctant to specifically define what is a public
body. There must generally be some element of governmental involvement inasmuch as the powers and functions of
any particular body are extended under authority of the Government. See: R. v Panel on Takeovers and Mergers Ex
p. Datafin Plc [1987] Q.B. 815.
60.
In R. (on the application of Holmcroft Properties Ltd) v KPMG LLP [2016] EWHC 323 (Admin); [2016] 2 B.C.L.C.
545 it was held that, where an independent reviewer had been appointed under a scheme to provide redress to customers
who had been mis-sold financial products by a bank, the reviewer's approval of the bank's offer of compensation to a
customer was not amenable to judicial review. Although the reviewer had been assisting the financial services regulator
in the effective performance of its regulatory functions, the scheme was a voluntary one and its duties did not have
sufficient public law flavour.
61.
Judicial review is also available against decisions of inferior courts and tribunals such as magistrates' courts, coroners'
courts, crown courts and county courts. However, the superior courts, such as the High Court, the Court of Appeal and
the Supreme Court are not susceptible to judicial review. The Crown Court is susceptible to judicial review except in
matters relating to trial on indictment (see the Senior Courts Act 1981 s.29(3).
62.
Unappealable decisions of the Upper Tribunal are subject to judicial review by the High Court but only where there
is an important point of principle or practice or some other compelling reason for the case to be reviewed: R. (on the
application of Cart) v Upper Tribunal [2011] UKSC 28; [2012] 1 A.C. 663.
63.
Where the decision being challenged is made by a Government Department it is the relevant Secretary of State who
is the defendant. Therefore, even if the decision is that of a civil servant working in the Home Office, the defendant
would still be the Secretary of State for the Home Department.
Additional parties: Interested party
64.
An interested party means any person (other than the claimant and defendant) who is directly affected by the claim:
Civil Procedure Rules 1998/3132, r.54.1. For example, where a claimant challenges the decision of a defendant local
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authority to grant planning permission to a third party, that third party has a direct interest in the claim and must be
named as an interested party.
65.
If the main claim is altered so that the Interested Party is not "directly affected" by it, the court ceases to have jurisdiction
to hear the Interested Party's claim: R. (on the application of McVey) v Secretary of State for Health [2010] EWHC
1225 (Admin); [2010] C.P. Rep. 38.
Intervener
66.
Pursuant to Civil Procedure Rules 1998/3132, r.54.17 any person may apply to file evidence or make representations
at the hearing of the judicial review. Such person is known as an Intervener. An Intervener is usually a person or body
(such as a campaign group or public authority) who is interested in the outcome of the claim. An intervention should
not be made if the Intervener merely seeks to repeat points that the appellant or respondent have already made. It is
not the role of an Intervener to be an additional counsel for one of the parties: per Lord Hoffman in E (A Child), Re
[2008] UKHL 66; [2009] 1 A.C. 536.
67.
Potential interveners should be made aware of the costs considerations of intervening in judicial review proceedings,
as detailed in the Criminal Justice and Courts Act 2015, s.87.
Remedies
68.
A comprehensive discussion of the remedies available in judicial review proceedings is outside the scope of this article.
Briefly, however, the courts have a wide range of powers to grant remedial orders in judicial review proceedings. The
Senior Courts Act 1981 s.37 and Civil Procedure Rules 1998/3132 Pt 25 govern interim remedies. The most relevant
interim remedies in judicial review proceedings are interim injunctions, stays of proceedings and interim declarations.
Final remedies include:
a.
a mandatory, prohibiting or quashing order;
b.
a declaration or injunction;
c.
an injunction under the Senior Courts Act 1981 s.30 (restraining a person from acting in any office in which
he is not entitled to act);
d.
declaratory orders (including declarations of incompatibility under the Human Rights Act 1998).
69.
A claim for judicial review may include a claim for damages, restitution or the recovery of a sum due (Senior Courts
Act 1981 s.31(4)) but this cannot be the sole remedy sought (Civil Procedure Rules 1998/3132 r.54.3).
70.
Where the assessment and award of damages is likely to be a lengthy procedure, the general practice of the
Administrative Court is to determine the judicial review claim and then transfer the claim to either the County Court
or appropriate division of the High Court to determine the question of damages.
71.
"Judicial review is a flexible and practical procedure. All remedies in judicial review are discretionary, including
declarations (a substantial topic on which we received no distinct submissions). The Administrative Court has at its
disposal a range of doctrines, with discretionary elements, to control access to its scarce resources. They include the
doctrine that judicial review will not generally be available where there is a suitable alternative remedy, and its approach
to timeliness. The discipline of not entertaining academic claims is part of this armoury. It enables the court to avoid
hearings in cases in which, although the issue may be arguable, the court's intervention is not required, because the
claimant has obtained, by one means or another, all the practical relief which the Court could give him. I incline to the
view that the claims in these cases were academic, because the As had obtained all the practical relief for which they
had asked, that is, the issue of the final amended statements. There was still a potential issue between the parties about
the construction of the Regulations, but it was no longer live. It was no longer live in these proceedings, whether or not
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it was possible, probable, or virtually certain that it would arise again in a future year. As a matter of judicial policy,
the best way of controlling access to the court for claims such as these is the rigorous filter of the test in Salem." - L,
M and P v Devon County Council [2021] EWCA Civ 358.
72.
There can be no remedy in respect of an unlawful act unless it has been made the subject of judicial review or other
legal proceedings to establish the illegality: "28. Lord Pannick QC properly accepts that an application needs to be
made in order to quash an adverse asylum decision: see Smith v East Elloe Rural District Council [1956] AC 736, 769
per Lord Radcliffe: "An order, even if not made in good faith, is still an act capable of legal consequences. It bears
no brand of invalidity upon on its forehead. Unless the necessary proceedings are taken at law to establish the cause
of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most
impeccable of orders." 29. Lord Pannick also accepts that it is not an inevitable consequence of an ultra vires regulation
that decisions taken pursuant to it are necessarily themselves always unlawful, so it is unnecessary for me to address the
various authorities on that point. Lord Pannick properly accepts that it all depends on the legal context." - TN (Vietnam),
R. (on the application of) v Secretary of State for the Home Department & Anor (Rev1) [2021] UKSC 41.
Court's discretion as to remedy
73.
The grant or refusal of the remedy sought by way of judicial review is, ultimately, discretionary: per Lord Roskill in R.
v Inland Revenue Commissioners Ex p. National Federation of Self Employed and Small Businesses Ltd [1982] A.C.
617. In most cases where a decision has been found to be flawed the court will grant the remedy sought. However,
there are cases where the court has declined to grant a remedy. See R. (on the application of Edwards) v Environment
Agency (No.2) [2008] UKHL 22; [2008] 1 W.L.R. 1587, where the House of Lords (now the Supreme Court) upheld
the Court of Appeal's refusal to grant relief where only one procedural irregularity was established.
74.
The court may also refuse to grant relief if it considers that the granting of the relief sought would be likely to
cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good
administration: Senior Courts Act 1981 s.31(6). See also: R. (on the application of Corus UK Ltd (t/a Orb Eletrical
Steels)) v Newport City Council [2010] EWHC 1279 (Admin); [2010] 24 E.G. 117 (C.S.).
75.
Other reasons for the court refusing to grant the remedy sought include:
a.
where the remedy would serve no practical purpose - see for example R. (on the application of Edwards) v
Environment Agency (No.2) [2006] EWCA Civ 877; [2007] Env. L.R. 9 where it was held that it was pointless
to quash a decision to disclose a report which had, by the date of judgment, already been disclosed;
76.
b.
where the claimant has suffered no harm or prejudice - see, for example, R. (on the application of Laporte)
v Newham LBC [2004] EWHC 227 (Admin);
c.
where the public authority would have made the same decision if its original procedure had not been flawed see, for example, R. (on the application of Jones) v Swansea City and CC [2007] EWHC 213 (Admin), where
the claimant's challenge to a local authority's decision to grant planning permission was made out as the local
authority had initially failed to assess whether the proposal contravened its planning guidelines. However, the
relief was not granted as the local authority had subsequently inspected the building and confirmed its decision.
"If the court is to consider whether a particular outcome was "highly likely" not to have been substantially different if
the conduct complained of had not occurred, it must necessarily undertake its own objective assessment of the decisionmaking process, and what its result would have been if the decision-maker had not erred in law. Section 31(2A) is
designed to ensure that the judicial review process remains flexible and realistic. Even if there has been some flaw in
the decision-making process which might render the decision unlawful, if quashing the decision would be a waste of
time and public money (because, even when adjustment is made for the error, it is highly likely that the same decision
would be reached), the decision should not be quashed." - J, R (On the Application Of) v West Mercia Police & Anor
[2022] EWHC 26 (Admin).
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Public funding
77.
Public funding (legal aid) for legal costs in judicial review proceedings may be available from the Civil Legal Advice
("CLA") service, which is funded by the Legal Aid Agency, an executive agency of the Ministry of Justice. The Civil
Legal Aid (Merits Criteria) Regulations 2013/104 sets out the merits criteria which the Director of Legal Aid Casework
must apply when deciding whether an applicant qualifies for civil legal aid under Pt 1 of the Legal Aid, Sentencing and
Punishment of Offenders Act 2012. Legal aid is administered by the Legal Aid Agency (LAA). Further information
on the type of help available can be found on the Ministry of Justice website.
78.
The LAA's resources are limited and, consequently, the rules for granting legal aid funding in judicial review
proceedings are focused on high priority and meritorious cases. Significant weight will be placed on the claimant's
chances of success and funding will be refused if these are poor or unclear. Borderline cases will likely only be funded
if they have significant wider public interest, the outcome is of overwhelming importance to the claimant, or the case
raises significant human rights issues. Where legal aid is granting, funding may be provided for:
a.
investigative representation, limited to funding to investigate the strength of the proposed claim. This includes
the work necessary to comply with the pre-action protocol for judicial review;
b.
79.
full representation, including litigation services, advocacy services and all such help as is usually given by a
person providing representation in proceedings. Except in emergency cases, a proper letter before claim must
be sent and the other side must be given an opportunity to respond before full representation will be granted.
The Administrative Court has no power to grant public funding.
Protective costs orders prior to 8 August 2016
80.
Pursuant to Civil Procedure Rules 1998/3132 r.44.2(2), the general rule about costs is that the unsuccessful party will be
ordered to pay the costs of the successful party. This is an obvious deterrent to claimants of limited means. The general
purpose of a Protective Costs Order (PCO) is to provide such a claimant with the reassurance that he either will not be
exposed to an adverse costs order at all, or that any such potential liability will be limited. However, the jurisdiction to
make a PCO will be exercised only in the most exceptional circumstances: R. v Lord Chancellor Ex p. Child Poverty
Action Group [1999] 1 W.L.R. 347, in which Dyson J. set out the governing principles in relation to the grant of PCOs.
81.
These governing principles were confirmed and slightly modified by the Court of Appeal in R. (on the application of
Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192; [2005] 1 W.L.R. 2600 in
which they restated the governing principles in the following terms:
82.
A PCO may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court
is satisfied that:
a.
the issues raised are of general public importance;
b.
the public interest requires that those issues should be resolved;
c.
the applicant has no private interest in the outcome of the case, although inR. (on the application of England)
v Tower Hamlets LBC (Permission to Appeal) [2006] EWCA Civ 1742 it was held that the appropriateness
and workability of the criterion laid down in R. (on the application of Corner House Research) v Secretary
of State for Trade and Industry [2005] EWCA Civ 192; [2005] 1 W.L.R. 2600 that an applicant for judicial
review seeking a protective costs order should not have any private interest in the proceedings were doubtful.
See also: R. (on the application of IS) v Director of Legal Aid Casework [2014] EWCA Civ 886, where a
protective costs order was granted in the proceedings even though the claim was brought by a claimant who
had an interest in the outcome;
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d.
having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that
are likely to be involved it is fair and just to make the order; and
e.
if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably
in doing so.
83.
If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for
a PCO.
84.
It is for the court, in its discretion, to decide whether it is fair and just to make the order in light of the considerations
set out above.
85.
These principles were reiterated in Morgan v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107; [2009] C.P. Rep.
26. However, in relation to challenges to environmental decisions, the Corner House principles have to be interpreted
and applied in such a way as to secure conformity with Directive 85/337 (which gives effect in community law to the
provisions of the Aarhus Convention) on the assessment of the effects of certain public and private projects on the
environment. See: R. (on the application of Garner) v Elmbridge BC [2010] EWCA Civ 1006; [2011] 3 All E.R. 418.
Initially, it was thought that these modifications would make PCOs more readily available in environmental cases but,
in the first case to apply Garner, the High Court refused to grant a PCO: Coedbach Action Team Ltd v Secretary of
State for Energy and Climate Change [2010] EWHC 2312 (Admin); [2011] 1 Costs L.R. 70. Garner only applies to
cases which engage the EU law provisions bringing in the obligations imposed by the Aarhus Convention. See: R. (on
the application of Young) v Oxford City Council [2012] EWCA Civ 46. See also "Latest Developments" below.
86.
In R. (on the application of Buglife: The Invertebrate Conservation Trust) v Thurrock Thames Gateway Development
Corp [2008] EWCA Civ 1209; [2009] C.P. Rep. 8, the Court of Appeal stressed that the courts should do their utmost
to dissuade the parties from engaging in expensive satellite litigation on the question as to whether protective costs
orders and costs capping orders should be made.
On or after 8 August 2016: Judicial Review Costs Capping Orders
87.
Judicial Review Costs Capping Orders ("JRCCOs") replace PCOs pursuant to the coming into force of ss.88-90 of the
Criminal Justice and Courts Act 2015 ("the 2015 Act") on 08 August 2016.
88.
JRCCOs may only be granted after permission to apply for judicial review has been granted and may only be applied
for by a claimant (referred to below as the "applicant") - not a defendant, interested party or intervener: s.88(4) of the
2015 Act.
89.
The court may only make a JRCCO if it is satisfied that the proceedings are public interest proceedings (as defined
by s.88(7) of the 2015 Act), that, in the absence of the order, the applicant would withdraw the application for judicial
review or cease to participate in the proceedings and that it would be reasonable for the applicant to do so: s.88(6)
of the 2015 Act.
90.
The matters to which the court must have regard when considering whether to make a costs capping order in connection
with judicial review proceedings, and what the terms of such an order should be, include:
a.
the financial resources of the parties to the proceedings, including the financial resources of any person who
provides, or may provide, financial support to the parties;
b.
the extent to which the applicant for the order is likely to benefit if relief is granted to the applicant for judicial
review;
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c.
the extent to which any person who has provided, or may provide, the applicant with financial support is likely
to benefit if relief is granted to the applicant for judicial review;
d.
whether legal representatives for the applicant for the order are acting free of charge;
e.
whether the applicant for the order is an appropriate person to represent the interests of other persons or the
public interest generally.
91.
A costs capping order that limits or removes the liability of the applicant for judicial review to pay the costs of another
party to the proceedings if relief is not granted to the applicant for judicial review must also limit or remove the liability
of the other party to pay the applicant's costs if it is: s.89 of the 2015 Act.
92.
If the defendant wishes to resist the making of the JRCCO it should set out its reasons in the acknowledgement of
service. Similarly, any representations on a reciprocal costs capping order (capping both parties' costs) should be made
in the acknowledgement of service.
93.
The applicant will usually be liable for defendant's costs incurred in a successful resistance to an application for a
JRCCO.
94.
If the judge grants permission to apply for judicial review on the papers the judge will then consider whether to make
the JRCCO on the papers and if so, in what terms. If the judge grants permission to apply for judicial review but
refuses to grant the JRCCO, the applicant can request that the decision is reconsidered at a hearing. The applicant will
face liability for costs if the JRCCO is again refused at any such hearing. The paper decision will only be revisited
in exceptional circumstances.
95.
An application for a JRCCO can be made at any time, not just when lodging the claim, although it is discouraged. In
such circumstances the application should be made using Form N244 or PF244 and must be accompanied by payment
of the relevant fee, evidence stating why the order is required and a draft order should be enclosed with the application.
Duty of candour
96.
There is a special duty which applies to parties to judicial review known as the "duty of candour"; this requires the
parties to ensure that all relevant information and facts are put before the court. This means that parties must disclose
any information or material facts which either support or undermine their case. This rule is needed in judicial review
claims, where the court's role is to review the lawfulness of decisions made by public bodies, often on an urgent request
being made, where the ordinary rules of disclosure of documents do not apply and where the witness statements are
usually read (rather than being subject to cross examination by witnesses who are called to give their evidence orally).
97.
The rule is particularly important where the other party has not had the opportunity to submit its own evidence or
make representations (usually an urgent application). The court will take seriously any failure or suspected failure to
comply with the duty of candour. The parties or their representatives may be required to explain why information or
evidence was not disclosed to the court, and any failure may result in sanctions. Specifically, claimants in judicial review
proceedings must ensure that the court has the full picture. In some circumstances, to ensure this, it is not sufficient
simply to provide the relevant documents. Instead, a specific explanation of a document or an inconsistency must be
given, usually by witness statement attested by the claimant.
98.
The duty of candour is a continuing duty. The claimant must reassess the viability and propriety of a challenge in light
of the defendant's Acknowledgement of Service and Summary Grounds.
99.
"The duty of candour in judicial review proceedings is very important. It enables the court to adjudicate on issues
involving the state without deciding facts or engaging in disclosure processes. That is because the court assumes that
it will be supplied with all the information necessary to determine a case accurately. That assumption is made because
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the law imposes upon the state a positive duty to ensure that this happens. In almost all cases, including this one, it will
be unnecessary to analyse authorities concerning the duty of candour. The law is summarised in the Administrative
Court Guide for 2022 at paragraph 15.3, which contains four important subparagraphs. ["15.1.2 However, in judicial
review proceedings there is a special duty which applies to all parties: the "duty of candour". This requires the parties
to assist the Court by ensuring that information relevant to the issues in the claim is drawn to the Court's attention,
whether it supports or undermines their case. ... 15.3.5 The duty of candour means that: 15.3.5.1 the process of preparing
statements of case and evidence must be Conducted "with all the cards face upwards on the table";263 public authorities
must not be selective in their disclosure;264 15.3.5.2 pleadings and evidence must be drafted in clear, unambiguous
language, must not deliberately or unintentionally obscure areas of central relevance and must not be ambiguous or
economical with the truth or contain "spin";265 and 15.3.5.3 pleadings and evidence must not mislead by omission,
for example by non-disclosure of a material document or fact or by failing to identify the significance of a document or
fact.266 15.3.6 The duty of co-operation with the Court means that defendants and their representatives have an ongoing
duty to consider whether their defence remains viable, particularly after the grant of permission."] That sufficiently
summarises the law as it applies to defendant public authorities and their representatives. Perhaps less well known and
less widely available is a document titled guidance on discharging the duty of candour and disclosure in judicial review
proceedings created by the Treasury Solicitors Department in January 2010. That contains a great deal of sound advice.
There has sometimes been some doubt as to whether the duty of candour applies before the permission stage or before
the stage when proceedings are issued. The Treasury Solicitors Guidance, says this: "The duty of candour applies as
soon as the Department is aware that someone is likely to test a decision or action affecting them. It applies to every
stage of the proceedings, including letters of response, under the pre-action protocol, summary grounds of resistance,
detailed grounds of resistance, witness statements and counsel's written and oral submissions." We proceed on the basis
that that guidance accurately reflects the law. It is an obligation which the executive has assumed on the advice of the
Treasury Solicitor, as it was, and the court operates on the basis that that is what is expected of Government defendants
when dealing with judicial review proceedings." - HM & Ors, R. (On the Application Of) [2022] EWHC 2729 (Admin).
Costs Capping
100. Judicial Review Costs Capping Orders ("JRCCOs") replace Protective Costs Orders pursuant to the coming into force
of ss.88-90 of the Criminal Justice and Courts Act 2015 ("the 2015 Act") on 8 August 2016.
Procedure
101. Judicial review proceedings are brought in the name of the Crown, being entitled Regina (on the application of X) v
Y (replacing the older use of the Latin form "Regina v Y, ex parte Y). This reflects the fact that although brought by
particular individuals the case raises issues of public law of general importance.
102. Judicial review proceedings are allocated to the Administrative Court, which is in informal sub-division of the King's
Bench Division of the High Court.
103. Part 54 of the Civil Proceedings Rules deals with applications for judicial review (which are assigned to the
Administrative Court).
104. Chapter 58 of the Rules of the Court of Session deals with applications for judicial review in the exercise of the court's
supervisory jurisdiction.
105. "First, complying with time limits for commencing judicial review proceedings is always important. "Delay of any
kind of proceedings for judicial review is to be avoided, as far as possible." (R v Kigen v SSHD [2016] 1 WLR 723 at
para 25)." - R. (on the application of EA) v Chairman of the Manchester Arena Inquiry [2020] EWHC 2053 (Admin).
Evidence
106. "A court hearing a claim for judicial review normally accepts the written evidence of the defendant unless exceptionally
there is an application to cross-examine the deponent or it is obviously in conflict with other written evidence before
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the court." - Good Law Project Ltd & Ors, R. ( On Application of) v Secretary of State for Health And Social Care
[2021] EWHC 346 (Admin).
107. "The defendant has referred me to the decision in R (Mohammed Safeer) v SSHD 2018 EWCA Civ 2518 which sets
out at paragraph 19 that the basic rule is clear, namely that "where there is a dispute on the evidence in a judicial
review application then in the absence of cross-examination the facts in the defendant's evidence must be assumed to
be correct". It does not seem to me that this principle is controversial. However, neither does it seem to me that it takes
this matter much further. There is no direct challenge to the evidence of Miss Drew herself. The Administrative Court
is not an appropriate venue for the testing of evidence by oral evidence and cross-examination. There is no dispute or
challenge and I accept that there was the Iraqi delegation visit. I accept that she wrote the correspondence referred to
and that she received the replies that she has referred to. However, the rule or principle cannot go further so as to mean
that the court is bound to accept the truth of the contents of the letters from others which she exhibits. The point may
not in fact be material in this case on analysis, even taking the information at face value." - SS v The Secretary of State
for the Home Department [2019] EWHC 1402 (Admin).
108. "Despite these statements, we are concerned that a culture has developed in the context of judicial review proceedings
for there to be excessive prolixity and complexity in what are supposed to be concise grounds for judicial review. As
often as not, excessively long documents serve to conceal rather than illuminate the essence of the case being advanced.
They make the task of the court more difficult rather than easier and they are wasteful of costs. It is for these reasons
that skeleton arguments are subject to length constraints and so too, for example, the length of printed cases in the
Supreme Court." - Dolan & Ors, R (On the Application Of) v Secretary of State for Health and Social Care & Anor
[2020] EWCA Civ 1605.
Judicial review of policies and guidance
109. "This appeal is concerned with the standards to be applied by a court when it is asked to conduct a judicial review of
the contents of a policy document or statement of practice issued by the Government. ... Policies are different from
law. They do not create legal rights as such. In the case of policies in relation to the exercise of statutory discretionary
powers, it is unlawful for a public authority to fetter the discretion conferred on it by statute by applying a policy
rigidly and without being willing to consider whether it should not be followed in the particular case. However, in an
important development in public law in the last decades, the courts have given policies greater legal effect. In certain
circumstances a policy may give rise to a legitimate expectation that a public authority will follow a particular procedure
before taking a decision and it may give rise to a legitimate expectation that the authority will confer a particular
substantive benefit when it does decide how to exercise its discretion. In these cases, the courts will give effect to the
legitimate expectation unless the authority can show that departure from its policy is justified as a proportionate way of
promoting some countervailing public interest. If the policy is not made public, and an affected individual is unaware
of its relevance to his case and in that sense has no actual expectation arising from it, the authority may still be required
to comply with it unless able to justify departing from it: Mandalia v Secretary of State for the Home Department
[2015] UKSC 59; [2015] 1 WLR 4546. Under some conditions the holder of a discretionary power may be required
to formulate a policy and to publish it: R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12;
[2012] 1 AC 245. Thus, policies have moved increasingly centre stage in public law. 4. In a parallel development, and
perhaps reflecting the increased importance of policies, there has been an increase in judicial review of the contents
of policies. The present appeal is concerned with the standards to be applied by the courts when called upon to review
the contents of policies. The policy of which the appellant seeks judicial review is the Child Sex Offender Disclosure
Scheme Guidance ("the Guidance") issued by the Secretary of State in exercise of her common law powers. ... In our
view, Gillick sets out the test to be applied. It is best encapsulated in the formulation by Lord Scarman at p 182F (reading
the word "permits" in the proper way as "sanction" or "positively approve") and by adapting Lord Templeman's words:
does the policy in question authorise or approve unlawful conduct by those to whom it is directed? So far as the basis
for intervention by a court is concerned, we respectfully consider that Lord Bridge and Lord Templeman were correct
in their analysis that it is not a matter of rationality, but rather that the court will intervene when a public authority has,
by issuing a policy, positively authorised or approved unlawful conduct by others. In that sort of case, it can be said that
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the public authority has acted unlawfully by undermining the rule of law in a direct and unjustified way. In this limited
but important sense, public authorities have a general duty not to induce violations of the law by others. ... 84. We have
reviewed the lawfulness of the Guidance by reference to a number of distinct principles: (1) According to the principle
in Gillick a policy will be unlawful if it misdirects officials as to their legal obligations; but the Guidance does not do
so (paras 29-48); (2) The Guidance is not unlawful as a result of any failure to comply with the test derived from the "in
accordance with the law" rubric in article 8 of the ECHR (paras 49-53); (3) The Guidance is not unlawful by reference
to the test of inherent unfairness discussed in Tabbakh and Refugee Legal Centre, which is to be analysed as an aspect
of the Gillick principle (paras 55-75); (4) The Guidance is not unlawful by reference to an obligation to avoid a real risk
of treatment contrary to article 3 of the ECHR as discussed in the Munjaz case (para 79 above); and (5) The Guidance
does not create a risk of impeding access to justice and so is not unlawful by reference to the principle discussed in
UNISON (paras 80-83)." - A, R (on the application of) v Secretary of State for the Home Department [2021] UKSC 37.
Review of tribunal decisions
110. The issue of the extent to which, and the manner in which, decisions of the First-tier Tribunal or Upper Tribunal may be
exposed to judicial review are discussed in Cart v The Upper Tribunal [2011] UKSC 28. The case also touches on the
constitutional underpinnings of judicial review in general. See also Eba v Advocate General for Scotland (Scotland)
[2011] UKSC 29.
Cases involving fundamental rights
111. "Mr Rule argued that the common law has now adopted a different test for judicial review that goes beyond rationality
in cases concerning fundamental rights. I do not agree. On the contrary, there is the highest authority for the proposition
that the basic test to be applied in domestic judicial review cases which involve neither EU law nor Convention rights
remains that of rationality. Again the only modification is that, in cases involving fundamental rights, the reviewing
court is required to consider the rationality of the original decision with "the most anxious scrutiny". ... Accordingly,
these authorities spell out the simple proposition that, for now at any rate, the common law test for judicial review
is based on the underlying principle of rationality. Whilst there is some support for adopting a proportionality test
in particular cases concerned with fundamental rights (see for example Kennedy), there is a recognition that a more
widespread change would require a major review by the Supreme Court and the necessary overruling of Brind and
Smith." - Browne v The Parole Board of England & Wales [2018] EWCA Civ 2024.
Judicial review brought by unincorporated associations
112. "In my view Ms Wigley is correct and an unincorporated association does have capacity to bring both a judicial review
and a statutory challenge. I agree with Turner J that there is a critical distinction between private and public law
litigation. In private law the individual has to be able to show that they have a legal right which has been infringed,
therefore it is fundamental that they have legal capacity to sue. In contrast the critical question in judicial review or
statutory challenge is whether the claimant is a person aggrieved or has standing to challenge, which is not a test of
legal capacity but rather one of sufficient interest in the decision not to be a mere busybody. The claim is " invoking
the powers of the court to exercise its supervisory jurisdiction of the court to quash curb or correct decision of bodies
subject to public law. The personal rights of individual applicants, as in the present case, may never be in play", see
Brake. Therefore, the legal capacity of the claimant is not a critical component of the court having jurisdiction in a
judicial review or statutory challenge." - Aireborough Neighbourhood Development Forum v Leeds City Council [2020]
EWHC 45 (Admin).
Strict usage of "judicial review"
113. 1. "Section 9(1)(b) does not affect any rule of law which prevents a court from being the subject of judicial review: see
subsection (2). In our view, what that particular provision does is to preserve existing rules of law which govern the
circumstances in which a court may be the subject of judicial review. For example, the Crown Court is not amenable to
judicial review in matters relating to a trial on indictment: see section 29(3) of the Senior Courts Act 1981. It does not
seem to us that subsection (2) goes any further than that. The phrase "judicial review" is clearly used in the context of
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section 9 to mean "judicial review" in the strict legal sense and not in any wider sense of review by a court." - Mazhar
v The Lord Chancellor [2019] EWCA Civ 1558.
Guidance
114. For Guidance see "The Judge Over Your Shoulder" - Guidance to help you navigate the legal frameworks within which
public bodies, particularly Government, make decisions issued by the Government Legal Department.
Government review of judicial review
115. On 31 July 2020 the Government launched a "panel of experts" to "examine if there is a need to reform the judicial
review process". The panel is to "examine the need for potential reforms of judicial review" as "part of government
plans to ensure right balance is struck between citizen's rights and effective governance". The review was chaired by
Lord Edward Faulks QC, and delivered on a Conservative manifesto commitment "to ensure the judicial review process
is not open to abuse and delay". Specifically, the review considered: "Whether the terms of Judicial Review should be
written into law; Whether certain executive decisions should be decided on by judges; Which grounds and remedies
should be available in claims brought against the government; Any further procedural reforms to Judicial Review, such
as timings and the appeal process".
116. According to the Ministry of Justice Press Notice announcing the launch of the review, it will "examine a range of
data and evidence, including relevant caselaw, on the development of judicial review and consider whether reform is
justified ... The work forms part of the Lord Chancellor's duty to defend our world-class and independent courts and
judiciary that lie at the heart of British justice and the rule of law".
117. Following the review, the Government introduced a Judicial Review and Courts Bill. The Explanatory Notes to the
Bill said as follows:
In summary, the Bill contains measures in the following areas:
Judicial Review
Gives the Courts a discretion to suspend Quashing Orders for a period of time in certain circumstances. This
discretion will include a non-exhaustive list of factors to consider.
Gives the Courts a discretion to provide prospective-only remedies. This will include a list of non-exhaustive
factors to consider.
Creates a broad presumption for the Courts to use the new variations of Quashing Orders where it appears to the
court that as a matter of substance, they offer adequate redress in relation to the relevant defect, unless there is
a good reason not to do so.
Removes Cart Judicial Reviews via an ouster clause. This will remove a person's ability to judicially review a
decision of the Upper Tribunal to refuse permission to appeal from the First-tier Tribunal.
118. The Law Society of England and Wales said the following about the Bill:
The UK has a long and proud history of honouring the rule of law. This means that everyone, including the
government, must comply with the law. Judicial review is a vital part of the justice system in England and Wales.
It's a way for people to:
assert their fundamental rights
test the lawfulness of decisions made by public bodies
seek a remedy when things go wrong
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Judicial review is an important part of our constitutional balance of powers between the executive, parliament,
and judiciary. It's a way of upholding the sovereignty of parliament and maintaining trust in government decisionmaking.
Judicial Review and Courts Bill
The government introduced the Judicial Review and Courts Bill in July 2021. It follows a review conducted by
the Independent Review of Administrative Law, as well as a government consultation on judicial review reforms.
This new law seeks to:
give the courts the power to award suspended and prospective-only quashing orders, which will be subject to a
statutory presumption as set out in section 1,
subsections 9 and 10 reverse the judgment in R (Cart) v The Upper Tribunal so that decisions of the Upper Tribunal
are no longer eligible for judicial review
It also makes a number of procedural changes across the court system.
Our view
The Judicial Review and Courts Bill makes significant changes to the remedies available following a successful
case, and what can be challenged in a judicial review.
Suspended quashing orders
The proposed power for courts to suspend a quashing order would allow the order to take effect at a later date.
We agree that introducing suspended quashing orders could enhance flexibility and be beneficial in some cases.
However, they should only be used in exceptional cases with strong justification.
Prospective-only quashing orders
A prospective-only quashing order stops a decision or action of a public body from applying in the future, meaning
they only apply to past events prior to the court judgment. As a result, any previous uses of the decisions,
despite being found to be unlawful, would be upheld. We believe this would prevent the successful claimant, and
anyone else affected by the unlawful decision, from receiving a full remedy. We're concerned that this would
discourage claimants from bringing a case in judicial review. It would risk leaving unlawful acts unchallenged
and unremedied.
Statutory presumption
Judges must have a range of remedies at their disposal, and the discretion to award these, to ensure that justice
is meaningfully done. Introducing a statutory presumption restricts the flexibility that judges need, by requiring
them in some cases to award a suspended or prospective-only quashing order. This could prevent a fair outcome
that fits the facts of the case.
Removing decisions of the Upper Tribunal from judicial review
When decisions of the Upper Tribunal are judicially reviewed, it's because there is a concern about an important
point of law or procedural fairness. These cases often involve issues of fundamental rights or access to vital
services. It's important that this legal avenue is maintained to avoid potential injustices.
Key recommendations
We believe the government should:
remove the introduction of prospective-only quashing orders
remove the statutory presumption
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Judicial review, (2023)
maintain the ability to judicially review decisions of the Upper Tribunal
119. The Bill received Royal Assent and became the Judicial Review and Courts Act 2022. The Government's Explanatory
Notes to the Act (see Key Legal Concept: Explanatory Notes) say as follows:
In summary, the Act contains measures in the following areas:
Judicial Review Gives the Courts a discretion to suspend Quashing Orders for a period of time in certain
circumstances. This discretion will include a non-exhaustive list of factors to consider.
Gives the Courts a discretion to provide prospective-only remedies. This will include a list of non-exhaustive
factors to consider.
Removes Cart Judicial Reviews via an ouster clause. This will remove a person's ability to judicially review a
decision of the Upper Tribunal to refuse permission to appeal from the First-tier Tribunal.
Legislation
Key Acts
Senior Courts Act 1981
Data Protection Act 1998
Human Rights Act 1998
Freedom of Information Act 2000
Tribunals, Courts and Enforcement Act 2007
Legal Aid, Sentencing and Punishment of Offenders Act 2012
Key Subordinate Legislation
Civil Procedure Rules 1998/3132
Environmental Information Regulations 2004/3391
Key Quasi-Legislation
Pre-Action Protocol for Judicial Review
Administrative Court Judicial Review Guide 2016
Criminal Justice and Courts Act 2015
Key European Union Legislation
None.
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Judicial review, (2023)
Key Cases
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 K.B. 223
Luby v Newcastle under Lyme Corp [1964] 2 Q.B. 64
R. v Inland Revenue Commissioners Ex p. National Federation of Self Employed and Small Businesses Ltd [1982] A.C. 617
O'Reilly v Mackman [1983] 2 A.C. 237
Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374
Wandsworth LBC v Winder (No.1) [1985] A.C. 461
R. v Monopolies and Mergers Commission Ex p. Argyll Group Plc [1986] 1 W.L.R. 763
R. v Panel on Takeovers and Mergers Ex p. Datafin Plc [1987] Q.B. 815
R. v Secretary of State for Transport Ex p. Factortame Ltd (No.2) [1991] 1 A.C. 603
R. v Secretary of State for the Home Department Ex p. Brind [1991] 1 A.C. 696
R. v Secretary of State for Foreign and Commonwealth Affairs Ex p. Lord Rees-Mogg [1994] Q.B. 552
R. v Dean and Chapter of St Paul's Cathedral Ex p. Williamson [1998] C.O.D. 130
R. v Chief Constable of Sussex Ex p. International Trader's Ferry Ltd [1999] 2 A.C. 418
R. v Lord Chancellor Ex p. Child Poverty Action Group [1999] 1 W.L.R. 347
De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 A.C. 69
Clark v University of Lincolnshire and Humberside [2000] 1 W.L.R. 1988
R. (on the application of Mahmood) v Secretary of State for the Home Department [2001] 1 W.L.R. 840
R. (on the application of Cowl) v Plymouth City Council [2001] EWCA Civ 1935; [2002] 1 W.L.R. 803
R. (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 A.C. 532
R. (on the application of Webb) v Bristol City Council [2001] EWHC Admin 696
R. (on the application of Holding & Barnes Plc) v Secretary of State for the Environment, Transport and the Regions [2001]
UKHL 23; [2003] 2 A.C. 295
R. (on the application of Association of British Civilian Internees (Far East Region)) v Secretary of State for Defence [2003]
EWCA Civ 473; [2003] Q.B. 1397
R. (on the application of Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346; [2004] C.P. Rep. 12
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R. (on the application of P) v Essex CC [2004] EWHC 2027 (Admin)
R. (on the application of Edwards) v Environment Agency (No.1) [2004] EWHC 736 (Admin); [2004] 3 All E.R. 21
R. (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192; [2005]
1 W.L.R. 2600
R. (on the application of Ewing) v Office of the Deputy Prime Minister [2005] EWCA Civ 1583; [2006] 1 W.L.R. 1260
DB v Worcestershire CC [2006] EWHC 2613 (Admin)
Hardy v Pembrokeshire CC (Permission to Appeal) [2006] EWCA Civ 240; [2006] Env. L.R. 28
R. (on the application of Gentle) v Prime Minister (Application for Permission to Appeal) [2006] EWCA Civ 1078; (2006)
103(32) L.S.G. 21
Tweed v Parades Commission for Northern Ireland [2006] UKHL 53; [2007] 1 A.C. 650
R. (on the application of S) v Secretary of State for the Home Department [2007] EWCA Civ 546; [2007] Imm. A.R. 781
Jones v Powys Local Health Board [2008] EWHC 2562 (Admin)
R. (on the application of Edwards) v Environment Agency (No.2) [2008] UKHL 22; [2008] 1 W.L.R. 1587
E (A Child), Re [2008] UKHL 66; [2009] 1 A.C. 536
R. (on the application of Buglife: The Invertebrate Conservation Trust) v Thurrock Thames Gateway Development Corp [2008]
EWCA Civ 1209; [2009] C.P. Rep. 8
R. (on the application of Majed) v Camden LBC [2009] EWCA Civ 1029; [2010] J.P.L. 621
R. (on the application of Scotland) v Secretary of State for the Home Department [2009] EWHC 3005 (Admin)
R. (on the application of Enfield BC) v Secreatry of State for Health [2009] EWHC 743 (Admin)
Morgan v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107; [2009] C.P. Rep. 26
R. (on the application of McVey) v Secretary of State for Health [2010] EWHC 1225 (Admin); [2010] C.P. Rep. 38
R. (on the application of Corus UK Ltd (t/a Orb Eletrical Steels)) v Newport City Council [2010] EWHC 1279 (Admin); [2010]
24 E.G. 117 (C.S.)
R. (on the application of Shiner) v Revenue and Customs Commissioners [2010] EWCA Civ 558; [2010] B.T.C. 615
Trim v North Dorset DC [2010] EWCA Civ 1446; [2011] 1 W.L.R. 1901
R. (on the application of Garner) v Elmbridge BC [2010] EWCA Civ 1006; [2011] 3 All E.R. 418
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Coedbach Action Team Ltd v Secretary of State for Energy and Climate Change [2010] EWHC 2312 (Admin); [2011] 1 Costs
L.R. 70
R. (on the application of Luton BC) v Secretary of State for Education [2011] EWHC 217 (Admin); [2011] Eq. L.R. 481
BP v Secretary of State for the Home Department [2011] EWCA Civ 276; [2011] 1 W.L.R. 3187
R. (on the application of Albert Court Residents' Association) v Westminster City Council [2011] EWCA Civ 430; [2012]
P.T.S.R. 604
R. (on the application of Shoesmith) v Ofsted [2011] EWCA Civ 642; [2011] P.T.S.R. 1459
R. (on the application of Cart) v Upper Tribunal [2011] UKSC 28; [2012] 1 A.C. 663
Walton v Scottish Ministers [2012] UKSC 44; [2013] P.T.S.R. 51
R. (on the application of Evans) v Secretary of State for Communities and Local Government [2013] EWCA Civ 114; [2013]
J.P.L. 1027
R. (on the application of Patel) v General Medical Council [2013] EWCA Civ 327; [2013] 1 W.L.R. 2801
R. (on the application of Yousuf) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWHC 663 (Admin)
Richards v Worcestershire CC [2016] EWHC 1954 (Ch); [2016] Med. L.R. 534
R. (on the application of Hawke) v Secretary of State for Justice [2015] EWHC 4093 (Admin); [2016] A.C.D. 56
R. (on the application of W) v Secretary of State for the Home Department [2016] EWCA Civ 82; [2016] 1 W.L.R. 2793
R. (on the application of Hoyte) v Southwark LBC [2016] EWHC 1665 (Admin); [2016] H.L.R. 35
R. (on the application of Holmcroft Properties Ltd) v KPMG LLP [2016] EWHC 323 (Admin); [2016] 2 B.C.L.C. 545
R. (on the application of McIntyre) v Gentoo Group Ltd [2010] EWHC 5 (Admin)
Tasmina Ahmed-Sheikh Against Scottish Solicitors' Discipline Tribunal [2019] ScotCS CSOH 104
McCourt, R (On the Application Of) v The Parole Board for England And Wales & Ors [2020] EWHC 2320 (Admin)
L, M and P v Devon County Council [2021] EWCA Civ 358
TN (Vietnam), R. (on the application of) v Secretary of State for the Home Department & Anor (Rev1) [2021] UKSC 41
EA & Anor, R (On the Application Of) v The Chairman of the Manchester Arena Inquiry [2020] EWHC 2053 (Admin)
Good Law Project Ltd & Ors, R. ( On Application of) v Secretary of State for Health And Social Care [2021] EWHC 346 (Admin)
SS v The Secretary of State for the Home Department [2019] EWHC 1402 (Admin)
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Dolan & Ors, R (On the Application Of) v Secretary of State for Health and Social Care & Anor [2020] EWCA Civ 1605
Eba v Advocate General for Scotland (Scotland) [2011] UKSC 29
Cart v The Upper Tribunal [2011] UKSC 28
Browne v The Parole Board of England & Wales [2018] EWCA Civ 2024
Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 45 (Admin)
Mazhar v The Lord Chancellor [2019] EWCA Civ 1558
Hussain, R (On the Application Of) v Secretary of State for Health And Social Care [2022] EWHC 82 (Admin)
J, R (On the Application Of) v West Mercia Police & Anor [2022] EWHC 26 (Admin)
Craig v HM Advocate [2022] UKSC 6
Alpha Resource Management Ltd, Re Application for Judicial Review [2022] NICA 27
AB, R (On the Application Of) v A County Council & Anor [2022] EWHC 2707 (Admin)
Good Law Project Ltd, R. (On the Application Of) v The Secretary of State for Health and Social Care [2022] EWHC 2468 (TCC)
HM & Ors, R. (On the Application Of) [2022] EWHC 2729 (Admin)
AAA v Secretary of State for the Home Department (Rwanda) [2022] EWHC 3230 (Admin)
Reading
Key Texts
Woolf; Jowell; Le Sueur; Donnelly, DeSmith's Judicial Review 7th Ed. (Sweet and Maxwell)
Further Reading
"The Judge Over Your Shoulder" - Guidance to help you navigate the legal frameworks within which public bodies, particularly
Government, make decisions
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