Public Law - Administrative Law: The Substantive Grounds of Judicial Review &
The Procedural Grounds for Review, Procedure and Remedies
Judicial Review (JR): principal way of holding the executive legally accountable by
reviewing the legality of the decisions of government Ministers, government
departments, local authorities or other public bodies, and making sure they are acting
within the powers they have been granted. The court is not concerned with the merits of
the decision made, only the manner in which a decision was made or the procedure that
was followed (Guisanni).
- Courts concerned with legality of the public body’s actions (i.e. are they following
the law when making decisions and taking action?), not morality (i.e. should the
public body (be allowed to) do this?)
- JR is different from an appeal in that it does not substitute the original decision
for another, but sends it back to the decision maker to make another decision in
light of the findings of JR.
- JR checks and balances:
- Parliament (legislature):
- Ministers are accountable to P for the actions of government
(convention of Ministerial Responsibility)
- May create public bodies through legislation
- Via primary legislation, may grant powers to Ministers (via Henry
VIII powers) and public bodies (by granting special powers to carry
out statutory duties)
- Government (executive):
- May create delegated legislation (subject to JR)
- Exercises statutory powers conferred by Parliament
- Exercises powers under Royal Prerogative
- Courts (judiciary):
- Exercises powers of JR
- Via JR, scrutinises delegated legislation + the exercise of
statutory/RP powers by government
[STEP 1] Can the claimant use JR?
,- Public law issue?
- ‘Procedural exclusivity’ - Public law ONLY cases:
- In exclusively public law cases (e.g. CPOs), JR must be used, and
private law issues must be determined in private law proceedings
(confirmed in Trim v North Dorset District Council of Nordon -
relating to planning permission for a house
- E.g. O’Reilly v Mackman (cannot use private law procedures for a
public law issue)
- Facts:
- Cs (prisoners) seeking clarification that disciplinary
offences were null and void by private law writ action
- Issue:
- Could Cs seek private law action for a public law
issue?
- Held:
- NO - HoL found for the Board of visitors to the prison
as Cs could not exercise public law rights by private
law action
- Exception - where a case involves public AND private law
- Where a claim is based on a mix of public and private law grounds,
the public law part can be raised in private law proceedings
- E.g. ‘principle of ‘collateral challenge’ - public law
issues/invalidities can be raised as a defence in private law
claims (as well as in JR obviously)
- Confirmed in Wandsworth v Winder
- Facts:
- Council increased rents and sued a
tenant who refused to pay increase
- Tenant claimed a public law defence -
was ultra vires
- Issue:
- Council argued C should have used JR
as they raised public law defence, do
they need to?
- Held:
- NO - collateral challenge principle
(above)
- Public body/authority?
- D satisfies/does not satisfy the source of power test in Datafin as…
, - 2 part test established in R v Panel on Takeovers, ex p Datafin plc
- 1) Source of power test - if the decision making body has
been created under statute, delegated legislation, or derives
power from reviewable RP power
- 2) Nature of power test (only if 1st part NOT satisfied) -
may be a public body if it’s exercising public law functions
(usually done by carrying out its duties under the Act)
- Facts:
- Takeover bid which was initially rejected at first
instance on the reasoning that the panel was not
exercising statutory or prerogative powers
- CA considered the panel was exercising public law
functions
- Issue:
- Added nature of power test, rejected source of power
test as SOLE test of JR amenability
- Is D a ‘public authority’? - s.6 HRA 1998
- X is also a public authority under s.6 HRA 1998 and able to engage
its ECHR rights and challenge on the grounds of a potential breach,
as a public authority is synonymous with a public body (Beer)
- s.6(2) - does not apply if, based on statute, a public authority
could not have acted differently, or the authority is giving
effect to an Act which is incompatible with the Convention
- Standing - sufficient interest SCA 1981, s.31(3):
- C can only bring JR if they have ‘sufficient interest in the matter to which a
claim relates’ (s.31(3) Senior Courts Act 1981)
- So, covers if C is personally/directly and adversely affected
- May not be enough if C has no personal interest, although this is closely
linked to the overall merits of the JR case (i.e. courts unlikely to reject a
valid JR claim merely due to a lack of sufficient interest/standing) - Fleet
Street Casuals
- X is a pressure group and so may have standing following the 5 factors
considered in ex p World Development Movement Ltd - highly-respected
pressure group successfully challenged gov’t decision to spend on flawed
overseas development scheme
- 1) The need to uphold the rule of law - applies if decision arbitrary
- 2) Importance of the matter
- 3) Whether anyone is better placed to bring the claim
- 4) Nature of the alleged breach of statutory duty
The Procedural Grounds for Review, Procedure and Remedies
Judicial Review (JR): principal way of holding the executive legally accountable by
reviewing the legality of the decisions of government Ministers, government
departments, local authorities or other public bodies, and making sure they are acting
within the powers they have been granted. The court is not concerned with the merits of
the decision made, only the manner in which a decision was made or the procedure that
was followed (Guisanni).
- Courts concerned with legality of the public body’s actions (i.e. are they following
the law when making decisions and taking action?), not morality (i.e. should the
public body (be allowed to) do this?)
- JR is different from an appeal in that it does not substitute the original decision
for another, but sends it back to the decision maker to make another decision in
light of the findings of JR.
- JR checks and balances:
- Parliament (legislature):
- Ministers are accountable to P for the actions of government
(convention of Ministerial Responsibility)
- May create public bodies through legislation
- Via primary legislation, may grant powers to Ministers (via Henry
VIII powers) and public bodies (by granting special powers to carry
out statutory duties)
- Government (executive):
- May create delegated legislation (subject to JR)
- Exercises statutory powers conferred by Parliament
- Exercises powers under Royal Prerogative
- Courts (judiciary):
- Exercises powers of JR
- Via JR, scrutinises delegated legislation + the exercise of
statutory/RP powers by government
[STEP 1] Can the claimant use JR?
,- Public law issue?
- ‘Procedural exclusivity’ - Public law ONLY cases:
- In exclusively public law cases (e.g. CPOs), JR must be used, and
private law issues must be determined in private law proceedings
(confirmed in Trim v North Dorset District Council of Nordon -
relating to planning permission for a house
- E.g. O’Reilly v Mackman (cannot use private law procedures for a
public law issue)
- Facts:
- Cs (prisoners) seeking clarification that disciplinary
offences were null and void by private law writ action
- Issue:
- Could Cs seek private law action for a public law
issue?
- Held:
- NO - HoL found for the Board of visitors to the prison
as Cs could not exercise public law rights by private
law action
- Exception - where a case involves public AND private law
- Where a claim is based on a mix of public and private law grounds,
the public law part can be raised in private law proceedings
- E.g. ‘principle of ‘collateral challenge’ - public law
issues/invalidities can be raised as a defence in private law
claims (as well as in JR obviously)
- Confirmed in Wandsworth v Winder
- Facts:
- Council increased rents and sued a
tenant who refused to pay increase
- Tenant claimed a public law defence -
was ultra vires
- Issue:
- Council argued C should have used JR
as they raised public law defence, do
they need to?
- Held:
- NO - collateral challenge principle
(above)
- Public body/authority?
- D satisfies/does not satisfy the source of power test in Datafin as…
, - 2 part test established in R v Panel on Takeovers, ex p Datafin plc
- 1) Source of power test - if the decision making body has
been created under statute, delegated legislation, or derives
power from reviewable RP power
- 2) Nature of power test (only if 1st part NOT satisfied) -
may be a public body if it’s exercising public law functions
(usually done by carrying out its duties under the Act)
- Facts:
- Takeover bid which was initially rejected at first
instance on the reasoning that the panel was not
exercising statutory or prerogative powers
- CA considered the panel was exercising public law
functions
- Issue:
- Added nature of power test, rejected source of power
test as SOLE test of JR amenability
- Is D a ‘public authority’? - s.6 HRA 1998
- X is also a public authority under s.6 HRA 1998 and able to engage
its ECHR rights and challenge on the grounds of a potential breach,
as a public authority is synonymous with a public body (Beer)
- s.6(2) - does not apply if, based on statute, a public authority
could not have acted differently, or the authority is giving
effect to an Act which is incompatible with the Convention
- Standing - sufficient interest SCA 1981, s.31(3):
- C can only bring JR if they have ‘sufficient interest in the matter to which a
claim relates’ (s.31(3) Senior Courts Act 1981)
- So, covers if C is personally/directly and adversely affected
- May not be enough if C has no personal interest, although this is closely
linked to the overall merits of the JR case (i.e. courts unlikely to reject a
valid JR claim merely due to a lack of sufficient interest/standing) - Fleet
Street Casuals
- X is a pressure group and so may have standing following the 5 factors
considered in ex p World Development Movement Ltd - highly-respected
pressure group successfully challenged gov’t decision to spend on flawed
overseas development scheme
- 1) The need to uphold the rule of law - applies if decision arbitrary
- 2) Importance of the matter
- 3) Whether anyone is better placed to bring the claim
- 4) Nature of the alleged breach of statutory duty
