NationMaster - Encyclopedia: Judicial Review in English Law

Wikipedia does not have an article with this exact name. ... Judicial review is the power of a court to review a a law or an official act of a government employee or agent for constitutionality or (in some jurisdictions) for the violation of basic principles of justice. ...

Introduction

Judicial review is a procedure in English Administrative Law by which English courts supervise public authorities in the exercise of their powers. A person who feels that a decision of a public authority, such as a government minister, the local council or a statutory tribunal has violated his or her rights, may apply to the High Court for judicial review of the decision and have it set aside (quashed) and possibly obtain damages. A court may also make mandatory orders or injunctions to compel the authority to do its duty or to stop it from acting illegaly. Administrative law in the United States often relates to, or arises from, so-called independent agencies- such as the Federal Trade Commission (FTC). Here is FTCs headquarters in Washington D.C. Administrative law (or regulatory law) is the body of law that arises from the activities of administrative agencies... High Court usually refers to the superior court of a country or state. ...

Unlike the United States and some other jurisdictions, English law does not know judicial review of primary legislation (laws passed by Parliament), save in a few cases where primary legislation is contrary to EU law and the European Convention of Human Rights. A person wronged by an Act of Parliament therefore cannot apply for judicial review unless this is the case. Primary legislation is legislation made by the legislative branch of government. ... The European Convention on Human Rights (1950) was adopted under the auspices of the Council of Europe† to protect human rights and fundamental freedoms. ...

Constitutional position

The English constitutional theory as expounded by A.V. Dicey does not recognise a separate system of administrative courts that would review the decisions of public bodies (as in France, Germany and many other European countries). Instead, it is considered that the government should be subject to the jurisdiction of ordinary Common Law courts. Albert Venn Dicey (February 4, 1835 – April 7, 1922) was a British jurist and constitutional theorist who wrote An Introduction to the Study of the Law of the Constitution (1885). ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ...

At the same time, the doctrine of Parliamentary sovereignty does not allow for the judicial review of primary legislation (Acts of Parliament). This limits judicial review in English law to the decisions of public bodies and secondary (delegated) legislation, against which ordinary common law remedies as well as special "prerogative orders" are available in certain circumstances. Parliamentary sovereignty, parliamentary supremacy, or legislative supremacy is a concept in constitutional law that applies to some parliamentary democracies. ... An Act of Parliament or Act is law enacted by the parliament (see legislation). ... In English law, the prerogative writs are a class of writs originally available only to the Crown, but which were later made available to the kings subjects through the courts. ...

The constitutional theory of judicial review has long been dominated by the doctrine of ultra vires, under which a decision of a public authority can only be set aside if it exceeds the powers granted to it by Parliament. The role of the courts was seen as enforcing the "will of Parliament" in accordance with the doctrine of Parliamentary sovereignty. However, the doctrine has been widely interpreted to include errors of law^[1] and of fact and the courts have also declared the decisions taken under the Royal Prerogative to be amenable to judicial review.^[2] Therefore it seems that today the constitutional position of judicial review is dictated by the need to prevent the abuse of power by the executive as well as to protect individual rights. Ultra vires is a Latin phrase that literally means beyond the power. ... The Royal Prerogative is a body of customary authority, privilege, and immunity, recognised in common law jurisdictions possessing a monarchy as belonging to the Crown alone. ...

Procedural requirements

Under the Civil Procedure Rules a claim (application) for judicial review will only be admissible if permission (leave) for judicial review is obtained from the High Court, which has supervisory jurisdiction over public authorities and tribunals. Permission may be refused if one of the following conditions is not satisfied: The Civil Procedure Rules 1998 came into force in England & Wales on 26 April 1999, largely replacing and significantly overhauling the previous Rules of the Supreme Court (applicable to the High Court of Justice) and the County Court Rules. ... High Court usually refers to the superior court of a country or state. ...

However, the Court will not necessarily refuse permission if one of the above conditions is in doubt. It may, in its discretion, to examine all the circumstances of the case and see if the substantive grounds for judicial review are serious enough.^[5] Delay or lack of sufficient interest can also lead to the court refusing to grant a remedy after it had considered the case on the merits.^[6] In law, standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged. ... This article or section does not adequately cite its references or sources. ... Tort is a legal term that means a civil wrong, as opposed to a criminal wrong, that is recognized by law as grounds for a lawsuit. ... A contract is a legally binding exchange of promises or agreement between parties that the law will enforce. ...

Amenability to judicial review

The decision complained of must have been taken by a public body, i.e. a body established by statute or otherwise exercising a public function. In R v Panel for Takeovers and Mergers Ex p Datafin [1987] 1 QB 815, the Court of Appeal held that a privately established panel was amenable to judicial review because it in fact operated as an integral part of a governmental framework for regulating Mergers and Takeover, while those affected had no choice but to submit to its jurisdiction. // Datafin is an important Court of Appeal decision in the area of administrative law, establishing that the decisions of a private body exercising public functions may be amenable to judicial review. ... Her Majestys Court of Appeal is the second most senior court in the English legal system, with only the Judicial Committee of the House of Lords above it. ...

Ouster clauses

Sometimes the legislator may want to exclude the powers of the court to review administrative decision, making them 'final', 'binding' and not apellable. However, the courts have consistently held that none but the clearest words can exclude judicial review.^[7] When the Government wanted to introduce a new Asylum and Immigration Act containing such clear words, members of the judiciary protested to the extent of saying that they will not accept even such an exclusion.^[8] The Government withdrew the proposal.

The courts however do uphold shorter time limits on applications for judicial review.^[9]

Grounds for review

In Council of Civil Service Unions v Minister for the Civil Service[1985] AC 374 Lord Diplock summarised the grounds for reversing an administrative decision by way of judicial rewiew as follows: Kenneth Diplock (1907-1985) was an English judge and Law Lord. ...

The first two grounds are known as substantive grounds of judicial review because they relate to the substance of the disputed decision. Procedural impropriety is a procedural ground because it aims at the decision-making procedure rather than the content of the decision itself. The three grounds are mere indications: the same set of facts may give rise to two or all three grounds for judicial review.

Illegality

In Lord Diplock's words, this ground means that the decision maker "must understand correctly the law that regulates his decision-making power and must give effect to it."

The decision is taken by the wrong person (unlawful sub-delegation)

If the law empowers a particular authority, e.g. a minister, to take certain decisions, the Minister cannot subdelegate this power to another authority, e.g. an executive officer or a committee. This differs from a routine job not involving much discretion being done by civil servants in the Minister's name, which is not considered delegation.^[10]

The powers used for the purpose different from the one envisaged by the law under which they were granted

A good example of this is the case of R v Secretary of State for Foreign Affairs Ex p The World Development Movement. S 1 of the Overseas Development and Co-operation Act 1980 empowered the Secretary of State for Foreign Affairs to assign funds for development aid. The Secretary assigned the funds for a project to construct a power station on the Pergau river in Malaysia. The House of Lords held that this was not the purpose envisaged by the enabling statute and the Minister therefore exceeded his powers. A similar principle exists in many continental legal systems and is known by the French name of détournement du pouvoir.

Error of law or error of fact

The court will quash a decision where the authority has misunderstood a legal term or incorrectly evaluated a fact that is essential for deciding whether or not it has certain powers. However, where a term to be evaluated by the authority so broad and vague that reasonable people may reasonably disagree about its meaning, it is generally for the authority to evaluate its meaning. So, in R v Hillingdon Borough Council ex Parte Pulhofer [1986] AC 484, the local authority had to provide homeless persons with accommodation. The applicants were a married couple, who lived with her two children in one room and applied to the local authority for aid. The local authority refused aid because it considered that the Pulhofers were not homeless and the House of Lords upheld this decision because the question as to whether the applicants had accommodation was a question of fact for the authority to determine.

Ignoring relevant considerations or taking irrelevant considerations into account

An example of this can be seen in Wheeler v Leicester City Council, where the City Council banned a rugby club from using its ground because three of the club's members went on a tour in South Africa at the time of apartheid. In R v Somerset County Council v Fewings the local authority decided to ban stag hunting on the grounds of it being immoral. In Padfield v Ministry of Agriculture, Fisheries and Food, the Minister refused to mount an inquiry into a certain matter because he was afraid of bad publicity. In all these cases, the authorities have based their decisions on considerations, which were not relevant to their decision making power and have acted unreasonably (this may also be qualified as having used their powers for an improper purpose). A segregated beach in South Africa, 1982. ...

Fettering discretion

An authority will be acting unreasonably were it refuses to hear applications or takes certain decisions without taking individual circumstances into account by reference to a certain policy. When an authority was given discretion, it cannot bind itself as to the way in which this discretion will be exercised either by internal policies or obligations to others. Even though an authority may establish internal guidelines, it should be prepared to make exceptions on the basis of every individual case.^[11]

Irrationality

Under Lord Diplock's classification, a decision is irrational if it is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it." This standard is also known as Wednesbury unreasonableness, after the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, where it was first imposed. Wednesbury unreasonableness is a term that is used to refer to the principle enunciated in the British case of Associated Provincial Picture Houses v. ...

Unlike illegality and procedural impropriety, the courts under this head look at the merits of the decision, rather than at the procedure by which it was arrived at or the legal basis on which it was founded. The question to ask is whether the decision "makes sense". In many circumstances listed under "illegality", the decision may also be considered irrational.

Proportionality

Proportionality is a requirement that a decision is proportionate to the aim that it seeks to achieve. E.g. an order to forbid a protest march on the grounds of public safety should not be made if there is an alternative way of protecting public safety, e.g. by assigning an alternative route for the march. Proportionality exists as a ground for setting aside administrative decisions in most continental legal systems and is recongnised in England in cases where issues of EC law and ECHR rights are involved. However, it is not as yet a separate ground of judicial review, although Lord Diplock has alluded to the possibility of it being recognised as such in the future. At present, lack of proportionality may be used as an argument for a decision being irrational.^[12] The word proportionality may have one of a number of meanings: In mathematics, proportionality is a mathematical relation between two quantities. ... The European Union is unique among international organizations in having a complex and highly developed system of internal law which has direct effect within the legal systems of its member states. ... The Convention for the Protection of Human Rights and Fundamental Freedoms, also known as the European Convention on Human Rights (ECHR), was adopted under the auspices of the Council of Europe[1] in 1950 to protect human rights and fundamental freedoms. ...

Procedural impropriety

A decision suffers from procedural impropriety if in the process of its making the procedures prescribed by statute have not been followed or if the 'rules of natural justice' have not been adhered to. Natural justice is a legal philosophy used in some jurisdictions in the determination of just, or fair, processes in legal proceedings. ...

Statutory procedures

An Act of Parliament may subject the making of a certain decision to a procedure, such as the holding of a public hearing or inquiry,^[13] or a consultation with an external adviser.^[14] Some decisions may be subject to approval by a higher body. Courts distinguish between "mandatory" requirements and "directory" requirements. A breach of mandatory procedural requirements will lead to a decision being set aside for procedural impropriety.

Breach of Natural Justice

The rules of natural justice require that the decision maker approaches the decision making process with 'fairness'. What is fair in relation to a particular case may differ. As pointed out by Lord Steyn in Lloyd v McMahon [1987] AC 625 "the rules of natural justice are not engraved on tablets of stone." the Below are some examples of what the rules of natural justice require: Natural justice is a legal philosophy used in some jurisdictions in the determination of just, or fair, processes in legal proceedings. ... Johan van Zyl Steyn, Baron Steyn (born August 15, 1932) is a South African/English jurist, and until September 2005 a Law Lord. ...

The rule against bias

The first basic rule of natural justice is that nobody may be a judge in his own case. Any person that makes a judicial decision - and this includes e.g. a decision of a public authority on a request for a license - must not have any personal interest in the outcome of the decision. If such interest is present, the decision maker must be disqualified even if no actual bias can be shown, i.e. it is not demonstrated that the interest has influenced the decision.^[15] The test as to whether the decision should be set aside is whether "a fair-minded and informed observer would conclude that there was a real possibility [of bias]".^[16]

The right to a fair hearing

Whether or not a person was given a fair hearing of his case will depend on the circumstances and the type of the decision to be made. The minimum requirement is that the person gets the chance to present his case. If the applicant has certain legitimate expectations, for example to have his licence renewed, the rules of natural justice may also require that he is given an oral hearing and that his request may not be rejected without giving reasons. ^[17] Where the decision is judicial in nature, for example a dismissal of an official in punishment for improper conduct, the rules of natural justice require a hearing and the person question must know the case against him and be able to examine and object to the evidence. In English law, the concept of legitimate expectation arises from administrative law, a branch of public law. ...

Duty to give reasons

Unlike many other legal systems, English administrative law does not recognise a general duty to give reasons for a decision of a public authority.^[18] A duty to give reasons may be imposed by statute. Where it is not, Common Law may imply such a duty and the courts do so particularly with regard to judicial and quasi-judicial decisions.^[19] This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ...

Remedies

The remedies traditionally available in judicial review are the so called prerogative orders: certiorari, mandamus and prohibition. In the language of the new Civil Procedure Rules, these orders are now known respectively as the quashing order, the mandatory order and the prohibiting order. A claimant for judicial review may also seek an injunction, a declaration and/or damages.^[20] The Civil Procedure Rules 1998 came into force in England & Wales on 26 April 1999, largely replacing and significantly overhauling the previous Rules of the Supreme Court (applicable to the High Court of Justice) and the County Court Rules. ... Look up Injunction in Wiktionary, the free dictionary. ... A declaration is a form of statement, which expresses (or declares) some idea; declarations attempt to argue that something is true. ... In law, damages refers to the money paid or awarded to a claimant (as it is known in the UK) or plaintiff (in the US) following their successful claim in a civil action. ...

A declaration declaring a decision void is equivalent to the quashing order, and is usually used to declare a statute or a regulation incompatible with a higher norm of law, such as the European Convention of Human Rights or EC law. The European Convention on Human Rights (1950) was adopted under the auspices of the Council of Europe† to protect human rights and fundamental freedoms. ... The European Union is unique among international organizations in having a complex and highly developed system of internal law which has direct effect within the legal systems of its member states. ...

The remedies of declaration, injunction and damages are discretionary remedies.^[21]

References

The introduction to this article provides insufficient context for those unfamiliar with the subject matter. ... The Carltona doctrine (or principle) expresses the idea that, in United Kingdom law, the acts of government departmental officials are synonymous with the actions of the minister in charge of that department. ...

External links

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