11.1.2 Judicial Review lecture
One of the main objectives of judicial review is to hold the government to account. Accountability means the checking, controlling or regulating in the case of judicial review, of government so that it is held to account in relation to the principles of administrative law. It is not the only means of legal accountability to which public decision makers may be held to account; actions in tort and contract, as well as non-legal methods are also used. However, the main legal method for holding the government to account is through judicial review.
The role of the courts in acting as a check on the government is different to that of Parliament. Judges are non-political; they are unelected and cannot call the executive to account without an individual or organisation whose rights have been violated bringing a matter to them.
Part 54.1 of the Civil Procedure Rules defined judicial review and states:
(2) In this Section-
(a) a claim for 'judicial review' means a claim to review the lawfulness of-
(i) an enactment; or
(ii) a decision, action or failure to act in relation to the exercise of a public function
Judicial Review is initiated in the Administrative court by individuals or organisations that are affected by the exercise of state power; the courts enforce the rule of law by ensuring the public bodies do not act in excess of their legitimate powers. The courts ensure that public bodies are acting rationally, reasonably and proportionally. The court also ensures that the public body has adhered to the rules of natural justice. The court reviews the process undertaken by the state to ensure that the rules of fairness and integrity of process have been adhered to. Finally, the courts will also require that executive power is exercised in conformity with the rights and freedoms that are provided for within the European Convention on Human Rights [ECHR].
B. The History of Judicial Review
During the second half of the twentieth century, the role of government extended into areas that it previously had not been concerned with. The welfare state was established in which government took on roles in health, welfare, housing, immigration and education. As a consequence, there was an increased ability for private individuals to come into conflict with government exercise of powers.
A series of coherent principles of judicial review were therefore established during the 1960s, led by Lord Reid in the House of Lords. The law of procedural fairness was reformed first, then substantive review and aspects of the relationship between the law and the Crown were reformulated and strengthened. Finally, jurisdictional review was revisited and reformulated.
The most recent version of the Civil Procedure Rules 1998 was introduced in April 1999. It lays down a detailed procedure that should be followed when bringing a claim to the High Court or to the Court of Appeal. The Senior Courts Act 1981 is the other most important legal instrument, which governs judicial review.
C. Grounds for Judicial Review
Case in FocusCouncil of Civil Service Unions v Minister for the Civil Service  AC 374
Lord Diplock further elaborated upon the grounds of illegality, irrationality and procedural impropriety.
"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."
"By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (Associated Provisional Picture Houses Ltd v. Wednesbury Corporation  1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it".
"I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision".
The grounds for judicial review will be considered with in more detail in section 11.2, but it is useful at this stage to understand what they are and understand how they are necessary in order to proceed with a claim for judicial review.
D. Judicial Review and the Constitution
The principle of parliamentary supremacy provides the foundation for judicial review. The courts can not strike down legislation for being unconstitutional in the UK, but they do ensure that those exercising public functions are acting within the limits of their powers. Some authors have suggested that the constitutional basis for judicial review is the ultra vires principle. It is considered that the courts' authority in judicial review is in ensuring that public authorities act in accordance with Parliament's intent as established in Statute. The courts' jurisdiction is supervisory; they focus on the legality of the decision made by the public authority rather than the merits of the decision.
A consequence of the separation of powers, there are some decisions of the courts that the courts are reluctant to review. Traditionally, issues of national security, defence, and foreign affairs have been treated with particular caution by the courts. In the Council of Civil Service Unions v Minister for the Civil Service  AC 374case, national security consideration defeated the claim of the trade union to be consulted before a decision was made to withdraw the members' rights to belong to a trade union. However, there are cases where the courts have considered issues of national security.
Case in FocusA v Secretary of State for the Home Department  UKHL 56 (Belmarsh detainees case)
The House of Lords reviewed anti-terror laws, rejecting the argument that they should not intervene in such matters which were within the sole preserve of the executive. Nevertheless, the court still exercises extreme care when intervening in such matters.
E. Distinguishing between Judicial Review and Appeal
The distinction between judicial review and appeal proceedings relates to the power of the court; in appeal proceedings the court might substitute its decision for the decision of the court at first instance. In judicial review proceedings the courts basic power is to quash the challenged decision and to find it invalid; for the merits of the case to be determined the case must return to the original decision-making authority.
The second main distinction relates to the subject matter of the court's jurisdiction. The appeal court has to decide whether a decision was right or wrong based on the considerations of law. The judicial review court has the ability to decide if the question was legal, based upon the appropriate powers that the public body have been endowed with. There are many statutes, which provide for appeals from decisions by public bodies; commonly such appeals are limited to points of law, but in certain instances they may extend further to the facts of the case. Judicial review cases are always confined to questions of law.
The Housing Act 1996 grants a right of appeal and so the claimant is expected to seek a remedy under an appeal under this Act rather than under judicial review. Prior to 1996, a large number of housing cases were being subjected to judicial review which was a cause for concern by government. As a result, appeals which related to homelessness under the 1996 Act are now dealt with appeal via the county court. Judicial review proceedings on the issue of housing are now limited to exceptional cases.
Case in FocusR v Cambridge Health Authority, ex p B (No.1)  1 WLR 898
This case clarifies the point that courts should not consider the merits of a decision when considering a claim for judicial review. B was a 10-year-old child who was suffering from Leukaemia. The health authority refused to offer her a third course of treatment, which had a low chance of cure, and the cost of the treatment was £75,000. The health authority refused the treatment arguing that it was not an appropriate use of resources. In a claim for judicial review the court quashed the decision of the health authority, however the Court of Appeal upheld the health authorities decision, finding that although it was a difficult decision, the court should not have interfered with it.
Lord Bingham clarified that the courts function was only to rule on the lawfulness of the decision and should not express opinions on the likelihood of the success of particular medical treatment, or as such the merits of a medical judgment. This would mean that courts would be straying into an area that the constitution did not afford to it. The courts' role was merely to consider whether the health authorities decision making process to access its legality.
Exam Consideration: in an exam question you may be required to discern whether a decision can be challenged by judicial review, or by an appeal of the case on the merits. You need to therefore be able to distinguish between judicial review proceedings and appeal proceedings.
F. The Human Rights Act 1998 and Judicial Review
[Recap of the HRA] Section 3 of the Human Rights Act 1998 (HRA) requires that courts in so far as it is possible to do so, read and give effect to legislation in a way that is compatible with rights and freedoms under the European Convention on Human Rights (ECHR). Courts must also take account of decisions of the European Court on Human Rights (ECtHR) in interpreting the ECHR under section 2 HRA. Higher courts are able to grant a declaration of incompatibility of a statutory provision with an ECHR right under Article 4 HRA. A fast track procedure is available under section 10 HRA.
Members of the executive have at times been highly critical of the judiciary in their decisions in judicial review cases, e.g. David Blunkett, Home Secretary in 2003, as well as in the Tabloid press, criticising unelected judges for overturning the decisions that have been debated by Parliament. The following case was criticised by David Cameron as Prime Minister in 2011, as finding some requirements of the sex offenders register to be at odds with human rights provisions.
Case in FocusR(on the application of F and Thomspon) v Home Department  UKSC 17
The Supreme Court granted a declaration of incompatibility under section 4 HRA on the grounds that section 82 of the Sexual Offences Act was not in accordance with the right to a private and family life under Article 8 ECHR. Section 82 required those convicted of sex offences and convicted for thirty months imprisonment or more would need to inform the police where they would be living and if they were to travel abroad. This amounted to a lifetime ban without review and as such was found to be incompatible with Article 8.
i. Grounds for judicial review under the HRA
Under the HRA, it is possible for a claimant to argue that a breach of a Convention right was a ground for judicial review. Section 6 of the HRA provides that it is unlawful for a public authority to act in a way that is incompatible with the HRA. Section 7 HRA requires that a claimant be a victim of the unlawful act. Judicial review claims under the HRA must be brought within 3 months under section 7(5)(a)(b) HRA. The court might grant a remedy of damages under section 8 HRA.
ii Public and private authorities under the HRA
Primarily the HRA provides for claims against public authorities, but claims might also be brought against private bodies that are carrying out public functions. Since courts themselves are defined as public authorities under section 6(3) HRA they are bound by provisions of the ECHR in decision making even when making decisions which related only to private parties. In this sense, the Convention is said to have indirect horizontal effect.
Case in FocusCampbell v Mirror Group Newspapers  UKHL 22
Naomi Campbell, the supermodel brought an action for breach of confidence against MGN for publishing photographs of her attending Narcotics Anonymous meetings. Although both Campbell and MGN were private parties the court was obliged to apply Article 8 and 10 ECHR in reaching a decision about the respective rights to privacy of Ms Campbell and the right to freedom of expression of the MGN.
Baroness Hale stated that: "The 1998 Act does not create any new cause of action between private persons, But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties Convention rights.
In Campbell the case was brought against the newspaper as a tort claim for breach of confidence, since Campbell was not able to bring a direct action against MGN as a private party under Article 8 ECHR. However, once the case is brought before the court, the court is bound to apply Articles 8 and 10 in their decision making process.
Exam Consideration: It is useful to review the section on the Human Rights Act 1998 in Chapter 9 of this guide. The Campbell case illustrates the important point that a human rights claim cannot be brought against a private individual, but that the courts as public authorities are bound to consider Convention rights.
G. Judicial Review in Practice
Claimants turn to judicial review when they have exhausted other avenues of redress, such as the First-tier Tribunal. If the claimant succeeds the matter will normally be remitted to the original decision maker for a new decision in the light of the court's judgment. The decision maker might reach the same decision as was made previously, while this time acting lawfully.
When judicial review proceedings are used to protect 'Convention rights' under the HRA, the court might not be able to reach the same decision after reconsideration.
i. The Judicial Review Procedure
There are a range of tribunals and courts that exercise the jurisdiction to review the legality of public actions. The claim for judicial review procedure in England and Wales is set out in part 54 of the Civil Procedure Rules, (secondary legislation established under the Civil Procedure Act 1997). The judicial review procedure consists of two stages:
- Claimants must obtain the permission of a judge to make a claim;
- If permission is granted the will proceed to be dealt with by a court.
In order to obtain permission, the claimant must show that the claim was made within the time limits, the claimant has standing, and other potential avenues of redress have been exhausted. The application must be made promptly and claims made within 3 months have been held not to have been made quickly enough and refused. Lord Diplock explained the reasons for strict time limits judicial review cases in O'Reilly v Mackman  2 AC 237, when he stated that it was in the public interest in good administration that public authorities and third parties be not held in suspense as to the legal validity of a public decision. The court does have the discretion to extend the time limit, but this discretion is only used in rare cases.
Part 54 Civil Procedure Rules states that a claim for a judicial review means a claim to review the lawfulness of an enactment, or decisions or action in relation to the exercise of a public function. It is now possible to use judicial review proceedings to consider whether or not primary legislation in compatible with EU law, or incompatible with Convention rights under s.4 HRA.
Part 54.1 Civil Procedure Rules states that judicial review claims are concerned with the exercise of public functions, they are not limited to government bodies, but can include charities, and self-regulatory organisations that can be subject to judicial review claims through there exercise of public functions. A wide range of bodies, including some that are within the private sector, now exercise public functions.
Case in FocusAston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and anor  UKHL 37
[Lord Nichols of Birkenhead] In a modern developed state government functions... the manner in which wide-ranging government functions are discharged varies considerably. In the interests of efficiency and economy...functions of a governmental nature are frequently discharged by non-governmental bodies. Sometimes this will be a consequence of privatisation... One obvious example is the running of prisons by commercial organisations...
The main means by which a judge determines whether a body is subject to judicial review is to look at the source of the bodies powers. Acts of bodies whose powers derive from statute or the prerogative will usually be reviewable. Decisions taken under contractual obligations are not considered reviewable.
Case in FocusCouncil of Civil Service Unions v Minister for the Civil Service  AC 374, 409
[Lord Diplock] For a decision to be susceptible to judicial review the decision-maker much be empowered by public law (...) to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers...in the absence of any statute regulating the subject matter of the decision the source of the decision-making power may still be the common law itself... (i.e.... 'the prerogative').
It may be the case that the source of a body's powers cannot be identified, in the following case the Court of Appeal held that a Panel could be reviewed due to the importance and impact of the functions it undertook.
Case in FocusR v Panel on Takeovers and Mergers, ex parte Datafin  QB 815, 824-36
Although it performed important functions, the Panel on Takeovers and Mergers appeared to have no formal legal powers at all. It was located in the Stock Exchange building in the City of London, oversaw, and regulated an important part of the UK financial market. The Panel was an unincorporated association without legal personality... it had not statutory, prerogative or common law powers.
The Court of Appeal however, found that in determining whether a body should be subject to judicial review, the judge could also consider whether the body performs functions that have a 'public element'. The Court of Appeal discerned the public element from the nature and impact of the Panel's functions.
There is a similar wording within section 6 HRA to determine whether bodies are public authorities for the purposes of the Act. The issue of a private home that exercised a public care function has also come before the courts.
Case in FocusR v Servite Houses and Wandsworth LBC, ex parte Goldsmith (2000) 3 Community Care Law Reports 325
An individual was placed in a private care home by a local authority action under the powers in the National Assistance Act 1948. Servite services, the owners later decided to close the home. The question arose as to whether judicial review proceedings could be brought against Servite, since it was exercising a public function under the 1948 Act, functions that had previously been carried out by the LA. The High Court held that the relationship between the resident and the case home was governed solely by contract law and hence judicial review proceedings were inappropriate in this case. The court did not consider the nature of the function of the care home, but the legal relationship under which the services were delivered to the individual.
Exam Consideration: when answering a problem question you might be required to decide as to whether the defendant is a public body, whether its decisions are matters of public law, and whether the claimant has ground to bring a case of judicial review. In answering this question you should note that a court would look at the source of the defendants powers, applying Datafin and analyse the nature of the defendant's functions.
ii. Does the Claimant Have Standing?
Claimants must show that they have sufficient interest in a matter to bring judicial review proceedings in respect of it. Previously judges have taken a 'closed' approach to the persons who had sufficient interest, more latterly a more open approach has been adopted which allows claimants into court if they have an arguable case on the law. An important early decision representing this modified approach is the IRC case.
Case in FocusIRC v National Federation of Self employed and Small Businesses Ltd  AC 617, 644
The Federation wanted to challenge the decision by the tax authorities to grant a tax amnesty to print workers employed by newspapers. The Federation wanted to challenge the fact that the amnesty was granted by the HMRC, who went to great lengths to collect tax revenues from members of the Federation.
The House of Lords considered the substance of the claim and found that the Federation did not have sufficient interest in the matter since one tax payer did not have sufficient interest in the tax affairs of another taxpayer, to complain that they had been under-assessed. Lord Diplock's view differed from the majority in finding that the Federations claim failed, not due to lack of standing, but due to the fact that it had failed to establish that the Inland Revenue had acted unlawfully.
Lord Diplock's approach has now become the dominant approach, as seen in the World Development Movement case.
Case in FocusR v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd  1 All ER 611
WDM is a pressure group which campaigns to improve the quality of aid that is delivered to developing countries. It challenged the decision of the Home Secretary to provide funding for the Pergau Dam project in Malaysia. WDM claimed to represent the broader public interest as well as those of people in developing countries as opposed to a particular group of people in the UK. WDM was held to have sufficient interest in the matter to have standing to bring a judicial review claim. WDM was found to have an interest in the matter due to the importance of the matter raised, the absence of any other challenger, the nature of the breach, and WDM's prominent role in giving guidance and assistance with respect to giving aid.
Even in WDM the courts were very careful to ensure that the claimants had an arguable case in law. The WDM argued that the Home Secretary had misused powers conferred by legislation.
iii. Permissions stage
The permissions stage is governed by part 54(10) Civil Procedure Rules, the court decides whether it will allow the case to proceed to a judicial review hearing. This is to prevent 'trivial complaints and busybodies' from wasting the court's time [Lord Diplock, IRC v National Federation of Self employed and Small Businesses Ltd]. Claims for permission are dealt with by a judge on the papers; if permission is refused the claimant might request an oral hearing. There is a possibility of appeal to the Court of Appeal under CPR 54(12).
Permission often relies upon whether there is an 'arguable case'. A study of the permissions stage [V. Bondy and M. Sunkin, 'Accessing judicial review'  Public Law 647] found that in 1981 71 per cent of claimants were given permission to proceed, whereas in 2006 this figure had fallen to only 22 per cent. The research concluded that this was partially due to procedural reforms introduced in 2000, which led to higher levels of settlement out to court.
iv. The Hearing
A single judge commonly conducts the hearing, with witnesses and cross-examination being rare. The case is nearly always focused on issues of law rather than fact. Remedies are discretionary.
v. Judicial Review and Exclusivity
The process of discovery was simplified during the changes made to the judicial review process following the Law Commission's report (1976).
Case in Focus:O'Reilly v Mackman  2 AC 237,
The House of Lords confirmed that judicial review should be an exclusive procedure. In O'Reilly the claimants were prisoners who had been disciplined by the prison Board of Governors for various offences. They alleged breaches of prison rules and the rules of natural justice and asked the court for a declaration using private proceedings rather than judicial review. The House of Lords agreed that the private law claim was an abuse of procedure and should be struck out. The claims were held to be a blatant attempt to avoid the protections that Order 53 provides. There are safeguards built into the judicial review process which protect the public authority from unmeritorious claims, to include the permission requirement and the strict time limits.
vi. Public Law and Private Law Proceedings
An action against a public authority might be a private law action, such as damages for negligence. If this is the case this is not a judicial review proceeding. In Davy v Spelthorne Borough Council  AC 262 the claimant argued that the defendants had negligently failed to inform him of his rights and so failed to appeal an enforcement order in relation to his property. The House of Lords held that this was a valid claim under private law, since he was not arguing that the validity of the enforcement order, but was claiming that the council had acted negligently under private law. However, in Cocks v Thanet  2 AC 286 the subject matter of the claim was whether the claimant was made unintentionally homeless under the Housing (Homeless Persons) Act 1977, he applied for an injunction and damages. The court held that he must apply for judicial review as opposed to these civil law remedies since the court must determine the legality of the authority's decision, which made him homeless. The decision of a body can be challenged in civil and criminal proceedings.
The enactment of the Civil Procedure Rules has led to courts taking a more flexible and pragmatic approach to whether a claimant should proceed under private law or judicial review. In Clark v University of Lincolnshire and Humberside  1 WLR, a student challenged the university appeal process and regulations over a case of alleged plagiarism. She sued the University for breach of contract, but the University argued that it should have been a judicial review hearing which was debarred for being outside the three-month time limit. The Court of Appeal held that since the CPR the court had greater powers to supervise a private law case against a public authority and if such cases were unmeritorious the court could strike the case out; the claimant was allowed to proceed with her public law claim. It was held that the exclusivity principle should not now be applied in an overtly rigorous manner.
vii. Exclusion or restriction of access to judicial review
The government have sometimes inserted ouster clauses into statues providing that a body such as a tribunal should appeal or review a certain decision.
Case in FocusR v Medical Appeal Tribunal, ex p Gilmore  1 QB 574
The claim involved a challenge to the amount of compensation an individual received for a work related injury from the Medical Appeal Tribunal. The National Insurance (Industrial Injuries) Act 1946 stated that the decision of the MAT 'shall be final'. Lord Denning held that the claimant could apply for a judicial review of the remedy; there is still recourse to certiorari (a quashing order).
Courts have taken a similar approach to ouster clauses, for example a clause that states 'a decision shall not be challenged in a court of law'. These clauses seek to prohibit legal action relating to decisions of a body.
Case in Focus: Anisminic Ltd v Foreign Compensation Commission  2 AC 147
The House of Lords held that ouster clauses should be strictly construed; the court should be able to judicially review their decisions so that they are not exceeding their powers and acting ultra vires. Errors of law in this case, took the tribunal or public authority beyond the scope of its powers and thus subject to review with or without an ouster clause.
Time limited ouster clauses impose a time limit on the claimant; these are permissible. Courts have held that when the time limit has expired the clauses prevent a claim for review. In R v Secretary of State for the Environment, ex p Ostler  QB 122 Schedule 2 to the Highways Act  QB 122, stated that any challenge to an order had to be made within 6 weeks of the date that the order was published; the claimant made a challenge outside of this time limit. The court upheld this time limit, as in their view the delay and cost would be contrary to the public interest.
Parliament can also restrict the ability of judicial review by introducing alterative statutory appeal processes to a court to tribunal. In R (A) Director of Establishments of the Security Service  UKSC 12, the claimant wished to bring a claim for judicial review in the Administrative Court, under section 65(2)(a) Regulation of Investigatory Powers Act 2000 stated that any claim under the HRA against the security services should be brought before the Investigatory Powers Tribunal. The Supreme Court distinguished this case from Anisminic, in that Parliament had not ousted judicial security of the security services but simply afforded the power of scrutiny to the IPT, who had more expertise in dealing with sensitive information.
H. Conclusion: the effectiveness of Judicial Review
The effectiveness of judicial review proceedings have to be considered within the light of the courts' limited powers under the constitution. Under judicial review is expensive to bring a claim; it can cost upwards of £30,000 if the claimant loses and is required to pay the defendant's costs [https://www.leighday.co.uk/LeighDay/media/LeighDay/documents/JR-Quicky-and-Easy-Guide, p.3]. Court's powers are also limited since it is not possible to challenge primary legislation even if it conflicts with fundamental constitutional principles. If the executive has acted within the powers conferred to them by statute, the courts are unable to interview through the judicial review jurisdiction. Parliament has also curtailed the jurisdiction of judicial review by limiting the subject matter of the claims that can be heard through alternative statutory procedures. However, judicial review does perform an important constitutional function, not only on account of the decisions that are reached but also through the it's symbolic importance for the values that it embodies and protects.
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