Judicial Review Principles and Procedures

The relationship between constitutional principles and the procedural requirements of judicial review, the traditional grounds of challenge and remedies available

Question

Critically analyse the relationship between constitutional principles and the procedural requirements of judicial review, the traditional grounds of challenge and remedies available. Illustrate with example and cases.

Introduction

This essay will critically analyse the relationship between constitutional principles and the procedural requirements of judicial review, the traditional grounds of challenge and remedies available.

Judicial review is the method by which the discretionary powers given by Parliament to the executive are overseen by the Judiciary. This has the effect of preserving Parliament as the supreme law-maker, thus underpinning the doctrine of Parliamentary supremacy, which is protected as a constitutional fact. However, it is assumed that absolute Parliamentary supremacy will justify an interference by the judges, which some argue is unconstitutional.^[1] Yet, the courts’ supervision of public authorities is justified in favour of the prevention of administrative error and abuse,^[2] and limits its review to questions of procedure rather than substance.^[3]

Further, Parliamentary supremacy is not created by statute, but ‘rests on judicial interpretation of the unwritten constitution: a higher-order law confers it, and must of necessity limit it’.^[4]

The doctrine of separation of powers aims at introducing checks and balances of power, and divides the State into three separate bodies with distinctive function: the legislature makes law, the executive actions the law and the judiciary upholds the law. However, when exercising their power of review, the courts are not concerned with the way a decision is reached by the executive, but rather with its ‘merits’.^[5] Neither is judicial review an appeal; it is concerned with the decision making process and not the decision.^[6]

The judiciary also exercises control over inferior courts and administrative bodies using their inherent supervisory jurisdiction to ensure that their decision making powers are used in a fair and reasonable manner, and that they act only if they have legal authority to do so,^[7] thereby upholding the rule of law and safeguarding individuals from arbitrary acts of the State.

The need for administrative expediency and the principle of natural justice are also underpinned by judicial review. Equally, individuals who had been adversely affected by the use of prerogative powers exercised by the government on behalf of the Monarch by virtue of constitutional conventions may also rely on judicial review.^[8]

Driven by the doctrine of separation of powers, Lord Roskill^[9] identified powers which would not be subject to judicial review due to the fact that they required an in depth political knowledge, which was the exclusive prerogative of the executive. Further, Parliament is allowed to adopt Royal Prerogative powers for itself.^[10]

Procedural requirements of judicial review

Challenges made via judicial review are limited to decisions made by public bodies^[11] on matters of public law. For example, a local authority making a decision on local housing using the powers granted to it by an Act of Parliament. This means that issues between private parties are excluded from JR; this serves the aim of ensuring that administrative courts does not operate beyond its remit. Yet, by virtue of the fact that ‘public law is about the restrain of abuses of power,^[12] and protecting the citizen from the arbitrarily use of power, judicial review is extended to certain non-governmental corporations performing a function which can be classified as public.

To preserve administrative expediency and the efficiency and effectiveness of government, and in order ‘to prevent abuse by busybodies, cranks and other mischief makers . . .’^[13] those wishing to rely on Judicial Review to challenge decisions of public bodies must have standing, that is sufficient interest in the matter.^[14] Further, the party challenging the decision must act promptly, without undue delay and within a maximum of three months of the decision being made.^[15]

Further limits to the availability of judicial review are introduced by Parliament itself, which may attempt to limit or exclude the effect of judicial review by drafting clauses within the statute ousting the power of the courts to challenge decisions made by public bodies. Further, time limits are imposed on judicial reviews by means of including a partial ouster clause

This is a clear attempt by Parliament, the majority of which is represented by the executive, to stop the judiciary from exercising their inherent jurisdiction to uphold the rule of Law, and is in breach of the separation of powers. So in order to allow the courts to preserve their power and safeguard the citizens from potential unfair decisions, the courts decided that these clauses have no power to oust their inherent jurisdiction to review void decisions.^[16] The courts therefore, will ignore the clause until the decision has been assessed; only then it can be applied to valid decisions. And the operation of partial ouster clauses will be valid only on grounds of administrative expediency.^[17]

Although ouster clauses have the effect of excluding judicial review, the approach of the courts to them, that is to fail to give effect to them arguably ‘amounts to outright disobedience to Parliament’.^[18] However, it is hard to accept that Parliament may want to retain the right to arbitrary powers for unfair and irrational purposes.^[19]

Grounds of challenge

The traditional grounds of review are ‘owe neither their existence nor their acceptance to the will of the legislature’, but are a ‘judicial creations’^[20] and were classified by Lord Diplock^[21] under three heads: ‘illegality’ refers to ways in which a public body may potentially act without legal authority; ‘irrationality’ recognises that public bodies may sometimes make illogical decisions, and ‘procedural impropriety’, which main principle is natural justice, concerned with procedures followed by public bodies when using their powers.

Illegality

By virtue of its inherent powers, the judiciary creates law and develops legal principles, yet their only aim is to support Parliament,^[22] which is the supreme law making power in the UK. The role of the judiciary is to follow these laws, although should Parliament attempt to undermine fundamental principles and breach the Rule of Law, the judiciary is able to challenge Parliament.^[23]

Error of law and jurisdictional errors of fact:

Sometimes, an error of fact may lead a public body to exceed its powers.^[24] One of the roles of the judiciary is to ensure that the executive understands the nature of its discretionary power bestowed by statute. To that effect, these grounds within the ‘illegality’ head, are evidence that the rule of law, parliamentary supremacy and separation of powers must be upheld by a legal authority.

Delegation:

Discretionary powers are delegated to members of the executive, such as Ministers, by Parliament to be used exclusively by them. Nevertheless, to ensure administrative expediency, Ministers may delegate powers to other civil servants to decide their behalf. Yet, the Minister is ultimately responsible for their decisions, in accordance with the convention of ministerial responsibility.^[25] Further, Council Officers can decide on behalf of local authorities, and will be ultimately responsible for these decisions.^[26]

Policy, purpose and considerations:

Administrative expediency also needs Parliament to allow the executive to formulate policy in order to achieve the objective of the discretionary powers granted to it, applying these powers in a flexible manner and taking into consideration individual circumstances, yet without distorting Parliament’s intention.

When by means of the Royal prerogative or by Parliament, powers are granted to a public body, these powers must be used for the purpose they are intended to be used, purpose which will indicate what must be considered and what can be omitted when making a decision^[27] Failure to make use of these powers reasonably, would mean that the discretion of the executive is, in fact unrestricted, which is clearly not what Parliament intended. This is why a challenge on purpose and considerations usually go hand in hand.

Fettering discretion:

Administrative expediency also requires that the way decisions be made must be standardised and consistent. However, this ought not to exclude new evidence which, if taking into consideration by the public before making the decision, may affect the outcome.

Although statutory powers must be used solely for the purposes intended, there may be circumstances where more issues may be resolved by using the same power. Yet Parliament must have intended the dominant purpose^[28] or, the use of the power must no be significantly influenced by the use of the unauthorised purpose.^[29]

Irrationality

When using their powers, the executive is expected by both Parliament and the courts to act in a rational manner.^[30] It is up to the courts to determine whether any decision has been taken against this principle, yet by doing so the courts will avoid encroaching the power of the executive to make decisions, thereby requiring a high standard of irrationality before intervening in it.

Procedural impropriety:

By virtue of their inherent supervisory jurisdiction, and justified under the protection of the rule of law, the judiciary has developed a body of law called natural justice to ensure fairness when public bodies use their powers. This is one of the aspects of procedural impropriety; the second aspect relates to statutory procedural requirements.

Procedural ultra vires:

Where Parliament has laid down a statutory procedure to be followed, its intentions in the face of the breach must be established by the court;^[31] the harsher the impact of the decision on the party concerned, the stricter the procedure should be followed^[32] and the higher the standard of hearing should be before a decision is made.^[33] Such hearing should be fair in all circumstances, in type and scope^[34] and the party in question must be given the chance to challenge any evidence against him and to fully state their case.^[35]

Legitimate expectation:

If the decision-maker does or says anything which creates an expectation on the concerned party, be it a substantive legitimate expectation such as a benefit, or a procedural expectation such as a pre-decision consultation, the courts state that it would be unfair for the decision-maker to deny on the promise, thus a breach of a legitimate expectation will nullify a decision.

Bias:

The idea that a man must not judge in his own case is pivotal to the principle of natural justice, which is one of the main features of judicial review and Article 6 of the ECHR. Justice must not only be done, but must also be seen to be done,^[36] by means of a fair hearing and an independent tribunal.^[37]

Human Rights:

The European Convention on Human Rights, incorporated by Parliament into domestic law by virtue of the Human Rights Act 1989, compels public authorities including the Courts, to observe its provisions when making decisions.^[38] The right to a fair trial is also protected by the Act,^[39] and it is invoked when a public authority decides the way private rights ought to be exercised by individuals.^[40]

Courts are required to take the European Convention on Human Rights jurisprudence into consideration as far as it is possible, but they are not obliged to follow it. However, in cases where the public interest is greater than the rights of an individual, and as long as these rights are qualified^[41], the State is allowed to legally interfere provided they can evidence a legitimate aim and have the legal authority to do so, thereby upholding the rule of law.^[42] Allen states that the enactment of the Human Rights Act included respect of the European Convention rights, which now form part of domestic law and constitutional values, contributing to common law and interpretation of statute, and enabling the application of a unified concept of justice.^[43]

Remedies available in judicial review

A challenge under Judicial review is, effectively, a challenge by the Queen to the executive on behalf of the applicant. The Administrative Court uses prerogative remedies derived from the residue of the powers of the absolute Monarch, such as the Royal Prerogative. The courts are, in fact, ‘Her Majesty’s’ courts exercising prerogative judicial remedies on her behalf. Judicial review remedies are discretionary rather than being a right. This is because subjecting the executive to potential claims for damages would inhibit its ability to act.

The prerogative remedies include a quashing order, which directs a public body to reconsider a decision made.^[44] A prohibiting order refrains a public body acting illegally,^[45] and a mandatory order is issued to order a public body to perform its duties.

Private law remedies are also available in judicial review. These include a declaration by the courts of the legal position of the parties, and can be used, for example, to correct inaccurate statements of law,^[46] or to declare statute incompatible with European Law or the European Convention of Human Rights under the Human Rights Act 1998, as the courts do not have the power to overrule Acts of Parliament. The courts can also issue injunctions to restrain a body from acting illegally, or to prevent a public body executing a decision before a final hearing on the case. And only to the extent that they could have also been awarded in civil proceedings,^[47] the courts can award damages to compensate an individual. And when the decision is within the ambit of Human Rights, the courts can award compensation^[48] if a public authority has unlawfully breached a convention right.^[49]

In conclusion, constitutional principles are the foundations upon which the procedural requirements, the traditional grounds of challenge and the remedies of judicial review have been developed. Clearly, constitutional principles lie at the very core of the traditional judicial review principles, and are underpinned by its very nature. Judicial review has been developed to guard individual rights, including those incorporated by the Human Rights Act 1998, protecting individuals against any arbitrary action and any potential act of tyranny that would be created by the abuse of executive power.

Footnotes

^[1] Christopher Forsyth, ‘Heat and Light: A Plea for Reconciliation’, in Forsyth (ed), Judicial Review and the Constitution (2000), p 394.

^[2] Paul Craig, Ultra Vires and the Foundations of Judicial Review’ [1998] CLJ 63, 81-85, 88.

^[3] TRS Allan, The constitutional foundations of judicial review: conceptual conondrum or interpretative inquiry? [2002], (CLJUK87), 93.

^[4] Sir John Laws, ‘Law and Democracy’ [1995] pl 72, 87.

^[5] Wheeler v Leicester City Council [1985] AC 1054; [1985] 3 WLR 335; [1985] 2 All ER 1106; 83 LGR 725; (1985) 129 SJ 558.

^[6] R v Chief Constable of North Wales Ex p Evans [Evans [1982] 1 WLR 1155; [1982] 3 All ER 141; (1983) 147 JP 6; (1982) 79 LSG 1257; (1982) 126 SJ 549.

^[7] Entick v Carrington 1765 95 ER 807; (1765) 2 Wils KB 275.

^[8] Council of Civil Service Unions v Minister for the Civil [1985] AC 374; [1984] 3 WLR 1174; [1984] 3 All ER .935; [1985] ICR 14; [1985] IRLR 28; (1985) 82 LSG 437; (1984) 128 SJ 837.

^[9] Ibid.

^[10] War Damages Act 1965; Constitutional Reform Act 2005.

^[11] R (on the application of Beer (t/a Hammer Trout Farm)) v Hampshire Farmers Markets Ltd. [2003] EWCA Civ 1056; [2004] 1 WLR 233; [2004] UKHRR. 727; [2003] LLR 681; [2003] 31 EG 67 (CS); (2003) 100(36) LSG 40; (2003) 147 SJLB 1085; [2003] NPC 93; Times August 25 2003; Independent July 30 2003.

^[12] The Rt. Hon. Lord Justice Sedley, Freedom, Law and Justice (Hamlyn Lectures, London 1999), 33.

^[13] R v Inland Revenue Commissioners Ex . National Federation of Self Employed and Small Businesses Ltd [1982] AC 617; [1981] 2 WLR 722; [1981] 2 All ER 93; [1981] STC 260; 55 TC 133; (1981) 125 SJ 325, page [653G] (Lord Scarman).

^[14] Senior Courts Act 1981, s 31(3) .

^[15] ibid, s 31(6); Hardy v Pembrokeshire CC [2006] EWCA Civ 240; [2006] Env LR 28; [2007] JPL 284; [2006] NPC 34; R v Dairy Produce Quota Tribunal, ex parte Caswell [1990] 2 AC 738; [1990] 2 WLR 1320; [1990] 2 All ER 434; (1990) 2 Admin LR 765; [1990] COD 243; (1990) 140 NLJ 742.

^[16] Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; [1969] 2 WLR 163; [1969] 1 All ER 208; (1968) 113 SJ 55; Times December 18 1968.

^[17] R v Secretary of State for the Environment, ex parte Ostler [1977] QB 122; [1976] 3 WLR 288; [1976] 3 All ER 90; 75 LGR 45; (1976) 32 P & CR 166; (1976) 238 EG 971; [1976] JPL 301; (1976) 120 SJ 332.

^[18] Elliott, ‘Legislative Intention Versus Judicial Creativity? Administrative Law as a Cooperative Endeavour’, in Forsyth (ed), Judicial Review and the Constitution, 361.

^[19] Elliott, ‘The Demise of Parliamentary Sovereignty? The Implications for Justifying Judicial Review’ (1999) 115 lqr 119, 132.

^[20] Sir John Laws, ‘Law and Democracy’ [1995] pl 72, 79.

^[21] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; [1984] 3 WLR 1174; [1984] 3 All ER 935; [1985] ICR 14; [1985] IRLR 28; (1985) 82 LSG 437; (1984) 128 SJ 837.

^[22] Pickin v British Railways Board [1974] AC 765; [1974] 2 WLR 208; [1974] 1 All ER 609; (1974) 118 SJ 134.

^[23] R (on the application of Jackson) v Attorney-General [2005] UKHL 56; [2006] 1 AC 262; [2005] 3 WLR 733; [2005] 4 All ER 1253; (2005) 155 NLJ 1600; [2005] NPC 116; Times October 14, 2005; Independent October 20 2005.

^[24] R v Secretary of State for the Home Department, ex parte Khawaja [1984] AC 74; [1983] 2 WLR 321; [1983] 1 All ER 765; [1982] Imm AR 139; (1983) 127 SJ 137; Coleen Properties v Minister of Housing and Local Government [1971] 1 WLR 433; [1971] 1 All ER 1049; 69 LGR 175; (1971) 22 P& CR 417; (1971) 115 SJ 112.

^[25] Carltona v Commissioner of Works [1943] 2 All ER 560.

^[26] Local Government Act 1972, s 101.

^[27] R v Inner London Education Authority Ex p. Westminster City Council [1986] 1 WLR 28; [1986] 1 All ER 19; 84 LGR 120; (1986) 83 LSG 359; (1986) 130 SJ 51; Times December 31 1984.

^[28] Westminster Corporation v. LNWR [1905] AC 426.

^[29] R v Inner London Education Authority Ex p. Westminster City Council [1986] 1 WLR 28; [1986] 1 All ER 19; 84 LGR 120; (1986) 83 LSG 359; (1986) 130 SJ 51; Times December 31 1984.

^[30] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680; (1947) 63 TLR. 623; (1948) 112 JP 55; 45 LGR 635; [1948] LJR 190; (1947) 177 LT 641; (1948) 92 SJ 26.

^[31] R v Soneji (Kamlesh Kumar) [2005] UKHL 49; [2006] 1 AC 340; [2005] 3 WLR 303; [2005] 4 All ER 321; [2006] 2 C. App R 20; [2006] 1 Cr App R (S) 79; [2006] Crim LR 167; (2005) 102(31) LSG 26; (2005) 155 NLJ 1315; (2005) 149 SJLB 924; Times July 22 2005; Independent July 26 2005.

^[32] McInnes v Onslow-Fane [1978] 1 WLR 1520; [1978] 3 All ER 211; (1978) 122 SJ 844.

^[33] Ridge v Baldwin [1964] AC 40; [1963] 2 WLR 935; [1963] 2 All ER 66; (1963) 127 JP 295; (1963) 127 JP 251; 61 LGR 369; 37 ALJ 140; 234 LT 423; 113 LJ 716; (1963) 107 SJ 313.

^[34] Lloyd v McMahon [1987] AC 625; [1987] 2 WLR 821; [1987] 1 All ER 1118; 85 LGR 545; [1987] RVR 58; (1987) 84 LSG 1240; (1987) 137 NLJ 265; (1987) 131 SJ 409.

^[35] Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255; [1976] 2 All ER 865; 75 LGR 33; (1976) 120 SJ 801.

^[36] R v Sussex Justices, ^{Ex parte} McCarthy [1924] 1 KB 256.

^[37] Dimes v Grand Junction Canal Co 10 ER 301; (1852) 3 HL Cas. 759.

^[38] Human Rights Act 1998, s 6.

^[39] ibid, article 6 .

^[40] Konig v Germany (No 1) (1979-80) 2 EHRR 170.

^[41] Human Rights Act, articles 1 of the First Protocol, 8 and 10.

^[42] Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19; [2007] 1 WLR 1420; [2007] 3 All ER 1007; [2007] NI 89; [2007] HRLR 26; [2008] BLGR 127; [2007] LLR 312; (2007) 104(19) LSG 27; (2007) 151 SJLB 575; Times May 1 2007.

^[43] TRS Allan, The constitutional foundations of judicial review: conceptual conondrum or interpretative inquiry? [2002], (CLJUK87), 120.

^[44] Senior Courts Act 1982, s 31(5).

^[45] R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators Association [1972] 2 QB 299; [1972] 2 WLR 1262; [1972] 2 All ER 589; 71 LGR 387; (1972) 116 SJ 201.

^[46] Gillick v West Norfolk West Norfolk and Wisbech Area Health Authority [1986] AC 112; [1985] 3 WLR 830; [1985] 3 All ER 402; [1986] Crim LR 113; (1985) 82 LSG 3531; (1985) 135 NLJ 1055; (1985) 129 SJ 738.

^[47] R v Secretary of State for Transport, ex parte Factortame Ltd (no.5) [1998] 1 All ER 736 (Note); [1998] 1 CMLR 1353; [1997] Eu .LR 475; (1998) 10 Admin LR 107; Times September 11 1997.

^[48] Human Rights Act 1998, s 6.

^[49] Anufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406; [2004] QB 1124; [2004] 2 WLR 603; [2004] 1 All ER 833; [2004] 1 FLR. 8; [2003] 3 FCR. 673; [2004] HRLR. 1; [2004] UKHRR 1; 15 BHRC 526; [2004] HLR 22; [2004] BLGR 184; (2003) 6 CCL Rep 4.15; [2004] Fam Law 12; (2003) 100(44) LSG 30; Times October 17 2003; Independent October 23 2003.