JUDICIAL REVIEW Laws

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JUDICIAL REVIEW
It is regarded as self-evident that a democratic society should operate according to "the
rule of law". This phrase is not clearly defined, but it is generally taken to mean that
even the government should operate in accordance with the law and that there should be
checks on the abuse of powers by ministers and other officials of the state. In the United
Kingdom, these checks are exercised (in part) through the process of judicial review.
Since October 2000, AJR cases are heard at first instance in a special Administrative
Court by one of eighteen or so High Court Judges with special expertise in public law,
sitting in the Queen's Bench Division.
A prospective applicant for judicial review must first obtain leave to apply. The
prospective applicant begins by filing a notice in the Crown Office, indicating the relief
sought and the grounds alleged, and accompanied by an affidavit swearing to the facts
stated. The notice is considered ex parte by a single judge, without a hearing unless one
is requested, who grants or refuses leave to apply for judicial review. If the judge refuses
leave, the applicant may renew his application for leave to a single judge sitting in open
court, or (in a criminal matter) to the Divisional Court, but in a civil matter there can be
no renewal once leave has been refused after a hearing. When all possibility of renewal
is exhausted, the applicant may appeal to the Court of Appeal.
Under Order 53 Rule 4(1) an application for leave to apply must be made promptly, and
in any event within three months from the date at which the grounds for the application
first arose, unless the court considers that there is good reason for extending the period.
Under s.31(6) of the 1981 Act, the court may refuse leave to apply (or grant leave but
withhold relief) if there has been undue delay in making the application. These two rules,
each of which expressly saves the other, are not the same, and are applied by the courts
as they think right. An undue delay may be shorter than three months in some cases.
R v Stratford-on-Avon DC ex p Jackson [1985] 3 All ER 769, CA

A woman A sought judicial review of RR's decision to grant planning permission for a
supermarket, but because of delays in obtaining legal aid (for which she was not
responsible) her application for leave was not lodged for some nine months. Granting
leave out of time, the Court of Appeal said the three months should be interpreted as
being the period in which leave must be sought rather than in which the formal
application should be made. Given the facts, this was a proper case for extending the
period, but the court at the substantive hearing would be free to decide for itself, if it
chose, that the delay justified denial of the application.
R v Dairy Produce Quotas Tribunal ex p Caswell [1990] 2 All ER 434, HL

AA sought to challenge a decision of the tribunal relating to their milk quota made over
two years previously. The Court of Appeal and the House of Lords upheld a ruling of
Popplewell J that the three-month time limit should not be extended (even though there
might be good reasons for the delay) where such an extension would be detrimental to
good administration. They conceded that the Tribunal had erred in law, but the
application was two years late and a review now would have had widespread effects.
R v Swale BC ex p RSPB (1990) 2 Admin LR 790, Simon Brown J
Brian Bwesigye’s Home Library

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AA sought to challenge a grant of planning permission for development, claiming a

legitimate expectation (based on prior written assurances) that they would be consulted.
The judge refused certiorari in spite of the strength of AA's case. Even though the
application had been made within the three months required by Order 53, he said, there
had been undue delay and the court was entitled to exercise its discretion under s.31(6)
to refuse relief. The power granted by s.31(6) was quite distinct from that granted by
Order 53, and the power to refuse relief for undue delay was not pre-empted by the grant
of leave to apply.
All judicial review cases are heard in the High Court - the quicker and cheaper County
Court procedure used for ordinary civil actions is not available. Once leave to apply has
been granted, however, there is provision for the disclosure of documents and for
interlocutory orders, both formerly impossible in applications for one of the prerogative
orders.
PUBLIC BODIES AND PUBLIC FUNCTIONS
Judicial review is available only against a public body exercising public law functions.
R v Criminal Injuries Compensation Board ex p Lain [1967] 2 All ER 770, DC

A police officer shot by a suspect later committed suicide, and his wife A sought to
challenge RR's award of £300. In the Divisional Court, Lord Parker CJ said the CICB
was subject to judicial review even though it had been set up under the prerogative
without any statutory power, and even though its decisions did not in themselves create
legally enforceable rights. In the instant case, however, the Board's decision disclosed no
error of law and certiorari was refused.
Law v National Greyhound Racing Club [1983] 3 All ER 300, CA

A greyhound trainer P suspended for alleged doping sought to challenge DD's decision
by means of a civil action. DD applied to have the action struck out on the grounds that
P should have proceeded by application for judicial review, but the Court of Appeal
affirmed the judge's order that the trial should proceed. Since the Stewards' authority to
suspend P's licence derived solely from a contract between him and DD, there was no
public element in their jurisdiction (notwithstanding that there was a public interest in
the fair conduct of greyhound racing) and hence no public law element.
R v East Berks Health Authority ex p Walsh [1984] 3 All ER 425, CA

A nursing officer A was suspended and subsequently dismissed, and sought judicial
review of the decision. The Court of Appeal, reversing Hodgson J, said this was a private
law issue for which A should seek redress in an industrial tribunal. Where a public
authority is required to engage employees on certain terms, a failure or refusal to
contract on those terms is a matter of public law; but where the contract is made on the
proper terms, a subsequent breach of those terms is a private law matter.
R v Panel on Takeovers and Mergers ex p Datafin [1987] 1 All ER 564, CA

An unsuccessful bidder sought to challenge a decision of the Panel, an unincorporated
association with about a dozen members appointed by various City institutions, but
whose role was recognised indirectly in various statutory and non-statutory ways. The

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Court of Appeal, reversing Hodgson J but refusing certiorari on the facts, said judicial
review might extend to any body which operated in the public domain and whose
jurisdiction was not exercised only by consent.
R v Fernhill Manor ex p Brown [1993] 1 FLR 620, Brooke J

A 15-year-old girl P was expelled from her independent school for bullying, and sought
judicial review of the decision. Refusing the application, the judge said the rules of
natural justice had not been followed, but an independent school was not a public body
open to challenge by AJR. Obiter, pupils expelled from a maintained school would have
such a remedy, but P should proceed by a civil action.
R v Chief Rabbi ex p Wachmann [1993] 2 All ER 249, Simon Brown J

A rabbi A was dismissed for alleged misconduct, and sought judicial review. Refusing
his application, the judge said that although many bodies were now open to review, they
were bodies performing governmental or quasi-governmental functions. The test was to
ask whether, if the body did not exist, its regulatory functions would be performed by
some executive authority. Since there was no question of the state ever regulating
religious activities, the Chief Rabbi was not a "public law body" subject to judicial
review.
R v Jockey Club ex p Aga Khan [1993] 2 All ER 853, CA

A racehorse owner A sought judicial review of the Jockey Club's disqualification of his
horse, traces of drugs having been found in its urine. The Court of Appeal upheld the
Divisional Court in refusing the application. Bingham MR said although the Jockey Club
had a royal charter, and operates largely in the public domain as de facto controller of a
significant public activity, it is not truly a public body. A's relationship with RR was
based on contract, and he should seek his remedies in private law.
The position may change under the Human Rights Act 1998. While the prospective Act
was in its Committee stage, the Home Secretary expressly gave the Jockey Club as an
example of a "quasi-public body" the exercise of whose "public functions" would be
subject to the Act. In s.6(3) of the Act a "public authority" is defined as including any
person (or by implication any corporate body) certain of whose functions are functions
of a public nature, but excluding any part of Parliament. This definition is strictly
applicable only to proceedings under the Act, but it may in due course lead to a
broadening of liability to judicial review generally.
R (A) v Partnerships in Care [2002] 1 WLR 2610, Keith J

In preliminary proceedings, the judge held that a privately-run psychiatric
hospital was a public body whose decisions were subject to challenge through
judicial review. The Mental Nursing Homes Regulations 1984 cast on the hospital a
statutory duty to provide adequate staff and treatment, and that brought their
activities into the public domain particularly where (as in this case) the patient
was in the hospital by compulsion rather than by choice.
LOCUS STANDI AND SUFFICIENT INTEREST
In common law, the prerogative remedies were available only to an applicant who had
locus standi; nowadays, leave to apply for judicial review is not granted unless the

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applicant "has sufficient interest in the matter to which the application relates". This
requirement is intended to avoid having the courts clogged up with busybodies seeking
to challenge decisions that do not actually affect them: in practice the courts adopt a
fairly broad interpretation of it.
R v Greater London Council ex p Blackburn [1976] 3 All ER 184, CA

A London ratepayer P sought an order of prohibition to prevent the council from
delegating its responsibility for film censorship to the BBFC and thereby allowing the
showing of indecent films. The Court refused to grant such an order, but agreed that P's
position as a resident of Greater London, with a wife who was a ratepayer and children
who might be affected by indecent films, gave him locus standi to bring the application.
R v HM Treasury ex p Smedley [1985] 1 All ER 589, CA

Acting under powers in the European Communities Act 1972, the Government made an
Order in Council authorising special additional payments into the Community budget. A
taxpayer A unsuccessfully sought certiorari to quash this order, but the Court of Appeal
had no doubt as to his interest to bring the application. It raised a serious question as to
the powers of Her Majesty in Council, and the Order if approved would lead to the
expenditure of over £120m from the Consolidated Fund.
R v Felixstowe Justices ex p Leigh [1987] 1 All ER 551, DC

A bench RR adopted a policy of withholding the names of the magistrates involved in
hearing any particular case; a journalist A preparing an article about a decided case
sought judicial review of that policy. Watkins LJ said a reflective article to be written
after the event did not give A sufficient interest to seek an order of mandamus, but that
as a member of the public interested in the preservation of open justice he was entitled to
a declaration that a blanket policy of non-disclosure was unlawful.
R v Secretary of State ex p Rose Theatre Trust [1990] 1 All ER 754, Schiemann J

A conservation group AA sought to challenge the Secretary of State's decision not to
schedule a monument of national importance, thereby leaving the area free for
redevelopment. The judge said their application failed on its merits - the Secretary of
State had not acted unlawfully - but also because of their lack of sufficient interest in the
legal sense. Parliament had not given any individual (except an unsuccessful applicant)
the right to appeal against a planning decision, and no doubt for very good reasons. None
of the individual members of the applicant company could show sufficient interest to
make application for judicial review, and they could not acquire such an interest merely
by forming themselves into a company.
R v Foreign Secretary ex p Rees-Mogg [1994] 1 All ER 457, DC

A citizen A sought certiorari to quash the Government's decision and a declaration that
the United Kingdom could not lawfully ratify the Maastricht Treaty without express
statutory authority. The Divisional Court rejected the application on its merits, but noted
obiter that A's standing to bring the application was not in dispute: they accepted without
question that A brought the proceedings because of his sincere concern for the
constitutional issues involved.
Equal Opportunities Commission v Secretary of State [1994] 1 All ER 910, HL

PP sought judicial review of the Secretary of State's refusal to acknowledge that certain
provisions of the Employment Protection (Consolidation) Act 1978, governing

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redundancy pay for part-time workers, discriminated against women and were thus
incompatible with European law. The House of Lords (Lord Jauncey dissenting) said the
Commission had a statutory responsibility for monitoring the provision of equal
opportunities and thus had sufficient interest to bring judicial review proceedings.
Obiter, an individual adversely affected should claim in private law.
R v Inspectorate of Pollution ex p Greenpeace (No.2) [1994] 4 All ER 329, Otton J

BNFL applied for permission to expand its nuclear waste disposal operations, and AA
sought judicial review of RR's decision to allow a variation in the existing licence before
the new authorisation came into effect. The judge dismissed the application on its merits,
but said AA had sufficient interest to make the application. Distinguishing ex p Rose, he
said AA were a responsible and well-established body; had the objections not been
consolidated into a single action, the proceedings would have been far lengthier and
more expensive.
R v Somerset CC ex p Dixon [1998] Env LR 111, Sedley J

A neighbour D sought judicial review of the Council's decision to permit the expansion
of a quarry. His application failed on its merits, but the judge said the "sufficient
interest" threshold is set only high enough to prevent abuse. D had no financial interest
in the matter, but his position as a resident and local councillor was sufficient interest to
allow him to bring an application.
R v Lord Chancellor ex p Child Poverty Action Group [1998] 2 All ER 755, Dyson J
AA sought judicial review of the Lord Chancellor's refusal to extend legal aid to
proceedings before social security and some other tribunals. In interlocutory proceedings
the judge refused AA a pre-emptive costs order, but clearly acknowledged the legitimate
existence of a class of "public interest challenges" in which the applicants are not trying
to protect any private interest of their own.
R v Home Secretary ex p Bulger [2001] 3 All ER 449, DC

The father of a murdered child sought to challenge the tariff set for the earliest release of
his son's murderers. The Divisional Court said he had no standing in the matter: although
the "sufficient interest" test is generally set quite low, the only parties with sufficient
interest in criminal proceedings are the Crown and the defendant. [In spite of this
decision, the Court went on to dismiss the application on its merits.]
SCOPE OF JUDICIAL REVIEW
Most applications for judicial review involve challenges to administrative decisions by

government ministers, civil servants, local councils or other bodies dealing with matters
of day-to-day administration. The decisions of inferior courts and tribunals are subject to
judicial review - this is quite different from an appeal - and the validity of secondary
(delegated) legislation can also be challenged, but primary legislation (that is, legislation
directly enacted by Parliament) is immune from judicial review unless it violates a
directly applicable rule of European law.
However, there are some areas of decision-making into which the courts will not
normally enquire. Chief among these is the area of national security, and the

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government's declaration that the matter is one of national security is often enough to
bring a case to an abrupt end.
Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935,
HL
Unions representing workers at GCHQ sought judicial review of the government's
decision to forbid trade union membership for those workers. The judge granted a
declaration that the prime minister had acted unlawfully in withdrawing workers' rights
without consultation, but the Court of Appeal allowed D's appeal on the grounds that the
requirements of national security (and specifically, the danger of industrial action
interfering with the work of GCHQ) overrode any duty to consult. The House of Lords
dismissed PP's further appeal. The fact that the relevant powers emanated from
prerogative rather than statute was not relevant: the controlling factor in determining
whether the exercise of a power is subject to judicial review is the justiciability of its
subject matter rather than its source. Moreover, there had been regular consultation on
conditions of service in the past, and AA had a legitimate expectation that that would
continue until they were given reasons for its withdrawal and the opportunity to
comment. Where the government seeks to rely on national security to justify a decision,
said their Lordships, the courts will not accept a mere assertion to that effect but will
require evidence that the decision was taken for that reason. However, the question
whether the decision was in fact necessitated by national security is non-justiciable,
since the government is the sole judge of what national security requires and only the
government has the information necessary to make the decision. Once D had produced
evidence that her decision not to consult the staff was taken for reasons of national
security, that overrode any right to judicial review. Lord Roskill suggested obiter that
although prerogative powers are not ipso facto immune from judicial review, powers
such as those relating to the making of treaties, the defence of the realm, the prerogative
of mercy, the grant of honours, the dissolution of Parliament and the appointment of
ministers are not justiciable or reviewable.
Cowley v Heatley (1986) Times 24/7/86, Browne-Wilkinson VC

A swimmer P born in South Africa sought a declaration against the Commonwealth
Games Federation that she was eligible to take part as a member of the British team. The
judge said there was no contractual relationship between P and the Federation, but that
he would not have granted such a declaration even if there had been. Sport would be
better served if there was not running litigation at repeated intervals by people seeking to
challenge the decisions of the regulating bodies.
R v Home Secretary ex p Bentley [1993] 4 All ER 442, DC

The sister of a young man hanged for murder in 1953 sought judicial review of the
Home Secretary's decision that a posthumous free pardon could not be granted unless the
convicted person was shown to have been both morally and technically innocent. The
Divisional Court said the Home Secretary had misdirected himself and, while making no
order, invited him to reconsider his decision. But contrary to what Lord Roskill had said
in the GCHQ case, the exercise of the prerogative of mercy is reviewable: it is an
important feature of the criminal justice system and a decision infected with legal errors
ought not to be immune from legal challenge merely because it involves an element of
policy.
R v Foreign Secretary ex p Rees-Mogg [1994] 1 All ER 457, DC

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A citizen A sought certiorari to quash the Government's decision and a declaration that
the United Kingdom could not lawfully ratify the Maastricht Treaty without express
statutory authority. The Divisional Court dismissed A's application because inter alia it
found the making of treaties to be non-justiciable. The dictum of Lord Roskill in the
GCHQ case (above) had been approved by Lord Oliver in Maclaine Watson v
Department of Trade [1989] 3 All ER 523, and although there might be an exception if
the making of the treaty violated an express statutory provision, that was not alleged
here.
R v Higher Ed. Funding Council ex p Institute of Dental Surgery [1994] 1 All ER 651,
DC
AA sought review of RR's decision to award them a research grading of 2, compared
with a grading of 3 awarded on a previous occasion, and of RR's refusal to give reasons
for their decision. The Court dismissed the application, saying that a pure exercise of
academic judgment does not carry a duty to give reasons.
R v Cambridge Health Authority ex p B [1995] 2 All ER 129, CA

The father of a 10-year-old girl sought to challenge the doctors' refusal to provide the
latest treatment, and the Health Authority's refusal to fund treatment elsewhere. Bingham
MR said a court is not in a position to decide on the correctness of the difficult and
agonising judgments which have to be made by health authorities as to how a limited
budget is best allocated to the maximum advantage of the maximum number of patients.
R (Bancoult) v Foreign Secretary [2006] EWHC Admin 1038

Several Chagossians formerly resident in the British Indian Ocean Territory (a group of
about fifty low-lying islands containing important US defence installations) sought to
challenge two Orders in Council (the Constitution Order and the Immigration Order)
depriving them of any right of abode in the islands and making it an offence for anyone
to be on the islands without a permit. Hooper LJ said that the exercise of the royal
prerogative is in principle susceptible to judicial review, and that the Orders' total
disregard of the interests of the Chagossians (in favour of the defence interests of the
United Kingdom and the United States of America) made them irrational and thus
unlawful so far as BIOT was concerned. A declaration should be made accordingly.
REMEDIES
The AJR procedure makes available six possible remedies. There are the former
prerogative orders of certiorari, prohibition and mandamus, together with injunction,
declaration and damages. An applicant can specify the remedy sought or may prefer to
leave the matter to the court, which will in any case generally give the remedy it thinks
appropriate (if any) whatever the applicant may have asked for! All judicial review
remedies are discretionary, and no remedy will be granted if the court thinks it
inappropriate.
By certiorari, now called a quashing order, the High Court quashes an invalid decision
of an administrative or other body. The court does not substitute its own decision, nor
direct that a particular decision be made - the body whose decision has been quashed

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may be free to make the same decision again as long as the correct procedure is
followed. Where the invalid decision was based on error of law, however, the High
Court will point out the error and may require the body to make a lawful decision on the
matter.
R v GLC ex p Kensington & Chelsea LBC (1982) Times 7/4/82, McNeill J

AA sought judicial review to quash the rate precept set by RR, arguing that RR had
considered irrelevant factors in relation to some elements of its budget. The judge
dismissed the application, and said it was a matter of real concern that the court was
being used for political arguments dressed up as points of law. Obiter, even if there had
been irregularities he would have exercised his discretion to refuse certiorari: to quash
the precept and thereby deprive RR of funds would be outrageous, particularly
considering the tiny proportion borne by the disputed items to the total budget.
R v Home Secretary ex p Swati [1986] 1 All ER 717, CA

A man A sought leave to enter the UK as a visitor for a week, but the immigration
officer believed he intended to overstay and refused leave to enter. A sought judicial
review of this decision, but the Court of Appeal, affirming the Divisional Court, refused
leave to apply. In the absence of any evidence of irrationality A had no arguable case,
and he should in any event have used the statutory appeals procedure before seeking
judicial review, even though he would have had to return to Pakistan to do so.
R v Secretary of State for Education ex p Avon CC [1991] 1 All ER 282, CA

The council AA applied successfully for certiorari to quash the Secretary of State's
decision to allow Beechen Cliff School to opt out of LEA control, thus destroying AA's
reorganisation plans. Hutchinson J and the Court of Appeal accepted AA's submission
that the Secretary in making his decision had not considered its effects on the children
attending the other schools in Bath (or at least had given no evidence of having done so),
rendering the decision irrational and void.
R (Wainwright) v Richmond-upon-Thames LBC (2002) Times 16/1/02, CA

A local council proposing to install a pedestrian crossing failed to inform or consult
many local residents with a statutory right to be consulted. The trial judge quashed the
council's subsequent decision to proceed, but the Court of Appeal said this was
inappropriate. The council were clearly in breach of their statutory duty, but there was no
real possibility they would have reached any different conclusion had they done so, and
justice did not require their decision to be quashed.
The order of prohibition, now called a prohibiting order, directs the authority not to carry
out an unlawful action which it has not yet performed, but which it is thought it may
intend to do; in all other respects it is similar to certiorari.
R v Electricity Commissioners ex p London Electricity [1924] 1 KB 171, CA

RR proposed to establish a joint electricity authority that would affect AA's rights as a
supply company, and AA applied for an order of prohibition. The Court of Appeal,
reversing the Divisional Court, said RR's proposals were ultra vires and granted the
order sought. Atkin LJ said wherever any body of persons having legal authority to
determine questions affecting the rights of subjects, and having the duty to act judicially,
act in excess of their legal authority they are subject to the controlling jurisdiction of the
High Court.

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R v Greater London Council ex p Blackburn [1976] 3 All ER 184, CA

A ratepayer A sought judicial review of RR's policy of allowing cinemas to show any
film with a BBFC classification, subject to a condition that (inter alia) it did not tend to
deprave or corrupt. Lord Denning said RR had acted ultra vires in applying the statutory
test of obscenity rather than the common law test of indecency: a film could be indecent
without being obscene. RR had already suspended its policy pending the decision, but A
was given leave to apply for an order of prohibition against its resumption should that be
necessary.
An order of mandamus, now a mandatory order, commands a defaulter to perform some

public duty, where the responsible body has refused or failed to do so, or has
unreasonably delayed action. It cannot be used to enforce the exercise of mere powers
(though in some cases an apparent power has been construed as an actual duty), nor to
compel a body having discretionary powers to exercise those powers in a particular way,
nor will it go to enforce the performance of a private duty even by a public body. Like
certiorari (and indeed like any AJR remedy), mandamus is discretionary. The court
takes into account the rights of parties other than the applicant, and the limited resources
that the authority may have available, and will probably refuse an order if performance
can be secured by other means.
R v Bristol Corporation ex p Hendy [1974] 1 All ER 1047, CA

A man A living with his family in a basement flat that had been declared unfit for human
habitation sought mandamus to compel the Council to provide him with suitable
permanent housing, rather than the temporary housing they were currently offering. RR
had a duty to house A and his family, but they were already doing all they reasonably
could, and there was no reason to give A priority over the other homeless families on the
waiting list.
Shah v Barnet LBC [1983] 1 All ER 226, HL

A foreign-born student P was refused a university grant on the grounds that he had not
been "ordinarily resident" in the UK for the past three years. He sought a declaration that
he was entitled to a grant, but the House of Lords said this would usurp the decision-
making power given to DD. They therefore refused the declaration but granted
certiorari and mandamus to compel DD to reconsider his application in the light of the
House's interpretation of the relevant statutory provision.
The injunction, prohibitory or mandatory, was an equitable private law remedy

originally developed in the Court of Chancery, but is now available in public law as well
so long as the applicant has a legitimate private interest to be protected. An injunction
may be granted even in cases where other remedies are available, if the respondent
shows a clear intention to defy the law and the other remedies are insufficient deterrent.
Like any equitable remedy (and like any remedy in judicial review proceedings) the
injunction is discretionary and may be refused if P's own conduct makes it appropriate,
or if it is unlikely to be effective; the court may also refuse an injunction that would
require the respondent to perform on a continuous basis some activity that can only be
carried on at a loss.
Harold Stephen v Post Office [1978] 1 All ER 939, CA

DD suspended a number of workers because they refused to handle mail to the Grunwick
plant where industrial action was taking place, and had to close a branch office as a

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result. Another local firm PP, whose business depended on the mail, sought to compel
the Post Office to continue to provide a postal service to them. The court said it had the
greatest sympathy with PP but declined to issue an injunction: DD were already doing all
they reasonably could and would not in practice be able to comply without colluding in
the unlawful action against Grunwick.
Until recently it was generally understood that as a coercive remedy, an injunction would
not lie against the Crown, nor against any Crown servant acting as such, but that rule has
now changed. In M v Home Office the House of Lords departed from earlier decisions
and said that in appropriate circumstances an injunction, final or interim, can be granted
against a Minister of the Crown acting in his official capacity.
M v Home Office [1993] 3 All ER 537, HL

A Zairean citizen M seeking asylum in the UK sought judicial review of the Home
Secretary's decision to deport him. Garland J adjourned the application for leave to the
following day, and understood the Home Secretary R to have given an undertaking
(through counsel) that M would not be removed in the mean time, though in fact no such
undertaking was intended. M was therefore put on an aircraft bound for Zaire, but when
the judge learned of this he issued an immediate order to R requiring him to take steps to
bring M back to the UK. R decided that the power to make such an order should itself be
challenged in the courts, and took the view that until this challenge had been determined
there was no need for him to take any action. M disappeared shortly after his arrival in
Zaire, and proceedings were brought against Kenneth Baker, both personally and as
Home Secretary, for contempt of court. Simon Brown J said that he had no power to
make a finding of contempt, but the Court of Appeal disagreed. On authority they
accepted that the Home Secretary as such was immune from coercive orders, but found
against Mr Baker personally.
The House of Lords disagreed again, saying there was no reason why a Minister should
not be found in contempt given the appropriate circumstances. In the light of
comprehensive arguments covering the history of civil and prerogative proceedings, said
Lord Woolf, it appeared that Lord Bridge in Factortame had been mistaken. There was
no reason to restrict the application of s.31 of the Supreme Court Act 1981 so as to
exclude injunctions against Ministers, nor any reason to adopt an attitude to interim
injunctions different from that adopted in respect of other individuals to whom they
might be addressed. The fact that the court had jurisdiction to grant injunctions against
officers of the Crown did not mean this jurisdiction should be exercised except in very
limited circumstances: so far as final relief was concerned, the declaration would
continue to be the appropriate remedy in most cases, and the Crown could no doubt be
relied upon as in the past to cooperate with such declarations. Where the Crown servant
had reasonable grounds for thinking that an order might be open to legal challenge, he
might legitimately delay complying, as long as the challenge was lodged as soon as
practicable, and provided that in the mean time all appropriate steps were taken to ensure
no disadvantage was suffered by the person for whose benefit the order had been made.
Concurring, Lord Templeman said the argument (advanced by counsel for R) that there
was no power to enforce the law by injunction nor by contempt proceedings against a
Minister in his official capacity would, if upheld, establish the proposition that the
executive obeyed the law as a matter of grace, not of necessity; that proposition would
reverse the result of the Civil War.

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The declaration is the youngest of the AJR remedies, and on its face the least effective
since it merely declares the parties' legal rights without changing them in any way, and
does nothing in itself to enforce compliance. It nullifies the consequences of an illegal
act, however - a citizen cannot be punished for infringing a byelaw that has been
declared void - and it is effective to the extent that public authorities (including the
Crown) almost invariably comply with its terms without the need for enforcement. The
popularity of the declaration, which has grown over the past hundred years or so, stems
nowadays from its availability in situations where no cause of action has yet arisen.
R v Felixstowe Justices ex p Leigh [1987] 1 All ER 551, DC

A bench RR adopted a policy of withholding the names of the magistrates involved in
hearing any particular case; a journalist A preparing an article about a decided case
sought judicial review of that policy. Watkins LJ said a reflective article to be written
after the event did not give A sufficient interest to seek an order of mandamus, but that
as a member of the public interested in the preservation of open justice he was entitled to
a declaration that a blanket policy of non-disclosure was unlawful.
R v Secretary of State for Social Security ex p B [1996] 4 All ER 385, CA

An asylum-seeker B sought judicial review of Regulations withdrawing all social
security benefits from those who sought asylum after having been admitted to the UK,
rather than at the moment of entry. Reversing the Divisional Court, the Court of Appeal
granting a declaration that the Regulations in question were ultra vires, notwithstanding
their approval by Parliament.
The courts' power to award damages in judicial review proceedings is important only
where some other remedy is sought as well. A court may award damages if they were
sought in the original application, and would have been awarded had the applicant begun
an ordinary civil action (based on contract or tort) at the time of the application.
EXCLUSION OF JUDICIAL REVIEW
The courts' jurisdiction to review decisions of public bodies is limited in two ways: some
limitations are imposed by the courts themselves, and others by Parliament. The courts
themselves have declared certain issues not to be justiciable, and this matter is discussed
above. But in addition, Parliament does from time to time seek to protect the decisions of
Ministers and others from challenge by judicial review by means of an "ouster clause" in
the enabling legislation. The courts are understandably unenthusiastic about such
attempts to exclude their jurisdiction, and tend to interpret such clauses very narrowly.
Anisminic v Foreign Compensation Commission [1969] 1 All ER 208, HL

The Commission was required to allocate compensation for British property seized when
the Suez Canal was nationalised; the Foreign Compensation Act 1950 said that its
determination of a claim "shall not be called into question in any court of law". PP
sought to challenge the Commission's decision for an error of law, and the House of
Lords said they were entitled to do so. The ouster clause prevented any challenge to a
valid determination, but did not protect everything which purported to be a
determination within the terms of the Act, but was in fact not a valid determination at all.
If you seek to show a determination to be a nullity, said Lord Reid, you are not

12
questioning the purported determination but maintaining that it does not exist as a
determination, and this was something that the statutory formula could not prohibit.
There would be no purpose, said Lord Wilberforce, in Parliament's defining by statute
the limit of a tribunal's powers if, because of a clause prohibiting review, it could exceed
those powers with no possibility of challenge.
Attorney-General v Ryan [1980] AC 718, PC (Bahamas)

The Bahamas Nationality Act 1973 said the Minister could refuse an application for
citizenship, without giving reasons, "for any sufficient reason of public policy", and that
his decision "shall not be subject to appeal or review in any court". R, who was eligible
for citizenship under the Constitution, applied and was refused. The Privy Council,
affirming the Court of Appeal of the Bahamas, said he was entitled to challenge this
decision. An ouster clause can only prevent the court from examining decisions made
within the jurisdiction: a breach of natural justice takes the decision-maker outside his
jurisdiction and so can be challenged.
R v Home Secretary ex p Fayed [1997] 1 All ER 228, CA

AA sought judicial review of the Home Secretary's refusal to allow them British
citizenship. The British Nationality Act 1981 said the Home Secretary's decision "shall
not be subject to appeal to, or review in, any court", but Lord Woolf MR and Phillips LJ
(Kennedy LJ dissenting) said the case was indistinguishable from Ryan. Parliament
could not have intended the Home Secretary to be enabled to act unfairly, particularly
since the Act had been passed after Ryan had been decided; it followed that the rules of
natural justice still applied and any breach of those rules would take the Home Secretary
ultra vires and hence subject to review notwithstanding the statute.
There are two particular areas, however, in which the courts have shown greater
willingness to follow the statute. First, a provision that a certificate issued by a certain
person shall be "conclusive evidence" of particular facts is generally respected, and as
long as the certificate has been issued by the proper person the courts will accept it as
conclusive even though it may be based on an error of law.
R v HM Treasury ex p Smedley [1985] 1 All ER 589, CA

The European Communities Act 1972 provides that an Order in Council declaring a
particular treaty to be a Community Treaty (thus giving it particular force) is to be
conclusive. On a challenge to a particular decision, the court upheld the validity of the
(proposed) Order, but in his judgment Slade LJ said obiter that such Orders were limited
to Community Treaties as defined in the Act, and that while the Order would indeed be
treated as conclusive in borderline cases it could not have been the intention of
Parliament to extend this immunity from challenge to a hypothetical Order that gave
Community status to a treaty which demonstrably had no connection with the EC
whatever.
R v Registrar of Companies ex p Central Bank of India [1986] 1 All ER 105, CA

The Companies Act 1948 provided that the Registrar's certificate of registration of any
charge "shall be conclusive evidence" that the requirements of registration were
complied with. AA sought unsuccessfully to challenge a decision of the Registrar. The
Court of Appeal said Parliament had expressly given the Registrar jurisdiction to decide
matters of law within a certain area, and that his certificate could not be challenged for

13
any error of fact or law, even though it might still be open to review for alleged fraud or
for patent error on its face.
The second special case in which the courts are willing to accept limits on their
jurisdiction is where the statute provides in place of judicial review a special procedure
and a limited period (commonly six weeks) in which a decision may be challenged, after
which it "shall not be questioned in any legal proceedings whatsoever". The statute may
also specify the grounds on which the challenge may be made, for example that the order
is not within the powers granted by the Act, or that the procedural requirements of the
Act have not been complied with and the applicant has been substantially prejudiced
thereby. Since the grounds of challenge are usually very similar to those of AJR, the
courts are ready to accept the exclusion of review and to follow the statutory forms as
long as they do not purport to protect an abuse of power.
R v Secretary of State for the Environment ex p Ostler [1976] 3 All ER 90, CA

A resident sought to challenge a decision to build a new ring road, on the grounds that
secret assurances had been given to other residents; he had not entered an appeal within
the six weeks allowed by statute because he had only just become aware of these secret
assurances. The Court of Appeal said there was no jurisdiction to hear his application
even though it was based on bad faith. A time limit is to be treated differently from a
complete ouster, said Lord Denning MR, since it does still allow access to the courts
even if under restricted conditions. The decision challenged was an administrative rather
than a judicial one, and so it was right that the general public interest should be taken
into account. Moreover, the purported determination in Anisminic had been ultra vires
and could not in any circumstances have been valid, but here the order challenged would
be valid as long as it had been properly made.
[Lord Denning later admitted that he was heavily influenced by the fact that the authority
had already started to build the road in question and that there was a public interest in
speedy completion. Ostler's complaint was subsequently referred to the Ombudsman,
who criticised the Department's handling of the affair and led them to make a suitable ex
gratia payment by way of compensation.]
GROUNDS OF REVIEW
According to Lord Diplock in the GCHQ case, administrative action is subject to control
by judicial review under three heads:
 illegality, usually where the decision-maker has exceeded his legal powers;
 irrationality, where the decision-maker has acted wholly unreasonably; and
 procedural impropriety, where the decision-maker has failed in his duty to act fairly
or in accordance with some statutory procedure.
ILLEGALITY AND ULTRA VIRES
The oldest-established ground of judicial review is that a decision-maker has acted ultra
vires, that is, beyond the powers given him by Parliament or allowed by common law.

14
R v Miall [1992] 3 All ER 153, CA

D was committed for trial at the Crown Court on charges of conspiring to pervert the
course of justice, driving while disqualified and driving while intoxicated. He appealed
against his conviction on the grounds that driving while intoxicated is a summary
offence, making the magistrates' decision on that charge ultra vires. The Court of Appeal
agreed, and having reconstituted itself as a Divisional Court, quashed the conviction on
that count.
R v Secretary of State for Social Security ex p B [1996] 4 All ER 385, CA

An asylum-seeker B sought judicial review of Regulations withdrawing all social
security benefits from those who sought asylum after having been admitted to the UK,
rather than at the moment of entry. Reversing the Divisional Court and granting a
declaration that the Regulations in question were ultra vires, notwithstanding their
approval by Parliament, Simon Brown and Waite LJJ said subordinate legislation must
not only remain within the powers granted by the enabling Act, but must be consistent
with any other primary legislation. The Asylum and Immigration Appeals Act 1993
expressly granted asylum seekers a right to seek asylum (and to appeal against a refusal);
Regulations effectively depriving them of any means of support for months or years
would make it impossible for them to exercise that right, and must consequently be
invalid. (The policy contained in the invalid Regulations was subsequently enacted in
statute.)
Judges sometimes refer to the supposed "intention of Parliament" to hold that the powers
apparently granted are less extensive than they seem to be. Sometimes this is really no
more than an excuse to overturn a decision the judge thinks is bad, but sometimes it is
clearly correct.
Congreve v Home Office [1976] 1 All ER 697, CA

The Home Secretary has statutory power to cancel television licences, and purported to
exercise this power to cancel the licences of P and others who had deliberately obtained
them before an increase in the licence fee took effect. Reversing Phillips J, the Court of
Appeal granted a declaration to the effect that this was a clear misuse of the power: it
had been given to enable the Home Secretary to prevent improper use of broadcasting
equipment, not so that he could increase revenue by seeking to punish those who had
acted quite lawfully.
R v Lord Chancellor ex p Witham [1997] 2 All ER 779, DC

Acting under s.130 of the Supreme Court Act 1981, the Lord Chancellor introduced new
(higher) charges for issuing writs and simultaneously withdrew fee remission for those
on low incomes. The decision was challenged by A, who sought to issue a writ for
defamation (for which no legal aid is available) but claimed the £500 fixed fee
effectively denied him access to the courts. The Divisional Court granted certiorari to
quash the Lord Chancellor's order insofar as it prohibited all exemptions even in
exceptional cases. Laws J said it would take a statutory enactment in the clearest
possible terms to persuade the court that Parliament had intended to deprive a citizen of
his constitutional right of access to the courts. In acting so as to take away this right, the
Lord Chancellor had acted ultra vires.
R v Home Secretary ex p Jammeh (1997) Times 11/9/97, Owen J

15
Asylum seekers AA (in accordance with a general policy) were refused permission to
look for paid work while awiting the outcome of their appeals against refusal of political
asylum. The judge granted AA's application for judicial review and required the Home
Secretary to reconsider that policy. Given the absence of social security benefits (see
above), the policy effectively made it impossible for AA to remain in the country and in
touch with their legal advisors pending the outcome of their appeal: this was so
draconian as to be outside the Minister's powers, and was irrational too.
A number of statutes grant powers in terms such as "... if the authority is satisfied ..." or
"... if it appears to the Minister ...", and clauses such as these have not surprisingly been
the subject of much litigation.
Secretary of State for Education v Tameside MBC [1976] 3 All ER 665, HL

The Education Act 1944 gave the Minister power to give directions to a local education
authority "if he is satisfied" that the authority have acted or are proposing to act
unreasonably. Following a change of control at the local elections, DD abandoned plans
to introduce comprehensive education and decided instead to retain the existing selective
system. The Minister purported to exercise these powers, but the Court of Appeal and
House of Lords said he was not entitled to do so. If a judgment requires the existence of
some facts before it can be made, said Lord Wilberforce, then although the evaluation of
those facts is for the Minister alone, the court can still enquire whether those facts exist
and have been taken into account, and other irrelevant facts not taken into account, and
the judgment then based on a proper self-direction. Here there were no facts to support
an opinion that DD were proposing to act unreasonably in a Wednesbury sense (see
below), so the Minister's belief was not well-founded.
Inland Revenue v Rossminster [1980] 1 All ER 80, HL

Various Finance Acts gave power to an Inland Revenue official to seize items "which he
has reasonable cause to believe may be required as evidence". Revenue officers PP
seized large quantities of documents from a company DD. The House of Lords upheld
PP on the facts, but said the "reasonable cause" on which the officer relies must actually
exist: a mere honest belief in its existence would not be sufficient.
Where a person or body is given power to determine individual cases (e.g. by granting
licences), the administrative discretion implicit in the exercise of that power must not be
fettered by the adoption of an excessively rigid policy. That is not to say that a policy is
inherently unlawful - on the contrary, it may be positively desirable to ensure reasonable
consistency and fairness in the decision-making - but the decision-maker's mind must
remain open to persuasion in individual cases.
R v Port of London Authority ex p Kynoch [1919] 1 KB 176, CA

AA were refused a licence to establish a dry dock, in pursuance of RR's policy of not
granting licences for work of a kind they performed themselves. Refusing judicial
review, Banks LJ said it would be unlawful to adopt and apply such a policy without
giving applicants any opportunity to put forward a case for individual consideration, but
it was lawful for RR to say they would apply a policy unless persuaded to make an
exception.
Lavender v Minister of Housing [1970] 3 All ER 871, Wills J

16
D had the statutory duty of considering applications for permission to extract gravel. He
refused such an application by P, and said it was his policy to refuse any application that
was opposed by the Minister of Agriculture. Quashing the refusal, the judge said D's
rigid adoption of such a policy unlawfully fettered his exercise of his statutory
discretion.
R v Southwark LBC ex p Udu (1995) Times 30/10/95, CA

A student A applied for a discretionary grant to continue his studies at the College of
Law; DD refused in line with their policy of not funding study at private colleges. A's
application for judicial review failed: DD were entitled to adopt such a policy so long as
it was rational and sufficiently flexible to take account of exceptional cases.
A person to whom power is delegated cannot generally delegate that power to anyone
else unless expressly authorised so to do.
Barnard v National Dock Labour Board [1953] 1 All ER 1113, CA

Under the Dock Workers (Regulation of Employment) Order 1947 the Board DD had
certain discliplinary powers, the exercise of which they were expressly authorised to
delegate to local boards. The London Board further delegated the exercise of those
powers to a Port Manager, who suspended PP for refusing to obey a lawful order.
Quashing the suspension, Denning LJ said the second delegation was ultra vires and the
manager's decision was therefore a nullity.
Lavender v Minister of Housing [1970] 3 All ER 871, Wills J

The facts are given above. The judge quashed D's refusal of P's application for a licence
to extract gravel; by always following the opinion of the Minister of Agriculture D had
effectively delegated his power of decision, which he was not authorised to do.
However, the law recognises some delegation of decision-making as a practical

necessity, particularly in the context of national and local government.
Carltona v Commissioners of Works [1943] 2 All ER 560, CA

The Commissioners (whose effective powers were statutorily vested in the Minister)
were authorised to requisition property. Property belonging to PP was purportedly
requisitioned under these powers, but it emerged that the decision had actually been
made by a senior civil servant and not by the Minister. Refusing a declaration of
invalidity, Lord Greene MR said so many functions are given to Ministers that they
cannot possibly attend to them all personally. Constitutionally, the official's decision is
the Minister's decision, for which the Minister is answerable to Parliament.
Oladehinde v Home Secretary [1990] 3 All ER 393, HL

The Home Secretary delegated to Immigration Inspectors certain of his powers of
deportation under the Immigration Act 1971. The Divisional Court said this delegation
was unlawful: if Parliament had wanted the decisions made by officials it would have
said so. The Court of Appeal and the House of Lords disagreed: noting the absence of
any statutory prohibition and approving Carltona, Lord Griffiths said the court would
have regard to the seniority of the officials to whom powers were delegated and any
possible conflict with their other duties. In the instant case, the powers had been validly
delegated and properly exercised.

17
Local Government Act 1972 s.101(1)

... a local authority may arrange for the discharge of any of their functions [with certain
exceptions] by a committee, a sub-committee, or an officer of the authority ...
A decision-maker should consider all the relevant issues, and only those, when making
his decision. If he fails to consider something he should have considered, or considers
things he should not have considered, either of those errors may take him outside his
powers and render his decision ultra vires.
R v Secretary of State for Education ex p Avon CC [1991] 1 All ER 282, CA

The council AA applied successfully for certiorari to quash the Secretary of State's
decision to allow Beechen Cliff School to opt out of LEA control, thus destroying AA's
reorganisation plans. Hutchinson J and the Court of Appeal accepted AA's submission
that the Secretary in making his decision had not considered its effects on the children
attending the other schools in Bath (or at least had given no evidence of having done so),
rendering the decision irrational and void.
R v Somerset CC ex p Fewings [1995] 3 All ER 20, CA

A local authority voted to ban stag hunting on land which it owned, and officers of the
hunt sought judicial review of this decision. Laws J and the Court of Appeal said the
majority of councillors in voting for the ban had been swayed by irrelevant factors
(namely, their belief that hunting was immoral); they should have considered only
whether the proposed measure would be for the benefit or improvement of the area. The
decision should therefore be quashed.
R v Camden LBC ex p H (a minor) [1996] ELR 360, CA

Two boys A and B were excluded from school for an attack on H, but the governors'
panel decided they should be readmitted. H was granted certiorari to quash the decision
and the matter was remitted for rehearing by a different panel. The original panel had
considered the effects on A and B of confirming the exclusion, but had not considered
the effect on H and other pupils of reversing it, neither had they considered evidence
indicating that the attack was deliberate.
A power given by Parliament (or existing under the prerogative) for one purpose must
not be used for another purpose, nor to frustrate the intentions of Parliament.
Roberts v Hopwood [1925] AC 578, HL

Poplar Borough Council had been given statutory power to pay such wages as it thought
fit, and decided upon a minimum wage of £4 pw for all its staff: this was well above the
"going rate" at the time, especially for women. The House of Lords said that the Council
was acting unlawfully by considering irrelevant factors such as social policy: its power
was to pay wages and not to make gifts.
Congreve v Home Office [1976] 1 All ER 697, CA

The Home Secretary has statutory power to cancel television licences, and purported to
exercise this power to cancel the licences of P and others who had deliberately obtained
them before an increase in the licence fee took effect. Reversing Phillips J, the Court of
Appeal granted a declaration to the effect that this was a clear misuse of the power: it
had been given to enable the Home Secretary to prevent improper use of broadcasting

18
equipment, not so that he could increase revenue by seeking to punish those who had
acted quite lawfully.
Wheeler v Leicester CC [1985] 2 All ER 1106, HL

Leicester RUFC played on a ground owned by DD, who banned them from using the
ground for twelve months because three Club members had taken part in an unofficial
tour of South Africa and the Club, while condemning apartheid, declined to condemn the
members' action. The House of Lords, reversing the Court of Appeal, acknowledged that
the Council had a general duty to promote racial harmony, but said this decision was
based on a desire to punish the Club when it had done no wrong, and was therefore
unlawful.
R v Derbyshire CC ex p Times Supplements (1990) Times 19/7/90, DC

AA published a number of articles criticising the activities of the Council Leader and the
controlling party. The Council RR decided not to place any advertisements in AA's
publications, including the Times Education Supplement. Granting certiorari to quash
the decision, Watkins LJ said the Council had been motivated by bad faith and
vindictiveness; their purported educational reasons for their decision were implausible,
and the decision had evidently been made in bad faith.
R v Home Secretary ex p Fire Brigades Union [1995] 2 All ER 244, HL

The Criminal Justice Act 1988 codified the pre-existing Criminal Injuries Compensation
Scheme, but said the relevant provisions should come into effect "on such day as the
Home Secretary may appoint". Four years later, having not yet made the necessary
order, the Home Secretary announced a new scheme based on different principles, and
said the scheme in the 1988 Act would not now be implemented. The House of Lords
said this was clearly contrary to the wishes of Parliament as expressed in the 1988 Act.
The Home Secretary's decision never to exercise the statutory power granted by
Parliament was an abuse of the prerogative and hence unlawful.
Porter v Magill [2002] 1 All ER 465, HL

Westminster City Council adopted a policy of selling council houses in marginal wards,
hoping to replace Labour-voting tenants with Conservative-voting owner-occupiers. The
District Auditor found this policy unlawful and imposed a surcharge of £26m on the
leader and deputy leader of the majority party, and the House of Lords (reversing the
Court of Appeal) affirmed that decision. Lord Bingham said powers conferred on a local
authority are to be exercised only for the public purpose for which they are conferred:
their use for any other purpose (in this case, for party advantage) amounts to misconduct.
There is no misconduct where councillors exercise their powers for their proper
purposes, hoping thereby to earn the gratitude of the electorate, but the exercise of power
principally to promote the electoral advantage of one party is unlawful.
IRRATIONALITY AND UNREASONABLENESS
It is very rarely that unreasonableness per se is given as the reason for quashing a
decision, chiefly because the test is so stringent. The courts do not substitute their own
judgment for that of the statutory decision-maker, and as long as the decision-maker has

19
followed the proper procedure, considered the proper issues in good faith and made a
decision which is not manifestly absurd it is usually safe.
Associated Provincial Picture Houses v Wednesbury Corporation [1947] 2 All ER 680,

CA
The corporation DD granted a cinema licence for Sunday opening on condition that no
children under 15 should be admitted on that day. The cinema owners sought a ruling
that this condition was ultra vires, but the Court of Appeal upheld the judge's refusal of
such an order. Lord Greene MR said the possible grounds of challenge to an
administrative decision were bad faith, dishonesty, unreasonableness, attention given to
extraneous circumstances, disregard of public policy and things like that; it might be
possible that although the authority have kept within the four corners of the matters
which they ought to consider, they may nevertheless come to a conclusion so
unreasonable that no reasonable authority could ever come to it. But to prove a case of
that kind would require something overwhelming ... it is not what the court considers
unreasonable - that is a different thing altogether.
[Note the circular argument: to determine that X has acted unreasonably, the court must
be satisfied that no reasonable authority could have so acted, and since X has so acted
this depends on the assumption that X is not a reasonable authority!]
Backhouse v Lambeth LBC (1972) Times 14/10/72, Melford Stevenson J

The government required local councils to increase the average council house rent by a
certain amount: DD did not want to increase rents generally, and therefore raised the
notional rent on one empty house from £400 to £18 000 pa; P on behalf of other tenants
then sought a declaration that this was lawful. The judge refused the declaration sought:
the decision was unreasonable and therefore ultra vires, since the Council had statutory
power "to make a reasonable charge".
Lonrho v Secretary of State for Trade and Industry [1989] 2 All ER 609, HL
PP claimed the Minister had acted unreasonably in refusing to refer a takeover of House
of Fraser to the Monopolies and Mergers Commission, and in refusing to publish an
inspector's report into the affairs of the company. The Court of Appeal and the House of
Lords said Parliament had given these decisions to the Minister, and as long as he had
some grounds for believing that referral and publication would not be in the public
interest, it was not for the courts to substitute their decision for his.
Hammersmith LBC v Secretary of State for the Environment [1990] 3 All ER 589, HL
Twenty-one local councils sought to challenge the Minister's decision to limit their
community charge. The courts agreed the Wednesbury test was applicable, but said the
question was whether the Minister's decision was irrational in the sense of being
perverse, not whether it was sensible or politically desirable. On the other hand, the
Minister's statutory power to designate for charge-capping any authority whose charge
he considered "excessive" did not require him to impose Wednesbury standards but
merely to make a decision taking into account relevant factors. It was a very wide power,
but it was a power expressly granted to him by Parliament.
There are a few cases, however, where decisions have been quashed for irrationality.
West Glamorgan CC v Rafferty, [1987] 1 All ER 1005, CA

20
The local authority had not yet fully performed its statutory duty to provide camping
sites for gypsies, but sought nevertheless to evict from Council land a group of gypsies
camping there illegally. The Court of Appeal said the decision to institute eviction
proceedings was one that no reasonable Council would have taken in the circumstances,
bearing in mind its own default, and was consequently void for unreasonableness, but
drew back from declaring that any decision to evict would necessarily be void.
R v Barnet LBC ex p Johnson (1990) 3 Admin LR 149, CA

The Council RR granted permission for a community festival on conditions that it was
not to be used in connection with any political purpose, and that no organisation that
sought to promote or oppose any political party or cause was to be permitted to take part.
The Divisional Court and the Court of Appeal was so wide as to be Wednesbury
unreasonable, even if (which was doubtful) it was within the Council's statutory powers
to impose.
R v Home Secretary ex p Norney (1995) 7 Admin LR 861, Dyson J

Discretionary life prisoners AA sought review of the Home Secretary's decision not to
invite the Parole Board to consider their cases until after the "tariff period" had expired,
thus effectively delaying by some six months their earliest possible release. The judge
refused to order the Parole Board to expedite such cases, but granted a declaration that
the Home Secretary was acting unreasonably in the Wednesbury sense, flouting the
principles of common law and the European Convention on Human Rights, and
producing manifestly unjust results.
R v Newham LBC ex p Sacupima (2000) Times 12/1/00, Dyson J

The Council had a statutory duty to provide temporary housing for homeless families,
and decided to fulfil this duty by sending them to bed-and-breakfast accommodation in
various seaside towns as much as 100 miles from London; exceptions were made only
where a person's health would be seriously endangered by such a move. The judge said
the Council's rigid policy, which took no account of the effect on an adult person's
employment, a child's education, or a person's ongoing medical care, was Wednesbury
unreasonable, and made a declaration accordingly.
R v Home Secretary ex p Tawfick (2000) Times 5/12/2000, DC

A man T was convicted of conspiracy to steal after a trial in which the judge had several
times cast doubt on his integrity in open court in front of the jury. His conviction was
subsequently quashed by the Court of Appeal, but the Home Secretary refused
compensation for the period during which he had been wrongly imprisoned. On T's
application for judicial review, the Court said the Home Secretary's decision (that the
trial judge's behaviour did not amount to "exceptional circumstances" justifying
compensation) was irrational and should be quashed.
R (Rogers) v Swindon NHS Trust [2006] EWCA Civ 392

A woman with early-stage breast cancer was prescribed Herceptin by her doctor, but the
NHS Trust refused to provide this non-approved drug because (it said) her case was not
exceptional. The Court of Appeal said this policy was irrational - the Trust were unable
to put forward any clear reasons for providing the drug for some patients and not for
others - and therefore unlawful.
R (Bancoult) v Foreign Secretary [2006] EWHC Admin 1038

21
Several Chagossians formerly resident in the British Indian Ocean Territory (a group of
about fifty low-lying islands containing important US defence installations) sought to
challenge two Orders in Council (the Constitution Order and the Immigration Order)
depriving them of any right of abode in the islands and making it an offence for anyone
to be on the islands without a permit. Hooper LJ said that the exercise of the royal
prerogative is in principle susceptible to judicial review, and that the Orders' total
disregard of the interests of the Chagossians (in favour of the defence interests of the
United Kingdom and the United States of America) made them irrational and thus
unlawful so far as BIOT was concerned. A declaration should be made accordingly.
Proportionality is a European (originally German) concept coming slowly into

English law: Lord Diplock referred to it in his judgment in the GCHQ case and
suggested that it might in due course join illegality, irrationality and procedural
impropriety as a ground of judicial review. For the time being, however, it is best
considered within the context of reasonableness. Its main idea is that any penalty
imposed must be proportionate to the offence, but it goes well beyond the
criminal law and requires protective measures generally to be proportionate to the
evil they are seeking to avoid.
R v Barnsley MBC ex p Hook [1976] 3 All ER 452, CA

A market trader A was deprived of his trader's licence for urinating in a side street. The
decision was quashed on other grounds (see below), but the Court of Appeal said the
punishment imposed was altogether excessive and out of proportion to the occasion, and
should be quashed on that ground as well.
R v St Albans Crown Court ex p Cinnamond [1981] 1 All ER 802, DC

A man A was convicted by the magistrates of driving with excess alcohol and careless
driving, and was disqualified for eighteen months and three months respectively on the
two counts. On appeal, the Crown Court quashed the first conviction on a technicality,
but substituted eighteen months' disqualification for three months' on the second. The
Divisional Court said that although this was within the statutory range of sentences for
careless driving, there was so great a disparity from the normal range as to amount to "an
error of law, if not an excess of jurisdiction", and accordingly reduced it to six months.
It is hard to know whether or not a decision is reasonable (or for that matter, whether the
decision-maker considered all the relevant factors and no others) unless reasons for the
decision are given. As little as ten years ago textbooks could assert that there was no
general common law duty to give reasons (though there were exceptions), but recent
developments suggest that the duty to give reasons is now fairly general.
Padfield v Minister of Agriculture [1968] 1 All ER 694, HL

Milk producers PP complained to the Minister about the regional price structure, and
asked him to refer the complaint to the committee of investigation. The Minister refused,
giving only superficial reasons such as that he might be expected to take action if the
committee upheld the complaint. The House of Lords said the Minister should be
required to consider the complaint properly: the reasons he gave were not good reasons
in law, and if he gave no good reasons the court might reasonably infer that he had none
and quash his decision as ultra vires. [The Minister then reconsidered the complaint but
decided again, considering all the relevant factors, that it would not be appropriate to
refer the matter to the committee.]

22
R v Civil Service Appeal Board ex p Cunningham [1991] 4 All ER 310, CA

A former prison officer S sought review of the Appeal Board's decision to award him
only £6500 compensation, rather than the £15 000 he sought, for his unfair dismissal. In
the Divisional Court, Otton J said the Board had no statutory duty to give reasons for the
compensation it awarded, but it could be required to do so and in this case should do so.
The weight of judicial authority was not yet enough to establish a general duty to give
reasons as a matter of administrative fairness, but there was nothing in this case to make
it impracticable or undesirable for the Board to do so, and he would so order. However,
he was not prepared to draw the inference in the absence of reasons that the Board had
been acting without reasons or by reference to irrelevant factors, since the circumstantial
evidence did not point that way. Affirming this decision on appeal, Lord Donaldson MR
said a judicial body such as the Board had a duty to give reasons for its decision; the
parties were entitled to know the issues to which it had addressed its mind and to be
assured that it had acted lawfully.
Doody v Home Secretary [1993] 3 All ER 92, HL

PP were prisoners serving life sentences for murder, and sought to challenge the Home
Secretary's decisions as to their earliest release dates. The Divisional Court dismissed
their applications, but the Court of Appeal allowed them in part, and the House of Lords
went a little further. The Home Secretary was entitled to depart from the judicial
recommendations, they said, but the prisoner was entitled to know what those
recommendations had been, to make written representations to the Home Secretary
before he made his decision, and to be told the reasons for any departure from the
recommendations.
R v Lambeth LBC ex p Walters (1993) 26 HLR 170, Blom-Cooper QC

The mother of a severely disabled child sought review of the Council's refusal to offer
her accommodation that she considered suitable for her son's needs. The Council said the
accommodation it had offered was suitable, but did not refer to the boy's medical needs
nor give any other reasons to support its decision. Blom-Cooper QC, sitting as a Deputy
High Court Judge, said English law had now reached a point at which there was a duty to
give reasons whenever the decision-making process involved a duty to act fairly, except
possibly where giving reasons would harm national security or unintentionally disclose
confidential information or invade privacy. How could the applicant mount an appeal
against the Council's decision if she did not know what was being said to contradict her
doctor's unequivocal support for her claim that the accommodation offered was
inadequate?
R v Ministry of Defence ex p Murray (1997) Times 17/12/97, DC

A long-serving soldier A pled guilty to wounding a colleague, but claimed he was
suffering the side-effects of an anti-malarial drug. The court-martial rejected A's
explanation and sentenced him to a period of imprisonment, which would lead
automatically to his dismissal from the service and loss of pension rights, but refused to
give any reasons for its decision. The Divisional Court granted certiorari to quash the
court-martial's decision; Hooper J said fairness required them in this case to give reasons
for rejecting A's explanation and for their choice of sentence.
Stefan v General Medical Council (1999) Times 11/3/99, PC

The GMC's Health Committee suspended a doctor A because of a medical condition, but
refused to state reasons for its decision. Allowing A's appeal, the Privy Council said this

23
was a case in which there was a common law duty to give reasons. There was no right of
appeal from the committee's decision (except on a point of law), the committee's
functions were akin to those of a court, and the issue was one of considerable importance
for the appellant. The reasons given need not be lengthy - in many cases a few sentences
would be enough - but they should be such as to tell the parties in broad terms why the
decision was reached. Lord Clyde said the trend of the law had been towards an
increased recognition of a duty upon decision-makers of many kinds to give reasons, and
it is arguable that although the established common-law position is that there is no
general duty, what were once seen as exceptions to this rule might now be regarded as
the norm.
Gupta v General Medical Council [2002] ICR 785, PC

Dismissing a doctor's appeal against her being struck off the register (for allowing her
husband to practise in her surgery after he had previously been struck off), the Board
said there is no general duty on the GMC to give reasons for its decisions on matters of
fact, particularly where those decisions depend essentially on the credibility of
conflicting testimony.
PROCEDURAL IMPROPRIETY
A complaint of procedural impropriety can arise in two ways. The decision-maker may
not have followed a statutory procedure laid down in the enabling act, or may not have
observed the rules of natural justice. Either of these errors may render the decision ultra
vires, though in the first case this depends on whether the procedure in question is seen
as mandatory or merely directory. The distinction turns in part upon the wording of the
statute and the specification (or not) of the consequences of any breach, but to a large
extent it comes down to judicial discretion.
Howard v Bodington (1877) 2 PD 203, Arches

Parishioners complained to the bishop about their vicar's Anglo-Catholic practices. The
Public Worship Regulation Act 1874 stated that the Bishop should give a copy of any
such complaint to the priest in question within 21 days of receiving it, but in fact nearly
eight weeks elapsed before the Bishop acted. In the Court of Arches, Lord Penzance said
this provision was imperative (i.e. mandatory), and its breach made the subsequent
proceedings void.
Statutory Instruments Act 1946 s.3(2)

In any proceedings against any person for an offence consisting of a contravention of
any ... statutory instrument, it shall be a defence to prove that the instrument had not
been issued by HMSO at the date of the alleged contravention unless it is proved that at
that date reasonable steps had been taken for the purpose of bringing the purport of the
instrument to the notice of the public, or of persons likely to be affected by it, or of the
person charged.
Bradbury v Enfield LBC [1967] 3 All ER 434, CA

The local authority DD anticipated by some months Ministerial approval of a
reorganisation plan for eight schools. Goff J conceded that DD were in breach of the
statutory rules providing that they "shall not do anything" prior to such approval, but

24
refused to grant relief because of the major inconvenience that would be caused.
However, the Court of Appeal granted the injunction sought: Lord Denning MR agreed
there might well be considerable upset for a number of people, but thought it more
important to uphold the rule of law.
Agricultural Training Board v Aylesbury Mushrooms [1972] 1 All ER 280, Donaldson

J
Legislation required the Minister to consult relevant bodies before making Orders of a
certain type, and through a clerical error there was no consultation with the Mushroom
Growers' Association (who were conceded to be a "relevant body" for this purpose). The
court ruled that the consultation requirement was mandatory, and that its breach made
the Order invalid as far as mushroom growers were concerned.
Grunwick Processing v ACAS [1978] 1 All ER 338, HL

ACAS had statutory powers to recommend recognition of a trade union, but only after
consulting all relevant parties. In this case, the employer refused to supply the names and
addresses of his workers and so made it impossible for ACAS to consult them. The
House of Lords said this was a mandatory provision: the statute did not say "as far as is
practicable” and their failure to consult properly made ACAS's recommendation invalid.
The concept of "legitimate expectation" seems to have been discovered by Lord Denning
MR in Schmidt v Home Secretary [1969] 1 All ER 904, though in that case it was held
that P had no such expectation. A legitimate expectation generally relates to a procedure
rather than a result; it is not the same as a legal right, but is something more than a mere
hope, and may arise in various ways.
R v Liverpool Corporation ex p Liverpool Taxi Owners' Association [1972] 2 All ER

589, CA
RR planned to increase the number of taxi licences in the city, but gave repeated
assurances that no action would be taken until interested parties including AA had had
an opportunity of making representations. In due course, however, RR passed the
necessary resolutions without consultation, and AA sought judicial review. The Court of
Appeal said RR's action was not ultra vires, but made an order prohibiting
implementation of the resolution until the Association had had a chance to make
representations. The court (which included Lord Denning MR) did not use the phrase
"legitimate expectation", but said the duty to act fairly meant RR should be ready to hear
persons whose interests were affected; further, RR could not disregard the undertakings
they had given.
McInnes v Onslow Fane [1978] 3 All ER 211, Megarry VC

A former boxing promoter P applied six times for a manager's licence and was refused
each time; he sought a declaration that the BBBC had acted in breach of natural justice
by refusing him an oral hearing and not giving him details of the case against him.
Dismissing his application, the judge distinguished between forfeiture cases where a
decision takes away an existing right or position, application cases where the decision
merely refuses some right or position the applicant is seeking, and an intermediate
category of expectation cases differing from application cases in that the applicant has a
legitimate expectation from what has already happened that his application will be
granted, as for example where an existing licence-holder applies for a renewal. Since P
had never previously held a manager's licence, and his previous trainer's and promoter's

25
licences had been withdrawn for misbehaviour, his case fell into the application
category. The BBBC were still under a duty to act fairly, but in the circumstances this
meant only that they should consider P's application without bias or caprice; they were
not obliged to give reasons or grant an oral hearing.
Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935,
HL
The government announced that in future workers at GCHQ would not be permitted to
join trade unions, and that those who were already members would be required to resign.
The main unions sought to challenge this decision on the grounds (inter alia) that they
had not been consulted. The House of Lords said the unions had a legitimate expectation
that they would be consulted before any changes were made to their members' conditions
of service, arising not from any express promise but from the practice of many years.
R v Home Secretary ex p Khan [1985] 1 All ER 40, CA

A Home Office circular giving guidance to persons wishing to adopt a child from abroad
indicated that the Home Secretary would exercise his discretion to allow this provided
certain criteria were met. A couple AA who wished to adopt a relative's child then in
Pakistan applied to adopt him and bring him to the UK, but their application was refused
by the Home Secretary, applying criteria different from those in the circular. AA sought
judicial review, and the Court of Appeal (Watkins LJ dissenting) granted certiorari to
quash the refusal of entry clearance. The circular afforded K a reasonable expectation
that those criteria would be applied; the Home Secretary could of course change the
policy, but only after giving notice.
R v Brent LBC ex p MacDonagh (1989) 21 HLR 494, Roch J

A group of gypsies camping on an unauthorised site had been told by letter that they
would not be evicted until the local authority found them a suitable alternative site. The
council subsequently took steps to evict them, and they sought judicial review of the
decision. The judge said AA had a legitimate expectation that the undertaking in the
letter would be honoured, and that the Council would not change its policy without at
least giving them a chance to make representations.
R v Enfield LBC ex p Unwin (1989) 46 BLR 1, DC

A building firm AA had been on the Council's approved list for some years, but when a
new list was drawn up AA were excluded. The Divisional Court, granting certiorari to
quash the decision, said AA had a legitimate expectation that the Council would give
them a chance to answer allegations made against them before removing them from the
list of approved contractors.
The rules of natural justice (often described nowadays as a "duty to act fairly") are not
rigorously defined, and depend on the circumstances of each case. In general, however,
the two basic principles of natural justice are defined by two Latin tags: nemo iudex in
causa sua (no one should be a judge in his own cause), and audi alteram partem (hear
both sides). A breach of either of these principles in a situation where they should be
applied may lead to a decision's being quashed as unfair.
Ridge v Baldwin [1963] 2 All ER 66, HL

A former Chief Constable, acquitted of corruption but criticised by the trial judge,
sought judicial review of the watch committee's subsequent decision to dismiss him,

26
claiming a breach of natural justice in that he was not invited to attend the relevant
meeting nor given an opportunity to put his case. The House of Lords granted certiorari
to quash the committee's decision. Lord Reid said where a body has a duty to determine
what the rights of a subject should be, it generally has ipso facto a duty to act judicially.
Re HK (an infant) [1967] 1 All ER 226, DC

A Pakistani youth HK, who claimed to be only 15, sought judicial review of an
immigration officer's decision that he was over 16 and so not entitled to enter the UK
with his father. The Divisional Court refused habeas corpus and certiorari, but said
obiter that an immigration officer, although exercising administrative rather than judicial
powers, was bound to act impartially and fairly, in accordance with the rules of natural
justice.
Breen v Amalgamated Engineering Union [1971] 1 All ER 1148, CA

P's workmates elected him shop steward, but the union's district committee refused to
confirm the election. The Court of Appeal said a domestic body set up by the rules of a
powerful association such as a trade union, which is given a discretion by those rules,
must exercise the discretion fairly even though its functions are administrative rather
than judicial or quasi-judicial. The district committee were therefore required to observe
the rules of natural justice in exercising their discretion to refuse approval of P as a shop
steward. However, it appeared from the evidence that they had in fact done so, and their
decision should be allowed to stand.
R v Norfolk CC ex p M [1989] 2 All ER 359, Waite J

A 13-year-old girl accused a plumber M of indecently assaulting her; M denied this and
the police decided there was no evidence to support a prosecution, but the local authority
RR entered M's name on a register of child abusers and informed M's employer. M
sought judicial review, and the judge granted certiorari to quash RR's decision. To enter
a person's name on the register affected his rights - he was unable to compete for
employment on equal terms with others, and his public reputation was at serious risk - so
a case conference, although administrative rather than judicial, was required to act fairly
when making such a decision. RR had acted unfairly, unreasonably and in breach of
natural justice by failing to consider whether the accusation might be fantasy, deciding
M was guilty after only cursory investigation, denying M the opportunity of objecting,
making no distinction in the register between known and suspected abusers, and putting
secret pressure on M's employer.
The first principle of natural justice is that no one should be a judge in his own cause,
and that any suspicion of bias must be avoided. At its most basic level, this disqualifies
anyone from making a decision who has a pecuniary interest in the outcome of the
decision-making process, or whose conduct suggests that his mind is already made up.
Dimes v Grand Junction Canal (1852) 10 ER 301, HL

The canal company RR brought a case in equity against a landowner A; the Vice-
Chancellor granted RR's request and Lord Cottenham LC upheld the decision on appeal.
A then discovered that Lord Cottenham held a substantial block of shares in the canal
company and applied to have the Chancellor's decision set aside. The House of Lords
said that although there was no suggestion that the Lord Chancellor had in fact been
influenced by his interest in the company, no case should be decided by a judge with a

27
financial interest in the outcome. The Chancellor's orders were therefore set aside as
such, but those of the Vice-Chancellor (to the same effect) were confirmed.
R v Barnsley JJ ex p Barnsley LVA [1960] 2 All ER 703, CA

Barnsley Co-Op applied for and were granted an off-licence, but it later appeared that of
the seven justices who had dealt with the application, six were members of the Co-Op
Society and the seventh had a wife who was. The Divisional Court and Court of Appeal
said the validity of the licence was preserved by statutory provisions: the procedure had
been irregular, but there was no real likelihood of bias because the extent of the justices'
financial interest was so small. [This decision has now been confirmed by a provision of
the Licensing Act 1964, that a financial interest held by a Justice does not preclude his
sitting in licensing sessions nor invalidate any licence he might grant.]
R v Altrincham JJ ex p Pennington [1975] 2 All ER 78, DC

A greengrocer D was prosecuted for supplying short measure to various schools; the
chairman of the bench was a County alderman who sat on the Education Committee.
Granting certiorari to quash the conviction, Widgery CJ said that although a formal
connection between justice and prosecutor need not always disqualify the justice from
sitting, justices should always disqualify themselves (or at least invite the parties to
object) where they had an active interest in an organisation that was the victim of the
alleged offence.
R v Mulvihill [1990] 1 All ER 436, CA

D was convicted of conspiracy to rob seven banks and building societies, but appealed
on the grounds that the trial judge held 1650 shares in one of the banks involved.
Dismissing his appeal, the Court of Appeal said that where a decision-maker had no
direct pecuniary interest in the outcome, the question was whether a reasonable and fair-
minded person sitting in court and knowing the facts would reasonably suspect the
fairness of the trial. Since the judge was not the primary decision-maker, but merely
gave effect to the verdict of the jury, his position would not have given rise to any such
suspicion.
R v Inner West London Coroner ex p Dallaglio [1994] 4 All ER 139, CA

The coroner enquiring into the Marchioness disaster gave a press interview in which he
described a relative of one victim as "unhinged by grief" and others as "mentally
unwell". These and other relatives sought judicial review of the coroner's decision to
continue with the inquest, and the Court of Appeal granted their application. The
coroner's comments had been injudicious, insensitive and gratuitously insulting, and
gave rise to an appearance of bias.
Re Pinochet [1998] 4 All ER 897, HL; [1999] 1 All ER 577, HL

The House of Lords, reversing the Divisional Court, ruled 3-2 that A's position as a
former head of state did not confer immunity from extradition proceedings based on
allegations by a third country of torture and other violations of human rights. Amnesty
International was allowed to present an amicus curiae argument at this hearing, and it
subsequently emerged that Lord Hoffmann, one of the judges in the majority, had for
some years been a non-executive director of Amnesty International Charity. A sought to
set aside the Lords' judgment, and a panel of five different Law Lords allowed his
application. Lord Browne-Wilkinson said the fundamental principle is that a man must
not be a judge in his own cause: Lord Hoffman was so closely and actively associated
with one of the parties that he was disqualified from hearing the case regardless of

28
whether or not there was any actual appearance or risk of bias. This did not mean that
judges could never sit in cases involving charities they supported, but where the judge
was a director or senior officer of a charity that was party to a case, disqualification is
automatic subject to the possibility that the parties (having been fully informed) might
waive any objection.
Locabail v Bayfield Properties [2000] 1 All ER 65, CA

In five conjoined appeals, the Court of Appeal (Lord Bingham CJ, Lord Woolf MR and
Scott VC) laid down guidance as to the type of interest that might disqualify a judge,
magistrate or juror from hearing a particular case. In the context of automatic
disqualification (normally for a pecuniary interest), the question is not whether the judge
has some link with a party involved in a case before him but whether the outcome of that
case could, realistically, affect the judge's interest. We cannot conceive, said the Court,
of circumstances in which an objection could be soundly based on the religion, ethnic or
national origin, gender, age, class, means or sexual orientation of the judge, nor could an
objection be soundly based on the judge's social or educational or service or employment
background or history, nor on his political associations or membership of social or
sporting or charitable bodies.
R (Port Regis School) v North Dorset DC [2006] EWHC 742 (Admin)

The school sought to overturn a grant of planning permission to a third party, arguing
that the proposed development was (in part) for the benefit of the local freemasons, and
that two of the councillors involved in the decision were themselves freemasons (albeit
of a different lodge). Refusing judicial review, Newman J said a fair-minded observer,
informed of the true facts about freemasonry rather than its general reputation, would not
have thought there was any real possibility of apparent bias in the decision.
A number of cases have turned not on bias by the primary decision-maker, but on the
improper presence of outsiders when the decision was made.
Cooper v Wilson [1937] 2 All ER 726, CA

A police sergeant P was dismissed by the Chief Constable after complaints were
received against him, and the dismissal was confirmed by the Watch Committee.
Granting certiorari to quash the decision mainly on other grounds, the Court of Appeal
said there was a breach of natural justice in the Chief Constable's presence on the bench
(even though he did not vote) when the Watch Committee considered its decision.
R v Barnsley MBC ex p Hook [1976] 3 All ER 452, CA

A market trader P had run a stall for six years without complaint. One evening after the
market had closed, P was seen urinating in a side street and was reported to the market
manager M. M referred the matter to the Council's committee, which cancelled P's
licence and banned him from the market. P was allowed to put his case to a sub-
committee, which confirmed the ban; M was present with the sub-committee before,
while and after P put his case. The Court of Appeal granted certiorari to quash the
decision: the local authority was in breach of the rules of natural justice in hearing M's
evidence in P's absence, and in allowing M, who was in the position of a prosecutor, to
remain with them during their deliberations.
R v Birmingham JJ ex p Ahmed [1995] Crim LR 503, DC

29
A defendant A was granted certiorari to quash his convictions for deception and
handling. When the magistrates retired to consider their verdict, the clerk had (as usual)
retired with them without being invited to do so in open court; since there was no point
of law arising, this created a suspicion that he was taking part in deciding the verdict.
However, where statute requires that a decision shall be taken by a particular person, or
where there is no reasonable alternative, the rule against possible bias may be
overridden.
Wilkinson v Barking Corporation [1948] 1 All ER 564, CA

A local government officer P was dismissed, and a question arose as to his eligibility for
a pension. The Local Government Superannuation Act 1937 provided that decisions as to
certain matters were to be made in the first instance to the authority concerned, with an
appeal to the Minister of Health whose decision was final. In preliminary proceedings,
Asquith LJ remarked on the fact that the local authority and the Minister were required
by law to determine W's pension rights, even though each of them as a potential
contributor had a direct financial interest in the decision, but had no doubt as to the
validity of such a statutory provision.
Bromley LBC v Greater London Council [1982] 1 All ER 129, HL

The Labour-controlled Greater London Council implemented an election promise by
introducing a "Fares Fair" policy in which public transport fares were reduced by 25 per
cent and subsidised from the rates. A Conservative-controlled council sought certiorari
to quash this decision, claiming that the GLC had acted ultra vires. In the Court of
Appeal, Lord Denning MR remarked that all three members of the Court were interested
on all sides: all were fare-paying passengers on the tubes and buses, benefiting from the
reduction (or in his own case, from the free travel offered to senior citizens), and all were
Greater London ratepayers having to pay the increase in rates. However, no objection
had been made by either side to their hearing the case: any Court of Appeal would have
been in the same position.
The second great principle of natural justice is that an individual directly and particularly
affected by a decision should be able to put his case to the decision-maker (often in
person, though not necessarily) and should have it properly considered. He should be
allowed reasonable notice of any hearing or any deadline for written submissions, and
should be given details of the case he has to meet. He may be allowed to cross-examine
witnesses against him, and perhaps to call witnesses in his own support, and in
appropriate cases he should be allowed legal or other representation. The requirement is
a strong one, and the right to be heard (in an abstract sense) seems to apply even where
the ultimate decision seems almost certain.
R v Chief Constable of North Wales ex p Evans [1982] 3 All ER 141, HL

A probationary constable A was dismissed as unsuitable: he had married his uncle's
mistress, kept dogs against the rules in a council house, and generally followed a "hippy
lifestyle". The House of Lords ruled in his favour, saying the Chief Constable's power of
dismissal was limited to dismissal for cause, and must be exercised in accordance with
the rules of natural justice: E was entitled to a hearing no matter how obvious the
outcome might appear to be. However, the House refused certiorari or mandamus for
A's reinstatement, granting only a declaration that he had been unlawfully dismissed and
was entitled to compensation.

30
Jones v Welsh RFU (1997) Times 6/3/97, Ebsworth J; (1998) Times 6/1/98, CA
A professional rugby player P was granted an injunction against DD, who had suspended
him for four weeks after he had been sent off for fighting. DD's rules allowed the
disciplinary committee complete discretion over their own proceedings, but the
committee had refused to allow P to challenge by cross-examination or by other
evidence the referee's account of the incident, or to watch a video of it, on the grounds
that that was not their standard procedure. The judge said these defects (in the context of
professional sport) were enough to create at least an arguable case of unfairness, and the
suspension should therefore be lifted until the matter could be resolved at a full hearing.
[DD subsequently revised their rules to allow cross-examination and the use of video
evidence, and to allow requests for legal representation to be considered on their merits.
The Court of Appeal affirmed the judge's order as regards the original suspension, but
lifted a ban imposed by Potts J on any further suspension that might be imposed
following a new hearing under the new (presumably fair) rules.]
However, a personal hearing need not invariably be given in cases of urgency, nor if the
decision-maker is already familiar with the case and there are no new facts to consider,
nor if the applicant's own conduct is such as to deprive him of the right to a hearing.
McInnes v Onslow Fane [1978] 3 All ER 211, Megarry VC

A former boxing promoter P applied six times for a manager's licence and was refused
each time; he sought a declaration that the BBBC had acted in breach of natural justice
by refusing him an oral hearing and not giving him details of the case against him. The
judge said the Board were under no obligation to give him an oral hearing in such
circumstances: there were no new arguments in his renewed application.
Lovelock v Secretary of State for Transport (1979) 39 P&CR 468, CA

A woman P attended the first public inquiry to object to plans for building the M25, and
submitted twenty pages of written evidence. The plan was approved in principle, and a
second public inquiry was held to consider details of the route; P and others attended this
too and sought to reopen the whole principle of an orbital motorway. When the inspector
refused to allow this they disrupted the hearing on two consecutive days, and the
inspector ordered them removed. P subsequently sought certiorari to quash the
inspector's recommendations, but Bristow J and the Court of Appeal refused her
application. Given P's own behaviour she forfeited her right to be heard and the inspector
was right to exclude her; had she asked to be readmitted and promised to behave the
inspector would probably have agreed.
Cinnamond v British Airports Authority [1980] 2 All ER 368, CA

AA were minicab drivers, and had been prosecuted on many occasions for touting for
business at Heathrow Airport; they did not pay the fines and continued to loiter and tout
for fares. RR exercised their powers under byelaws to ban AA from entering the airport,
and AA sought judicial review because inter alia they had not been given the chance to
make representations. The Court of Appeal agreed with the judge in dismissing the
application, and said in view of their conduct AA could not have had a legitimate
expectation of being heard.
R v Secretary of State for Transport ex p Pegasus [1989] 2 All ER 481, Schiemann J

31
Five pilots had their permits suspended following their failure in certain examinations,
although success in the examinations was not in itself a condition of the permit. Their
application for judicial review, alleging they had not been granted a fair hearing, was
refused even though the decision clearly affected their professional standing. The court
said that while the rules of natural justice required that a person affected by an
administrative decision should be allowed to put his case, the standard required in a case
such as this was comparatively low. Quick action had had to be taken to protect
passengers, and in suspending the permits pending full investigation the Secretary of
State had not acted unreasonably.
R v Chief Constable of Thames Valley ex p Cotton [1990] IRLR 344, CA

After several warnings, a probationary constable A was dismissed for being overweight;
he sought judicial review on the grounds that he had not been given a chance to put his
case. The Court of Appeal said there had been no breach of natural justice. There was no
such thing as a technical breach of natural justice, and even if A had been shown and
allowed to comment on the report recommending his dismissal, there was nothing he
could have said or done to alter that decision based on the objective fact of his weight.
The right to be heard clearly requires reasonable notice both of the hearing, if there is to
be one, and of any charges to which the individual is expected to reply.
Annamunthodo v Oilfields Workers TU [1961] 3 All ER 621, PC (Trinidad & Tobago)

A union member P accused of minor breaches of union rules chose not to attend the
hearing, at which a new and substantial charge was added. P was expelled from the
union and challenged the decision. The court said he should have been given notice of
the additional charge, and his expulsion was in breach of the rules of natural justice.
R v Thames Magistrates' Court ex parte Polemis [1974] 2 All ER 1219, DC

A Greek sea-captain A, who spoke little English, was prosecuted for allowing his vessel
to discharge oil in a London dock. The summons delivered at 10.30 set the hearing for
2.30 the same day; the magistrates allowed an adjournment only until 4.00. Quashing A's
conviction, Lord Widgery CJ said the right to a fair trial must include adequate time to
take legal advice and prepare a defence, which had not been given in this case.
In cases of a "judicial" nature, the individual should generally be allowed to know the
evidence against him, to cross-examine witnesses, and to call witnesses of his own. This
is not so where the decision to be made is administrative rather than judicial, but the
dividing line between the two kinds of decision is not always easy to discern.
Fairmount Investments v Secretary of State for the Environment [1976] 2 All ER 865,
HL
PP were the owners of property subjected to a compulsory purchase order as unfit for
human habitation. This order was confirmed by the Minister, who gave among his
reasons evidence identified by the inspector only after the hearing at which PP had been
able to make representations. The House of Lords said the order should be quashed: it
was held contrary to natural justice for D to act on the basis of alleged facts which had
not been part of the Council's original case and which PP had had no opportunity to
challenge.
Bushell v Secretary of State for the Environment [1980] 2 All ER 608, HL

32
PP were among the objectors to a new motorway, and gave evidence at the public
enquiry, but were not allowed to cross-examine civil servants on the methodology of
traffic flow forecasting. After the enquiry was over, the minister received further advice
from civil servants, and made his decision to approve the scheme on the basis of this
advice as well as the inspector's report. The House of Lords, reversing the Court of
Appeal, said the Minister's decision should stand. He was acting administratively in this
instance, and was entitled to take the best informed advice available to him, without
reopening the enquiry or inviting further comments from objectors whose views he had
already considered.
R v Dunraven School ex p B (2000) Times 3/2/00, CA

A boy B sought judicial review of his exclusion from a grant-maintained school for
stealing a teacher's handbag. The head teacher in making the initial decision, and the
governors in confirming it, took account of statements made by another pupil D, but did
not disclose these to B or his mother for fear of his taking reprisals against D. B and his
mother had been invited to make representations to the governors, but such a right was
worthless unless they knew what was being said against them.
The European Convention (incorporated into English law by the Human Rights Act
1998) guarantees an individual the right to a public hearing in any matter determining his
civil rights and obligations.
European Convention on Human Rights Art.6(1)
In the determination of his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. judgment shall be pronounced
publicly but the press and public may be excluded from all or part of the trial in the
interests of morals, public order or national security in a democratic society, where the
interests of juveniles or the protection of the private life of the parties so require, or to
the extent strictly necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice.
Albert & Le Compte v Belgium (1983) 5 EHRR 533, ECHR

Two doctors AA were struck off by a medical tribunal following a private hearing; their
(unsuccessful) appeal was heard in public, but did not consider the merits of the case.
The Court said domestic disciplinary proceedings are not ordinarily within the scope of
Art.6(1), but this decision affected AA's civil right to practice medicine. The absence of
any right to a public hearing was thus a violation of AA's rights under Art.6(1).
There is no clear rule regarding entitlement to legal representation at hearings, but the
trend seems to be towards an acceptance that representation should normally be allowed
in serious cases, at least unless the rules of the decision-making body expressly exclude
it.
Pett v Greyhound Racing Association (No.2) [1969] 2 All ER 221, Lyell J

A greyhound trainer P was suspected of doping and faced severe penalties; the
Association's rules made no reference to legal representation but P was refused the right
to be represented. After the Court of Appeal had granted an interlocutory injunction to
postpone the hearing pending full argument, the judge refused a declaration that P was

33
entitled to legal representation as of right. (DD subsequently changed their rules to allow
legal representation.)
Enderby Town FC v Football Association [1971] 1 All ER 215, CA

A football club PP censured for maladministration by their local association appealed to
the FA at national level, and sought permission to be represented by counsel, but the FA
rules expressly excluded legal representation at hearings of the type in question. The
Court of Appeal upheld the validity of the rules, since PP had chosen to appeal by this
route, but Lord Denning said obiter that the FA should be prepared to allow
representation in appropriate cases.
R v Home Secretary ex p Tarrant [1984] 1 All ER 799, DC

Prisoners AA charged with serious offences including prison mutiny sought legal
representation (or the assistance of a friend or adviser) at their disciplinary hearings, but
were refused. The Divisional Court granted certiorari to quash the Visitors' refusal. A
prisoner was not entitled to legal representation or other assistance as of right, said
Webster J, but the Visitors had a discretion to allow it in appropriate cases and had
totally failed to exercise their discretion. Given the serious consequences of a finding of
mutiny, no reasonable Board would have refused legal representation in those cases, and
even in the less serious cases where prisoners were charged only with assaulting a prison
officer it might have been appropriate to allow them the assistance of a friend.
Campbell & Fell v United Kingdom (1984) 7 EHRR 165, ECHR

A number of prisoners involved in a prison riot were charged with disciplinary offences
under the Prison Rules, and were sentenced by the Board of Visitors to a substantial loss
of remission. No legal representation was permitted at the disciplinary hearing, and
subsequent consultations with the prisoners' solicitors took place in the presence of a
prison officer. The Court said this was in breach of Art.6, guaranteeing the right to a fair
trial.
Bache v Essex CC (2000) Times 2/2/00, CA

A woman P appearing before an employment tribunal was represented by a lay
person X; when X persisted in raising irrelevant matters the tribunal directed that
P should represent herself, with X acting only as a McKenzie friend. The Court
of Appeal said there is a statutory right for a party to be represented in an
employment tribunal by a person (qualified or lay) of his or her choice; the
tribunal can insist on proper behaviour, in the last resort by instituting
proceedings for contempt of court, but it cannot restrict the exercise of this right.
In the instant case, however, the tribunal's eventual decision was correct on its
facts and would not be quashed.
However, any defects in the original procedure may be ignored if the applicant
has a chance to appeal and the appeal is conducted fairly.
R v St Gregory's School ex p Roberts (1995) Times 27/1/95, Turner J

A pupil A who had allegedly sworn at a teacher was expelled by the governors following
a hearing at which A himself had not been present, although his mother had been. This
decision was subsequently upheld by an appeals panel, which had investigated the case
thoroughly and had allowed A to give evidence on his own behalf. The judge dismissed
A's application for judicial review: although the first hearing had probably been in

34
breach of the requirements of natural justice, this had been rectified by the properly
conducted appeal procedure.

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R v Stratford-on-Avon DC ex p Jackson [1985] 3 All ER 769, CA

R v Dairy Produce Quotas Tribunal ex p Caswell [1990] 2 All ER 434, HL

R v Swale BC ex p RSPB (1990) 2 Admin LR 790, Simon Brown J

Brian Bwesigye’s Home Library

AA sought to challenge a grant of planning permission for development, claiming a

PUBLIC BODIES AND PUBLIC FUNCTIONS

R v Criminal Injuries Compensation Board ex p Lain [1967] 2 All ER 770, DC

Law v National Greyhound Racing Club [1983] 3 All ER 300, CA

R v East Berks Health Authority ex p Walsh [1984] 3 All ER 425, CA

R v Panel on Takeovers and Mergers ex p Datafin [1987] 1 All ER 564, CA

Brian Bwesigye’s Home Library

R v Fernhill Manor ex p Brown [1993] 1 FLR 620, Brooke J

R v Chief Rabbi ex p Wachmann [1993] 2 All ER 249, Simon Brown J

R v Jockey Club ex p Aga Khan [1993] 2 All ER 853, CA

R (A) v Partnerships in Care [2002] 1 WLR 2610, Keith J

LOCUS STANDI AND SUFFICIENT INTEREST

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R v Greater London Council ex p Blackburn [1976] 3 All ER 184, CA

R v HM Treasury ex p Smedley [1985] 1 All ER 589, CA

R v Felixstowe Justices ex p Leigh [1987] 1 All ER 551, DC

R v Secretary of State ex p Rose Theatre Trust [1990] 1 All ER 754, Schiemann J

R v Foreign Secretary ex p Rees-Mogg [1994] 1 All ER 457, DC

Equal Opportunities Commission v Secretary of State [1994] 1 All ER 910, HL

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R v Inspectorate of Pollution ex p Greenpeace (No.2) [1994] 4 All ER 329, Otton J

R v Somerset CC ex p Dixon [1998] Env LR 111, Sedley J

R v Home Secretary ex p Bulger [2001] 3 All ER 449, DC

SCOPE OF JUDICIAL REVIEW

Most applications for judicial review involve challenges to administrative decisions by

Brian Bwesigye’s Home Library

Cowley v Heatley (1986) Times 24/7/86, Browne-Wilkinson VC

R v Home Secretary ex p Bentley [1993] 4 All ER 442, DC

R v Foreign Secretary ex p Rees-Mogg [1994] 1 All ER 457, DC

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R v Cambridge Health Authority ex p B [1995] 2 All ER 129, CA

R (Bancoult) v Foreign Secretary [2006] EWHC Admin 1038

Brian Bwesigye’s Home Library

R v GLC ex p Kensington & Chelsea LBC (1982) Times 7/4/82, McNeill J

R v Home Secretary ex p Swati [1986] 1 All ER 717, CA

R v Secretary of State for Education ex p Avon CC [1991] 1 All ER 282, CA

R (Wainwright) v Richmond-upon-Thames LBC (2002) Times 16/1/02, CA

R v Electricity Commissioners ex p London Electricity [1924] 1 KB 171, CA

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R v Greater London Council ex p Blackburn [1976] 3 All ER 184, CA

An order of mandamus, now a mandatory order, commands a defaulter to perform some

R v Bristol Corporation ex p Hendy [1974] 1 All ER 1047, CA

Shah v Barnet LBC [1983] 1 All ER 226, HL

The injunction, prohibitory or mandatory, was an equitable private law remedy

Harold Stephen v Post Office [1978] 1 All ER 939, CA

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M v Home Office [1993] 3 All ER 537, HL

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R v Felixstowe Justices ex p Leigh [1987] 1 All ER 551, DC

R v Secretary of State for Social Security ex p B [1996] 4 All ER 385, CA

EXCLUSION OF JUDICIAL REVIEW

Anisminic v Foreign Compensation Commission [1969] 1 All ER 208, HL

Brian Bwesigye’s Home Library

Attorney-General v Ryan [1980] AC 718, PC (Bahamas)

R v Home Secretary ex p Fayed [1997] 1 All ER 228, CA

R v HM Treasury ex p Smedley [1985] 1 All ER 589, CA

R v Registrar of Companies ex p Central Bank of India [1986] 1 All ER 105, CA