Introduction
Judicial review is a fundamental process within the legal framework of England and Wales. It allows the High Court to supervise the actions of public bodies, ensuring they act within their legal powers and in a manner that is fair and reasonable. The core concept of judicial review is not concerned with the merits of a decision, but rather with the legality of the decision-making process itself. This supervisory jurisdiction is a critical component of the rule of law, preventing public authorities from acting arbitrarily or abusing their power. This process is governed by strict requirements, with specific grounds for challenge and established remedies. The following article will explore the three main grounds on which decisions of public bodies can be challenged: illegality, irrationality, and procedural impropriety. It will also include relevant examples and authoritative citations to illustrate these core concepts of judicial review.
Illegality: Acting Outside Legal Authority
The first ground for judicial review, illegality, concerns instances where a public body acts outside its legal powers. This typically happens where a public body misinterprets or misapplies the law that empowers it to act. This can manifest in a variety of ways. For example, an authority may exceed the powers explicitly granted by an Act of Parliament, or it may act for an improper purpose not intended by the legislation.
Errors of Law and Jurisdictional Errors
Errors of law occur when a public body incorrectly interprets the legal rules or principles governing its actions. The seminal case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 established that all errors of law are reviewable, regardless of whether they were previously classified as jurisdictional or non-jurisdictional. This removed the artificial distinction that had previously restricted judicial review, thereby establishing the wide scope for challenging errors of law in judicial review proceedings. For example, in R v Hull University Visitor, Ex parte Page [1993] AC 682, the House of Lords clarified the scope of this principle, whilst still accepting that certain domestic bodies could operate outside the parameters of the general law. This case shows how the court evaluates whether a decision-maker has applied the correct legal principles when reaching their decision.
A closely related concept is that of jurisdictional error, which occurs when a public body makes a decision beyond the scope of its legal competence. This can involve making a decision it has no power to make, or acting outside the geographical or temporal boundaries of its jurisdiction. An example of this can be seen in R v Monopolies and Mergers Commission, Ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23. This established that the public authority must correctly understand their jurisdictional parameters and must be able to demonstrate they had correctly interpreted the relevant legislation when determining whether to act.
Improper Purpose and Irrelevant Considerations
Public bodies must use their powers for the purposes they were granted, and for no other purpose. A decision will be unlawful if it was made for an improper purpose. In Wheeler v Leicester City Council [1985] AC 1054 the local authority banned a rugby club from using a recreation ground for training due to some club members attending a tour in South Africa. This was found to be an unlawful use of power for an improper purpose. As Lord Templeman stated, “The council could not properly seek to use its statutory powers of management or any other statutory powers for the purposes of punishing the club when the club had done no wrong”.
This principle is also closely linked to the prohibition against taking irrelevant considerations into account. Decision-makers must not allow factors that have no bearing on the purpose for which the power was granted to improperly influence their decision. In the above case, the council allowed its concerns over apartheid to improperly interfere with its power to manage recreational grounds. As Lord Roskill stated in Wheeler, “Persuasion, even powerful persuasion, is always a permissible way of seeking to obtain an objective. But in a field where other views can equally legitimately be held, persuasion, however powerful, must not be allowed to cross that line where it moves into the field of illegitimate pressure coupled with the threat of sanctions.” This case highlights the need for public bodies to maintain a focus on the objective legal criteria for each decision.
Delegation and Fettering of Discretion
Public bodies are typically empowered to act through named individuals. The principle against unlawful delegation prevents these individuals from passing on their responsibilities to others unless the legislation expressly permits it. This ensures that decisions are taken by those who have the relevant expertise and accountability. An example of this can be identified in Vine v National Dock Labour Board [1957] AC 488. Furthermore, public bodies must exercise the discretion that they are granted and must not adopt a rigid policy that prevents them from considering the specific facts of each individual case. This concept is known as the ‘fettering of discretion’ doctrine. Public bodies must be prepared to consider whether there are reasons to depart from their established policy.
This principle was established in British Oxygen Co Ltd v Minister of Technology [1971] AC 610, in which it was stated that a public authority must "not shut its ears" to an application that argues a change of policy. A ministry or large authority may have had to deal already with a multitude of similar applications, and then they will almost certainly have evolved a policy so precise that it could well be called a rule, and, There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say. It is also a reminder that the exercise of an unqualified discretion can be attacked on substantive grounds for bad faith or Wednesbury unreasonableness.
Irrationality: Unreasonable Decisions
The second ground for judicial review, irrationality, focuses on decisions which are so unreasonable that no reasonable decision-maker could have reached them. This is a high bar for claimants to clear as the courts are generally reluctant to interfere with the decisions of public authorities unless they are manifestly unreasonable.
Wednesbury Unreasonableness
The principle of irrationality is commonly referred to as Wednesbury unreasonableness, after the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. Lord Greene stated the criteria for this principle, noting that the relevant decision must be “so unreasonable that no reasonable authority could ever come to it”. This suggests the need to demonstrate the decision was outside the bounds of reason and logic. In R v Ministry of Defence, ex p. Smith [1996] QB 517, the court held that there is a higher standard of scrutiny for human rights cases but did not find the MOD’s policy of excluding homosexuals from the military to be so unreasonable as to be deemed unlawful.
This shows that while the threshold for showing irrationality is a high one, it can sometimes be satisfied. As has been seen, some decisions by public authorities may be illogical or nonsensical. The case of R (Rogers) v Swindon NHS Primary Care Trust [2006] EWCA Civ 392 clarified that when a decision interferes with fundamental rights (as was the case here), a justification must be made for why it is deemed a reasonable decision. In Rogers, the court also highlighted that a lack of competing socioeconomic reasons also makes decisions more susceptible to review under this ground.
The Sliding Scale of Rationality
The rigid distinction between the original Wednesbury standard and the more exacting standard of proportionality is not always maintained in practice. As cases have developed, the courts have adopted a more nuanced, sliding scale of review, that factors in the context of each case. This approach can be seen in R v Chief Constable of West Sussex, ex p International Traders Ferry [1999] 2 AC 418 where the House of Lords was reluctant to review the Chief Constable's decision to reduce police protection for lorries, considering that the matter concerned the management of limited resources. This demonstrated how the ‘monolithic’ quality of the original Wednesbury standard of unreasonableness has been adjusted by the courts in response to a variety of practical factors.
This shows that the intensity of review applied can vary greatly, depending on the nature of the decision, the type of body making it, and the subject matter of the case itself. This approach suggests that the principles of irrationality are more flexible than originally thought, though as of yet the courts have been unwilling to explicitly move towards a proportionality test as the default ground of review. As a result, the notion of ‘unreasonableness’ continues to have an extremely wide practical meaning.
Procedural Impropriety: The Need for Fairness
The third ground for judicial review, procedural impropriety, focuses on the fairness of the process by which a decision was made. The core premise of this ground is that public bodies must act fairly.
Natural Justice and the Right to Be Heard
The rules of natural justice are a key part of procedural impropriety, with a focus on procedural fairness. The first key aspect of natural justice is the right to be heard, known as audi alteram partem. This mandates that anyone potentially affected by a decision must be given a fair opportunity to make their case before the decision is made. This right has several components that must be satisfied. These include the right to be given prior notice of a decision that is being contemplated, an opportunity to make representations before the decision is made, and for such representations to be fairly considered by the decision-maker. The seminal case of Ridge v Baldwin [1964] AC 40 established that the right to be heard applies in all cases, not only quasi-judicial decisions, thereby removing the previously accepted analytic distinction which restricted the scope of procedural protection.
The specific elements of the right to be heard often differ depending on the nature of the decision. In Lloyd v McMahon [1987] AC 625 the court stated that the right to be heard will depend upon the circumstances of each case. However the courts have consistently ruled that if the decision will greatly affect a persons private rights or property rights then a higher standard of procedural protection must be applied. An example of this is that, in many cases, a hearing before a tribunal will often be satisfactory while a hearing before a court may be needed if more stringent legal rights and liberties are at stake. However, a basic right to be heard must be observed in all cases.
Impartiality and the Rule against Bias
The second key aspect of natural justice is that the decision-maker must be impartial and free from bias. This is encapsulated in the rule that no one should be a judge in their own cause or nemo judex in causa sua. The test for bias, established in Porter v Magill [2001] UKHL 67, is that the court must consider whether a fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility of bias on the part of the decision-maker.
The rule against bias goes to the heart of the principle of impartiality and fairness that must be observed when public authorities exercise their powers. In R (on the application of Pinochet Ugarte) v Bow Street Metropolitan Stipendiary Magistrate (No 2) [2000] 1 AC 119 it was held that a judge must recuse himself even if the bias was unconscious or subconscious and even though it could have not affected his decision, because public confidence in the legal process must be maintained.
Legitimate Expectation and Procedural Fairness
The final element of procedural impropriety is that of legitimate expectation. This doctrine provides that a public body must act consistently with a legitimate expectation that it has created. The courts have been keen to establish clear limits over this principle, and it is now more concerned with procedural as opposed to substantive legitimate expectations. This means that the court will only seek to ensure that consultation takes place or that notice is provided, but not to guarantee the expected outcome.
This aspect is illustrated by R v Secretary of State for the Home Department, ex parte Khan [1984] 1 WLR 1337. A government circular which gave information on the processing of applications for entry to the UK made a specific promise about procedure. The court found that there was a legitimate expectation that this would be adhered to. This case shows that even though an express policy may not be binding in itself, it does still impose procedural requirements on the public authority which seeks to deviate from it.
Remedies
The final aspect of judicial review is the remedies that are available if a claimant is successful in arguing that the decision has been made unlawfully. These are public law remedies that are granted at the discretion of the courts. The purpose of remedies is not to punish, but to allow the public authority to act within its lawful powers while also providing some form of vindication for the successful claimant. The main remedies are:
- Quashing Order (Certiorari): This order invalidates the original decision of the public body, returning the matter to the public authority to be reconsidered legally. The original decision then is of no legal effect and is “quashed”, giving the decision maker the opportunity to reach the proper and lawful outcome.
- Prohibiting Order: This order prevents the public body from acting unlawfully, which is particularly relevant in situations where the authority’s next move would clearly breach the law. This can prevent any further decisions from being taken that might be detrimental to public good and the rights of the citizens.
- Mandatory Order (Mandamus): This order compels a public body to perform its legal duty. This is particularly relevant when an authority has failed to act when it was required to do so.
- Declaration: This provides the court’s opinion on the parties' legal position. It can provide important clarification of the law to all parties concerned, especially where it may be a developing or grey area.
- Injunction: This prevents a public authority from acting unlawfully, similar to a prohibiting order. It can also compel the authority to act, similar to a mandatory order, depending on the situation.
- Damages: While damages are available under judicial review, they are limited. In situations where the claimant has suffered a loss, they may be entitled to compensation. But these are limited to private law remedies, where the same amount of damages must be proven to be the same had it not been due to the public bodies’ failure to act properly.
Conclusion
In conclusion, judicial review in England and Wales provides a mechanism to ensure public authorities act lawfully, reasonably and fairly. The grounds of illegality, irrationality, and procedural impropriety provide distinct, though sometimes overlapping, means by which public bodies can be held to account. Each ground has developed a wealth of case law and principles, creating a comprehensive and nuanced system of judicial supervision. Through clear case law and statutes, the judicial review system has developed into a complex set of rules which seek to balance the competing aims of public interest, effective public administration and the protection of individual rights. Ultimately, while the nature and extent of judicial review has always remained subject to dispute, its necessity in upholding a healthy liberal democracy and preventing tyranny has never been called into question.
