First class grade of 72% in the constitutional and administrative law exam
This document contains the following:
- GCHQ case;
-concept of ultra vires;
-4 ground of judicial review and relevant case law for each;
-controversy;
-Post Human Rights Act
-statutory requirements;
-common law requiremen...
Judicial review grounds and remedies
Judicial review can be sought on different grounds. In Council of Civil Service Unions v Minister
for the Civil Service (1985) (known as the GCHQ case), Lord Diplock reclassified the existing
grounds of review as the following: ‘Judicial review has I think developed a stage today when with-
out reiterating any analysis of the steps by which the development has come about, one can con-
veniently classify under three heads the grounds upon which administrative action is subject to
control by judicial review. The first ground I would call “illegality”, the second “irrationality” and the
third “procedural impropriety”. According to Lord Diplock, although there were essentially 3 differ-
ent grounds of judicial review, he noted that proportionality may be developed at a later date. This
has now occurred with the Human Rights Act 1998 (HRA). It must be emphasised that these 4
grounds should not be viewed as rigid exclusive categories, as a claimant can argue that the ac-
tions of a public body involved more than one ground of review.
The ground of illegality has different aspects to it and was defined by Lord Diplock in GCHQ case,
as ‘ By “illegality” as a ground for judicial review I mean that the decision-maker must understand
correctly the law that regulates his decision-making power and must give effect to it.’ Illegality can
be further broken down in the following elements - the decision-maker has acted illegally because
he has:
• Acted in an ultra vires way, that is beyond his power;
• Misinterpreted his public law powers (excess of jurisdiction);
• Wrongly delegated his legal powers (wrongful delegation);
• Acted for an improper purpose;
• Abused his discretion by failing to exercise it at all, or he has considered irrelevant factors and/or
ignored relevant ones;
• Acted in a way which is incompatible with the rights in the European Convention on Human
Rights (HRA)
In essence, the ground of illegality is concerned with the misinterpretation or wrongful application
of public law powers. A public body which takes into account an irrelevant factor may also act for
an improper purpose at the same time.
The concept of ultra vires is associated with the intention of Parliament and so an action not au-
thorised by the statute is unlawful. However, the concept of ultra vires cannot explain the ambit
and nature of judicial review. In R v Lord Chancellor ex parte Witham (1997), where the Su-
preme Court Fees (Amendment) Order 1996 was held ultra vires for precluding a person’s access
to the courts. Contrast this case with that of Attorney General v Fulham Corporation (1921), It
was held: that this scheme was ultra vires as it was not authorised by the Baths and Wash-houses
Act 1846-78. These Acts authorised the establishment of wash-houses whereby people could use
the facilities to wash their own clothes. Instead, Fulham Corporation had created a laundry which
was an entirely different enterprise and not authorised by the 1846-78 legislation. Although a public
body shall not act beyond its powers, make decisions which are not authorised by Acts of Parlia-
ment. The High Court also has to act according to the intention of Parliament Intra vires (within
powers conferred).
In relation to disciplinary powers, the following case applies: Vine v National Dock Labour Board
and Another (1957), where a local dock labour board wrongfully delegated their discretionary
powers to a Committee which hd terminated Vine’s employment. This dismissal was therefore, in-
valid due to the delegation of a quasi-judicial function.
Government ministers
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