11.2.2 Applications, Grounds and Remedies Lecture

Introduction

This section follows on from the previous section, which discusses the theoretical basis of judicial review and the requirements for judicial review. In this section, the procedural process for making judicial review will be considered by outlining the stages established within Order 54 of the Civil Procedure Rules. Secondly, it will analyse the various grounds for judicial review, which were outlined by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, as illegality, irrationality and procedural impropriety. Further explanation of the exact meaning of these terms will be given. The final part of this chapter looks at the various remedies for judicial review. It is important to remember that all remedies are discretionary and some, such as injunctions, are also relied upon in private law hearings. However, certain orders such as quashing orders or mandatory orders are exclusive to judicial review proceedings.

A. Applications for Judicial Review

In 1977, a new Rule of the Supreme Court (Order 53) created the procedure of 'application for judicial review'; a reform confirmed by Parliament in 1981. Order 54 of the Civil Procedure Rules replaced Order 53 in 2000. Section 31 of the Senior Courts Act 1981 provides that applications for mandatory, prohibiting and quashing orders must be made by an application for judicial review. Injunctions can also be granted under section 31(2) in judicial review cases. Section 31(3) requires that permissions is needed for every application of judicial review.

The first step in the judicial review procedure is that the claimant complies with the pre-action protocol. This includes a letter to the public authority outlining their claim with the aim that litigation can be avoided. If it cannot be avoided, the claimant must file a claim with the Administrative Court outlining the decision that they require to be reviewed. The defendant must state within 21 days whether they intend to context the claim. A permissions hearing will usually be held on the papers before a single judge, but a claimant can ask for a hearing with a renewed application for permission. An appeal to the Court of Appeal (CA) is a possibility if permission is withheld following this hearing.

Claims must be made promptly and in any event within a three month period. The court may extend the time if there is a good reason to do so. The review can be refused under section 31(6) Senior Courts Act if it would 'lead to substantial hardship, or would substantially prejudice the rights of any person, or would be detrimental to good administration'. Such written evidence as is available must be used to support a claim for judicial review and a witness statement confirming the truth of the facts relied upon; the defendant might also submit evidence in response.

To establish standing to make a claim for a judicial review, the court must find that the applicant has 'sufficient interest in the matter to which the application relates' (section 3(1) Senior Courts Act 1981). The court then has discretion to refuse an application by those who are without legitimate concern in a particular issue. In R v Employment Secretary, ex p EOC [1995] 1 AC 1 an ordinary taxpayer had interest to challenge the government's proposal to designate a treaty providing extra funds to the EU as a 'Community treaty'. The Equal Opportunities Commission had standing to challenge statutory provisions, which discriminated against women in breach of their rights under EU law [R v HM Treasury, ex p Smedley [1985] QB 657].

A different test of standing has been established under the Human Rights Act 1998(HRA) section 7. Only someone who is a victim within the meaning of Art 34 ECHR can bring a claim that a public authority has acted in contravention of a Convention right under section 6 HRA. 

B. Grounds for Judicial Review

As discussed in Section 11.1, the three grounds for judicial review are outlined by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, as illegality, irrationality and procedural impropriety. Each ground will be considered in further detail here.

i. Illegality

Illegality is a very broad ground for review and covers a wide range of possible abuses by public authorities. It is worth reviewing Lord Diplock's definition of illegality in Council of Civil Service Unions, he stated [at 410]

"By 'illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

Lord Diplock's quote explains the broad range of potentially illegal acts that can be carried out by public authorities, acting in excess of their legal powers. When public authorities act outside of their legal authority, they are acting ultra vires; this is a central principle of administrative law.

The most straightforward illustration of the principle of ultra vires is where a public authority has undertaken activities for which they have no legal authority. An important early case that illustrates this kind of illegal act is Attorney General v Fulham Corporation [1921] 1 Ch 440.

Case in FocusAttorney General v Fulham Corporation [1921] 1 Ch 440

A local authority had the power to establish baths, wash-houses and open bathing spaces according to the Baths and Wash-houses Act 1846-78. The local authority also established a public laundry, operated by corporation employees. It was held that the Fulham Corporation did not have the powers to provide facilities for washing clothes by corporation employees.

The 'fairly incidental rule' implies that if the public authorities actions are fairly incidental to the powers expressed in Statute, they may be permissible. However, this was not the case in Fulham Corporation.

(a) Discretion

In other circumstances, a public authority has the discretion to act. Frequently claims for judicial review arise out of a public authority's exercise of discretion within their statutory powers. Many legislative provisions confer discretion upon a public authority. Examples of discretionary powers are provided under the Gambling Act 2005, which states that "the [Gambling] Commission may issue operating licences in accordance with the provisions of this Act" (Gambling Act 2005, section 65(1)).

Section 3 Immigration Act 1971 enables a non-British citizen to be deported from the United Kingdom, where the Secretary of State deems the deportation to be conducive to the public good" (Immigration Act 1971, section 3). Under such a provision, the authority may exercise discretion; it is not obliged to deport an individual, but has the choice to do so.

The essential element of a discretionary power is choice, whereas a duty removes discretion and takes away choice. Certain statute laws contain a number of criteria that an authority should take account of when exercising its discretion. Discretion has the advantage of conferring flexibility and allows a public authority to deal with situations on a case-by-case basis. It is problematic in that it allows authorities to deal with each case differently; however, it may lead to public authorities drawing up policies or guidelines to help. This may have the problem of fettering discretion, which is another form of illegality.

Administrative law has developed through the 1950s in part to prevent the arbitrary or inconsistent use of discretionary powers. Discretion must be exercised in a manner that complies with principles summarised by Lord Diplock in the CCSU case. Discretion will be unlawful if the exercise of discretion is irrational, illegal, or there is procedural impropriety.

Exam Consideration: Consider the opportunities and weaknesses of the exercise of discretion by public authorities. Think about a time when a discretionary decision by a public authority may have been made in your favour (for example the award of loan or grant), or if you have had a discretionary power exercised against you. This may help with the appreciation of why such powers are frequently subject to judicial review.

(b) Discretion is not unrestricted

The fact that discretion must be unfettered requires that it must be exercised according to the purpose of the law that gives rise to the discretion.

Case in FocusPadfield v Minister of Agriculture, Fisheries and Food [1968] AC 997

The case concerned the organisation of the milk marketing scheme under which farmers had to sell their milk to the Milk Marketing Board for a fixed fee, which varied according to the region of the country that the farmer lived. Farmers in the South-East argued that the fee they received was too low. The scheme was regulated under the Agricultural Marketing Act 1958, which established a complaints committee. The Minister for Agriculture had the discretion to refer complaints to this committee. The Minister dismissed the complaint by the farmers in the South-East on the basis that the committee were to find in the farmer's favour, political embarrassment would be caused to the Minister. The House of Lords emphatically rejected the Minister's argument and granted an order of mandamus (now referred to as mandatory order). They held that there were a number of reasons why a Minister might correctly refuse to refer a complaint. Lord Reid concluded that "Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act [which] must be determined by construing the Act as a whole". The majority of the House of Lord held that the Minister's actions were ultra vires as he had not acted in accordance with the purpose of the statute. The Act required that he consider the farmer's grievances and the political consequences for himself were not relevant to the exercise of his discretion. Refusal to pursue a complaint on the grounds that the complaint might be upheld clearly undermines the purpose and intention of Parliament in establishing the complaints committee.

(c) Illegality: discretion and policies

In cases were a public authority is exercising a discretion which affects a large number of people, it may adopt rules or policy for guidance. However, rules must be applied on a case-by-case basis without rigidity. If circumstances are included within a case that are unforeseen within regulations, these circumstances must be considered separately. A policy can be challenged as unlawful or because it breaches a Convention right.

Case in FocusBritish Oxygen Company Ltd v Ministry of Technology [1971] AC 619

The British Oxygen Company manufactures medical gases that were kept in cylinders and cost £20 each, in total the company spent £4 million on the cylinders. The Industrial Development Act 1966 conferred a power on the Board of Trade (BoT) to make a grant for new plant equipment.   The BoT refused a grant application of British Oxygen as it would not consider applications for items that individually cost less than £25.00. It was argued that the BoT had fettered its discretion by applying its policy too rigidly. The House of Lords found in favour of the BoT but Lord Reid explained the approach the authority should take in apply its policy. He stated that authorities must "always [be] willing to listen to anyone who has something new to say".

The following cases are examples of when courts have held that a public authority has acted unlawfully by applying a policy too rigidly.

Case in FocusR v North West Lancashire Health Authority, ex p A and others [2001] 1 WLR 977

The North West Lancashire Health Authority (NWLHA) had rejected the claimants' applications for sex-change procedures stating that it was not their policy to fund such operations, except where there was an overriding clinical need or exceptional circumstances. The CA upheld the policy as rational, but found that the HA had acted unlawfully because it had applied the policy too rigidly.  The HA had not described the meaning of 'exceptional circumstances' and rejected almost all applications on the same grounds, the court concluded it was operating a blanket policy without considering each case on its merits.

Case in FocusR (on the application of P) v SSHD; R (on the application of Q and another) v SSHD [2001] 1 WLR 2002

The prison service policy permitted mothers with newborn babies to remain in prisons with their babies in special units until the baby was 18 months old. The court held this policy was lawfully in accordance with the right to a family life (Art 8 ECHR); it found that the policy had been applied to rigidly in relation to Q as it had not considered the affects of separation on the child and the difficulties of finding a placement for the child outside of prison.

(c) Delegation, Abdication and Dictation

A body to which a responsibility to exercise discretion has been granted must not delegate that responsibility.  A statute that authorises delegation does not generally permit further delegation. In Barnard v National Dock Labour Board [1953] 2 QB 18, that national board that was delegated disciplinary functions over registered dockers to local boards; a local board acted unlawfully when it delegated the power to suspend dockers to port managers.

Delegated authority of ministers can be lawfully exercised by other officials for whom the minister is responsible to Parliament or by a junior minister. The minister cannot delegate the responsibility to another minister who has a different area of responsibility. Similar principles apply to statutory agencies. In R v Police Complaints Board, ex p Madden [1983] 2 All ER, it was found that the Police Complaints Board could not adopt a policy of taking no action on complaints which the DPP had decided should not lead to criminal proceedings. Local government now has wide discretion to delegate their functions to committees, sub-committees and officers.

(d) Improper Purpose and Irrelevant Considerations

The exercise of power for an improper purpose is invalid. Improper purposes can include malice or dishonesty on behalf of a public official.  A city council was empowered to buy land compulsorily for the purpose of extending streets or city improvements, could not compulsorily buy land to benefit from an anticipated increase in the value of the land [Municipal Council of Sydney v Campbell [1925] AC 338].

In Congreve v Home Office [1976], QB 629 the Home Office threatened a number of TV licence holders with the revocation of their licence if they failed to pay an extra £6. The CA held that it was an improper use of executive power to use threats as a means of extracting money.

In Potter v Magill [2001] UKHL, 67, [2002] 2 AC 357, the House of Lords (HL) held that it was unlawful for the Westminster Council to sell off council houses in certain parts of the city in the belief that home owners are more likely than council tenants to vote Conservative.

(e) Error of Law and Error of Fact

An error of law by a public authority is outside of its jurisdiction and will be declared invalid by the courts. 

Case in FocusR v Home Secretary, ex p Venables [1998] AC 407

The Home Secretary increase the minimum 'tariff period' which two juvenile killers would have to serve before being considered for parole. The Home Secretary stated that young offenders who commit murder should be treated in the same manner as adult offenders in the imposition of mandatory life sentences. The CA held that the Home Secretary had erred in law and acted outside the extent of his powers in failing to distinguish the regime for juveniles and adult offenders.

A policy to ban deer hunting across its area by a county council was found to exceed the extent of the county council's powers and the policy was quashed [R v Somerset CC, ex p Fewings [1995] 3 All ER 20]. These illustrate the point that the decision maker is expected to appreciate the extent of their powers and to act within them.

Judicial review does not provide a right of appeal, so an error of fact must not ask the court to substitute the court for the decision maker in deciding an issue of fact. However, if there was an evident mistake in finding of fact that is directly material to the decision the issue may be subject to judicial review.

There are four conditions for the jurisdiction of judicial review under an error of fact:

  1. A mistake as to an existing fact;
  2. The existence of the fact must be uncontentious;
  3. The claimant should not have been responsible for the mistake;
  4. The mistake must not have been material to the earlier decision.

ii. Irrationality

In CCSU, Lord Diplock explained that irrationality means unreasonableness.  Unreasonableness has been referred to many times by courts, in Roberts v Hopwood [1925] AC 578, [1925] All ER 24, the House of Lords held that discretionary powers must be exercised reasonably.

Case in Focus Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1, [1948] KB 223, [1947] 2 All ER 680, [1948] 1 KB 223

This case established the well-known ‘Wednesbury’ principle. The plaintiff company was the owner and licensee of the Gaumont cinema, Wednesbury, Staffordshire, were granted a licence to give performances on a Sunday under s.(1) of the Sunday Entertainments Act 1932, by the licensing authority for the borough under the Cinematograph Act 1909. A condition was applied to the licence that children under the age of 15 are prohibited with or without an adult. The plaintiff brought a declaration that the condition was unreasonable and ultra vires. In the Court of Appeal (CA), Lord Greene explained the word “unreasonableness”, which was used to describe actions based on illegality and irrelevance. If the exercising authority must by express or implied notification of the statute to have regard to certain matters in making their decision, the authority must not disregard them. In this case, the Wednesbury principle can be established as requiring that a court consider:

(a) The public authority took account of factors that it ought not have taken into account in making that decision, or

(b) The public authority failed to take account of factors that it ought to have taken account of, or

(c) The decision was so unreasonable that not reasonable authority would ever consider imposing it.

The CA held that the licensing authority’s decision did not fall within any of these categories.

The third element of this test is particularly difficult to prove. It requires something overwhelming to prove it. One such decisions was established in Backhouse v Lamberth LBC, in which a housing authority passed a resolution under s.111 (1) Housing Act 1957, which imposed an increased rental of £18,000 per week on a house that was unoccupied and uninhabitable. The LBC had done this in order to exempt itself from increasing rents of council houses under the provisions of s. 63(1) Housing Finance Act 1972. The court held that this decisions fulfilled the third criteria of Wednesbury in that it was a decisions which no reasonable authority could have made.

Case in FocusR v Ministry of Defence ex p Smith [1996] QB 517

The CA considered irrationality within the context of human right laws. Smith and 3 others appealed against the Ministry of Defence (MoD) policy that homosexuality was incompatible with service in the armed forces, which had led to their dismissal from the armed services. Smith argued that the policy was irrational and contrary to the Treaty of Rome 1957, Council Directive 76/207 on the Equal Treatment for Men and Women as regards Access to Employment and the European Convention on Human Rights (ECHR). The CA dismissed the appeal holding that the court must decide whether the decision was beyond the range of responses available to the reasonable decision maker. At the time the applicants were discharged, the Treaty of Rome and Council Directive 76/207 did not apply to discrimination on the grounds of sexual orientation and the failure to consider Convention obligations did not impugn the exercise of discretion.

Exam Consideration: In most problem type questions which focus upon judicial review, irrationality will be considered in connection with other grounds for judicial review. Proportionality (below) is inextricably linked with human rights and EU law.

(a) Proportionality

Proportionality can be distinguished from 'Wednesbury unreasonableness'. The general standard for review under the HRA or in EU law is proportionality. Proportionality requires that the court take additional steps and engages with the challenged decision in much greater depth. It is possible that in time proportionality will be recognised as a ground for judicial review in purely domestic judicial review cases with no connection to the HRA or EU law.

Case in FocusR v Home Secretary, ex p Daly [2001] UKHL 26; [2001] AC 532

Lord Steyn set out the difference between the test for unreasonableness (U) and for proportionality (P).  In the latter case, the intensity of review is greater; there are three concrete differences between the two.  P requires the reviewing court to assess the balance that the decision maker has struck, not merely its reasonableness. P requires that consideration be given to relative interests and considerations. Finally, even the heightened scrutiny test in R v MOD, ex p Smith, is not necessarily sufficient protection for human rights. The requirements within the P doctrine require that the interference be proportionate to a legitimate aim pursued and be necessary in a democratic society, as required in the ECHR. Those using the traditional ground (U) and the P ground may yield different results.

iii. Procedural Impropriety

The correct procedure for making a decision must be observed for it to be lawful.  Procedural review thus examines the process by which a decision has been reached. Certain procedures are contained within the Statute conferring the powers on the public authority, others are found within common law doctrine of natural justice.

(a) Statutory requirements

Case in FocusRidge v Baldwin [1964] AC 40, 117

The Brighton police committee summarily dismissed their chief constable following his trial at the Central Criminal Court on charges of conspiracy; his acquittal had been accompanies by serious criticism of his conduct by the trial judge. The required that the correct procedure in such circumstances under the Police Act 1919 required a formal inquiry into the charges brought before the chief constable prior to dismissal. HL found that the dismissal must be regarded as void since it was arrived at in complete disregard for the disciplinary regulations.

There is certain procedural impropriety that invalidates administrative actions and others that does not. In London v Clydeside Estates Ltd v Aberdeen DC [1979] 3 All ER 876 a planning authority failed to notify landowners of their right of appeal to the Secretary of State against a decision that adversely affected them; this failure invalidated the decision.

(b) Natural Justice

The principles of natural justice are based on assumptions made historically by judges about how justice should be done. Many aspects of common law natural justice are now reinforced by the HRA by the right to a fair hearing under Article 6 ECHR. Two main rules of natural justice include (a) the rule against bias, i.e that a fair judicial decision is made by an impartial judge; and (b) the right to a fair hearing, that each party know the case against themselves and be given the right to defend themselves.

The rules of natural justice have been applied to many public authorities; the right of individuals to know the charges against them has been applied to the use of disciplinary powers, by universities [Ceylon University v Fernando [1960] 1 All ER 631] and trade unions [Breen v AEU [1971] 2 QB 175]. The rule against bias has also been applied to local authorities. A decision by the Barnsley markets committee to revoke a stallholder's licence for a trivial misdemeanour was quashed. The committee had heard the evidence of the market manager in the absence of the stallholder [R v Barnsley Council, ex p Hook [1976] 3 All ER 452].

The importance of natural justice in judicial review proceedings was highlighted in Ridge v Baldwin. The HL found that natural justice required that a hearing should have been given before the committee exercised its power to dismiss the chief constable; the failure to undertake a hearing invalidated the dismissal. Ridge v Baldwin established many of the foundations of the current judicial review procedures. The findings in Ridge were then extended to police officers [Chief Constable of North Wales v Evans [1982] 3 1 All ER 141] school teachers [Malloch v Aberdeen Corpn [1971] 2 All ER 1278],  market stall holders [Hook], residents of local authority homes at risk of closure [R v Devon CC, ex p Baker [1995] 1 All ER 73] and convicted prisoners in respect of prison discipline and parole hearings [R v Home Secretary, ex p Doody [1994] 1 AC 531].

Natural justice is now more commonly referred to as fairness. In Doody, Lord Musthill derived six principles from the authorities in order to explain the meaning of fairness:

  1. It is assumed that powers conferred by Parliament be exercised in a fair manner
  2. The standards of fairness develop over time;
  3. Fairness is dependent upon the context of the decision;
  4. An essential element of this context is the statute which confers the discretion upon the public authority;
  5. Fairness may require that anyone who would be acted adversely by the decision have the opportunity to make representations prior to the decision or afterwards with the view to its modification;
  6. A person affected must be informed of the gist of the case, which must be answered.

Exam Consideration: Be careful to distinguish the rules of natural justice as they are applied within judicial review proceedings and their existence as general principles in other areas of law. These rules have developed as a specific application to the system of judicial review.

C. Remedies for Judicial Review

Remedies in judicial review cases are discretionary, even if a public authority has been found to have acted unlawfully, the court may refuse to issue a remedy if this is in the public interest. This broader public interest might be a consideration that leads to public finances. This can be contrasted with private law cases where a claimant is entitled to relief. Notwithstanding this, it is not common for courts to refuse a remedy in public law litigation. There are three possible remedies, which are available in judicial review proceedings: quashing orders, mandatory orders and prohibiting orders.

Quashing orders are the most commonly sought after remedy, their effect is to quash or reject as invalid, unlawful administrative decisions. If the court finds a decision has been made in an unacceptable way, the decision can be quashed and the decision maker can be required to reconsider their decision in an acceptable way.  The courts might also rule that a decision itself is unlawful, in that it was unreasonable, disproportionate, or incompatible with the claimant's substantive legitimate expectations, or a decision that the maker had no jurisdiction to make. In such circumstances, a quashing order can compel the making of a particular decision.

Mandatory and Prohibiting Orders

Prohibiting orders are anticipatory in effect; they are issued to prevent unlawful action from being taken. In R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators' Association [1972] 2 QB 299 an LA decided to issue some new taxi licences in breach of an assurance that there would be a cap on licences. Existing licence holders opposed the proposed course of action, due to threat to their business.  The court issues a prohibiting order.

Mandatory orders compel public authorities to take legally required acts. Mandatory orders are also relevant in relation to discretionary powers such as a duty to act fairly. In Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, a mandatory order was issues to require a decision maker to exercise discretion in line with implied duties.

Injunctions

An injunction is equivalent to a prohibiting order in that it prevents a body from taking unlawful conduct. It can be distinguished from prohibiting order; injunctions can also be granted in ordinary proceedings. Injunctions can also be interim measures, for which the courts apply a three-stage test:

  1. Has the claimant shown prima facie that there is a 'serious issue to be tried'?
  2. Would damages be an adequate remedy, if the act were carried out?
  3. The court applies a balance of convenience test by considering the implications for both parties.

After a period of considerable uncertainty, it was established in Re M [1994] 1 AC 377 that that injunctions could be granted against Ministers acting in their official capacity, leading to contempt of court for failure to comply, which is a criminal offence. Since the Minister is acting in their official capacity they cannot be imprisoned or fined personally, which has been considered to be a dangerous concession. There will be political ramifications of such an act however.

Declarations

Declarations are a statement by the court that the legal issue has been brought to its attention. Unlike injunctions, they are non-coercive remedies and can be disregarded without legal consequences. They are appropriate when question shave not yet fully crystallised into specific legal disputes, such as when a claimant might wish to rule on some advice or guidance that they government has given to the unlawful acts by others.

Case in FocusRoyal College of Nursing v DHSS [1981] AC 800

A government circular said nurses could not lawfully undertake part of a procedure for termination of pregnancy without a doctor's supervision. The claimant sought a declaration that the government circular was wrong in law. The court declared that it was not wrong in law. Lord Edmund-Davies observed that 'several thousand' of the procedures in question were carried out each year, making clarification of the legal position desirable [at 833].

Courts have accepted that they should act with caution in their use of advisory declarations; it does mean that courts accept that they play a role in clarifying the law before a dispute arises as opposed to after the event. This buttresses the rule of law concept of certainty.

Damages

Part 54 Civil Procedure Rules provides that a claim for judicial review might include a claim for damages in conjunction with another remedy. This remedy cannot be sought as the sole remedy.

Exam Consideration: It is important to remember that all remedies in judicial review proceedings are discretionary and that some are only available by judicial review. It is also useful to consider what the remedy actually achieves and why a claimant might seek a particular remedy depending on the nature of their claim.


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