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Judicial Review Full Exam Notes with exam structures and exam tips including cases and law.
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JUDICIAL REVIEWLecture 1 – Introduction to Judicial Review –
Judicial review is the legal standard to which the courts required government decision makers to adhere
Textbook reading
* Elliott and Thomas chs 11 and 14
* Thompson and Gordon 491-496
Public agencies: (challenges are being made towards the public agencies).
Government Departments (including executive agencies),
Local authorities,
other governmental agencies, e.g. regulators, such as the Office of Communications or Ofgem (Office of Gas and
Electricity Markets),
non-governmental agencies carrying out public functions, e.g., the Panel on Takeovers and Mergers, Independent
Press Standards Organisation, Advertising Standards Authority. Query bodies like the Jockey Club, Football
Association.
Most of the time they are not a problem but you need to ask whether it is actually a public agency. HAS TO BE A PUBLIC
BODY not a private limited agency.
Ways of carrying out public action:
Statute – most power exercised by a public bodies is granted by statute. Ageneral rule public agencies can exercise
statutory power – looking at how the court have granted power.
Datafin Case - The Panel of Take-Overs and Mergers is private body which regulates the acquisition and mergers
industry within the City of London; it cannot be ‘opted-out’ of. Datafin made a complaint that one company had
breached the Panel’s code of conduct. Decision: The panel refused to take action Yes, although the claim itself
failed as there were no grounds upon which to quash the decision. Reasoning: Private bodies which effectively
performed public law functions are amenable to judicial review. (Also dicusses what a public agency actually is)
When a minister or a decision maker is contemplating exercising a statutory power, he must, before addressing the
merits of the question over which he would have discretion (“should I allow this project to go ahead”), address a
prior question, known as the jurisdictional question (do I have the power to decide this matter?) –
1) The meaning of the statute = interpreting the stature which are regarded as questions of law – courts have
the final say.
o E.g. Anisminic - Anisminic owned property in Egypt which was sequestrated (legal possession until a debt
had been paid or other claims have been met) in 1956 by the Egyptian government. Under a treaty, the
United Arab Republic paid to the UK £27.5 million as compensation for property confiscated in Egypt in
1956. Responsibility for distributing the compensation money was vested in the FCC- Anisminic submitted
a claim for compensation to the FCC. Article 4 of the FC (Egypt) (Determination and registration of
claims) order 1962 provided that the commission shall treat a claim as establish if satisfied of the following
matter – applicant = owner of the property or is the successor in title of such a person; and any person who
became successor on title on or before February 28 1959 were British nationals on October 21 1956 and
February 28, 1959. The commissions provisional determination was that Anisminic Ltd had failed to
establish its claim because TEDO, its successor in title was not a British national. Anisminic Ltd sought a
declaration that the commission had misconstrued the order.
o The question for the court was whether the commissions interpretation of the legislation should stand –
Lordships said it shouldn’t. the legislation didn’t require consideration of the nationality of Anisminic’s
successor in title. Lord Wilberforce said that the commission has a “derived authority, derived that is from
statute: at some point and to be found from a consideration of the legislation, the field within which it
operates is marked and limited”. Lord Reid – it cannot be for the commission to determine the limits of its
powers… if they reach a wrong conclusion as to the width of their powers, the court must be able to correct
that.
“Judges should have the final say”
Page – general principle is that decisions affected by errors of law can be quashed from judicial review.
Courts should do this because of the notion of relation institutional competence which holds that courts are
better than decision makers in relation to legal matters and should have the final say on them. But Arden LJ
argues that answering legal questions of statutory interpretation may require policy choices to be made.
The independence of the judiciary justifies the courts have the ultimate power as fairness demands that the
decision is taken by one “whose life tenure and salary protection promote impartiality, objectivity and
insulation from political pressure” – i.e. judges (Farina). On the other hand, if a statute confers discretion in
broad terms that raise controversial policy questions, it may be more appropriate to leave the decision to an
elected decision-maker. E.g. In Puhlhofer, the claimant was eligible for assistance form his local authority
if he was homeless which he would be if he had no “accomadation” within the meaning of the relevant
legislation. HOL said that the word “accomdation” was a question of fact and not law so it should be left to
the local authority to determine.
Prerogative powers – question is whether the prerogative power exists e.g. BREXIT
Common law, e.g., the ability to enter into contracts or not.
, Types of Dispute
Individual disputes – agency applies to a particular person and the person says they have done this in an unlawful
manner.
An example of an individual dispute would be where a public agency penalises an individual and the individual
disputes the correctness of that decision in relation to the rules the agency operates. The individual accepts the
rules, but disputes that they have been applied correctly.
Human rights issues – breached HR. (highly likely to occur)
Policy disputes – trying to influence policy and we disagree with this and we are going to challenge this. Can get a
direct challenge to a policy - a policy dispute is where there is a challenge to a general policy of an agency or a
decision, which affects numerous individuals.
Test cases – affected by policy and put them up in front of the court
An example of such a dispute would be the challenge to the use of the prerogative power to trigger the UK’s
notification to leave the EU under Article 50 Treaty on the European Union (Miller v Secretary of State for Exiting
the European Union).
Importance of context
The distinction is not always easily made. It is not uncommon to use an individual complaint as a “test case” or an
individual complaint may have general implications, for example, if that person wins, then others also have to win.
This is a very important consideration where the agency has scarce resources, as in the NHS.
The reason for being aware of this distinction is that this is a contextual factor, which the courts may take into
account when deciding a case.
Appeal versus judicial review
Appeal – not interested in appeal but whether the individual can apply for judicial review
Must be established by statute – only if the statute says what issues you can appeal on. Tribunals = limits to a point of
a law but can be on the merit of a decision.
Issues to be decided depend on statute
Often limited to error of law
Typically to a tribunal – not legally qualified but have expertise in the area
Remedies depend on the statute
No general right of appeal – depends on what the statute says and what rights you have. The government can decide
how appeals work - what rules an appeal has.
Judicial review
Part of inherent jurisdiction of the courts – you always have a right to bring/apply for judicial review for the
decisions of public agencies unless legislation specially excludes this which is difficult to do
Deals only with legality, not about the merits of issue – courts are not interested on whether a decision is good/bad
just interested in illegality. Miller case (BREXIT) –you will find a statement that says that this is “about the legality
of the decision” – important when challenging this decision as saying that it is unlawful.
Not meant to be a deep factual inquiry – procedurally it doesn’t work like that. Parties are meant to decide what the
factual set up is. Judicial review isn’t set up for listening to witnesses and cross examinations/ disputes of facts
Remedies are discretionary (courts doesn’t have to give you a remedy) and limited (court doesn’t tell public agencies
what to do but whether it is lawful and then leaves it to the public agencies to decide what to do. (US federal courts
tell public agencies what to do – detailed list))
Chief Constable of the North Wales v Evans – The CCNW decided that Evans, a probationer constable in the force
should be required to resign or if he refused, he would be discharged from the force. Evans resigned – but challenged
the decision on the grounds that it was taken in breach of natural justice because he wasn’t told of the allegations and
hadn’t been given an opportunity to offer any explanation. HOL agreed with the COP decision that there was a breach
of natural justice. Need to protect individuals against the abuse of power from authorities – the courts are not taking
away the power but is intended to make sure that the relevant authorities use their powers in a proper manner. Judicial
review is concerned, not with the decision but with the decision-making process.
Constitutional place of the courts – 2 positions: Ultra Vires and Common Law
Ultra vires – latin = beyond power. What is happening in judiciary review is the extended exercise of statutory
interpretation. All the courts are doing is seeking whether public agencies are sticking to their statutory remits. This
is all what the court should be doing as Parliament is sovereign. intention of parliament. Courts haven’t had many
instances where they have had to intervene – just interpreting statutes
4 problems with the principle of ultra vires interpretation of legality –
1. General problem with applying and interpreting statutes, statutory provisions, including those that create
institutions of public administration and confer powers and impose duties on them, may be unclear, ambiguous
or incomplete. If this is this case, it is unrealistic to treat the process of interpreting statutes, resolving
ambiguities and lack of clarity and filling gaps as always being a matter of discerning and giving effect to the
intention of parliament. There will be many cases which Parliament didn’t think about the question in regards to
these issues. Weakness to the intention theory of statutory interpretation is that the courts can now use the
“purposive approach” to interpretation (courts is able to go beyond interpretation of the words used in statutes
and give effect to what they perceive to be the true purpose or aim of the provision in question) this helps give
effect to EU law and to HR conventions.
2. Doesn’t accurately reflect the law- power of the courts to control the administration and the principles of
administrative law on the basis which they can exercise their power = judicial creations – go to great lengths to
preserve their jurisdiction to supervise the administration by applying these principles. E.g. Anisminic Ltd v
, Foreign Compensation Commission – section of the FCC to exclude the jurisdiction of the court to review the
“determinations” of the commission – wide effect and was read to exclude ultra vires i.e. illegal determinations.
Role of statute in determining the requirements of procedural fairness –legislative silence on the question of
whether an applicant before an administrative body is entitled to fair procedure as defined by the common law –
2 approaches are possible – common law rules of procedural fairness will apply only if there is evidence of
parliament intentions that they should/ silence could be construed as an invitations to the courts to apply
common law procedural standards (approach the courts normally take). Right to fair trial – Article 6 =
undermines the ability of Parliament to regulate administrative procedure even expressly.
3. It doesn’t justify regulation of the performance of non-statutory functions.
4. Assumes that parliamentary legislation is the highest form of the law in the system. No longer true. European
communities act 1972 – conflict between EU and UK law - resolved in favour of EU law. Provision of primary
legislation – interpretation isn’t consistent with the ECHR = incompatible with the convention – makes the
government bring the legislation into compatible with the ECHR and renders the government to be sued in the
ECHR for the breach of the contract if it doesn’t do so.
The effect of EU law is that a decision or action of a public administrator may be unlawful even if it complies with
all relevant provisions of UK statute law. The ultra vires doctrine focuses attention on exercise of public functions
and asks whether or not it complies with the law. But HRA directs attention to the right of citizens and asks
whether or not those rights are infringed.
Statutory interpretation – courts have the ultimate power to interpret legislation they do so rarely. Pubic
administrators are much more central to the process of interpreting without any judicial supervision – only a
miniscule proportion is ever challenged. In English law, the principle of legality means that administrators have to
get the law right and right means what the court say it right.
Common law – but there are principles of common law which overlay what they do – courts have developed about
what constitutes as “good administration “and apply it even if the statute doesn’t state. E.g. natural justice. If pubic
agency is taking a decision on an individual which potentially harms them then the public agency has to listen to their
case. Can’t be found outside statutory interpretation rational.
Role of the courts in practice
Because there will inevitably be a limited number of judicial review cases, the question is whether or not the courts
are able to set down coherent principles which inform the decisions of public agencies.
18,000
16,000
14,000
12,000
10,000
Judicial review ap-
8,000 plications
6,000
Immigration cases
4,000
UTIAC
2,000
-
0 4 0 5 0 6 0 7 0 8 0 9 1 0 11 1 2 1 3 1 4 1 5 1 6
20 20 20 20 20 20 20 20 20 20 20 20 20
Between 3,000-4,000 cases outside immigration. Immigration cases – government thought back in 2013 that there
were many judicial cases. So to reduce these cases, they dumped immigration cases in the tribunal (upper tier).
VERSUS
Tribunal Workload –
600,000
500,000
400,000
Immigration and Asylum
300,000
Employment
200,000 Social Security
Mental Health
100,000 Special
0
2007 2008 2009 2010 2011 2012 2013 2014 2015
-08 -09 -10 -11 -12 -13 -14 -15 -16
Note: The government is trying to reduce the workload of the tribunals – internal changes for decisions not being
challenged.
, Reforming judicial review
2012:
Too many judicial reviews without merit – going up the decision making process
Too many campaigning organisations bringing them – too many left wingers bring judicial reviews.
Costs to public purse (lots were funded through legal aid)
Slows down decision making due to the increase of reviews and which may because of funding.
This was a debate which took place around 2013-14 and resulted in the Criminal Justice and Courts Act 2015, Part 4.
Although it initially seemed as if there would be major reforms, the changes have been relatively minor.
The government’s case
“ … the use of judicial review has expanded massively in recent years and it is open to abuse. The Government is
concerned about the time and money wasted in dealing with unmeritorious cases which may be brought simply to
generate publicity or to delay implementation of a decision that was properly made. Moreover, a significant
proportion of these weak applications are funded by the tax payer – through the expense incurred by the defendant
public authority, by the court resource entailed, and in some cases by legal aid or by the public authority bearing the
claimant’s legal costs. This is unsustainable, particularly when the judicial reviews are brought by groups who seek
nothing more than cheap headlines.” From `Judicial review – proposals for further reform’ (2013)
The initial proposals compared to the legislation
Initial proposals Criminal Justice and Courts Act
Rules on standing are too wide and should be restricted. Proposal dropped after significant criticism
Immigration cases transferred to Upper Tribunal Implemented by Direction made under S. 31A Senior
Courts Act 1981
No remedy when a challenge would have made no Introduced in Bill, rejected by House of Lords, insisted on
difference to the outcome by HC, subject to exceptional public interest – introduces
new ss. 31(2)(A) – 31(2)(C) Senior Courts Act 1981
Legal aid for judicial review cases should only be Introduced by amendment to Legal Aid Regulations: no
available where permission to bring the case is granted, legal aid if permission refused, discretion if no permission
although there may be exceptions to this (decided by the decision made
Legal Aid Agency).
Interveners to bear own costs and those caused to the Section 87.
parties by their intervention
Applicants to provide information on funding of judicial Section 86.
review cases
New rules on cost capping orders Section 88-90
Criticisms of the government’s proposals
Factually incorrect which was true as the admitted it
Value of government according to law = point of judicial review.
Access to justice = restricting it by making it more difficult for people to question the legality of judicial reviews.
Reforms
Limit standing (abandoned)
Limit challenges where it would make no difference – challenges that were done on procedural grounds and if they
did succeed wouldn’t make a difference on the decision,
Ss. 31(2)(A) – 31(2)(C) Senior Courts Act – knock out these cases.
Change financial incentives of getting judciail review
Interveners bear own costs – financially less inticing to intervene.
Required more information on funding of cases -
Reform of Legal Aid
No legal aid if permission refused. In order to bring a judicial review case you need permission of the courts –
government said if you don’t get permission then you can’t get legal aid = changing the incentives
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