Judicial review - Grounds for judicial review: illegality, i...

Learning Outcomes

This article outlines the four main grounds for judicial review—illegality, irrationality, procedural impropriety, and legitimate expectation—and their operation in SQE1 assessment, including:

• Identification of each ground, its core legal tests, and how it fits within the supervisory nature of judicial review
• Recognition of typical SQE1 scenario cues that indicate illegality, irrationality, procedural impropriety, or legitimate expectation
• Distinguishing substantive from procedural grounds of review, and understanding how illegality often overlaps with procedural defects
• Analysing fettered discretion, unlawful delegation, acting under dictation, and misuse of purpose as indicators of illegality
• Applying the Wednesbury unreasonableness standard, and appreciating how proportionality interacts with irrationality where Convention rights are engaged
• Evaluating statutory and common-law procedural requirements, including the mandatory/directory distinction and the impact of substantial prejudice
• Explaining the elements of procedural and substantive legitimate expectation, and how courts balance fairness against overriding public interest
• Assessing the range and discretionary nature of judicial review remedies, including when courts may refuse, limit, or suspend relief despite finding unlawfulness
• Using these doctrines systematically to answer SQE1 multiple-choice questions and structured scenarios with clear, exam-focused reasoning

SQE1 Syllabus

For SQE1, you are required to understand the grounds on which judicial review claims may be brought and how to apply them in practice, with a focus on the following syllabus points:

• the nature and limits of judicial review
• the grounds for judicial review: illegality, irrationality, procedural impropriety, and legitimate expectation
• how to identify and apply these grounds to public law scenarios
• the distinction between substantive and procedural grounds of review
• the legal consequences of a breach under each ground
• how fettering discretion and acting under dictation indicate illegality
• the role of proportionality alongside irrationality where Convention rights are engaged
• how courts balance fairness and overriding public interest in legitimate expectation

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What does "illegality" mean as a ground for judicial review?
2. How is "irrationality" (Wednesbury unreasonableness) defined in judicial review?
3. What are the two main rules of natural justice relevant to procedural impropriety?
4. When can a claimant rely on the doctrine of legitimate expectation in judicial review?

Introduction

Judicial review allows courts to supervise the actions of public bodies, ensuring that decisions are lawful, rational, and fair. The four principal grounds for judicial review are illegality, irrationality, procedural impropriety, and legitimate expectation. Each ground provides a distinct basis for challenging administrative decisions and is essential knowledge for SQE1. Judicial review is a supervisory jurisdiction: courts focus on the legality of the process and powers exercised, not on the merits of the decision. Remedies are discretionary, and even where unlawfulness is established the court may refuse or tailor relief (for example, by suspending or limiting the effect of a quashing order to protect good administration).

Illegality

A public body acts illegally if it exceeds or abuses the powers granted to it by law. This is often described as acting ultra vires (beyond powers).

Key Term: illegality
Illegality is a ground for judicial review where a public body acts outside or abuses its legal powers.

Illegality can arise in several ways:

• Acting without legal authority (ultra vires)
• Misinterpreting or misapplying the law (error of law)
• Making a material mistake about a jurisdictional fact (error of fact that goes to power)
• Failing to exercise discretion properly (fettering discretion or acting under dictation)
• Using powers for an improper purpose
• Taking into account irrelevant considerations or ignoring relevant ones
• Unlawful delegation of decision-making

Key Term: ultra vires
Ultra vires means "beyond the powers"—when a public body acts outside the scope of its legal authority.

Key Term: improper purpose
Improper purpose arises where a power is exercised to achieve an aim the statute did not intend, rather than the purpose for which the power was conferred.

Key Term: relevant considerations
Decision-makers must have regard to relevant matters and disregard irrelevant ones; failing to do so may render a decision unlawful.

Key Term: delegation
Delegation is unlawful where a body entrusted with a decision permits another to decide it, unless statute authorises delegation or a recognised exception applies (e.g. the Carltona principle for ministerial decisions, or formal delegation under Local Government Act 1972, s 101).

Courts closely examine the statutory framework to determine the scope and purpose of the power. Powers must be used to advance the policy and objects of the Act. A public body cannot avoid a statutory purpose by adopting a blanket policy that excludes consideration of individual circumstances, nor may it simply follow another body’s view.

Where the statute requires the decision-maker personally to decide (for example, certain ministerial powers stated to be exercised “by the Secretary of State”), the Carltona principle will not apply. Conversely, ministers can act through responsible officials in their departments, and local authorities may delegate formally under s 101 of the Local Government Act 1972.

Worked Example 1.1

A local council is given statutory power to grant licences for street trading "as it sees fit." The council refuses all applications from vendors selling hot food after 6pm, following a blanket policy.

Answer:
The council has fettered its discretion by applying a rigid policy without considering individual cases. This is unlawful under the ground of illegality.

Key Term: fettering discretion
Fettering discretion occurs where a decision-maker adopts a rigid policy and fails to consider whether the policy should be departed from in individual cases.

Using a power to achieve extraneous aims—such as leveraging compliance in unrelated matters, favouring political allies, or punishing lawful conduct—also amounts to improper purpose. Similarly, a decision taken because another body objects, not because the decision-maker has considered the merits, is acting under dictation.

Worked Example 1.2

A local planning authority refuses permission for mineral extraction stating: “We will only grant permission if the Agriculture Minister does not oppose it. The Agriculture Minister has objected, so permission is refused.”

Answer:
The planning authority acted under dictation. It failed to exercise its own discretion and improperly allowed another minister’s stance to determine the outcome. This is unlawful (illegality).

Exam Warning

In SQE1, be alert for scenarios where a public body follows a fixed policy or acts under the instructions of another authority. These often indicate illegality due to fettering discretion or acting under dictation.

Consequences - Illegality

If a decision is found unlawful for illegality, the court will usually quash it and remit the matter for lawful reconsideration. However, relief remains discretionary and may be shaped to protect good administration (for instance, by suspending the quashing order to allow transitional steps or limiting it to prospective effect).

Irrationality

Irrationality, also known as Wednesbury unreasonableness, is a ground for judicial review where a decision is so unreasonable that no reasonable authority could have made it.

Key Term: irrationality
Irrationality is a ground for judicial review where a decision is so unreasonable that no reasonable authority would have made it.

Key Term: Wednesbury unreasonableness
Wednesbury unreasonableness refers to the high threshold for irrationality: a decision must be "so unreasonable that no reasonable authority could ever have come to it."

The test for irrationality is strict. Courts will not intervene merely because they disagree with the decision. The decision must be “outrageous in its defiance of logic” or “manifestly unreasonable.” The intensity of review may vary: where fundamental rights are engaged, courts scrutinise justification more closely. In human rights cases, proportionality is typically the more structured test; however, in domestic non-rights cases, irrationality remains the orthodox standard.

Worked Example 1.3

A licensing authority bans all bicycles from a public park to reduce noise, even though bicycles are generally quiet and cause no disturbance.

Answer:
The decision is likely irrational, as it is not logically connected to the stated aim. It may be challenged as Wednesbury unreasonable.

Courts take into account the decision-maker’s reasons, the evidence, and the logical connection between means and ends. They will not substitute their own views on policy but will intervene where the conclusion is one no sensible authority could reach.

Revision Tip

When revising, remember that irrationality is a high threshold. Most challenges will succeed under illegality or procedural impropriety rather than irrationality. Where Convention rights are at stake, consider whether proportionality provides a more appropriate analysis alongside or instead of irrationality.

Consequences - Irrationality

An irrational decision will usually be quashed and remitted. The court will not decide the merits afresh; it ensures the authority reconsiders lawfully and rationally.

Procedural Impropriety

Procedural impropriety covers failures to follow required procedures, including breaches of the rules of natural justice.

Key Term: procedural impropriety
Procedural impropriety is a ground for judicial review where a public body fails to follow required procedures or breaches the rules of natural justice.

Key Term: natural justice
Natural justice refers to the common law rules requiring fair procedures, including the right to a fair hearing and the rule against bias.

Key Term: fair hearing
The right to a fair hearing means that a person affected by a decision must have an opportunity to present their case.

Key Term: rule against bias
The rule against bias requires that decision-makers must not have a personal interest in the outcome and must appear impartial.

There are two main aspects:

• Failure to comply with statutory procedures (e.g., not giving required notice or not consulting where required)
• Breach of natural justice (e.g., not giving a fair hearing or acting with bias)

Natural justice requirements are context-sensitive. The more an individual stands to lose (e.g., forfeiture of livelihood or rights), the more exacting the procedural safeguards. “Bias” includes direct financial interest (automatic disqualification) and apparent bias, judged from the standpoint of the fair‑minded and informed observer who would conclude there is a real possibility of bias.

The duty to consult arises from statute or legitimate expectation. Even where consultation is not legally required, a clear practice of consulting may create a procedural legitimate expectation that consultation will occur before change.

Worked Example 1.4

A disciplinary panel dismisses a public employee without giving them an opportunity to respond to allegations.

Answer:
This is a breach of the right to a fair hearing and is procedurally improper. The decision can be challenged by judicial review.

Courts also consider whether a procedural requirement is “mandatory” (non-compliance invalidates) or “directory” (non-compliance may not invalidate). Modern approach focuses on legislative intention and the consequences of non-compliance: did Parliament intend invalidity to result, and has the claimant suffered substantial prejudice? Minor defects may not invalidate a decision if they cause no prejudice and substantial compliance occurred.

Worked Example 1.5

A statute requires notices about proposed school closures to be posted in local newspapers and “at or near the main entrances” of affected schools. Notices were published in newspapers and widely posted around schools, but not at the main entrances. Parents seek judicial review.

Answer:
A court would assess legislative intention and prejudice. Given substantial compliance and wide publicity, the omission may be treated as directory where no substantial prejudice is shown. If no notice at all had been given, invalidity would be more likely.

Exam Warning (Procedural Impropriety)

Not every procedural error will invalidate a decision. Courts will consider whether the error was "mandatory" (essential) or "directory" (less critical) and whether the claimant suffered substantial prejudice.

Consequences - Procedural Impropriety

A decision reached in breach of mandatory procedure or natural justice will typically be quashed and remitted for fair reconsideration. The court may refuse relief if the same outcome would highly likely have been reached even without the defect, unless exceptional public interest justifies relief.

Legitimate Expectation

Legitimate expectation protects individuals who have been led to expect a certain procedure or benefit due to a public body's promise or established practice.

Key Term: legitimate expectation
Legitimate expectation is a ground for judicial review where a public body has created a reasonable expectation of a procedure or benefit, and it would be unfair to frustrate that expectation.

There are two types:

• Procedural legitimate expectation: Expectation of a hearing or consultation before a change.
• Substantive legitimate expectation: Expectation of a specific benefit or outcome.

A legitimate expectation arises only if the representation is clear, unambiguous, and made by someone with authority. Past consistent practice can suffice. For a substantive expectation, courts balance fairness to the individual (including any reliance and the scope of the promise) against any overriding public interest. Substantive legitimate expectations are more commonly upheld where promises target a small class and consequences of honouring them are limited, primarily financial. An expectation cannot legitimate an unlawful outcome; an unlawful promise cannot be enforced.

Worked Example 1.6

A health authority promises a disabled resident that a care home will be her home for life. Later, it decides to close the home for budget reasons.

Answer:
The resident has a substantive legitimate expectation based on the authority's promise. The closure may be challenged unless there is an overriding public interest. The court will weigh fairness to the resident against the authority’s reasons; purely financial reallocation is unlikely to justify frustrating a clear “home for life” promise to a small group.

Worked Example 1.7

A department has for years consulted industry groups before changing technical licensing standards. Without warning, it changes the standards without any consultation, even though statute does not require consultation.

Answer:
A procedural legitimate expectation of consultation has arisen from established practice. Absent compelling reasons (e.g., urgency or national security), failing to consult is procedurally improper and the change may be quashed.

Exam Warning

Substantive legitimate expectations are exceptional. Look for a clear and targeted promise to an individual or small class, reliance and fairness, and absence of overriding public interest.

Consequences - Legitimate Expectation

If a procedural legitimate expectation is frustrated, the court will usually require the public authority to follow the expected procedure (e.g., consult) before proceeding. If a substantive legitimate expectation is unfairly frustrated, the court may quash the decision and require the benefit to be honoured, unless compelling public interest justifies departure.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Judicial review may be brought on four main grounds: illegality, irrationality, procedural impropriety, and legitimate expectation.
• Illegality covers acting outside or abusing legal powers, including ultra vires, improper purpose, and fettering discretion; acting under dictation and unlawful delegation also signal illegality.
• Decision-makers must consider relevant matters, ignore irrelevant ones, and understand the scope and purpose of their powers; using powers to achieve extraneous aims is unlawful.
• Irrationality (Wednesbury unreasonableness) requires a decision to be so unreasonable that no reasonable authority would have made it; review intensity varies and proportionality applies in human rights contexts.
• Procedural impropriety includes failure to follow statutory procedures or breaches of natural justice (fair hearing and rule against bias); courts assess whether requirements are mandatory or directory and whether substantial prejudice has occurred.
• Legitimate expectation arises when a public body creates a clear expectation of a procedure or benefit; courts balance fairness to the individual against overriding public interest, and expectations cannot legitimate unlawful outcomes.
• Remedies are discretionary; established unlawfulness will typically lead to quashing and remission for lawful reconsideration, but courts may suspend or limit relief to protect good administration.

Key Terms and Concepts

• illegality
• ultra vires
• irrationality
• Wednesbury unreasonableness
• procedural impropriety
• natural justice
• fair hearing
• rule against bias
• legitimate expectation
• improper purpose
• relevant considerations
• fettering discretion
• delegation