It's and answer to a past paper question on judicial review.
1955 words
Explain, by reference to case law, how the principles of JR provide protection against the unlawful use of discretionary powers by officials and public bodies.
Explain, by reference to case law, how the principles of JR provide protection against the unlawful use
of discretionary powers by officials and public bodies.
The question statement requires a discussion on the notion of Judicial Review (JR), more specifically focusing
on the extent to which courts may step in to protect against actions of a governmental or public nature.
The answer would broadly encompass two limbs. Firstly, the nature and scope of the JR of the executive’s
discretionary powers will be examined. JR would be defined and the criteria for a JR claim would be briefly
overviewed. The analysis shall be drawn to demonstrate the importance of adherence to the rules of natural
justice both in court and during the decision-making process. The scope of JR will also be considered in the
context of maintaining a balance between flexibility and accountability. The second limb of the answer shall
focus primarily on the grounds of JR( as classified by Lord Diplock in the GCHQ case) whilst referring to
appropriate case law that helps evaluate their practical application.
As defined by the Ministry of Justice in 2013 JR is 'A critical check on the power of the state, providing an
effective mechanism for challenging the decisions, acts or omissions of public bodies to ensure that they are
lawful.’ It is a form of court proceedingsenables individuals to to get the decisions of public authorities
reviewed which they made using their discretionary powers on grounds of illegality, irrationality, procedural
impropriety and proportionality.
Being a controversial process for enabling the unelected judges to question the executive the scope of JR is
restricted. a claim for JR can only be successful if it fulfils the set criteria; this helps minimise the chances of JR
being used for politically motivated challenges. As clarified by R v Somerset County Council, courts are to
intervene only if some fault can be pointed out in the exercise of the discretionary power. This implies that
courts play a supervisory role and jurisdiction. They are not to assess the merits, but rather the legality of a
decision as expressed by Bingham in R v Director of Serious Fraud Office .Transgressing beyond this would
be a blatant violation of the doctrine of SOP, by interfering in the other’s work to the extent of undermining their
efficiency (N W Barber). This was also affirmed by Lord Ackner in Brind v Secretary of State for Home
Department, where he stated that if court begins to substitute their decision for that of the public authority or
decision maker, that would constitute a “wrongful usurpation of power by the judiciary”
the amenability to JR has expanded and it now even covers private bodies exercising functions of a public
nature.This is because “functions of a governmental nature are frequently discharged by non-governmental
bodied” as expressed by Lord Nicholls.. Even bodies or individuals that are purely private or contractual can
not be challenged for their decisions’ legality as per the Aga Khan case
As depicted by R v Panel on Takeovers and Mergers, the test is the nature of the power being exercised.
Moreover, JR is not available as their first step.
With regards to the discretionary power, both powers conferred by a statute and prerogative powers (as
established in GCHQ case) are amenable to be reviewed in courts.
The court should be satisfied that the application is sound to go ahead and all other remedies have been
exhausted. These procedural requirements include justiciability; courts’ permission; standing; no other
alternate remedy being available; and adherence to strict time limits.
An application should usually be brought within 3 months or as permitted by the statute. Moreover, the claimant
must have sufficient standing, this includes individual standing as well as associational representative standing
as in the Liverpool Cooperation v Taxi Fleet Operation/Association case. Moreover, public interest
representative standing is also sufficient as illustrated in Greenpeace and World Development Project 1995
cases. Following s.31(3) Senior Courts Act 1981court must not grant this ‘unless it considers that the applicant
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