Judicial Review Lecture

A. Introduction

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 with a sufficient interest bringing a matter to them.

Rule 54.1 of the Civil Procedure Rules defines 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

In England and Wales judicial review is normally initiated in the Administrative Court by individuals or organisations with a sufficient interest in the matter. The Upper Tribunal hears certain claims, including many immigration judicial reviews. Through judicial review the courts enforce the rule of law by ensuring public bodies do not act in excess of their legitimate powers. The courts ensure that public bodies are acting rationally and, where the law requires it, proportionately. 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 Convention rights given effect by the Human Rights Act 1998, subject to section 6(2) of that Act. These rights are drawn from 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 Civil Procedure Rules 1998 came into force in April 1999. Part 54, introduced in October 2000, lays down the procedure for bringing a judicial review claim in the High Court. Part 52 governs appeals. Section 31 of the Senior Courts Act 1981 governs the High Court's judicial review jurisdiction.

C. Grounds for Judicial Review

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 an Act of the UK Parliament simply because it conflicts with a constitutional principle. They can quash unlawful secondary legislation and determine whether devolved legislation is within competence. They also 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 executive 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 [1985] AC 374 case, 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.

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 court's basic power is to quash the challenged decision and to find it invalid; for the merits of the case to be determined the case will normally return to the original decision-making authority. Under section 31(5A) of the Senior Courts Act 1981 the court may substitute its own decision where it quashes the decision of a court or tribunal for an error of law and there is only one decision that the court or tribunal could lawfully have reached.

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 decision 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. The court does not usually redetermine the facts on judicial review, but it can decide a question of fact on which the existence of a statutory power or duty depends, as in R (A) v Croydon LBC [2009] UKSC 8. 

In England the Housing Act 1996 provides for an internal review of specified homelessness decisions under section 202. Prior to 1996, a large number of housing cases were being subjected to judicial review which was a cause for concern by government. An applicant may appeal to the county court on a point of law under section 204 if dissatisfied with the review decision or if it is overdue. Sections 85 and 88 of the Housing (Wales) Act 2014 provide corresponding routes in Wales. Judicial review remains available where there is no adequate statutory remedy.

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 relevant decisions of the European Court of 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 section 4 HRA. The declaration does not affect the validity or operation of the provision. Under section 10 HRA a minister may make a remedial order if there are compelling reasons to do so.

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.

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 a Convention right, unless section 6(2) applies, for example where primary legislation leaves it no choice. Section 7 HRA requires that a claimant be a victim of the unlawful act. Section 7(5) HRA generally allows one year to bring proceedings, subject to an equitable extension and to any stricter procedural time limit. A judicial review claim must ordinarily be filed promptly and within three months under CPR 54.5. The court might grant a remedy of damages under section 8 HRA where necessary to afford just satisfaction. Damages cannot be the only remedy sought in judicial review.

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, except in respect of acts of a private nature (section 6(5) HRA). 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.

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.

G. Judicial Review in Practice

Claimants are normally expected to exhaust adequate alternative remedies, such as an available appeal to the First-tier Tribunal, before seeking judicial review. Where applicable the parties should follow the Judicial Review Pre-Action Protocol. This does not extend the filing deadline and urgent claims may require immediate proceedings. 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 original decision maker 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:

1. Claimants must obtain the permission of a judge to proceed with a claim;
2. If permission is granted the claim will proceed to be dealt with by a court.

In order to obtain permission, the claimant must show an arguable ground with a realistic prospect of success and sufficient interest. The court will normally expect any adequate alternative remedy to have been exhausted. Under CPR 54.5 the claim must generally be filed promptly and no later than three months after the grounds first arose. Shorter time limits apply to certain claims, including six weeks for specified planning decisions. Even 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 [1983] 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 parties cannot extend the time limit by agreement. The court may extend the ordinary time limit where there is good reason.

Part 54 Civil Procedure Rules states that a claim for a judicial review means a claim to review the lawfulness of an enactment, or a decision, action or failure to act in relation to the exercise of a public function. The courts may declare primary legislation incompatible with Convention rights under section 4 HRA. Following EU withdrawal there is no general power to disapply an Act of Parliament for conflict with EU law. Section 7A of the European Union (Withdrawal) Act 2018 does, however, give priority to directly effective rights under the Withdrawal Agreement.

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 their exercise of public functions. A wide range of bodies, including some that are within the private sector, now exercise public functions.

The main means by which a judge determines whether a body is subject to judicial review is to look at the source of the body's powers and the nature of the function exercised. Acts of bodies whose powers derive from statute or the prerogative will usually be reviewable. A decision taken under a purely private contract will not usually be reviewable.

It may be the case that a body has no statutory or prerogative powers, 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.

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 whether a private care home exercised a public function has also come before the courts.

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 in which sufficient interest is assessed in the context of the legal and factual merits. An important early decision representing this modified approach is the IRC case.

The court considers sufficient interest in the context of the particular case, as seen in the World Development Movement case.

Even in WDM the courts were very careful to ensure that the claimants had an arguable case in law. The WDM argued that the Foreign Secretary had misused powers conferred by legislation. The court held that funding the economically unsound project was outside his statutory power. 

iii. Permissions stage

The permission stage is governed by Part 54 of the Civil Procedure Rules. Under rule 54.4 the court decides whether it will allow the case to proceed to a judicial review hearing. This is to prevent 'busybodies with misguided or trivial complaints of administrative error' from wasting the court's time [Lord Diplock, IRC v National Federation of Self employed and Small Businesses Ltd].  Applications for permission are usually dealt with by a judge on the papers. If permission is refused, the claimant may ordinarily 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 to the Court of Appeal for permission to appeal. In nationally significant infrastructure project challenges, disputed permission is decided at an oral hearing only. There is no appeal against a refusal certified totally without merit at that hearing.

The court considers whether there is an 'arguable case'. A study of the permissions stage [V. Bondy and M. Sunkin, 'Accessing judicial review' [2008] 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. The court can make a quashing, prohibiting or mandatory order, grant a declaration or injunction, or award damages where a separate legal entitlement is established. Under section 29A of the Senior Courts Act 1981 a quashing order may be suspended or its retrospective effect limited. Under section 31 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 there are reasons of exceptional public interest to depart from that rule. A corresponding test applies at the permission stage if the court considers the issue, as it must if the defendant raises it.

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).

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 [1984] AC 262 the claimant argued that the defendants had negligently advised him not to appeal an enforcement notice in relation to his property. The House of Lords held that this was a valid claim under private law, since he was not challenging the validity of the enforcement notice, but was claiming that the council had acted negligently under private law. However, in Cocks v Thanet [1983] 2 AC 286 the subject matter of the claim was whether the authority was entitled to treat the claimant as intentionally homeless under the Housing (Homeless Persons) Act 1977, he applied for a declaration, an injunction and damages. The court held that he must apply for judicial review to challenge the authority's decision on intentional homelessness before asserting the housing duty that depended on it.  The validity of a public decision can also arise as a defence in civil or criminal proceedings, subject to the relevant statutory scheme.

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 [2000] 1 WLR 1988, 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 contractual 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

Parliament has sometimes enacted ouster clauses in statutes to prevent or restrict the courts from reviewing a particular decision.

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.

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 [1977] QB 122 Schedule 2 to the Highways Act 1959, 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 alternative statutory procedures before a court or tribunal. In R (A) v B (Director of Establishments of the Security Service) [2009] UKSC 12, the claimant wished to bring a claim for judicial review in the Administrative Court. Section 65(2)(a) of the Regulation of Investigatory Powers Act 2000 stated that proceedings under section 7(1)(a) HRA against an intelligence service fell within the exclusive jurisdiction of the Tribunal and had to be brought before the Investigatory Powers Tribunal. The Supreme Court distinguished this case from Anisminic, in that Parliament had not ousted judicial scrutiny of the security services but simply afforded the power of scrutiny to the IPT, who had more expertise in dealing with sensitive information. Section 67A of the 2000 Act now provides for an appeal, with permission, on a point of law from a decision or determination of the Tribunal.

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. A judicial review claim can be expensive. Costs are at the court's discretion. The guide cited here estimated that costs could exceed £30,000 if the claimant lost and was required to pay the defendant's costs [https://www.leighday.co.uk/LeighDay/media/LeighDay/documents/JR-Quicky-and-Easy-Guide.pdf, p.3]. The courts cannot strike down an Act of the UK Parliament solely because it conflicts with fundamental constitutional principles. If the executive has acted lawfully, the courts cannot intervene through judicial review merely because they disagree with the decision. 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 its symbolic importance for the values that it embodies and protects.

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