Judicial Review: Illegality, Irrationality and Procedural Im...

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