The Emergence of Judicial Review and
the Control of Public Power
Introduction
The main aim of this lecture is to explain the
constitutional significance of judicial review.
Begin by exploring the relationship between judicial
review Dicey’s concept of the rule of law.
Explain the distinction between judicial review and
appeal.
Trace the emergence of judicial review as a
remedy with reference to procedural reform.
Discuss some of the grounds of review against a
background of public law decision-making.
Critical assessment of the role of judicial oversight.
RULE OF LAW
Dicey’s second major principle which qualifies the
unlimited nature of parliamentary sovereignty: ’a bridle
for Leviathan’.
‘The rule of law is both a legal rule and a political ideal
or principle of governance comprising values that
should be reflected in the legal system and should be
respected by those concerned in the making,
development and enforcement of the law’ (Turpin and
Tomkins). In other words it is the essential part of
‘constitutionalism’.
Courts exercise a control function over Parliament and
government e.g. judicial review.
Dicey's view
The ordinary courts, as opposed to specialist
administrative courts as in France, play an ever more
important role in controlling sub-ordinate decisionmakers such as justices of the peace and local
officials. Public and private power for Dicey should be
equally subject to the ordinary law.
Origins
'The technique by which the courts have extended
the judicial control of powers is that of stretching the
doctrine of ultra vires... They can make the doctrine
mean almost anything they wish by finding implied
limitations in Acts of Parliament ...' (Wade and
Forsyth).
From a historical standpoint the Court of King's
Bench had established the power to quash the
decisions of inferior tribunals for error on the face of
the record. This was achieved by the classic
remedies writs of certiorari (quashing order) and
prohibition (prohibiting order).
The emergence of judicial review a
common law remedy
Ridge v Baldwin [1964] - important aspects of
administrative law developed by the judges e.g.
principles of natural justice.
Consistent with the notion that the common law is
infused with concepts of impartiality (e.g. Trevor
Allen).
Chief Constable of Brighton dismissed without a
hearing.
Negative liberty - citizens are free to do anything
which does not break a specific law - feature of
unwritten constitution.
• Cooper v Wandsworth Board of Works (1863) 14 CB
(NS) 180 '...the justice of the common law will supply
the omission of the legislature'.
• Legitimate expectation re procedural fairness
reinforced by Article 6 ECHR
What is judicial review?
Judicial review is not an appellate process.
If successful, appeals can change decisions e.g.
courts and tribunals
JR provides no guarantee of final outcome
JR is about the legality of decision itself. Is the
authority acting within its powers?
Quashing order which is the classic remedy will refer
the matter back to the decision maker who will be
required to take the decision lawfully next time.
The meaning of ultra vires
Ultra vires - beyond the powers - the courts are called
in to act because a public body is acting unlawfully by
exceeding its powers.
In other words exercising a control function under the
rule of law
Statutory powers - discretionary powers
Prerogative power - powers formerly exercised by
King/Queen now by ministers e.g. mercy, negotiating
treaties, declaring war
Procedural defect in the conduct of public body.
Special remedies
Quashing Order/Certiorari has the effect of
quashing an ultra vires decision.If the remedy is
granted an ultra vires decision will be rendered VOID.
Prohibiting Order /Prohibition - serves to prohibit
the authority from acting unlawfully in the future.
Mandatory Order/Mandamus - instructs (mandates)
an authority to do its statutory duty, which may be to
exercise its statutory discretion lawfully in the future
General remedies
Declaration - not imposed by the court but
states what the legal position is between the
parties. Often sufficient for public bodies who
are not prepared to act unlawfully.
Injunction (equitable remedy) that usually
prevents a body from acting.
Damages only available in limited
circumstances in public law.
What is the constitutional basis of JR
• Parliament has only conferred a legal decision
making power on the basis that it was to be exercised
on the correct legal basis. This view looks to
legislative intent (Forsyth).
• Competing view - the doctrine is not based on
legislative intent but becomes a vehicle through
which the common law courts develop control over
the administration - because the decision is
erroneous under the general law. This obviously
gives far greater scope for judicial invention (Craig).
Public Private Law Divide
There has been an increased interface between
public and private law as the private sector has
become progressively more involved in the process
of administration.
Given this trend the scope for the courts to intervene
becomes a matter of enormous importance.
Procedural reform
Modern two-stage procedure introduce and enacted
under the Supreme Court Act 1981.
Lord Diplock then confirmed the 'exclusivity principle'
in O'Reilly v Mackman [1982]. Public law decisions
could now only be challenged by way of judicial
review. But how to distinguish the public from the
private?
Key decision - R v Panel on Takeovers and Mergers,
ex parte Datafin [1987] - not only source of power
but the nature of the functions
Human Rights Act, “public functions”, and the
reach of judicial review
R (on the application of Heather) v Leonard Cheshire
Foundation [2002] 2 All ER 936 - patient in a nursing
home run by a private charity but paid for by her local
authority who wanted to contest its closure on the
basis of interference with Article 8 right to privacy.
Poplar Housing v Donoghue ([2002] QB 48
YL v Birmingham City Council [2007] UKHL 27
LOCUS STANDI
Rules of standing: RSC Order 53 r.3(7) that the court
shall not grant leave to apply for JR unless the
applicant has a 'sufficient interest' in the matter to
which the application relates
IRC v National Federation of Self-Employed and
Small Businesses Ltd [1981]
[Fleet Street Casuals (or Mickey Mouse) case]
Challenge to a settlement with printers reached by the
inland revenue by a group with no direct interest in
the matter.
Group interests: R v HM Inspectorate of Pollution, ex
parte Greenpeace [1994]
Wednesbury unreasonableness
Associated Provincial Picture Houses v
Wednesbury Corporation [1948]
Sunday Entertainments Act 1932 legalised Sunday opening of
cinema under conditions that ‘the authority think fit to impose’.
WC inserted condition that no children under 15 admitted
whether or not with adult. Objectionable to cinema owners.
Challenge failed as the condition fell within the discretionary
power of the public authority.
The Wednesbury decision has come to be regarded as a highly
significant case which set a very high threshold for judicial
review.
Lord Greene MR was in no doubt that the court must not
substitute itself for the authority and become a Court of Appeal.
Irrationality/Wednesbury unreasonable
A decision so unreasonable that no reasonable
authority could take it.
E.g. red haired teacher dismissed for no other reason
than the colour of her hair, illustrates how absurd a
decision needs to be to reach this standard.
Roberts v Hopwood [1925] AC 578 model employer
decided to pay women the same pay rates as men,
ignoring market conditions.
Further issues relating to procedure
• Limiting the jurisdiction of the courts Anisminic v
Foreign Compensation Commission [1969] 2 WLR
163 - ouster clauses
• JR is a two stage procedure - permission followed by
hearing
• Around 5500 to 7000 claims per year, only fraction go
to full hearing
• Remedy of last resort, all other avenues exhausted
• Strict time limit of three months unless an exceptional
case.
GCHQ case
Main grounds set out
Judicial activism of the 1960s, reform of procedure and new
judicial approach
Council for Civil Service Unions v Minister for the Civil
Service [1985] challenged the banning of unions at GCHQ by
the government, hence GCHQ case:
Lord Diplock set out the grounds as follows:
1. Illegality with many sub-grounds
2. Irrationality also termed Wednesbury unreasonableness
3. Procedural impropriety/natural justice
Proportionality as a ground was anticipated - it now applies
under HRA.
Exercise of statutory powers
In exercising discretion the decision-maker must
have regard to the statutory purpose but also in
reaching their decision it must be clear that relevant
considerations have been taken into account and that
irrelevant considerations have been ignored.
There have been many successful challenges where
it has been established that the issues have not been
balanced by the decision-maker.
Illegality: purpose and relevance
Padfield v Ministry of Agriculture [1968] AC 997
Limits on discretion even if it appears wide:
'If the minister in any such case so directs’
Note that with JR there is no guarantee of final
outcome, only that the authority will act lawfully.
Bromley LBC v GLC [1983] 1 AC 768 - famous 'Fares
Fair' case, implementation of manifesto promise to
lower fares was in breach of fiduciary duty to rate
payers.
Wheeler v Leicester CC [1985] 2 All ER 1106
unlawful to prevent a rugby club use a council
training ground because of objection to participation
by some of its players in a tour to South Africa
The doctrine of legitimate expectation
Procedural legitimate expectations have long been recognised
under the common law but the principle has been extended. R v
North & East Devon Health Authority ex p Coughlan [1999] The
Times July 20; [2001] QB 213
Sedley LJ :
(1) reasonable weight (on conventional grounds of
reasonableness) must be given to promise when changing its
mind;
(2) the promise gives rise to a legitimate expectation to be
consulted before the decision is made (court decides this on the
basis of reasonable fairness);
(3) if the promise gives rise to a substantive benefit (as in the
instant case) the court will consider whether resiling from the
promise is sufficiently unfair to amount to an abuse of power.
Judicial Review and the Human Rights
Act
In the absence of a codified constitution containing a
formal Bill of Rights there was a gradual erosion of
individual rights over the period 1980-1997. The
enactment of a piece of legislation incorporating the
ECHR was one approach to securing rights more
effectively. Prior to the HRA UK was a member of the
ECHR but any alleged breach of a convention right
had to be taken to Luxembourg.
How the act works
* Positive duty placed on public bodies under Section 6 as it is
unlawful for them to act in a way which is incompatible with a
convention right: central government, including executive
agencies, local government, the police, immigration officers,
prisons, courts and tribunals, companies exercising functions
which would otherwise be exercised by government.
* Courts now required under section 2 to take into account
ECHR jurisprudence but not directly bound by it.
* New power under section 3 to interpret legislation under so
that it is given effect in a way that is compatible Convention
rights. This is a very strong interpretative obligation which can
have major impact.
Section 4 declaration of incompatibility
The courts not given the power to invalidate primary legislation.
If they are unable to interpret legislation so that it is convention
compatible - a declaration of incompatibility can be issued.
The legislation remains in force but Parliament is able to adopt a
special fast track procedure to amend the offending measure.
Parliament is not legally required to amend legislation.
If there was no response to the declaration of incompatibility a
claimant can still take her case to Strasbourg for resolution.
Belmarsh Detainees case good example.
Proportionality and the HRA
R v Secretary of State for the Home Department,
ex parte Daly [2001] 3 All ER 433
Challenge to a policy that allowed prison authorities
to search cells while prisoner absent giving the prison
authorites access to confidential legal
correspondence. Policy deemed unlawful as it
breached legal professional privilege. Lord Steyn
commented that the intensity of review is greater
under proportionality.
The proportionality test
The reviewing court is required to assess the balance
the decision-maker has struck, not merely whether it
is within range of rational or reasonable decisions
(Lord Steyn). The test asks if:
(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;
(c) the means are no more than is required to
accomplish the objective (i.e. proportional).
A & Others v Home Secretary [2004]
(the “Belmarsh detainees” case)
The indefinite detention under the Anti-Terrorism Crime and Security
Act 2001 without trial of a group of non British nationals suspected of
being terrorists was held to be unlawful
The provision to detain contrary to ECHR Art. 5 required a derogation
under Art. 15.
The derogation only valid if strictly required for a public emergency
threatening the life of the nation.
On this issue of derogation wide margin of appreciation given by
majority to the government - held this was a political issue and only
government has access to the security information upon which such a
judgment could be made. Lord Hoffman dissented ‘no threat to the life
of the nation’.
Was the legislation compatible with the ECHR?
Article 15 requires that any measures … in derogation of its
obligations under the Convention should not go beyond what is
‘strictly required by the exigencies of the situation’
test of the proportionality of responses to actions and to threats
of actions;
threat presented by suspected terrorists could have been
countered in much less intrusive ways
Further the measures were discriminatory against foreign
nationals and thus contrary to Article 14 of the ECHR
‘The case turned on the inability of the Attorney General to
defend the national/non national distinction’ Prof. Gearty
R (on the application of Rogers) v Swindon
NHS Primary Care Trust and Sec of State for
Health [2006]
Woman suffering from breast cancer was refused
treatment by a new drug Herceptin. In other parts of
the country this drug was available on the NHS.
Challenged under HRA as a threat to her right to life
and as unlawful discrimination.
Court of Appeal upheld her claim finding that the
health authority lacked a rational policy for allocating
health care.
Resource allocation issues
“ ….‘judges look at the rights of individuals; health
managers have to balance the rights of many
different patients’. Such opinions … reflect persistent
anxieties as to the constitutional and institutional
competence of the courts to adjudicate upon
polycentric questions, such as those which arise in
the context of health care rationing, and are rooted in
an overly narrow conception of public law’s function
as a vehicle for the preservation of individual
autonomy against the collective goals pursued by the
organs of the state” (K. Syrett p.669).
HRA Cases
• Begum case – whether a girl practising a particular
kind of Islam can insist on wearing her own type of
dress as school uniform.
• Pro-Life Alliance case – whether the BBC could ban
an election broadcast which contained offensive
material.
• Shayler case – whether a former member of the
security services could claim that being prevented
under the official secrets act from speaking out was a
breach of his right to free speech.
Examples of JR cases
• challenge to a local authority ban on stag hunting ex parte
Fewings [1994]
• whether a woman could use her late husband’s sperm ex parte
Blood [1997]
• constitutional right to have access to the courts ex parte
Whitam [1998]
• procedure for dealing with bids for the national lottery had been
fairly conducted by the regulator, OFLOT: see R v The National
Lottery Commission, ex parte Camelot Group PLC (2000)
LAWTEL 21/9/2000; [2001] EMLR 43
• challenge to a health authority which refused to prescribe the
drug herceptin to a woman suffering from breast cancer: R (on
the application of Rogers) v Swindon NHS Primary Care
Trust and Sec of State for Health [2006]
• Luton BC, Notts CC & Ors v SS for Education [2011] EWHC
217 – Decision to cancel the BSF school building programme
without consultation was found to be unlawful and quashed.
•
Conclusion
• Sophisticated grounds of JR have been established
under the common law.
• These grounds have serve to constrain the
discretionary powers of public authorities.
• This, in turn, raises important questions relating to
placing limits on judicial intervention. The
Wednesdbury test imposed a high threshold, keeping
the courts from being drawn into the political process.
• The HRA and proportionality has tended to increase
the profile of the judicial role in human rights cases.
• In consequence, the courts are increasingly drawn
into controversial debates, including deciding
resource allocation issues.