Judicial Review

When an individual feels that they have suffered a grievance as the result of a decision or procedure followed out by a public body, they may qualify for Judicial Review. This is a process by which the courts scrutinise the decisions of government ministers, inferior courts, tribunals and other administrative bodies to ensure that they have not acted irrationally, illegally, or committed some procedural impropriety. 

CCSU v The Minister for the Civil Service HL [1984] 

Also known as the GCHQ case – held that the Royal Prerogative was subject to Judicial Review. Margret Thatcher’s government decided that employees of the GCHQ would not be allowed to join a trade union for national security reasons. After much protest the government did not change its mind and gave its employees the option between £1000 + their job, or dismissal. This decision was enforced by the Royal Prerogative, which the High Court of Justice deemed invalid due to the lack of consultation beforehand. The Court of Appeal decided that national security issues trumped any problems of propriety; also adding that it is the executive’s right to judge national security and not the right of the judiciary. The case then went to the House of Lords where it failed; they said that the Royal Prerogative was generally subject to judicial review – national security was one of the only exceptions. Previous law had stated that prerogative powers were not in any way subject to Judicial Review; the GCHQ case identified that the application of Judicial Review would be dependent on the nature of the government’s powers, not their source. Lord Fraser said that whilst the courts would not by default accept a government statement that there was a national security issue, it was a “matter of evidence” and the evidence here showed the government to be correct.

This case is highly important as it set out that although Royal Prerogative for national security reasons is considered outside the scope of the courts, most other uses of the Royal Prerogative are now judicially reviewable in some form.

In the CCSU case, Lord Diplock highlighted 3 bases for intervention:

1.      Illegality – “the decision maker must understand correctly the law that regulates his decision making power and must give effect to it.”

In determining the legality, the court must consider the area over which the power is given. Presumptions of statutory interpretation such as ‘a body has no power to act retrospectively’ and ‘a body has no power to restrict a person’s access to the courts.’ Determining the scope of a body’s power is far from being mechanical but involves the court in making value judgements; if any authority exercises power outside of this area, that action will be invalid. Alternatively, a statue might provide that power must be exercised by a particular person or by someone with specific qualifications. If power is exercised by another it may be an ULTRA VIRES act which is a nullity and the act may be considered illegal.

Allingham v The Minister of Agriculture and Fisheries HC [1948] – minister had statutory power to give instruction and direction regarding agricultural land. He was allowed to pass some of that power to a committee to make decisions; the committee then gave power to an executive officer who gave instructions to a farmer as to what he could grow on his land (only sugar). The farmer failed to comply with this instruction and the court held that only the minister or committee had the power under the statute to issue such a directive.

The courts must take into account (1) The nature of the power; (2) The character of the person. Obviously if the power is of a routine nature or simply part of procedure, the courts will be much more willing to allow the use of power by a sub-delegate than if there is a strong element of discretion involved. Judicial and legislative powers are not allowed to be subject to sub-delegation; however when a minister acts through his civil servants, there is no delegation.

2.      Irrationality – “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.”

Unreasonableness: so unreasonable that no reasonable person would agree with it. For example ‘we will not employ anyone with red hair’. The leading case for this is Associated Provincial Picture Houses Ltd v Wednesbury Corp CA [1948] where a cinema said no children under 15 were allowed in the cinema on Sundays. The court said they could not overturn the decision simply because they disagreed with it – therefore the claim failed on the grounds that the rule was not ‘outrageous’.

Irrelevant Considerations: In the Padfield case, the minister had the power to refer complaints to the committee but decided not to on one occasion as he feared the complaint could be politically damaging for the government at the time. The court said this was an irrelevant consideration which constituted an unlawful decision.

Improper Purpose: if a public body exercises its statutory power for an improper purpose the courts can intervene. In the Padfield case the minister had discretion as to whether or not to take a complaint to the committee, however this discretion was not unlimited and it should have been used to promote the policy and objects of the enabling Act. In the Congrieve case the minister was given statutory power to revoke television licenses; he revoked them early to avoid increase, claiming he had unrestricted power – the court said he had acted ultra vires in using his power for improper purpose.

Failure to give reasons: Where the individual can provide no good reason, unreasonableness is usually inferred. Failure to give reasons may also constitute procedural impropriety.

Beyond Wednesbury unreasonableness: Use of the ECHR Article 13. A court, when deciding whether a decision was unreasonable, might consider whether it was proportionate. Lord Steyn said that although the convention calls for a more exacting standard of review, it remains that the judge is not the primary decision maker.

Proportionality: Recognised in the Alconbury case. Balance – whether the means justify the ends. “Balance…between the adverse effects…and the purpose which the authority is seeking to pursue.”

“Whether the legislative objective was sufficiently important to justify limiting a fundamental right.”

The court will consider the balance struck by the decision-maker, as well as whether or not it is reasonable or rational. Proportionality and the ‘Wednesbury unreasonableness’ did not always produce the same result.

3.      Procedural Impropriety – has the procedure been followed?

-Breach of Procedural Requirement: Express and Implied

EXPRESS PROCEDURAL REQUIREMENT: Two categories of express requirement are Mandatory and Directory. Mandatory refers to a requirement given by an authority; a prerogative order. Only if the breach is considered to be ‘mandatory’ procedural requirement will non-compliance affect the validity of the exercise of power. Breach of ‘directory’ procedural requirement will not affect validity. Lord Hailsham has criticised the rigid distinction between the two categories and said that the effects of the same breach may differ hugely in different circumstances. 3 criteria were proposed by Balcombe LJ, which must be considered when determining the effect of non-compliance:

(1) The importance of the relevant procedural requirement;

(2) The relation of that requirement to the general object intended to be secured by the Act;

(3) The relevant circumstances to the case.

IMPLIED PROCEDURAL REQUIREMENT: e.g. consultation; requirement to give reasons and; duty to follow a fair procedure. Usually linked to legitimate expectation arising out of a previous course of dealing between parties. E.g. In the CCSU case, members had previously been informed when terms and conditions changed in relation to their employment, and this gave rise to a legitimate expectation that they would be informed if the terms were to change again.