13 - Judicial Review Flashcards
What is the principle of judicial review, and how does it function within the UK constitution?
Judicial review is the process by which the courts ensure that public bodies act within the powers granted to them and do not exceed or abuse those powers.
The court does not consider the merits of the decisions made by public bodies but focuses on whether decisions were made in the “right way”.
Judicial review ensures that public bodies exercise their powers correctly, without encroaching on the roles of the legislative or executive branches, as doing so would violate the separation of powers principle.
The court can intervene if a public body acts outside its powers or acts irrationally, unlawfully, or with procedural impropriety.
How does judicial review relate to the rule of law in the UK constitution?
The rule of law requires that government actions are carried out according to law and that power is exercised in a non-arbitrary and non-oppressive manner.
Judicial review upholds this principle by ensuring that government bodies act within their legal powers and by providing a means of redress for individuals affected by unlawful actions.
It ensures that statutory duties are properly followed and that discretion, where exercised, is done so fairly and in accordance with the law.
Judicial review ensures that the judiciary can hold the executive to account, ensuring justice and that the law applies equally to government as it does to individuals.
How does judicial review relate to the separation of powers in the UK constitution?
Separation of powers ensures that the three branches of government (executive, legislative, and judiciary) are distinct, with each having equal and separate authority.
In the UK, which lacks a formal written constitution, judicial review provides a check on the power of the executive, ensuring it does not overstep its bounds.
The judiciary ensures that the executive does not abuse the powers granted by Parliament. This forms a balance where:
- The legislature passes laws and grants powers to the executive.
- The executive exercises these powers within the boundaries set by the legislature.
- The judiciary reviews and ensures the executive adheres to these limits.
By focusing on process and procedure, judicial review preserves the separation of powers by ensuring the judiciary does not interfere with the merits of the executive’s decisions.
How does judicial review relate to parliamentary sovereignty in the UK constitution?
Parliamentary sovereignty means that Parliament can pass any law, and such law cannot be overridden or set aside by any other body, including the judiciary.
Judicial review respects parliamentary sovereignty by only reviewing the actions or decisions of public bodies made under secondary legislation, rather than primary legislation, which cannot be overturned by the courts.
The judiciary ensures that public bodies act within the powers granted to them by Parliament. In this way, judicial review supports parliamentary sovereignty by making sure public bodies act according to Parliament’s intentions.
Judicial review does not challenge primary legislation passed by Parliament but may review the application of secondary legislation or actions by public bodies.
What is the role of Parliament?
- Ministers are responsible to it (convention of ministerial responsibility).
- May create public bodies through legislation.
- Via primary legislation, may confer powers on government ministers and public bodies.
What is the role of Government?
- May create delegated legislation.
- Exercises statutory powers conferred by Parliament.
- Exercises powers under the royal prerogative.
What is the role of the Judiciary?
- Exercises powers of judicial review.
- Scrutinises via judicial review delegated legislation and the exercise of statutory/prerogative powers by the Government.
What are the main grounds for judicial review identified by Lord Diplock in CCSU v Minister for Civil Service [1984]?
Lord Diplock identified three primary grounds for judicial review in domestic law:
- Illegality
- Irrationality
- Procedural Impropriety
Illegality and irrationality are known as substantive grounds of review, focusing on the “substance” of the decision under review.
Procedural impropriety instead examines the procedure followed in making the decision.
Additional grounds for judicial review can also arise under European law, specifically:
- Breach of the ECHR
- Breach of retained EU law
What constitutes illegality as a ground for judicial review, and how might it occur?
Illegality as a ground for judicial review occurs when a public body acts beyond its powers (ultra vires) by either:
- Claiming powers that do not exist.
- Exceeding or abusing the powers it has been granted.
Actions beyond a public body’s powers may render a decision unlawful and subject to review under this ground.
What is the principle of legality in statutory interpretation?
Principle of legality:
Emerged in the 1990s as an approach to statutory interpretation.
Presumes that Parliament does not intend to infringe fundamental or constitutional rights and core principles of the rule of law unless it provides specific statutory authorisation.
Application in case law: R v Lord Chancellor, ex parte Witham [1997]:
- The claimant, who was unemployed, wanted to sue for defamation but was required to pay a £500 court fee.
- When he was denied a fee waiver, he sought judicial review of the Lord Chancellor’s decision to set such high fees.
- The court found that the Act did not authorise setting fees that would deny access to courts, a fundamental right. The statutory instrument was declared ultra vires (beyond the powers of) the Act.
What are the grounds for a claim of illegality?
Illegality as a ground for challenge includes:
- Acting without legal authority (ultra vires): Decision-maker exceeds statutory powers (ex p McCarthy and Stone).
- Error of law: Decision-maker misunderstands its powers (Anisminic).
- Jurisdictional error of fact: Mistake in facts needed to trigger power (ex p Khawaja).
- Policy: Policy formulation is permitted but must reflect statutory powers (British Oxygen).
- Fettering discretion by rigid policy: Decision-maker must remain open to new arguments (British Oxygen).
- Fettering discretion by external dictation: Decision-maker must not act under someone else’s influence (Lavender & Son).
- Improper or unauthorised purpose: Powers must be used for correct purposes (ILEA).
- Dual purpose: Powers must not serve unlawful purposes or materially influence decisions (ILEA).
- Considerations: Irrelevant considerations must not be taken into account, and relevant ones must not be ignored (Roberts v Hopwood; Padfield).
How does acting without legal authority fit into illegality as a ground for judicial review, and what case illustrates this?
Acting without legal authority occurs when a public authority acts without having the required legal powers.
Illustrated by R v Richmond-upon-Thames LBC, ex p McCarthy and Stone (Developments) Ltd [1992], where:
- McCarthy and Stone, a developer, was charged by Richmond LBC for informal planning advice.
- Richmond LBC argued that s 111 of the Local Government Act 1972 allowed them to impose this fee, as it permitted doing “anything incidental to the discharge” of their functions.
- McCarthy and Stone challenged this in the High Court, claiming Richmond LBC lacked the authority to levy such fees under s 111.
- The House of Lords ultimately sided with McCarthy and Stone, stating that Richmond LBC’s charges were ultra vires as they did not have the relevant power to impose them.
What is the rule against delegation in judicial review, and how was it confirmed (illegality)?
The rule against delegation states that decision-making powers granted by Parliament **cannot be further delegated or “sub-delegated” ** by the authority to whom they were given.
This principle was confirmed in Vine v National Dock Labour Board [1957], where:
- The Dock Workers (Regulation of Employment) Order 1947 empowered local dock labour boards to take disciplinary action.
- A committee appointed by the local dock labour board terminated the employment of dock worker Vine after complaints about lateness.
- The House of Lords held the dismissal void, ruling that the board’s duty to make disciplinary decisions could not be delegated to a committee.
Lord Somervell noted that many administrative duties, such as appointment, cannot be delegated, as these responsibilities are intended to be carried out by the appointed authority.
What are the two main exceptions to the rule against delegation in judicial review (illegality)?
The rule against delegation has two key exceptions:
Carltona Principle: Established in Carltona v Commissioners of Works [1943].
- Allows government ministers to sub-delegate decision-making powers to civil servants within their departments.
- Justification: Individual ministerial responsibility means ministers are accountable to Parliament for their departments, so it is expected they work through their civil servants even for significant decisions.
Local Government Act 1972, Section 101:
- Local authorities may delegate decision-making powers to committees, sub-committees, or individual officers.
- To delegate in this manner, a formal resolution must be made.
What is the principle of ‘fettering’ of discretion in judicial review, and how can it occur (illegality)?
Fettering of discretion occurs when a public body restricts its own discretion in ways Parliament did not intend, limiting its ability to make independent decisions.
Courts will not allow this limitation if Parliament has granted a discretionary power intended to be exercised freely.
Fettering of discretion can occur in two main ways:
- Acting under the dictation of another: Public authorities must make decisions independently and cannot allow another individual or body to dictate their decision-making.
- Applying a general policy as to the exercise of discretion in too strict a manner: While public bodies may use general policies for consistency, these policies should not be applied so rigidly as to prevent consideration of individual cases on their own merits.
How does the principle of ‘acting under the dictation of another’ relate to fettering of discretion (illegality)?
Under the principle of acting under the dictation of another, public authorities cannot allow their decisions to be dictated by another individual or body.
Example: In Lavender & Sons Ltd v Minister of Housing and Local Government [1970], the Minister of Housing denied planning permission based on the objection of the Minister of Agriculture, rather than on an independent assessment. The court found this to be an improper fettering of discretion, as the Minister of Housing failed to consider the application with an open mind and relied solely on the views of another minister.
What does it mean to apply a general policy too strictly in the context of fettering of discretion (illegality)?
Applying a general policy too strictly means that a public body uses its policy in a way that prevents individual discretion in decision-making.
Example: In British Oxygen v Minister of Technology [1971], the Ministry of Technology had a policy to award grants only for items costing at least £25. Although British Oxygen had invested in items costing £20 each, the Ministry was permitted to apply its policy, as long as it remained open to considering individual cases and new arguments. Lord Reid held that public authorities must not “shut their ears” to individual applications, allowing flexibility and consideration of unique circumstances.
What is the principle concerning the use of powers for an improper or unauthorised purpose by public authorities (illegality)?
Using powers for an improper or unauthorised purpose occurs when a public authority exercises its powers for reasons other than those intended by Parliament, rendering the action illegal.
Example: In Congreve v Home Office [1976], the Government intended to increase the TV licence fee from £12 to £18. Before the price change took effect, Congreve and others bought new licences at the lower price. The Home Office demanded they pay the extra cost or risk having their licences revoked.
The Court of Appeal ruled in favour of Congreve, finding that the Home Office acted without authority in revoking licences merely to raise revenue, as Parliament had not provided for such an action. This use of power was therefore deemed an improper purpose, illustrating a misuse of the authority granted by Parliament.
What is the principle regarding decisions made by public authorities with dual purposes (illegality)?
When a public authority makes a decision based on two purposes, one authorised and one unauthorised, the lawfulness of the decision depends on which purpose is primary or if the unauthorised purpose materially influenced the decision.
The decision will be lawful if the primary purpose is authorised, even if an unauthorised purpose exists, as long as the unauthorised purpose does not have a significant influence on the decision-making process.
What is the primary purpose test for decisions made by public authorities with dual purposes (illegality)?
When a public authority’s decision is based on dual purposes—one authorised and one unauthorised—the primary purpose test determines the validity of the decision.
- Established in Westminster Corporation v LNWR [1905], the primary purpose test states that a decision is lawful if the primary purpose aligns with the authorised use of power, even if there is a secondary unauthorised purpose.
- Example: In Westminster Corporation v LNWR, the House of Lords upheld the Westminster Corporation’s decision to build underground lavatories with access from both sides of the street, effectively creating a subway. Although the lavatories allowed easier trespass onto LNWR’s land, the primary purpose was to provide public conveniences, which was authorised under public health legislation.
This test focuses on whether the main purpose of the authority’s decision is consistent with the authorised power.
What is the material influence test for decisions made by public authorities with dual purposes (illegality)?
The material influence test assesses whether an unauthorised purpose materially influenced a decision made by a public authority, even if the decision includes an authorised purpose.
- Applied in R v Inner London Education Authority, ex p Westminster City Council [1986], this test evaluates if an unauthorised purpose was one of the purposes (if not the main one) influencing the decision.
- Example: In this case, the Inner London Education Authority (ILEA) used statutory powers to inform the public about rate-capping’s impact (an authorised purpose) but also aimed to persuade the public to support its views on rate-capping (an unauthorised purpose). The High Court ruled the decision unlawful because the unauthorised purpose materially influenced the campaign.
Although the material influence test was found to be consistent with the primary purpose test, they are not easy to reconcile, as the material influence test considers whether any unauthorised purpose significantly impacted the decision.
What are the principles related to public authorities taking into account irrelevant considerations or failing to consider relevant ones (illegality)?
A public authority must both disregard irrelevant considerations and take into account relevant considerations when exercising its powers.
- In Roberts v Hopwood [1925] AC 578, Poplar Borough Council exercised its power to set wages based on irrelevant considerations such as ‘socialist philanthropy’ and ‘feminist ambition’ while ignoring relevant considerations like market wages and the financial burden on ratepayers.
A public authority may be challenged if it fails to consider relevant factors or takes into account irrelevant factors, leading to an unlawful decision.
- In Padfield v Minister of Agriculture [1968] AC 997, the minister unlawfully refused to order an investigation based on the irrelevant consideration of potential political embarrassment.
Assume that the Public Transport Act 2016 (‘the Act’) (fictitious) empowers local authorities to give financial assistance in the form of grant aid to organisations involved in operating any form of public transport. The aim of the Act is to encourage the use of public transport to get people to work.
Greenborough District Council (GDC) has created a policy as to how it will deal with applications for grant aid. The policy provides, amongst other things, that applications from minibus operators should not be considered as there is no evidence that such vehicles are regularly used in travel to and from work, and exhaust emissions from minibuses are harmful to the environment.
Tariq has operated a minibus company for the past five years. He has recently secured contracts with two large employers in the area to provide transport for their workforce.
His application for a grant has been refused without consideration, on the basis of GDC’s policy.
Joanna is a taxi cab licence holder and has applied for a grant to expand her business into operating minibuses. Her application was also refused. The decision was made by GDC’s Transport Sub- Committee.
Consider whether Tariq and/ or Joanna can challenge the decisions of GDC in respect of their applications for grant aid
Tariq can argue that Greenborough District Council (GDC)’s policy on grant aid is inconsistent with the statute’s purpose by considering irrelevant factors, such as environmental issues (e.g. minibus exhaust emissions). The statute’s purpose is to promote public transport use for work, not environmental concerns, which could make the policy unlawful under Padfield v Minister of Agriculture.
If GDC’s primary purpose was lawful, such as preventing the use of private minibuses, then the incidental environmental objective may not invalidate the policy. However, if the environmental factor materially influenced the decision, Padfield’s material influence test would apply.
Fettering of discretion: Tariq could argue that GDC applied the policy too rigidly in his case, as he had contracts to transport workers, which should have been an exception (as per British Oxygen v Minister of Technology).
Wrongful delegation: Joanna may not be able to challenge the decision as the Transport Sub-Committee may have been lawfully delegated the decision-making power under the Local Government Act 1972.
The outcome suggests that Tariq has strong grounds for challenging the decision due to irrelevant considerations and fettering of discretion, while Joanna’s case is less likely to succeed.
What are errors of law and how do they impact judicial review (illegality)?
Errors of law that affect a decision are always amenable to judicial review.
Errors of law are a natural extension of the ultra vires doctrine. This is a broad concept, but typically involves the decision-maker making a mistake regarding a question of law, for example by misinterpreting the meaning of words in a legislative provision.
Example: In Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, the Foreign Compensation Commission (FCC) wrongly rejected Anisminic’s compensation claim based on an incorrect interpretation of the law. The House of Lords held that the FCC had made an error of law, and such errors make a decision outside of jurisdiction, thereby making it subject to judicial review.
Therefore, any error of law in a decision is a ground for judicial review because it invalidates the authority’s decision-making process.
What are the exceptions to the reviewability of errors of law in judicial review (illegality)?
The House of Lords in R v Lord President of the Privy Council, ex parte Page [1993] confirmed that errors of law are generally reviewable, with three key exceptions:
Error not decisive:
- Courts may refrain from reviewing an error of law if it is not decisive to the outcome. This means that the decision would have been the same without the error.
Special system of rules:
- Courts are often reluctant to intervene when a special system of rules is being interpreted, such as the statutes of an old university (as in ex parte Page).
- Courts also avoid reviewing errors of law by inferior courts when Parliament has designated a first-instance decision as final or when the error is by a superior court (e.g., High Court, as in Re Racal Communications Ltd [1981]).
Imprecise statutory language:
- Where the statute provides imprecise terms capable of multiple interpretations, the court may avoid quashing a decision based on a differing interpretation.
- Example: R v Monopolies Commission, ex parte South Yorkshire Transport Ltd [1993] — the term “substantial part of the United Kingdom” was considered broad, allowing room for various interpretations. Courts will intervene only if the interpretation is irrational, highlighting an overlap with the unreasonableness ground in judicial review.
How are errors of fact distinguished from errors of law in judicial review?
Errors of fact are generally less amenable to judicial review than errors of law because public authorities have expertise in factual matters.
Jurisdictional errors of fact, however, can be reviewed, as they concern fundamental issues affecting the authority’s power to act.
There are three types of error of fact which are susceptible to judicial review:
* Precedent Facts
* No evidence for a Fact
* Ignorance or Mistake of an Established Fact
Eample: R v Secretary of State for the Home Department, ex p Khawaja [1984] AC 74: The Home Secretary had made a jurisdictional error of fact by misjudging a key fact about Khera’s entry into the UK, which affected his authority to remove Khera. This was considered reviewable.
Non-jurisdictional errors of fact are generally not reviewable, as courts will defer to the authority’s factual determinations.
What is a ‘precedent fact’ as an error of fact in judicial review, and how does it impact the decision-maker’s jurisdiction (illegality)?
A precedent fact occurs when a decision-maker’s power to decide on a particular issue is dependent on a factual determination being correct:
- If the initial factual determination is incorrect, the decision-maker may lack jurisdiction to make the decision.
- Example: In White and Collins v Minister of Health [1939], the local authority’s power to compulsorily purchase land was limited to land that was not ‘parkland’. The court found it could review this decision because determining whether the land was parkland was essential to the local authority’s jurisdiction.
- In R v Secretary of State for the Home Department, ex parte Khawaja [1984], the Home Secretary’s power to detain someone as an ‘illegal entrant’ depended on the factual determination of that status, making it a reviewable precedent fact.
What is the ‘no evidence rule’ as an error of fact in judicial review, and when does it apply (illegality)?
The no evidence rule permits judicial review if a decision is based on a factual finding that is unsupported by any evidence:
- Courts may intervene to overturn decisions where there is an absence of evidence for the factual basis on which the decision relies.
- Example: In Coleen Properties v Minister of Health and Local Government [1971], a decision to compulsorily purchase a property was contested on the grounds that there was no evidence to justify it.
- The inspector’s report had stated it was unnecessary to acquire the property for satisfactory development, yet the decision went against this finding without any evidentiary support, leading the court to set aside the order.
How does ‘ignorance or mistake of an established fact’ serve as a ground for judicial review, and what is its significance (illegality)?
Ignorance or mistake of an established fact occurs when a factual misunderstanding affects the evaluation of a decision, potentially rendering it reviewable:
- Judicial review may be warranted if a decision is made based on an incorrect understanding of essential facts.
- Example: In Secretary of State for Education v Tameside MBC [1977], the Education Secretary halted the re-introduction of grammar schools, mistakenly believing this would cause educational chaos. The court found this decision was based on a factual misunderstanding about the effects of the reintroduction, and therefore the decision was reviewed for being based on an incorrect basis of fact.
What criteria for a mistaken fact to be reviewable under judicial review were established in E v SSHD (illegality)?
In E v Secretary of State for the Home Department [2004], the Court of Appeal clarified the conditions under which a mistaken fact could justify judicial review. Carnwath LJ set out a four-part test for establishing that a mistaken fact gave rise to unfairness:
1. There must be a mistake about an existing fact, which includes a mistake regarding the availability of evidence on a particular matter.
2. The fact or evidence must be established, meaning it is uncontentious and objectively verifiable.
3. The appellant (or their advisors) must not have been responsible for the mistake.
4. The mistake must have had a material impact on the tribunal’s reasoning, though it need not have been decisive.
What is irrationality in judicial review, and what level of unreasonableness is required to establish a successful challenge?
Irrationality in judicial review requires proof of a very high degree of unreasonableness.
This high threshold exists because of concerns that ruling on irrationality could lead to the courts judging the merits of a decision rather than whether it was made lawfully.
The courts have developed tests over time to assess irrationality, most notably through the Wednesbury principle, which set the foundation for understanding what constitutes irrationality.
What is the Wednesbury principle and how was it established (irrationality)?
The Wednesbury principle originates from the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223:
- In this case, the owners of a cinema were granted a licence to show films on Sundays, with the condition that no under-15s could be admitted. The owners challenged this condition as unreasonable.
- Lord Greene MR established that a decision could be deemed unreasonable if, after considering only relevant factors, the decision made was so unreasonable that no reasonable authority could have made it.
- The Court of Appeal upheld the authority’s decision, finding it was not manifestly unreasonable, but the case established the Wednesbury test for unreasonableness, which became the standard for evaluating irrationality for many years.
How did the test for irrationality evolve post-Wednesbury (irrationality)?
The Wednesbury test was further refined in CCSU v Minister for Civil Service [1984] UKHL 9:
- Lord Diplock explained that for a decision to be irrational, it must be so outrageous in its defiance of logic or accepted moral standards that no sensible person could have arrived at it.
- This development made the test for irrationality more stringent, emphasising extreme unreasonableness as the threshold for judicial review, and marking a shift from simply unreasonable decisions to those that are almost indefensible.
Can irrationality still be established under the Wednesbury principle, and what is an example of its application?
Yes, irrationality can still be established under the Wednesbury principle, though it is difficult to prove.
- An example is Wheeler v Leicester City Council [1985] AC 1054, where Leicester City Council banned a rugby club from using a council-owned recreation ground because three of its players participated in a rugby tour to apartheid-era South Africa.
- The House of Lords ruled the council’s decision was Wednesbury unreasonable, as the club had acted legally by allowing players to make their own decision about the tour. The council had misused its powers by punishing the club for something it had no legal right to penalise, demonstrating that irrationality can be found when an authority acts beyond its lawful powers.
What is the ‘intensity of review’ in judicial review, and how does it reflect the separation of powers (irrationality)?
Intensity of review refers to the degree of scrutiny courts apply to executive decisions in judicial review.
This concept is seen as a practical application of the separation of powers, highlighting judicial restraint or intervention based on the subject matter of the decision:
- For decisions affecting fundamental or human rights, courts apply a more intense review due to a recognised duty to protect rights.
- For broader policy decisions, courts apply less scrutiny to avoid interfering with policy questions reserved for democratically elected officials.
The approach is grounded in institutional competence, with courts seen as more experienced in assessing fundamental rights than in making broad government policy decisions.
How does the Wednesbury standard apply to decisions involving broad social and economic policy (irrationality)?
Courts show reluctance to review decisions on social and economic policy, generally applying a lower intensity of review.
In these areas, the original Wednesbury standard, with its high threshold, typically still applies.
The super-Wednesbury standard, coined in Nottinghamshire County Council v Secretary of State for the Environment, denotes a high degree of deference in political policy matters, meaning the court will only intervene in exceptional circumstances.
In this case, the court refused to intervene in the Environment Secretary’s guidance on public spending limits, viewing it as a matter of political judgement approved by Parliament.
How has proportionality developed as a standard of review in UK law, and when is it applied?
Proportionality requires that the means used to achieve a legitimate aim be no more restrictive than necessary.
This standard has become relevant in UK law due to EU law and European Convention on Human Rights (ECHR) principles.
Since the Human Rights Act 1998 (HRA) took effect in 2000, cases involving specific rights under the ECHR are reviewed with proportionality instead of Wednesbury unreasonableness.
However, judicial review cases not engaging ECHR rights still use the traditional Wednesbury test.
What is the debate surrounding proportionality as an independent ground for judicial review in the UK?
The orthodox view has been that proportionality is not an independent ground for judicial review outside ECHR or EU contexts, as affirmed in R v Secretary of State for the Home Department, ex parte Brind.
In Brind, the House of Lords declined to recognise proportionality as an independent ground, instead relying on Wednesbury.
However, Lord Cooke has criticised Wednesbury as retrogressive, arguing it only allows for intervention in cases of extreme unreasonableness, potentially limiting judicial review’s scope.
How does proportionality differ from Wednesbury unreasonableness in judicial review?
Proportionality generally offers greater intensity of review than Wednesbury unreasonableness, providing a different scope for judicial analysis.
- In R (Daly) v Secretary of State for the Home Department, Lord Steyn noted that proportionality could yield different outcomes from Wednesbury because of its higher intensity of scrutiny.
Example:
The applicants in ex parte Smith ultimately succeeded on Article 8 grounds in the European Court of Human Rights, despite their initial failure under the Wednesbury standard in domestic courts.
However, Pham v Secretary of State for the Home Department signalled a shift in the Supreme Court’s engagement with proportionality, marking the court’s most direct consideration of this standard to date.
- Although proportionality was discussed obiter, it reflects a movement away from viewing
proportionality as inherently overly interventionist.
- In Youssef v Secretary of State for Foreign and Commonwealth Affairs, Lord Carnwath suggested the need for an authoritative review by the Supreme Court on this topic to provide clearer guidance, as existing concepts like “anxious scrutiny” and “sliding scales” remain imprecise.
How does the intensity of review differ for decisions affecting fundamental rights (irrationality)?
Courts apply higher intensity review to decisions impacting fundamental rights, given the importance of these issues.
This approach, developed in the late 1980s and 1990s, led to the** sub-Wednesbury standard**, where decisions on rights are subjected to anxious scrutiny
.
Example: In Bugdaycay v Secretary of State for the Home Department, Lord Bridge stated that courts must apply rigorous examination where an administrative decision risks the applicant’s life, requiring the most anxious scrutiny.
In R v Ministry of Defence, ex parte Smith, the court applied heightened scrutiny to a policy dismissing individuals from the armed services based on sexuality.
- The court differentiated between high-level policy concerns (e.g., national security) and policies affecting individuals’ rights.
- Despite the court’s careful review, the applicants’ challenge was unsuccessful, as the policy was backed by Parliamentary debate and a significant body of opinion.
- This case illustrates the limits of judicial review under sub-Wednesbury even where the court applies intense scrutiny.
How was the test for irrationality applied in the case of R (DSD and others) v Parole Board [2018]?
The test for irrationality was applied in R (DSD and others) v Parole Board [2018] EWHC 694 (Admin), where the Parole Board’s decision to release John Worboys, the “Black Cab Rapist,” was challenged.
The court found that the decision to release Worboys was irrational because the Parole Board failed to further investigate the circumstances of his re-offending.
Worboys had admitted to only 12 sexual offences, but evidence suggested he was involved in over 80 offences, casting doubt on his credibility and reliability.
The Parole Board’s failure to consider this undermined the integrity of the parole decision, leading to the conclusion that the decision was irrational and violated basic fairness in the process.
Assume that, to combat traffic congestion in urban areas, Parliament passed the Parking Restrictions Act 2008 (‘the Act’) (fictitious), giving local authorities power to ban parking of cars ‘in such areas as they think f it’.
Herbert lives near a busy main road in the centre of Redton. He has received a letter from the ‘Transport Officer’ of Redton Borough Council stating that he is no longer allowed to park his car on his driveway.
Consider whether Herbert can challenge this decision on grounds of irrationality. Could any other ground(s) of challenge be relevant?
Irrationality:
Although there is a statutory power to ban parking of cars ‘in such areas as [Redton Borough Council] think[s] fit’, the aim of the legislation was to combat traffic congestion in urban areas. Herbert will argue that banning him from parking on his own driveway is not a rational exercise of that power.
Applying the Wednesbury principle from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, the court must ask itself if it is a decision that no reasonable local authority could have arrived at and, bearing in mind Lord Diplock’s terminology in CCSU v Minister for Civil Service [1984] UKHL 9, if it could be regarded as
‘outrageous in its defiance of logic’.
Other grounds of challenge?
1. Delegation. On the face of it, the exercise of the power by the officer breaches the
rule against delegation. However, s 101 of the Local Government Act 1972 allows
powers given to local authorities to be exercised by officers on their behalf.
2. Unauthorised purpose. As noted above, the power was conferred by Parliament to
combat traffic congestion. Preventing Herbert from parking on his driveway does not
seem to be part of that purpose (Congreve v Home Office [1976] 1 QB 629).
What are procedural grounds of judicial review, and how do they differ from substantive grounds?
Procedural grounds of judicial review focus on the procedure followed in making a decision rather than the decision itself.
- This means that a claim under procedural grounds challenges the steps leading to the decision, the circumstances surrounding the decision-making process, or whether the decision-maker followed proper procedure.
- Substantive grounds focus on the content or outcome of the decision, whereas procedural grounds concern fairness in the decision-making process itself.
Example: If a claimant says the tribunal made findings about their private life without allowing them to contest them, this would be a procedural challenge, as it addresses the process rather than the outcome.
Why should claimants be able to use procedural grounds of challenge in judicial review?
Claimants should be able to use procedural grounds of challenge to ensure that their case was handled fairly, regardless of whether the decision was right or wrong.
Fair procedures are essential to the legitimacy of a decision, as individuals must have confidence that decisions affecting them are made in a fair and just manner.
If a decision-making process breaches the procedures set out in the relevant statute or fails to comply with common law rules of natural justice, it can be deemed procedurally ultra vires and therefore invalid.
Example: If a claimant argues that a tribunal failed to explain why their appeal was refused, this challenge is procedural as it concerns whether the process followed was fair and transparent.
What are the rules of natural justice, and how do they relate to procedural fairness?
The rules of natural justice are common law principles, developed by the judiciary, that ensure fairness in decision-making processes.
These rules are widely accepted as part of administrative law despite controversy regarding their judicial origin, as they are seen as essential to upholding fairness and justice in administrative processes.
Two key rules of natural justice:
1. The rule against bias: Decision-makers must have no personal interest in the outcome of the decision. They should be impartial and free from any conflict of interest.
2. The right to a fair hearing: Individuals must have an opportunity to present their case, respond to evidence, and participate in the decision-making process.
In the case of Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255, Lord Russell stated that it is implied that Parliament does not authorise decisions that breach the rules of natural justice, and instead requires compliance with these principles.
What is the rule against bias in judicial review (procedural)?
The rule against bias ensures that a decision-maker should have no personal interest in the outcome of a case to preserve fairness and impartiality.
The application of the rule depends on whether the interest is direct or indirect.
- If the interest is direct, the court is typically obliged to quash the decision automatically, as bias is presumed.
- Indirect interests are evaluated on a case-by-case basis.
This rule is essential for maintaining public confidence in the judicial process and ensuring decisions are made impartially.
What constitutes a direct interest in the context of the rule against bias (procedural)?
A direct interest occurs when the decision-maker stands to gain financially or has a personal stake in the outcome.
- Example: In Dimes v Grand Junction Canal Proprietors (1852), the Lord Chancellor, Lord Cottenham, held significant shares in the company involved in the case. When this financial interest was discovered, the House of Lords ruled that he should have been disqualified from hearing the case due to his direct financial interest in the outcome.
- Example: In R v Bow Street Metropolitan Stipendiary Magistrate and Others, ex p Pinochet Ugarte (No 2) [2000], Lord Hoffmann had a non-pecuniary direct interest because he was an unpaid director of Amnesty International Charity Ltd (AICL), which had been allowed to intervene in the appeal. Despite no financial gain, his connection to Amnesty International led to concerns about his impartiality, and the House of Lords ruled that his involvement was enough to disqualify him from sitting on the panel.
A direct interest automatically presumes bias, and the decision is typically quashed.
What is the principle of indirect interests in the context of the rule against bias (procedural)?
Indirect interests occur when the decision-maker has a personal or financial connection to a party involved in the case, but the interest does not directly affect them.
Unlike direct interests, the court does not automatically quash the decision; instead, it investigates the relationship between the indirect interest and the decision.
The key test for indirect bias is whether a fair-minded and impartial observer would conclude there is a real possibility of bias.
The court does not consider whether the decision was in fact influenced by bias, but focuses on how the situation appears to an impartial observer.
Examples:
- In Porter v Magill [2002], Dame Shirley Porter, a council leader, was investigated by auditor Magill for alleged abuse of power during a local election. Magill called a press conference before the investigation ended, stating that the initial findings strongly suggested Porter would be found guilty. Dame Shirley argued this put pressure on Magill to ensure he reached the conclusion he had indicated. The House of Lords agreed that calling the press conference was unwise, but did not find evidence of bias. The case established the real possibility of bias test for indirect interests.
- In R v Pintori [2007], the appellant appealed a drug conviction on the grounds that one of the jurors had a personal connection with police officers involved in the case. The Court of Appeal found that the fair-minded observer would have concluded there was a real possibility of bias, as the juror’s connection to the police might have influenced the jury’s decision. The appeal was allowed on this basis.
