The Power of Judicial Review

Judicial Review (JR) is a great weapon in the hands of judges, it gives power to the courts to review statutes and governmental actions to determine whether they conform to rules and principles laid down in constitutions. Judicial Review is based on the idea that a constitution which dictates the nature, functions, and limits of a government is the supreme law. Consequently, any actions by a government that violate the principles of its constitution are invalid. In this essay it will be discussed the constitutional significance of the process of Judicial Review of administrative action in the UK. First the process itself will be need to be addressed, how it functions, its purpose and bringing an action for JR and looking into its constitutional significance and decisions which are susceptible to JR.

When supporters of fox hunting failed to convince Parliament to drop the Hunting Bill, they turned to the courts. They were just one of many individuals and groups using the increasingly popular mechanism known as JR. But its bland title conceals the fact that the growth of JR is perhaps the most revolutionary change in British law over the last thirty years. JR is the procedure which questions the lawfulness of actions by public bodies whether local authorities, tribunals, Parliament or the executive. Although procedures differ between England and Wales and Scotland, the underlying legal principles are similar. There has been a rapid expansion in the number of cases brought for JR. In England and Wales in 1980 there were 491 cases a year and by 1996 there were nearly 4,000. Traditionally judges could only decide whether public bodies had acted reasonably. But in recent years they have been able to extend their powers into asking whether decisions were fair, as well as reasonable. The scope has further increased with the Human Rights Act, which gives judges the power to declare that laws are incompatible with the European Convention on Human Rights. It can be viewed as part of the ‘separation of powers’. Similarly, as JR is limited to secondary legislation which isn’t debated in parliament, it can be seen to provide a safeguard to ensure that such delegated powers are not misused.

At the same time, the doctrine of Parliamentary sovereignty does not allow for the Judicial Review of primary legislation. This limits JR in English law to the decisions of public bodies and secondary legislation, against which ordinary common law remedies as well as special “prerogative orders” are available in certain circumstances.

The constitutional theory of JR has long been dominated by the doctrine of ultra vires, under which a decision of a public authority can only be set aside if it exceeds the powers granted to it by Parliament. The role of the courts was seen as enforcing the “will of Parliament” in accordance with the doctrine of Parliamentary sovereignty. However, the doctrine has been widely interpreted to include errors of law and of fact and the courts have also declared the decisions taken under the Royal Prerogative to be amenable to JR. Therefore it seems that today the constitutional position of JR is dictated by the need to prevent the abuse of power by the executive as well as to protect individual rights.

Section 6 of the Human Rights Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Consequently, following the entry into force of the Human Rights Act, victims of such acts by public bodies have been able to challenge them before the national courts, including by way of JR, without having to resort to the ECHR. Section 6 allows persons whose rights have been infringed to challenge both specific administrative decisions and the validity of subordinate legislation under which decisions are made.

Under the Human Rights Act, courts are obliged to interpret acts of the Parliament consistently with Convention rights so far as it is possible to do so. Therefore, some cases of potential inconsistency between provisions of acts of Parliament and Convention rights can be resolved by interpretation. Where it is not possible to interpret an act of Parliament so as to make it compatible with Convention rights, a higher court can issue a “declaration of incompatibility” in relation to that act (sections 3 and 4 of the Human Rights Act). However, the declaration does no more than establish that there is an incompatibility between the act and a Convention right. In contrast to the position with EC law, it does not make the act of Parliament invalid and a declaration of incompatibility is not binding on the parties against which it is issued and does not have any effect on the rights of the parties to the case in we which it is made. Instead Government ministers are empowered to order the repeal or amendment of the legislation in question, as they think appropriate to remove the incompatibility (section 10). The petitioner may ask the court to make a declaration of incompatibility in JR proceedings.

It is critical to understand that JR itself is a challenge to the process by which the decision was made, rather than the decision itself. The question here is not whether the decision itself was correct, but rather the powers given to the decision making body were used correctly. A person who feels that an exercise of such power by, say, a government minister, the local council or a statutory tribunal, is unlawful, perhaps because it has violated their rights, may apply to the Administrative Court a division of the High Court for Judicial Review of the decision. If the application for JR is successful, the Court may set aside the unlawful act. In certain limited circumstances, the claimant may be able to obtain damages. A court may also make a mandatory or prohibitory order or an injunction to compel the authority to act lawfully or to stop it from acting unlawfully.

A person with “sufficient interest” in a decision can invoke the court’s JR powers. Public interest groups may, in certain circumstances, satisfy the requirement of sufficient interest. Third parties who are directly affected by a decision can intervene in JR proceedings. This may include other businesses operating in the same industry as the person going to court. To qualify for JR all if the following must be satisfied:

The decision must be made by a public body

The types of decisions are varied, ranging from local authorities making decisions on planning applications, to government bodies deciding to issue guidance and regulatory decisions in relation to corporations and individuals. When exercising their statutory functions, public bodies have the capacity to affect the lives of individuals, groups of citizens and industry. Both the common law and statute lay down parameters within which decisions should be made. The overall purpose of this is simple; to avoid the state and its agencies wielding such power in a way that is arbitrary. Most decisions are capable of challenge by way of an appeal mechanism and, failing that JR. No public body wants to bear the expense and uncertainty of challenges in courts and tribunals. More importantly, decision makers in the public sector will wish to make sure that they get their process right so they can make robust and lasting decisions.

R v Disciplinary committee of jockey club, ex parte Agan Khan [1983] 2 All ER 853 (CA). A horse belonging to Agan Khan was disqualified from a race by the committee after failing a drug test and JR was sought. It was asked whether the sporting body was “governmental in operation and nature.” It was considered amongst other things that the Jockey Club received public funding and was a ‘significant national activity. It was held that the Jockey Club was not a public body and, therefore, its decisions were not subject to JR. The relationship between the club and its members was purely private However Bingham MR did state that had the body ceased to exist the government would be required to fulfil its functions. This indicates that the Club was in fact fulfilling public functions and so should be held accountable to JR.

R v Panel on the Takeovers and Mergers, ex parte Datafin plc [1987] QB 815 (CA). The panel was established by the city of London in order to regulate mergers and acquisitions of companies. Datafin sought JR in order to revise a decision made by the panel. Given the public nature of the role it performed. The panel should be regarded as a public body and, therefore, its decisions were subject to JR.

The decision must be made under delegated powers.

The exercise of delegated powers under statue is generally open to review, as are decisions made by independent professional disciplinary and commercial regulatory organisations. Most public decisions by bodies exercising public function can be reviewed. The class of reviewable decisions is potentially broader as a result of the Human Rights Act. All “Public authorities” are bound by the provisions of the Act. “Public authority” is not clearly defined, but appears to have an extremely broad scope, including government departments, ministers of state exercising delegated powers, regulators and professional organisations, local government, courts and tribunals.

An action for JR is commenced in the high court but requires permission known as the ‘leave’ of the court. In bringing an action, you satisfy the court of two elements:

1. The existence of a prima facie case, where a legal question and a case are apparent.

In most legal proceedings, one party has a burden of proof, which requires it to present prima facie evidence for all of the essential facts in its case. If they cannot, its claim may be dismissed without any need for a response by other parties. A prima facie case might not stand or fall on its own; if an opposing party introduces other evidence or asserts an affirmative defense it can only be reconciled with a full trial.

2. The claimant must have locus standi

To be entitled to apply for JR of a decision, in principle a person must have a “Sufficient interest” (locus standi). This is usually expressed in terms of having a sufficient interest in the disputed matter. There appear to be two separate tests, dependent upon whether a person is relying on the Human Rights Act or not. Where a person is not relying on the Human Rights Act, they will have to show “sufficient interest”. This is a broad test, since the word person includes “legal persons”. This means that organisations, such as trade unions, may have sufficient interest.

The Judge Over Your Shoulder states that:

“If the person challenging the decision can say that he is affected by it and there is no more appropriate challenger, and there is substance in his challenge, the court will not usually let technical rules on whether he has sufficient interest stand in its way.”

Both representative groups and pressure groups acting in the ‘public interest’ have also been found to have sufficient standing, on the basis that they represent the interests of the persons directly affected. Where a claimant is seeking to rely on the Human Rights Act, a different and more restrictive test is used to prove standing, generally referred to as “the victim test”.

R v Inland Revenue, ex parte National Federation of Self-Employed and Small Businesses [1982] AC617 (HL). This was the first important decision on the sufficient interest test. Casual labour was common on Fleet Street newspapers, with the workers often adopting fictitious names and paying no taxes. The Inland Revenue, made a deal with the relevant unions, workers and employers where if the casual workers filled in tax returns for the previous two years then the period prior to that would be forgotten. The federation challenged the Inland Revenue’s procedures for laying taxes on casual workers engaged by Fleet Street newspapers. The issue at stake was whether or not the Federations members were, therefore disadvantaged. It was held since the taxation arrangement did not apply to the individual members of the Federation; the federation did not have sufficient interest and thus could not bring action against the Inland Revenues procedure.

The courts will always recognise sufficient interest in cases where someone’s personal rights or interests are directly affected by a public decision. The courts may also recognise sufficient interest whenever public decisions or actions allegedly impact on the public interest. However, on a case by case bases decisions are made as to whether the requirement of locus standi is met or otherwise, which has lead to contrasting decisions in the two well known cases of R v Secretary of State for the Environment ex parte Rose Theatre Trust Co [1990] 1 All ER 754 and R v HM Inspectorate of Pollution ex parte Greenpeace (1994) 4 AER 329. In the former, a company was campaigning to save the Globe theatre site in London, while the facts of Greenpeace are in many ways alike. Yet the decisions as to who has locus standi are different. As the area of JR is still in its infancy, it is developing rather rapidly; therefore such difference might be explained by the fact that Greenpeace was decided some time after Rose Theatre. However in Greenpeace, the judge warned pressure groups that they will not automatically be held to have sufficient interest in the future, therefore the requirements of locus standi are still uncertain.

Grounds for Judicial Review

In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (GCHQ), Lord Diplock classified the grounds on which administrative action is subject to judicial control under three heads, namely, ‘illegality’, ‘irrationality’, and ‘procedural impropriety’. He also said that further grounds may be added as the law developed on a case by case basis.

Illegality

Illegality as a ground for judicial review means that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is a question to be decided in the event of dispute by judges. This would mean that when a power vested in a decision-maker is exceeded, acts done in excess of the power are invalid as being ultra vires (substantive ultra vires). An example would be where a local council, whose power is derived from statute, acts outside the scope of that authority. Bromley Council v Greater London Council (1983).Government Ministers have also sometimes acted outside their authority. R v Home Secretary, ex parte Fire Brigades Union (1995).

Irrationality

By irrationality as a ground for JR, Lord Diplock in GCHQ meant what is referred to as Wednesbury unreasonableness. In Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] the Court of Appeal held that a court could interfere with a decision that was ‘so unreasonable that no reasonable authority could ever have come to it’. Lord Diplock in the GCHQ said that;

‘This applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’

This ground has been used to prevent powers from being abused by, for example, exercising discretion for an improper purpose or without taking into account all relevant considerations.

Procedural Impropriety

Procedural impropriety as a ground for JR covers the failure by the decision maker to observe procedural rules that are expressly laid down in the legislation by which its jurisdiction is conferred, or a failure to observe basic rules of natural justice, or a failure to act with procedural fairness (procedural ultra vires). Agricultural Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd [1972] 1 All ER 280

Remedies

Quashing order (certiorari) – Overturns the original decision

Mandatory order (mandamus) – Compels the decision maker to act in a certain way.

Prohibiting order (prohibition) – Prevents the decision maker from making a decision that could be subject to a quashing order later on.

Injunction – Either positive (compelling action) or negative (prohibiting action). These are similar to quashing and mandatory orders, but may be made on a temporary basis, depending on the outcome of the case.

Declaration – A judicial statement describing the legal position of the relevant parties.

Sir Jeffery Bowman in the Bowman Report [2000] has made a number of recommendations for reforming JR procedures. Amongst such recommendations has been the suggestion of moving away from ex parte to inter parte in the permission stage which requires the defending authority to be given a full notice of the application. According to the recommendation, the claimant must gather all the relevant materials and disclose their case in full to the defendant, while the defendant only has to give his defence in outline. Not surprisingly therefore, this recommendation has been criticised for not safeguarding the claimant’s interests, which would be expected in a procedure designed to put the parties on an equal footing.

The most problematic aspects of the JR procedures are their uncertainty and unpredictability as most of the requirements for a JR are in the judge’s discretion, from locus standi to the exclusivity principle and arguably most importantly the permission stage. As such, the Brown report has been criticised for not addressing such issues satisfactorily as:

Like the old Rules, the new Rules say nothing about the criteria for the grant of permission and thus leave matters in the rather unpredictable state that they were in before.

The uncertainty and unpredictability of the criteria needed to be fulfilled for a JR might lead to the prevention from access to justice due to case load which leads to questioning of the fairness of the process itself. Perhaps one way these concerns may be addressed is by having a codified set of rules in an act of Parliament stating who may make a claim for a JR and what criteria need to be fulfilled in order for a JR to be granted. By taking such approach the wide discretion which seems to lead to much uncertainty would become less of a problem. Such approach would also address the confusion that the time limit criteria seem to have created. When high stakes are involved, such as the granting of planning permission, the six weeks time limit seems too short, especially in some highly complex cases. Therefore the interpretation of the courts of the promptly requirement as being in any event within six weeks, should perhaps be abolished entirely or a fixed time limit be codified in a statue stating the period within which claims may be made

Conclusion

Judicial Review of administration is, in a sense, the heart of administrative law. It is certainly the most appropriate method of inquiring into the legal competence of a public authority. The aspects of an official decision or an administrative act that may be scrutinized by the judicial process are the competence of the public authority, the extent of a public authority’s legal powers, the adequacy and fairness of the procedure, the evidence considered in arriving at the administrative decision and the motives underlying it, and the nature and scope of the discretionary power. An administrative act or decision can be invalidated on any of these grounds if the reviewing court or tribunal has a sufficiently wide jurisdiction. There is also the question of responsibility for damage caused by the public authority in the performance of its functions. JR is less effective as a method of inquiring into the wisdom, expediency, or reasonableness of administrative acts, and courts and tribunals are unwilling to substitute their own decisions for that of the responsible authority.