Judicial review in English Law
Encyclopedia
Judicial review is a procedure in English administrative law
by which the courts in England and Wales supervise the exercise of public power
on the application of an individual. A person who feels that an exercise of such power by a government authority, such as a minister, the local council or a statutory tribunal, is unlawful, perhaps because it has violated his or her rights, may apply to the Administrative Court (a division of the High Court
) for judicial review
of the decision and have it set aside (quashed) and possibly obtain damages. A court may also make mandatory orders or injunction
s to compel the authority to do its duty or to stop it from acting illegally.
Unlike the United States and some other jurisdictions, the English doctrine of parliamentary supremacy means that the law does not know judicial review of primary legislation
(laws passed by the Parliament of the United Kingdom
), except in a few cases where primary legislation is contrary to the law of the European Union. A person wronged by an Act of Parliament
therefore cannot apply for judicial review except in these cases.
courts.
At the same time, the doctrine of Parliamentary sovereignty
does not allow for the judicial review of primary legislation (Acts of Parliament
). This limits judicial review in English law to the decisions of public bodies and secondary (delegated) legislation, against which ordinary common law remedies as well as special "prerogative orders
" are available in certain circumstances.
The constitutional theory of judicial review 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 judicial review. Therefore it seems that today the constitutional position of judicial review is dictated by the need to prevent the abuse of power by the executive as well as to protect individual rights.
, which has supervisory jurisdiction over public authorities and tribunals. Permission may be refused if one of the following conditions is not satisfied:
However, the Court will not necessarily refuse permission if one of the above conditions is in doubt. It may, in its discretion, examine all the circumstances of the case and see if the substantive grounds for judicial review are serious enough. Delay or lack of sufficient interest can also lead to the court refusing to grant a remedy after it had considered the case on the merits.
[1987] 1 QB 815, the Court of Appeal
held that a privately established panel was amenable to judicial review because it in fact operated as an integral part of a governmental framework for regulating Mergers and Takeover, while those affected had no choice but to submit to its jurisdiction.
The courts however do uphold time limits on applications for judicial review.
The first two grounds are known as substantive grounds of judicial review because they relate to the substance of the disputed decision. Procedural impropriety is a procedural ground because it is aimed at the decision-making procedure rather than the content of the decision itself. The three grounds are mere indications: the same set of facts may give rise to two or all three grounds for judicial review.
A decision may be illegal for many different reasons. There are no hard and fast rules for their classification, but the most common examples of cases where the courts hold administrative decisions to be unlawful are the following:
An example of when this happened was in Allingham v Minister of Agriculture and Fisheries where a notice preventing farmers from growing sugar beet was unlawful because the power to put up the sign was delegated by the original committee.
. Section 1 of the Overseas Development and Co-operation Act 1980 empowered the Secretary of State for Foreign Affairs to assign funds for development aid of economically sound projects. The Secretary assigned the funds for a project to construct a power station on the Pergau River in Malaysia (see Pergau Dam
) which was considered as uneconomic and not sound. The House of Lords held that this was not the purpose envisaged by the enabling statute and the Minister therefore exceeded his powers. A similar principle exists in many continental legal systems and is known by the French name of détournement du pouvoir.
at the time of apartheid. In R v Somerset County Council Ex parte Fewings the local authority decided to ban stag hunting on the grounds of it being immoral. In Padfield v Ministry of Agriculture, Fisheries and Food, the Minister refused to mount an inquiry into a certain matter because he was afraid of bad publicity. In R v ILEA Ex parte Westminster City Council [1948] 1 KB 223, the London Education Authority used its powers to inform the public for the purpose of convincing the public of its political point of view. In all these cases, the authorities have based their decisions on considerations, which were not relevant to their decision making power and have acted unreasonably (this may also be qualified as having used their powers for an improper purpose).
Note that the improper purpose or the irrelevant consideration must be such as to materially influence the decision. Where the improper purpose is not of such material influence, the authority may be held to be acting within its lawful discretion. So R v Broadcasting Complaints Commission Ex parte Owen [1985] QB 1153, where the Broadcasting authority refused to consider a complaint that a political party has been given too little broadcasting time mainly for good reasons, but also with some irrelevant considerations, which however were not of material influence on the decision.
This has changed in modern times, with the new coalition government providing an overrulement.
, after the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, where it was first imposed.
Unlike illegality and procedural impropriety, the courts under this head look at the merits of the decision, rather than at the procedure by which it was arrived at or the legal basis on which it was founded. The question to ask is whether the decision "makes sense". In many circumstances listed under "illegality", the decision may also be considered irrational.
is a requirement that a decision is proportionate to the aim that it seeks to achieve. E.g. an order to forbid a protest march on the grounds of public safety should not be made if there is an alternative way of protecting public safety, e.g. by assigning an alternative route for the march. Proportionality exists as a ground for setting aside administrative decisions in most continental legal systems and is recognised in England in cases where issues of EC law and ECHR rights are involved. However, it is not as yet a separate ground of judicial review, although Lord Diplock has alluded to the possibility of it being recognised as such in the future. At present, lack of proportionality may be used as an argument for a decision being irrational.
' have not been adhered to.
The first basic rule of natural justice is that nobody may be a judge in his own case. Any person that makes a judicial decision - and this includes e.g. a decision of a public authority on a request for a license - must not have any personal interest in the outcome of the decision. If such interest is present, the decision maker must be disqualified even if no actual bias can be shown, i.e. it is not demonstrated that the interest has influenced the decision. The test as to whether the decision should be set aside is whether there is a "real possibility [of bias]", as established in Gough v Chief Constable of the Derbyshire Constabulary [2001] , which dropped the 'fair minded observer' part of the test.
Whether or not a person was given a fair hearing of his case will depend on the circumstances and the type of the decision to be made. The minimum requirement is that the person gets the chance to present his case. If the applicant has certain legitimate expectations, for example to have his license renewed, the rules of natural justice may also require that they are given an oral hearing and that their request may not be rejected without giving reasons. Where the decision is judicial in nature, for example a dismissal of an official in punishment for improper conduct, the rules of natural justice require a hearing and the person questioned must know the case against them and be able to examine and object to the evidence.
Unlike many other legal systems, English administrative law does not recognise a general duty to give reasons for a decision of a public authority. A duty to give reasons may be imposed by statute. Where it is not, common law
may imply such a duty and the courts do so particularly with regard to judicial and quasi-judicial decisions.
In any case more than one remedy can be applied for; however, the granting of all remedies is entirely at the court’s discretion.
Quashing Order
A quashing order nullifies a decision which has been made by a public body. The effect is to make the decision completely invalid. Such an order is usually made where an authority has acted outside the scope of its powers (‘ultra vires’). The most common order made in successful judicial
review proceedings is a quashing order. If the court makes a quashing order it can send the case back to the original decision maker directing it to remake the decision in light of the court’s findings. Or, very rarely, if there is no purpose in sending the case back, it may take the decision itself.
Prohibiting Order
A prohibiting order is similar to a quashing order in that it prevents a tribunal or authority from
acting beyond the scope of its powers. The key difference is that a prohibiting order acts
prospectively by telling an authority not to do something in contemplation. Examples of where prohibiting orders may be appropriate include stopping the implementation of a decision in breach of natural justice, or to prevent a local authority licensing indecent films, or to prevent the deportation of someone whose immigration status has been wrongly decided.
Mandatory Order
A mandatory order compels public authorities to fulfill their duties. Whereas quashing and prohibition orders deal with wrongful acts, a mandatory order addresses wrongful failure to act. A mandatory order is similar to a mandatory injunction (below) as they are orders from the court requiring an act to be performed. Failure to comply is punishable as a contempt of court. Examples of where a mandatory order might be appropriate include: compelling an authority to assess a disabled person’s needs, to approve building plans, or to improve conditions of imprisonment. A mandatory order may be made in conjunction with a quashing order, for example, where a local authority’s decision is quashed because the decision was made outside its powers, the court may simultaneously order the local authority to remake the decision within the scope of its powers.
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. Unlike the remedies of quashing, prohibiting and mandatory order the court is not telling the parties to do
anything in a declaratory judgment. For example, if the court declared that a proposed rule by a local authority was unlawful, a declaration would resolve the legal position of the parties in the proceedings. Subsequently, if the authority were to proceed ignoring the declaration, the applicant who obtained the declaration would not have to comply with the unlawful rule and the quashing, prohibiting and mandatory orders would be available.
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. Where there is an imminent risk of damage or loss, and other remedies would not be sufficient, the court may grant an interim injunction to protect the position of the parties before going to a full hearing. If an interim injunction is granted pending final hearing, it is possible that the side which benefits from the injunction will be asked to give an undertaking that if the other side is successful at the final hearing, the party which had the benefit of the interim protection can compensate the other party for its losses. This does not happen where the claimant is legally aided.
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) A recognised ‘private’ law cause of action such as negligence or breach of
statutory duty or;
(b) A claim under European law or the Human Rights Act 1998.
Discretion
The discretionary nature of the remedies outlined above means that even if a court finds a public body has acted wrongly, it does not have to grant any remedy. Examples of where discretion will be exercised against an applicant may include where the applicant’s own conduct has been unmeritorious or unreasonable, for example where the applicant has unreasonably delayed in applying for judicial review, where the applicant has not acted in good faith, where a remedy would impede the an authority’s ability to deliver fair administration, or where the judge considers that an alternative remedy could have been pursued.
English administrative law
-Ombudsmen:In the United Kingdom a post of Ombudsman is attached to the Westminster Parliament with additional posts at the Scottish Parliament, the Welsh Assembly and other government institutions...
by which the courts in England and Wales supervise the exercise of public power
Political power
Political power is a type of power held by a group in a society which allows administration of some or all of public resources, including labour, and wealth. There are many ways to obtain possession of such power. At the nation-state level political legitimacy for political power is held by the...
on the application of an individual. A person who feels that an exercise of such power by a government authority, such as a minister, the local council or a statutory tribunal, is unlawful, perhaps because it has violated his or her rights, may apply to the Administrative Court (a division of the High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
) for judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
of the decision and have it set aside (quashed) and possibly obtain damages. A court may also make mandatory orders or injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
s to compel the authority to do its duty or to stop it from acting illegally.
Unlike the United States and some other jurisdictions, the English doctrine of parliamentary supremacy means that the law does not know judicial review of primary legislation
Primary legislation
Primary legislation is law made by the legislative branch of government. This contrasts with secondary legislation, which is usually made by the executive branch...
(laws passed by the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
), except in a few cases where primary legislation is contrary to the law of the European Union. A person wronged by an Act of Parliament
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
therefore cannot apply for judicial review except in these cases.
Constitutional position
The English constitutional theory, as expounded by A.V. Dicey, does not recognise a separate system of administrative courts that would review the decisions of public bodies (as in France, Germany and many other European countries). Instead, it is considered that the government should be subject to the jurisdiction of ordinary Common LawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
courts.
At the same time, the doctrine of Parliamentary sovereignty
Parliamentary sovereignty
Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...
does not allow for the judicial review of primary legislation (Acts of Parliament
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
). This limits judicial review in English law to the decisions of public bodies and secondary (delegated) legislation, against which ordinary common law remedies as well as special "prerogative orders
Prerogative writ
Prerogative writs are a class of writs which originate from English law. Originally they were available only to the Crown, but later they were made available to the monarch's subjects through the courts.The prerogative writs are:*certiorari...
" are available in certain circumstances.
The constitutional theory of judicial review has long been dominated by the doctrine of ultra vires
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
, 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
Royal Prerogative
The royal prerogative is a body of customary authority, privilege, and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy as belonging to the sovereign alone. It is the means by which some of the executive powers of government, possessed by and...
to be amenable to judicial review. Therefore it seems that today the constitutional position of judicial review is dictated by the need to prevent the abuse of power by the executive as well as to protect individual rights.
Procedural requirements
Under the British Civil Procedure Rules a claim (application) for judicial review will only be admissible if permission (leave) for judicial review is obtained from the High CourtHigh Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
, which has supervisory jurisdiction over public authorities and tribunals. Permission may be refused if one of the following conditions is not satisfied:
- The application must be made promptly and in any event within three months from the date when the grievance arose. Note that legislation can impose shorter time limits while a court may hold that an application made in less than three months may still be not prompt enough.
- The applicant must have sufficient interest in a matter to which the application relates. This requirement is known as the requirement of locus standi, or standingStanding (law)In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
. - The application must be concerned with a public lawPublic lawPublic law is a theory of law governing the relationship between individuals and the state. Under this theory, constitutional law, administrative law and criminal law are sub-divisions of public law...
matter, i.e. the action must be based on some rule of public law, not purely tortTortA tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
or contractContractA contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
.
However, the Court will not necessarily refuse permission if one of the above conditions is in doubt. It may, in its discretion, examine all the circumstances of the case and see if the substantive grounds for judicial review are serious enough. Delay or lack of sufficient interest can also lead to the court refusing to grant a remedy after it had considered the case on the merits.
Amenability to judicial review
The decision complained of must have been taken by a public body, i.e. a body established by statute or otherwise exercising a public function. In R v Panel for Takeovers and Mergers Ex p DatafinR v Panel for Takeovers and Mergers Ex p Datafin
R v Panel for Takeovers and Mergers [1987] QB 815 is a case involving UK company law and administrative law, which marked a major development in the scope of judicial review in English Law. It established that the decisions of a private body exercising public functions may be amenable to judicial...
[1987] 1 QB 815, the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
held that a privately established panel was amenable to judicial review because it in fact operated as an integral part of a governmental framework for regulating Mergers and Takeover, while those affected had no choice but to submit to its jurisdiction.
Ouster clauses
Sometimes the legislator may want to exclude the powers of the court to review administrative decision, making them 'final', 'binding' and not appealable. R (Cowl) v Pymouth City Council. However, the courts have consistently held that none but the clearest words can exclude judicial review. When the Government wanted to introduce a new Asylum and Immigration Act containing such clear words, members of the judiciary protested to the extent of saying that they will not accept even such an exclusion. The Government withdrew the proposal.The courts however do uphold time limits on applications for judicial review.
Exclusivity rule
The House of Lords held in O'Reilly v Mackman [1983] 2 AC 237 that where public law rights were at stake, the claimants could only proceed by way of judicial review. They could not originate their action under the general civil law procedure, because that would be avoiding the procedural safeguards afforded to public authorities by the judicial review procedure, such as the requirement of sufficient interest, timely submission and permission for judicial review. However, a defendant may still raise public law issues as a defence in civil proceedings. So for example, a tenant of the public authority could allege illegality of its decision to raise the rents when the authority sued him for failing to pay under the tenancy contracts. He was not required to commence a separate judicial review process (Wandsworth London Borough Council v Winder (1985)). If an issue is a mix of private law rights, such as the right to get paid under a contract, and public law issues of the competence of the public authority to take the impugned decision, the courts are also inclined to allow the claimant to proceed using ordinary civil procedure, at least where it can be demonstrated that the public interest of protecting authorities against frivolous or late claims has not been breached (Roy v Kensington and Chelsea and Westminster Family Practitioner Committee (1992), Trustees of the Dennis Rye Pension Fund v Sheffield City Council (1997)).Grounds for review
In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, Lord Diplock summarised the grounds for reversing an administrative decision by way of judicial review as follows:- Illegality
- Irrationality (Unreasonableness)
- Procedural impropriety
The first two grounds are known as substantive grounds of judicial review because they relate to the substance of the disputed decision. Procedural impropriety is a procedural ground because it is aimed at the decision-making procedure rather than the content of the decision itself. The three grounds are mere indications: the same set of facts may give rise to two or all three grounds for judicial review.
Illegality
In Lord Diplock's words, this ground means that the decision maker "must understand correctly the law that regulates his decision-making power and must give effect to it."A decision may be illegal for many different reasons. There are no hard and fast rules for their classification, but the most common examples of cases where the courts hold administrative decisions to be unlawful are the following:
The decision is taken by the wrong person (unlawful sub-delegation)
If the law empowers a particular authority, e.g. a minister, to take certain decisions, the Minister cannot subdelegate this power to another authority, e.g. an executive officer or a committee. This differs from a routine job not involving much discretion being done by civil servants in the Minister's name, which is not considered delegation.An example of when this happened was in Allingham v Minister of Agriculture and Fisheries where a notice preventing farmers from growing sugar beet was unlawful because the power to put up the sign was delegated by the original committee.
Error of law or error of fact
The court will quash a decision where the authority has misunderstood a legal term or incorrectly evaluated a fact that is essential for deciding whether or not it has certain powers. So, in R v Secretary of State for the Home Department, ex parte Khawaja [1984] AC 74, the House of Lords held that the question whether the applicants were "illegal immigrants" was a question of fact that had to be positively proved by the Home Secretary before he could use the power to expel them. The power depended on them being "illegal immigrants" and any error in relation to that fact took the Home Secretary outside his jurisdiction to expel them. However, where a term to be evaluated by the authority so broad and vague that reasonable people may reasonably disagree about its meaning, it is generally for the authority to evaluate its meaning. For example, in R v Hillingdon Borough Council ex Parte Pulhofer [1986] AC 484, the local authority had to provide homeless persons with accommodation. The applicants were a married couple, who lived with her two children in one room and applied to the local authority for aid. The local authority refused aid because it considered that the Pulhofers were not homeless and the House of Lords upheld this decision because whether the applicants had accommodation was a question of fact for the authority to determine.The powers used for the purpose different from the one envisaged by the law under which they were granted
A good example of this is the case of R v Secretary of State for Foreign Affairs Ex p The World Development MovementR v Secretary of State for Foreign Affairs Ex p The World Development Movement
R v Secretary of State for Foreign Affairs Ex p The World Development Movement is a judicial review case in English law in which the World Development Movement challenged the decision of Britain's Foreign Secretary to spend £234m on a development project on Malaysia's Pergau Dam.At the time, the...
. Section 1 of the Overseas Development and Co-operation Act 1980 empowered the Secretary of State for Foreign Affairs to assign funds for development aid of economically sound projects. The Secretary assigned the funds for a project to construct a power station on the Pergau River in Malaysia (see Pergau Dam
Pergau Dam
Pergau Dam is the hydroelectric dam in Kuala Yong, Kelantan, Malaysia. It is located about 100 km west of Kota Bharu.-Power station:The power station is a hydroelectric power station, using 4 turbines of 150 MW installed capacity...
) which was considered as uneconomic and not sound. The House of Lords held that this was not the purpose envisaged by the enabling statute and the Minister therefore exceeded his powers. A similar principle exists in many continental legal systems and is known by the French name of détournement du pouvoir.
Ignoring relevant considerations or taking irrelevant considerations into account
This ground is closely connected to illegality as a result of powers being used for the wrong purpose. For example Wheeler v Leicester City Council, where the City Council banned a rugby club from using its ground because three of the club's members went on a tour in South AfricaSouth Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
at the time of apartheid. In R v Somerset County Council Ex parte Fewings the local authority decided to ban stag hunting on the grounds of it being immoral. In Padfield v Ministry of Agriculture, Fisheries and Food, the Minister refused to mount an inquiry into a certain matter because he was afraid of bad publicity. In R v ILEA Ex parte Westminster City Council [1948] 1 KB 223, the London Education Authority used its powers to inform the public for the purpose of convincing the public of its political point of view. In all these cases, the authorities have based their decisions on considerations, which were not relevant to their decision making power and have acted unreasonably (this may also be qualified as having used their powers for an improper purpose).
Note that the improper purpose or the irrelevant consideration must be such as to materially influence the decision. Where the improper purpose is not of such material influence, the authority may be held to be acting within its lawful discretion. So R v Broadcasting Complaints Commission Ex parte Owen [1985] QB 1153, where the Broadcasting authority refused to consider a complaint that a political party has been given too little broadcasting time mainly for good reasons, but also with some irrelevant considerations, which however were not of material influence on the decision.
Fettering discretion
An authority will be acting unreasonably where it refuses to hear applications or makes certain decisions without taking individual circumstances into account by reference to a certain policy. BOC v Minister of technology 1971. When an authority is given discretion, it cannot bind itself as to the way in which this discretion will be exercised either by internal policies or obligations to others. Even though an authority may establish internal guidelines, it should be prepared to make exceptions on the basis of every individual case.This has changed in modern times, with the new coalition government providing an overrulement.
Irrationality
Under Lord Diplock's classification, a decision is irrational if it 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 could have arrived at it." This standard is also known as Wednesbury unreasonablenessWednesbury unreasonableness
Associated Provincial Picture Houses v Wednesbury Corporation [1947] 1 KB 223 is an English law case which set down the standard of unreasonableness of public body decisions which render them liable to be quashed on judicial review...
, after the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, where it was first imposed.
Unlike illegality and procedural impropriety, the courts under this head look at the merits of the decision, rather than at the procedure by which it was arrived at or the legal basis on which it was founded. The question to ask is whether the decision "makes sense". In many circumstances listed under "illegality", the decision may also be considered irrational.
Proportionality
ProportionalityProportionality (political maxim)
The principle of proportionality is a political maxim which states that no layer of government should take any action that exceeds that which is necessary to achieve the objective of government . It was initially developed in the German legal system.It is a fundamental principle of European Union...
is a requirement that a decision is proportionate to the aim that it seeks to achieve. E.g. an order to forbid a protest march on the grounds of public safety should not be made if there is an alternative way of protecting public safety, e.g. by assigning an alternative route for the march. Proportionality exists as a ground for setting aside administrative decisions in most continental legal systems and is recognised in England in cases where issues of EC law and ECHR rights are involved. However, it is not as yet a separate ground of judicial review, although Lord Diplock has alluded to the possibility of it being recognised as such in the future. At present, lack of proportionality may be used as an argument for a decision being irrational.
Procedural impropriety
A decision suffers from procedural impropriety if in the process of its making the procedures prescribed by statute have not been followed or if the 'rules of natural justiceNatural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
' have not been adhered to.
Statutory procedures
An Act of Parliament may subject the making of a certain decision to a procedure, such as the holding of a public hearing or inquiry, or a consultation with an external adviser. Some decisions may be subject to approval by a higher body. Courts distinguish between "mandatory" requirements and "directory" requirements. A breach of mandatory procedural requirements will lead to a decision being set aside for procedural impropriety.Breach of natural justice
The rules of natural justice require that the decision maker approaches the decision making process with 'fairness'. What is fair in relation to a particular case may differ. As pointed out by Lord Steyn in Lloyd v McMahon [1987] AC 625 "the rules of natural justice are not engraved on tablets of stone." Below are some examples of what the rules of natural justice require:The rule against bias
The first basic rule of natural justice is that nobody may be a judge in his own case. Any person that makes a judicial decision - and this includes e.g. a decision of a public authority on a request for a license - must not have any personal interest in the outcome of the decision. If such interest is present, the decision maker must be disqualified even if no actual bias can be shown, i.e. it is not demonstrated that the interest has influenced the decision. The test as to whether the decision should be set aside is whether there is a "real possibility [of bias]", as established in Gough v Chief Constable of the Derbyshire Constabulary [2001] , which dropped the 'fair minded observer' part of the test.
The right to a fair hearing
Whether or not a person was given a fair hearing of his case will depend on the circumstances and the type of the decision to be made. The minimum requirement is that the person gets the chance to present his case. If the applicant has certain legitimate expectations, for example to have his license renewed, the rules of natural justice may also require that they are given an oral hearing and that their request may not be rejected without giving reasons. Where the decision is judicial in nature, for example a dismissal of an official in punishment for improper conduct, the rules of natural justice require a hearing and the person questioned must know the case against them and be able to examine and object to the evidence.
Duty to give reasons
Unlike many other legal systems, English administrative law does not recognise a general duty to give reasons for a decision of a public authority. A duty to give reasons may be imposed by statute. Where it is not, common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
may imply such a duty and the courts do so particularly with regard to judicial and quasi-judicial decisions.
Remedies
The following remedies are available in proceedings for judicial review:- Quashing order;
- Prohibiting order;
- Mandatory order;
- Declaration;
- Injunction;
- Damages
In any case more than one remedy can be applied for; however, the granting of all remedies is entirely at the court’s discretion.
Quashing Order
A quashing order nullifies a decision which has been made by a public body. The effect is to make the decision completely invalid. Such an order is usually made where an authority has acted outside the scope of its powers (‘ultra vires’). The most common order made in successful judicial
review proceedings is a quashing order. If the court makes a quashing order it can send the case back to the original decision maker directing it to remake the decision in light of the court’s findings. Or, very rarely, if there is no purpose in sending the case back, it may take the decision itself.
Prohibiting Order
A prohibiting order is similar to a quashing order in that it prevents a tribunal or authority from
acting beyond the scope of its powers. The key difference is that a prohibiting order acts
prospectively by telling an authority not to do something in contemplation. Examples of where prohibiting orders may be appropriate include stopping the implementation of a decision in breach of natural justice, or to prevent a local authority licensing indecent films, or to prevent the deportation of someone whose immigration status has been wrongly decided.
Mandatory Order
A mandatory order compels public authorities to fulfill their duties. Whereas quashing and prohibition orders deal with wrongful acts, a mandatory order addresses wrongful failure to act. A mandatory order is similar to a mandatory injunction (below) as they are orders from the court requiring an act to be performed. Failure to comply is punishable as a contempt of court. Examples of where a mandatory order might be appropriate include: compelling an authority to assess a disabled person’s needs, to approve building plans, or to improve conditions of imprisonment. A mandatory order may be made in conjunction with a quashing order, for example, where a local authority’s decision is quashed because the decision was made outside its powers, the court may simultaneously order the local authority to remake the decision within the scope of its powers.
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. Unlike the remedies of quashing, prohibiting and mandatory order the court is not telling the parties to do
anything in a declaratory judgment. For example, if the court declared that a proposed rule by a local authority was unlawful, a declaration would resolve the legal position of the parties in the proceedings. Subsequently, if the authority were to proceed ignoring the declaration, the applicant who obtained the declaration would not have to comply with the unlawful rule and the quashing, prohibiting and mandatory orders would be available.
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. Where there is an imminent risk of damage or loss, and other remedies would not be sufficient, the court may grant an interim injunction to protect the position of the parties before going to a full hearing. If an interim injunction is granted pending final hearing, it is possible that the side which benefits from the injunction will be asked to give an undertaking that if the other side is successful at the final hearing, the party which had the benefit of the interim protection can compensate the other party for its losses. This does not happen where the claimant is legally aided.
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) A recognised ‘private’ law cause of action such as negligence or breach of
statutory duty or;
(b) A claim under European law or the Human Rights Act 1998.
Discretion
The discretionary nature of the remedies outlined above means that even if a court finds a public body has acted wrongly, it does not have to grant any remedy. Examples of where discretion will be exercised against an applicant may include where the applicant’s own conduct has been unmeritorious or unreasonable, for example where the applicant has unreasonably delayed in applying for judicial review, where the applicant has not acted in good faith, where a remedy would impede the an authority’s ability to deliver fair administration, or where the judge considers that an alternative remedy could have been pursued.
External links
- A Judge Over your Shoulder - a guide on Judicial Review for administrators