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Judicial review

Previous: Devolution

Introduction

Judicial review can be described as the inherent power of the High Court to supervise the actions of governmental bodies according to the principles of public law. An individual may be able to bring a claim against decisions made by lower courts, tribunals or self-regulating bodies. Judicial review generally tries to ensure that a decision was made lawfully and in accordance with EU law and human rights as prescribed by law. The the current (2014) Prime Minister, David Cameron, says that judicial review throttles infrastructure growth, yet in 2011, there were 19,000 claims for judicial review; of which 1,220 where granted permission. There were then 396 reviews, 174 of which were successful.

As a quick preliminary point, case names in judicial review are always written in the following form: R (APPLICANT) v DEFENDANT [YEAR]. In the past, the form R v DEFENDANT, ex p APPLICANT [YEAR] was present; if you see either of the forms above, you are considering a judicial review claim.

Significance

Although many claims for judicial review are rejected, the process itself can be quite powerful. In R v Leicester JJ, ex p Barrow [1991], a claim allowed union ‘lay people’ to accompany defendants in poll tax payment court hearings; R v SSFA, ex p Rees-Mogg [1994] held up the creation of the EU; the World Development Movement case [1995] saved £200m from the foreign aid budget and in Harrow Community Support [2012], the Defence Secretary was challenged over olympic security measures, albeit unsuccessfully.

Judicial review vs statutory appeals

Judicial review differs from statutory appeal processes in that rights are statutory in private law, whereas judicial review’s ‘rights’ are based on public law principles. Also, in statutory appeals, decisions are substantial: not simply ruled ultra vires as in judicial review.

Judicial review vs private law appeals

Firstly, the procedure for private law appeals is laid down in the ‘white book’, whereas in judicial review, the procedure is partially statutory and partially laid down by common law. One may bring a claim for judicial review if they claim promptly, according to the civil procedure rules (below), and if they have ‘sufficient interest’ in the matter. There is also the possibility of bringing a claim if you are the victim of a breach of human rights as a result of a decision.

Secondly, while the ‘sufficient interest’ requirement gives rise to a much larger number of potential claimants than in contract law (either a 1st or 3rd party) or in tort law (suffered damage usually), remedies in judicial review are always discretionary; a remedy need not be provided, unlike in private law.

Finally, damages are rarely an outcome in judicial review; contrary to contract law and tort law, where damages are the primary remedy.

History

Initially, the concept of judicial review had two outcomes: a prerogative order (a mandatory order or a prohibiting order) or a private law remedy against a public authority. In 1976, Order 53 from the (then) Supreme Court followed a law commission report to lay down the judicial review process. Today the judicial review process is governed by section 31 of the Senior Courts Act 1981 and part 54 of the Civil Procedure Rules 2000.

Bringing a claim

A judicial review claim must be made with at least one ‘ground’. The grounds are as follows:

  • Illegality
  • Irrationality – previously unreasonableness
  • procedural fairness – including natural justice, bias and the right to a fair hearing
  • Proportionality – for claims made under the Human Rights Act 1998
  • Legitimate expectation – emerging since the GCHQ case

A detailed procedure is laid out by the Senior Courts Act 1981 (formerly called the Supreme Court Act 1981) and the Civil Procedure Rules. If the procedure is followed, the defendant body must be within the scope of judicial review (amenable); the claim must be bought promptly (usually within 3 months); the exclusive principle must not dismiss the claim; the claimant must have standing and the claim must not be excluded by statute. If all of these steps can be overcome by the claimant, permission may be granted, and only then can the substantive grounds be looked at, where there is still only the possibility of a remedy. The judicial review procedure is designed to protect public bodies, especially considering their wide range of responsibilities.

Statute

Senior Courts Act 1981, s 31 (application for judicial review):

  • s 31(1) – May apply to the High Court for (a) a mandatory, prohibiting or quashing order, or (b) a declaration or injunction
  • s 31(2) – In granting an injunction, consider (a) the nature of the matters, (b) the nature of the persons and bodies of subject and (c) all of the circumstances of the case
  • s 31(3) – Leave is required before a review (now called permission)
  • s 31(4) – Damages if (a) application asks for and (b) would have attained in a private law action
  • s 31(5) – If decision is quashed, (a) remit to the decision maker with instructions, or (b) substitute the decision
  • s 31(5A) – Substitute decision only where (a) the original decision was made by a tribunal or court, (b) there was an error of law and (c) there is only 1 possible outcome of a lawful decision
  • s 31(6) – If undue delay, may refuse to grant (a) leave or (b) relief, if such a delay would cause undue hardship or would be detrimental to good administration
  • s 31(7) – Delay can be shortened by other statutes

Civil Procedure Rules, Part 54

  • 54.1 – (2)(a) Claim for judicial review means to review the lawfulness of (i) an enactment or (ii) a decision relating to a public function. (2)(f) Interested party means any person other than the claimant or defendant who is directly affected by the claim
  • 54.2 – Must use judicial review to obtain (a) a mandatory order, (b) a prohibiting order, or (c) a quashing order
  • 54.3 – May use judicial review to obtain (a) a declaration or (b) an injunction; may include a claim for damages
  • 54.4 – Must get permission of the High Court
  • 54.5 – (1) Fill claim form in (a) promptly and (b) not later than 3 months after the ground(s) arose (3) unless another enactment imposes shorter limits
  • 54.6 – (1) Claim form must also state (a) the name of other interested parties, (b) permission request and (c) the remedy claimed
  • 54.7 – (a) Claim form must be served on (a) the defendant and (b) others, within 7 days
  • 54.8 – (1) Must acknowledge form (2)(a) not later than 21 days after service
  • 54.9 – No acknowledgment prevents attendance at permission hearing but could still, with written permission, allow attendance at review hearing
  • 54.10 – Permission may have direction attached
  • 54.12 – If hearing denied for permission, (2) court will give reasons, (3) reconsideration may be requested (4) within 7 days. (5) 2 days’ notice must be given for hearings and (7) if the claim has no merits, there will be no opportunity to request reconsideration
  • 54.14 – (1) Defendant may contest or support the claim with (a) detailed/additional grounds and (b) written evidence within 35 days of permission being granted
  • 54.18 – No hearing if parties agree
  • 54.19 – If quashing order, (2) court may (a) (i) remit to decision maker, (ii) direct reconsideration in accordance with judgment or (b) substitute its own decision in accordance with another enactment

Scope

Assuming that the above statute is followed, we must now look at who is amenable to judicial review. We have already said that Governmental bodies, i.e. those set up by statute, are subject to judicial review, but how far does this description extend?

In R v Panel on Take-Overs and Mergers, ex p Datafin [1987], a private body, was ruled subject to judicial review despite it having no connection to government. The panel regulated the take-overs for the entire industry, it could not be opted out of, so acted almost as a public body.

However, in R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993], a commercial regulator of horse racing was not subject to judicial review as it had contractual relationships with its members. Similarly, in R v Chief Rabbi, ex p Wachmann [1993], it was ruled that religious bodies do not exercise pulic functions and have no connection to government, therefore are not subject to judicial review.

As ruled in R (Beer) v Hampshire Farmers Markets Ltd [2003], an organisation which replaces a local-authority run activity on authority-owned land is subject to judicial review.

Courts appear to be extending the scope of judicial review continuously; quangos for example were ruled amenable to judicial review in the Kirkstall Valley Campaign case [1996].

Delay

The granting of permission is a discretionary matter, but at the latest must, under s 31(3) of the Senior Courts Act 1981 be bought promptly. Part 54.5 of the Civil Procedure Rules requires at latest the claim to bought within 3 months of the grounds arising, though under s 31(7) of the 1981 Act, a shorter delay may be specified by another enactment.

The exclusive principle

The exclusive principle ensures that claimants bring the correct type of claim against public authorities. The principle was laid down by O’Reilly v Mackman [1983]. One may not assert a public law right against a public authority using a private law action; judicial review must be used instead, to protect public authorities. Trim v North Dorset DC [2011] also held that private actions may not be bought where they would undermine a statutory process; in this case, attaining planning permission.

Of course, it is perfectly acceptable to assert a private law right against a public authority using a private law process. A negligent misstatement claim was made in Davy v Spelthorne BC [1984] and a contractual claim for incorrectly classifying the claimant’s degree was bought in Clark v University of Humberside [2000].

It has been held that it is acceptable to assert public law rights against public authorities in private actions if the right is specific enough to the individual claimant. In Steed v SSHD [2002], Steed was entitled to make a claim for compensation due to the banning of his handgun as the right to keep a handgun, although statutory, was specific to Steed.

It is also acceptable to use public law rights as defences in private law proceedings. In Wandsworth LBC v Winder [1985], it was acceptable to use a public law right to prevent eviction in a private law action (though the defence was unsuccessful), and in R v Crown Court at Reading, ex p Hutchinson [1988], a judicial review claim was allowed, allowing Hutchinson to use a public law right as a defence in a criminal trial; though again, the defence failed. Boddington v British Transport Police [1998] confirmed Hutchinson and said that the right to assert a public law defence to a criminal claim could only be removed by the express words of a statute.

Standing

In order to limit the number of potential claimants in judicial review proceedings, s 31(3) Senior Courts Act 1981 requires that the claimant has ‘sufficient interest’ before permission is granted.

In R v IRC, ex p National Federation of Self Employed [1982], no sufficient interest was found regarding publicised but confidential tax deals between third parties. Incorporation does not increase interest either, as held in R v SS Environment, ex p Rose Theatre Trust Co Ltd [1990]. In Equal Opportunities Commission v SS Employment [1994], interest was found where the claimant had statutory responsibility for the matter in question – equal rights for men and women at work.

Following the dismissal of the Rose Theatre Trust case, in R v Inspectorate of Pollution, ex p Greenpeace (No. 2) [1994], permission was granted as member of the claimant organisation would be directly affected by the decision. Furthermore, Greenpeace had legal expertise on nuclear matters. The claim failed at the substantial stage, however.

In exceptional cases, sufficient interest may be less of a barrier to claims. In R v SS Foreign Affairs, ex p World Development Movement [1995], standing was found, and the claim was successful, where there was only 1 possible claimant; the rule of law must be vindicated in important issues (the spending of an extra £200 million unlawfully on Malaysian aid). The World Development Movement organisation also had a prominent role in advising the Government.

A further point is that a claimant must not have an improper purpose when making a claim; in R (Feakings) v SS Environment [2004], a farmer had no real interest in the way ash from his slaughtered cattle was disposed of, therefore was denied sufficient interest in his claim.

Finally, anyone who is a ‘victim’ of a human rights breach does have sufficient interest to bring a judicial review claim; as said in section 7 of the Human Rights Act 1998.

Discretion

Assuming all of the aforementioned hurdles have been overcome and permission is granted; after reviewing the lawfulness of the decision in question, the remedy claimed will only be awarded at the court’s discretion. Two common reasons for the denial of a remedy are delay and alternative remedies.

Delay

Section 31(6) of the Senior Courts Act 1981 provides for the dismissal of a claim either at the permission stage or at the review stage of a claim. Prior to the Civil Procedure Rules’ reinforcement, in Caswell v Dairy Produce Quota Tribunal [1990], it was ruled that the prompt application requirement in the 1981 Act had a limit of 3 months unless the court wished to make an exception. 2 years, as in this case, was certainly too long; the claimant’s nescience was no reason to make an exception.

Part 54.5 (1)(b) provides an absolute limit of 3 months to bring a claim for judicial review. In R (Hardy) v Pembrokeshire CC [2006], the remedy was refused despite application within 3 months as apparently the 3 month limit is separate from the promptness requirement in the Civil Procedure Rules when reviewing in legality of a decision to build a LNG terminal.

Alternative remedies

If an alternative remedy is available, it is unusual for a remedy to be awarded. The exception to the rule can be found in R v CC Merseyside Police, ex p Calveley [1986], where a 2 year delay in application still allowed a successful claim – the claimant police officer was not told of a complaint for 2 years, rather than immediately, and then was dismissed with no warning. As such, it was ruled irrelevant that the statutory remedy available had not be exhausted first. Of course, the Civil Procedure Rules 3 month limitation may have changed the outcome of this case.

In conformance with the usual rule, the claim by a possible immigrant in R v SSHD, ex p Swati [1986] was dismissed where a statutory action was not first exhausted. Similarly, in R (Davies) v FSA [2004], a claim was struck out where a statutory method was provided for appealing the revocation of trading licences.

Remedies

There are a number of different remedies which may be claimed in judicial review; though the usual remedy is to quash a decision.

Prohibiting orders

Prohibiting orders quash a decision, preventing a decision maker from acting in a certain way. Initially, in R v Electricity Commissioners [1924], it was said that only ‘judicial’ bodies are subject to prohibiting orders; however the scope of this remedy was extended in R v Hillingdon LBC, ex p Royco Homes [1974], which made all public bodies amendable to prohibiting orders. It was ruled in R v Hull Board of Visitors, ex p St Germain [1979] that prison officers are also amenable to this remedy regarding disciplinary appeals.

Mandatory orders

Prior to the landmark case of Padfield, mandatory order; those compelling decision makers to act in a certain way, were only available to those with legal duties. Padfield v Minister of Agriculture [1968] widened the scope of mandatory orders to all discretionary decisions; in this case regarding the Minister’s discretion to alter the price of milk produced by farmers such as the claimant.

Injunctions

Injunctions either prevent action, as do prohibiting orders, or prevent inaction. The Crown Proceedings Act 1947, s 21 prevents injunctions being issued against the Crown; however, in R v SSHD, ex p Herbage [1986], an injunction was successfully issued against the Crown. More recently, the Factortame saga altered the law more significantly though. In Factortame (No .1) [1990], it was said that injunctions cannot be issued against the Crown. Whilst this might be true of the monarch as the Crown, Factortame (No .2) [1991] was the source of an injunction against the Crown. This occurred again in M v Home Office [1994], this time in an injunction against the Secretary of State Preventing ignorance of court oder which would prevent the deportation of a citizen of Zaire.

Declarations

Declarations are formal statements made by the courts stating details of the relationship between the claimant and defendant. They have no coercive or binding effect, though they are usually obeyed. In Blackburn v A-G [1971], a declaration was sought to prevent the UK joining the EEC; however it was ruled that prerogative matters are non-justiciable, therefore the claim failed.

Damages

Damages are a rare remedy sought in judicial review; the aim of the judicial review procedure is to prevent abusive governmental decision making, not to compensate. However, the remedy does nevertheless exist and may be claimed if a private law action would allow for such a remedy.

Exclusions

A final way in which a claim may be dismissed before it reaches a substantive point is if the legislature excludes or limits the circumstances in which a claim may be bought. The courts usually disapprove of such statutory clauses, as they allow the executive to potentially abuse their powers. Claims may be excluded by ouster clauses and time limit clauses.

In the case of Anisminic v Foreign Compensation Commission [1969], it was ruled that the courts should construe ouster clauses, which prevent judicial review claims entirely, as narrowly as possible. A good example of a time limit clause can be found in the Acquisition of Land Act 1956, which requires that objections to land acquisitions under statute are made within 6 weeks of the decision; preventing judicial review claims beyond this time, rather than beyond the usual 3 months. In Smith v East Elloe RDC [1956], the court refused to allow ‘bad faith’ to extend this time limit. Again, in R v SS Environment, ex p Ostler [1977], it was urged that time limit clauses were effectively ouster clauses and should also be construed as narrowly as possible. However, the decision in question concerned a policy consideration to allow certainty in development projects, so a claim after 9 months of the acquisition failed.

Up to this point deals with the procedure of judicial review. The grounds of judicial review will now be considered in detail.

Right to a fair hearing

The first possible ground of judicial review is the right to a fair hearing. It is also referred to as ‘the principles of natural justice’. The idea is that if decisions are made fairly, better decisions and made and the number of complaints in future will be reduced. For example, in R v CC North Wales Police, ex p Evans [1982], it was contrary to the principles of natural justice to effectively order the instant dismissal of a police officer based on rumours alone.

Analytical categories

Historically (before Re HK [1967]), judicial review was only available to adjudicate on the lawfulness of decisions made by either judicial or quasi-judicial organisations, not administrative decisions. According to the Committee on Ministers’ Powers (1932), judicial decisions involve cases presented by parties with evidence and the application of legal arguments to facts. Quasi-judicial decisions are judicial decisions with added policy considerations. In Errington v Minister of Health [1935], it was ruled that a Minister acts in a quasi-judicial capacity when making compulsory purchase decisions; he must not conduct a private enquiry with one party in the absence of an opposing party; his decision was quashed. In Franklin v Minister of Town and Country Planning [1948], a claim by the residents of the village of Stevenage to prevent development was (obviously) quashed as there was an overriding policy objective to rebuild Britain after WWII.

Illustrations

The right to a fair hearing if a very general ground and has a variety of different applications. In Cooper v Wandsworth Board of Works [1863], the destruction of a house built without first giving 7 days’ notice of construction could not have its destruction ordered without hearing the reasons of the constructor; although in Local Government Board v Arlidge [1915], a landlord had no right to view inspection reports of his premises as this would be particularly burdensome (Dicey was critical of this one though). In Ridge v Baldwin [1964], a police officer could not be dismissed after private meetings which did not involve the officer. This latter case reasserted the power of natural justice as a ground for judicial review since WWII.

As long as a relevant procedure is executed fairly, there may be no need for a fair trial, or in fact a trial at all. In Re HK [1967], there was no need for a foreign citizen appealing a deportation notice to have a hearing as the decision as to her age was clearly made fairly; by two officials and a doctor. This case also extended the right to a fair hearing to administrative decisions. In McInnes v Onslow-Fane [1978], there was no requirement for a sporting regulator to give reasons following a fair decision and in R (Khatun) v Newham LBC [2004], there was no need to keep providing B&B accommodation once permanent accomodation had been offered and then rejected. The GCHQ Case [1985] added a procedural legitimate expectation element to the right to a fair hearing.

Limitations

There are some limitations to the right to a fair hearing, however.

National security

National security always overrules the right to a fair hearing. As such, in R v SSHD, ex p Hosenball [1977], a American citizen could not contest his deportation order following his reporting on the ‘existence’ of GCHQ as it was a matter of national security. Similarly in R v SSHD, ex p Cheblak [1991], despite 15 years of residence in the UK, a suspected terrorist could not contest his deportation.

Confidentiality

Occasionally, it is justified to withhold the sources of information. This was the case in R v Gaming Board, ex p Benaim [1970], where due to the potential threat of violence, an informant who reported on the effectiveness of a gaming manager was allowed to have his identity concealed from the claimant.

Emergency

In an interim period, there will be no right to apply for judicial review where such an interim decision was made in an emergency. In R v SS Transport, ex p Pegasus Holdings [1989], no claim was permitted to review the legality of a decision to ban pilots in the interest of public safety. The ‘long-term’ legality of such a decision, it must be assumed, could be challenged.

Failings of legal advisors

In Al-Mehdawi v SSHD [1989], there was no prejudice to the right to a fair trial where, due to the failings of a solicitor in communicating to the wrong address, the claimant did not appear in court.

Making legislation

This final general limitation to the right to a fair hearing was illustrated in Bates v Lord Hailsham [1972]. When specifying new minimum fees for conveyancing transactions under statutory power, there was no duty to consult the British Legal Association; required only was consultation with the Law Society.

Aspects

Oral hearings

Often, public authorities will prefer a ‘paper process’ to claims, whereas individuals usually prefer oral hearings when authorities are making decisions. In Lloyd v McMahon [1987], a local authority wanted an oral hearing when a decision was being made to decide whether members of the council should be personally liable for deliberately delaying setting new tax rates. It was said that to attain an oral hearing, it must be asked for and required for fairness. Written evidence was plentiful in this case therefore an oral hearing was not required. An oral hearing was allowed in R v Army Board, ex p Anderson as there was a major factual dispute to be had and the subject matter qualified. In R (Thompson) v Law Society [2004], no hearing was asked for in 1 claim and in a 2nd, enough evidence had been obtained. Fairness did require an oral hearing in R (Osborn) v Parole Board [2013] where there was a debate to be had over whether parole conditions had been breached or not.

Legal representation

R v Board of Visitors Maze Prizon, ex p Hone [1988] set the current law on this aspect. In deciding whether legal representation should be allowed when deliberating upon a particular decision, account must be taken of seriousness, the presence of points of law, procedural difficulties, speed and the fairness between the parties. The board was correct to deny legal representation in a matter as trivial as throwing a mug at a prison guard.

Cross-examination

When deciding on whether a right to cross-examine evidence is present, Bushell v SS Environemnt [1981] ruled that considered should be the competency of the claimant, the subject matter and the needs of the decision maker. Bushell was correctly not allowed to review evidence which led to the extension of the M40 from Oxford to Birmingham.

Curative appeals

The Privy Council said in Calvin v Carr [1980] that there is no easy answer to curative appeals and to look at the context of the initial decision.

Giving reasons

Public bodies are not always required to give reasons for their decision for a hearing to be fair. In Doody v SSHD [1993] it was said that most administrative decisions do not require reasons; however when deciding on the length of a murder sentence, reasons would be required. This requirement was further clarified in R v Higher Education Funding Council, ex p Institute of Dental Surgery [1994] where it was ruled that decisions would be required where fundamental rights would be affected or where a decision is aberrant. The case fit into the latter category; it was difficult to understand, without reasons, why £1/3million in funding was removed from a university.

Bias

Whilst bias is arguably part of the right to a fair trial, it deserves consideration. as a ground for judicial review. It is certainly a principle of natural justice that decisions should not be biased. Bias is only relevant in judicial and quasi-judicial decision-making.

A good example of bias can be found in R v Kent Police Authority, ex p Godden [1971]: the decision to dismiss an officer was quashed when it was found that the doctor who examined the health of the officer was biased. The famous case of R v Bow Street Magistrates, ex p Pinochet Utgarte (No. 2) [1999] had its judgment quashed where Lord Hoffman, who was one of the majority 3 judges, was shown to be connected to the Amnesty international organisation, especially where his judgment concurred with such a viewpoint.

There are two types of bias: pecuniary bias, involving financial interests; and non-pecuniary bias, involving other factors.

Pecuniary bias

Pecuniary bias will be found if there would be a significant financial benefit to the decision maker for there to be a particular outcome. In Dimes v Grand Junction Canal Proprietors [1852], a first instance judge was found to be biased in having significant shares in the defendant company. conversely, no bias was found in R v Mulvihill [1990] where a judge decided against a defendant who had robbed a small branch of bank in which he had some shares; there would be a negligible or no impact on the judge’s finances.

Non-pecuniary bias

R v Gough [1993] laid down the initial rule on non-pecuniary bias where a jury member in a murder trial lived on the same street at the defendant’s brother. It was said that there must be a real danger of bias such that the decision may not be regarded as fair. It is a difficult test to satisfy, and it was not satisfied on the facts of this case; the decision was upheld. conversely, there would be a real danger of bias when a coroner described the families of victims of a shipping incident as ‘unhinged’ prior to an investigation in R v West London Coroner, ex p Dallagio [1994]. The coroner was replaced.

Localbail v Bayfield Properties [2002] attempted to clarify the rule in a case where no bias was found in a deputy judge being a partner in a solicitors’ firm which had previously acted for the claimant. It was said that there are two categories of non-pecuniary bias; one involving religion, ethnicity, gender, class and orientation; and another involving education, employment, memberships and politics.

Initially, Franklin v Minister of Town and Country Planning [1948] told us that administrative decisions could not be quashed due to bias; a trap which caught R v Sevenoaks DC, ex p Terry [1985]: planning decisions were therefore not subject to quashing orders due to bias.

This all changed in R v SS Environment, ex p Kirkstall Valley Campaign Ltd [1996]; the scope of bias was extended to administrative decisions to reflect how executive power is distributed in the UK: via quangos – semi-public bodies which are funded by government. This decision finally gave the judiciary control over a potentially dangerous group of organisations. Although, on the facts of this case, there was no real danger of bias, despite significant criticism of the chairman of the quango, who potentially stood to make significant sums of money in granting a rugby club planning permission.

Following this case, it seemed like judges found it easier to ‘find bias’. In Re Medicaments (No. 2) [2001], a panel member in a drugs competition decision was found to have had a recent job application rejected by the company whose MD was an expert government witness. She was replaced. It would appear that courts are more lenient to professional judges though; due to the aforementioned case of Localbail v Bayfield Properties [2002].

In Porter v Magill [2002], regarding the potential personal liability of Dame Shirley Porter for £31million after organising an illegal house price reduction scheme in an attempt to become re-elected, bias was not found due to a press conference conducted by an investigator. The court redefined the test for bias for a final time, as:

Whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias.

Following this new test, R (Al-Hasan) v SSHD [2005] found that there was the real possibility of bias in those who authorise intimate searches of high risk inmates also adjudicating on their lawfulness, and Helow v SSHD [2008] found that where there was no real danger of bias in a Scottish judge handing down a biased deportation decision just because a magazine he had read printed a biased article.

Illegality

Illegality, or the concept of ultra vires can quash a decision if the power exercised was not at the disposal of the person who exercised it. There are two types of ultra vires decisions; those involving simple ultra vires, and those involving an error of law.

Simple

Simple ultra vires means (simply) to do something you are not obliged to do. For example, in A-G v Fulham Corp [1921], where statute obliged Fulham Corp to provide a washhouse, it was ultra vires for them to provide a profit-making laundry service. The Local Government Act 1972, s 111 does allow for incidental acts on the part of local authorities, however Fulham Corp’s act and the complex financial swap transactions which took place in the case of Hazell v Hammersmith & Fulham LBC [1992] were both not incidental, and therefore unlawful, acts.

Error of law

A decision may also be quashed for illegality where an error of law was made, for example in the aforementioned case of Anisminic v Foreign Compensation Commission [1969], where a 1950 statute was incorrectly applied. The was no error of law in R v Lord President of the Privy Council, ex p Page [1993], in the decision to close the University of Hull’s philosophy department; redundancy for Page was inevitable it appears.

Reviewing discretionary powers

Whilst the legislature is not subject to judicial scrutiny, with the exception of by the Court of Justice of the EU, legislation often gives discretion to member sof the executive. This discretion can be reviewed.

Unlawful delegation

As a general rule, where Parliament has delegated a function, it may not be lawfully sub-delegated. As such, in Barnard v National Dock Labour Board [1953], disciplinary powers could not be sub-delegated to a manager. However, where the right final decision-making, or the right to disagree, is retained, delegation may be allowed. This was the case in Mills v London County Council [1925] where it was ruled lawful for a local authority to delegate film classifications to a classifications board. Fact-finding may also be delegated, as held in R v Race Relations Board, ex p Selvarajan [1975].

The principle laid down in Carltona v Commissioner of Works [1943], known as the Carltona principle, now allows the delegation of very large functions to responsible officials. As such, it was lawful for a factory requisitionment to be carried out by responsible officials in the same department. Similarly, in Re Golden Products [1976], delegating the winding up of a company was lawful. R v SSHD, ex p Oladeinde [1991] required that delegation could only occur where there was sufficient expertise and embarrassment would not occur, therefore in DPP v Haw [2008], the delegation of imposition of unreasonable protest conditions was found to be unlawful.

Acting under dictation

According to R v Mayor of Stepney [1902], there is no claim against someone acting under the dictation of a power which may not be reviewed. In this case, the value of redundancy payments could not be challenged where ey were calculated in accordance with guidelines set by the treasury.

Fettering discretion with self-made policy

It is not unlawful to pre-determine the outcome of a particular decision as long as the public body’s ‘ears’ are kept open to new applications, as held in R v Port of London Authority, ex p Kynoch Ltd [1919]. It was therefore lawful to refuse to contract out the building of new docks. In British Oxygen co v Minister of Technology [1971], it was lawful to decline the making of a £4million grant where the unit price of items which the grant would be used for did not exceed £20. It was publicly known that this policy was in place. Finally, in Lavender & Son v Minister of Housing [1970], it was ok to consult the minister of Agriculture before granting gravel extraction on agricultural land. The decision was still ultimately made by the correct minister.

Legitimate expectation

Substantive legitimate expectation means that where a promise is made, it may be later enforced. The rule was laid out in R v IRC, ex p MFK Underwriting Agents [1990]. It was said that where an unambiguous representation is made by a public authority following full disclosure by the claimant, the promise made by the representation is enforceable. On the facts of the case, MFK had not fully disclosed their intentions regarding particular ways of investing premiums, therefore tax rises were applicable to their investments. However, in R v North & East Devon HA, ex p Coughlan [2003], a promise to keep Coughlan in a specialist medical unit was enforceable, just as was the promise of recognition of an accreditation in R (Patel) v General Medical Council [2013] where clarification was given before Patel started on a course to attain such an accreditation.

Improper use of power

Where power is used inappropriately for the purpose given to a public body, such an abuse may be prevented. As such, in Municipal Council of Sydney v Campbell [1925], it was ruled an abuse of power for a council to buy land for financial gain only, where power had been given for urban development purposes. Campbell was entitled to stay in occupation of his land. Similarly, in Padfield v Minister of Agriculture [1968], it was ruled improper for a Minister to refuse to investigate a reform of dairy products quotas just because it was ‘too big’ an issue for a committee and could create Parliamentary conflict. Furthermore, in Congrieve v Home Office [1976], it was improper to revoke TV licences which had been pre-purchased to avoid price increases, just as in Wheeler v Leicester CC [1985], it was improper for a council to threaten a rugby club if any members of that club acted contrary to the council’s political persuasion.

Legally relevant factors

Decisions may be made with improper reasoning; reasons which is not legally relevant. A decision may be quashed if this is the case. In Roberts v Hopwood [1925], equal pay was not required in law therefore Poplar council did not need to increase wages for women and in R v Somerset CC, ex p Fewings [1995], it was unlawful to revoke deer hunting rights as ‘ethics’ is not a legally relevent reason. Where multiple reasons are given, the relevant ones will be disregarded. In R v Broadcasting Complaints Commission, ex p Owen [1985], a lack of resources was disregarded as an adequate reason for not giving more political coverage to a particular party; however, an editorial judgment reason was relevant and caused the claim to be dismissed.

Irrationality

Initially, what we now know as irrationality was known as unreasonableness, as defined by Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]. A decision could be quashed if it was unreasonable that no authority could have come to it. On the facts, there was no unreasonableness as it is a difficult standard to prove. Although, it was unreasonable in Blackhouse v Lambeth LBC [1972] for the council to distribute new rental income requirements over just one property, than equally across all properties.

Unreasonableness was then redefined by the GCHQ Case [1985] as irrationality: a decision so outrageous that it defies logic or accepted moral standards; a text which varies with context.

Remaining a very high standard, the test of irrationality was not satisfied in R v SS Environment, ex p Nottinghamshire CC [1986], where the Environment Secretary’s changes to local authority budgets could only be irrational if the House of Commons had been deceived. Prior to the ECHR, according to R v SS Defence, ex p Smith [1996], it was not irrational to have a policy to dismiss any homosexual servicemen. Finally, it was irrational in R v Lord Saville, ex p A [1999] not to allow the concealment of identities for soldiers who gave evidence in the re-opened Bloody Sunday enquiry – a £150m apology.

Proportionality

Proportionality is not a common law principle. This was illustrated in the case of R v SSHD, ex p Brind [1991], where a claim to remove a publication ban from an IRA spokesperson failed. However, proportionality is an element of the Human Rights Act 1998; proportionality has been adopted widely throughout the world. Therefore, in R (Daly) v SSHD [2001], a human rights claim which opposed the searching of legally privileged documents as part of random searching of prisoners’ cells was successful under the test of proportionality, a test which looks at a legislative objective and decides whether the measures designed to fulfill this objective are rationally connected to it, and not more than necessary to fulfill it. It was not irrational in R (Association of British Civilian Internees: Far East Region) v SS Defence [2013] to require a parent or grandparent to have been born in the UK to attain a £10,000 payment to compensate for being a Japanese internee; the requirement showed a connection, and in any case, irrationality, despite a strong body of support for its adoption, is not part of UK law.

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