JUDICIAL Review

Question 1

WHAT IS JUDICIAL REVIEW

Answer 1

Judicial review is the method by which the courts can review
and scrutinise the actions of the executive. The courts exercise a supervisory jurisdiction, which means that generally,
the courts are not concerned about the merits of a decision,
but rather its legality.

Question 2

There are essentially three main concerns regarding judicial
review

Answer 2

(1) Whether the
application for judicial review meets the requirements for
a successful application; (2) Whether one of the grounds
of judicial review has been established; and (3) What is the
appropriate remedy?

Question 3

REQUIREMENTS FOR JUDICIAL REVIEW

Answer 3

1. Claim Must Be Against a Public Body
2. Existence of a Contract
3. Has Correct Procedure Been Used?
4. Grounds for Refusal—Claimant’s Outcome Would Not Change Substantially
5. Time Limits—Promptly, But No Later than Three Months
6. Procedural Exclusivity
7. Are Issues Involved Reviewable?
8. Judicial Review Cannot Resolve Factual Disputes
9. Does Claimant Have Standing
10. Judicial Review Should Be Last Resort

Question 4

Claim Must Be Against a Public Body

Answer 4

Judicial review is available only against decisions made by ‘public bodies’. Usually, the matter is obvious. Examples of public bodies include:
*Secretaries of State and government departments;
*Local government, including councils; and
*Agencies set up by government by statute or under the royal prerogative.

Question 5

Existence of a Contract

Answer 5

If a contract exists between the parties, then the courts will determine that the matter is regulated by private and not
public law, and so should not be resolved by using judicial
review.

Question 6

Has Correct Procedure Been Used?

Answer 6

a.Judicial Review Pre-Action Protocol
b.Permission Stage

Question 7

Judicial Review Pre-Action Protocol

Answer 7

The judicial review pre-action protocol contains good prac-
tice that the parties should follow before starting litigation.
Before the action is commenced, the claimant should send
a letter to the potential defendant identifying the issues in
dispute. The defendant should respond within** 14 d**ays.

Question 8

Permission Stage

Answer 8

Judicial review has two stages.
1. The frst stage is the permis-
sion stage.
The claimant applies to the court for permission to continue the claim for judicial review. Usually, the permission stage is decided on the papers making the application and the defendant’s response, although the judge may choose to hold a hearing if the matter is more complex. If the claim is re-fused, the case proceeds no further. If permission is granted,
then the matter goes to the second stage—
2. a full hearing.

Question 9

Grounds for Refusal—Claimant’s Outcome Would Not Change Substantially

Answer 9

The court has discretion to refuse permission if they believe that, even if the judicial review claim is successful, it is highly likely that the outcome for the claimant would not be sub-stantially diferent.

Question 10

Time Limits—Promptly, But No Later than
Three Months

Answer 10

The claim must be brought promptly but no later than three
months after the issue arose. This could be three months
from when the decision being challenged was communicated to the claimant.

Question 11

Procedural Exclusivity

Answer 11

Judicial review is available only for public law issues. The
principle of procedural exclusivity means that public law is-
sues must be brought via judicial review rather than through
the ordinary procedures available in private law.
a.Matters of Mixed Public and Private Law
As an exception to the procedural exclusivity rule, cases
involving issues of both public law and private law can be
resolved in private law.

Question 12

Judicial Review Cannot Resolve Factual
Disputes

Answer 12

The judicial review procedure is not the appropriate place to
resolve disputes of facts. Consequently, if the matter involves factual rather than legal disputes, the matter is best resolved by the ordinary courts.
EXAMPLE
A council refuses to pay for building repairs on the basis
that the work was not completed to a satisfactory standard. The builder seeks a judicial review. The disputes relate
primarily to whether the repairs have been completed to
the necessary standard, which is a question of fact, and so
should be dealt with via the ordinary courts.

Question 13

Does Claimant Have Standing?

Answer 13

To bring a judicial review claim, the claimant is required to
have a** sufcient interest** in the issues the case raises. This
is referred to as having the standing to bring the claim. The
court reviews standing at the permission stage. If the claim-
ant clearly does not have a sufcient interest, the court will
reject the case.

Note: If the position regarding standing is not obvious, then
it should be considered at the full hearing, as this allows a
decision on standing to be made with a full knowledge of the legal and factual issues of the case.
a.Groups or Associations
Usually, a group of people who individually lack standing to
bring a claim do not acquire standing by forming an associ-
ation or group. However, more recently, if the association is
responsible, well resourced, has expertise, and/or there is
unlikely to be an alternative claimant, then the association is
likely to be deemed to have a sufcient interest.

Exam Tip
The Human Rights Act allows individuals to bring actions
against public authorities for a breach of their human
rights. As will be discussed, the test for standing to bring
such an action is** the victim test,** which is more limited
than the test discussed above. It is important to remem-
ber the diferent tests and when they apply.

Question 14

The main element of judicial review is the grounds for review:

Answer 14

illegality, procedural impropriety, unreasonableness, and a
breach of legitimate expectations. The claimant must estab-
lish one of these grounds for the claim to be successful.

Question 15

ILLEGALITY

Answer 15

illegality requires that the decision maker or public body understands correctly the law that regulates
their decision-making power and gives efect to it.

1. error of law
2. specific legal duty
3. unlawful delegation of power
4. irrelevant considerations
5. ultra vires

Question 16

Ultra Vires or Exceeding the Power Granted

Answer 16

The term ultra vires means ‘outside the powers’. This is used when a public authority acts contrary to the Act of Parliament that grants them the power to act. Whether an action is within or outside the scope of the power is a matter of statutory
interpretation.

Question 17

Failure to Complywith a Specifc Legal
Duty

Answer 17

Several statutes require that when public authorities act, they must comply with certain duties. One such example is the
Public Sector Equality Duty.

Question 18

Public Sector Equality Duty

Answer 18

The Public Sector Equality Duty requires that public authori-
ties take into account equality considerations when making
decisions. This includes the need to show ‘due regard’ to the following:
*Eliminating discrimination against those who have a protected characteristic;
*Advancing the equality of opportunity and fostering good
relations between those who share a protected characteristic and those who do not; and
*Removing or minimising disadvantages sufered by those
who share a protected characteristic.

The protected characteristics are age, disability, gender reas-signment, pregnancy, race, religion, sex, and sexual orienta-
tion. ‘Due regard’ does not mean a requirement to achieve
any particular result, but rather showing that it has been
considered as part of the decision-making process.

Question 19

Unlawful Delegation of Power

Answer 19

Power once delegated cannot then be delegated again
without being approved by the Act of Parliament granting the power in the frst place. (Of course, as explained above when discussing the Carltona doctrine, power delegated to a Sec-
retary of State can be exercised by civil servants within the
department without any formal authorisation by Parliament.)

Question 20

Irrelevant Considerations

Answer 20

When exercising a power, a public authority is required to
take into account only relevant considerations and not take
into account irrelevant considerations. What is a relevant
consideration depends on the Act granting the power to the public authority.

EXAMPLE
A local authority has the statutory power to manage land
for the “beneft, improvement, or development of the area”. The local authority voted to ban deer hunting on land they
owned. They did this in the belief that hunting was cruel.
The belief that deer hunting was cruel was an irrelevant
consideration. Further, there was no evidence that the local authority had considered whether banning hunting was for
the beneft or improvement of the land. This meant that the
local authority had also failed to take into account a relevant consideration.

Question 21

Errors of Law

Answer 21

Sometimes, statute may give a power to a public authority to make a decision and then attempt to shield such decisions
from judicial review, for example, by stating that “no decision made under this section shall be questioned in any court of
law”. Such clauses raise questions about the rule of law, as
it appears that decisions made cannot be challenged. The
courts have interpreted such attempts (often referred to as
‘ouster clauses’, as they attempt to oust the jurisdiction of
the court) very restrictively, as meaning that no ‘legally valid’ decision can be questioned before the court. However, the
courts remain open to determining whether the decision has been made lawfully.**

Exam Tip
Remember to be wary of ouster clauses on your exam.
If you see one, don’t automatically take the bait and
choose an answer that says the decision cannot be
challenged in court because of parliamentary sovereign-
ty. Instead, look for a choice that conveys the idea that
the courts can hear the case to determine whether the
action was legal

Question 22

PROCEDURAL IMPROPRIETY

Answer 22

Procedural impropriety is a ground of judicial review that
focuses on the way in which the decision has been made.
The decision maker may have to comply with procedural re-quirements outlined in statute and imposed by common law.

Question 23

grounds for pro-cedural impropriety

Answer 23

1. Mandatory/directory requirements
2. right to be heard
3. rule against bias
4. duty to consult
5. duty to give reasons

Question 24

Mandatory and Directory Requirements

Answer 24

Procedural requirements are classifed as mandatory or
directory.
1. A mandatory requirement is one that must be followed, and a failure to follow it will invalidate the decision.
2. A directory requirement, if not followed, will not necessarily invalidate a decision.
3.Whether a statutory requirementis mandatory or directory depends on the words used in legislation (for example, ‘must’ or ‘shall’), and whether anyone would be caused injustice or hardship if the requirement is
not followed.

Question 25

Procedural Requirements Imposed by
Common Law

Answer 25

a.Natural Justice—Right to Be Heard
b.Natural Justice—Rule Against Bias
c.Common Law Duty to Consult
d.Duty to Give Reasons

Question 26

Right to Be Heard

Answer 26

when a right is removed from a
person, the person must be given the opportunity to hear
the case against him and to respond

Question 27

Rule Against Bias

Answer 27

1. Actual Bias
   Actual bias is present when the decision maker has made
   a decision that is actually motivated by bias. Proving
   actual bias is usually impossible, since it requires peering
   into the decision maker’s mind.
2. Automatic Disqualifcation Rule
   If the decision maker has a fnancial interest, they are automatically disqualifed from hearing the case. If the decision maker has a non-fnancial interest which is so
   closely connected to issues raised by the decision in question, they are also automatically disqualifed
3. apparent bias
   Apparent bias is a broader category of bias that covers
   cases that do not fall into the previous two categories.
   The test is whether a “fair-minded and informed observ-
   er”, informed of the facts, would conclude that “there was a real possibility of bias”.

Question 28

Common Law Duty to Consult

Answer 28

1. There is** no general common law duty of consultatio**n—that
   is, no right of those who are likely to be afected by a deci-
   sion or policy to be asked by the government to comment
   on what the government proposes to do. The concern is that imposing such a duty would signifcantly slow down decision making within government.
2. However, a duty to consult would arise in the following situations:
   *When there is a statutory duty to consult;
   *When there has been a promise to consult;
   *When there has been an established practice of consul-
   tation; and
   *Exceptionally, when a failure to consult would lead to
   conspicuous unfairness.

Question 29

d.Duty to Give Reasons

Answer 29

There is also no general common law duty to give reasons. As with consultation, there is concern that if reasons were
required for every decision, then the process of government would be unacceptably slow. However:
*When the subject matter or interest is **important **(for
example, involving personal liberty), fairness requires
reasons; and
*If a decision appears to be aberrant, fairness may require
that reasons be given so that the person subject to the
decision can establish whether the decision can be chal-
lenged because something has gone wrong.

Question 30

LEGITIMATE EXPECTATIONS

Answer 30

1. A legitimate expectation arises when a public body has given rise to a belief that a power will be exercised in a certain
   manner. This can be due to either (1) an explicit promise or
   assurance; or (2) previous action by the public body.
2. The courts may require the public body to be bound by the
   legitimate expectation and to give efect to it.
3. The promise can be that certain people or a group would be consulted be-fore a decision is made, or it could take the form of a policy made available to the public.

An individual applied to the local authority to adopt a
child. The criteria to adopt a child was published and acces-
sible to the public. The local authority rejected the applica-
tion for adoption on the basis of diferent criteria which was not accessible to the public. The decision of the local au-
thority was unlawful and they were required to comply with
the published policy unless it conficted with the law or there was an overriding public interest preventing the published
policy from being applied.

Question 31

Substantive Legitimate Expectation

Answer 31

usually a legitimate expectation will be procedural, in the sense that a decision will be made in a certain manner. However, exceptionally, the courts are willing to give efect to a substantive legitimate expectation if the promise made by the public authority is** particularly important**
and has been made only to a small number of individuals.

EXAMPLE
A woman who was seriously injured in a car accident re-
quired residential care for the rest of her life. The health
authority placed her in a care home and assured her that this would be her home for life. Five years later, the health au-
thority wished to move the woman and close the care home.The court ruled that the health authority could not close the
care home. This promise was made to only a small number
of individuals, the consequences to the health authority were
likely to be only fnancial, and that did not outweigh the inter-est in upholding the promise made to the woman.

Question 32

UNREASONABLENESS AND IRRATIONALITY

Answer 32

‘Irrationality’ and ‘unreasonableness’ are used interchange-ably and mean the same thing. Essentially, the decision is considered to be so outrageous or absurd that it is outside the power of the decision maker and cannot be considered
lawful.

The test for unreasonableness is that** the decision must be
so outrageous in its defance of logic or of accepted mor-
al standards that no sensible person who applied their
mind to the question could have arrived at it.** This is a high threshold to meet.

Question 33

Proportionality for Human Rights

The problem with the unreasonableness test is that it impos-es a difcult threshold to meet and is insufciently rigorous
when dealing with questions involving the Human Rights Act 1998. Thus, a diferent standard, the ‘proportionality’ test, is
applied in this context. Proportionality is also used for funda-mental rights recognised by the common law, independently of the Human Rights Act.

Answer 33

it is sufcient to know that proportionality is a three-part test:
*Is the object of the policy sufciently important to justify
limiting a fundamental right;
*Are the measures designed to meet the legislative objec-
tive rationally connected to it; and
*Is the interference with the right no more than necessary
to accomplish the objective?

Question 34

REMEDIES

Answer 34

Quashing Order**: This renders the original decision void.
The position is now as if the decision were never made,
and a new decision will be required.
**Mandatory Order: This orders the defendant to act in a
particular manner.
Prohibiting Order**: This orders the defendant not to act in
a particular manner.
**Injunction: This is an order preventing a party from
acting in a certain manner or requiring that a party acts
according to the instructions of the court.
*Declaration: This declares that the decision or action complained of was unlawful.

Question 35

Remedies Are Always Discretionary

Answer 35

All the remedies set out above are discretionary, meaning
that even if the case for judicial review has been made
out, the courts still may refuse to grant a remedy. This may happen when third parties have relied on the original decision or if quashing the decision is not likely to make any practical diference.

EXAMPLE
The Chairman of the Monopolies and Mergers Commission made a decision not to investigate a proposed takeover bid. This decision was unlawful, as he should not have made the decision on his own, but rather the decision should have
been made with the other commissioners. No remedy was
granted because it was found highly likely that the same
decision would be reached by the commissioners, and third parties had already relied on the original decision.