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JUDICIAL REVIEW
All cases can currently be found in Jacqueline Martin, The English Legal System, chapter 13.
DEFINITION
In Council of Civil Service Unions v Minister for the Civil Service [1985] 1 All ER 935, Lord Diplock said:
"Judicial review, now regulated by RSC, Ord. 53, provides the means by which judicial control of administrative action is exercised. The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the "decision-maker" or else a refusal by him to make a decision."
When will the process of judicial review be used? (See Martin, chapter 13)
Judicial review is different from an appeal. The distinction is that an appeal is concerned with the merits of the decision under appeal while judicial review is concerned only with the legality of the decision or act under review.
GROUNDS FOR JUDICIAL REVIEW
In the GCHQ Case (1985), Lord Diplock classified the grounds on which administrative action is subject to judicial control under three heads, namely, 'illegality', 'irrationality', and 'procedural impropriety'. He also said that further grounds may be added as the law developed on a case-by-case basis.
(A) ILLEGALITY
Illegality as a ground for judicial review means 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 a question to be decided in the event of dispute by judges.
This would mean that when a power vested in a decision-maker is exceeded, acts done in excess of the power are invalid as being ultra vires (substantive ultra vires).
An example would be where a local council, whose power is derived from statute, acts outside the scope of that authority. See:
Bromley Council v Greater London Council (1983).
Government Ministers have also sometimes acted outside their authority. See:
R v Home Secretary, ex parte Fire Brigades Union (1995).
(B) IRRATIONALITY
By irrationality as a ground for judicial review, Lord Diplock in the GCHQ Case (1985) meant what is referred to as Wednesbury unreasonableness.
In Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) the Court of Appeal held that a court could interfere with a decision that was 'so unreasonable that no reasonable authority could ever have come to it'.
Lord Diplock in the GCHQ Case said that this 'applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.'
Case examples include:
Strictland v Hayes Borough Council (1896)
R v Derbyshire County Council, ex parte The Times (1990)
This ground has been used to prevent powers from being abused by, for example, exercising a discretion for an improper purpose or without taking into account all relevant considerations.
(C) PROCEDURAL IMPROPRIETY
Procedural impropriety as a ground for judicial review covers the failure by the decision-maker to observe procedural rules that are expressly laid down in the legislation by which its jurisdiction is conferred, or a failure to observe basic rules of natural justice, or a failure to act with procedural fairness (procedural ultra vires).
An example of procedural rules not being followed is:
Aylesbury Mushroom Case (1972).
The main rules of natural justice are:
(i) nemo judex in causa sua potest (no man can be a judge in his own cause), which will be breached where the decision-maker has a direct financial interest or has acted both as prosecutor and judge, or where there is a real danger of bias. See:
R v Altringham Justices ex parte Pennington (1975)
(ii) audi alteram partem (hear the other side), which requires prior notice to be given of a decision adverse to individual interests together with an opportunity to make representations. See:
Ridge v Baldwin (1964).
PROCEDURE FOR JUDICIAL REVIEW
The procedure of application for judicial review is contained in the Supreme Court Act 1981 and Order 53 of the Rules of the Supreme Court, and is in two stages.
- Leave of the High Court is needed for every application for judicial review. Leave is generally a matter decided by a single judge without a hearing, but if necessary the decision may be made after a brief hearing. The application for leave is made ex parte, ie without notice to the other side, by filing a notice of application with an affidavit verifying the facts relied on, in the Crown Office.
- Where leave is refused without a hearing, the application for leave may be renewed in open court before a single judge or a Divisional Court. It may be further renewed in the Court of Appeal.
- When leave is obtained the hearing of the application for judicial review takes place before a single judge of the Queen's Bench Division or a full Queen's Bench Divisional Court in cases which involve criminal law.
- Appeals against a decision can be made to the Court of Appeal and from there to the House of Lords.
Applications for judicial review must be brought within a time limit and the applicant must have locus standi:
- By Order 53, an application for judicial review shall be made promptly, and in any event within three months from when grounds for the application first arose, unless there is good reason for extending the period.
- At the stage when leave is sought for an application for judicial review, the court must not grant leave 'unless it considers that the applicant has a sufficient interest in the matter to which the application relates' (s31(3) of the Supreme Court Act 1981).
The leading case on locus standi is:
R v Inland Revenue Commissioners, ex parte NFSSB (1982).
See also:
R v Secretary of State, ex parte EOC (1994)
If a person does not have locus standi he must use a different procedure called the relator action. This is an action brought by the Attorney-General 'on the relation' (at the instance) of some other person. The Attorney-General represents the public interest. The costs must be paid by the relator.
The Law Commission (No 226, 1994) recommended that if the applicant for judicial review was not directly affected by the decision under review, the court should have discretion to decide whether it was in the public interest for the application to be heard.
REMEDIES
If an application for judicial review is successful the following remedies are available.
- Firstly, the prerogative orders (mandamus, prohibition and certiorari):
- Mandamus is an order from the High Court commanding a public authority or official to perform a public duty.
- Prohibition is an order issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction, or acting contrary to the rules of natural justice.
- Certiorari is an order quashing decisions by inferior courts, tribunals and public authorities where there has been an excess of jurisdiction or an ultra vires decision; a breach of natural justice; or an error of law. By setting aside a defective decision, certiorari prepares the way for a fresh decision to be taken.
An injunction may be claimed against a public authority or official, to restrain unlawful acts which are threatened or are being committed.
A declaratory judgment may be obtained which merely declares the legal relationship of the parties and is not accompanied by any sanction or means of enforcement. The authority of a court's ruling on law is such that a declaratory judgment will normally restrain both the Crown and public authorities from illegal conduct.
Finally, the court may award damages if these have been sought by the applicant and the court is satisfied that damages could have been obtained by an action brought for the purpose (s31(4) of the Supreme Court Act 1981).
CRITICISMS OF JUDICIAL REVIEW PROCEEDINGS
See Jacqueline Martin, The English Legal System, chapter 13:
Need for leave to apply.
The Wednesbury principles of unreasonableness.
Political role of judges.
PROPOSALS FOR REFORM
Terence Ingman, The English Legal Process, (Sixth edition, 1996) p430:
In October 1994, a number of procedural and substantive changes to judicial review were recommended by the Law Commission in its Report, Administrative Law: Judicial Review and Statutory Appeals (Law Com No. 226, 1994).
- Under the Law Commission's proposals, the term 'leave to apply for judicial review' would be replaced by 'preliminary consideration' (at which interim relief would be available), and the test for allowing an application to go beyond the preliminary stage would no longer be whether the case is arguable but whether there is a serious issue to be tried.
- The test for locus standi would move away from 'sufficient interest' to whether the court considers either that the applicant has been, or would be, adversely affected or that he is acting in the public interest in applying for judicial review.
- Unincorporated associations (which include many interest or pressure groups) would be allowed to apply in their own name (cf R v Darlington Borough Council, ex parte Association of Darlington Taxi Owners [1994] COD 424).
- Applicants would not be compelled to take judicial review proceedings, as opposed to private-law proceedings, unless the matter in issue is solely concerned with public law (cf O'Reilly v Mackman [1982] 3 All ER 1124, HL), and it would be made possible to convert improperly-commenced private-law proceedings into judicial review proceedings without having to start all over again.
- The court would be given power to grant both interim and advisory declarations. The prerogative remedies of certiorari, mandamus and prohibition would be renamed, 'quashing orders', 'mandatory orders' and 'prohibiting orders', respectively.
None of these suggested changes had been implemented by the end of the first quarter of 1996.
Lord Woolf's Final Report on Access to Justice (Chapter 18) (1996):
There should be greater uniformity of procedure among the types of cases dealt with by the Crown Office, and between the procedures in public law cases and those in private law cases.
An application for judicial review should follow the standard claim form, in place of the present application and principal affidavit in support. The defence should be in the standard form of a defence to the claim.
- The leave stage should be renamed the 'preliminary consideration' stage, and should be conducted in writing. The court should be able to grant interim relief before the preliminary consideration of the claim.
- The rules should lay down a general test of standing: that the claimant has been or will be adversely affected, or that it is in the public interest for the claim to be brought.
- The court should have discretion not to order the unsuccessful party to pay the other party's costs, on the ground that the proceedings have been brought in the public interest.
- Crown Office List cases which involve local issue should be dealt with outside London.
- More judges from other Divisions should be nominated to hear Crown Office cases for which they have relevant experience.
- Claimants should be encouraged to resolve their complaints whenever possible by using grievance procedures or Ombudsmen, treating judicial review as a remedy of last resort.