Judicial Review is the process in which the Judiciary is about to keep check on decision makers, which does include their own decisions, as well as executive and on occasion decisions from parliament. In order to bring a public law claim, certain criteria must be met.
Does the defendant qualify to be judicially reviewed?
The first question that must be addressed is whether the defendant is a public body. In order to be judicially reviewed, the defendant needs to be a public body. This is not always clear on the face, and therefore the nature of the decisions and the powers that they yield is taken into account. The case of ‘British Gas’ identifies that even though British Gas are now private and not an emanation of the state, they are considered as a public body. In this case 3 criteria were devised in order to decide whether the decision maker is sufficiently an emanation of the state:
- Source of Power?
- If the private body did not provide the service, the state would provide it?
- Special Powers Granted?
The case of St Mary’s School clarified that only 2 of the criteria need be satisfied in order to be classed as a public body.
When looking at ECHR claims, section 6 of the HRA must be consulted. Public authorities can be included as the courts and any body whos functions is of a public nature, which is wider and potentilly includes more claims that if it was based on any other grounds of JR.
Ouster clauses are rare but must be considered. These are ways in which the law makers have attempted to restrict the ability to judicially review their decision. This would render Judicial review useless as every decision and law made would contain an ouster clause and limit the abilities of the Judiciary to review and ensure there is no abuse of power.
The case of ‘Anisnimic’ is evidence in which the court has refused to acknowledge the complete ouster clause as it attempted to shop any legal proceeding challenging the decision made.
However, the case of ‘Ostler’ was evidence that the courts will allow a partial ouster clause. This was in relation to the reduction of time limit in which the claim was able to be made. It is unknown as to whether a limiting ouster wider than time limits will be allowed.
Does the Claimant qualify to bring a judicial review claim?
When looking at whether the claimant has sufficient interest, the court can look at section 31 (3) of the Seniour Courts act which states that the claimant must have been directly effected.
However, the exception to this is in regard to pressure groups. the WMD facts will be considered when a pressure group raises a judicial review. If there is no other reasonable party to raise the claim, then they will be entitiled to raise the claim.This is
When looking at ECHR claims, this is interpreted into whether the calimant has sufficient standing to bring ths claim. Section 7 of the HRA can be sighted which requires the claimiant to be directly affected without exception.
Public Law Issue
This point is raising the issue that claims that seek Judicial Review, must be made as an claim of Judicial Review. The claimant might have a successful JR claim, however if they do not follow the Judicial Review procedure, they will not be allowed to rely on the process. This was the case in Riley v Mackman as they brought a claim in Tort and wished to rely on Judicial Review principles.
It also looks at whether the descision that is made, and whether that will affect more than just the claimant. If it is just the claimiant, then Judicial review will not be available to them- Gillick.
The senior courts Act S31(6) clarifies that each JR claim must have been made without any undue delay. If there was undue delay then their claim will be unsucessful. This forces people to act fast on the descisions that are made.
Rule 54 of the Civil Procedure rules also expalins that every claim must be made within 3 months, Procurement claims within 30 days and Planning claims made within 6 weeks.
The case of R v Stratford and Avon, the claim was made after 8 months. However it was allowed as there was no undue delay. The case of Fin-Kelcey, a JR claim was made within the time limit, however it was subject to undure delay and therefore was suncessful. This clarifies that the court still retains discretion as to which claims they allow and which they dont.
Exhausted all other areas of Avenues of resolution
This is fairly straight forward. If there is any appeals procedures that they claimant may persue then they ust do so before applying for judicial review. If they have not exausted thim then their claim will be dismissed.
In the case of CCSU, Lord Diplock identified 3 areas of Judicial Review, Illegality, Irrationality, and Procedural Impropriety. EU and ECHR grounds have been developed further through Common Law.
There are many different heads of illegality. Some of which coincide, and in practice this would be identified. In a scenario there are usually more than just one head of illegality. Judicial Review is a hard process to go through and therefore the more arguments that can be made the better. The table below states the different heads of illegality, their meanings and cases to back them up.
|Illegality Ground of Judicial Review
|Acting without legal Authority||Gone beyond the powers prescribed to them in the statute/secondary legislation (Sometimes Prerogative).
|McCarthy and Stone|
|Delegation of Power||Delegated the power further to a body that should not possess the power.
|Fettering of Discretion||When the public body is given some discretion, they must not decide in advance how it is to be used e.g. blanket bans.
|Wrongful/Unauthorised Purpose||Acting contrary to the purpose intended by the law makers.
|Dual Purpose||Ulterior purpose is being used alongside the original purpose. Must decide which is the dominant purpose, as it may make no difference if the wrongful purpose is the servient one.
|Authorised Purpose Dominant– LNWR
Unauthorised Purpose Material– ILEA
|Irrelevant Considerations||Decision maker taken into account irrelevant considerations when deciding on the matter. Consideration not relevant to the purpose.
|Irrelevant Consideration- Padfield
Relevant Consideration- Roberts
|Error of Fact||Public body does not receive the correct information when deciding on the matter.
|Error of Law||Public Body does not understand/know the relevant law when deciding on the matter. Common when interpreting legislation as it is sometimes unclear.
The heads of illegality will be considered by the courts. If they feel as though the decision meets the criteria of any of the heads of illegality, then the Judicial Review claim will be Successful.
This is a hard ground in order to rely on with a high threshold. It is not enough for the decision to be unreasonable. This is fairly subjective and therefore when there is discretion it is important that it is highly unreasonable.
The Wednesbury case, regarding children being refused entry to a cinema on Sundays was classed as not unreasonable enough to be assigned as irrational. The judges questioned whether the decision was “so unreasonable that no other reasonable decision maker would have come to the same conclusion”. This because the test of illegality.
The CCSU case regarding the secret service members being deprived of service by trade union widened this test. In this case, the standard was raised to ‘so outrageous in its defiance of logic’.
If the court finds that the decision made was so outrageous in its defiance of logic, then the JR claim will be successful.
This is as the process in which the Decision maker was required to follow, not being followed correctly. There are 2 different types of Statutory impropriety; Statutory and Common Law. If a claim is successful on this ground of Judicial Review, it does not mean that the same decision cannot be made after following the correct procedure. This is only a way of the courts making sure correct procedure is followed.
Statutory Procedural impropriety refers to the process in which has been set out by Statue made my Parliament that was not followed. The case of R v Soneji further developed this principle (Money Laundering conviction. 2 years after conviction, they were issued with a confiscation order for the illegal money. Confiscation order must have been issued within 6 months).
In this case the court looked at the intention behind Parliament for implementing the law. The Mirrors the Purposive Approach used when judges have to interpret statute normally. Therefore, in this case, the Confiscation order was allowed as parliament intended not allow criminals to benefit from the proceeds of crime.
Common Law Procedural Impropriety is where a public body are acting/ making decisions which are against the rules of Natural Justice- Fairmount Investments (Right to a fair hearing, Rule Against bias).
The Right to a Fair Hearing
The right to a Fair Hearing Can be divided into 2 criteria; the right to receive reasons for the decision and the Right to be heard.
The general presumption is that there is no requirement for a decision maker to give reasons for their decision (Doody). However, the case of Cunningham allowed the presumption to be rebutted if the decision cried out for a reason. This links to the second criterion. The Judiciary generally do not like decisions to be made without a reason, therefore the threshold for this is fairly low. Where there is any problem with point of fact, or witness credibility, then reasons need to be produced for the decision- Osborn.
The Right to be Heard was divided up further by the case of McInnis v Onslow-Fane, where 3 categories were set out;
- Forfeiture cases- where the claimant will lose their lively hood.
Ridge v Baldwin- The greater the importance/ loss the claimant faces, the more important it is important to follow correct procedure. (Forfeiture)
- Application Cases- Cases of mere application need not be justified. Cases where someone is a first-time application and they are not losing anything by not being accepted.
McInnis v Onslow- ‘Applicants’ only have to be decided upon without any bias. No requirement for a hearing or reasons.
- Legitimate Expectation Cases- where the decision maker has created a legitimate expectation to act or omit in a certain way and they go back on their word.
It was held in the case of Lloyd v McMahon that even if it is specifically stated, there need not be an oral hearing. There is only the requirement of the hearing be fair and reasonable.
When deciding whether the legitimate expectation could be relied on, the case of Schmidt defined the difference between procedural and substantive impropriety.
Liverpool Taxi Fleet- Procedural Legitimate expectation. In this case there was a promise that the council would consult before granting more taxi licenses. This was a promise in reference to the procedure that needs to be followed, and therefore is clear and can be enforceable if they did not follow this procedure.
Coughlan- Substantial Legitimate Expectation. In this case the decision maker had led a Patient to believe they had a home for life. This was not in relation to a procedure that needs to be followed, it was about the substance and outcome of a decision. The courts held that this would only apply in rare circumstances where the decision maker made a statement that was “clear, unambiguous and devoid of relevant qualification”.
Lloyd v McMahon- If the outcome will be the same regardless of the procedure, there is no need to use the correct procedure. (Denied Oral Hearing)
The court will use its discretion on a case by case basis. If it found that there was a legitimate expectation, or a forfeiture case which procedure wasn’t followed properly, the JR claim may be successful.
Rule Against Bias
The rule against bias prohibits the use of bias in any decision that needs to be made by a public body. The case of McCarthy used the phrase “justice must be seen to be done” as well as actually done. This means that in relation to bias, there must be justice, but it must also be seen to be don’t without any bias which might have rendered the decision unjust. From this case 3 types of bias created:
- Actual Bias- where there was direct bias when making the decision.
- Automatic Suspicion of Bias- 3 criteria where a suspicion of bias may arise, which overlap in many ways:
- Decision maker is a party to the decision- (Pinochet)
- Decision maker has a financial or proprietary interest in the decision (Dimes)
- However, if the interest is so small and insignificant, it may be disregarded (Locabail)
- Decision maker is aligned to the party. (Pinochet)
- Appearance of a real possibility of Bias- looking at the vase of Porter v Magill- whether a reasonable and fair-minded observer conclude that there is bias?
The case of Kirkstall allowed this decision to apply to all decision makers, Judges and Public Bodies
If one of the following, then Common Law Procedural Impropriety will be found, and Judicial Review will be successful.
European Union Law
If the state makes a decision contrary to EU Treaties, Regulations or Directives, then there will be a Judicial Review claim available. This is further covered in the EU Law module.
European Convention of Human Rights
ECHR, only developed since 1952, and accelerated with the implementation of the Human Rights Act 1998 is still in its developing stage. They provide everyone in the 42 member states the protecting of Fundamental Human Rights. Only certain articles are adopted by the UK in the HRA. The Act was implimented in the UK to allow those who’s fundamental rights have been breached, to rely on them in a National court. Rather than having to go to Strasbourg to the European Court of Human Rights, in order excercise their rights.
Each Article right can be classified into being Absolute, Limited, or Qualified.
If it is an Absolute right, any breach will lead to a sucessful JR claim. If it is a limited right, such as the Right to Life, then there are only very exceptional circumstances where this right may be breached. If the reason does not fall into this category then there will be a sucessful JR claim.
Qualified rights are a little harder to establish a sucessful JR claim for:
- Was the interferences lawful? This looks at what law gave the descision maker the ability to breach the ECHR right?
- Was there a Legitimate Claim? This looks at subsection 2 of the article that was breached. This section lists the aims that the public authroity may be excercising by breching the Right.
- Was it necessary in a Democratic Society? (Bank Mellat). Here is where it is asked whether the breach of the Right was proportinate? Where there was a link between the measure and the Objective? Whther there was a less proportinate way? whether a fair balance of the rights have been stuck? This is something unlimately the courts will decide on.
If they find that it wasnt prescribed by law, a legitimate aim was not being used, or the breach was not proportinate, then their JR claim will be sucessful.
Remedies are fairly straight forward. If the claim is successful, then the state will have to undo the decision they made by the following orders. Private Law Remedies are not granted as a result of Judicial Review unless the claim is on the Grounds of ECHR, which will be discussed when looking at ECHR Ground.
Quashing Order- To strike down and invalidate the decision that has been made, acting like it was never made.
Mandatory Order- The state must act to correct the wrong that they have caused. They must limit the damage the claimant has suffered as a result of the decision being made.
Prohibiting Order- This will stop the decision being made. These are rare, and judges do not like to stop a decision being made as it may not be clear how they will rule. More commonly, an interim injunction is available and is usually more effective. An interim Injunction will stop all proceedings immediately, until the decision is considered, and then either be free to decide or gain a further inunction.