What is Judicial Review?

Judicial review is the process by which the superior court exercises its supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts or duties.

Three cases mentioned below indicate that the court exercises its supervisory jurisdiction over the proceedings of Secretary for State in England, the Controller of Textiles in Ceylon (Sri Lanka) and the Ombudsman in Canada.

These cases show that the responsible bodies or persons had reasonable grounds to believe that the appellants were wrong in doing particular acts. In first two cases, the courts granted restrictions according to the relevant regulations and the latter case shows that the court supported for the whole authority of Ombudsman.

Let us see the facts of these cases and consider the circumstances in which the courts have been prepared to provide relief for unlawful administrative action and how they have expanded in spectacular fashion.

Liversidge v Anderson [1942]

Robert Liversidge was detained at Brixton prison pursuant to an order made under the emergency powers in the Defence (General) Regulations 1939.Para 1 provided that “ if the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations he may make an order against that person directing that he be detained .”

By writ action, Liversidge sought a declaration that his detention was unlawful, and damages for false imprisonment. He issued a summons for particulars of the Secretary of State’s grounds for making the order.

The Court held that the summons would be dismissed. Given its context, the true construction of ‘has reasonable cause’ in Para 1 was that the sufficiency of the grounds was purely for the Minister and not examinable by the courts.

The question before the House of Lords was a matter of the interpretation of Defence Regulation 18B which provided that the Home Secretary may order a person to be detained “if he has reasonable cause to believe” the person to be of hostile origin or associations. A majority of four held that if the Home Secretary thinks he has good cause that is good enough. However, Lord Atkin chose the objective interpretation: the statute required the Home Secretary to have reasonable grounds for detention.

Lord Atkin said: “amid the clash of arms the laws are not silent” and warned against judges who “when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive”. At the time, the terms of Lord Atkin’s dissent caused grave offence to his colleagues. Nevertheless, Lord Atkin’s view on the interpretation of provisions such as Regulation 18B has prevailed: the Secretary of State’s power to detain must be exercised on objectively reasonable grounds. To that extent Liversidge v Anderson no longer haunts the law.

When we consider the history, by 1939, Great Britain was at war with Germany. It became a mortal combat. It was a period of grave national emergency. This is how Lord Denning put it in:

“If our society is attacked by one or more who would destroy us and

our freedoms, then we must have the means to defend ourselves…”

if we consider ‘Unreasonableness’ in a broad sense:

The term unreasonable is sometimes used in relation to statute which confer powers, for eg on a Minister to act if he has a reason to believe or is satisfied that or if in his opinion something is the case or to take such steps as he thinks fit.

It doubts whether the challenged action is to be judged according to the authority’s own sense of reasonable belief (satisfaction/fitness) or by some more objective standards.

In almost every case in which the ultra vires of administrative action are challenged the courts and courts are faced with problems of statutory interpretation.

The interpretation of the words ‘reasonable cause to believe’ was not logically impossible but, it is contrary to the traditional attitude of the courts towards such formulae and it may be assumed that it will not be repeated except in extra-ordinary circumstances when courts may consider the judicial review of executive discretion would be highly detrimental to the national interest.

Nakkuda Ali v Jayaratne [1951]

Ali was a textile dealer in Ceylon. His licence was cancelled by the Controller of Textiles, under Regulations which empowered the Controller to do so where he ‘has reasonable grounds to believe that any dealer is unfit” to continue. Ali applied for certiorari of the decision.

Held the application would fail. The Controller was “taking executive action” and not acting “judicially or quasi judicially” and so was not “amenable to review”. In any case, there were the necessary (a) “reasonable grounds” (these being a precedent fact, which the court could investigate), (b) Compliance with natural justice.

When, deciding whether the rules of natural justice were applicable, it would look to the legislation under consideration for some indication expressed or implied such as that the Controller of Textiles was required to give notice of his intention to revoke the applicant’s licence, or to hold an inquiry before revoking it, or that the applicant had a right of appeal from his decision.

The test of whether the rules of natural justice must be complied with, is that the duty to act judicially in this sense is essentially synonymous with the duty of observe the rules of natural justice.

The rules of natural justice embody two main principles: (as you know)

The rules against bias which require that a person must not be a judge in his/her, own cause (nemo iudex in sua causa)

That a person must be give a fair hearing (audi alteram partem)

Decision- makers exercising in public functions are subject to a set of common law procedures of rules, which are known collectively as the ‘rules of natural justice’.

The task of the courts to consider whether a decision is legal or illegal and the scope of the instrument conferring the duty or power upon the decision-maker. The instrument will normally be a statute or statutory instrument. Courts are acting, as guardians of Parliament’s will, seeking to ensure that the exercise of power is in accordance with the scope and purpose of Parliament’s enactment, exercise statutory interpretation. It is for them to determine whether an authority has made an error of law eg whether regulations are within the statutory power.

The rule against bias is designed to foster and maintain confidence in the decision-making process. It means to treat individuals fairly when decisions are made which affect them.

The right to a hearing or investigation before an adverse decision was taken was denied in Nakkuda Ali v Jayaratne but this case is probably no longer good law. See University of Ceylon v. Fernando.

In 1960s, those remedies available for judicial review were very expensive. Consequently, the concept of Ombudsman came into force as a free service. The legislature has designed the scop of jurisdiction of the office of Ombudsman. It is not a prerogative instrument. Friedman case was trying to restrict the Ombudsman’s power. However, court did not restrict the jurisdiction of Ombudsman and supported to enhance the concept of Ombudsman.

Re British Columbia Development Corporation and Friedmann (1984)

British Columbia Development Corp (B.C.D.C.) and its subsidiary First Capital City Development Company limited (F.C.) engaged in contract with the city for redevelopment of the waterfront. The Ombudsman began to investigate the implementations of the contract on a complaint. The Corporation challenged that and appealed to the Supreme Court of Canada against Ombudsman in British Columbia for restricting his jurisdiction to investigate the documents.

In view of the Supreme Court of Canada, the legislation was intended to enable the citizen to request that a complaint of unjust conduct on the part of the government to be investigated by the Ombudsman. From this perspective, so long as the impugned conduct was with respect to a matter of administration, its characterisation as a business decision was simply irrelevant.

The issues, which arise in this case are whether the Ombudsman has jurisdiction under section 10 (1) of the Ombudsman Act 1979 to investigate the above-mentioned dispute. The Ombudsman is a statutory creation, therefore Ombudsman’s power to investigate complaints depend upon the meaning to be given on language that the Legislature has used to define the ambit of Ombudsman’s jurisdiction.

Section 10 (1) of the Ombudsman Act 1979 states:

The Ombudsman, with respect to a matter of administration, on a complaint or on his own initiative, may investigate:

A decision or recommendation made;

Act done or omitted; or

A procedure used;

by an authority that aggrieves or may aggrieve a person.

Section10 of the Ombudsman Act 1979 mainly focuses on the investigation procedure of the Office of the Ombudsman. The Ombudsman is obliged to report the details found against government authority. The court saw the Ombudsman as an instrument to discover the maladministration and to resolve conflicts with flexibility.

What are the remedies available for judicial review?

Certiorari: A quashing order nullifies a decision, which has been made by a public body. The effect is to make the decision invalid. Such an order is usually made where an authority has acted outside the scope of its powers (‘ultra vires’).

Mandamus: A writ issued by a superior court and directed to some inferior tribunal, or to some corporation or person exercising authority, commanding the performance of some specified duty.

Prohibition: an order of restraining a person or body from illegal action.

Declaration: A declaration is a judgment by the Administrative Court, which clarifies the respective rights and obligations of the parties to the proceedings, without actually making any order.

Injunction: An injunction is an order made by the court to stop a public body from acting in an unlawful way. Less commonly, an injunction can be mandatory, that is, it compels a public body to do something.

Damages: Damages are available as a remedy in judicial review in limited circumstances. Compensation is not available merely because a public authority has acted unlawfully. For damages to be available there must be either:

A recognised ‘private’ law cause of action such as negligence or breach of statutory duty or;

A claim under European law or the Human Rights Act 1998.