Admin Law

Jurisdiction and Errors of Law

Jurisdiction

 Legal power to decide or determine with legal effect, i.e. HC has inherent
jurisdiction to hear claims of JR
 Can also refer to legal authority to decide if decision maker is a public
body:
o Local authority – jurisdiction to decide on claims for housing
benefit
o University – Jurisdiction to award degrees
o Home office – Jurisdiction to decide claims for asylum
 Court – has PB acted within its juridcition? – i.e. within legal powers, is
decision lawful and valid?
 Anisminic 1969 – any error of law made by PB (even in its own
jurisdiction) could be nullified via JR proceeding (extended JR in regard to
PB decisions)§

Errors of Law

 May include:
o Application of wrong test
o Acting in bad faith
o Missing out something that should (by law) be accounted
o Determining decision not for decision maker to make
 Anisminic – any such errors mate nullify PB decision, even if made within
jurisdiction of decision maker

Jurisdiction v Errors of Law

 Pre Anisminic – is decision within makers area or domain? - Post

Anisminic – Was decision made without error of law
 Exceptions:
o R v Hull University Visitor ex parte Page 1993 – Appeal to CA and
HL disagree: University officers conferred specific jurisdiction to
act in interest of university, not for court to interfere with exercise
of discretion within that jurisdiction, even when University acts
upon an error of law.
o R (Cart) v Upper Tribunal 2011 – Upper tribunal refuse claimants
permission to appeal to it, claimant claim for JR refected by all:
 Admin Court rejects claim for judicial review because
Upper tribunal decisions were not amenable to JR at all as it
was an alter ego of HC
 CA – its not an alter ego of HC and could be subjected to JR
by it, however decision to refuse appeal was within its
 lawful discretion, so could only be reviewed on pre-
Anisminic basis, i.e. as a jurisdictional error
 SC – upper tribunal deisions may be reviewed through
more purposeful approach, i.e. if review poses important
point of principle or practice or there is some other
compelling reason to hear cases in JR. Hale – mindful that
errors of law, including of the Upper Tribunal, should be
corrected on a similar basis to that of HC being supervised
by CA.

Can public bodies make error of law?

o Not if it is a jurisdictional error

o Maybe if error relates to specific localised jurisdiction and is
within jurisdictional area or competency of PB
o Upper tribunal can make error of law unless it raises some
important point of principle or practice, or there is other
compelling reason for decisions to be judicially reviewed (Cart)
o R v Hillingdon LBC ex parte Pulhofer – Whether family were
enjoying ‘accomodation’ under act was a term 1977 Act and Parl.
Entrusted local authority to determine that fact, so not open to
Admin court to substitute its assessment as to fact for those of
local authority.

Errors of Fact

 Questions of fact can also be decided by PBs - Not open to Admin Court to
correct such errors in JR proceedings
o *R v Hillingdon LBC ex parte Pulhofer – Whether family were
enjoying ‘accomodation’ under act was a term 1977 Act and Parl.
Entrusted local authority to determine that fact, so not open to
Admin court to substitute its assessment as to fact for those of
local authority.
 Why shouldn.t PB determine?
o Intended for another decision maker by parliament
o Decision maker is more likely to know, i.e. local housing conditions
and availability of housing stock
o Local authorities determination of fact provides for degree of
finality
 Ex Parte South Yorkshire Transport – bus services in south
Yorkshire covers substantial part of the UK, though it only
represents 1.65% of Uk and 3.2% of population. HL held
Monopolies and Mergers Commission entitled to make this
determination of fact.
 Runa Begum v Tower Hamlets 2003 – Begum homeless, but
rejects accommodation so local authority dispensed
obligation towards her. HL – yes court can decide
procedural fairness, but local authority entitled to make
determination of fact – no necessary for such facts to be
determined by independent body
Fundamental Errors of Fact

 *R(A) v Croydon 2009 – claimants (disallowed asylum can’t prove below

18 due to lack of paperwork), appeal allowed. Yes, determination of age
was question of fact, but also a jurisdictional question as to whether
Children Act applied, so Admin Court may ultimately correct error of fact
made by PB.

Discretion and Deference

Discretion

 Public body not court decides whether and how powers will be used
(choice), must be exercised lawfully

Deference

 Court ‘defer’ to decision making of public body, standard of scrutiny

depends on circumstances of the case
o Council of Civil Services Union v Minister for the Civil Service
(GCHQ) 1985– minister uses prerogative power without
consultation of unions, for national security, which would be
endangered by strike. Argue that such decisions are for her not the
court to make, court agree. Invocation of national security makes
claim in JR more difficult for claimant, i.e. Bancoult No 2.
 ‘Due Deference’ - parliament is appropriate body to
scrutinise central government so court defer to PB to extent
that deference is ‘due’ or warranted by circumstances.
o R (Corner House Research) v Director of the Serious Fraud Office
2009 – Unlawful for SFO investigation to be dropped by Saudi
threat, despite heave natural security context. To uphold rule of
law – decision maker with statutory powers should exercise them
independently without surrendering to a third party. On appeal at
HL it was held SFO’s able to cease investigations, given specific
threat that goes to national security.
 So not open to official to simply cite national security
reasons, must show that he retained discretion and directed
his mind lawfully.
 Even applies if minister does something is approved by Commons in a
resolution not an act
o R v Secretary of State for Environment, ex parte Nottinghamshire
County Council 1986 – minister report approved in Commons not
act, implemented – stipulated council would loose a lot of income
with new changes (finances already in bad shape), seek JR. Claim
failed.
 However, court can interfere in some cases
o R (Javed) v Secretary of State for the Home Department 2001 –
seeks to place Pakistan on white list for asylum seekers to allow
swift return, Claimant was successful, based on argument that as
an Ahmadi woman she faces specific threats that had not been
 taken into account when adding Pakistan to white list so the
deference due to parliament could be altered accordingly.
o In these cases court rarely use the term deference, court want to
leave JR open. No list of items or areas that are deferred, but
scrutinised processes by which decisions are made, thus their
legality.
o Although, national security concerns and the policy of central
government, but are two contexts making JR difficult never
impossible

Grounds for Review: Illegality

Illegality

 Diplock (GCHQ) – decision maker must understand law that regulates his
decision-making power and give effect to it (ill definition)
 Ultra vires? (ill definition)
 R v Somerset CC, ex parte Fewings 1995 – Council decision to ban hunting
wuashed, because failed to account for benefit, improvement or
development of the area and motivated instead by ethical or moral
considerations relating to hunting – ‘there are legal limits to every power
you have.’
 R v Foreign Secretary, ex parte World Development movement – court
concerned with upholding statutory purpose, court uphold purpose of act.
Funding of dam was economically unsound, and failed to demonstrate
more than marginal benefit for Malaysia and was trying ro secure political
and diplomatic relations, so decision to award aid was deemed unlawful
as being contrary to the purpose of the statute conferring powers upon
foreign secretary to provide aid for the poor, although grant of aid
required consideration of political, economic and diplomatic matters.
 Westminster v London and North Western Railway Co. 1905 – HL rule
that installation of toilets and necessary subway to access them were
within statutory powers of local authority, however official must only be
acting upon one motive (the lawful one), while pursuing and unlawful
motive (construction of an unwarranted subway).
o So PB can do something it is not lawfully entitled to do if it’s
accidental to performance of some other lawful act. Contrast with
World Development Movement, as motive of foreign secretary to
secure political and diplomatic relations with Malaysia was not
incidental to exercise of discretion in respect to aid, but was the
primary motive.
 Consider jurisdiction, i.e. Fewings (authority exceeds it by deciding moral
and ethical matters); World Development Movement (foreign secretary
exceeds jurisdiction decide destination of aid by allegedly bargaining for
arms contract)

Comments about Illegality as Ground for Review

 Diplock (GCHQ) – supposes official acts according to law (self – evident)

  Bingham (Fewings) – public bodies have no inherent power to act, can
only act as stipulated by the law (more correct)
 Consider: Characterisation now read in light of Localism Act 2011 – “local
authority has power to do anything individuals generally may do”,
however only in respect to local authorities not PB’s in general

Irrationality – Wednesbury Unreasonableness

 Associated Provincial Picture Houses v Wednesbury Corporation 1948 –

To act so unreasonably that no other public body acting reasonably would
do as the local authority did. Judges can decide if a decision falls within
this category due to their training and experience.
 Could open JR to range of public acts, however court control the claims it
hears as claimants have to seek permission and if claims make it through
they often fail because Wednesbury unreasonableness is difficult to
establish
o Devon CC v George 1989 – decision by local authority to withdraw
transport for a boy age 8 who lived in an inaccessible area, ruled it
was up to the parents to ensure, in law, that child gets to school
safely.

Amounts to Substantive Review - closer to idea that a decision can be substantively

reviewed not merely its legality.

 In rights cases (ex parte Smith) courts are more willing to scrutinise
decision and expect justification of PB actions – Anxious Scrutiny
o R(Daly)v Secretary of State for the Home Department 2001 –
Claimants win appeal at HL against prison regulation to be absent
when prison officers search his cell, which contains confidential
and legally privileged correspondence. This was substantive
review, not just illegality, because the though the Sec. of State had
discretion to create prison rules, the substance of the decision was
under scrutiny. Court ruled it was flawed based on irrationality,
and was a disproportionate exercise of discretion on HRA grounds.
 In such cases onous is on PB to show they had justification
for ingrinfing on common law protected constitutional
right, since there was no such justification Daly was
successful on Wednesbury grounds
 In cases where decision is in pursuit of government policy there is less
scope for irrationality (ex parte Nottinghamshire) – towards deference
 In R (Javed) we have Parl. Approval of white list and HR Art. 3 issue is
present, so what is the correct approach?
o Phillips – parliament did not debate position of Armhadi women so
due deference would be less, however HR issues are essentially
thresholds and standards so refers to treat designation of Pakistan
as technically’ unlawful on illegality no irrationality grounds,
although irrationality is relevant to legality question.
 There are cases in that middle that invoke no constitutional/ human
rights issues or reasons to induce deference i.e. Wednesbury or Devon CC
v George
Criticisms (Daly)

 It suggested there are degrees of unreasonableness and only a very

extreme degree can bring an admin decision within legitimate scope of
judicial invalidation
 Law can never be satisfied in any admin field merely by finding that
decision under review is not capricious or absurd

Disproportionate on Human Rights Grounds (Second Reason in Daly)

 Led to the same result, so does Admin law require HRA?

o In this instance it did but does not always (Lord Bingham)

Proportionality
De Freitas v Permanent Secretary of Ministry of Agriculture 1999 – the
restraint imposed on civil servants amounted to what was more than
necessary to pursue public interest, consequently claimant’s
constitutional right has been unlawfully infringed. Basis of
proportionality:
o Legislation important enough to justify limiting fundamenta right
o Measures designed to meet legislative objective are rationally
connected to it
o Mean used to impair right or freddom are no more than is
necessary to accomplice objective
 Huang v Secretary of State for the Home Department 2007 (Working
Definition/ Test) – to what extent do decision makers have to consider
right to family life under Article 8, for claimants seeking asylum in UK
with close family ties whose application was rejected due to UK
government’s new policy on immigration. Appeal successful at HL
o De Freitas test still applies but also has a fair balance been struck
between rights of the individual and the public/ societal interests?
 R (Begum) v Denbigh High School Governors 2006 – claimant = girl who
can’t wear jilhab contrary to Article 9 ECHR, due to school policy. School
successfully defend position at HL, policy (which they were legally
empowered to devise and enforce) was pursuing objectives of cohesion
and harmony – a lawful objective.
 A and Others v Sercretary of State for Home Department 2004 (Belmarsh)
– Anti Terrorism Act = indefinite detention of terrorist suspects, enacted
following 9/11. HL consider was there an issue of national security,
making the measure necessary? Little Deference on this matter
o Only dealt with foreign suspects only so were not meeting
legislative purpose of counter-terrorism
o Those detained can leave UK, making indefinite detention for those
who remain as a means of countering same threat
disproportionate
o Court quash derogation in time of war order (required as Article 5
is only open to proportionality review under precise
circumstances) under s. 14 HRA and issue declaration of
 incompatibility as it deprived Article 5 rights in a disproportionate
and discriminatory manner
o Hoffman: Not just a matter of proportionality, if it was all you do is
extend it to British nationals, just thought there was no such war
or threat making measure necessary so derogation should be
quashed

Proportionality Review v Wednesbury

 Proportionality is more thorough and sophisticated, places emphasis on

weighing up interests rather than on outrageous and arbitrary
 At times PB may have fallen short of Wednesbury, but if acted unlawfully
under HRA proportionality can be applied
 Proportionality review is available for more cases
 However:
o Not all claims invoke qualified right, and proportionality review is
not available in these cases
o If HRA repealed there would be no other means of JR in regards to
substantive, rather than jurisdiction
o May be able to go further than common law Wednesbury Review
 Straying too far into merits review?
 Asking courts to put themselves in position of decision
maker?
 No (Lord Steyn)

HRA 1998
 Premise for JR review against PB provided by:
 S(6) – Grounds
o (1) - PB can’t act in a way incompatible with convention right
o (2) - No liability if PB couldn’t have acted in a rights compatible
way or differently due to legislation
o (3) - Public authority = any person certain functions are of a public
nature – includes courts and tribunals not parliament
o (5) - Person is not a public authority only if nature of act is private
o (6) - Act can be an ommission
 S (7) – Proceedings
o (1a) - If claimant believes PB has acted against authority under Act
he can bring proceeding in appropriate court or tribunal
o (1b) - Or rely on convention rights or rights concerned in any legal
proceeding but only if he is or would be a victim of unlawful act
(standing requirement in HRA claims)
 S (8) – Remedies
o (1) - In case of Unlawful Act Court may grant such relief, or
remedy, or make such order, within its powers as it considers just
and appropriate
o (3) - No award of damages unless in regards to all circumstances
court is satisfied that I’s necessary to afford justification to
claimant
 o (4) - If granting award court must account principles applied in
ECtHR relating to award of compensation under Art. 41 of
Convention
 S (9) – Review of Judicial acts, e.g. of inferior courts
o Only where Court is amenable to JR or on usual basis of appeal
o Judicial act done in good faith but unlawfully under s(6)(1) it
cannot give rise to liability except where claimant has been
deprived unlawfully as provided by art. 5(5) ECHR
 Not all rights are treated the same
o Qualified: May be lawfully infringed, i.e. article 8 - 11
 Proportionality review adopted, because state can lawfully
(even under HRA) infringe on some of your rights
 If state infringes on right they do so in a way
prescribed by law (ECtHR Malone v UK)
 Infringement is necessary in pursuit of competing
interests or rights (second objection in Daley
o Derogable: May be lawfully suspended from having legal effect
o Torture (Art 3) – unqualified and non-derogable, so cannot be
lawfully infringed or suspended in times of war or public
emergency

Unqualified Rights

Not open to the State to justify an infringement upon a right with reference to
some other competing objective (as is the case with Articles 8-11)

o R (Anderson) v Secretary of State or the Home Department 2002 –

Home secretary decides minimum parole consideration period,
contrary to article 6 because not an independent impartial
tribunal.
o McCann v United Kingdom 1996 – SAS shoot members of IRA to
prevent a bomb threat, no detonators found but evidence of
planning for future attack, ECHR rule that this violated article 2,
the right to life. Use of force must be absolutely necessary.
o Chahal v United Kingdom 1997 – ECtHR rule that Sikh separatist
deportation by Home Secretary would be contrary to Article 3,
although his presence in the UK was contrary to national security.
 They are better protected, and alludes that there is not a singular and
absolute sovereignty as some suggest (cf. Hobbes), i.e. we can say that
State can never lawfully torture

However state can argue that individual whose rights are being infringed is not
capable of holding them, i.e. who is out of their jurisdiction, so claim in JR cannot
be brought against state

 R (Bancoult) v Foreign Secretary (No. 2) 2008 – Foreign Secretary in

London can legislate (by prerogative) in interests of UK even when
legislation is harmful or prejudicial to interest and rights of colonial
people. BIOT is part of undivided realm of UK, but in terms of enjoying
 rights it is not part of the UK, HRA would only have territorial extent only
within UK (this island) and 6 countries to the North of Island.
o LB dissent – policy in relation to BIOT was irrational in lieu with
promise made in 2000, which requires legal protection. General
Law (can include HRA) should be applied equally whether Crown
acts here or abroad.
 R (Al-Skeini) v Defence Secretary 2007 – HL: Human Rights Act could
have extra-territorial effect, only where the State’s actors have ‘effective
control’ so The 6th claimant, being under ‘effective control’ in a British-run
prison, had met such a requirement—but not the other 5 claimants
o LB dissent – determination of these ‘exceptional’ other instnaces of
jurisdiction, is for ECtHR to decide
o …(continued) 5 unsuccessful claimants seek ECtHR ruling and are
successful, ruling required UK to undertake appropriate
independent investigation into deaths. They were also awarded
£15,000 for distress. Because the UK, through its soldiers
exercised authority and control over individuals killed in the
course of such security operations, so as to establish a
jurisdictional link between the deceased and the United Kingdom
for the purposes of art.1 of the Convention
 Smith and Others v Ministry of Defence 2013: ‘exception’ circumstances
of jurisdiction may be more narrow, in this case the SC made convention
rights available to UK service personel in Iraq and Afghanistan in respect
to allegedly poor equipment.

For and Against HRA

 For
o Creates new grounds for review s(6)
o Provides for right to claim damages – usual JR remedies plus
damages
o Enhances courts role in scrutinizing substantive decision (not
‘merits’ review according to Steyn)
 Against
o Of use only where convention rights has been engaged
o Only victims can claim, not other interested parties
o Rights qualified and/ or derogable
o Leave out social, economic, healthcare, housing, employment
o Conor Gearty – end of socialism, provides for legitimate
infringement of rights by State, also do we want enhanced role of
judges in determining relationship between individual and state?
 However: even he has come round to HRA – ‘flawed but
progressive instrument for human endeavor, instead of
return to judicial conservatism of the 1980s’
 Also… notable improvements to law as a result of HRA, i.e.
to police decisions, health service, sentencing, armed
forced, anti-terrorism policy, reach of coroner’s inquest
o or procedural grounds
Tribunals
 Statutory Bodies of Administrative Redress, where other public body
decision can be appealed, not reviewed, may also have jurisdiction to
decide matter as primary decision maker
 Powers are only those conferred by statute, if exceeds decision can be
quashed by Admin Court in JR
 Often more able to question merits of decisions
 Often look like courts in procedures, presence and formality
 Often decision may be subject to appellate jurisdiction of another tribunal

Franks Report and the 1958 Act

 identified need for openness, fairness and impartiality

 Proposes Council on tribunal with a president to secure regularisation
 However, it was aspirational so legislation was of limited effet, i.e. while
report wanted impartiality government department would fund ribunals
within it’s domain

Leggatt Report

 Same proposal but more concrete as to needed legal change

 Most important tribunals should be placed under single structure
(National Tribunal Service) sponsored by Ministry of Justice
 Central decisions for more consistency, with a desire (led by HRA) to
provide more formal hearing
 Single service – tribunal judges (with regularised training) could decide
on cases across a range of areas

The 2007 Act

 Single First Tier Tribunal structure with Upper tribunal to provide

appellate jurisdictions = greater transparency, consistency and efficiency
o S (9) first tier can review own decision on own initiative, or refer
matter to upper tribunal
o S (11) right to appeal from first tier to upper tier on a point of law,
first or upper tier may grant permission required under s(11)(4)
o S(13) appeal lies from Upper tribunal to CA on point of law via JR
at HC, unless it is an ‘excluded decision’, which includes a decision
of Upper tribunal to refuse permission to hear appeal (s(13)(8)(c))
 Cart: for JR by HC there must be an important point of principle or
practice raised, or some compelling reason for JR according to Lady Hale
if JR review of decisions restricted beyond this there is “a real risk that
Upper Tribunal will become final arbiter of law”
o Position authorised by Act? S(15) – UT can exercise JR function,
with availability of remedies normally reserved for HC
o However s (18) – UT must be presided by a HC judge is a condition
to use of JR powers, but this strengthens its position as a unique
decision maker
 o Another condition s (18)(6) – LCJ must make order prescribing
application heard by UT for JR, e.g. 2013 all immigration cases,
subject to set of exceptions

Impact

 Perhaps due to this tribunals have grown – received 739,600 cases

(2012)
o Admin Court only hears around 11,200 cases, many don’t receive
full hearing and those that do rarely succeed (2011 – 174 cases
result in a remedy usually a quashing order)
 WHY?
o Tribunals cheap or free, relatively informal, claimants can
represent themselves - more inquisitorial than courts so
accommodate well, can assist claimant more readily as regularly
decide on similar cases, can be many different grounds of appeal to
a tribunal
 Government not interested in this increase –
o 2010 cull of quangos abolished several tribunals
o Making them more streamlined (Justice Underhill – reviews how
Employment tribunal might better and more easily reject cases via
no realistic prospect of success or another basis)
o Contradiction i.e. David Cameron speaks about need to limit JR,
how can tribunals be more streamlined at the same time? Would
limit to cone not create demand for the other?
o Tribunal service could provide Cameron with ‘cost-cutting’
objectives he strives for. In the context of legal aid cuts and access
to justice, wouldn’t they provided a viable alternative?
 Tribunals are becoming like courts, not how they were envisaged when
statute was formed

Parliamentary Ombudsman created by (Parliamentary Commissioner Act

1967)
 Introduction is result of improving public Admin after ‘Crichel Down
Affair’, like HC increase of JR and tribunal expansion
 Empowered to investigate complaints
 PO appointed for 7 year terms, and is officer of the HOC
 More broadly interests in maladministration in public life and
governance, rather than jurisdiction, rights, due process (Courts) and
appellate process (tribunals)
o S (5) – PO has discretion to investigate any matter referred to
them on the grounds of a maladministration Occasioning injustice
o S (5)(1) – complaint from member of public must be referred to PO
via MP
 There are exceptions to power to investigate:
o S 5(2) – excludes cases where statutory or other right to appeal
exists to a tribunal, or where appropriate cause of action is
available in a court of law (e.g. JR)
  So role is supplementary to tribunals (appeals) and courts
(review), also consider Mp referral - What if MP does not
refer the matter? There is no right to an investigation so
work takes place in a political not legal context.
 Though s (8)(1) PO can summon attendance of any public official, or
require any documentary evidence in pursuit of investigation – power to
summon witnesses is the same as the courts
o S (9) – offence equivalent to contempt of the court for person who
obstructs lawful exercise of PO

After Investigation

 Report – may recommend remedies (can include compensation) to

injustice suffered due to maladministration, however it is not legally
binding upon relevant minister or other official to whom it is addressed –
again acting in a political rather than legal sphere
 S (10)(3) – PO has discretion to publish report to public, by laying it
before Houses of Parliament where she thinks that - again acting in a
political rather than
o Injustice has been remedied
o Won’t be remedies
 The Balchin Litigation
o What constitutes ‘maladministration’ and ‘injustice’ is broadly for
the PO to decide
o However where there is ‘injustice’ in the broader sense, it is for PO
to state why he though there was no injustice, or why there had
been no maladministration (so ousting the injustice question)
 Report may not be binding on relevant minster or official, however HC
can enforce some aspects of it
o R (Bradley) v SoS for Work and Pensions 2008 – HC confirms it
would not enforce recommendations of report, but creatively find
that where Minister rejects the findings and fails to account for her
position, the court is entitled to hold such a rejection irrational. CA
held misleading information Government published amounted to
maladministration occasioning injustice, and Minister’s rejections
of such findings were irrational.
 Rejections quashed but minister is under no obligation to
provide a remedy, but must confront report and either
cogently say why reports are wrong (subject to
Wednesbury review) or accept findings but offer an
alternative solution with or without the victims.
 So outcome suggests PO’s operate in a political, not legal
sphere
o R (Equitable Members Action Group) v HM Treasury 2009 - claim
of JR to enforce recommendations of report, especially the
establishment of a compensation scheme, rejected by HC on basis
that any such compensation scheme should be the choice of
Government accountable to Parliament.
Procedural Fairness
Procedure

 Procedural requirements may be needed by statute, common law or

Article 6 ECHR
 Dependent on:
o Nature of decision maker
o Context of decision-making
o Affect of decision on claimant
o Does decision affect claimant only, or broader public interest?
 Where procedures must be followed, they may include:
o Provision of oral hearing
o Duty to give reasons for decision
o Right of claimant to representation
o Right to decision made without bias or appearance of bias
 Could lead to better decision-making
 Justice can be seen to be done if followed
 Claimant treated with greater respect where claim has been dealt with by
fair process

Fairness

 PB corresponds how they will act in the future, may be able to rely on this
if they change their mind
 Covered by law of legitimate expectations – law may enforce a promise or
may permit a promise to be broken

Key Cases

 Cooper v Wandsworth Boards of Works 1863 – Board of works raze

house to the ground, Cooper wins claim. No man to be deprived of his
property without having an opportunity to be heard
 Ridge v Baldwin 1964 – dismissal of police officer was unlawful because
he was not provided oral hearing for charges made against him by
committee overseeing police appointments.
 Lloyd v McMahon 1987 – no oral hearing required in circumstances.
Outcome different because Bridge concerned dismissal from public office
and councillors did not ask for an oral hearing when they had the
opportunity.
 R v SoS for the Home Dept. ex parte Doody 1994 – SoS can determine
minimum sentence for mandatory life sentence. Claimant is entitled to:
know what judiciary’s recommendations are; submit written
representations to SoS; to know reasons why SoS depart from
recommendations of judiciary.
 R (West & Smith) v Parole Board 2005 – Parole boards rejected request to
conduct oral hearing overruled, held an oral hearing would be required
because decision deprived C of liberty.
  British Oxygen v Minister of Transport: Board entitled to formulate policy
as long as they retain a willingness to listen to anyone with something
new to say.

Article 6 ECHR – civil rights – everyone entitled to a fair and public hearing within
reasonable time by independent and impartial tribunal established by law

 Runa Begum v Tower Hamlets 2003 – review carried out by authority

itself, having regard to statutory framework and right to appeal of County
Court on grounds akin to judicial review – decision met test of
independent and impartial tribunal.
 R (Alconbury) v SoS for the Environment 2001 – 3 planning decisions
called in by SoS, claimants argue it is not an independent and impartial
tribunal, HC agree and issue declaration of incompatibility, HL allow SoS
appeal. Yes, SoS not independent impartial tribunal, but decision is
judicially reviewable this availability of review guarantees article 6 rights.
 R (Persey) v Environment Secretary 2002 – Lessons Learnt Inquiry to
assess government response to Foot and Mouth contest direction to hear
evidence in private, as intended by SoS – held there was no legal
requirement to hear evidence in public.
 R (Wagstaff) v SoS for Health 2011 – Decision to hold Harold Shipman
enquiry in private quashed, as there was a pressing social need for a
public hearing – there would be widespread loss of confidence in NHS
otherwise.

Fair Hearing

 Depends on rights of claimant, importance of publicity and accountability

and context of decision making
 No right to fair hearing for civil matters, except where court recognise
such a right as a matter of fairness or where ECHR requires a fair hearing
 Article 6 ECHR use limited in Admin field following Alconbury, which
suggests JR of Admin discretion is adequate in protecting Article 6 rights.
It is as if Article 6 entrenched Judicial review as a human right.

The Rule Against Bias

Bias

 Good governance required impartiality in decision making

 If bias present or perceived to be so decision maker is disqualified from
making decision or decision is quashed (if it has been made)
 Judicial Bias – might be present in senior courts (inherent jurisdiction)
courts have developed own version of JR for any decision presenting
question of bias
o Dimes v Grand Junction Canal 1852 – Lord Chancellor
automatically disqualified for pecuniary interest in proceedings,
but decree was voidable thus reversed – so case needs to be heard
on appeal again.
 o R v Bow Street Magistrates, ex parte Pinochet No. 2 2000 – Lord
Hoffman held unpaid position as chairman of Amnesty
International’s fundraising arm so his decision was set aside. Its
not a question of actual bias but the appearance of bias, so it
appears that justice is done inspiring confidence in judiciary.
o Locabail v Bayfield Properties 2000 – pecuniary interest leads to
automatic disqualification except where minimal or indirect, or
where claimant waives right to object upon full disclosure.
Otherwise test is whether there is real danger of bias, as viewed
from reasonable man with knowledge off circumstances. Judges
should recuse themselves at earliest opportunity where they are
disqualified from hearing a case.
o R v Gough 1993 – Juror was next door neighbour of D’s brother, CA
apply test of real danger of bias, found there was not. HL agree and
confirm test.
o Re Medicaments 2001 – Law judge of tribunal applies for job with
organisation subject to proceedings, court rule there was no real
danger of bias because judge undertook not to accept any job with
company for at least two years. Decision reversed on appeal. More
developed articulation of Gough test – would ‘fair minded and
informed observer conclude there was a real possibility of bias?
o Porter v Magill 2002 – auditor biased due to unique position as
investigator, prosecutor and judge, HL adopt test from
Medicaments and conclude there was a real possibility that
tribunal was biased.
 Porter v Magill is leading test, however automatic
disqualification (Dimes) applicable for pecuniary and
sometimes other interests.

Legitimate Expectations
 Public body should act in a way legitimately expected of them
 Does not necessarily mean that promise made, practice established, or
policy established will lead to its protection by the courts
 Whether such expectation is enforced is a question of the courts
o R v IRC, ex parte MFK Underwriting – General advice and guidance
by IR on how financial products might be taxed in the future were
not binding, if they were it would be unfair.
o R v IRC ex parte Unilever 1996 – 20 years + Inland Revenue accept
late claims of tax relief, decide it will no longer accept such claims
without notice. Court rule claimant had good cause to expect
established practice to continue, as repetition gave rise to clear,
unambiguous and unqualified expectation of a certain treatment
(that late claims would be considered)
o R (Bibi) v Newham LBC 2002 – Local authority promise 18 month
accommodation because though they were obliged to do so by law,
turns out they weren’t. CA rule it would be unfair to allow council
to be bound by promise to provide accommodation when it is such
an erroneous understanding of the law. But council should bear in
 mind they had established legitimate expectation in respect to
these families when considering allocation of available housing.
Reliant on promise to claimant’s detriment would be relevant in
assessing fairness one might attach to enforcing legitimate
expectation.
o R(Rashid) v Home Secretary 2005 – legitimate expectation that
Home Office would apply correct policy, though claimant not
aware of it at the time, because courts are aware immigrants and
asylum seekers might not have access to relevant and good legal
advice so requirement to apply policy correctly is acceptable to
court.
o Nadarajah v Home Secretary 2005 – Two policies for claims
involving asylum, home office use first to seek claimants removal
and claimant seeks to rely on second (family ties) in JR. Claim
failed – Did public body in frustrating expectations of claimant
abuse its power?
o R v Education Secretary, ex parte Begbie 2000 – JR on basis that
pre-election commitment gave rise to enforceable legitimate
expectation of an assisted place until 18. Claim rejected, No
enforceable legitimate expectation arises where compliance would
run counter to an Act of parliament (Labour abolished scheme),
and no pre-election promise can give rise to any legal effect,
whether in legitimate expectations or otherwise.
o Wheeler v Office of the Prime Minister 2008 – Government refuse
to offer referendum on ratification of Lisbon Treaty despite
promise to hold referendum before ratification on EU Constitution,
Wheelers claim in JR fails – it was ruled that decision to hold
referendum was a political judgement; the law on ratification did
not require a referendum and Lisbon Treaty was a different treaty
to the EU Constitution.

Procedural or Subtantive Benefit?

 Cases could be giving effect to a procedural right:

o Certain policies would be operational (Rashid, Nadarajah)
o Certain factors would be taken into account, when deciding
substantive matter (MFK, Bibi, Begbie)
o That a treaty would be ratified in a particular way
 Even if promise aimed at a substantive benefit it is regarded as a
procedural benefit, i.e. Bibi that promise should be taken into account
when allocating future available housing
 Court will only enforce a legitimate expectation to a substantive benefit
on a limited basis
o R v North and East Devon Health Autority ex parte Coughlan 2001
– requires on-going care, asked to move to Mardon House –
promised to be her permanent home for life. Later decide to close
house of financial grounds. In JR claim HC quash decision for
closure, as Coughlan had been made a specific promise and D had
no overriding public interest to break such a promise. CA upholds.
 o Rowland v Evironment Agency 2003 – water was publicly
navigable so Environment Agency should bear in mind that it once
created a legitimate expectation, although erroneously, of private
ownership.

Standing
 Applicant must have sufficient interest in matter to make application of JR
 ‘sufficient interest’ – broad terminology – leaving matter to the Courts
o R v IRC, ex parte National Federation of Self-Employed and Small
Businesses 1982 – claimant did not have sufficient interest in
decision to grant amnesty as they were no more than an interest
group or body of tax payers enquiring into tax affairs of others.
o R v Foreign Secretary, ex parte World Development Movement
1995 – Legal and factual context of challenge necessary in
determining standing, claimant had sufficient interest in matter
having regard to their work; absence of alternative challenger and
significance of issues; and the prominence of WDM in field of
foreign aid. Advances possibility that pressure groups, NGOs and
lobbyists might have sufficient interest in public decision and thus
standing to bring a claim.
o R v Inspectorate of Pollution, ex parte Greenpeace No. 2 1994 –
local residents, archaeologists and local MP form company for
purpose of seeking to protect theatre from development by listing
it as a monument. Ruled to have no standing – company was a
guise for members of the public who do not have sufficient
interest.

Standing Under HRA

 S (7)(1) – claim brought under s (6) must be by someone who is or would

be victim of unlawful act … higher threshold to meet than ‘sufficient
interest’
 Test comparable to ECtHR requirements – claimants must be directly
affected (Klass v Germany 1978)

Amenability
 Who may be judicially reviewed?
 Some bodies may act without formal power, or may have little or no
formal legal identity, and yet be amenable to JR – must serve public law
functions
o R v Panel on Takeovers and Mergers, ex parte Datafin 1987 – Panel
dismiss Datafin’s complaint about company they were looking to
takeover, so seek JR. CA held panel was an amenable body:
performed governmental or public duties and part of
governmental framework for regulating city activity though it had
no statutory footing; had been referred to be statute and had
quasi-judicial powers of decision making and enforcement; its
 functions points towards a public law body who must come under
scrutiny of the court in JR.
 Regulation of commercial practice = public
o R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan
1993 – HC and CA agree club is not an amenable public body,
though it exercised control over regulation in the sport and
administered Rules of Racing which where binding on all who
participated in the sport. It was essentially a private matter for
private law only.
 Regulation of Sport = private

Who is Public Authority for Purposes of HRA?

 S (6)(3)
o (a) A court or tribunal
o (b) any person certain of whose function are functions of a public
nature
o Does not include Parliament or person exercising functions in
connection with proceedings of Parliament
 Aston Cantlow and Wilmcote v Wallbank 2003 – Was chuch parish a
public authority under s (6)(3)? CA argue it was so there was a breach to
right of property (Article 1) and unlawful discrimination in respect to
enjoyment of substantive right (Article 14), however HL allow Parishe’s
appeal and distinguish between core and hybrid public bodies:
o Core Public Bodies: ordinarily subject to JR – state or emanations
of the state –can’t bring cases under HRA§
o Hybrid Public bodies: sometimes public bodies, sometimes private
bodies – can bring cases under HRA
 Poplar Housing v Donoghue 2001 – Poplar Housing was a public authority
under s(6)(3), having regard to the statutory responsibilities it exercised
on behalf the local authority and the closeness between local authority
and the housing authority (former created the latter)
 R (Heather) v Leonard Cheshire Foundation 2002 – LC was not a
functional public authority: Article 8 ECHR obligation had not fully been
contracted out to it, so there was insufficient conferral of the public law
function to LC, if HRA obligations were contracted out to LC claimants
would be able to in contract for any Article 8 ECHR infringement.
o Unlike Poplar Housing LC was distinct so the local authority or
health authority remained the amenable policy body in the
absence of the contracting out of liabilities.
 YL Birmingham CC 2007 – Southern cross was not a functional public
authority for purposes of s (6)(3) HRA: assistance provided by state was
to put claimant in comparable position to private residents, to decide
otherwise would be to give state-funded residents more rights than
private residents, i.e. public law rights in addition to contractual rights
o LH: function performed pursuant to statutory arrangements at
public expense and in public interest, so no doubt that parliament
intended that to be covered by section 6(3)
  Consider: S (145) Health and Social Care Act 2008 – person who provides
accommodation with nursing or personal care in a care home under
arrangements with parliament under relevant statutory provisions is
taken to be exercising a function of a public nature in doing so.
o Reverses YL in context of publicly funded care, but YL still
applicable to general approach taken by courts on interpretation
of functional public authorities under s (6)(3)
 R(Weaver) v London and Quadrant Housing 2009 – Claimant has most
rent paid for by local authority, landlord seeks possession of property
when rent falls into arrears. Claimant seeks to rely on convention rights
and CA held landlord was a functional public authority. In regards to:
public financing of accommodation; landlord worked in close harmony
with core public authority; landlord bound by regulatory framework for
social housing. Furthermore, parliament intended to confer public law
rights on claimant subject to decisions of hybrid public bodies, perhaps
situation would be different if landlord enforced his private law rights to
possession of property where rent was at market value.

Judicial Review Procedure and Remedies

Prerogative Remedies

 Sought by JR – derive from power of Crown to keep PB’s in check

 A dominant view is JR is a cause of action with purpose of accessing
discretion of the crown to award a ‘prerogative remedy’ – supported by
statute
o S (31) Senior Courts Act 1981 – application to HC for forms of
relief shall be made in accordance with rules of court by
application for JR
o Civil Procedure Rules part 54.2 – JR must be used where claimant
is seeking a mandatory order, prohibiting order, quashing order or
injunction under s(30) of Senior Courts Act 1931

Quashing Orders

 Render decision null and void and of no legal effect (most common)
 CPR 54.19
o Remit is up to decision maker
o Direct to reconsider matter or reach decision according to
judgement of the court
o Substitute its own decision for the decision to which claim relates

Prohibitory Orders

 Often combined with quashing order – stops PB from doing something in

the future or repeating past errors
o Applicant must ask court for a specific order
o Court likely to award mandamus, where there is only a one lawful
option available to decision maker
 o Used rarely and “introduced to prevent disorder from failure of
justice, and defect of police” (Mansfied – R v Parker 1762)

Injunctions

 Common, pending determination of substantive legal matter

 Used in Factortame No. 2 pending decision of ECJ on the conflict of laws
 Perform same function as mandatory and prohibiting orders when made
final
 Breach = contempt of court

Declarations

 Strictly speaking not a remedy, but form of relief giving an account

(declation) of proceedings and or rights of parties
 Used effectively in Rowland v Environment Agency to confirm that the
public body has created a legitimate expectation of private ownership.

Damages

 Ordinary unavailable
 Provided for by HRA s (8)(3)
 Or where matter would ordinarily give rise to damage in “a cause of
action sound in damages” (R v Deputy Governor of Parkhurst Prison, ex
parte Hague)
o E.g. public body acts ultra vires and also commits a tort where
damages would be payable

Permission
 CPR 54.4 – permission to proceed required in a claim for HR
 Sought by written application, since 200 edition of CPR D public body can
make own written representations
 Paper stage has survived challenge that it was incompatible with Article 6
ECHR (R (Ewing) v Dept for Constitutional Affairs 2006)
 If refused claimant can ask for reconsideration in oral hearing (CPR
54.12(3))
 Requirement for permission means no one has a ‘right’ to JR
 Typically refused where there is no standing, where other remedies might
be preferable (e.g. in contract) or where there is no grounds for JR
 Diplock defends permission stage in R v IRC, ex parte Federation of Self-
Emplyed and Small Businesses –function is to prevent waste of court time
by busybodies with misguided or trivial complaints of administrative
error
 R v Home Secretary, ex parte Swati – claimant must have arguable case to
proceed from the permission stage
 Time limits (54.5) – (1a) claim form must be filled promptly and (1b) not
later than 3 months after ground to make claim first arose
  54.5(5) – if application made by SoS or local planning authority under
planning acts, claim form must be filled not later than 6 weeks after
grounds to make claim first arose

Theories and Politics of Administrative Law

Sovereignty

 Michael Facoult - sovereign power is not invested in one leviathan-type

figure, but is dispersed within apparatus of the state
 Designating actors as amenable public bodies we recognised their
sovereignty over life – may be basis for judicial reviewability
 Paradox – how can state be sovereign if bound by administrative law?
Isn’t JR the antithesis of sovereign right?
 HR does not sit comfortably with any notion of sovereignty – lead to
enhanced role of courts to adjudicate on availability of these rights
o Extension of rights – Paul Craig argues for whole of substantive
review to be conducted on proportionality grounds
o Rejected by James Goodwin, proportionality review would infringe
on separation of powers – protection of fundamental rights should
be treated differently to other public law concerns

Law and Politics

 Laws LJ “law and Democracy’ – every rule and norm in public law is
political in nature, not negated by fact that judges create them
o Authority of judges is acceptable, they are reacting to, not
instigating, public events and they act as guarantor of plurality and
democracy, upon which electoral political legitimacy is based
 Or public law is there to facilitate, produce and enact food governance, i.e.
it delivers policy or is an instrument for its implementation not a limit on
administrative excesses – Harlow and Rawlins, Law and Administration:
o Red light theorists – role of public law is as seen in JR 0 as a way of
imposing limits on governmental excess
o Green light theorists – proactive and interventionist, PB is to
facilitate and deliver on governmental objectives, including
accountable government

Ultra Vires Theorists

 Basis of JR is to uphold the express or implied intention of parliament
o Judge is on safe ground only where he can show that offending act
is outside the power – Wade
 However, sometimes public power is not statutory at all (GCHQ) or court
decide otherwise in spite of Parliament’s intention
 Modified ultra vires (Elliot) – mindful that court is not simply interpreting
parliaments intention, also appeal to principles of justice, fairness and
due process (express implied intention to uphold Rule of Law)
o However, rule of law can be upheld without much role for
parliament (i.e. contract law), often parliament does not even act
according to rule of law and 'courts are powerless to do anything
about it’ (Jackson, Belmarsh Judgement)
Common Law Theorists
 Allan – there is no essential difference between judge made law and Act of
Parliament, because both are public expression of legal reasoning (court
is crucial to this)…so no reason why Court should uphold parliaments
intention or defer to parliament on national security matters, such
reasoning is due to historical and cultural sensibility to consciousness.
 Dawn Oliver (following GCHQ) – JR no available in respect to prerogative
on same basis as statutory power, so we cannot simply understanding JR
as upholding parliamentary sovereignty
 YES – court have abandoned idea that excess of parliamentary intention
is the basis for review, now more concerned with control of power
generally not just control of specific Stat powers, as well as desire to
provide suitable public redress for public excess