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Chapter PACK - Judicial Review (Updated 21 Aug 2015 )

Public law (University of London)

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JUDICIAL REVIEW
Introduction
The basis of the court’s jurisdiction over administrative bodies lies with the fulfillment of Professor
A V Dicey’s third postulate. The courts are vested by common law with the ability to review the
validity or legality of acts, decisions and omissions of administrative authorities.
This enhances the application of separation of powers in the United Kingdom as judicial review
involves the courts considering the legality of executive action. The executive in turn, exercises its
discretion with the knowledge that their decisions may well be quashed by the courts where they
exceed their powers.
Limitations to the scope of judicial review rcognise that the issue of justiciability of the decision is
relevant The student must appreciate the following points :
(a) judicial review of executive decision or action in essence means a review of the exercise
of power by the executive. The power is most often vested in the executive by virtue of an
Act of Parliament or prerogative power;
(b) at no point in this endeavour do the court attempt to deny or invalidate the power itself
but merely examine the conduct of the executive to establish that the decision made or
the action taken, was done in line with this power.
(c) the courts are not concerned with the particular merits of an individual applicant’s case
but only with the way in which the administrative or executive body had reached its
decision.
(d) the emphasis here is that the exercise of such authority was carried out in a fashion that
was abusive resulting in damage to the interests of the citizen.
(e) judicial review is a residual form of control and it would be possible for the citizen to use
any other means of control provided by statute to contest a decision before resorting to
an application for judicial review;
(f) judicial review is not intended to provide the applicant with an alternative decision. The
courts therefore are not equipped with the power to substitute the decision;
(g) judicial review is discretionary and it will be up to the courts to decide whether judicial
intervention is appropriate.
Applying for judicial review:
1. Application is made under Section 31 Supreme Court Act 1981 and the revised Order 53
Rules of the Supreme Court (RSC).
2. The procedure is as follows :
(a) the applicant must apply to the High Court for leave to apply for judicial review.
(b) before leave is granted, the High Court must be satisfied that the applicant has
- acted speedily or promptly, ie within a three month period – R v Dairy
Produce Quota Tribunal ex parte Caswell [1990]
- a moral as well as a legal case to be granted relief. This is because the
award any remedy is discretionary – Ward v Bradford Corporation
[1971].
- sufficient interest / locus standi to make the application – Inland
Revenue Commissioners v National Federation of Self Employed &
Small Business Ltd [1981] also known as the Mickey Mouse case – in

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order to establish locus standi / legal standing for the proper application
of judicial review, an applicant must prove two things :
(a) illegality by a public authority; and
(b) the illegality threatened some personal interest of the applicant..
On this issue note :
(a) R v Secretary of State for the Environment ex parte Rose Theatre Trust
Company [1990] – locus standi may not be established where a governmental
decision is made that does not affect the rights of ordinary citizens
(b) R v Inspectorate of Pollution & Another ex parte Greenpeace Ltd [No 2]
[1994] – the court would take into account the nature of the applicant body, the
extent of its interest, the remedies sought, the extent to which the applicant was
a responsible body, its consultative status if any, the extent of its membership
and support and whether the applicant body would have any other viable means
of challenging the matter in question.
(c) R v Secretary of State for Foreign Affairs ex parte World Development
Movement Ltd [1995] – in determining the locus standi of pressure groups, the
courts would consider the need to uphold the rule of law, the fact that no other
organisation was likely to launch such a challenge and the key role played by the
applicants in giving advice, guidance and assistance regarding aid.
(d) Section 7(1) Human Rights Act 1998 – an application for judicial review can be
made in respect of a public body alleged to have acted in a manner that is
incompatible with the Convention. However the applicant must be a victim of the
alleged violation.

Which bodies are subject to judicial review?

1. Government ministers and departments : ex parte Venables & Thompson [1997] : the
Home Secretary had acted illegally by abusing his public law discretion.

2. Local authorities : ex parte Times Newspaper Ltd [1986] : the banning of the
newspaper from the libraries of three council was unlawful.

3. The Parole Board : R (West) v Parole Board [2005].

4. Magistrates’ Court : ex parte Rowlands [1998].

5. The Coroner’s Court : ex parte Ta; [1985].

6. Tribunals : ex parte Singh [1986].

7. Non-governmental bodies : these are bodies that are not part of the government /
administration but which exercise de facto public law powers.

In the context of non-governmental bodies:

(a) R v Panel on Takeovers & Mergers ex parte Datafin plc [1987] : while the Panel was not
a government body, the court held that judicial review could extend to a body which
operated as part of a system which performed public law duties.
(b) R v Disciplinary Committee of the Jockey Club ex parte Aga Khan [1993] : although
the Jockey Club regulated horse racing in Britain which affected the public, it was not

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subject to judicial review as it was not a public body in term of its history, constitution or
membership.
(c) R v Chief Rabbi of the United Hebrew Congregations of Great Britain & the
Commonwealth ex parte Wachmann [1993] : since the functions of the Chief Rabbi were
essentially spiritual and religious, these functions would not be subject to judicial review.

If a non-governmental body exercises powers which are of a public nature and which are
sufficiently governmental in nature, the body may be more susceptible to judicial review. Where
however, the relationship is essentially a commercial one the courts may decline a claim for
judicial review on the grounds that a remedy in private law would be available.

It must be a public law matter

Not every action of a public body falls within the ambit of judicial review. In order to seek judicial
review the claimant must raise an issue of public law ie one that relates to how public law powers
have been misused, misunderstood or misapplied.

Civil Procedure Rules Part 54.1(2)(a) : judicial review is concerned with the lawfulness of (a) an
enactment; or (b) a decision, action or failure to act in relation to the exercise of a public function.
The mere fact that the defendant is a public body is not sufficient on its own to bring the matter
within the ambit of judicial review.
If the claimant can demonstrate that a public law issue is at stake, he must use the special judicial
review procedure [formerly Order 53 RSC], now governed by Civil Procedure Rules Part 54 to
enforce this public law right.
O’Reilly v Mackman [1983] stands for the principle that the enforcement of public law rights
should be through judicial review procedure. This is the `exclusivity’ principle.

Exceptions to the exclusivity principle :

(a) Collateral cases where a claimant is seeking primarily to enforce a private right and the
public law issue is a collateral or incidental issue to the enforcement of the private right :
Roy v Kensington & Chelsea & Westminster Family Practitioner Committee [1992].
(b) Use of public law issue as a defence in a criminal case : Boddington v British
Transport Police [1999] or a civil case : Wandsworth London Borough Council v
Winder [1985] ie where an individual is a defendant in legal proceedings commenced by
another body, the validity of the public law decision / act can be questioned in their
defence.

General points to note

R v Parliamentary Commissioner for Standards, ex p Fayed (1997) and R v Secretary of

State for the Home Department, ex p Fayed (1998) - the courts assumed that in the absence of
very clear language to the contrary, Parliament does not intend to interfere with the
responsibilities of the courts under the rule of law.
R v Secretary of State for Foreign Affairs, exp World Development Movement Ltd (1995) -
judicial review was granted although foreign relations were involved. This is essence signifies a
willingness by the court to enlarge the scope of judicial review.
The traditional and modern doctrine of ultra vires.
Ultra vires is where actions are taken in excess of powers of the decision-making body.

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Council for the Civil Service Union v Minister for the Civil Service [1985] - Lord Diplock
reminded however that further development on a case by case basis may in the course of time
add further grounds for judicial review that are not already in existence.
Note also that Lord Diplock referred to the principle of proportionality as a possible new addition
to these three grounds of judicial review although this was subsequently rejected by the courts in
R v Secretary of State for the Home Department ex parte Brind [1991]).
Lord Fraser in this case also explained the concept of legitimate expectation which has been
important in the development of a new principle of fairness which may require public authorities to
reach a particular decision rather than simply to follow a fair procedure.
The importance of legitimate expectation
Lord Denning in Schmidt v Home Secretary [1969] - the application of natural justice depended
on whether the applicant had some right or interest or legitimate expectation, of which it would not
be fair to deprive him without fair hearing.
R v Devon CC ex parte Baker & Another [1995] - Dillon LJ - legitimate expectation related to
the procedure that the applicant could expect to see followed rather than the ultimate decision
being made in his favour.
Simon Brown LJ identified 4 broad categories of cases in which the concept of legitimate
expectation may be relevant :
(a) where it is a substantive right, in the form of an entitlement that the claimant asserts
cannot be denied him – R v Secretary of State for the Home Department ex parte
Khan [1985];
(b) where the applicant’s interest was some ultimate benefit which he hoped to attain or
retain – Re Liverpool Taxi Owners Association [1972];
(c) where legitimate expectation referred to the procedure the applicant expects to see
adopted – Council for the Civil Service Union v Minister for the Civil Service [1985];
(d) where a particular procedure not actually prescribed by law was to be followed because
of a previous promise or course of dealing – AG for Hong Kong v Ng Yuen Shiu [1983].
Sedley J in R v Ministry of Agriculture, Fisheries & Food ex parte Hamble (Offshore)
Fisheries Ltd [1995] – legitimate expectation are reserved for expectations that are not only
reasonable but which will be sustained by the court in the face of changes of policy.
R (Zeqirl) v Secretary of State for the Home Department [2001] – the Court fo Appeal held
that whilst the Home Secretary had the power to certify Germany as a safe country to which to
move an asylum seeker, it would be unlawful to authorise the move as the asylum seeker’s
legitimate expectation was that his application would be substantively determined in the United
Kingdom.
Grounds for judicial review

Illegality

Lord Diplock in GCHQ used this term to cover a number of different grounds. Traditionally these
grounds included the following heads of judicial review :
1. making errors of law,
Secretary of State for Education v Tameside MBC [1977] - an incorrect basis of action
2. acting for an improper purpose,

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Padfield v Ministry of Agriculture [1968] - if a minister, by reason of his having

misconstrued the Act or any other reason, uses discretion so as to run counter to the
policy of the Act, the person aggrieved would be entitled to compensation.
3. taking into account irrelevant considerations or failing to take into account relevant
considerations
In determining what considerations a decision-maker ought to take into account the court
will look at the statute that provides the discretion and will consider the overall aims and
objectives of that act.
Padfield v Ministry of Agriculture [1968] –held that a Minister, by refusing to permit an
investigation, had abused his powers by failing to have regard to the aims and objectives
of the legislation.
R v Somerset CC ex parte Fewings [1995] - if the activity in question is permissible
under the general law, it shall not be prohibited on grounds only of the decision maker's
distaste or ethical objection.
Cannock Chase DC v Kelly [1978] - it was held that bad faith means dishonesty; albeit
not necessarily for a financial motive.
R v Broadcasting Complaints Commission ex parte Owen - where an irrelevant
consideration does not affect the outcome of the decision, the court may hold that the
authority is acting intra vires.
R v Secretary of State for the Home Department ex parte Venables & Thompson
[1977] –the House of Lords held that it would be lawful for the Minister to take into
account public opinion regarding certain types of crime when developing sentencing
policy, but it was not a relevant consideration when considering the punishment to be
imposed in respect of a specific incident.
R v North Derbyshire Health Authority ex parte Fisher [1997] – the policy to prescribe
a particular drug on the basis of the impact on the authority’s budget was held to be
unreasonable because they had not taken into account central government advice that
the drug could be used.
R v Lord Chancellor ex parte Witham [1998] - the Lord Chancellor’s changing of the
provisions for court fees without taking into account the position of those who lacked
means but would be ineligible for legal aid was unlawful.
W v Special educational Needs Tribunal & Another [2000] – the Court of Appeal
quashed the decision of a special educational needs tribunal for its failure to consider
information supplied to it, but of which it had not been made aware. It was acknowledged
that if the tribunal had considered the material, it might have reached a different
conclusion.
4. fettering the authority’s discretion, and
An administrative body which is given a statutory discretion can adopt a policy as to how
that discretion is to be exercised, but the policy must allow for exceptions where
necessary, and must in itself be reasonable - British Oxygen v Board of Trade [1971]
AG v Wandsworth LBC ex parte Tilley [1981] – the court will look at the context in which the
policy is being applied. Where the individual circumstances of the applicant are of paramount
importance the adoption of a general may be less appropriate
R v Secretary of State for the Home Department ex parte Jammeh & Others [1997] –
a policy will be ultra vires if it is in effect unreasonable. The Home Secretary refused work
permits to asylum seekers awaiting the outcome of their appeals against refusal of
asylum. The justification for this decision was :

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(a) the asylum seeker could become destitute whilst waiting for his appeal hearing
and not be able to contest it; and
(b) the policy had the effect that whilst it was lawful to give money to an asylum
seeker who went begging for it, it was unlawful to give money to one who was
willing to work for it.
5. the unauthorised delegation of the exercise of its discretion.
Where Parliament enacts a statute giving discretion to a Minister or local authority, it is
delegating some of its power to the Minister or local authority. Once delegated, the power
cannot be further delegated to another body unless there is some express statutory
authorisation for it.
Powers may not be delegated unless the delegation is authorised by law - Vine v
National Dock Labour Board
Carltona v Commissioner of Works [1943] except where delegation by the Minister is to their
civil servant on the basis that actions of the civil servant are attributable to the Minister.
Oladehinde v Secretary of State for the Home Department [1990] - held that as long
as the decision was taken by officials of suitable grading and experience, the decision
was not challengeable.
Irrationality

Lord Diplock in GCHQ – referred to as the Wednesbury unreasonableness (Associated

Provincial Picture Houses v Wednesbury Corporation [1948]. it applies to a decision which is
so outrageous in its defiance of logic or of accepted moral standards that no sensible person who
had applied his mind to the question to the question could have arrived at it.
‘Irrationality’ is concerned with a public body acting strictly within its powers but arriving at a decision which
is totally unreasonable . This was also known as the Wednesbury principle of unreasonableness.

This signifies that the body has come to a decision which no reasonable body could have come to.

Irrationality is a controversial ground on the basis that it suggests that the courts concern themselves with
the decision rather than the decision making process. Irrationality allows the courts to challenge the decision
and arguably infringes on the separation of powers.

However it is justified on the grounds that :

1. For a decision to be irrational, by definition, the decision making process is likely to have been
faulty
2. The courts set a very high threshold for irrationality and will only interfere in a decision which no
reasonably body could have come to
3. The courts, in interfering with an irrational decision are only exercising a secondary judgment. The
public body exercises the primary judgment and is only subject to a second look by the courts in
the event that the decision is absurd.

In the context of matters of national security or national economic policy, the courts have been reluctant to
interfere : Nottinghamshire County Council v Secretary of State for the Environment [1986].
However where it is a matter of human rights, the courts are willing to intervene : Bugdaycay v Secretary
of State for the Home Department [1987].

It has always been clear that it is extremely difficult to establish irrationality : R v Home Secretary ex parte
Brind [1991]. However in R (Rogers) v Swindon NHS Primary Care Trust [2006] the court held that the
Trust’s policy in relation to the availability of a drug was irrational.

Similarly in R (Technoprint plc& Anor) v Leeds City Council [2007] it was held that the granting of
retrospective planning permission relating to industrial filters with noise attenuators was deemed irrational.

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In both the European Community and the ECHR, proportionality is recognised as a grounds for
challenging the decisions of public bodies. However while there appear to be clear similarities
between proportionality and reasonableness, the English courts have traditionally refused to
recognise it as a ground for review – R v Secretary of State for the Home Department ex parte
Brind [1991].
However it must be recognised that with the enactment of the Human Rights Act 1998
proportionality will now become a part of domestic law. There in instances where action arises on
the grounds of unreasonableness, the courts will not be obliged to consider the issue of
proportionality if it is raised.
The test of proportionality [P Leyland & G Anthony] :

“Proportionality works on the assumption that administrative action ought not go beyond what is necessary
to achieve its desired result (in everyday terms, that you should not use a sledgehammer to crack a nut) and,
in contrast to irrationality, is often understood to bring courts much closer to reviewing the merits of a
decision.”

This signifies that proportionality is concerned with the aims of the decision maker and whether the means to
achieve that objective are proportionate.

R v Chief Constable of Sussex ex parte International Trader’s Ferry Ltd [1998] the House of
Lords held that even though the Chief Constable’s decision may be regarded as lawful when
judged by the domestic law concept of Wednesbury reasonableness, it could not be assumed
that his actions were therefore proportionate.
R v Secretary of State for the Home Department ex parte Cummings [2001] – it was held that
the Secretary of State was not obliged to accept the advice of the Parole Board even after asking
for such advice. It would not be considered irrational for him not to follow the advice.
R v Secretary of State for the Home Department ex part Daly [2001] – it was held that blanket
policies allowing the searching of cells in closed prisons in the absence of the prisoner and the
examination of legal correspondence belonging to the prisoner infringed the prisoner’s common
law rights to legal professional privilege and was unreasonable. Lord Steyn: “First, the doctrine of
proportionality may require the reviewing court to assess the balance which the decision maker has struck,
not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality
test may go further than the traditional grounds of review in as much as it may require attention to be
directed to the relative weight accorded to interests and considerations.”

R v Ministry of Defence ex parte Smith [1996] – the difference between the tests of
unreasonableness and proportionality was examined. It was pointed out that :
- the proportionality approach may require the court to assess the balance which the
decision-maker had struck and not merely whether it was within the range of rational or
reasonable decisions;
- the proportionality test may go further than reasonableness in that it may require attention
to be directed to the relative weight accorded to interests and considerations; and
- the heightened scrutiny test developed in this case was not necessarily adequate to
protect human rights. The fact that different tests may yield different results did not mean
there had been a shift to merits review and the intensity of review would depend on the
subject matter at hand.

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Procedural Impropriety

Lord Diplock in GCHQ - this head covers failure by an administrative tribunal to observe
procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction
is conferred, even where such failure does not involve any denial of natural justice.
Today, the two categories of procedural ultra vires and natural justice fall under the head of
procedural impropriety.
1. Procedural Ultra Vires
Actions taken by public authorities run the risk of being ultra vires in form. This happens
when there are certain powers which are exercisable subject to procedural safeguards
enshrined in the enabling statute.
If the procedure laid down is not complied with, the courts will determine whether the
requirements are mandatory or directory. If the requirements are mandatory, then the act
may be quashed by the High Court. If the requirement id directory, then non-compliance
with the procedural requirements would not affect the validity of the action.
Whether the procedure is mandatory or directory is a difficult distinction – Howard v
Boddington [877].
Nowadays, the courts tend not to concentrate on the wording but on the importance of
the procedure – Howard v Environment Secretary [1975].
Examples of mandatory requirements :
Consultation - Grunwick Processing Laboratories v ACAS
Giving of notice - R v Swansea County Council ex p Quietlynn
Matters to be out in writing (generally mandatory) - Howard v Secretary of State for
Environment
Example of directory requirement:
Time limit - Cullimore County Council v Lyme Regis Corporation

Natural Justice

A consequence of the wide application of natural justice to administrative acts has been to make
the content of its rules extremely vague.
Lord Hodson in Ridge v Baldwin [1964] stated that one can only come to an "irreducible
minimum" of the rule, it would consist of
- the right to be heard by an unbiased tribunal;
- the right to have notice of charges of misconduct;
- the right to be heard in answer to those charges.
However, in practice, natural justice is much wider than this.
The reason for such an inherent vagueness in the rule may be due to the courts’ attitude of
relying heavily upon the concept of administrative fairness since Re HK was decided in 1967.
Nemo judex in causa sua
The term "nemo judex in causa sua" is almost sacred to the courts as impartiality is at the heart of
the judicial process.

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In re Pinochet Ugarte (January 18, 1999) it was held that this rule against bias applies :
(a) where the person making a decision has a certain interest in the decision; and
(b) where the person is making the decision is biased.
Where a person has a certain interest in making the decision, the interest can be :
- in the form of a pecuniary interest or
Dimes v Grand Junction Canal [1852] - the House of Lords set aside the Lord
Chancellor's decision as he was a shareholder in the company appearing before him.
Although there was no indication that the Lord Chancellor had been biased, the
appearance of bias was enough.
- in the form of a non-pecuniary interest.
These include interests such as professional or family interests and may also lead to a
decision being invalidated. R v Sussex Justices ex parte McCarthy [1924] where Lord
Hewart CJ said :
"… it is of fundamental importance that justice should not only be
done but manifestly and undoubtedly be seen to be done."
The test today for determining non-pecuniary bias is as laid down R v Gough [1990]
where the House of Lords indicated that where there was no pecuniary or proprietary
interest, the real question to be asked was whether there was a "real danger" that there
may have been bias.
Lord Goff explained that the question of whether there was a real danger of bias in any
particular case was to be assessed by the court in light of the evidence before it.
R v Secretary of State for the Environment & Another ex parte Kirkstall Valley
Campaign [1996] – confirmed the decision in R v Gough would be equally applicable to
judicial, quasi-judicial and administrative decisions.
In re Medicaments & Related Classes of Goods (No 2) [2001] the Court of Appeal
reviewed the test of bias in R v Gough. The court ruled that a modest adjustment of the
test would bring it in line with the European Court. The correct approach to be applied
was :
- for the court to ascertain all the circumstances which had a bearing on the
suggestion that a judge was biased;
- then to ask whether those circumstances would lead a fair-minded and informed
observed to conclude that there was a real possibility or a real danger that a
tribunal was biased.
Audi alteram partem
"Audi alteram partem" advocates that an individual should be given a fair hearing before a
decision affecting their interest is made. The right to a fair hearing includes :
- the right to be informed that a decision will be made; and
- the right to state one's case before the decision is made.
In the exercise of this right, the following practical applications need to be considered :
 The decision must be one of significant impact
R v Liverpool Corp ex parte Liverpool Taxi Fleet Operators Association [1972] – this
right will only be available if the decision is one of significant impact.

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Cooper v Wandsworth Board of Works [1863] – where an individual’s property is

threatened it would be a decision of significant impact.
Generally the phrase significant impact has been taken to mean a decision that would
affect the liberty, property, livelihood or legitimate expectation of an individual.
 Both sides must be heard
Errington v Minister of Health [1935] – there would be a breach of the rules of natural
justice where the objectors were not allowed to answer any points made by the local
authority.
Fairmount Investments Ltd v Secretary of State for the Environment [1976] – the
parties concerned must be given an opportunity to refute any allegations made against
them.
R v Secretary of State for the Home Department ex parte Mohammed Al Fayed
[1997] – it may be enough that the applicant knows the outline of the case against him
without seeing the transcript. Affirmed in R v Secretary of State for the Home
Department ex parte McAvoy [1997]. R v Secretary of State for the Home
Department ex parte Harry [1998] held that this would include :
- a more expansive and informative summary of the allegatioons;
- the production of a document where this is necessary to avoid
the risk of a legitimate sense of concern or grievance and there
is no countervailing consideration of any weight and no
legitimate reason for wishing to withhold it.
 The right to legal representation
R v Board of Visitors of Wromwood Scrubs ex parte Anderson [1985] – the Board
should have exercised discretion to grant legal representation at the hearings because of
the seriousness of the charge and the difficulty for the prisoner in presenting his case.
R v Board of Visitors of the Maze Prison ex parte Hone [1988] – where the charge is
not serious enough to merit legal representation, the Board may deny this right.
Maynard v Osmond - no legal representation if the case is simple
R v Secreatary of State for Home Department exp Tarrant - the right to legal
representation will be available if the case cannot be argued properly without it.
Pett v Greyhound Racing Association (No2) - the right to legal representation will be
available if one's livelihood is at stake.
 The duty to give reasons
Cannock Chase DC v Kelly [1978] – there is no common law requirement that reasons
be given for decisions although statute may set down such a requirement.
Doody v Home Secretary [1993] - reasons should be given unless there is some good
policy reason for not doing so.
R v Civil Service Board ex parte Cunningham [1991] – if a decision appears irrational
to the court, the administrative body would be required to explain its reasons to the court
or be held to have acted ultra vires.
R v Higher Education Funding Council ex parte Institute of Dental Surgery [1994] –
Sedley J outlined the duty to give reasons :
1. There is no general duty to give reasons for a decision, but there are classes of
cases where there is such a duty;

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2. For example where the subject matter is an interest so highly regarded by the
law that fairness requires that reasons be given as of right;
3. For example where the decision appears aberrant. Fairness may require reasons
so that the recipient may know whether the aberration is in the legal sense (and
so challengeable) or apparent;
R v Director of Public Prosecutions ex parte Manning [2000] 3 WLR 463
- held that while there was no absolute obligation on the Service to give reasons for a
decision not to prosecute, a violent death in custody gave rise to great concern. Further,
since a jury had returned a verdict of unlawful killing implicating an identifiable person,
there was an expectation of a plausible explanation for the decision and of solid grounds
to support that decision.
R v Criminal Injuries Compensation Authority ex parte Leatherland & Others
[2000] – the CICA was obliged as a matter of procedural fairness to provide proper
reasons with at least a gist of any supporting evidence, for its decisions to reduce or
refuse claims for compensation. The withholding of such information until the day of
appeal was bad administration and unfiar.
Selvanathan v General Medical Council [2000] – the court ruled that the Professional
Conduct Committee of the General Medical Council should always give a brief
explanation for their determination, whether they found a medical practitioner guilty of
serious professional misconduct. Fairness required that reasons be given so that the
affected party could decide whether to accept the decision or appeal against it.
 The waiver of the right to a fair hearing
Council for the Civil Service Union v Minister for the Civil Service [1985]
R v Secretary of State for Home Affairs exp Hosenball [1977]
Both these cases establish that the right can be waived in the situation of national
security.
Duty to Act Fairly
This is not one of the rules of natural justice although it has been regarded by many as an already
existing principle of natural justice. This rule tries to set a minimum standard of fairness even in
instances where the rules of natural justice do not apply.
The scope of this duty is rather vague as it is not always easy to find a consistent pattern.
Re HK - Lord Parker CJ stated that an immigration officer was required to act fairly in dealing with
an immigrant from Pakistan who has been refused entry.
Schmidt v Secretary of State for Home Affairs - Lord Denning stated that a foreign alien can
be refused permission to remain in the country without reasons given and without a hearing.
It is clear that the duty to act fairly was not applied here as compared to in Re HK.
R v National Lottery Commission ex parte Camelot Group plc [2000] – a decision to carry on
exclusive negotiations with only one of the two rival bidders for a licence was held so unfair as to
amount to an unlawful exercise of discretion.
Remedies
From October 2000, the orders of mandamus, prohibition and certiorari shall be known as a
mandatory order, a prohibiting order and a quashing order.
Public law remedies
1. quashing order.

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This sets aside an invalid decision in writing made by public authority. It is a prerogative
order that can be used to quash an administrative decision.

2. Mandatory order
This commands any person to whom it is directed to carry out a public duty imposed by
the law - R v Baker
3. Prohibiting order
This is an order to prevent an inferior body or person from exceeding its jurisdiction.
Private law remedies
1. Declaration
This is a statement of the legal position where one party seeks the courts’ assistance to
make binding declarations of right whether or not any consequential relief is or could be
claimed - R v Panel of Takeovers & mergers ex parte Datafin. It is not enforceable in
any way but rarely ignored by public bodies.
2. Injunction
This is an order of the court that restrains a person / body from breaking laws or orders
persons to undo something unlawfully done - R v Home Secretary, exp Herbage
3. Damages
Awarded only if one of the other remedies also apply - Burgoin SA v Minister of
Agriculture

Latest Developments in Judicial Review:

(1) Public Bodies:
• The Court of Appeal examined the concept of ‘public office’ in R v Cosford and others
[2013] EWCA Crim 466; [2013] 3 WLR 1064.
• The defendants worked in a high security prison as nurses. They were charged with
various offences of misconduct in public office. In their defence they argued that they
were not holders of public office, submitting that to be a holder of a public office there
must be ‘a degree of authority over the citizen or a fiduciary duty to the citizen’ before a
person could be held to be the holder of a public office.
• Reviewing the authorities (the earliest dating back to 1783), Leveson LJ rejected the
defendants’ arguments. The correct approach was to focus on the nature of the duty
undertaken:
o ‘... and, in particular, whether it is a public duty in the sense that it represents the
fulfilment of one of the responsibilities of government such that the public have a
significant interest in its discharge extending beyond an interest in anyone who
might be directly affected by a serious failure in the performance of the duty.’

(2) Statutory Reform of Judicial Review - Criminal Justice and Courts Act
2015:

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• The “No-Difference” Rule (section 84 CJCA 2015):

o One of the most controversial reforms changes the rules on when courts may
refuse permission for a claim to proceed to a full hearing, or dismiss the claim at
a full hearing, because although a decision-maker has acted unlawfully the result
would have been the same anyway.
o Currently if it is inevitable that there would have been no difference, then the
court has discretion not to grant a remedy. The Act lowers the threshold from
‘inevitable’ to ‘highly likely’, and requires the court to reject the claim where this
test is met.
o The exception is that it may still grant permission for the claim to proceed to full
hearing if it is ‘appropriate to do so for reasons of exceptional public interest’.
o At the permission stage this invites the courts to undertake a difficult exercise in
speculation before the claim has been fully argued. Moreover, in some cases
unlawful decision-making will go without full judicial scrutiny despite there being a
possibility of a different outcome if the decision had been taken lawfully. The
‘exceptional public interest’ exception provides some comfort, although it sets a
very high hurdle to get over.

• The “Interveners” Rule (section 87 CJCA 2015):

o ‘Interveners’ are not a party to a claim but apply to the court to submit evidence
because they have specialist knowledge or experience that might assist the court
to decide the case. Currently the court has discretion about whether interveners
recover their costs of intervening, or whether they should have to pay any of the
other parties’ costs caused by their intervention. Normally interveners simply
have to pay their own legal costs (if any), not anyone else’s.
o The Act changes this position significantly by requiring the court to order an
intervener to pay the costs the parties incurred as a result of the intervention
where certain conditions are met (where those costs are sought). While some of
the conditions are reasonable (e.g. the intervener has behaved unreasonably),
others are onerous and unclear, for example where the intervention is considered
unnecessary or not of ‘significant assistance’.
o It will be extremely difficult for interveners to gauge in advance whether their
intervention will be likely to be of sufficient assistance to avoid an automatic costs
order against them. Conversely interveners will only recover their costs from the
parties in ‘exceptional circumstances’. This further demonstrates the new hostile
approach to interveners, which will undoubtedly deter them from helping the
court, to the detriment of the quality of legal judgments.

• Disclosure of Financial Information (section 85 CJCA 2015):

o The Act also contains provisions requiring the disclosure of financial information
including any backers before a judicial review may be granted, and requiring the
court to consider making a costs order against backers if the claim is
unsuccessful. There will be a minimum level below which financial support would
not need to be declared (to be consulted on, but the government has indicated
that this may be £1,500 or 5% of available funds). The threshold will not apply to
organisations that cannot demonstrate that they are likely to have sufficient funds
to meet the costs of the claim.

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• Criticisms of the latest reforms:

o Critics of the proposed reforms argue that the individual will be deterred from
seeking judicial review and, as a result, public bodies will be less concerned
about the possibility of judicial review.
o This undermines the constitutional role of judicial review: the upholding of the
rule of law and of the will of Parliament.
o As Lord Reed explained in Axa General Insurance Ltd v HM Advocate [2011]
UKSC 46; [2011] 3 WLR 871 at paras 142 – 144:
 “Judicial review under the common law is based upon an
understanding of the respective constitutional responsibilities of
public authorities and the courts. The constitutional function of the
courts in the field of public law is to ensure, so far as they can, that
public authorities respect the rule of law. The courts therefore have
the responsibility of ensuring that the public authority in question
does not misuse its powers or exceed their limits….”
o Lord Reed went on to set out the dangers of powers which are so widely drawn
that the courts could not review the decisions in relation to relevant or irrelevant
considerations. Likewise, where an authority is free to decide for what purposes
powers may be exercised, the possibility of review on the basis of arbitrariness or
improper purpose is reduced. The ability to rule on rationality or irrationality is
also reduced where broad powers are conferred. Furthermore:
 “The principle of legality means not only that Parliament cannot
itself override fundamental rights or the rule of law by general or
ambiguous words, but also that it cannot confer on another body,
by general or by ambiguous words, the power to do so.”
o Where, however, as with the government’s latest reforms, the individual is
deterred from seeking judicial review, the possibilities for determining the legality
or otherwise of the decisions of public bodies is seriously curtailed at the very
outset – at the application for judicial review stage. Judicial review upholds the
rule of law by requiring that public bodies act according to the law: undermining
access to judicial review expands the scope for potentially unlawful conduct and
undermines the rule of law.

(3) Merit-based review (proportionality)?

• R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2013]
EWCA Civ 1302; [2013] WLR(D) 412
o The appellant’s name had been added to a list of persons subject to sanctions
under a UN Security Council Resolution. One of the grounds of challenge was
that the correct standard of review of the decision is review on the merits rather
than the conventional rationality test.
o Laws LJ stated that a merits judgment would be an exception. The issue
touched on the separation of powers. A merits based approach would tend to
usurp the function of either the legislature by displacing the decision of the
decision maker to whom Parliament had entrusted the function, or the executive
where the decision was taken under the Prerogative.

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o As Laws LJ stated: ‘Manifestly, the courts have no business to usurp the

legislature or the executive’ (at para.41).

(4) Legitimate expectations:

• R (Patel) v General Medical Council Times LR 21 June 2013; [2012] EWHC 3688;
[2013] 1 WLR 2694
o Dr Patel (P) appealed against the order of Hickinbottom J. dismissing his
application for judicial review of the decision of the General Medical Council
(GMC) to refuse to accept his Primary Medical Qualification (‘PMQ’) obtained
from the International University of Health Sciences, St Kitts and Nevis (IUHS) as
an acceptable overseas qualification. As a consequence he has been unable to
take a competency and linguist examinations set by the Professional and
Linguistics Assessment Board (PLAB) or undertake a placement in a NHS
hospital for Foundation Year 1.
o In November 2004 P entered into a chain of email correspondence with the GMC
(produced at 16-24 of the judgement), asking them whether they would accept
the primary medical degree from IUHS, which included a distance learning, pre-
clinical element. The material, ultimate response was on 16 November 2004;
 ‘The General Medical Council accepts the primary medical degree
awarded from the International University of Health, St Kitts for the
purposes of registration, this entitles the student to sit the PLAB exam in
order to by [sic] eligible for registration in the UK’.
o Thereafter, P enrolled in the MBBS course at the IUHS and undertook the
studies between 2005 and 2011. The pre-clinical studies were by distance
learning (apart from 2 months at St Kitts). Having successfully passed the
relevant examinations, P then completed his supervised clinical rotations at a
number of hospitals in London, Surrey and Sussex. He passed all rotations,
achieving honours in 13 out of 19 of them. He completed his MBBS with
distinctions in July 2011. The total expenditure on this endeavour was
approximately $40,000.
o P then needed to undertake a foundation year at a UK hospital, and thus needed
to pass the PLAB examination and to obtain GMC provisional registration. In
response to P’s query, the GMC responded;
 ‘Having considered the information provided to us, it appears your PMQ
is not currently acceptable to the GMC: this is because Point 5 of the
criteria [i.e. paragraph e] requires that at least 50% of the standard
course of study is undertaken in the country that awards the
qualification.’
o This position was as a result of new criteria adopted by the GMC in 2006 and
2010.
o High Court:
 It was held by Hickinbottom J that the GMC had not fettered their
discretion with the new criteria, nor was it irrational for them to insist on a
requirement that goes to ensure that an awarding institution has a proper
degree of control and supervision over the period of study. The learned
Judge went on to find that, in relation to the claim by P that the GMC had
frustrated a legitimate expectation:

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• ‘There is simply no clear and unequivocal representation in the

terms suggested…there is no representation as to the future, or
that the GMC would not change the criteria for acceptable
overseas qualification in the future.’
 It was held that it was not reasonable in the circumstances for P to
consider that the representation included a promise by the GMC that it
would not change the criteria during the period P was involved in
obtaining it.
o Court of Appeal:
 Giving the judgement of the Court, Lloyd Jones LJ held that the ‘high
preliminary hurdle’ that before a statement or representation can be
relied upon as giving rise to a legitimate expectation it must be ‘clear,
unambiguous and devoid of relevant qualification’ (R v IRC, ex parte
MFK Underwriting [1990] 1 WLR 1545 and R v IRC, ex parte Unilever plc
[1996] STC 681), was passed in this case:
• ‘on a fair reading in its context, it would reasonable have been
understood by the recipient as an assurance in relation to the
future. It is clear that the appellant understood it that way and
that this was followed by detrimental reliance on the assurance
by the investment of time, effort and money in the years which
followed in obtaining the qualification.I am satisfied therefore that
the appellant received a clear, unequivocal and unqualified
assurance from the Registration and Education Directorate of the
GMC, in the email of 16 November, the effect of which was that if
he completed the proposed course in a reasonable time the
qualification would be recognised by the GMC.’
 The further requirement that the party seeking to rely on the statement
must have placed all his cards on the table was also satisfied; P had
made entirely clear what his plan was.
 To give rise to a successful claim founded on legitimate expectation, the
representation must be a ‘pressing and focused’. In the case of Bhatt
Murphy v The Independent Assessor [2008] EWCA Civ 755, at 46-37,
Laws LJ suggested that while in theory there may be no limit to the
number of intended beneficiaries of a promise for the purpose of
legitimate expectation, in reality it is likely to be small if it is to be upheld
because it is hard to imagine a case where, for example, a government
would be held legally bound by a representation made generally or to a
diverse class. The broader the class claiming the benefit, the more likely
it is that the supervening public interest would be held to justify the
change of position. In this case, P’s repeated requests for clarification in
his emails focuses attention ‘very effectively’ on his specific position.
Therefore this requirement was held to be satisfied.
 The submission on behalf of the GMC that the reliance by P on the
representation in the email was contrary to the terms of the Medical Act
1983, which states that the definition of an ‘acceptable overseas
qualification’ is only one that is ‘for the time being’ accepted, was
rejected. It was held that ‘the statutory duty has to be exercised in
accordance with established principles of substantive fairness’ [55].
 The Court reminded itself that the initial burden lies on the appellant
to prove the legitimacy of the expectation, and if he wishes to

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bolster his case, that he had relied upon that expectation to his
detriment. Once proved, the onus shifts to the authority to justify the
frustration of the legitimate expectation (Paponette v AG of Trinidad and
Tobego [2012] 1 AC). The question for the Court was therefore this; was
there a sufficient public interest to justify changing the rules so as to
deny recognition to qualifications which were obtained following a course
of study which involved a substantial distance learning element, without
making transitional provision for the case of P who had received an
assurance that his qualification would be recognised if obtained within a
reasonable time? It was for the GMC to prove that its refusal was so
justified.
 The Court considered that, given that this case the assurance was
directed to P personally and not to a larger class of people, given the
important of the expectation to P and the detrimental reliance placed on
it and given that the number of persons who may be affected by
upholding the legitimate expectation in this case is likely to be small;
• ‘It was not open to the GMC to change its policy in 2006 or again
in 2010 without adopting some transitional provision that would
cater for the case of this appellant. I am unable to identify any
sufficient public interest which outweighs the unfairness to the
appellant of refusing to honour the assurance given and to
recognise his qualification.’

o Summary:
 The Court of Appeal considered the concept of ‘legitimate expectation’.
In administrative law, if a public body creates expectation in the mind of a
person affected by its decision, either through its policy, or the making of
assurances, then that public body cannot simply ignore that expectation.
Through judicial review proceedings the courts will examine whether
such an expectation has been created, and if it has, will require the body
concerned to act accordingly.
 As a result of this decision, regulators must ensure that before changing
any registration or admission criteria, they make fully reasoned and
considered decisions, based on hard evidence, as to the necessity for
that change. They must also consider all of those individuals who may
have already embarked upon courses that would no longer qualify and
take steps to introduce transitional measures to mitigate such a situation.
Without a sufficient, tangible, and evidence based public interest
identified, it is likely to be unlawful.

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