Learning Outcomes
After reading this article, you will be able to identify and apply the four main grounds for judicial review—illegality, irrationality, procedural impropriety, and legitimate expectation. You will understand how each ground operates, recognise key legal concepts and terms, and apply these principles to realistic SQE1-style scenarios involving public law decision-making.
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. In your revision, focus on:
- 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
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.
- What does "illegality" mean as a ground for judicial review?
- How is "irrationality" (Wednesbury unreasonableness) defined in judicial review?
- What are the two main rules of natural justice relevant to procedural impropriety?
- 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.
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)
- 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.
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.
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.
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."
Worked Example 1.2
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.
Revision Tip
When revising, remember that irrationality is a high threshold. Most challenges will succeed under illegality or procedural impropriety rather than irrationality.
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)
- Breach of natural justice (e.g., not giving a fair hearing or acting with bias)
Worked Example 1.3
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.
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.
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. The court will balance fairness to the individual against any overriding public interest.
Worked Example 1.4
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.
Summary
| Ground | Focus | Typical Examples |
|---|---|---|
| Illegality | Acting outside legal powers | Exceeding statutory authority, fettering discretion, improper purpose |
| Irrationality | Extreme unreasonableness | Decisions no reasonable authority would make |
| Procedural impropriety | Failure to follow fair procedures | No fair hearing, bias, breach of statutory procedure |
| Legitimate expectation | Frustrating a clear expectation | Breaking a promise or established practice |
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.
- Irrationality (Wednesbury unreasonableness) requires a decision to be so unreasonable that no reasonable authority would have made it.
- Procedural impropriety includes failure to follow statutory procedures or breaches of natural justice (fair hearing and rule against bias).
- Legitimate expectation arises when a public body creates a clear expectation of a procedure or benefit, and it would be unfair to frustrate that expectation.
- Courts will balance fairness to the individual against any overriding public interest when considering legitimate expectation.
- Each ground has specific requirements and is assessed according to the facts of the case.
Key Terms and Concepts
- illegality
- ultra vires
- irrationality
- Wednesbury unreasonableness
- procedural impropriety
- natural justice
- fair hearing
- rule against bias
- legitimate expectation
