Introduction
Judicial review is a legal mechanism that enables courts to assess the lawfulness of decisions or actions taken by public authorities. It serves as a fundamental part of administrative law, ensuring that such authorities operate within their legal bounds and follow the principles of legality, rationality, and procedural fairness. Judicial review permits the judiciary to scrutinize decisions for errors of law, irrationality, or procedural impropriety, thereby upholding the rule of law and safeguarding individual rights.
The Scope of Judicial Review
Judicial review primarily concerns itself with decisions made by public authorities that carry legal consequences. Such decisions can involve regulatory actions, including the creation of rules and regulations by governmental bodies, as well as administrative decisions that directly affect individual rights and obligations.
Conversely, not all actions are subject to judicial scrutiny. Non-binding actions, such as opinions or recommendations without legal effect, and decisions made by private entities operating outside the sphere of public authority typically fall outside the ambit of judicial review.
The parameters of what constitutes a reviewable decision have changed considerably over time. The landmark case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 was instrumental in broadening the scope, effectively eliminating the distinction between different types of legal errors. This case established that any error of law made by a public authority could render its decision null and void.
Subsequent decisions further expanded the reach of judicial review:
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Public Law Claims: O'Reilly v Mackman [1983] 2 AC 237 established that public law claims should be pursued through the process of judicial review, ensuring that challenges to decisions of public bodies are addressed appropriately.
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Bodies Performing Public Functions: R v Panel on Take-overs and Mergers, ex parte Datafin Plc [1987] QB 815 extended judicial review to bodies performing public functions, even if not established by statute. This case recognized that the nature of the function performed, rather than the source of power, determines whether a body's decisions are subject to review.
Today, judicial review includes decisions made by a wide array of public authorities, including government departments, local authorities, regulatory bodies, tribunals, and private entities exercising public functions.
Standing (Locus Standi)
For a person to bring a claim for judicial review, they must have standing, or "locus standi," meaning a sufficient interest in the matter. This requirement ensures that courts are accessed by individuals or groups genuinely affected by a decision, preventing the judicial system from being overwhelmed by claims without merit.
To establish standing, a claimant must demonstrate:
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Sufficient Interest: A direct connection to the outcome of the case.
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Actual or Potential Harm: A real impact from the decision, beyond hypothetical concerns.
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Legal Right or Interest: A legitimate concern rooted in law.
The concept of standing has changed to balance dismissing frivolous claims with allowing access to justice for those genuinely affected. Initially, the courts adopted a restrictive approach. In Gouriet v Union of Post Office Workers [1978] AC 435, the House of Lords held that individuals could not bring actions to enforce public rights unless they had suffered special damage.
However, over time, the courts adopted a more inclusive stance. Section 31(3) of the Senior Courts Act 1981 introduced the "sufficient interest" test, allowing a broader range of claimants to bring actions. Public interest litigation, as seen in R (on the application of World Development Movement Ltd) v Secretary of State for Foreign and Commonwealth Affairs [1995] 1 WLR 386, demonstrated the courts' willingness to grant standing to groups acting in the public interest, even if not directly affected by the decision.
Consider standing like having a ticket to enter a concert—only those with a genuine connection to the event can get in. The courts ensure that only those with a real stake in the matter can bring a case forward, maintaining the integrity of the judicial process.
Grounds for Judicial Review
When a court undertakes judicial review, it examines the decision-making process of the public authority against established legal grounds. The main grounds are illegality, irrationality (often referred to as "Wednesbury unreasonableness"), and procedural impropriety. Each ground provides a framework for assessing different aspects of a decision's lawfulness.
1. Illegality
Illegality occurs when a public authority acts outside its legal powers, known as acting "ultra vires" (beyond the powers). This can happen in several ways:
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Error of Law: If a public authority bases its decision on an incorrect understanding of the law, that decision can be invalidated. Anisminic Ltd v Foreign Compensation Commission established that any legal error made by a decision-maker renders the decision null.
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Improper Purpose: Public authorities must use their powers for purposes intended by Parliament. Using powers for a different purpose can lead to a decision being struck down. In Porter v Magill [2001] UKHL 67, a council was found to have acted unlawfully by selling council houses to gain electoral advantage.
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Relevant and Irrelevant Considerations: Decision-makers must consider all relevant factors and disregard irrelevant ones. In R v Somerset County Council, ex parte Fewings [1995] 1 All ER 513, a council banned deer hunting on ethical grounds, but the court held that moral considerations were irrelevant to the council's statutory duties.
To understand the concept of illegality, think of a referee who decides to change the rules of a game midway, awarding penalties without any basis in the established guidelines. Such actions would be beyond the referee's authority, much like a public authority acting beyond its legal powers.
2. Irrationality (Wednesbury Unreasonableness)
Irrationality occurs when a decision is so unreasonable that no reasonable decision-maker could have arrived at it. Originating from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, the court held it would only intervene if a decision was "so unreasonable that no reasonable authority could ever have come to it."
To illustrate, consider a local council that decides to ban all vehicles from the city center to reduce noise pollution but includes bicycles in the ban. Since bicycles aren't significant sources of noise, including them might be deemed irrational.
In practice, the threshold for irrationality is high. Courts are cautious not to overstep into the domain of administrators and will only find a decision irrational in extreme cases. However, in matters involving fundamental rights, courts may apply more rigorous scrutiny.
3. Procedural Impropriety
Procedural impropriety involves a failure to follow procedures required by law or a breach of the principles of natural justice. It ensures that public authorities make decisions fairly and transparently.
Key aspects include:
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Right to a Fair Hearing: Individuals affected by a decision should have an opportunity to present their case. In Ridge v Baldwin [1964] AC 40, a police officer was dismissed without a hearing, and the court held this was procedurally improper.
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Rule Against Bias: Decision-makers must be impartial and not have any personal interest in the outcome. Porter v Magill [2001] UKHL 67 reaffirmed that even the appearance of bias is sufficient to invalidate a decision.
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Legitimate Expectation: If a public authority has made a clear and unequivocal promise or established a consistent practice, individuals may have a legitimate expectation that the authority will act accordingly. In R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213, a woman was assured a home for life, and when the health authority tried to close the facility, the court held this breached her legitimate expectation.
Think of procedural impropriety like a game where the rules are changed without informing the players. If a teacher suddenly alters the grading criteria after students have submitted their assignments without prior notice, it would be considered unfair. Similarly, public authorities must follow established procedures to ensure fairness in decision-making.
Practical Applications and Case Studies
Examining real-world cases helps illustrate how these principles operate in practice. Let's explore a few notable examples.
Case Study 1: Environmental Decision-Making
Case: R (on the application of ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28
An environmental NGO, ClientEarth, challenged the government's inadequate plans to reduce air pollution, specifically nitrogen dioxide levels exceeding legal limits. The Supreme Court held that the government was in breach of its obligations and ordered it to produce new plans.
This case highlights:
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Expanded Standing: ClientEarth was granted standing, showcasing the courts' openness to claims brought in the public interest.
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Judicial Scrutiny of Policy: The courts evaluated the adequacy of government policy when it failed to meet legal obligations.
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Impact on Government Action: The decision compelled the government to take more effective measures to address air pollution.
Case Study 2: Immigration Detention
Case: R (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12
Foreign nationals were detained pending deportation based on an unpublished policy contradicting a publicly stated policy requiring individual assessments. The Supreme Court found the detentions unlawful because they were based on a secret policy, and the individuals were entitled to damages for false imprisonment.
Key takeaways:
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Requirement for Transparency: Public authorities must operate transparently, and individuals have the right to know policies that affect them.
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Enforcement of Published Policies: Authorities cannot act contrary to their own published policies.
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Protection of Individual Rights: The case reinforces the role of judicial review in safeguarding personal liberty against unlawful detention.
Case Study 3: Local Authority Decision-Making
Case: R (Moseley) v London Borough of Haringey [2014] UKSC 56
A local council decided to reduce council tax benefits for certain residents without conducting a proper consultation. The Supreme Court held the consultation inadequate because it didn't provide sufficient information about alternative options.
Important aspects:
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Procedural Fairness: The council failed to engage in meaningful consultation, violating procedural requirements.
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Role of Consultation: Public authorities are obliged to inform and consult affected parties adequately.
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Judicial Oversight of Process: The case demonstrates how judicial review ensures authorities follow fair processes.
Conclusion
The development of judicial review reflects a dynamic legal framework where the judiciary ensures public authorities act within the constraints of the law. The expansion of reviewable decisions, as established in cases like Anisminic, demonstrates that any error of law can render a decision void, broadening the scope of judicial oversight. This expansion is complemented by including bodies performing public functions, regardless of statutory origins, as seen in Datafin.
The principles of standing have shifted towards inclusivity, allowing individuals and organizations with sufficient interest to challenge decisions affecting the public interest. This approach enables courts to address significant societal issues, illustrated in the ClientEarth case.
The grounds for judicial review—illegality, irrationality, and procedural impropriety—provide a structured framework for scrutinizing decisions. These grounds often interact in complex ways. For instance, a decision might be illegal due to an error of law, irrational because it defies logical reasoning, and procedurally improper if it breaches natural justice principles. In Lumba, the secret policy led to unlawful detention, encapsulating both illegality and procedural impropriety.
Technical requirements highlight the necessity for public authorities to strictly follow legal mandates. Authorities must act within their powers, make reasonable decisions, and comply with fair procedures. Failure to meet these requirements can result in decisions being quashed and, in some cases, the awarding of damages.
Judicial review thus operates as an essential mechanism ensuring those vested with public power remain accountable and the rule of law is maintained. Through the judiciary's vigilant oversight, legal principles are upheld, and individuals' rights are protected against unlawful administrative actions.