Judicial Review
28/01/2019
- One component of a broader legal and non-legal framework
regulating state decision-making
o Supervision by courts of public decision-making affecting
individuals
o Common law framework
- Individuals routinely engage courts in an effort to challenge
decisions by public authorities that negatively affect them
o e.g. action to challenge approval for Heathrow 3rd runway from
local
o authorities, Sadiq Khan and Greenpeace
Grounds for review, applicable procedures and remedies for the parties
Senior Courts Act 1981 – doesn’t explain much about the grounds of
the reviews
IMPORTANT:
- Judicial review is not an appellate jurisdiction
- It is a supervisory check on public decision-making
o Rules of the game have been developed to reflect the
supervisory character
Why is it supervisory?
- Doctrine of parliamentary sovereignty
o Parliament decides who take what decisions and in
accordance with what conditions
o If judges decide to re(take) particular decisions as they see fit,
they are directly challenging Parliament’s authority
Grounds:
- Illegality
- Irrationality
- Procedural impropriety
- “Judicial review has I think developed to a stage today when without
reiterating any analysis of the steps by which the development has
come about, one can conveniently classify under three heads the
grounds upon which administrative action is subject to control by
judicial review. The first ground I would call "illegality,” the second
"irrationality” and the third "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’
29/01/2019
Illegality
,- Courts’ interpretation of legality
o ‘the decision-maker must understand correctly the law that
regulates his decision-making power and must give effect to
it… - L Diplock in Council of Civil Service Unions & Others
v Minister for the Civil Service [1985] AC 374
(GCHQ case)
o It is an evaluation of whether a decision is illegal by evaluating
the ‘content and scope of the instrument’ giving the duty or
power to the decision-maker
- Preliminary points
o Generally, judges appear comfortable with determining the
scope of decision-making powers as a question of law
o The determination of the scope of decision-making powers is a
prior question
Forms the basis for judging the legality of specific
decisions
o Interpreting the scope of decision-making powers (and
supervising their application in specific cases) is classically
justified with reference to upholding Parliament’s intentions
- Examples of suspect behaviour:
o A public authority exercises power that it does not have
e.g. R v Richmond Council, ex parte McCarthy and
Stone Ltd [1992] 2 AC 48
planning authority levied a £25 charge for
informal consultations regarding planning
applications
no statutory basis for change
e.g. R (Public Law Project) v Lord Chancellor
[2016] AC 1531
challenge to the lawfulness of the LC’s decision to
introduce a residence test for civil legal aid
applications
s. 9 Legal Aid, Sentencing and Punishment
of Offenders Act 2012 (LASPO) empowered LC
to ‘vary or omit’ the legal aid services listed in p.1
s.1 of the act
did that power support the introduction of a
residence test for civil legal aid applicants?
o NO
o SC unanimously ruled that the decision was
ultra vires
Neuberger - ‘the relevant parts of the
draft order do not seek to “vary or
omit services”: rather they seek to
reduce the class of individuals who are
entitled to receive those services by
reference to a personal characteristic
, or circumstance unrelated to the
services…’
‘[A decision] will be held by a court to
be invalid if it has an effect, or is
made for a purpose, which is ultra
vires, that is, outside the scope of
the statutory power pursuant to
which it was purportedly made.’
‘Accordingly, when, as in this case, it
is contended that actual or intended
[decision] is ultra vires, it is
necessary for a court to
determine the scope of the
statutorily conferred power to
make that [decision]’
‘In declaring [a decision] to be invalid
in such a case, the court is
upholding the supremacy of
Parliament over the Executive.
That is because the court is
preventing a member of the Executive
from making [a decision] which is
outside the scope of the power which
Parliament has given him or her by
means of the statute concerned.’
o A public authority uses its power for an improper purpose
e.g. Wheeler v Leicester City Council [1985] AC
1054
Challenge to LCC’s decision to ban LFC from using
a public football pitch for 12 months
s.56 of the Public Health Act empowered the
Council to permit the exclusive use of designated
football pitches it held in trust subject to charges
and conditions it thought fit
o Leicester City Council imposed the ban after
three members of the Club participated in a
tour to South Africa (at the time of
Apartheid)
Was the council’s decision to ban the club’s
access to its football pitches a lawful exercise of
its statutory powers?
o SC - No
o Templeman - ‘[the] use by the council of its
statutory powers was a misuse of power.
The council could not properly seek to use
its statutory powers of management (incl.
e.g. s.25 PHA) or any other statutory
, powers for the purposes of punishing the
club when the club had done no wrong’
o However… s.71 of the Race Relations
Act 1976
‘it shall be the duty of every local
authority to make appropriate
arrangements with a view to securing
that their various functions are carried
out with due regard to the need… to
promote… good relations,
between different persons of
different racial groups’
4th February
Illegality pt. 2
A public authority tales into account irrelevant considerations/ fails to take
into account all relevant ones
- E.g. R v Home Secretary ex parte Venables [1998] AC 407
o Challenge to Home Sec’s decision to set at 15 years the
sentence given to two young men who, as children, had been
convicted of the murder of James Bulger
o S. 53(1) of the Children and Young Persons Act 1933 (as
amended) gave the Home Secretary competence to determine
the sentences of children convicted of murder and imprisoned
‘at her majesty’s pleasure’
o Challenged in a judicial review action
Asked to quash the 15 years and ask the Home Sec to
make a new decision
Made an illegality argument
o Home sec had taken into account irrelevant
considerations
o Home sec had failed to take into account
important considerations
Court held – had been an instance of illegality
SoS wrongly took into account petitions from the
public to increase the tariff period recommended
by the judiciary
SoS failed to have regard to relevant factors in so
far as he reached his decisions without the benefit
of any social inquiry or psychiatric report on the
first applicant or to take account of the mitigating
factors found by the trial judge
o (judgement based on interpretation of Home
Sec’s decision-making power as a ‘quasi-
judicial power’)
A public authority delegates power to others without authorisation
28/01/2019
- One component of a broader legal and non-legal framework
regulating state decision-making
o Supervision by courts of public decision-making affecting
individuals
o Common law framework
- Individuals routinely engage courts in an effort to challenge
decisions by public authorities that negatively affect them
o e.g. action to challenge approval for Heathrow 3rd runway from
local
o authorities, Sadiq Khan and Greenpeace
Grounds for review, applicable procedures and remedies for the parties
Senior Courts Act 1981 – doesn’t explain much about the grounds of
the reviews
IMPORTANT:
- Judicial review is not an appellate jurisdiction
- It is a supervisory check on public decision-making
o Rules of the game have been developed to reflect the
supervisory character
Why is it supervisory?
- Doctrine of parliamentary sovereignty
o Parliament decides who take what decisions and in
accordance with what conditions
o If judges decide to re(take) particular decisions as they see fit,
they are directly challenging Parliament’s authority
Grounds:
- Illegality
- Irrationality
- Procedural impropriety
- “Judicial review has I think developed to a stage today when without
reiterating any analysis of the steps by which the development has
come about, one can conveniently classify under three heads the
grounds upon which administrative action is subject to control by
judicial review. The first ground I would call "illegality,” the second
"irrationality” and the third "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’
29/01/2019
Illegality
,- Courts’ interpretation of legality
o ‘the decision-maker must understand correctly the law that
regulates his decision-making power and must give effect to
it… - L Diplock in Council of Civil Service Unions & Others
v Minister for the Civil Service [1985] AC 374
(GCHQ case)
o It is an evaluation of whether a decision is illegal by evaluating
the ‘content and scope of the instrument’ giving the duty or
power to the decision-maker
- Preliminary points
o Generally, judges appear comfortable with determining the
scope of decision-making powers as a question of law
o The determination of the scope of decision-making powers is a
prior question
Forms the basis for judging the legality of specific
decisions
o Interpreting the scope of decision-making powers (and
supervising their application in specific cases) is classically
justified with reference to upholding Parliament’s intentions
- Examples of suspect behaviour:
o A public authority exercises power that it does not have
e.g. R v Richmond Council, ex parte McCarthy and
Stone Ltd [1992] 2 AC 48
planning authority levied a £25 charge for
informal consultations regarding planning
applications
no statutory basis for change
e.g. R (Public Law Project) v Lord Chancellor
[2016] AC 1531
challenge to the lawfulness of the LC’s decision to
introduce a residence test for civil legal aid
applications
s. 9 Legal Aid, Sentencing and Punishment
of Offenders Act 2012 (LASPO) empowered LC
to ‘vary or omit’ the legal aid services listed in p.1
s.1 of the act
did that power support the introduction of a
residence test for civil legal aid applicants?
o NO
o SC unanimously ruled that the decision was
ultra vires
Neuberger - ‘the relevant parts of the
draft order do not seek to “vary or
omit services”: rather they seek to
reduce the class of individuals who are
entitled to receive those services by
reference to a personal characteristic
, or circumstance unrelated to the
services…’
‘[A decision] will be held by a court to
be invalid if it has an effect, or is
made for a purpose, which is ultra
vires, that is, outside the scope of
the statutory power pursuant to
which it was purportedly made.’
‘Accordingly, when, as in this case, it
is contended that actual or intended
[decision] is ultra vires, it is
necessary for a court to
determine the scope of the
statutorily conferred power to
make that [decision]’
‘In declaring [a decision] to be invalid
in such a case, the court is
upholding the supremacy of
Parliament over the Executive.
That is because the court is
preventing a member of the Executive
from making [a decision] which is
outside the scope of the power which
Parliament has given him or her by
means of the statute concerned.’
o A public authority uses its power for an improper purpose
e.g. Wheeler v Leicester City Council [1985] AC
1054
Challenge to LCC’s decision to ban LFC from using
a public football pitch for 12 months
s.56 of the Public Health Act empowered the
Council to permit the exclusive use of designated
football pitches it held in trust subject to charges
and conditions it thought fit
o Leicester City Council imposed the ban after
three members of the Club participated in a
tour to South Africa (at the time of
Apartheid)
Was the council’s decision to ban the club’s
access to its football pitches a lawful exercise of
its statutory powers?
o SC - No
o Templeman - ‘[the] use by the council of its
statutory powers was a misuse of power.
The council could not properly seek to use
its statutory powers of management (incl.
e.g. s.25 PHA) or any other statutory
, powers for the purposes of punishing the
club when the club had done no wrong’
o However… s.71 of the Race Relations
Act 1976
‘it shall be the duty of every local
authority to make appropriate
arrangements with a view to securing
that their various functions are carried
out with due regard to the need… to
promote… good relations,
between different persons of
different racial groups’
4th February
Illegality pt. 2
A public authority tales into account irrelevant considerations/ fails to take
into account all relevant ones
- E.g. R v Home Secretary ex parte Venables [1998] AC 407
o Challenge to Home Sec’s decision to set at 15 years the
sentence given to two young men who, as children, had been
convicted of the murder of James Bulger
o S. 53(1) of the Children and Young Persons Act 1933 (as
amended) gave the Home Secretary competence to determine
the sentences of children convicted of murder and imprisoned
‘at her majesty’s pleasure’
o Challenged in a judicial review action
Asked to quash the 15 years and ask the Home Sec to
make a new decision
Made an illegality argument
o Home sec had taken into account irrelevant
considerations
o Home sec had failed to take into account
important considerations
Court held – had been an instance of illegality
SoS wrongly took into account petitions from the
public to increase the tariff period recommended
by the judiciary
SoS failed to have regard to relevant factors in so
far as he reached his decisions without the benefit
of any social inquiry or psychiatric report on the
first applicant or to take account of the mitigating
factors found by the trial judge
o (judgement based on interpretation of Home
Sec’s decision-making power as a ‘quasi-
judicial power’)
A public authority delegates power to others without authorisation
