Chapter 12: Judicial Review

Question 1

What is the function of judicial review?

Answer 1

Judicial review is where the courts control/check and balances the exercise of governmental power

• To ensure that public bodies exercise their law-making power or adjudication bodies act within their power
• Judicial review concerns the legality of the decision made (not merit of the decision)

Question 2

What is the nature of JR being exercised?

Answer 2

1) Power conferred on public bodies are given by statute (parliament), the big issue comes where a person/public body acted inter alia or ultra vires

• And whether the decision requires natural justice (no need for legal justice)
• Judicial review creates legal accountability on public authorities that require them to justify their actions to the court

2) Judicial review purely tests the legality of the powers of public bodies

• Which makes judicial review a constitutionally important to give effect to the ROL in a democratic society

3) Courts reviewing delegated legislation is an aspect of parliamentary sovereignty, as it ensures parliament’s will is observed

• This is when courts interpret and give effect to the Acts of Parliament through judicial review

Question 3

What are 4 objectives of JR?

Answer 3

1. That Acts of Parliament are correctly applied
2. Discretion conferred by statute has been lawfully/legally exercised
3. That the decision-maker acted fairly
4. That public bodies do not violate human rights when exercising their powers

Question 4

How can one bring action for JR?

Answer 4

If an individual or a body of persons is aggrieved by an administrative decision, where their rights have been violated

• They can bring action against the public body for judicial review

Question 5

What is the process of bringing action for JR?

Answer 5

1. An aggrieved party must seek permission (formerly leave) to apply for JR
2. The application must be within 3 months when the application first arose

Question 6

What is the big issue regarding the constitutional importance of JR?

Answer 6

• Whether JR is to ascertain (give effect to) the intention of Parliament and uphold parliamentary sovereignty
• Or a common law concept, which not even parliament can step in

Question 7

What are the 2 views/approaches and the relevant academics that provide their views on it?

constitutional importance of JR

Answer 7

1) View 1: ultra vires doctrine

• Professor Christopher Forsyth - power conferred by parliament
• Hilaire Barnett - basis of merit
• Dawn Oliver - protection of individual rights

2) View 2: PS not absolute

• M. Elliot - consitutitonal principles
• Case - Jackson v AG [2005]

Question 8

What are the 3 academic views that support the 1st view (ultra vires doctrine)

constitutional importance of JR

Answer 8

1) Professor Christopher Forsyth

• Follows the view that JR is founded upon the supremacy of the UK parliament
• He thinks the essential task judicial review is to ensure that bodies don’t exceed the powers conferred upon them by parliament

2) Hilaire Barnett

• Says the doctrine of ultra vires can’t explain enough the judge’s power to rule on certain aspects of decision-making
• When judges do rule on ‘unreasonableness’ (‘irrationality’ by Lord Diplock) they come close to ruling on the basis of merit instead

3) Dawn Oliver

• States that JR has moved on from the ultra vires rule
• Changed to concern the protection of individuals and control of power

Question 9

What are is the academic view and case that supports the 2nd view (PS not absolute)

constitutional importance of JR

Answer 9

Introduction

• Judicial review is founded in common law, and that Parliament does not truly have unlimited powers as its legal authority comes from an unwritten constitution
• Sir John Laws refers this as the “higher order law” - thus, parliament must act compatible with the fundamental requirements of the unwritten constitution
• Furthermore, courts confer their power from the constitution, and it is their duty to make sure that the constitution is applied

1) M. Elliott - The Constitutional Foundations of Judicial Review (2001)

• It is fundamentally incorrect, that JR is based solely on the intention of parliament
• It is actually determined by the rich set of constitutional principles -
  1. Rule of law
  2. Separation of powers
  3. Parliamentary sovereignty
• It is the interaction of those constitutional fundamentals, rather than legislative command

Jackson v Attorney General [2005]

• Lord Steyn - “In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the…Supreme Court may have to consider whether it is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.”

Question 10

What is the difference between JR and an appeal?

Answer 10

Appellate jurisdiction

• Where courts review the cases decided in the court below. And the appeal may be decided both on the law and facts of the case
• Thus appellate review is the substance of decision (not how the decision was made)

Judicial review

• Concerns solely the decision-maker that applied the relevant rules
• Procedural in nature

Conclusion

1. Judicial review is to exercise supervisory and not appellate jurisdiction
2. JR is not an appeal from a decision, but a review of the decision that was made - Lord Brightham in Chief Constable of North Wales Police v Evans [1982]

Question 11

What do normal (general) & non-normal JR cliams look like?

Answer 11

Generally (normal JR claims)

• Even if a claim succeeds, the matter will normally be sent back to the original decision-maker (tribunal) for a fresh decision to be made
• When this happens, the decision-maker may reach the same decision as before, but this time, lawfully

Exception

• If the judicial review procedure concerns a breach of HRA
• The authority may not be able to reach the same decision after consideration
• On grounds that there is no point sending back, as the focus is not about the decision-making anymore
• But the fact that human rights has been infringed/breached/violated

Question 11

What are the 2 cases that show the distinction between normal and exceptional claims for JR?

Answer 11

• Secretary of State for the Home Department v Nasseri [2009]
• R (Sivasubramaniam) v Wandsworth County Court [2003]

Question 12

Secretary of State for the Home Department v Nasseri [2009]

disctinguishing normal & exceptional claims for JR

Answer 12

Issue

• The HOL explained the correct (and differing) judicial approaches to applications for JR and a challenge based on an alleged infringement Convention right

Held - Lord Hoffman

1. Normal JR cases - the focus is on whether the decision made reached a decision according to law - the decision-making process rather than metres of the decision
2. However, cases for HRA breach - the focus is not on decision-making, but whether or not the applicant’s Convention rights have been violated
3. “when breach of a Convention right is in issue, an impeccable decision-making process by the Secretary of State will be of no avail if she actually gets the answer wrong…”

Takeaway

• If a case regards a decision which there is an alleged breach of HRA, decision-making becomes useless
• As the objective is to determine if human rights is breached

Question 13

R v (Sivasubramaniam) v Wandsworth County Court [2003]

distinction between normal & excpetional JR claims

Answer 13

Held

• COA ruled that High Court need not accept applications for JR where there is a clear want for jurisdiction or procedural irregularity

Question 14

What are the 4 overviews of JR?

Answer 14

1. ‘Public bodies’ and JR
2. Concept of ‘justiciability’
3. Standing to apply for JR
4. 4 grounds for JR

Question 15

What is the relation between ‘Public Bodies’ and JR

Answer 15

Introduction

• Where JR is only available to the test the lawfulness of decisions made by public bodies and is a public law remedy
• Similarly, we can take the definition of public authority from Section 6 HRA

Note

• The test under Section 6 HRA 1998 for public authorities are defined as including tribunals and ‘any person certain of whose function as are of a public nature’
• Datafin test is more strict compared to Section 6

Datafin test

1. Needs to carry out public function & be under control of government (2 part test)
2. Can apply to any body/company/organisation/trade union (section 6 can only apply to bodies)

Question 16

What are the 5 cases regarding public bodies & JR?

Answer 16

1. R v Panel on Take-overs and Mergers Ex Parte Datafin plc [1987] - Datafin test
2. R v Disciplinary Committee of the Jockey Club Ex Parte Aga Khan [1993] - private matter
3. R (Julian West) v Lloyd’s of london [2004] - private matter
4. R v Servite Houses and Wandsworth LBC, Ex Parte Goldsmith [2000] - private matter
5. R (Holmcroft Properties Ltd.) v Financial Conduct Authority [2018] - private matter

Question 17

R v City Panel on Take-overs and Mergers Ex Parte Datafin Ltd. [1987] - Datafin test

IMPORTANT

public bodies & JR

Answer 17

Facts

1. The take-over panel had dismissed the D by a bidder
2. Bidder applied for JR
3. Although the court mentioned there were no grounds for JR
4. They affirmed that the Panel was a public body

Held

1. The Panel was subject to JR despite its lack of statutory or prerogative power (association with government)
2. But due to it carrying out public functions, which would have been carried out by a governmental department

Llyod J stated

• If the source of power is unclear, then look at the nature of power (function)
• If the body carries out public law functions or exercises functions that have public law consequences, then it is subject to JR

Takeaway

• Similarly, with Section 6 HRA, if the body is not blatantly under control of the government, then look at the function that the body exercises

Question 18

R v Disciplinary Committee of the Jockey Club Ex Parte Aga Khan [1993] - private matter

Public bodies & JR

Answer 18

Facts

1. Applicant sought JR of the Jockey’s Club’s decision to disqualify his winning horse from a race
2. Due to it failing a dope test

Held

• No jurisdiction (no breach of HRA)
• On grounds that they had an agreement/contract between the parties regarded a matter of private law, rather than public law

Question 19

R (Julian West) v Lloyd’s of london [2004] - private matter

public bodies & JR

Answer 19

Held

• Decision taken by Lloyd’s of London were not amendable by JR
• On grounds that it concerned a commercial relationship between the 2 parties

Takeaway

• It was a private law matter; not a public body

Question 20

R (Holmcroft Properties Ltd.) v Financial Conduct Authority [2018] - private matter

public bodies & JR

Answer 20

Facts

1. COA upheld the decision of the Divisional Court that KPMG LLP, a private firm of accounts was not amenable by JR

Held

• The court cited 4 principles for grounds for JR: “A body whose birth and constitution owed nothing to any exercise of governmental power may be subject to judicial review if it has been woven into the fabric of public regulation or into a system of governmental control (per Sir Thomas Bingham MR at pp.921C and 923H) or is integrated into a system of statutory regulation (per Hoffmann LJ at 932H) or is a surrogate organ of government (per Hoffmann LJ at p.932D) or but for its existence a governmental body would assume control (per Farquharson LJ at p.930B and Hoffmann LJ at p.932B).”

The 4 guidelines

1. Has to be carry out public regulations (for citizens)
2. Under governmental control
3. Purpose is given under statute
4. Part of an organ of government

Question 21

R v Servite Houses and Wandsworth LBC, Ex Parte Goldsmith [2000] - private matter

Public bodies & JR

Answer 21

Note

• Must be careful and look closely at the nature of the issue

Facts

1. Person was placed under private care home by local authority acting under powers in National Assistance Act 1948
2. Owner of the private care home decided to close the home
3. Resident argued that although the private care home was not a public body, it provided accommodation and care to people who would have been previously looked after by a local authority
4. Claimed they were exercising public functions

Held

• Private body (not subject to JR)
• Relationship between the residents and the care home was government solely by a contract

Takeaway

• In this case, the courts didn’t look at the nature of the function. But rather the nature of the legal arrangements under which the functions were delivered to the individual
• If the matter was a breach of contract, then it is a private matter

Question 22

What is the concept of “jusiticiability”?

What are the 2 areas that are non-justiciable?

Answer 22

Justiciability is whether the judge (in judges’ view) finds the subject matter suitable enough for judicial review

• Matters that are not justiciable are exercise of prerogative power and national security (for government)

2 areas that are non-justiciable

1. Matters of public policy/national security - powers under primary & secondary legislation
2. Exercise of royal prerogative & JR

Question 23

What are the matters of public policy/national security - powers under primary & secondary legislation?

What are the 3 cases for this?

concept of justiciability

Answer 23

Introduction

• High policy matters are determined by the Executive
• Any attempt of control by the courts will be regarded as a violation of SOP

Case

• Liversidge v Anderson [1942] - national security
• Nottinghamshire County Council v Secretary of State for the Environment [1986] - public policy
• R v Parliamentary Commission for Administration Ex parte Dyer [1994]

Question 24

**Liversidge v Anderson [1942]** ## Footnote concept of justicibility - matters of public policy/national security

Answer 24

Facts 1. The **Defence (General) regulations 1939** (delegated legislation) allowed the executive to detain a person without trial “if the Secretary of State had reasonable cause to believe,” that the person had hostile associations Held 1. HOL **allowed detention** 2. Held even though the matter concerned individual liberty and legislation specifically said that Secretary of State could only act if it was reasonable, the **courts could not review the legality** of a detention under this power Takeaway * This is because this was a case on **national security** (where at the time WW2 was happening) * They took matters into their own hands, rather than risking security

Question 25

**Nottinghamshire County Council v Secretary of State for the Environment [1986]** ## Footnote concept of justicibility - matters of public policy/national security

Answer 25

Held * HOL held court **could not intervene** to quash the guidance by the Secretary of State, due to authority of Parliament * Lord Scarman - “these are matters of **political judgement** for him and the House of Commons. They are not for judges…”

Question 26

What are the 3 cases for exercise of royal prerogative & JR? ## Footnote concept of "justiciability"

Answer 26

* **Council for Civil Service Unions v Minister for Civil Service [1985]** * R v Secretary of State for the Home Department, Ex Parte Hosenball [1977] * **R (on the application of Miller) v Prime Minister [2019]**

Question 27

**Council for Civil Service Unions v Minister for Civil Service [1985]** | important ## Footnote concept of justiciability - exercise of RP & JR

Answer 27

Held * HOL stated that grounds for review were not from source of power * But whether the **subject matter** of application was justiciable or not Note * GCHQ was first of its kind in the HOL on JR where exercise of royal prerogative was binding all the COurts of UK * Which became a **principle precedent** under the doctrine of stare decisis

Question 28

**R v Secretary of State for the Home Department, Ex Parte Hosenball [1977]** ## Footnote concept of justiciability - exercise of RP & JR

Answer 28

Facts 1. Concerned a Secretary of State refusing to give information about reasons for making a deportation order against an alien (illegal immigrant) Held * Allowed deportation * COA refused to make an order of certiorari as the case was a matter of **national security** Note * However, if the case was not involving national security it would be an ‘ordinary case’ - Lord denning MR * **Lord denning MR**: “ if the body concerned, whether it be a Minister or advisers, had **acted unfairly**, then the courts can review their proceedings so as to ensure, as far as may be, that justice is done.”

Question 29

What are the 2 principles of standing to aplpy for JR?

Answer 29

1) **The sufficient interest test** (“***locus standi***”) 1. In order to obtain permission to seek JR, claimants must show they have ‘**sufficient interest in the matter**’ which relates to their claims 2. Pressure groups depend on whether the group has **interest adversely affected** by the administrative decision-making Generally * In most cases it is obvious that the C has **sufficient interest**, as they are bringing the case to court for a reason Difficult cases * Becomes more problematic where claimants claim they are **representing others** (trade union represent members) * Or when they claim to **represent public interest** (claims from environmentalists) 2) The ‘Exclusive Principle’

Question 30

What are the 4 cases that showcase the sufficient interest test ("locus standi")?

Answer 30

* **R v Liverpool Corporation Ex Parte Liverpool Taxi Fleet Operators [1972]** - sufficient interest * **R v Inland Revenue Commissioners Ex Parte National Federation of Self-Employed and Small Businesses [1982]** - not sufficient interest * R v Secretary of State for Foreign and Commonwealth Affairs Ex parte World Development Movement [1995] - sufficient interest * **R (on the application of Miller and Another) v Secretary of State for Exiting the European Union [2016] HC, [2017] SC** - sufficient interest

Question 31

**R v Liverpool Corporation Ex Parte Liverpool Taxi Fleet Operators Association [1972]** - sufficient interest ## Footnote The sufficient interest test - *locus standi*

Answer 31

Facts 1. Liverpool Corporation had the duty of licensing taxis and fixing number plates 2. Corporation announced that the number of licenses was to be increased, without consulting the Operators’ Association 3. Leave for JR was sought Held * Association had **sufficient** standing Takeaway * On grounds that the increasing of licenses would **affect the income of other taxi owners** * So they had sufficient interest to bring claims

Question 32

**R v Inland Revenue Commissioners Ex Parte National Federation of Self-Employed and Small Businesses [1982]** - not sufficient interest | important ## Footnote Sufficient interest test - *locus standi*

Answer 32

Facts 1. Government wanted to collect tax from tax payers 2. Announced that they would impose less tax on the persons if they reveal their income 3. The federation (interest group) brought action against them for JR, arguing why it some people get discounts and some don’t Issue * Question of standing should be examined into 2 stages - 1. **1st stage** - courts assess prima facie whether the case can proceed to JR. (to prevent busybodies and mischief makers) 2. **2nd stage** - if leave is granted, then proceed to full hearing > courts asses claimant's relationship to the breach and determine whether there is sufficient interest. Held 1. HOL held in order for the Federation to have sufficient interest is necessary to look at the substance of the claim 2. Federation **did not have sufficient interest** in the matter 3. On grounds that they were correct on the first stage, but failed on the second stage as they **lacked sufficient interest to challenge the particular wrongdoing** Note * Lord Diplock - standing view should only be a **preliminary issue** to **reject ‘simple’ cases** * Once leave was granted the courts should concern themselves exclusively with the substance and quality of the arguments

Question 33

**R (on the application of Miller and Another) v Secretary of State for Exiting the European Union [2016] HC, [2017] SC** - sufficient interest ## Footnote sufficient interest test - *locus standi*

Answer 33

Held * Sufficient interest * Courts accepted that they **had jurisdiction** to determine whether the government could use its prerogative powers to service notice under **Article 50** of the **Treaty of European Union to withdraw from the EU** Lord Thomas * “It is not difficult to identify people with standing to bring the challenge since **virtually everyone** in the United Kingdom or with British citizenship will… have their **legal rights affected** if notice is given under Article 50.”

Question 34

What case that showcases 'Exclusive Principle' under standing to apply for JR?

Answer 34

**O’Reilly v Mackman [1983]** Held * If an individuals’ rights are infringed in **private law**, it is **not** a property subject for JR Takeaway * Private law issues can’t be brought under JR as remedies under public law is different from private law

Question 35

What are the 4 grounds for JR?

Answer 35

1. Doctrine of 'proportionality' 2. Irrationality / 'Wednesbury' Unreasonableness 3. Illegality 4. Procedural impropriety/fairness

Question 36

What was the case and the authority that introduced the 4 grounds of JR? What do each of the grounds mean?

Answer 36

**GCHQ** case held that it was irrespective of whether a power exercised directly under the prerogative was immune from JR, delegated powers from **prerogative power** were not necessarily similarly immune * **Lord Diplock** stated that there are 4 grounds for judicial review - 1) Illegality * “By ‘illegality’, I mean that the **decision-maker must understand correctly the law** that regulates his decision making power and give effect to it…” 2) Irrationality * “By ‘irrationality’, I mean ‘Wednesbury’ unreasonableness. It 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.” 3) Procedural impropriety * “‘procedural impropriety’… judicial review under this head also covers (in addition to the requirements of natural justice) **failure by an administrative tribunal to observe the procedural rules** expressly lay down in the legislative instrument by which its jurisdiction is conferred. 4) Proportionality (might be used sometimes) * “I have in mind particularly the possible adoption in the **future of the principle of ‘proportionality’** which is recognised in the administrative law of several of our fellow members of the European Community…”