Topic 6 of the Public law module, traditional judicial review is equally as difficult as judicial review, however, it is vital when answering a problem question.
Used by a 1:1 (1st) student.
Judicial Review of Administrative Action: Grounds for Review
The Various Heads of Judicial Review:
1. Illegality
a. Ultra vires (body made a decision outside its jurisdiction)
b. Fettering discretion/non delegation
c. Irrelevant considerations
2. Irrationality
a. Unreasonableness
b. Proportionality
3. Procedural impropriety (Ridge v Baldwin [1964])
a. The Rule against Bias
b. The Right a Fair Hearing
c. Legitimate expectations (emerging ground)
Lord Diplock, in Council of Civil Service Unions v Minister for the Civil Service ‘GCHQ case’ [1985]
stated the ‘three heads the grounds upon which administrative action is subject to control by judicial
review… illegality… irrationality… procedural impropriety’. The GCHQ terminology can also
correspond with the traditional terminology. Illegality is ultra vires, irrationality is unreasonableness,
and procedural impropriety is breach of natural justice. Legitimate expectations are a fourth head
added post-GCHQ.
Illegality:
Administrative actions can be ultra vires for a number of different reasons, which can be grouped
together under the headings of acting in excess power and abuse of power. Excess of power will see
the courts assess the scope of power, and determine that the decision-maker lacked the authority
for based on:
(i) Exceeding the limits for a public function;
(ii) Unauthorised delegation of a public function;
(iii) The decision maker has committed errors of law or fact.
,An abuse of power finding means that though the decision-maker didn’t possess sufficient power to
reach a decision, its lawfulness is thrown into question by considerations of how the power has been
used, through:
(i) Exercising a public function on the basis of irrelevant considerations;
(ii) Exercising a public function to further improper purposes;
(iii) The decision maker has fettered its discretion.
Preventing abuses of power can be done through either classical JR, or political and other forms of
accountability (Ombudsman). US originally had no rights in their constitution, instead defining
government powers. Bill of Rights was another ‘track’.
The Concept of Illegality/Ultra Vires:
Lord Diplock also defined what was involved in JR under each head, with illegality the bedrock on
which the rest of the jurisdiction is built, ‘the decision-maker must understand correctly the law that
regulates his decision-making power and must give effect to it. Whether he has or not is par
excellence a justiciable question to be decided, in the event of despite, by those persons, the judges,
by whom the judicial power of the state is exercisable’.
Dicey, The Law of the Constitution, 146-68:
Explaining that freedom of the press was more protected in the UK than in France even though
France had it anchored in The Declaration of the Rights of Man the French Constitution of 1791
because “Hundreds of Englishmen who hated toleration and cared little for freedom of speech,
entertained a keen jealousy to arbitrary power, and a fixed determination to be rule in accordance
with the rule of law”. Less rhetoric of protecting rights and more jealousy to the liberty when it is not
restricted by law.
Acting in Excess of Powers:
(i) Exceeding the limits of a public function:
These limits are a matter of evaluating the statutory provisions which grant a power, but this head of
JR also applies equally to powers derived from the royal prerogative/secondary legislation. Courts
assess the compatibility of public body actions with the statutory rules. Some powers can be broadly
framed, such as permitting a public body to act in a way it ‘considers appropriate’. However, ‘no
statutory discretion is unfettered (R (Palestine Solidarity campaign Ltd) v Secretary of State for
Communities and Local Government [2020] (Lord Wilson)).
(a) Express limitations upon a public function must be respected:
For example, under s. 74 of the Housing Act 1936, local authorities were granted authority to
compulsorily acquire land for the provision of houses for the working classes. Section 75, however,
created a specific exception: the Act did not authorise the compulsory acquisition of land ‘which at
the date of the compulsory purchase forms part of any park, garden or pleasure ground’. Ripon
Borough Council attempted to use this power to purchase land which included part of Highfield Park,
with White & Collins v Minister of Health finding this purchase to be unlawful.
In Attorney-General v Fulham Corporation [1921], Sargant J held that all public authorities must
identify some affirmative powers which provide authority for their actions. This decision also opened
up the scope for the courts to look beyond statute’s express terms when assessing the legality of a
public body’s actions.
, (b) Implicit requirements upon public functions:
The first duty of the courts in conducting JR is to assess the limits of a power (its ‘four corners,’
Carnwarth J in R (Edison First Power Ltd) v Secretary of State for Environment, Transport, and
Regions).
Statutory requirements upon exercise of a public body’s power fall into either: expressly imposed
requirements by the legislation, and those the courts infer are necessarily incidental. Lord Hoffmann
in ex parte Simms, said ‘fundamental rights cannot be overridden by general or ambiguous words’.
Thus, broad statutorily worded powers, the courts can declare the exercise of a public function falls
foul of implicit restrictions protecting rights which could only be overridden by a direct assertion by
Parliament that the statutory powers overrides such interests.
An example of implicit restrictions on public functions occurred in Bromley London Borough Council
v Greater London Council [1983] relates to when the Labour Greater London Council implemented
the ‘Fares Fair’ scheme, with authority justified by legislation (Transport (London) Act 1969, s. 1)
over administering public transport in London in an ‘economic, efficient and integrated’ manner.
Conservative-run Bromley challenges this exercise of discretion. Lords acknowledged GLC’s broad
power but ruled reference to ‘economic’ in the statute obliged GLC to run the service at break-even
point as opposed to the loss-making under their plan.
Foreign Secretary Douglas Hurd’s decision to fund an economically unviable and environmentally
destructive Pergau Dam in Malaysia saw the Divisional Court rule this decision illegal by identifying
an implicit requirement that overseas development grants must be economically sound.
Both of these decisions were criticised as evidence of the judiciary accepting challenges to decisions
on the basis of their personal preferences, rather than respecting the decisions of elected decision
makers.
(ii) Unauthorised delegation of a public function:
Illegality also limits the ability of a decision maker to pass on such a function to a third party.
Without parliamentary approval, it would be illegal. The courts’ willingness to recognise implicit
restrictions upon statutory power exercise evidences the close judicial oversight of governance
functions, the courts have treated delegations of authority more flexibly than a simple assertion of
the rule would suggest.
Barnard v National Dock Labour Board is an example of unauthorised delegation of a public function,
where Denning LJ held it was irrelevant that the port manager had suspended the workers with good
reason, nor could a power to delegate the Board’s authority to a senior manger be said to be
necessarily implied by its statutory powers.
However, if Barnard’s approach was adopted by public functions in the hands of Secretaries of State,
then Cabinet-level ministers would have to personally exercise these powers or face unlawful
delegation. There is an exception to the rule against unauthorised delegation when central-
government decision-making is at issue. In Carltona Ltd v Commissioners of Works [1943], Lord
Green MR accepted civil servant acting under ministerial authority could exercise requisitioning
powers vested in the ministers personally, ‘ministers, being responsible to Parliament, will see that
important duties are committed to experienced officials’.
, In R v Secretary of State for the Home Department ex parte Doody [1994], the Lords affirmed,
‘whether statutory discretion is capable of delegation, and if so to what degree, principally depends
upon the interpretation of the statute’ (Lord Mustill).
R (Chief Constable of the West Midlands Police) v Birmingham Justices [2002] saw the Divisional
Court approve the Chief Constable’s delegation to his subordinates of his statutory power to apply
for anti-social behaviour orders. Sedley LJ held that the Carltona principle extended to his authority,
as the Constable ‘is legally answerable for them’. This was followed up in Director of Public
Prosecutions v Haw [2007], where Lord Phillips held ‘where the responsibilities of the office created
by statute are such that delegation is inevitable, there will be an implied power to delegate’.
Other strands of illegality are maintained to prevent illegal exercises of power (red-light in nature),
this flexible approach to delegation allows public bodies to manage their own decision-making
processes (green-light in nature). Courts can find delegations if authority illegal if junior officials are
left in charge of decisions they are competent to make, or where interests are so important as to
make delegation inappropriate (as in R v Adams [2020]).
Non-Delegation Principle – the Carltona Doctrine:
Interpretative presumption: discretionary power may not, in general, be delegated.
Carltona v Commissioners of Works [1943] – aims to make the principle practical.
"In the administration of government in this country the functions which are given to ministers (and
constitutionally properly given to ministers because they are constitutionally responsible) are
functions so multifarious that no minister could ever personally attend to them...[therefore] The
duties imposed upon ministers and the powers given to ministers are normally exercised under the
authority of ministers by responsible officials of the department. Public business could not be carried
on if that were not the case."
Delegation v ‘entering their shoes’ ideas. The criteria for a permissible delegation: The nature of the
subject matter, the degree of control retained by the person delegating and the type of person or
body to whom the power is delegated
(iii) Errors of Law and Errors of Fact:
(a) Errors of Law:
Since Anisminic Ltd v Foreign Compensation Commission, the courts have accepted that ‘all relevant
errors of law are open to challenge’. In Anisminic, the FCC refusing compensation on the basis its
jurisdiction didn’t cover UK-owned property by foreign governments was held to be an error in law
by the Lords.
R (Cart) v Upper Tribunal [2012] saw the courts maintain the application of judicial review to Upper
Tribunal decisions ‘in order to guard against the risk that errors of law of real significance slip
through the system’. However, the Independent Review of Administrative Law (2021) by Lord Faulks
QC found in over 5,500 Cart JRs of UT decisions, only 12 were successful for claimants. Thus, Part 1
of the Judicial Review and Courts Bill 2022 sees the government acting on this analysis with a
proposal to exclude Cart reviews on UT decisions.
(b) Errors of Fact:
There is fear over permitting review on the basis of error of fact would oblige judges to assess the
merits of the decision-maker’s choices. In R v Criminal Injuries Compensation Board ex parte A
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