Judicial Review

• What is Judicial Review?

  Procedure that allows individuals to have the courts review whether public bodies are acting within the framework of powers given to them by parliament
• Judicial review ensures a public body is not acting ultra vires (outside its powers)
• Judicial review is not a form of appeal
• What is administrative law?

  An external control of the government. The rules which determine what constitutes the proper performance of administrative tasks by the government and other public bodies
• Grounds for review

  1. illegality
  2. procedural impropriety/Procedural unfairness
  3. unresonableness/irrationality
  4. legitimate expectation
• Perliminary requirements

  1. Public bodies
  2. Time limits
  3. Standing
  4. Exhaustion of alternative remedies
  5. No ouster clauses
  6. Justiciability
• Stage 1 of Judicial Review

  >making an application for permission

  >JR claims may only be brought with the permission of the court

  >Permission is granted if all perliminary requirements are met
• Stage 2 of Judicial review

  >Perliminary requirements have been met

  >Courts may grant permission for judicial review

  >The court will then proceed to a hearing on the merits of the substantive issue
• Public Bodies 


  >JR only applies to Public Bodies

  >If the body exercises a function of a public body then it is a public body
• R v Panel takeovers & mergers ex parte Datafin (public body case)

  • Datafin principles mean - Certain regulatory bodies are subject to Judicial Review
  • Can shorten case to Datafin case
• R v Jockey club ex parte Agakhan ( public body case)


  >Jockey club was a controller of a significant national activity affecting public interest

  >Courts ruled it did not fulfil the governmental role
• What bodies are excluded from JR?


  • Sporting bodies such as FA

  >R v football association ex parte football league

  • Religious bodies
• Time Limits

  • Judicial review must be brought promptly within 3 months
  • permission will not be given if not
  • O'Reilly established the exclusivity principle which states that purely public law decisions should only be challenged by a application for judicial review
• Standing

  • Applicants must establish they have a standing
  • Legal rights and obligations must be directly affected by the public body's interest
  • Locus standi
  • They must have sufficient interest
  • in previous cases, a person who has particular expertise in the subject matter has been accepted if brought in the public's interest
• IRC v National Federation of Small Businesses (sufficient interest)


  >Had sufficient interest as a pressure group
• HM treasury v Smedley (sufficient interest)

  • A single taxpayer has sufficient interest to challenge government expenditure out of the Consolidated Fund
  • Mr. Smedley had sufficient interest to apply for judicial review
• Secretary of state for the environment v Rose Theatre

  • The remains of the historical Rose theatre were discovered
  • The Rose Theatre Trust was set up to preserve it and make it accessible to the public
  • R applied to the Environment Secretary (ES) for the theatre to be listed in the Schedule of Monuments
  • The pressure group did not have standing in terms of sufficient interest
• Inspectorate of pollution v Greenspace (standing)

  • Greenspace challenged decision by the inspectorate of pollution to grant applications by British Nuclear fuels regarding discharge of waste
  • There was sufficient standing
  • Specialist knowledge may justify interest
• Exhaustion of alternative remedies

  • All alternative remedies must be exhausted when starting a claim
  • such as in the case of R cowl v plymouth cc
• Ouster Clauses


  >Statutory device

  >provisions included in statutes which exclude or restrict the courts right to judicially review public bodies decisions
• Anisminic v Foreign Compensation commission (ouster clauses)


  >Landmark case

  >law establishing ouster clauses
• Foreign compensation Act 1950


  "A determination by the commission of any application made to them under this Act shall not be called into question in any court of law"
• Privacy international v Investigatory powers tribunal

  >supreme court overturned the decisions of the court and court of appeal to approve decision in Anisminic

  >judges were forthright to preserve their rights of review
• Judicial review

  >JR protects parliamentary sovereingty by ensuring Public bodies like the government act within their powers
• Justiciability

  • Matter must be justiciable to be reviewed by a court
  • The matter is justiciable if it raises legal questions which can be answered by the court
  • It is justiciable if constitutional oversight is required and no more suitable bodies are available
• Secretary of state for the environment of Nottinghamshire (justiciability)


  >secretary of sate issued guidance to the local authority regarding expenditure targets for the year

  >Three local authorities including Nottinghamshire believed their expenditure target was unfairly set

  >The guidance was lawful and power was not abused
• Prerogative powers should be immune from Judicial Review
• Substantial difference rule

  If someone asks the high court to review a decision or action by the government, the court must say no if it seems very likely the person wouldn't have gotten a different result if the government had not done anything
• Remedies for Judicial Review

  1. Quashing order - To set aside the public body's decision
  2. Mandatory order - To require the Public body to carry out its duties
  3. Prohibitory order - Prevent public body from acting beyond its powers
  4. Declaration - Setting out positions and rights of parties
  5. Damages - Where the public body's decision has caused a loss
• Constitutional concerns with no substantial difference rule

  • Government dominates parliament
  • Judicial Review supervises government action
• Grounds for Judicial Review

  1. illegality
  2. Irationality /unreasonableness
  3. procedural impropriety
  4. Proportionality
• Sub grounds of illegality

  1. Ultra vires - illegality
  2. Error of law - Misreading/ misunderstanding (Anisminic case)
  3. Error of fact - Precedent fact, no evidence
  4. Abuse of discretion - Improper purpose (congreve v Home office)
• Illegality

  • A decision maker must not act illegally
  • White collins v Minister of Health
  • >Attempted use of compulsory purchase order to purchase 20 acres of land attached to an estate
  • >Legislation stated order could not be issued if land was a park/garden/ pleasure ground used for amenity or convenience of any house
  • >The land was part of a park
  • >Compulsory purchase was therefore not within the powers of the Act
• Congreve v Home office (abuse of Discretion)


  >Concerned with whether the Home Office could penalise people who purchased overlapping TV licenses to secure a lower rate on the second license

  >It was unlawful

  >Court stated improper exercise of a discretionary power

  >Minister had no authority to revoke a legally issued license from members of the public
• Somerset cc v Fewings (Abuse of discretion)


  >whether a county council could decide to ban deer hunting on its land using statutory powers

  >Courts stated the county council reached the decision on irrelevant consideration

  >The CC were not entitled to make the decision
• Stringer v Minister Housing & Local Government


  >concerned with the proposed development which could interfere with the reception of the radio telescope

  >They did not want planning permission granted
• Procedure impropriety


  >Involves the correct procedure not being followed

  >Can occur even if the decision was lawful
• Procedure impropriety (Lord Diplock)

  "Failure to observe basic rule of natural justice"

  "Failure to act with procedural fairness towards the person who will be affected by the decision"
• Forestry Industry Training Board v Aylesbury Musshroom


  >can shorten to Aylesbury case

  >Minister was empowered to establish training boards

  >The mushroom growers association did not receive the constitution paper work

  >The decision did not apply to them
• Bias Test


  old test - R v Goutl

  New test -porter v Magill (2001)