## Introduction

Judicial review is the High Court’s supervisory check on public bodies in England and Wales. It deals with lawfulness, not the merits of a decision. The court asks whether the decision-maker acted within their powers, applied a rational approach, and followed a fair process. Time limits are tight and remedies are discretionary, so a structured approach is essential. This guide explains the three classic grounds—illegality, irrationality, and procedural impropriety—supported by leading cases and practical steps.

## What You’ll Learn

- The three core grounds for judicial review and how they differ
- How to spot errors of law, improper purpose, and fettering of discretion
- The Wednesbury unreasonableness test and when intensity of review increases
- Procedural fairness: right to be heard, bias, and legitimate expectation
- Key cases: Anisminic, Wednesbury, Ridge v Baldwin, Porter v Magill, British Oxygen, Rogers
- Practical steps: permission, time limits, evidence, and choosing remedies

## Core Concepts

### Illegality (acting outside legal authority)

Public authorities must act within the powers granted by Parliament or the common law. Illegality occurs when a decision-maker misdirects themselves in law, uses a power for the wrong purpose, or fetters their discretion.

- Errors of law
  - After Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, errors of law are generally reviewable. Attempts to bar review through “ouster” clauses are read narrowly.
  - R v Hull University Visitor, ex p Page [1993] AC 682 confirmed the wide reach of review for legal error, with limited exceptions for truly domestic jurisdictions (e.g., university Visitors applying their own statutes).

- Jurisdictional limits
  - A body acts unlawfully if it makes a decision it has no power to make, or misstates the scope of its power. R v MMC, ex p South Yorkshire Transport Ltd [1993] 1 WLR 23 shows the focus on correctly understanding statutory terms that define jurisdiction.

- Improper purpose; relevant/irrelevant considerations
  - Powers must be used only for their intended purpose. In Wheeler v Leicester City Council [1985] AC 1054, the council acted unlawfully by punishing a club for matters unrelated to the statutory purpose of managing recreational facilities.
  - Decision-makers must consider relevant factors and ignore irrelevant ones. Allowing extraneous policy views to dominate will taint the decision.

- Unlawful delegation and fettering discretion
  - Delegation: Those entrusted with a power must exercise it personally unless the statute allows otherwise (Vine v National Dock Labour Board [1957] AC 488).
  - Fettering discretion: Authorities can have policies, but must stay open to exceptions. In British Oxygen Co Ltd v Minister of Technology [1971] AC 610, the House of Lords approved clear policies but insisted the authority “not shut its ears” to cases warranting departure.

Practical note: When reading a decision, ask three questions—(1) Did the body read the statute correctly? (2) Did it use the power for the proper purpose? (3) Did it keep an open mind despite any policy?

### Irrationality (Wednesbury unreasonableness)

Irrationality addresses decisions that are so unreasonable that no reasonable authority could reach them. It is a demanding standard, reflecting judicial caution about substituting the court’s view for that of the decision-maker.

- The classic test
  - Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223: a decision will be quashed if it is “so unreasonable that no reasonable authority could ever have come to it.”

- Variable intensity of review
  - Courts sometimes intensify scrutiny where fundamental rights or serious interests are at stake. In R v Ministry of Defence, ex p Smith [1996] QB 517, the court applied “anxious scrutiny” but upheld the policy then in force.
  - R (Rogers) v Swindon NHS Primary Care Trust [2006] EWCA Civ 392 shows an irrational policy can be set aside, particularly where like cases are treated differently without good reason.
  - In resource-sensitive contexts, courts may show restraint. R v Chief Constable of Sussex, ex p International Traders Ferry Ltd [1999] 2 AC 418 highlights deference to professional judgments about policing priorities.

- Proportionality
  - Proportionality is distinct from irrationality. It is the standard used where rights under the Human Rights Act 1998 are engaged, asking whether a measure is suitable, necessary, and strikes a fair balance. Outside those contexts, irrationality remains the default.

Practical note: Map the decision against its aims, evidence, and effects. Are similar cases treated consistently? Are reasons coherent? Is there a plausible justification, especially when rights are engaged?

### Procedural Impropriety (fair process)

This ground covers breaches of statutory procedural requirements and the common law duty of fairness.

- Natural justice: the right to be heard
  - Ridge v Baldwin [1964] AC 40 restored the general duty to give a fair opportunity to be heard where interests are affected.
  - The content of fairness is context-specific: Lloyd v McMahon [1987] AC 625. It may require notice, disclosure of the case to meet, a chance to make representations, and reasoned consideration.

- Impartiality and the rule against bias
  - The test for apparent bias comes from Porter v Magill [2001] UKHL 67: would a fair‑minded and informed observer conclude there is a real possibility of bias?
  - R (Pinochet) v Bow Street Magistrate (No 2) [2000] 1 AC 119 shows that even unintentional connections can require recusal to maintain public confidence.

- Legitimate expectation
  - Where a public authority makes a clear promise or establishes a settled practice, affected persons may reasonably expect a certain procedure. R v Secretary of State for the Home Department, ex p Khan [1984] 1 WLR 1337 held that a published policy created a procedural expectation.
  - Substantive expectations may, in rare cases, be protected if fairness strongly so requires (see ex p Coughlan [2001] QB 213), but procedural expectations remain more common. Any departure should be justified by good reasons and fair process.

Practical note: Check four fairness points—notice, opportunity to respond, impartial decision-maker, and consistent treatment where promises or established practices exist.

## Key Examples or Case Studies

- Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
  - Point: All errors of law are reviewable; ouster clauses are read narrowly.
  - Use: Argue that a legal misdirection renders the decision unlawful.

- Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
  - Point: The classic unreasonableness test—extreme irrationality required.
  - Use: Deploy where reasons and outcomes are outside the range of reasonable responses.

- British Oxygen Co Ltd v Minister of Technology [1971] AC 610
  - Point: Policies are allowed but must not be applied rigidly; listen to exceptions.
  - Use: Challenge “blanket” refusals that ignore case-specific merits.

- R (Rogers) v Swindon NHS Primary Care Trust [2006] EWCA Civ 392
  - Point: Inconsistent treatment without a sensible justification is unlawful.
  - Use: Health or welfare allocation decisions lacking clear, fair criteria.

- Ridge v Baldwin [1964] AC 40
  - Point: Fair hearing required where important interests are at stake.
  - Use: Argue for notice and a chance to respond before dismissal or sanction.

- Porter v Magill [2001] UKHL 67 and Pinochet (No 2) [2000] 1 AC 119
  - Point: Apparent bias test; recusal needed to maintain confidence.
  - Use: Seek a fresh decision where impartiality is compromised.

## Practical Applications

- Structure your analysis
  - Step 1: Amenability—Is the defendant a public body exercising a public function?
  - Step 2: Standing—Does the claimant have a “sufficient interest”? Consider R v IRC, ex p National Federation of Self-Employed [1982] AC 617 and modern practice allowing responsible group claimants in suitable cases.
  - Step 3: Time limits—Issue promptly and in any event within 3 months of when grounds arose (CPR 54.5). Shorter limits apply in some contexts (e.g., planning: 6 weeks).
  - Step 4: Alternative remedies—Consider statutory appeals, ombudsman routes, or internal reviews. The court may refuse relief if a suitable alternative was available.
  - Step 5: Grounds—Identify the best-fit ground(s): illegality, irrationality, procedural impropriety; consider proportionality where Convention rights are engaged.
  - Step 6: Evidence—Prepare a focused statement of facts with exhibits. Reasons, policy documents, minutes, and equality assessments often prove decisive.
  - Step 7: Remedies—Match the remedy to the wrong. Most common are quashing orders; prohibiting and mandatory orders are available where forward-looking relief is needed. Declarations, injunctions, and (exceptionally) damages can be sought.

- Permission stage tips
  - Present a clear, arguable case supported by key documents.
  - Explain delay (if any) and why the claim remains fair to hear.
  - Address discretionary bars (futility, de minimis effects, and academic points).

- Working with policies
  - Ask: Is there a published policy? If so, has the authority followed it or given a fair reason to depart?
  - If a rigid approach was applied, cite British Oxygen and request a case‑specific reconsideration.

- Rights-sensitive decisions
  - Where Article 8 (private/family life), Article 10 (expression), or Article 14 (non‑discrimination) are engaged, frame arguments in proportionality terms and request fuller reasons.

- Remedies in brief
  - Quashing order (certiorari): sets aside the decision; matter returns to the authority for lawful reconsideration.
  - Prohibiting order: stops proposed unlawful action before it occurs.
  - Mandatory order (mandamus): compels performance of a public duty.
  - Declaration: clarifies legal rights and obligations.
  - Injunction: interim or final restraint/compulsion to prevent harm or secure compliance.
  - Damages: only where a separate cause of action or statutory route exists (e.g., HRA s.8), and loss is proved.

- Common pitfalls
  - Missing the deadline or failing to act “promptly”
  - Overloading grounds; focus on the strongest point
  - Ignoring the policy framework or failing to request reasons
  - Seeking a remedy that does not match the legal flaw

## Summary Checklist

- Is the decision amenable to judicial review and is standing established?
- Have you issued promptly and within the relevant time limit?
- Which ground applies?
  - Illegality: error of law; improper purpose; irrelevant/relevant considerations; delegation/fettering
  - Irrationality: outcome outside any reasonable range; inconsistent treatment without justification
  - Procedural impropriety: lack of fair hearing; apparent bias; broken promise/policy without fair process
- Are rights engaged, calling for proportionality analysis?
- Have you gathered key evidence: reasons, policies, minutes, equality or impact assessments?
- Are alternative remedies available or already tried?
- Which remedy best fits the flaw (quashing, prohibiting, mandatory, declaration, injunction, damages)?
- Any discretionary bars (delay, futility, hardship to third parties)?
- Clear relief sought and draft order prepared?

## Quick Reference

| Topic                | Authority                                  | Key takeaway                                       |
| -------------------- | ------------------------------------------ | -------------------------------------------------- |
| Errors of law        | Anisminic [1969] 2 AC 147                  | Legal errors are reviewable; ouster clauses narrow |
| Fettering discretion | British Oxygen [1971] AC 610               | Policies allowed, but exceptions must be heard     |
| Irrationality        | Wednesbury [1948] 1 KB 223                 | So unreasonable no reasonable body could decide it |
| Variable intensity   | ex p Smith [1996] QB 517                   | Closer scrutiny where rights are affected          |
| Procedural fairness  | Ridge v Baldwin [1964] AC 40; Lloyd [1987] | Fair hearing required; content depends on context  |
| Apparent bias        | Porter v Magill [2001] UKHL 67             | Real possibility of bias to a fair‑minded observer |

Judicial Review: Illegality, Irrationality and Procedural Impropriety