Application, Grounds and Remedies for Judicial Review 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 for England and Wales in Part 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. Part 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 the court's permission to proceed with a claim for judicial review.

Where time permits, the first step in the judicial review procedure is for the claimant to comply with the pre-action protocol. This includes a letter to the public authority outlining their claim with the aim that litigation can be avoided. The protocol does not extend the time for filing. If litigation cannot be avoided, the claimant normally files a claim with the Administrative Court outlining the decision that they require to be reviewed. The claim form must ordinarily be served on the defendant and any interested party within seven days of issue. A person served who wishes to take part must normally file an acknowledgment of service within 21 days of service. Permission is usually considered on the papers before a single judge. If refused, the claimant can usually request reconsideration at a hearing within seven days of service of the reasons, unless the claim is certified totally without merit. CPR 52.8 governs applications for permission to appeal. In nationally significant infrastructure project challenges, disputed permission is considered only at an oral hearing and there is no appeal against a refusal certified totally without merit at that hearing.

The claim form must normally be filed promptly and in any event within three months after the grounds first arose. Shorter time limits apply to certain claims, including six weeks for specified planning decisions and separate limits for procurement claims. The court may extend the ordinary time limit if there is a good reason to do so. Where there has been undue delay, permission or relief may be refused under section 31(6) of the Senior Courts Act if granting relief would be likely to cause substantial hardship to anyone, substantially prejudice their rights or be detrimental to good administration. Such written evidence as is available must be used to support the facts relied upon. The claim form must be verified by a statement of truth. The defendant might also submit evidence in response. The parties owe the court a duty of candour.

To establish standing to make a claim for a judicial review, the court must find that the applicant has 'a sufficient interest in the matter to which the application relates' (section 31(3) Senior Courts Act 1981). The court cannot grant permission unless it considers that this test is met. In R v HM Treasury, ex p Smedley [1985] QB 657 an ordinary taxpayer had interest to challenge the government's proposal to designate a treaty providing extra funds to the European Economic Community 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 Employment Secretary, ex p EOC [1995] 1 AC 1].

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.

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. Local authorities covered by section 1 of the Localism Act 2011 in England or section 24 of the Local Government and Elections (Wales) Act 2021 in Wales now also have a general power of competence, subject to statutory limits.

(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 Part" (Gambling Act 2005, section 65(1)).

Section 3(5)(a) of the Immigration Act 1971 makes a person who is not a British citizen liable to deportation from the United Kingdom, subject to statutory exceptions, where the Secretary of State deems the deportation to be conducive to the public good (Immigration Act 1971, section 3). This power is discretionary. By contrast, section 32 of the UK Borders Act 2007 requires the Secretary of State to make a deportation order against a foreign criminal within that section, subject to the exceptions in section 33.

The essential element of a discretionary power is choice, whereas a duty requires the authority to act, even if it retains a choice about how to do so. 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.

(b) Discretion is not unrestricted

Even where the statute gives a broad discretion, it must be exercised according to the purpose of the law that gives rise to the discretion.

(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. The authority must be willing to consider a case for departing from the policy. A policy can be challenged as unlawful or because it breaches a Convention right.

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

(d) Delegation, Abdication and Dictation

A body to which a responsibility to exercise discretion has been granted may delegate that responsibility only where the law expressly or impliedly permits it.  A statute that authorises delegation does not generally permit further delegation. In Barnard v National Dock Labour Board [1953] 2 QB 18, the national board had 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.

Under the Carltona principle, a minister's powers can generally be exercised in the minister's name by an appropriate departmental official or junior minister, unless the statute requires a personal decision. A statutory body must exercise its own judgment. In R v Police Complaints Board, ex p Madden [1983] 2 All ER 353, 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.

(e) 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 Porter 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 for electoral advantage in the belief that home owners are more likely than council tenants to vote Conservative.

(f) Error of Law and Error of Fact

A material error of law by a public authority is generally a ground for judicial review. Whether the court grants relief is a separate question. 

A policy to ban deer hunting on its own land 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 the court does not normally substitute its own findings of fact for those of the decision maker. However, a mistake of fact giving rise to unfairness may be a ground for judicial review.

In E v Secretary of State for the Home Department [2004] EWCA Civ 49, at [66], the Court of Appeal identified four conditions which normally apply:

1. A mistake as to an existing fact, including the availability of evidence;
2. The existence of the fact must be uncontentious and objectively verifiable;
3. Neither the claimant nor their advisers should have been responsible for the mistake;
4. The mistake must have played a material, though not necessarily decisive, part in the decision maker's reasoning.

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 Rep 24, the House of Lords held that discretionary powers must be exercised reasonably.

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 Lambeth 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.

(a) Proportionality

Proportionality can be distinguished from 'Wednesbury unreasonableness'. The test for justifying an interference with a qualified Convention right, or a restriction where applicable EU law requires that test, is proportionality. Proportionality requires that the court take additional steps and engages with the challenged decision in much greater depth. Proportionality has not replaced rationality as the general common law standard of review. Following EU withdrawal, EU law may still require proportionality where it applies under the Withdrawal Agreement.

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

There is certain procedural impropriety that invalidates administrative actions and others that does not. In London and Clydeside Estates Ltd v Aberdeen DC [1979] 3 All ER 876 a Scottish planning authority failed to notify landowners of their right of appeal to the Secretary of State against a decision that adversely affected them; the defective certificate could be set aside, although it had legal effect until then.

(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 where civil rights and obligations or a criminal charge are being determined. 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. For apparent bias the question is whether a fair-minded and informed observer would conclude that there was a real possibility of bias (Porter v Magill [2001] UKHL 67, at [103]).

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 [University of Ceylon v Fernando [1960] 1 All ER 631]. The Privy Council found that the student had been heard fairly. In the trade union case of Breen v AEU [1971] 2 QB 175 the majority rejected the challenge to the refusal to approve a shop steward. 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 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 the fixing of life sentence tariffs [R v Home Secretary, ex p Doody [1994] 1 AC 531].

Natural justice is now more commonly referred to as fairness. In Doody, Lord Mustill 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 adversely affected by the decision have the opportunity to make representations prior to the decision or afterwards with the view to its modification;
6. Fairness will often require that a person affected be informed of the gist of the case to be answered.

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. Under section 31(2A) of the Senior Courts Act 1981 the court must refuse relief if it appears highly likely that the outcome for the applicant would not have been substantially different without the conduct complained of, unless it considers it appropriate to depart from that rule for reasons of exceptional public interest. A corresponding test applies at the permission stage if the issue is considered, as it must be if the defendant raises it. The three prerogative orders are quashing orders, mandatory orders and prohibiting orders. Declarations and injunctions are also available, and damages may be awarded where there is a separate legal basis.

Quashing 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 an unjustified departure from a substantive legitimate expectation created, for example, by a clear and unqualified promise, or a decision that the maker had no jurisdiction to make. Ordinarily the decision maker reconsiders the matter. Under section 31(5A) the court may substitute a decision when it quashes that of a court or tribunal for an error of law and only one decision could lawfully have been reached. Section 29A also allows the court to suspend a quashing order or remove or limit its retrospective effect.

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 prohibited an increase without first hearing representations from the interested parties.

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

Injunctions

A prohibitory injunction prevents a body from taking unlawful action. A mandatory injunction requires positive action. It can be distinguished from prohibiting order; injunctions can also be granted in ordinary proceedings. Injunctions can also be interim measures, for which the court generally considers the following questions:

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 and the public interest.

After a period of considerable uncertainty, it was established in Re M [1994] 1 AC 377 that injunctions could be granted against Ministers acting in their official capacity. Disobedience can amount to contempt of court. The finding in that case was against the Secretary of State in his official capacity, and no personal punishment was imposed. A minister who personally disobeys an order can be held in contempt in a personal capacity.

Declarations

Declarations state the legal position determined by the court. Unlike injunctions, they do not order a party to act, but they authoritatively determine the issue and public authorities are expected to act in accordance with them. They may be appropriate where there is a real issue about the lawfulness of government advice or guidance before the conduct in question leads to proceedings.

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. Unlawfulness on its own gives no right to compensation. Section 31(4) of the Senior Courts Act 1981 permits damages where they would have been awarded had the applicant brought the same claim in an ordinary action at that time. Under section 8 of the Human Rights Act 1998 damages may be awarded where necessary to afford just satisfaction.

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