Judicial Review

• Lecture 11 covers the introduction to administrative law, including legality and the rule of law, and conceptions of judicial review.
• The lecture is part of the LL 1001 Public Law course, covering Term 2 with an overview of lecture themes, weekly seminar sheets, closer engagement with cases and problem questions, and information about the Term 2 exam.
• The exam will include an essay question and a problem question.
• Public law


  Includes constitutional law and administrative law
• Key terms and concepts covered

  • Parliamentary sovereignty, separation of powers, ministerial accountability, primary and secondary legislation, ouster clause
• Two meanings of administrative law

  1. Government accountability through parliamentary scrutiny, individual remedies to challenge the legality of public authority decisions, government accountability before ombudsmen, criminal prosecution of corrupt public officials.
  2. Legality and the rule of law.
• Legality and the rule of law

  Dicey's principle no. 1: 'rule of law' v 'rule by (unpredictable) men'

  Dicey's principle no. 2: rule of law as equality before the law

  Dicey's principle no. 3: judicial protection of individual liberty
• Formal conception of the rule of law

  Morally neutral, law should conform to standards to enable effective guidance of action, should be publicly and clearly stated, should not have retroactive effect and should not change too often
• Lord Bingham of Cornhill: 'Judges are not free to dismiss the rule of law as meaningless verbiage, and the Lord Chancellor's conduct in relation to that principle would be susceptible to judicial review.'
• The constitutional right of access to the courts


  Is inherent in the rule of law
• The role of the courts includes ensuring the executive branch carries out its functions in accordance with the law, and without access to the courts, laws may become a dead letter and parliamentary work may be rendered nugatory.
• The value of the right of access to the courts is not confined to cases deciding questions of general importance, but also underpins everyday economic and social relations.
• Judicial review


  A common law supervisory jurisdiction, about the lawfulness of a government decision, cannot replace the decision on the merits with a 'better one'
• Appeal


  A statutory right, can be heard by a court or tribunal, about both facts and law, can replace the decision on the merits with a 'better one'
• In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament cannot abolish.
• The Investigatory Powers Tribunal (IPT) is a special tribunal established under the Regulation of Investigatory Powers Act 2000 (RIPA) with jurisdiction over the intelligence services.
• Section 67(8) of RIPA provides that determinations, awards, orders and other decisions of the IPT shall not be subject to appeal or be liable to be questioned in any court, except to such extent as the Secretary of State may otherwise provide.
• The rule of law

  Requires that effect must be given to Parliamentary legislation, but it is ultimately for the courts to determine the limits set by the rule of law to the power to exclude review.
• Judicial review is just one way of holding the government to account, and those who emphasise the law's role in safeguarding individual rights tend to favour extensive powers of judicial review.
• Judicial review is also a practical response to the weakness of ministerial accountability.
• The court will not interfere with the exercise of discretion unless it is shown that there has been an error of law or fact, or some other irregularity.
• If a public body fails to follow its own procedures when making a decision, this can also lead to judicial review.
• A decision may be quashed if it was made on irrelevant grounds or failed to take into account relevant considerations.
• Illegality


  One of the three main grounds of judicial review as outlined by Lord Diplock in Council of Civil Service Unions & Others v Minister for the Civil Service
• Illegality as a ground of judicial review

  • Ensures that public authorities act within the scope of their powers
  • A wide ground of judicial review, best considered as an umbrella term for a range of different ways in which a decision by a public authority can be challenged
• Illegality as a ground of judicial review

  A decision can be challenged on the basis that the public authority lacks the power to make the decision in the first place, or if it does have the power, then the power has been exercised incorrectly
• Mandatory orders require the defendant to do something specified by the court, while prohibiting orders prevent the defendant from doing something.
• There are two types of remedies available through judicial review: mandatory orders and prohibiting orders.
• Standing refers to whether the person bringing the case has a legitimate interest in doing so.
• However, in R (Cart) v Upper Tribunal [2016], the Supreme Court held that the tribunal had acted irrationally by failing to give reasons for its decision.
• The High Court has no jurisdiction to hear cases where the claimant does not have standing.
• In R v North Yorkshire County Council ex parte Slingsby (1995), the council had failed to give notice of a planning application to the applicant, which was required under their own rules. The High Court held that the failure to follow proper procedure meant that the decision could be quashed on grounds of procedural impropriety.
• However, if the decision-maker acted outside their legal authority, then the court can intervene.
• The High Court may grant any relief or remedy or make any consequential order that is just and convenient in all the circumstances.
• The courts will not grant relief where there is no practical utility in doing so.
• The Court of Appeal held that the claimants did not have standing because they could not show any direct financial loss resulting from the policy change.
• The courts will consider whether there is a sufficient interest in the matter at hand when determining standing.
• Quashing orders set aside decisions made by public bodies.
• Judges must consider the proportionality of their decisions when making them.
• Judicial review allows courts to examine decisions taken by government bodies and other public authorities to ensure they are lawful and reasonable.