THE COURTS: JUDICIAL REVIEW AND LIABILITY 1.

Nature and foundations of judicial review The decision of a minister, local authority or other public officer or body may be challenged in court by recourse to the machinery of judicial review. Judicial review is to be distinguished from appeal, which is sometimes available as a means of contesting an administrative decision. o Judicial review is the exercise of an ancient and inherent supervisory jurisdiction of the court, by which excess or abuse of public power may be restrained or remedied. o On the other hand, appeal to a court against an administrative act is possibly only where for it is made by statute. o Quigly v Chief Land Registrar: Hoffman LJ: a right of appeal is entirely a creature of statute. This does not mean that the exercise of administrative powers by the registrar is altogether beyond judicial control. I should have thought that it would be subject to judicial review in the same way and on the same principles as any other public power. o Associated Provincial Picture Houses Ltd v Wednesbury Corpn: The power of the court to interfere is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them. o Chief Constable of the North Wales Police v Evans: judicial review is concerned not with the merits or demerits of the decisions reached by an administrative authority with whether that decision was right or wrong- but with the process by which the decision was reached. o R v Cambridge Health Authority: Bingham MR: a court exercising judicial review has one function only, which is to rule upon the lawfulness of the decisions. o Appeal is concerned with merits while judicial review is concerned with legality and process. o The line between them is not so clear in practice. Appeal Merits Power to substitute its own decision for that of the body appealed from Judicial Review Legality and process Restricted to granting one or more of certain specific remedies.

Justification for judicial review: principle that powers granted to a public body must not be exceeded. o Ultra vires principle: the act of a public authority that falls outside the limits of its jurisdiction or powers is unlawful and will be prevented or set aside by the reviewing court. Where power is conferred by statute, it will be for the court

to determine what limits Parliament has imposed on the use of the power and whether those limits have been exceeded. Daymon v South West Water Authority o The South West Water Authority imposed a charge for sewerage services on a householder, Daymond, whose house was not connected to a public sewer (based in s 30 Water Act 1973 which authorized water authorities to fix, and to demand, take and recover such charges for services performed, facilities provided or rights made available by them as they think fit). o Viscount Dilhorne: Is it to be inferred that it was the intention of Parliament that they should be at liberty to charge anyone they thought fir it Great Britain? It is inconceivable that Parliament should have intended to entrust such an extensive power of taxation to a non-elected body. The natural inference to be drawn from that provision is that it can charge only those who avail themselves of its services, facilities and rights. Often, the statutory language is equivocal and has to be interpreted. In this task the court may be assisted by presumptions derived from the common law. It has been questioned whether the courts are really giving effect to the unexpressed but presumed intention of Parliament or are rather simply requiring statutory powers to be exercised in conformity with principles which the courts see it as their responsibility to uphold, and which have their source in a judicial conception of the rule of law. Thus, they are enforcing the rule of law, taken to mean not only that precisely limited statutory powers must not be exceeded, but that powers must not be used in ways or for purposes that run counter the principles of justice and fair dealing evolved by the courts in the long experience of judging and developing the common law. Recent years, ultra vires theory strongly challenged by those who find the source and justification of review in the common law. The principles applied by the courts are not derived from an implied intention of Parliament, but rest in the historic function and character of courts as guardians and pronouncers of values anchored in society and culture. On the other hand, courts explain the review jurisdiction in terms of ultra vires, as providing a basis for their far-reaching power of control that is overtly respectful of parliamentary sovereignty. For commentators, it is no mere fiction to say that Parliament, in granting powers to ministers, local authorities, NDPBs and other agencies, does so on an unexpressed condition that the powers must be used rationally, fairly and for the purposes for which they are given. Even though a large measure of discretion is allowed in exercising the power it is argued that Parliament cannot be indifferent as to whether the powers is diverted to collateral ends that are not compatible with the statutory purpose, or is used in an arbitrary manner that disregards the rights or legitimate expectations of individuals, or defies reason. If the courts devise principles to forestall abuses such as these, are they not acting to reinforce the will of Parliament? Judicial review is broader than a means of protecting the individuals and providing remedies for wrongs done.

Lord Woolf: judicial review is primarily concerned with enforcing public duties on behalf of the public as a whole and only concerned with vindicating the interests of the individual as part of the process of ensuring that public bodies do not act unlawfully and do perform their public duties. o Judicial review must generate clear principles which can provide guidance to administrators, who in their turn must accept a responsibility to act upon the guidance so given (modest achievement). Several differences of procedure between English and Scots judicial review.

2. Grounds of review Council of Civil Service Unions v Minister for the Civil Service: illegality, irrationality and procedural impropriety. Lord Diplock: that is not to say that further development on a case by case basis may not in course of time add further grounds.

(a) Illegality A public authority acts in bad faith, deliberately exceeding the limits of its power. Generally, consequence of an error of law, be it in misinterpreting a statute or disregarding common law principles that govern the exercise of public power. At one time it was held that only certain errors of lawrelated to the scope of the decision-makers powers (jurisdictional error) or on the face of the record of the decision taken. BUT it is now clear that any relevant error of law can result in the decision being quashed by the court. o Scotland: distinction between ultra vires and intra vires errors of law continues to be important. An exercise of power will offend against legality if such conduct runs counter to the policy and objects of the empowering Act or defeats the purpose for which the power was given. Several ways in which this kid of default or illegality may occur: 1. Extraneous or improper purposes: o A power-conferring statute will doubtless be found to give a discretion to the public officer or body concerned. Any such discretion may be exercised only for the purposes for which it was given and not for extraneous purposes of the decision-maker. o R v Ealing London Borough Council, ex p Times Newspapers Ltd (1986) Ealing council banned from public libraries in the borough all copies of newspaper and periodicals published by the newspaper groups concerned in the dispute against the unions as a way of supporting their cause. The Divisional Court held that it was ultra vires and void as an abuse of the Councils power.

2. Irrelevant considerations o The deciding authority should take account of all considerations that are relevant to its decision and disregards irrelevant considerations: arbitrary action in violation of these constraints is held to be illegal. o A statute may itself specify considerations to be taken in account, but what factor are or are not relevant will often be a matter of construction or inference. o R v Tower Hamlets London Borough Council, ex p Chetnik Developments Ltd (1988). o Padfield v Minister of Agriculture, Fisheries and Food (1968) A milk marketing scheme for England and Wales had been established under the Agricultural Marketing Act 1958 under which producer had to sell their milk to a Milk Marketing Board, which itself fixed the prices to be paid on a regional basis. The act provided machinery for dealing with complaints: a complaint would be referred, if the Minister in any case so directs, to a committee of investigation and the Minister was empowered (not obliged) to make an order amending the scheme. There was a complaint and the minister refused to refer it. He argued that the Act gave him an unfettered discretion whether or not to refer. The HL rejected this. Although the discretion was expressed in unqualified terms, it must be exercised to promote the policy and objects of the Act (Lord Reid). Lordships acknowledged that a report by the committee might generate pressure on the minister to take a corrective action, against his judgment and put him in a politically embarrassing position. But, it was alone sufficient to vitiate the Ministers decision which can never validly turn on purely political considerations. The minister had to re-consider the complaint he referred to the committee which reported in favour of the complainants the minister concluded that it would not be in the public interest to give effect to the committees report limits of judicial review. o R v Secretary of State for Trade and Industry, ex p Lonrho plc (1989) Lord Keith: the absence of reasons for a decision where there is no duty to give them cannot of itself provide any support for the suggested irrationality of the decision. The only significance of the absence of reasons is that if all other known facts and circumstances appear to point overwhelmingly in favour of a different decision, the decision-maker, who has given no reasons, cannot complain if the court draws the inference that he had no rational reason for his decision. o R (Corner House Research) v Director of the Serious Fraud Office (2008) The Director of the Serious Fraud Office (SFO) decided to abandon a criminal investigation into British Aerospace (BAE) in connection

with alleged bribery (soborno) relating to a lucrative arms contract signed between UK and Saudi Arabia for wich BAE was the main contractor. It was alleged that the SFO had acted unlawfully in deciding to halt the investigation as he had surrendered to a threat apparently made by Government of Saudi Arabia to the Effect that they would cease all intelligence cooperation with UKcontrary to national security interests of UK. Divisional Court: Directors decision was unlawful not because he had no power to take into account relevant considerations of national security but because the court noted that there was in fact no specific, immediate threat to national security or public safety (steps should have been taken to resist the threat). Overturned by a unanimous HL. Lord Bingham: The issue was not whether the Director had done everything possible to avoid having to accede to the threat; rather the question was whether, in deciding that the public interest in pursuing an important investigation was outweighed by the public interest in protecting the lives of British citizens, the Director made a decision outside the lawful bounds of the discretion entrusted to him by Parliament. Widely criticised. o R (Sainsburys) v Wolverhampton City Council (2010) Dispute between Tesco and Sainsbury, no one wanted to sell each other its part of the site to build a new supermarket. The local authority decided to use its statutory powers of compulsory purchase to settle the issue in Tescos favour (Tesco had undertaken to assist with the regeneration of another site uneconomic). Supreme court split 4:3 Majority: Taking into account the regeneration of the second site when considering the future of the first site was an immaterial consideration unlawful. Powers of compulsory purchase, strikingly invasive of rights to private property as they may be, should be narrowly construed. Minority: Greater emphasis on the responsibility of a local authority to act in the public interest, taking into account the whole of its area. o Three further observations on relevant and irrelevant considerations: 1) Legally relevant only if it is something that the decision-maker is obliged to take into account and is not merely a factor which may properly be taken into account.

2) The weight to be attached to the relevant considerations is a matter for the judgment of the decision-maker (subject to Wednesbury unreasonableness). 3) Irrelevant considerations and improper purposes overlap and may often more or less alternative ways of characterising the same unlawful action. 3. Unlawful delegation o A public body on which power is conferred by statute may not divest itself of the power by delegating it to some other body, unless such delegation is expressly or impliedly authorized by the statute. o Non-delegation rule qualified by s 69 of the Deregulation and Contracting Out Act 1994. o Carltona principle by which decision-making may be devolved to subordinate officers within the organization of the authority entrusted with the power. 4. Fettering of discretion o When a statute grants a discretionary power to a public authority, it is to be inferred that the authority must not do anything to constrain or fetter its discretion so that it is prevented from exercising the discretion in the manner contemplated by the statute. o An authority must not, for instance, make a contract or adopt a policy that nullifies or abridges its discretion, thus defeating the purpose for which the discretion was given.

(b) Irrationality Associated Provincial Picture Houses Ltd v Wednesbury Corpn (1948) o Lord Green MR: It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming It must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether. Council of Service Unions v Minister for Civil Service (1985) o Lord Diplock: 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. Justification for judicial intervention o R v Secretary of State for the Home Department, ex p Brind (1991) Too high BUT where Parliament has given to a minister a discretion, the courts jurisdiction is limited. Wrongful usurpation of power by the judiciary to substitute its on the merits and on that basis to quash the decision.

To seek the courts intervention on the basis that the correct or objectively reasonable decision is other than the decision which the minister has made is to invite the court to adjudicate as if Parliament had provided a right of appeal against the decision that is, to invite an abuse of power by the judiciary.

R v North and East Devon Heath Authority, ex p Coughlan (2001) Lord Woolf: Rationality has two faces: Barely known decision which simply defies (=desacata) comprehension A decision which can be seen to have proceeded by flawed (=viciado) logic (though this can often be equally allocated to the intrusion of an irrelevant factor). R (Rogers) v Swindon NHS Primary Care Trust (2006) o R v Ministry of Defence, ex p Smith (1996) o Four members of Her Majestys Armed Services were administratively discharged on the sole basis that they were homosexual. No allegations of sexual misconduct were made against them. o Applicants submitted: in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable. o Principles laid down by the HL in R v Secretary of State for the Home Department, ex parte Bugdaycay (1987) and R v Secretary of State for Home Department, ex parte Brind (1991). o Lord Thomas Bingham MR: The applicants rights as human beings are very much in issue. This does not mean that the court is thrust into the position of the primary decision-maker. It is not the constitutional role of the court to regulate the conditions of service in the armed forces of the Crown, nor has it the expertise to do so. But it has the constitutional role and duty of ensuring that the rights of citizens are not abused by the unlawful exercise of executive power. While the court must properly defer to the expertise of responsible decision-makers, it must not shrink from its fundamental duty to do right to all manner of people. o Authority for the proposition that where fundamental or constitutional rights are at stake, the test of irrationality will be intensified. o However, this intensified test of irrationality was subsequently found by ECtHR not to be sufficient to meet the demands of the ECHR. o Smith and Grady v UK (1999): the threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants right answered a pressing social need or was proportionate to the national security and public order aims pursued.

ECtHR held that the judgment violated the claimants rights under art. 13 ECHR: even an intensified test of Wednesbury unreasonableness is not an effective remedy in these circumstances. HL has held that in cases concerning Convention rights, standards of proportionality should be used instead of notions of Wednesbury unreasonableness.

(c) Proportionality 1980: Committee of Ministers of the Council of Europe adopted a recommendation to Member States concerning the exercise of discretionary powers by administrative authorities. Principle of proportionality: the administrative authority maintains a proper balance between any adverse effects which its decision may have on the rights, liberties or interests of persons and the purpose it pursues. An authority exercising a power which necessarily has a disadvantageous effect on private rights or interest, if able to choose between alternative measures, should adopt the least onerous and should not impose a sanction, restriction or penalty that is disproportionate in severity or extent to the aim pursued. The courts were initially wary (=cautelosas) of accepting the principle of proportionality as a distinct ground of review in domestic cases. Reasons (by Lord Donaldson MR in the Court of Appeal and by Lord Ackner in Brind): o Judicial review is a supervisory and not an appellate jurisdiction. o It could easily and speedly lead to courts forgetting the supervisory nature of their jurisdiction. o It would require the court to make an inquiry into and a decision upon the merits of the matter and would amount to a wrongful usurpation of power. ECtHR uses the notion of proportionality in a particular way (Smith and Grady v UK): o Article 8 ECHR, structure: Paragraph 1 right, Paragraph 2 requirements to interfere: a) accordance the law; b) necessary in a democratic society and c) for a certain prescribed aim. o ECtHR interprets the test of necessity in a democratic society as a test of proportionality. The Court asks if there is a pressing social need justifying the interference. o R (Daly) v Secretary of State for the Home Department (2001): decisive move to allow arguments of proportionality to be made in domestic courts in cases concerning Convention rights. Development not required by HRA. Article 13 is not domestically incorporated. Proportionality was developed by the ECtHR in its case law, (it is not in the text of the Convention). HRA does not incorporate the case law of the ECtHR into domestic law. It says that it must be taken into account.

*Ullah principle: HL ruled that a clear and constant line of authority from the Strasbourg court ought generally to be followed by the UK courts (controversial).

(d) Procedural impropriety and unfairness 1. Bias Dimes v Grand Junction Canal Proprietors (1852): If the decision-maker has a pecuniary interest in the matter to be decided, he or she is automatically disqualified from making the decision. It applies even if no allegation of the decision-maker actually being biased can be made. R v Bow Street Stipendiary Magistrate, ex p Pinochet (No 2) (2000): other interests may likewise lead to automatic disqualification for bias. Porter v Magill (2001): a decision-maker may be disqualified where the fairminded and informed observer, having considered the facts, would concluded that there was a real possibility of bias (apparent bias). R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign (1996): the rule against bias may cause difficulties in administrative or governmental circumstances where the decision-maker has been elected to the position whereby it may make a decision on the basis of a manifesto or campaign commitment to resolve certain issues in a particular way. o Sedley J: In the case of an elected body the law recognizes that members will take up office with publicly stated views on a variety of politics issues. The court will be concerned to distinguish legitimate prior stances or experience from illegitimate ones. o R (Lewis) v Redcar and Cleveland Borough Council (2008): They are not required to cast aside views on planning policy they will have formed when seeking election or when acting as councilors. The test is a very different one from that to be applied to those in a judicial or quasi-judicial position). o Article 6(1) ECHR: everyone is entitle to a fair and public hearing by an independent an impartial tribunal. o R (Alconbury) v Secretary of State for the Environment (2001): this aspect of the Britains planning system did not violate Article 6. Simplest solution: Article 6 is not engaged in these circumstances: a decision on a planning application is not the determination of a civil right for the purpose of the art. 6. Unavailable because of the case law of ECtHR, which has vastly expanded the scope of the art. 6. The HL is not bound by this case law but had the claimant lost in the HL, they would surely have mounted a successful appeal to the ECtHR. HL ruled that art 6 was not violated because the decision-making of the Secretary of State was subject to judicial review and the Secretary of States decision making in this context was closely related to sensitive questions of national environmental and social policy, in

respect of which the Secretary of State should be accountable primarily to Parliament rather to the courts. Runa Begun v Tower Hamlets London Borough Council (2003): what if the decisionmaker is making a straightforwardly administrative decision rather than one that impacts upon sensitive policy concerns? o HL chose not to distinguish Alconbury but to follow it.

OUSTER CLAUSES CONTINUATION Some ouster clauses are more limited in scope, expressly allowing questions of invalidity to be raised in court in a prescribed time and manner and on specified grounds. o Clauses of this kind take account of the requirements of administrative convenience and efficiency without denying relief to aggrieved persons, though the time limit for challenge is often unduly short. Similarly, clauses that allocate exclusive jurisdiction to determine an issue to a statutory body (such as a tribunal). o Lord Nicholls: Anisminics strict approach is not appropriate if an effective means of challenging the validity of a matter is provided elsewhere.

(d) Judicial review of prerogative powers While the courts could determine the existence and extent of any prerogative they might not question or review the grounds on which a prerogative power had been exercised. Blackburn v Attorney General (1971): ministers in negotiating and signing a treaty exercise the prerogative of the Crow. Their action in so doing cannot be challenged or questioned in these courts. Chandler v DPP (1964): equated prerogative with other discretionary powers, saying that the courts could intervene to correct excess or abuse. R v Criminal Injuries Compensation Board, ex p Lain (1967): the Divisional Court held that the actions of a public body set up by the Government under the prerogative- to make awards of compensation to victims of criminal offences could be the subject of judicial review. Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case) (1985): o In 1983 the Prime Minister issued an instruction that the conditions of civil servants employed at GCHQ, should be revised so as to exclude the right of trade union membership. o The Ministers action was taken without prior consultation with trade unions GCHQ.

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The union applied for judicial review, GCHQ had a legitimate expectation, arising from a well-established practice of consultation before their conditions of service were altered. Glidewell J granted a declaration that the instruction was invalid. Court of Appeal: set aside the declaration. HL: Minister: the instruction was not open to review because the power to issue it had its source in the prerogative rejected. Lord Fraser and Brightman: The power exercised in this case had been delegated to the Minister by the prerogative Order in Council and it must be an implied condition of any such delegation that the power should be exercised fairly a matter appropriate for review. Majority HL: Lord Scarman: If the subject matter in respect of which prerogative power is exercised is justiciable, the exercise of the power is subject to review. The royal prerogative has always been regarded as part of the common law. The controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter. Lord Diplock: there are fields of law in which the executive government retains decision-making powers that are not dependent upon any statutory government but nevertheless have consequences on the private rights or legitimate expectations of other persons which would render the decision subject to judicial review if the power of the decisionmaker to make them were statutory in origin. There is no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Lord Roskill: i do not think that the right of challenge can be unqualified. It must depend upon the subject matter of the prerogative power which is exercised (excluded categories).