La2008 Vle

Administrative law
Michael Varney
This module guide was prepared for the University of London by:
uu Michael Varney, LLB, PhD, Senior Lecturer, University of Hull.
This is one of a series of module guides published by the University. We regret that owing to
pressure of work the author is unable to enter into any correspondence relating to, or arising
from, the guide. If you have any comments on this module guide, favourable or unfavourable,
please use the form at the back of this guide.
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Administrative law page i
Contents
Module descriptor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Part I Administrative law, public authorities and decision-making processes 1
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Why is administrative law important? . . . . . . . . . . . . . . . . . . . . . 3
1.2 Aims of this module guide . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.3 Supporting your learning . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.4 The reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.5 Time spent studying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.6 The assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.7 Some final words . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2 Administrative law and constitutional theory . . . . . . . . . . . . . . 11

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.1 Links between administrative law and the Public law module . . . . . . . . 13
2.2 Administrative law and administrative justice . . . . . . . . . . . . . . . . 13
2.3 The functions of administrative law and administrative justice . . . . . . . .14
2.4 Theories of judicial review . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.5 What has this chapter sought to do? . . . . . . . . . . . . . . . . . . . . . 18
3 Public authorities and public power . . . . . . . . . . . . . . . . . . . 21

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.1 Public authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.2 What do public authorities do? . . . . . . . . . . . . . . . . . . . . . . . 23
3.3 Public power in private hands? . . . . . . . . . . . . . . . . . . . . . . . 24
3.4 The changing nature of the state . . . . . . . . . . . . . . . . . . . . . . . 27
Part II Judicial review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
4 The nature of administrative decision-making . . . . . . . . . . . . . 29

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.1 Legislation as a source of power . . . . . . . . . . . . . . . . . . . . . . . 31
4.2 Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.3 Rules and policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.4 Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5 The nature of judicial review . . . . . . . . . . . . . . . . . . . . . . . 39

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.1 The theoretical basis of judicial review . . . . . . . . . . . . . . . . . . . . 41
5.2 The impact of judicial review . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.3 Void and voidable decisions . . . . . . . . . . . . . . . . . . . . . . . . . 43
5.4 The grounds of judicial review . . . . . . . . . . . . . . . . . . . . . . . . 44
5.5 Codification as an alternative? . . . . . . . . . . . . . . . . . . . . . . . . 45
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6 Access to judicial review and remedies . . . . . . . . . . . . . . . . . 49

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.1 Procedural exclusivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.2 The process for claiming judicial review . . . . . . . . . . . . . . . . . . . 53
6.3 Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.4 Time limits and delay . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
6.5 Costs and other hurdles . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
6.6 The remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
6.7 Discretion and remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
7 The availability of judicial review . . . . . . . . . . . . . . . . . . . . 61

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7.1 Jurisdictional error and errors of law and fact . . . . . . . . . . . . . . . . 63
7.2 Errors of fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
7.3 Amenability to review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
7.4 Justiciability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
8 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
8.1 Arguments relating to a lack of legal authority . . . . . . . . . . . . . . . . 75
8.2 Failure to fulfil a statutory duty . . . . . . . . . . . . . . . . . . . . . . . 77
8.3 Use of power for an improper purpose . . . . . . . . . . . . . . . . . . . . 78
8.4 Relevant and irrelevant considerations . . . . . . . . . . . . . . . . . . . 78
8.5 Exercise and delegation of powers . . . . . . . . . . . . . . . . . . . . . . 79
8.6 Failure to follow statutory processes . . . . . . . . . . . . . . . . . . . . . 80
9 Irrationality, Wednesbury unreasonableness and proportionality

(including human rights issues) . . . . . . . . . . . . . . . . . . . . . 83
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
9.1 The Wednesbury test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
9.2 The development of the Wednesbury test . . . . . . . . . . . . . . . . . . 86
9.3 Where now for Wednesbury? . . . . . . . . . . . . . . . . . . . . . . . . . 89
9.4 The proportionality test in English law . . . . . . . . . . . . . . . . . . . . 91
9.5 What is proportionality? . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
9.6 Proportionality in human rights cases . . . . . . . . . . . . . . . . . . . . 93
9.7 Where does all this leave us? . . . . . . . . . . . . . . . . . . . . . . . . . 95
10 Legitimate expectations and equality . . . . . . . . . . . . . . . . . . 97

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
10.1 Legitimate expectations . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
10.2 Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
10.3 What has this chapter sought to do? . . . . . . . . . . . . . . . . . . . . 105
Administrative law page iii
11 Procedural fairness . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
11.1 The value(s) of procedural fairness . . . . . . . . . . . . . . . . . . . . . 109
11.2 Fair hearings and the right to participate in decision-making . . . . . . . . 112
11.3 The scope and impact of Article 6 ECHR . . . . . . . . . . . . . . . . . . . 115
11.4 The duty to give reasons . . . . . . . . . . . . . . . . . . . . . . . . . . 116
11.5 The rule against bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Part III Other methods of grievance redress . . . . . . . . . . . . . . . . 123
12 Ombudsmen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
12.1 The jurisdiction and powers of the ombudsmen . . . . . . . . . . . . . . 125
12.2 Judicial control over the jurisdiction of the ombudsmen . . . . . . . . . . 128
12.3 Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
13 Tribunals and inquiries . . . . . . . . . . . . . . . . . . . . . . . . . 131

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
13.1 The system of tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
13.2 Inquiries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
14 Liability in private law . . . . . . . . . . . . . . . . . . . . . . . . . 137

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
14.1 The general position on liability . . . . . . . . . . . . . . . . . . . . . . 139
14.2 Routes to liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
14.3 The possible benefits and risks of imposing liability . . . . . . . . . . . . 141
14.4 Some basic principles on negligence liability . . . . . . . . . . . . . . . . 142
14.5 Could the law be reformed? . . . . . . . . . . . . . . . . . . . . . . . . 144
14.6 Misfeasance in public office . . . . . . . . . . . . . . . . . . . . . . . . 144
14.7 Human Rights Act damages . . . . . . . . . . . . . . . . . . . . . . . . . 145
14.8 The law of restitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
15 European and comparative influences . . . . . . . . . . . . . . . . . 149

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
15.1 Influences on the standard of and approaches to judicial review . . . . . . 151
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Notes
Administrative law page v
Module descriptor
General information
Module title
Administrative law
Module code
LA2008
Module level
5
Contact email
The Undergraduate Laws Programme courses are run in collaboration with the
University of London. Enquiries may be made via the Student Advice Centre at:
enquiries.londoninternational.ac.uk
Credit
30
Courses on which this module is offered

LLB, EMFSS
Module prerequisite
None
Notional study time

300 hours
MODULE PURPOSE AND OVERVIEW

Administrative law is offered as an optional module to students studying on the
Standard Entry and Graduate Entry LLB courses. It is also offered as an Individual
Module. Credits from an Individual Module will not count towards the requirements of
the LLB.
Administrative law is a hugely expanding field of English law. Its core purpose is to
ensure that any decisions or actions taken by government are lawful and, when they
are not, to provide redress for grievances. This module will appeal to students who
enjoy public law and have an interest in public affairs and human rights.
MODULE AIM
The module enables students to look in considerably more depth at issues touched
upon in only a cursory fashion in public law, namely the traditional grounds of
judicial review in both a substantive (illegality and irrationality) and procedural (the
principles of natural justice) sense; and the Human Rights Act 1998. The syllabus is
also structured to introduce students to such key administrative law concepts as locus
standi, the public/private law divide, legitimate expectations, the distinction between
void and voidable unlawful decisions, the tortious liability of public authorities, the
role of ouster clauses in legislation, and the influence of EU law, Commonwealth and
European legal systems on domestic administrative law. A small part of the syllabus
aims to acquaint students with other methods used to control the actions of public
authorities, primarily by considering the role of ombudsmen and tribunals within the
governmental system. The content of the module is also designed to lay consistent
emphasis on students developing an enhanced awareness of the ways in which these
page vi University of London International Programmes
various micro-level matters fit into broader theoretical issues such as the rule of law,
the separation of powers and the sovereignty of parliament.
LEARNING OUTCOMES: KNOWLEDGE

Students completing this module are expected to have knowledge and understanding
of the main concepts and principles of administrative law. In particular, they should be
able to:
1. Understand the key principles of judicial review;
2. Explain and offer a critical analysis the relationship between the various grounds of
judicial review and process-based issues such as locus standi and the public/private
divide;
3. Compare and contrast European (in the sense of EU Law and that under the
European Convention on Human Rights and Fundamental Freedoms) law and
English law relating to procedural fairness, legitimate expectations, proportionality
and fundamental human rights;
4. Explain and offer a critical analysis of non-court-based forms of control of

governmental action;
5. Examine how each part of the syllabus impacts upon the broader theoretical
context applicable to public law.
LEARNING OUTCOMES: SKILLS

On completion of this module students should be able to:
1. Evaluate and critique standard legal materials and arguments;
2. Engage in research in primary and secondary materials in order to build an

evidence base to support arguments that are put forward;
3. Apply the knowledge acquired in the module to respond to moderately complex

legal questions in both essay and problem question form;
4. Construct coherent and accurate responses to self-test questions drawing on

subject knowledge.
BENCHMARK FOR LEARNING OUTCOMES

Quality Assurance Agency (QAA) benchmark statement for Law (2015).
MODULE SYLLABUS
(a) The nature and scope of administrative law.
(b) The legal status and powers of administrative authorities. The Crown. Ministers. Civil
service, including executive agencies. Local authorities. Regulatory agencies. Other
public authorities, e.g. the National Health Service.
(c) Processes in public administration: legislation and delegated legislation. Discretion.

Rule-making. Policies. Adjudication. Consultation. Allocation of functions.
(d) Procedures and remedies of judicial review of administrative action under section 31
Senior Courts Act 1981 and Part 54 of the Civil Procedure Rules.
(e) The grounds upon which judicial review may be obtained, including illegality, procedural
impropriety, irrationality and legitimate expectation and the development of these
grounds. Exclusion of judicial review.
(f) ‘Ombudsmen’: the Parliamentary Commissioner for Administration. The Health Service
Commissioner. The Local Commissioners for Administration.
(g) Tribunals. The function, constitution and procedure of tribunals.

Administrative law page vii
(h) Inquiries: the origin and function of inquiries. Public local inquiries in relation to land-
use control. Other types of inquiries.
(i) Contract and tort liabilities and duties of public bodies. Restitution. Crown
Proceedings Act 1947.
(j) The impact of the European Convention of Human Rights on the development of English
administrative law.
(k) The impact of EU law, and European and Commonwealth legal systems on domestic
administrative law.
LEARNING AND TEACHING
Module guide
Module guides are the student’s primary learning resource. The module guide covers
the entire syllabus and provides the student with the grounding to complete the
module successfully. It sets out the learning outcomes that must be achieved as
well as providing advice on how to study the module. It also includes the essential
reading and a series of self-test activities together with sample examination questions,
designed to enable students to test their understanding. The module guide is
supplemented each year with the pre-exam update, made available on the VLE.
The Laws Virtual Learning Environment

The Laws VLE provides one centralised location where the following resources are
provided:
uu a module page with news and updates, provided by legal academics associated
with the Laws Programme;
uu a complete version of the module guide;
uu online audio presentations;
uu pre-exam updates;
uu past examination papers and reports;
uu discussion forums where students can debate and interact with other students;
uu Computer Marked Assessments – multiple choice questions with feedback

are available for some modules allowing students to test their knowledge and
understanding of the key topics.
The Online Library

The Online Library provides access to:
uu the professional legal databases LexisLibrary and Westlaw;
uu cases and up-to-date statutes;
uu key academic law journals;
uu law reports;
uu links to important websites.
Core text
Students should refer to the following core text. Specific reading references are
provided for this text in each chapter of the subject guide:
¢¢ Endicott, T. Administrative law (Oxford: Oxford University Press, 2018) fourth

edition [ISBN 9780198804734].
page viii University of London International Programmes
ASSESSMENT
Learning is supported through formative tasks in the module guide, including self-
assessment activities with feedback. There are additional online activities in the form of
multiple choice questions. These formative activities will prepare students to reach the
module learning outcomes tested in the summative assessment.
Summative assessment is through a three hour and fifteen minute unseen examination.
Students are required to answer four questions out of eight. Exam questions are
predominantly essay-based but the paper will also contain problem-based questions.
Permitted materials
None.
Part I Administrative law, public authorities and
decision-making processes
1 Introduction
Contents
1.1 Why is administrative law important? . . . . . . . . . . . . . . . . . . . 3
1.2 Aims of this module guide . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.3 Supporting your learning . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.4 The reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.5 Time spent studying . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.6 The assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.7 Some final words . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

page 2 University of London
Administrative law 1 Introduction page 3
1.1 Why is administrative law important?

When we consider the question of why a student may wish to study administrative
law, many answers might be offered. Administrative law is a crucial part of day-to-day
life and is invariably in the public eye. Many issues of great political controversy such
as immigration, prisons and the treatment of prisoners and issues relating to the
environment and social welfare are all inextricably linked to administrative law and
the controls that it imposes on the actions of the state. In the same way, regulation of
many economic activities, the development and use of land and many environmental
issues all involve administrative law and are frequently litigated in the courts.
Administrative law is a subject with broad applicability, which requires students to
engage with complex issues of governmental policy and decision-making.
The study of administrative law is a natural progression for those who enjoyed
studying public law. In public law, the main focus of the subject was ‘constitutional
law’, although there was also some coverage of issues of ‘administrative law’,
particularly judicial review. As you will come to see, the distinction between the
two subjects is not in any way precisely delineated and it is necessary to understand
constitutional issues in order to have a good understanding of the way in which
administrative law in England and Wales works and the reasons why the law has
developed in the way that it has. At present, administrative law is also the subject of
some significant constitutional tensions that you will be asked to reflect upon in later
chapters. As we will see, challenges and uncertainties exist in a number of areas. There
is considerable debate about access to judicial review, where the availability of legal
aid has been significantly reduced, and so there is a concern that claimants who do not
have access to financial resources are often not able to challenge administrative action
that is potentially unlawful. There is also much discussion about the precise scope
of the protection of human rights and whether, particularly when related to the UK’s
withdrawal from the European Union, the Human Rights Act 1998 should be modified
or replaced, perhaps reducing the potential for courts to declare governmental action
to be unlawful if such action conflicts with human rights standards. The process of the
UK’s withdrawal from the European Union is also an issue that causes great uncertainty
for administrative law. As we will see, EU law has had a significant impact on the
development of administrative law in England and Wales and the question of what
might happen to these influences after withdrawal is of particular concern.
It is possible to think about administrative law in many ways. In functional terms,

it may be useful to think of administrative law as being partly facilitative – it is a
way for government to implement policy decisions through the use of delegated
legislation (which you will have studied in detail in Public law), rule-making, the
exercise of discretion and the making of administrative decisions. The second aspect
of administrative law could be seen as being regulatory – the system provides
mechanisms for grievance redress whether through judicial review, tribunals, the
ombudsman, complaints systems or perhaps through an action in private law.
Issues over who can challenge particular government actions or decisions (is it just
individuals who are affected, or can businesses, pressure groups and even other
governmental bodies make a challenge?) and how exactly such challenges can be
brought will be considered as we progress through the module guide.
As you will see, there is a great deal of complexity in administrative law and the
subject builds upon your previous studies in Public law but will also require you to
develop your thinking on issues that you may already have considered in Contract law
and Tort law.
1.2 Aims of this module guide

This module guide is designed to aid you in achieving the following aims:
1. Understand the impact that constitutional law and practice has on the operation
of administrative law.
2. Develop an appreciation of the case law on judicial review and offer a critical
analysis of the way in which it has developed.
3. Offer a critical analysis of administrative law from a functional perspective.

To question to what extent the law is effective in fulfilling the facilitative and
regulatory functions outlined above and in what ways could it be improved.
1.3 Supporting your learning

For a course like the LLB programme there are a number of ways in which our central
resources for administrative law can support your learning in addition to the support
that you may receive from one of the centres. The main ways that you should look to
develop your learning in preparation for the assessment are as follows:
1. You should make use of this module guide. Here you can find details of what you
are expected to know (and might be tested upon), some explanations of the most
important points of law, some excerpts from the relevant legislation and case law
and clear guidance on the best reading to enhance your knowledge.
2. You can undertake the activities in this guide and make use of the feedback on the
VLE in order to assess your level of understanding of particular topics.
3. You can view the vodcasts on the VLE. These are designed to develop your
understanding of particular issues and to explain the core concepts and case law.
4. You can consider feedback from previous examinations in the Examiners’ reports
on the VLE. These are designed to give you an understanding of the strengths and
weaknesses of previous answers and how you can improve your own answers.
5. You may wish to look at the materials that are circulated on the VLE, including the
pre-exam update, as a way to draw your attention to the most important recent
developments.
6. To be aware of the most recent developments in the law, it may help you to follow
and read some of the blogs and other electronic resources referred to below.
1.4 The reading

Like all subjects of a law degree, there is a great deal of reading that one might
undertake for this module. In order to try to help you to manage this reading and
somehow prioritise it for your studies, the module guide refers to the core textbook
(discussed below), additional textbooks and then relevant case law and journal
articles. Administrative law has predominantly grown from common law roots, so
there are a great many cases – in fact, if one steps back and looks at the case load of the
appellate courts and particularly the Supreme Court, cases concerning administrative
law arise with considerable frequency. As such, the guide will encourage you to
focus on the most important cases and readings but will also encourage you to
consider additional and more detailed reading in order to deepen and enhance your
understanding in the various topics covered by this module guide. A good strategy for
reading would be as follows:
1. Consider the material in this guide and think about the issues that it focuses upon.
Try to concentrate on the key cases and concepts that are examined.
2. Read the textbook, in order to gain a clear understanding of the background to

these issues. Sometimes, in areas where the core textbook does not address issues
in particular depth, alternatives will also be recommended and you may wish to
consider these, too.
3. In areas where you would like to deepen your understanding, you may wish to
focus on some of the key articles referred to in the guide.
4. At the end of each substantive chapter there is then a list of ‘Further reading’. If
you would like to follow up on any issue in which you have a particular interest, or
where you would like to focus your studies, you could choose some material from
that list.
1.4.1 The core textbook

¢¢ Endicott, T. Administrative law (Oxford: Oxford University Press, 2018) fourth
edition [ISBN 9780198804734].
This is a very good introduction to administrative law that explains many of the
core issues very well, addresses many of the major cases and explains the law in an
interesting theoretical context. As such, it is a valuable way for you to develop your
understanding of the basic framework of the subject without getting caught up in the
detail that a number of the other textbooks offer. Each chapter of this module guide
recommends relevant reading from this book and you should aim to undertake this
reading as the first step towards developing your understanding of the subject.
1.4.2 Additional textbooks

In addition to the core textbook, the module guide recommends a number of other
relevant books that you may wish to draw upon to build your understanding of the
subject matter. Each chapter of the guide is likely to refer to one or more of these
books and you are encouraged, if they are available to you, to undertake this reading.
¢¢ Craig, P. Administrative law (London: Sweet & Maxwell, 2016) eighth edition
[ISBN 9780414055681] available in Dawsons via the Online Library
This book is a very famous and well-respected text on administrative law, written
by one of the leading experts in the field. The major strength of Craig is its depth,
detail and comprehensive coverage of both case law and theoretical issues and its
authoritative approach. The weakness for students is that the book is very detailed and
not always user-friendly or approachable for those with limited knowledge in the field.
Your studies would no doubt benefit from the use of Craig but more as an additional
resource after you have made use of the core textbook.
¢¢ Harlow, C. and R. Rawlings Law and administration (Cambridge: Cambridge

University Press, 2009) third edition [ISBN 9780521701792] available in
Cambridge Core via the Online Library www.cambridge.org/core/books/
law-and-administration/FC2BDB017437A11599BB97A76047D08C
This book is most valuable for its introduction to theoretical issues, rather
than necessarily for its coverage of the substantive law. Some chapters will be
recommended in the earlier parts of the module guide but throughout your study of
administrative law there is much of value to be gleaned from this text.
¢¢ Wade, W. and C. Forsyth Administrative law (Oxford: Oxford University Press,

2014) 11th edition [ISBN 9780199683703].
This is another valuable and authoritative textbook, which has particular importance
due to its excellent account of the development of the case law on a number of issues.
Its analysis of remedies and standing are very strong, for instance.
1.4.3 Practitioners’ texts

In addition to the textbooks, judicial review (which is a major focus of this module) has
generated a number of very good practitioners’ texts. These are not recommended
as a starting point but can be very useful to allow the consideration of specific legal
issues where you may wish to gain a deeper understanding. In general, these books do
not offer significant insight into the theoretical issues and are focused almost solely on
the practical.
¢¢ Fordham, M. Judicial review handbook (Oxford: Hart Publishing, 2012) sixth

edition [ISBN 9781849461597].
¢¢ Woolf, H. et al. De Smith’s judicial review (London: Sweet & Maxwell, 2018) eighth
edition [ISBN 9780414064041].
The use of these books is certainly not necessary and is not mandated but these could
be of use if you wish to chase up a specific point of law.
1.4.4 Case books

Administrative law has not developed the burgeoning market for cases and materials
books that seems to be the norm in some of the other subjects that you may have
studied. The purchase and use of such a book is not necessary for this module but,
should you wish to purchase a cases and materials book, the only one that is focused
on administrative law that is current is:
¢¢ Elliott, M. and J. Varuhas Administrative law: text and materials (Oxford: Oxford
University Press, 2016) fifth edition [ISBN 9780198719465].
The value of such a book, should you wish to purchase it, is that it adds excerpts of key
pieces of legislation and case law plus some other relevant primary and secondary
sources in addition to the textual commentary. However, if you make use of the
materials in this module guide plus the textbooks and supplementary readings, you
should be able to get a good sense of the law without the need for such a purchase.
1.4.5 Journals
There are two specialist journals dealing with public law issues – Public Law and Judicial
Review. Both of these are available in the Online Library and you may have access to
hard copies. They will be referred to on a frequent basis throughout this module guide
and you will be advised to read some articles from these journals in order to enhance
your understanding of particular legal issues. Please try to make use of them when you
are advised to do so.
In addition to these journals, administrative law is a subject upon which articles are
frequently published in the major legal journals, including the Law Quarterly Review,
Cambridge Law Journal and Modern Law Review. You have access to all of these journals
in the Online Library and it is impossible to underestimate the value of reading articles
on specific topics. These will enhance your understanding, bring different critical
perspectives on the law and will also allow you to significantly develop your thinking
and improve answers to exam essays if you make use of them.
1.4.6 Online resources

The development of the internet as a resource for administrative law is something that
should not be ignored. However, the key with internet sources is to be selective – there
is much that is not of good quality or that is simply not accurate to be found on the
internet. However, some academics and practitioners keep excellent blogs on public
law issues. Some that you may wish to look at and follow are:
uu Professor Mark Elliott’s Public Law for Everyone blog:

https://publiclawforeveryone.com/
There are some superb posts on this blog – some of these are not focused on
administrative law but may be more on public law generally or on constitutional law,
however, there is much that is of value here and it is a great way to keep up-to-date
with key developments in the law.
uu The UK Constitutional Law Association blog:

https://ukconstitutionallaw.org/blog/
The material here is not all focused on constitutional law and many important issues
for administrative law are considered.
uu The UK Human Rights blog:

https://ukhumanrightsblog.com/
This blog offers some superb material and some very helpful case summaries. Some of
these are referred to later in the module guide.
uu The Admin Law blog:

https://adminlawblog.org/
This offers some excellent material on administrative law throughout the common law
world. It is relatively new but is updated regularly.
1.5 Time spent studying

It is impossible to generalise on how long you should spend studying this module
as individual needs (and the time that you have available to study) varies greatly.
However, there is no doubt that if you want to develop a good understanding of
administrative law then you need to set aside some time each week to study the
material and undertake the reading. You should also aim to complete the activities in
the module guide and look at the feedback as a way to gauge your own understanding
of the subject. As you complete each chapter of the guide (the chapters are largely
designed to build up on one another) then you should set aside some time to revise
the material that has been covered – revision is best done as a continuous process,
rather than only at the end of a module as the exam approaches.
At examination time, it will be necessary to dedicate additional time to the study of

the subject. You should, by then, have notes and materials to draw upon and the focus
ought to be upon developing your thinking in order to put you in a position to offer
good answers to the exam questions. As such, in areas you feel that you know well and
are confident that you would be able to answer an exam question, you may want to
augment your knowledge by reading journal articles to offer a wider range of critical
perspectives on the area concerned. For areas that you know less well, but think
that you may need to know for the purposes of the exam, it is imperative that you
undertake intense study, drawing particularly on textbooks to give you a framework of
knowledge.
The key thing to remember is that we cannot and do not expect you to know absolutely
everything in this module guide to a perfect level and we do not expect you to have
read absolutely everything that is referred to in the guide. The guide is designed as
a resource – those with a particular interest for, and passion in, administrative law
will want to make use of much of this material, others less so. What is important for
the purposes of the assessment is that you have a solid knowledge of the core areas
covered by the syllabus, preferably with insight into some of the case law and journal
articles, so that you can demonstrate this in the assessment. More generally, you will
find that in a future career, whether in the law or elsewhere, almost all areas of life,
work and business are somehow touched by issues of administrative law, so knowledge
of this is likely to serve you well in the future.
1.6 The assessment

The assessment takes the form of a three-hour-fifteen-minute examination, where you
will be expected to answer four questions. On each paper there will be seven essay
questions and one problem question. You are not required to answer the problem
question, so it is possible to answer four essay questions should you wish to do so.
The questions on the paper vary from year-to-year and are designed so that some
are more general (so you need a general knowledge of the themes from the module)
and some will be more specific (so will require substantive knowledge of particular
subject areas, such as control of discretion, procedural fairness, standing, legitimate
expectations and so on). Problem questions are challenging in the sense that they are
likely to require substantive knowledge of a number of different areas of the module
but at the same time they offer an excellent opportunity for you to demonstrate
knowledge in a structured fashion.
1.6.1 The essay questions

Essay questions are designed to test you on your knowledge of the law but also seek
to test your analytical skills – your marks will be strengthened if you can answer
the questions using an analytical framework, which seeks to offer a response to
the question. As such, the best essays might be expected to have an introduction,
considering what the question is asking and explaining the approach that you will
take in response then the substantive body of the essay, drawing on relevant case law,
statutory material and perspectives from the literature (books, journals, blogs, etc.)
in order to respond to the question. The essay would then have a conclusion, drawing
together the main points and responding to the question.
Examples of the best ways to integrate literature can be found in the Examiners’
reports for the exams, so rather than reproducing any here you are encouraged to
look at these on the VLE – they are likely to be much more enlightening than a general
example offered here as they show how this might be done (both done well and less
well) in the specific context of particular exam questions.
Some key pointers in relation to exam technique are:
1. Do adopt a structure that answers the question and explains to the reader how
your points fit together.
2. Do make reference to relevant examples from statute, case law and the literature
in the field to support your points and to raise critical perspectives on the points
that you make.
3. Do ensure that you have knowledge of enough areas of the module to allow you
to offer a sufficient number of answers to questions in the subject area. You know
that you will have to answer four questions, so if you only know two areas of the
syllabus in any detail, this is unlikely to serve you well!
4. Do not learn answers to essay questions and then write them in the exam to any
question that is vaguely in the same area as the essay that you have learned. This is
not what is required and is unlikely to earn a great deal of credit.
5. Do not write very general responses with no reference to practical examples

from statute or case law (unless the question demands this) as this will not glean
a great deal of credit. As an example, a completely abstract discussion of the law
on procedural fairness, standing or rationality review with little or no reference to
relevant case law is unlikely to pass.
1.6.2 The problem questions

Problem questions require a completely different approach to that adopted for
essay questions. Rather than analysing the law, the problem questions are designed
to determine the extent to which you can identify legal issues, apply relevant law
to them and then advise the client who is seeking advice. Problem questions can
be challenging as they will probably require knowledge of a number of areas of
substantive law but some people like to answer them because they offer a structure
in which a response can be made. They are also a good simulation of the kind of issues
that you could come across in legal practice in the field of administrative law. The
approach that may be useful to you for administrative law problems is as follows:
Cover issues that may be generally applicable – do the clients have standing? Have they
exhausted all other methods of resolving their complaint? Are the issues amenable to
judicial review?
Issue Identify the legal issues raised by the client. Credit will be given for
sophistication, so try to break down issues into sub-issues if any are
relevant.
Relevant law Identify the relevant law applicable to the issues. Additional credit will
be given to those who identify any conflicting approaches in the case
law and then determine which approach is likely to be adopted in the
case at hand.
Advice Advise the client on the approach that will be taken in their case and
what would be best for them to do. If they are unlikely to have a claim
then you should advise them of this. Particular credit will be given if you
could advise the client on the remedy that might be obtained.
1.7 Some final words

This whole module guide is designed to support and enhance your learning of
administrative law as a subject. It is not possible for the guide to replace a textbook
(and it would not be appropriate for it to do so) but it is designed to guide you
on what you need to know in order to complete the module with success and to
structure your reading in order to enhance the understanding that you have.
In addition to the guide, there are a range of other resources, including the pre-
exam updates, the feedback on previous examinations and the vodcasts that we
have produced. All of this material is specifically designed to support your learning
and to help you do well in this module. If you think that any of this material could
be improved or enhanced, please do not hesitate to do so in the module feedback
questionnaires. The Convenor will consider all of your responses and will take action
accordingly. Student feedback is one of the ways in which we can develop and improve
the materials that are on offer for future cohorts of students.
We are glad that you have chosen to study administrative law and we are confident
that you will derive great benefit from doing so. We hope that you find the module an
enjoyable experience.
Notes
2 Administrative law and constitutional theory
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.1 Links between administrative law and the Public law module . . . . . . 13
2.2 Administrative law and administrative justice . . . . . . . . . . . . . . 13
2.3 The functions of administrative law and administrative justice . . . . . . 14
2.4 Theories of judicial review . . . . . . . . . . . . . . . . . . . . . . . . 17
2.5 What has this chapter sought to do? . . . . . . . . . . . . . . . . . . . 18

Introduction
The first step in the study of administrative law is for students to understand the
way in which the Administrative law module might link to your earlier studies in
Public law. The Public law module will have introduced you to the constitutional
system in the UK and the major institutional actors. It will also have introduced you
to some important concepts such as the rule of law, the sovereignty of parliament
and the sources of power in the UK constitution, particularly the power bestowed on
public and private actors of all kinds by parliament through primary and secondary
legislation and also the use of the prerogative powers. We will return to these issues
in a number of different ways in this module guide but it will help if you go back and
refresh your memory about the main features of these ideas from your Public law
studies.
This chapter aims to allow you to do the following things:
uu Identify the ways in which some of the concepts that you learned about in Public
law are relevant to administrative law. You should already have some knowledge of
the basic elements of judicial review from the Public law module.
uu Understand what administrative law aims to do and also to draw a distinction

between the facilitative and regulatory aspects of administrative law.
uu Appreciate that redress of administrative grievances is a process that is broader

than judicial review. Most administrative grievances are dealt with outside of the
judicial review system.
uu Consider the different theories that seek to explain and justify judicial review
within our constitutional system, assessing whether any of them are completely
satisfactory.
Learning outcomes
Having completed this chapter, and the Essential readings and activities, you should
be able to:
1. Explain the main linkages between core concepts in public law and the study of
administrative law, including the way in which administrative law and judicial
review are linked to these concepts.
2. Explain and analyse the major functions of administrative law and judicial
review.
3. Explain theories of administrative justice, acknowledging that systems of

administrative law and administrative control operate outside of the judicial
system as well as within it.
4. Analyse the main theories which seek to explain the work of the courts in
judicial review cases in light of their competing claims and explanatory force.
Core text
¢¢ Endicott, Chapter 1 ‘Administration and the principles of the constitution’.
Essential reading
¢¢ Harlow and Rawlings, Chapter 1 ‘Red and green light theories’ (available in
Cambridge Core).
Administrative law 2 Administrative law and constitutional theory page 13
2.1 Links between administrative law and the Public law

module
Many of the concepts that you learned about in public law are important for the
study of administrative law. In particular, you may wish to consider how some of
the concepts that you examined in that module are linked. This is well-explained in
Endicott’s first chapter but to reiterate some of his points:
Concept Importance
The separation of powers Creates the idea that there are three branches of
government – the legislature, the executive and the
judiciary (although in the UK the legislature and the
executive are perhaps more closely related than in some
other systems). The separation of powers requires that
each branch of government has certain tasks allocated to
it. Inevitably, within this ‘division’, each branch has some
overlapping competence. See Endicott, Table 1.1 for an
explanation.
The rule of law You may well have learned about the Diceyan concept of
the rule of law as constitutional orthodoxy. However, a more
general account of the rule of law, such as that offered by
Endicott, requires that:
‘the life of the community is governed by clear, open, stable,
prospective [in the sense of not being retroactive] general
standards’, ’government officials adhere to those standards’
and ‘there are independent tribunals (i.e. courts) that
regulate the conduct of the other institutions’. (Endicott,
p.20.)
Accountability To some extent, the core focus of much of our public law
is to ensure that those who exercise public power are
accountable. Accountability is a multifaceted concept and
it is important not to get lost in the idea that only legal
methods of accountability are appropriate. In Chapter 3 we
will consider various forms of accountability mechanism
but for the time being you should bear in mind that there
are methods of political accountability (predominantly to
parliament), legal accountability (to courts and tribunals)
and there are also other forms of accountability such as
accountability through audit for the use of finance and
accountability through inspections and ratings in many
other areas of public service provision (such as schools,
hospitals and the like). Finally, there may be accountability
through publicity and to the media, which is an important
way of delivering accountability in modern societies.
Provision for freedom of expression can thus be important.
2.2 Administrative law and administrative justice
Essential reading
¢¢ Birkinshaw, P. ‘Grievances, remedies and the state – revisited and re-appraised’
in Adler, M. (ed.) Administrative justice in context (Oxford: Hart Publishing, 2010)
[ISBN 9781841139289] available in the Online Library at https://www.dawsonera.
com/abstract/9781847315755.
¢¢ Harlow and Rawlings, Chapter 1 ‘Red and green light theories’.
¢¢ Leyland, P. and G. Anthony Textbook on administrative law (Oxford: Oxford

University Press, 2016) eighth edition [ISBN 9780198713050], Chapter 1
‘Introduction, theory and history’.
¢¢ Mullen, T. ‘A holistic approach to administrative justice?’ in Adler, M. (ed.)

Administrative justice in context (Oxford: Hart Publishing, 2010)
[ISBN 9781841139289] available in the Online Library at https://www.dawsonera.
com/abstract/9781847315755.
The two concepts of administrative law and administrative justice are not necessarily
easily defined. It is perhaps easier to define a concept of ‘administrative law’ as the
law that regulates relationships between the citizen and the state, or the citizen
and public authorities. As noted earlier, administrative law might be considered to
be facilitative (i.e. to ensure that public administration is carried out effectively and
efficiently) or regulatory (i.e. to regulate the behaviour of public authorities and
ensure that they remain within their proper legal boundaries). In England and Wales
(and the remainder of the UK) much of our administrative law is judge-made and,
more than in other states, a great deal of it is regulatory rather than facilitative. Part
of the reason for this is that in many European states and in the USA much public
administration is governed by codes of administrative procedure, which regulate the
way public authorities can take action but, at the same time, facilitate the way public
administration can be carried out in a lawful manner through the provisions that are
in place.
Administrative justice is a more complex concept. It is a crucially important one from

your perspective as a student because the administrative justice concept should
emphasise that the control of public authorities is not undertaken just through
administrative law and that, in truth, a great deal of the work on dispute resolution
between the citizen and the state is undertaken through methods other than courts.
Mullen defines administrative justice as follows:
The term ‘administrative justice’ may be used either prescriptively or descriptively. Used
prescriptively, it refers to principles that may be used to evaluate the justice inherent in
administrative decision-making, that is, the principles to which administrative justice
ought to conform … administrative justice has both substantive and procedural elements
with the former focusing on correct outcomes (persons get what they are entitled to
both in terms of benefits and burdens) and the latter on procedural fairness (persons
get what they are entitled to in terms of the manner in which they are treated). Used
descriptively, ‘administrative justice’ denotes a field of inquiry. We need to be clear what
we mean by administrative decision-making, that is, which social processes are grouped
together for analysis under the rubric of administrative justice … I use the term to refer
essentially to decisions made and actions taken by government bodies of all kinds so that
the justice in question is that due from the citizen to the state. (Mullen, p.383.)
The above quotation demonstrates that administrative justice is a broader concept

than that of administrative law in some respects (in the sense that it focuses on a
broader set of dispute resolution mechanisms than courts and tribunals) but it is also
narrower in that it is predominantly a concept that deals with the regulation of state
activity.
2.3 The functions of administrative law and administrative

justice
When we think about the functions that administrative law and administrative justice
might have, we can start, as noted above, from the division between facilitative and
regulatory approaches. We might also consider other ways of viewing the role of
administrative law and administrative justice. An interesting way of regarding the
broad functions of administrative law comes from Leyland and Anthony (p.2), who
suggest that we could draw out a number of functions for administrative law. These
might be encapsulated as follows:
Function Description
Control Controls the arbitrary or unlawful use of governmental power. This
links with Endicott’s focus on arbitrariness and the role of the law,
through the principle of legality and other tools, in controlling the
arbitrary use of power.
Command The courts can command public authorities to use their power in
a lawful manner. Similar to the control function, it seeks to ensure
that power is not abused in an arbitrary way, in the sense that public
authorities ought not to be able to withhold the use of their powers
in an arbitrary manner, much in the same way as they should not be
able to use their powers in an arbitrary manner.
‘Positive In essence, an argument that the system should not only be
principles to about preventing unlawful acts but also about channelling public
facilitate good authorities to improve decision-making. Endicott makes a similar
administrative point in his discussion of ‘good’ and ‘reasonable’ government and the
practice’ way in which these might be delivered in Chapter 1 of his book.
Accountability Leyland and Anthony, and Endicott are agreed that administrative law
and transparency should aim to ensure the exercise of public authority is accountable
and also that it is transparent (or subject to the principle of open
government as Endicott describes it).
Grievance redress Leyland and Anthony note that administrative law ought to provide
for redress of grievances. This is not so much of a focus of Chapter 1 of
Endicott’s book (although it is implicit in his discussion that citizens
with grievances should have redress) but it is clear throughout the
literature that grievance redress, where citizens are in dispute with
the state in relation to their rights, is an important part of the role of
administrative law and administrative justice.
The above table builds on Leyland and Anthony’s broad characterisation of what
administrative law may aim to do and emphasises that most authors are in broad
agreement over the above objectives, even though they may describe these
functions in slightly different ways. We shall see that a variety of institutions, and not
just the courts through their judicial review powers, might deliver the objectives
outlined above. One important thing to note from Endicott’s first chapter is that he
discusses what he describes as the ‘principle of relativity’ (p.13). Endicott argues that
administrative law and the requirements that it imposes must be sensitive to context,
with the result that ’The law should not impose the same forms of control on a power
to conduct relations with foreign countries that it imposes on a power to detain
people’ (ibid.). In the same way, a system of administrative law and administrative
justice needs to draw on this principle of relativity to deliver effective means for the
redress of grievance that are not too demanding on resources – it may be that minor
disputes that have relatively little impact on the individual are best dealt with through
more informal mechanisms, or through tribunals, whereas major disputes about the
legality of action or where there is a severe impact on individual rights might be best
dealt with in the courts through judicial review.
Activity 2.1
Read Chapter 1 of Endicott and answer the following questions:
a. Explain the importance of the rule of law to administrative law. What values can
be drawn from the rule of law that inform its underlying principles?
b. Explain the importance of administrative law in delivering accountability

mechanisms for government.
Activity 2.2
Consider the ways in which administrative law tries to ensure the redress of
grievances. In so doing, you may wish to consider (in general terms) the role of
judicial review, tribunals and inquiries, along with more informal mechanisms like
internal complaints mechanisms.
2.3.1 Red light and green light

Another famous way to think about administrative law is drawn from the work of
Harlow and Rawlings, who suggest that we might look at administrative law from a
‘red light’ or a ‘green light’ perspective. It is impossible to summarise the whole of the
‘red light’ and ‘green light’ theories into a few pithy lines, as Harlow and Rawlings draw
upon such a wide range of sources to explain what they mean in these two concepts.
However, in terms of characteristics, you will probably find it helpful to start from the
following points of view:
Red light Green light

A focus on judicial control of administrative A less suspicious view of the state,
action through judicial review. A general with a greater focus on facilitation of
suspicion of the state and administrative administrative action. This theory grew
activity and a preference for laissez-faire during a period of huge expansion of
government with only limited government state activity. The green light theory
intervention. To some extent, linked with generally seeks to minimise the role of
Dicey’s theory of the constitution. courts, viewing them as an obstruction to
effective administration. It would not be
true, however, to suggest that green light
’The red light view of English administrative theorists accept arbitrary government.
law as an instrument for the control of
power and protection of individual liberty,
the emphasis being on courts rather than ‘Green light theory prefers democratic or
government…’ (Harlow and Rawlings, p.31.) political forms of accountability.’ (Harlow
and Rawlings, p.38.)
Red light and green light theory can be a very useful way to think about different ways
in which governmental power can be controlled. Red light theory seeks an enhanced
role for the courts in the control of administrative action whereas green light theory,
while accepting a role for courts, would emphasise other forms of control. Harlow
and Rawlings ultimately declare themselves as pragmatic – not demanding that any
approach to administrative law or justice conforms to a grander theory of the state
(Harlow and Rawlings, p.48).
2.3.2 The protection of the individual

It might also be argued that a central part of the role of administrative law lies in the
protection of the individual from unlawful or arbitrary administrative action. The
importance of protection of the individual has been emphasised since the passage of the
Human Rights Act 1998, s.6 that renders it unlawful for a public authority to take action
that infringes Convention rights, unless primary legislation requires the public authority
to do so. It is untrue to say that the courts did not focus on protection of the individual
prior to the passage of the Human Rights Act 1998 – we will draw upon a wide range
of examples from the control of discretion, the imposition of procedural protections
and a variety of other fields, which demonstrate that the courts were sensitive to the
protection of individual rights for many years. The example of R v Local Government Board,
ex parte Arlidge [1915] AC 120 is a good example – in this case the House of Lords found
that it was unlawful for the Board to close Arlidge’s house (where he held the lease) as
unfit for human habitation because, before making the determination, it had not given
Arlidge an oral hearing, divulged the identity of the inspector who took the decision or
provided him with a copy of the inspector’s report. In the absence of such necessary
procedural steps, the decision of the Board was quashed.
Since the Human Rights Act 1998 came into force, there is a greater focus on the
protection of individual rights by the judiciary. This renewed focus has had an
impact in many areas – we can see this in procedural justice, where Article 6 of the
European Convention on Human Rights (ECHR) has necessitated a number of changes
to previous practices, e.g. in the control of discretion, where proportionality review
in human rights cases has brought about a substantial change in judicial approach
and also in other areas, such as the approach to liability and ajudication of public
authorities in light of the changes to the rule against bias brought about by Article 6
ECHR. Throughout the study of administrative law, it is important for you to be aware
of the impact of the Human Rights Act 1998 on administrative law and judicial review.
2.4 Theories of judicial review
Core text
¢¢ Endicott, Chapter 2 ‘The rule of law and the rule of judges’.
Essential reading
¢¢ Forsyth, C.F. and M. Elliott ‘The legitimacy of judicial review’ (2003) Public Law
286 (available in Westlaw).
¢¢ Jowell, J. ‘Of vires and vacuums: the constitutional context of judicial review’
(1999) Public Law 448 (available in Westlaw).
As administrative lawyers, it is inevitable that much of our work will focus on judicial
review – this is the main way the law seeks to shape and control administrative action,
so it is necessary for us to consider and reflect upon the way in which judicial review
links to constitutional theory. An examination of the constitutional underpinnings
of judicial review is therefore important and a consideration of the two (main)
competing theories of judicial review may help to frame your thinking.
2.4.1 What might a good theory of judicial review look like?

A good theory of judicial review might have many characteristics. However, it is clear
that one element that it must have is descriptive force – if its premises are not in any
way based in the actual practice of judicial review, the theory will not offer a good ‘fit’
with the practice of judicial review in England and Wales. Secondly, we might hope
that the theory has a good fit with the constitutional practice that presently exists. This
would need to have good explanatory force – i.e. why is judicial review the way that it
is today? What does this mean for the development of judicial review in the future?
The two main competing theories are the ultra vires and common law theories. The
ultra vires theory is based on the idea that judicial review is authorised by parliament,
whereas the common law theory is predicated on the basis that judicial review is
justified, not by the will of parliament, but by the inherent jurisdiction of the High
Court and thus the common law powers inherent in the court. In order to try to
understand the significance of this debate and why it has concerned a number
of scholars over the years, it is necessary to think about some of the potential
consequences of the theories should they be followed to their logical conclusions.
If we accept the ultra vires theory, the difficulty is that we are then accepting that
parliament could remove or exclude judicial review whenever it sees fit to do so.
This may be constitutionally orthodox (in the sense that it supports the idea of the
sovereignty of parliament) but it also places a significant potential limitation on
judicial review. If we accept the common law theory, a different challenge arises –
taken to its logical conclusion, if the common law is the basis for judicial review then
the courts should not feel confined by the will of parliament and may potentially
strike down primary legislation. Both theories have accepted weaknesses identified by
proponents of the alternative theory and we now have a ‘modified’ ultra vires theory
alongside the ‘traditional’ ultra vires theory and a ‘weak’ common law theory alongside
the more traditional ‘strong’ common law theory. You can find details of each of these
in the readings noted above. You should consider these theories and determine which
one you believe offers the strongest account of judicial review.
2.4.2 Do the theories matter?
Essential reading
¢¢ Allan, T.R.S. ‘The constitutional foundations of judicial review: conceptual
conundrum or interpretive inquiry?’ (2002) 61 Cambridge Law Journal 87
(available in the Online Library).
Allan has been critical of the debate between the proponents of the two opposing
theories of judicial review, arguing that the theories have more in common than
they have differences, particularly when the ‘weak’ common law theory is contrasted
with the ‘modified’ ultra vires theory. As such, he argues that we should depart from
this discussion and move towards a more focused debate on what we might expect
judicial review to do in the UK.
Activity 2.3
Read the Forsyth and Elliott article cited in the Essential reading and Chapter 1 of
Endicott and answer the following questions:
a. What are the major competing theories that are put forward to justify the
activity of the courts in judicial review?
b. Thinking back to your study of constitutional law, which of the theories appears
to be the most orthodox justification of judicial review from a constitutional
perspective?
c. What are the major descriptive strengths and weaknesses of the ultra vires and
common law theories? Does either theory offer a perfect descriptive account of
the operation of judicial review?
d. The ultra vires and common law theories have both been modified to respond to
the criticisms offered of them in the academic literature. In what ways have the
theories been modified?
Extension activity
Read the Allan article cited in the Essential reading and answer the following
questions:
a. What are Allan’s major criticisms of the debate that exists between the
proponents of the competing theories?
b. What does Allan think the debate should move on to focus upon? Do you agree
with him?
2.5 What has this chapter sought to do?

If you have read this chapter, considered the material in it, undertaken the Essential
readings and completed the activities then you should have met the learning
outcomes noted at the outset. You can use the feedback to the activities in order to
assess your level of understanding. You may wish to take away these final points from
this chapter:
1. As we have tried to illustrate above, administrative law and administrative justice

are broader than simply an analysis of judicial review.
2. The objectives of our system of administrative law and administrative justice

(if it is a system!) are contested, although there is broad agreement among the
commentators on the general objectives of the system.
3. There is no clear agreement over the theoretical basis of judicial review, although
the two competing camps are perhaps closer than they may first appear.
Further reading
General
¢¢ Adler, M. (ed.) Administrative justice in context (Oxford: Hart Publishing, 2010)
[ISBN 9781841139289].
¢¢ Cane, P. Controlling administrative power: an historical comparison (Cambridge:

Cambridge University Press, 2016), Chapter 2 ‘The English system of government’
and Chapter 5 ‘The development and institutional structure of control regimes’.
¢¢ Craig, Chapter 1 ‘The nature and purpose of administrative law’.
¢¢ Leyland and Anthony Chapters 1 to 5.

On constitutional theory and judicial review
¢¢ Craig, P. Public law and democracy in the United Kingdom and the United States of
America (Oxford: Clarendon Press, 1990) [ISBN 9780198256373].
¢¢ Craig, P. ‘Competing models of judicial review’ (1999) Public Law 428.
¢¢ Forsyth, C. ‘Of fig leaves and fairy tales: the ultra vires doctrine, the sovereignty
of parliament and judicial review’ (1996) Cambridge Law Journal 122.
¢¢ Irvine, Lord ‘Judges and decision makers: the theory and practice of Wednesbury
review’, Public Law (1996) Spr, 59–78.
¢¢ Laws, J. ‘Is the High Court the guardian of fundamental constitutional rights?’
(1993) Public Law 59.
¢¢ Laws, J. ‘Law and democracy’ (1995) Public Law 72.
¢¢ Laws, J. ‘Judicial remedies and the constitution’ (1994) 57 Modern Law Review 213.
¢¢ Sedley, S. ‘The sound of silence: constitutional law without a constitution’ (1994)

110 Law Quarterly Review 270.
¢¢ Sedley, S. ‘Human rights: a twenty-first century agenda’ [1995] Public Law 386.
Notes
3 Public authorities and public power
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.1 Public authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.2 What do public authorities do? . . . . . . . . . . . . . . . . . . . . . 23
3.3 Public power in private hands? . . . . . . . . . . . . . . . . . . . . . . 24
3.4 The changing nature of the state . . . . . . . . . . . . . . . . . . . . . 27

Introduction
This is a shorter chapter than those previously. It encourages you to revisit some things
that you will already have considered in public Law and build on this knowledge. You
will need to identify and describe various forms of public authority that exist in the
UK and understand something of their status and powers. These bodies are crucially
important as these are the bodies that create administrative rules, adjudicate on
individual cases and take all the actions or the inaction that may lead to a grievance
that then needs to be resolved by judicial review or other means.
Once we have considered the different types of public body, we shall then move
on to think about an issue that has troubled the courts and the theorists – to what
extent can private power be subject to judicial review? This problem has then been
compounded in more recent years because s.6(3)(b) of the Human Rights Act 1998
applies to public authorities and ‘any person certain of whose functions are functions
of a public nature.’ As such, there is clear potential for private bodies, which exercise
‘public functions’ (note that these are not defined in the Act), to be caught by its
provisions. We shall examine the way in which the courts have dealt with this issue.
Finally, we shall undertake a brief examination of the way the state has changed over
the years and consider what impact this might have on the development of judicial
review. The analysis of judicial review of private power illustrates the major challenges
brought about by privatisation and the ‘contracting out’ of the provision of public
services to private actors but there are a number of other challenges posed by the
changing contours of the state.
Learning outcomes
be able to:
1. Identify and describe the main forms of public authority in UK administrative
law.
2. Describe and analyse the approach of the courts to the exercise of public power
by private bodies, both in the common law and under the Human Rights Act
1998.
3. Describe and analyse the changes in the administrative state over time and the
impact of these changes on judicial review.
Core text
¢¢ Endicott, Chapter 1 ‘Administration and the principles of the constitution’.
Essential readinG
¢¢ Harlow and Rawlings, Chapter 2 ‘The changing state’ (available in Cambridge
Core).
Administrative law 3 Public authorities and public power page 23
3.1 Public authorities

There are many different kinds of public authority in the UK. Some of these bodies
(such as local authorities) have a relatively long history, whereas others are newer
creations. We can see that over time, private bodies have increasingly become a part
of the state, through ‘contracting out’ or other methods of delivering public services.
This has blurred the line somewhat between ‘public’ and ‘private’ bodies.
The major public bodies that you need to know something about are as follows:
Public body Nature of the body

The Crown ‘The “Crown” is a name for the government of the United Kingdom as a
legal person.’ (Endicott, p.626.)
The Crown is used in many senses in administrative law but it is clear
that the concept describes central government. As such, ministers and
civil servants are servants of the Crown.
Government Government may refer to all public authorities and the powers that
they exercise, or may be used in a narrower sense to refer to the
executive of the day – the prime minister and his or her ministers.
Secretary of A secretary of state is the head of a government department (for
state example, the Secretary of State for Foreign and Commonwealth Affairs,
or the Secretary of State for Transport). The secretaries of state are the
responsible ministers for the relevant government departments and
hold ministerial responsibility for the activities of their departments. In
addition, a problem in administrative law is that legislation frequently
grants powers to the secretary of state for a particular department and
these powers then need to be delegated to others. We will examine the
Carltona doctrine later in this guide.
Public authority A body created through public power or by another public body
designed to fulfil a task or tasks in the public interest.
New public A philosophy of public management and public service particularly
management associated with Margaret Thatcher’s government of the 1980s, where
the public sector is operated in a manner akin to the private sector,
with close monitoring of budgets, targets and so on.
Executive An agency that delivers public services under an agreement with a
agency government department. It is still a part of the department but enjoys
some level of managerial independence.
Non- An NDPB delivers public services or carries out tasks on behalf of
departmental the public sector. These bodies tend to be more independent than
public body executive agencies and are run outside of the department, usually
(NDPB) under an agreement with the department concerned.
Local authority A local authority is a corporate body created and operated under
the provisions of the Local Government Acts of 1972 and 1974 and the
Localism Act 2011. Local authorities generally enjoyed only limited
powers of competence, although these have been expanded by the
Localism Act 2011. Local authorities are responsible for delivery of public
services in a number of important areas including public housing,
social care, education (although their role in this has decreased), public
transport, etc.
3.2 What do public authorities do?

It is important to have some idea of what public authorities do. You should have
discovered from your reading for Chapter 2 that the state has grown enormously since
the time of Dicey. We are all reliant on a large number of core public services for our
health, education, provisions of pensions and social welfare benefits, disposal of our
waste, regulation of food safety, provision of public transport and so on. In addition
to this, government also has the power to regulate immigration and asylum, to issue
and potentially remove passports and to permit or refuse to permit the development
of new businesses and services. Furthermore, as the state is the holder of the ‘police
power’ it also has the police, the army and the prison system under its control. The
list of examples given above is not exhaustive and barely scratches the surface of the
activities undertaken by the modern state. Some of these activities affect everyone
on a daily basis, in others very few individuals may know of the activities of the state
in a particular area and even fewer may be affected by them. As you progress through
this module, the sheer scope of the activities of the state should become apparent
through your consideration of the case law. The facts of these cases and the areas of
activity that they touch upon are many and varied. Three such examples are the rights
of prisoners, the involvement of the state in immigration and regulation of travel
(particularly for those who may be accused of terrorism offences) and issues in respect
of the provision of welfare benefits of all kinds. Returning to Endicott’s principle of
relativity, it is perhaps unsurprising that these issues, which have such a large impact
on individual rights, appear frequently in judicial review cases.
For some areas of activity, where a large number of decisions are taken, such as in the
area of social welfare benefits, education or immigration, the role of controlling these
decisions is not left entirely in the hands of the courts through judicial review. As we
will see, a tribunal system also exists that deals with the vast majority of cases arising
from decision-making in these areas.
In Chapter 4 we will consider the way in which public authorities undertake their
activities – the different methods of rule-making and decision-making, all of which
should be accountable in one way or another. As we will see, there are different
methods of accountability in place in the system with some overlap – there may be
systems of political and legal accountability in place for each type of decision taken.
3.3 Public power in private hands?
Core text
¢¢ Endicott, Chapter 15 ‘Contracts’ (Sections 15.5 and 15.6).
Essential reading
¢¢ Woolf, H. ‘Public law – private law: why the divide?’ (1986) Public Law 220
(available in Westlaw).
¢¢ Oliver, D. ‘Functions of a public nature under the Human Rights Act’ (2004)
Public Law 329 (available in Westlaw).
As you will see as your study of the module progresses, judicial review is generally
available only where a public authority has taken a decision in relation to a ‘public
law matter’. This generally means that judicial review action cannot be taken against
private bodies and the remedies from judicial review cannot be granted against such
bodies Furthermore, it is not generally possible to claim judicial review of the ‘private’
decisions of public authorities, such as entering into contracts, reaching agreements
for the sale of property, etc. although, as you will see from Chapter 14 on contract and
tort in administrative law, this is not always the case.
As you will see from Lord Woolf’s article in the Essential reading, the courts were not
always so reluctant to engage in judicial review of private bodies. There may be good
reasons for doing so in some circumstances – particularly if the body concerned is
undertaking an activity that would otherwise have to be undertaken by the state and
no other remedy would exist.
3.3.1 Common law approaches

The common law has accepted in some limited circumstances that it may be
necessary to engage in judicial review of the exercise of a power that is purely ‘private’
(in the sense that the body concerned is not granted powers by statute or a public
authority). Two examples are offered below.
In R v Panel of Takeovers and Mergers, ex parte Datafin [1987] QB 815, the claimant
company was subject to sanction by the Panel on Takeovers and Mergers for an alleged
breach of the City Code on takeovers and mergers. It is important to note at this stage
that this was purely a private law dispute – the stock exchange is a private company
and those companies listed on it were bound through a contractual agreement to be
bound by the rules and to be subject to the decision of the Panel on Takeovers and
Mergers. All the same, the Could of Appeal held that the panel could be subject to
judicial review. In the case, Lord Donaldson MR said:
The issue is thus whether the historic supervisory jurisdiction of the Queen’s courts
extends to such a body discharging such functions, including some which are quasi-
judicial in their nature, as part of such a system. Mr Alexander, for the panel, submits that
it does not. He says that this jurisdiction only extends to bodies whose power is derived
from legislation or the exercise of the prerogative. Mr Lever for the applicants, submits
that this is too narrow a view and that regard has to be had not only to the source of the
body’s power, but also to whether it operates as an integral part of a system which has a
public law character, is supported by public law in that public law sanctions are applied if
its edicts are ignored and performs what might be described as public law functions.
In fact, given its novelty, the panel fits surprisingly well into the format which this court had
in mind in the Criminal Injuries Compensation Board Case. It is without doubt performing
a public duty and an important one. This is clear from the expressed willingness of the
Secretary of State for Trade and Industry to limit legislation in the field of take-overs and
mergers and to use the panel as the centrepiece of his regulation of that market. The rights
of citizens are indirectly affected by its decisions, some, but by no means all of whom,
may in a technical sense be said to have assented to this situation, e.g. the members of
the Stock Exchange. At least in its determination of whether there has been a breach of
the code, it has a duty to act judicially and it asserts that its raison d’etre is to do equity
between one shareholder and another. Its source of power is only partly based upon
moral persuasion and the assent of institutions and their members, the bottom line being
the statutory powers exercised by the Department of Trade and Industry and the Bank of
England. In this context I should be very disappointed if the courts could not recognise the
realities of executive power and *839 allowed their vision to be clouded by the subtlety and
sometimes complexity of the way in which it can be exerted.
Given that it is really unthinkable that, in the absence of legislation such as affects trade
unions, the panel should go on its way cocooned from the attention of the courts in
defence of the citizenry, we sought to investigate whether it could conveniently be
controlled by established forms of private law, e.g. torts such as actionable combinations
in restraint of trade, and, to this end, pressed Mr Lever to draft a writ. Suffice it to say that
the result was wholly unconvincing and, not surprisingly, Mr Alexander did not admit that
it would be in the least effective [at [837–838]].
A similar example can be found in R v Press Complaints Commission, ex parte Stewart-

Brady [1996] EWCA 986, where the Press Complaints Commission was found to be
subject to judicial review.
However, it is not enough for the activity of a particular body to be of great public
interest or concern – it is necessary that the body carries out a public function or quasi-
public function of some kind. As such, it is clear from the case law that some bodies
that may be involved in regulating activities of great public interest are not subject to
judicial review as the courts have held that these are private bodies with contractual
relationships with their members, hence if any remedy is to be sought then this should
come from the contractual relationship between the parties. For example:
R v Football Association, ex parte Football League [1993] 2 All ER 833 – no judicial review
if a body is neither set up by the state, nor likely to be set up if it did not exist. This
case concerned the decision of the FA to create the Premier League in the UK, which
was opposed by the Football League (comprising the clubs in the lower divisions).
The court accepted this decision was of particular interest to the public but also
acknowledged that the Football League and the FA had strong contractual links, which
were the source of redress if any were to be available.
R v Disciplinary Committee of the Jockey Club, ex parte Aga Kahn [1993] 1 WLR 909 – similar
to the above, there can be no judicial review of the disciplinary committee of the
Jockey Club (the body that regulates horse racing in the UK) as the links between the
parties here are contractual and thus any remedy must flow from that route.
3.3.2 The approach under the Human Rights Act 1998

As noted above, the Human Rights Act 1998 renders it unlawful for public authorities
or those exercising public functions to breach Convention Rights. The relevant
provisions of section 6 of the act are:
(1) It is unlawful for a public authority to act in a way which is incompatible with a
Convention right.
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could
not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which
cannot be read or given effect in a way which is compatible with the Convention
rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section ’public authority’ includes—
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature […]
The test set out in s.6(3)(b) is the one that has necessitated interpretation by the
courts. What is a function of a public nature and how do we determine what such a
‘public function’ is? The basic approach is a functional one – to ask whether the task
undertaken by the body concerned is adequately connected to public power or public
authority. This test is not entirely clear, so it is perhaps unsurprising that we have seen
a number of appeals to the Court of Appeal and House of Lords on this issue after the
Human Rights Act 1998 came into force.
R (On the Application of Beer) v Hampshire Farmer’s Markets Association [2003] EWCA Civ
1036 – this case determined that where a farmer’s market is set up and takes place
on property belonging to a local authority with financial support from that authority
then the company that runs the market is caught by s.6(3)(b) as it has significant
connection with the local authority concerned.
Marcic v Thames Water Utilities Ltd [2003] UKHL 66 – this case illustrates the challenge
where some functions are public and others are private. In this case, Thames Water
exercised a number of statutory functions in relation to the provision of drinking
water and the removal and treatment of waste water. The House of Lords held that
Thames Water was exercising public functions only to the extent that it was carrying
out statutory functions. The remainder of its actions were private and not subject to
the Act.
Parochial Church Council of Aston Cantlow and Wilmcote with Billesley v Wallbank [2003]
UKHL 37, [2004] 1 AC 586 – a Parochial Church Council exercising the right to charge
owners of properties close to the church for repairs to the church’s chancel was not
a public authority, despite the historical and continuing associations between the
Anglican Church and state. Here, the obligations incumbent on the property owners
arose from the deeds to their properties, so this was held to be a private issue.
YL v Birmingham City Council [2007] UKHL 27 – a divided House of Lords, with Lord
Bingham and Baroness Hale prepared to give s.6(3) a broad reading, while Lords Scott,
Mance and Neuberger came out in favour of a narrower interpretation. Although this
case turned only on the interpretation of s.21 of the National Assistance Act 1948 and
the ‘contracting out’ of care homes that has arisen thereunder, the case examined
many of the broader issues arising from the ‘public function’ test, and appears to
favour the narrow view. As such, in this case, despite the fact that the private care
home was providing a place to YL paid for by public money, it was not caught by the
Act.
¢¢ Read Endicott, Section 15.5.3 for an excellent discussion of the issues arising from
the YL case.
Activity 3.1
Read Endicott, Section 15.5 ‘Contracting out of administrative law?’ and answer the
following questions:
a. Why might it be important to make judicial review available in relation to the
activities of certain private bodies?
b. What characteristics does a private body need to have in order to render it

amenable to judicial review?
c. How do we determine when a body is ‘a person certain of whose functions are

functions of a public nature’ for the purposes of the Human Rights Act 1998?
d. Why is it important to ensure that some private bodies exercising public

functions are amenable to judicial review when the claim concerns rights under
the Human Rights Act 1998?
3.3.3 Why is this important?

The nature of the state is constantly changing, as you will have seen from your
reading for Chapter 2 and your consideration of the different kinds of public bodies
above. One trend that began in the 1980s and has continued to develop is that the
private and public sectors are working together more regularly, through ‘contracting
out’ of public services and other models, such as public–private partnerships and
collaborations between public authorities and operators in the ‘third sector’ (charities,
voluntary organisations, etc.). All of these developments lead to new challenges for
administrative law and judicial review in terms of the control and accountability of
these new arrangements. As such, the law needs an appropriate and flexible approach
to the review of private bodies and ‘public functions’ if it is to offer adequate protection
to the individual.
3.4 The changing nature of the state

Over time, the nature of the state has changed markedly. You should have drawn this
from your reading of Harlow and Rawlings, Chapter 2 recommended in the Essential
reading. In the late Victorian era, during Dicey’s lifetime, the state was relatively small
and few services and little social welfare were provided by public authorities. As a
result, the framework for the control of exercise of public power was similarly limited.
As the 20th century progressed and particularly after the Second World War, the
frontiers of the state expanded enormously, with a large number of public services
including pensions, unemployment benefits, universal education, healthcare and social
housing all growing enormously. In addition, in the period from 1950s to 1970s, the
state was heavily involved with many industries due to a process of nationalisation of
many key sectors. This led to the need for a more sophisticated system of control – to
some extent administrative law had to become more facilitative, because there was so
much more public administration going on but not only that, administrative law had
to develop more sophisticated and proportionate means of grievance redress, as the
volume of grievances in such an administrative system would far outstrip the resources
available in the courts to conduct judicial review.
The election of Margaret Thatcher’s government in 1979 arguably hailed the

development of the state that we have at the moment – most nationalised industries
have been privatised, the provision of public services increasingly involves the private
sector and most providers of the traditional public services (water, gas, electricity,
etc.) are now privatised. As a result, we can see that challenges might arise for the law.
We have already seen above in cases like Marcic and YL that it might be a challenge
for the courts to determine what are public functions for the purposes of judicial
review and exactly who should be subject to judicial review (should it be the public
authority contracting the service, or the private provider of the service?). In addition,
since 1980s there has been a more consumerist approach to public administration
and service delivery, with the increasing use of targets, inspections and ratings and
complaints systems to monitor the quality of service delivery. This is not necessarily a
bad thing but it is considerably different to what went before. Throughout your study
of administrative law, you are encouraged to consider the challenges to the courts and
public authorities in delivering public services and controlling the exercise of public
power in the ever changing state.

readings and completed the activities then you should have met the learning outcomes
noted at the outset. You can use the feedback to the activities in order to assess your
level of understanding. You may wish to take away these final points from this chapter.
1. There are many different forms of public authority in the UK and the nature of
public authorities is subject to continual change in line with government policy
and changing trends in public service delivery.
2. Administrative law needs to be flexible in order to deliver its objectives in light of

the changing nature of the state.
3. It may be necessary to control some private actors through judicial review or

under the Human Rights Act 1998, although determining which actors should be
controlled and which functions should be subject to review is far from simple.
4. The nature of the state has changed radically over the years, meaning that concepts
of public law from Dicey’s time, while having some value, are unlikely to deliver
adequate control mechanisms in the modern administrative state. In essence, as
time moves on and the state expands, contracts and changes the way that it delivers
public services, it will be necessary for administrative law to change too.
Further reading
General
¢¢ Craig, Chapter 2 ‘The administrative system: a historical perspective’, Chapter
4 ‘Agencies and non-departmental public bodies’ and Chapter 5 ‘Contract and
service provision’.
¢¢ Lewis, N. and P. Birkinshaw When citizens complain: reforming justice and

administration (Buckingham: Open University Press, 1994) [ISBN 9780335157440].
¢¢ Leigh, I. ‘The changing nature of the local state’ in Jowell, J. and D. Oliver (eds)
The changing constitution (Oxford: Oxford University Press, 2015) eighth edition
[ISBN 9780198709824].
¢¢ Prosser, T. ‘Regulation and legitimacy’ in Jowell, J. and D. Oliver (eds) The

changing constitution (Oxford: Oxford University Press, 2015) eighth edition [ISBN
9780198709824].
¢¢ Black, J. ‘Constitutionalising self-regulation’ (1996) 59 Modern Law Review 24.
Public functions and the Human Rights Act

¢¢ Borrie, G. ‘The regulation of public and private power’ (1989) Public Law 552.
¢¢ Joint Committee on Human Rights, HL 39/HC 382 – The meaning of public authority
under the Human Rights Act.
Available at: www.publications.parliament.uk/pa/jt200304/jtselect/
jtrights/39/39.pdf
¢¢ Sunkin, M. ‘Pushing forward the frontiers of human rights protection: the

meaning of public authority under the Human Rights Act’ (2004) Public Law 643.
¢¢ Denny, A. ‘Utility companies and the public/private divide’ (2005) Judicial Review 65.
¢¢ Pannick, D. ‘Functions of a public nature’ (2009) 14 Judicial Review 109.
¢¢ Williams, A. ‘Public authorities and the HRA 1998: recent trends’ (2017) Judicial
Review 247.
¢¢ Williams, A. ‘The pointlessness of section 6(5) HRA 1998’ (2018) Judicial Review 128.
Part II Judicial review
4 The nature of administrative decision-making
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.1 Legislation as a source of power . . . . . . . . . . . . . . . . . . . . . 31
4.2 Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.3 Rules and policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.4 Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Introduction
This chapter asks you to think about the nature of administrative decision-making in
the administrative state. There is no significant endeavour to revisit the legislative
process (whether for primary or delegated legislation) as this was addressed in the
Public law module. We will, however, briefly examine the ways in which primary and
secondary legislation might create and then potentially constrain the exercise of
administrative discretion. Some statutes create a relatively comprehensive framework
governing the exercise of discretion, whereas others are much more open-textured
and grant a much broader scope of discretion to a decision-maker. It is clear that
in some circumstances secondary legislation can be valuable because the primary
legislation might grant a discretionary power in relation to a specific field or subject
matter but then might require the adoption of secondary legislation to flesh out a
more detailed framework for the exercise of that power.
The existence of discretionary power is a fundamental part of the administrative

state. As the number of state functions has grown over time, it becomes necessary
for the state to deliver what K.C. Davis described as ‘individualised justice’ – i.e. the
provision of state services or the conferral of state benefits that are tailored to the
circumstances of individual claimants. You might remember from your studies in
Public law that the activities of the state have expanded markedly since Dicey’s
time and as time has gone on there has been a much greater focus on the delivery of
individualised benefits and services, which necessitates the expansion of discretionary
decisions in relation to the allocation of such resources. It is also true to say that the
modern state has expanded markedly in its approach to regulation of economic
activity, with many areas of the economy being subject to the need to seek the grant
of a licence to undertake a particular activity, or other requirements designed to
ensure the safety and security of the operation of public services, or to ensure that
such services meet the requirements set out in legislation (for example, in the spheres
of telecommunications or electricity). Licensing decisions and then the determination
of any sanctions should the conditions of such licences be breached also creates
the need for discretionary power, as the decisions over to whom licences should be
granted and whether applicants meet the necessary requirements for a licence to be
granted and also the question of which sanctions (if any) should be applied where
licences are breached are ultimately discretionary in nature.
In order to make these discretionary decisions, it is often necessary for public

authorities to engage in ‘adjudication’, which is the process through which many
administrative decisions affecting individuals might be taken. Administrative law
engages with the process of adjudication predominantly to ensure that standards of
fairness are adhered to and that those who participate in the adjudicatory process are
given an appropriate opportunity to put their case forward.
The final issue to be considered in this chapter is the process of consultation.

Consultation is the mechanism through which individuals and groups might have a
say about the creation of rules and policies that govern a particular area of activity. The
law in England and Wales has created a framework of expectations for public bodies
that are required by statute to undertake consultations and, as such, we will examine
these requirements to determine the minimum standards that the law requires.
Learning outcomes
be able to:
1. Identify and describe the main ways in which decisions are taken in the
administrative state.
2. Describe and analyse the challenges inherent in making administrative

decisions and the value of discretion when contrasted with rules, and the
challenges inherent in both approaches.
3. Assess the importance of public participation and consultation in the process of

administrative rule-making.
Administrative law 4 The nature of administrative decision-making page 31
Core text
uu Endicott, Chapter 1 ‘Administration and the principles of the constitution’.
Essential reading
uu Harlow and Rawlings, Chapter 4 ‘Making the law’ and Chapter 5 ‘Rules and
discretion’ (available in Cambridge Core).
4.1 Legislation as a source of power
Further reading
¢¢ Cooper, D. ‘Institutional illegality and disobedience: local government
narratives’ (1996) 16 Oxford Journal of Legal Studies 255.
¢¢ Halliday, S. ‘The governance of compliance with public law’ (2013) Public Law 312.
We will not revisit here the process of law-making in parliament, as you should have
studied and gained an understanding of the way Acts of Parliament and Statutory
Instruments are passed. Legislation is the predominant means that power is conferred
on public bodies and through which rules on the requirements to be followed by
public bodies can be set out. Such legislation might serve a number of functions:
1. It may lay down rules to be followed or duties to be fulfilled by public authorities.
2. It may grant discretionary power to public authorities, which may be relatively

open-textured (so the discretion is not governed by significant statutory guidance)
or it may be more limited, with a decision-maker being required to take account of a
variety of statutory criteria in the exercise of the discretionary power that is granted.
3. In the case of delegated legislation, it may be used to create additional rules or

guidance for the exercise of discretionary power granted in primary legislation.
In administrative law, the key is not knowledge of the law-making process in

parliament but understanding the importance of legislation both as a source and a
limit on the exercise of power and the way legislation can be used to create discretion
that is relatively unconstrained, or a more confined and structured scheme of power.
It might also be helpful to think about the extent to which public authorities
appreciate the constraints on their powers laid down by statute and act in accordance
with the requirements placed upon them. It has been illustrated in a number of
studies, such as that of Cooper noted above, that in some circumstances and contexts
public bodies may seek to ignore the requirements of legislation, may not have the
resources to meet the requirements placed upon them by legislation or may, in fact,
believe that the limitations imposed upon them by legislation are greater than they
perceive. Furthermore, it is often the case that public authorities do not comply
perfectly with all the requirements of legislation.
4.2 Discretion
Further reading
¢¢ Davis, K.C. Discretionary justice: a preliminary inquiry (Urbana and Chicago,
University of Illinois Press, 1971) [ISBN 9780807103043], Chapter 1 ‘Where the law
ends’.
¢¢ Baldwin, R. and K. Hawkins ‘Discretionary justice: Davis reconsidered’ (1984)

Public Law 570.
The existence of discretion is a crucial aspect in the modern administrative state

because, as the state provides a larger range of benefits and services to individuals,
it becomes necessary to deliver individualised justice. Dicey was sceptical that a
significant amount of discretion existed in the British state at the time of his writing
and was not enthusiastic about its existence, not least because he felt that discretion
might be used to depart from the will of parliament. In a similar vein, Hayek was
sceptical that discretion could lead to any kind of advantage and was thus suspicious
of it. To some extent, Dicey’s writing was a product of its time – it is true to say that in
Dicey’s time there was much less discretionary power in the hands of public officials as
the activities of the state were far more limited than they are today.
However, in the modern state, there is no doubt that many public officials have a great
deal of discretionary power. Many would argue that administrative lawyers ought not
to be concerned about the existence of such discretionary power but ought instead
to be concerned about how those who exercise discretion are to be held accountable
for their actions and how discretionary power is to be controlled.
4.2.1 What is administrative discretion?

It is impossible in this module guide to give a perfect account of administrative
discretion given that the topic has been addressed in such a wide range of
administrative literature. However, some quotes from the authors above may give
some context to your reading:
A public officer has discretion whenever the effective limits on his power leave him free to
make a choice among possible courses of action or inaction’ (K.C. Davis, p.4).
[D]iscretion … is most at home in referring to powers delegated within a system of

authority to an official or set of officials, where they have some scope for settling the
reasons and standards according to which that power is to be exercised, and for applying
them in the making of specific decisions. This process of settling the reasons and standards
must be taken to include not just the more obvious cases of creating standards where
none are given, but also individualizing and interpreting loose standards, and assessing the
relative importance of conflicting standards (Galligan, Discretionary powers: a legal study of
official discretion (1990), pp.21–22).
These ideas of discretion make it clear that the power to refuse to take action may be as
important as any action that is taken and that, furthermore, as important as discretion
in individual cases may be, of equally significant importance is the power through
discretion to make rules and set standards through which discretionary power might
be exercised. We will consider the importance of rule-making and policies shortly.
4.2.2 The value and risks of discretion?

Advantages of discretion Disadvantages of discretion
‘Even where rules can be written, discretion is Risk of the power that discretion
often better. Rules without discretion cannot fully grants being misused?
take into account the need for tailoring results to
the unique facts and circumstances of particular
cases. The justification for discretion is often the
need for individualized justice.’ Davis, p.17.
Allows for rapid changes in response to changing Lack of legal certainty, particularly in
circumstances. the absence of rules or policies?
Empowers public officials to be creative in their Thwarts legislative intent?
response to challenges facing government.
In many respects, much of what we will study in administrative law will be an analysis
of the legal response to the exercise of discretionary power. It is necessary to consider
how the law allows the benefits of discretion to bring advantages to public decision-
making, while at the same time constraining or ameliorating the disadvantages that
discretion might bring. We will see that the concept of legitimate expectation (see
Section 10.1) has been developed to deal with the negative effects of a change in policy
that may lead to a violation of the accepted principle of legal certainty and how the
courts have used the various tests of illegality in order to ensure that decision-makers
retain fidelity to legislative intent.
Another way some of the perceived disadvantages of discretion can be addressed is

through rule-making and policy-making, which will be addressed below.
Activity 4.1
Read Endicott, Section 7.2 and answer the following questions:
a. What do you understand ‘discretion’ to be?
b. What are the potential problems posed by the existence of discretion in the
exercise of governmental powers?
4.3 Rules and policies
Essential reading
¢¢ Baldwin, R. and K. Hawkins ‘Discretionary justice: Davis reconsidered’ (1984)
Public Law 570 (available on the VLE).
¢¢ Baldwin, R. ‘Why rules don’t work’ (1990) 53 Modern Law Review 321 (available in
HeinOnline and JSTOR).
In his famous book, Discretionary justice: a preliminary inquiry, K.C. Davis’ core
argument is that it is not the existence of discretion that is the problem but the fact
that the discretion granted to public authorities may be too wide and also that the
discretion may not be adequately constrained. One key constraint on the exercise
of discretion is the activity of the courts in judicial review, but Davis argues that the
best way to ensure that the maximum benefit is gleaned from discretionary power
and the potential disadvantages that could flow from discretion are minimised is
by the adoption of a model which confines, structures and checks administrative
discretion. The confining of discretion is to be done by the legislature – in essence,
the discretionary power that is granted to public authorities should be limited. Public
authorities should then be encouraged to structure their discretion through the
making of rules and policies, which guide the exercise of discretion in individual cases.
Finally, discretion should be ‘checked’, not only through the availability of judicial
review but also internally by a public body through the existence of effective internal
controls and complaints mechanisms.
Court
Legislature Confined Executive

St
Senior Official
ru
ct
ur
ed
Implementing
Official
Figure 4.1 ‘Davis’ model for the control of discretion – confining, structuring and
checking
4.3.1 Rule-making
As you will see from your reading of some of the material above, rule-making in
administrative law can take many different forms. Primary and delegated legislation
are an example of rule-making but just as common are the processes of the executive
in creating administrative rules or policies through (e.g.) Ministerial Circulars or
Guidance and Codes of Practice. This approach is known as ‘quasi-legislation’ or ‘soft
law’ because it is usually treated as being binding despite the fact that such rules do
not generally have the force of law. Davis is a strong advocate for rule-making in the
administrative system, arguing that rules provide an important way of structuring
the exercise of administrative discretion. Others, such as Baldwin and Hawkins are
sceptical that Davis’ model carries over to the UK (Davis’ study is of the administrative
system in the USA) given the substantial differences in the approach to administration
between the two countries. It will no doubt help you considerably to look at the
arguments put forward by Baldwin and Hawkins and to assess their cogency.
4.3.2 Policies
In English law, there is no clear distinction between policies and rules. The adoption
of a policy on a particular issue is just an example of informal administrative rule-
making and will generally have the same effect as such rule-making – i.e. public
authorities will make and follow such policies when exercising their discretionary
powers. Policies can bring advantages in terms of legal certainty and also offer a clear
indication to applicants or claimants as to whether their application for a particular
licence or benefit is likely to be successful. As an example, if a piece of legislation
gives a decision-maker the power to grant licences to ‘suitable persons’ then a policy
may well be adopted that seeks to define ‘suitability’. Such a policy might set out the
minimum requirements in terms of qualifications, e.g. a requirement that an applicant
has not committed a criminal offence for a certain number of years or a variety of
other factors. The courts do not generally find that the adoption of such policies is
unlawful but it is important that any policy that is made does not fall foul of the law
on fettering of discretion and that, where a policy is adopted, the courts will ordinarily
expect a public authority to abide by it (R v Secretary of State for the Home Department,
ex parte Urmaza The Times, 23 July 1996). The adoption of a policy by a public authority
can generally be challenged in judicial review.
Activity 4.2
Read Harlow and Rawlings, Chapter 5 ‘Rules and discretion’ and consider the
following issues:
a. What are the functions of legislation (both primary and delegated) in the system
of public administration?
b. Why might rules be important in a system of administrative law?
c. How might rules be used to somehow constrain the exercise of discretion by

public authorities?
d. What benefits might discretion bring in the system of public administration?
e. What is the importance of policies in the system of public administration?
f. When does adjudication occur in the system of public administration? Is this

just an activity undertaken in courts and tribunals, or should we consider
adjudication in a broader way?
4.3.3 Adjudication
A major method by which public authorities can reach decisions in individual cases
is through the use of a model of adjudication. According to Fuller, adjudication is a
specific form of decision-making that has the following characteristics:
the distinguishing characteristic of adjudication lies in the fact that it confers on the
affected party a peculiar form of participation in the decision, that of presenting proofs
and reasoned arguments for a decision in his favor… Whatever destroys that participation
destroys the integrity of adjudication itself.
Fuller, L. ‘The forms and limits of adjudication’ (1978–1979) 92 Harvard Law Review 353 at
358.
A process of adjudication is used by public bodies to determine eligibility for grants

and benefits, to decide on whether licences should be granted to undertake particular
activities and also in areas such as prisons to determine whether a prisoner should be
released on parole or, where the terms of parole are breached, whether the individual
should be returned to prison. The person making the decision through the process of
adjudication might be a civil servant in the particular department or body, someone
external to and independent of the body, or could be a judicial body such as a tribunal.
In all cases, the law sets out standards of procedural fairness, including requirements
in relation to independence, which such bodies must fulfil.
4.4 Consultation
Consultation is the process through which the public might have the opportunity
to have a say in rule-making or policymaking. In general, in the law of England and
Wales it is only possible for the public to acquire a right to consultation if such a right
is granted by statute. See for example Agricultural Industry Training Board v Aylesbury
Mushrooms [1972] 1 All ER 280. Alternatively, where a legitimate expectation to
consultation has been created. See for example R v Liverpool Corporation, ex parte Taxi
Fleet [1972] 2 QB 299 or R (on the Application of Greenpeace) v Secretary of State for Trade
and Industry [2007] EWHC 311 (Admin). Consultation might deliver many important
benefits, which were recently summarised by Lord Wilson in his judgment in R
(Moseley) v Haringey LBC [2014] UKSC 56:
23. A public authority’s duty to consult those interested before taking a decision can
arise in a variety of ways. Most commonly, as here, the duty is generated by statute. Not
infrequently, however, it is generated by the duty cast by the common law upon a public
authority to act fairly. The search for the demands of fairness in this context is often
illumined by the doctrine of legitimate expectation; such was the source, for example, of
its duty to consult the residents of a care home for the elderly before deciding whether
to close it in R v Devon County Council, ex parte Baker [1995] 1 All ER 73. But irrespective of
how the duty to consult has been generated, that same common law duty of procedural
fairness will inform the manner in which the consultation should be conducted.
24.Fairness is a protean concept, not susceptible of much generalised enlargement.

But its requirements in this context must be linked to the purposes of consultation.
In R (Osborn) v Parole Board [2013] UKSC 61, [2013] 3 WLR 1020, this court addressed the
common law duty of procedural fairness in the determination of a person’s legal rights.
Nevertheless the first two of the purposes of procedural fairness in that somewhat
different context, identified by Lord Reed in paras 67 and 68 of his judgment, equally
underlie the requirement that a consultation should be fair. First, the requirement ‘is
liable to result in better decisions, by ensuring that the decision-maker receives all
relevant information and that it is properly tested’ (para 67). Second, it avoids ‘the sense
of injustice which the person who is the subject of the decision will otherwise feel’ (para
68). Such are two valuable practical consequences of fair consultation. But underlying it
is also a third purpose, reflective of the democratic principle at the heart of our society.
This third purpose is particularly relevant in a case like the present, in which the question
was not ‘Yes or no, should we close this particular care home, this particular school etc?’
It was ‘Required, as we are, to make a taxation-related scheme for application to all the
inhabitants of our Borough, should we make one in the terms which we here propose?’
This case serves to emphasise the importance of consultation to the rules on

procedural fairness more generally, and also to the law’s desire to support the role
of consultation in the enhancement of democratic discourse and accountability. The
case is also significant because the Supreme Court also held that, in the circumstances,
the defendant council should not only have consulted on the proposal that it had
chosen but also on the alternatives that it had rejected, in order to give respondents
the opportunity to make informed representations on the full range of options open
to the authority.
In order for consultation to be validly carried out the requirements of the Gunning
criteria (R v Brent LBC, ex parte Gunning (1985) 84 LGR 168) must be met:
First, that consultation must be at time when proposals are still at a formative stage.
Second, that the proposer must give sufficient reasons for any proposal to permit of
intelligent consideration and response. Third, to which I shall return, that adequate
time must be given for consideration and response and, finally, fourth, that the product
of consultation must be conscientiously taken into account in finalising any statutory
proposals.
Per Hodgson J.
Activity 4.3
Read Endicott, pp.35–36 and answer the following questions:
a. Why is consultation important and what objectives does it aim to achieve?
b. What disadvantages does consultation bring? Are there costs involved in

processes such as consultation?
c. What are the main legal requirements imposed on public authorities where
consultation is required? You may find it helpful to consider the judgment of
Lord Wilson in R (Moseley) v Haringey LBC.

this chapter:
1. Administrative decision-making can take many forms, although the primary source
of all administrative power is statute and delegated legislation. The nature of the
power granted could be broad in scope, with little limit on the discretion granted
to the decision-maker, or could be limited.
2. Although some (such as Dicey and Hayek) were suspicious of discretion, the
expanded range of functions in the state and the need for individualised
justice necessitate the existence of discretion. As such, our major concern as
administrative lawyers should be to ensure the effective control of discretionary
power.
3. Many theorists (Davis is a key example) have argued that in order to have effective
control of discretion we should not just rely on the courts but we should also have
a system that ‘confines, structures and checks’ administrative decision-making.
Others (Baldwin and Hawkins is a major example) have criticised Davis’ model,
suggesting that it does not fit well with the approach to administrative discretion
in the UK as it is too focused on adjudication as the mode of decision-making.
4. Consultation is one way in which individuals can seek to influence the decision-
making of public bodies, although the access to consultation is largely controlled
by parliament and is not available in all circumstances.
Further reading
General
¢¢ Dicey, A.V. Introduction to the study of the law of the constitution (1959, 10th
edition). Several publishers print this classic text.
¢¢ Hayek, F. The road to serfdom. First published in 1944, now available in many
editions.
¢¢ Galligan, D.J. Discretionary powers: a legal study of official discretion. (Oxford:
Clarendon Press, 1990) [ISBN 9780198256526].
On rule-making
¢¢ Craig, Chapter 15 ‘Rule-making’.
¢¢ Jowell, J.L. ‘The legal control of administrative discretion’ (1973) Public Law 178.
¢¢ Baldwin, R. and J. Houghton ‘Circular arguments: the status and legitimacy of

administrative rules’ (1986) Public Law 239.
Notes
5 The nature of judicial review
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.1 The theoretical basis of judicial review . . . . . . . . . . . . . . . . . . 41
5.2 The impact of judicial review . . . . . . . . . . . . . . . . . . . . . . . 41
5.3 Void and voidable decisions . . . . . . . . . . . . . . . . . . . . . . . 43
5.4 The grounds of judicial review . . . . . . . . . . . . . . . . . . . . . . 44
5.5 Codification as an alternative? . . . . . . . . . . . . . . . . . . . . . . 45

Introduction
This chapter moves on to think about the nature of judicial review. In so doing, we
will consider four important issues. First, we will examine the theoretical basis of
judicial review. This is something that you should already have read about when
considering the relationship between administrative law and constitutional law, so
we will revise this only briefly here. The second issue that we need to consider is what
the impact of judicial review is on public authorities and on claimants. What exactly
does judicial review achieve? Does it improve the behaviour of public authorities and
does it allow claimants to gain the remedies that they were hoping for? Furthermore,
can we say that judicial review is influential in improving the behaviour of public
decision-makers? The literature on this issue is relatively limited but we do have some
indication of the effectiveness of judicial review.
The third topic to be examined by this chapter relates to the concept of ‘voidness’ in
administrative law. As we will see, in constitutional theory, unlawful administrative
acts are considered to be ‘nullities’ and thus are void ab initio. However, the courts
have not always adhered to this logic because to do so could have some significant
negative consequences both for public authorities and for those who rely on the
action of public authorities in some contexts (planning is by far the strongest
example). As such, the courts will occasionally decide that certain administrative acts,
while unlawful, are not void in order to protect the public interest in efficient public
administration and legal certainty. However, it has been argued that this position is
imperfect, so some argue that it would be favourable if the judiciary turned away from
the idea that all acts that are found by the court to be unlawful are treated as being
void.
Finally, we will examine the basic outline of judicial review – we will explore the way in
which the courts have categorised the grounds of review that constitute the principle
of legality. The subsequent chapters in this module guide will then move on to analyse
the process for making a claim for judicial review, expand upon each of the grounds of
review and will consider the limitations that are placed on judicial review.
Learning outcomes
be able to:
1. Analyse (building on work that you already did in Chapter 2) the theoretical
justifications for judicial review and their impact on the practice of judicial
review.
2. Demonstrate an understanding of the impact of judicial review on the

behaviour of public authorities and its value in delivering redress of grievance.
3. Offer a critical understanding of the challenges of ‘voidness’ in respect of

administrative decisions.
4. Describe the basic contours of the principle of legality that modern judicial
review is based on.
Core text
¢¢ Endicott, Chapter 2 ‘The rule of law and the rule of judges’ and Section 10.4.6.
Essential reading
¢¢ Bondy, V., L. Platt and M. Sunkin The value and effects of judicial review:
the nature of claims, their outcomes and consequences (London:
Public Law Project, 2015) https://publiclawproject.org.uk/resources/
the-value-and-effects-of-judicial-review/
Administrative law 5 The nature of judicial review page 41
5.1 The theoretical basis of judicial review
Further reading
¢¢ Forsyth, C.F. and M. Elliott ‘The legitimacy of judicial review’ (2003) Public Law
286.
¢¢ Jowell, J. ‘Of vires and vacuums: the constitutional context of judicial review’
¢¢ Allan, T.R.S. ‘The constitutional foundations of judicial review: conceptual

conundrum or interpretive inquiry?’ (2002) 61 Cambridge Law Journal 87.
In Chapter 2, you were asked to think about the theoretical basis of judicial review
in the context of its descriptive and explanatory force. As we move on to examine
the grounds of judicial review in greater detail, it is important that you think about
the way in which the case law that you are asked to consider might support either
the common law or ultra vires theories. It was argued in Chapter 2 that neither of the
theories are perfect, so it is unlikely that each case will fit perfectly with either theory.
However, it is clear that some of the case law may offer greater support to one theory
than it does to the other.
Ultimately, much administrative law is common law in its nature – there is relatively
little statutory regulation of judicial review, other than in the process for making a
claim and in the protection of human rights under the Human Rights Act 1998. The
various grounds of review and their development are judge-made.
As noted in Chapter 2, it is important that you understand the debate over the
theoretical basis of judicial review and how this links to debates over the proper
role of the courts in judicial review, the separation of powers and the constitutional
implications of judicial creativity in the development of the principles of judicial
review.
Activity 5.1
Please revisit Activity 2.2 from Chapter 2 and revise the material that you studied
there.
5.2 The impact of judicial review
Further reading
¢¢ Harlow and Rawlings, Chapter 16 ‘Judicial review and administration: a tangled
web’, particularly pp.727–748.
¢¢ Feldman, D. ‘Judicial review: a way of controlling government?’ (1988) 66 Public

Administration 21.
¢¢ James, S. ‘The political and administrative consequences of judicial review’

(1996) 74 Public Administration 613.
¢¢ The judge over your shoulder: a guide to good decision making (London:
Government Legal Department, 2016).
The impact of judicial review is difficult to measure, not least because developing
studies with a reliable methodology is exceptionally difficult, time-consuming and
may also be very costly. There have been a number of studies that have considered
the impact of judicial review in specific sectors (such as housing, welfare benefits
or prisons) but there are fewer of a more general nature. We are fortunate to have
a relatively recent study by Bondy, Platt and Sunkin that gives us some idea of the
impact of judicial review on claimants, whereas we have far fewer recent studies of the
impact of judicial review on public authorities. What is important is to try to discover
the impact of judicial review in the sense that it would be helpful if we could see that
judicial review is providing a mechanism through which claimants can seek judicial
protection and a delivery of their legal rights. In contrast, it would be useful if we could
see whether judicial review has an impact on the work of public authorities beyond
simply the impact of judicial decisions in individual cases – i.e. can we say that judicial
review has the ability to guide, shape and improve the future conduct of public
authorities?
5.2.1 Visions of impact

Feldman argued that judicial review should be seen to have three core functions.
Harlow and Rawlings argue that a further function should be added in light of modern
developments in judicial review:
Function Description
Directing Ensuring that government keeps within legal powers by
compelling government. This can be done by quashing,
prohibiting or mandating government action.
Limiting Setting out a framework for the exercise of discretion.
This can be done in a variety of ways, many of which
were discussed in the previous chapter. There are rules
against the fettering of discretion, prohibiting the
delegation of power unless authorised to do so and
also governing the way in which consultation should be
done if it is required by statute.
Structuring Sets out goals or values to guide decision-making.
Examples might include Wednesbury reasonableness,
proportionality or the duty to act fairly.
Vindicating (added by Harlow Allows claimants to vindicate rights (particularly
and Rawlings) Convention rights under the HRA 1998) and also to
pursue judicial remedies under the more intensive
scrutiny of the modern Wednesbury/proportionality
test.
Feldman argued that the function with the greatest impact on the activity of
decision-makers is that of ‘structuring’, as the values that are imposed by the law are
prospective as well as retrospective and require decision-makers to demonstrate that
decisions have been taken in accordance with the law.
Some of those who study the impact of judicial review (the article by James referred
to above is a good example) are critical of the development of judicial review, with the
findings of their research being that decision-makers argue that they feel excessively
constrained by the constant development of judicial review and the uncertainty that this
brings for the development of policies and the reaching of decisions in individual cases.
Some might argue that this also demonstrates the impact of judicial review on decision-
makers, as they acknowledge the need to ensure that decisions are taken in alignment
with the clues that judicial review seeks to instil and impose. Another example of the
potential impact of judicial review in the development of The judge over your shoulder
handbook by the Government Legal Department. It is evident from even a cursory
look over the material that the ‘structuring’ aspect of judicial review decisions plays an
important part in the advice and guidance contained in the publication.
The work of Bondy, Platt and Sunkin is valuable because it gives us some idea of the
impact of judicial review from the perspective of the claimant. In particular, they
draw attention to the fact that the impact of judicial review should be measured not
only by reference to ‘tangible’ benefits (i.e. the remedy that the claimant obtains)
but also from the perspective of ‘intangible’ benefits, such as the increased feeling
of empowerment, or faith in the legal system. It is also the case that judicial review
proceedings can reveal a number of intangible negative consequences, such as
the imposition of costs on claimants, stress and frustration and a feeling that it is
impossible to gain adequate redress. Evidently, these are most commonly felt by
claimants who are not successful in their judicial review claim.
Activity 5.2
1. What, in your opinion, are the most important ways in which judicial review
impacts on the behaviour of public authorities?
2. After reading Chapter 16 in Harlow and Rawlings, do you think that there is strong
evidence that judicial review has a significant impact on public authorities?
3. Read Chapter 6 of Bondy, Platt and Sunkin’s report. What does it tell us about
the impact of judicial review from the perspective of claimants and their legal
representatives?
5.3 Void and voidable decisions
Core text
¢¢ Endicott, Section 10.4.6.
Essential reading
¢¢ Adams, T. ‘The standard theory of administrative unlawfulness’ (2017) 76(2)
Cambridge Law Journal 289 (available in Westlaw and LexisLibrary).
Further reading
¢¢ Craig, Chapter 24 ‘Invalidity’.
The introductory material to this chapter notes that constitutional theory suggests
that unlawful action should be treated as a nullity – void ab initio. However, the courts
have sometimes been unwilling to adhere to this standard view because of the
consequences that might flow from determining that a particular administrative act
or decision is void (particularly where a finding that one decision is ultra vires and thus
void may then have a significant impact on subsequent decisions taken by a public
authority). It is important to understand that although the courts have sometimes
been reluctant to hold that a decision is retrospectively void (i.e. void ab initio) it is
recognised that such findings are important to the upholding of the rule of law, so the
general rule remains that all ultra vires actions are void ab initio. It is helpful to consider
some case law to try to illustrate the challenges presented in this area of the law and
the underlying policy considerations that the courts must take into account.
R (Corbett) v Restormel Borough Council [2001] EWCA Civ 330 – a case where the Court
of Appeal declined to quash planning permission that had been granted incorrectly
by a local authority due to the impact that this would have on the owner of the land
to which the planning permission applied. Endicott argues that the Court of Appeal
here struck a balance between the principle of legality (which ordinarily demands that
unlawful decisions are void) and the principle of legal certainty, as the land owner was
not unreasonable in his reliance on the planning permission that had been granted.
Ahmed and Others v HM Treasury [2010] UKSC 5, [2010] 2 AC 534 – the Supreme Court
refused to suspend the effect of its judgment in Ahmed’s case, declaring that
secondary legislation implementing a UN Security Council Resolution freezing the
claimant’s assets was invalid. The government has sought the suspension in order to
give it time to pass legislation to validly freeze the assets concerned.
Walton v Scottish Ministers [2012] UKSC 44 – in this case W sought a quashing of

planning permission granted for a major road. The permission had been granted
following a major public inquiry and a process that had taken a number of years. The
claimant argued that there had been an error in the production of an Environmental
Impact Assessment (EIA), required by EU law. The Supreme Court rejected the claim
in this regard but Lord Carnwath JSC discussed the discretion open to the court in
determining whether to grant a remedy in a case such as this. Had the court held that
there had been a defect in the production of the EIA, there may have been a strong
public policy argument in favour of denying W a remedy, as the procedural defect in
producing the EIA would be a relatively minor one and the impact of quashing the
planning permission would have been very great.
Activity 5.3
1. Outline the main policy arguments in favour of an assumption that ultra vires
acts are void and the competing policy arguments for adopting a more limited
approach to the ‘voidness’ of administrative acts.
2. Read the article by Adams referred to above. What are his main arguments? Do
you think that the approach he suggests is a genuine reform of the law on void/
voidable decisions?
5.4 The grounds of judicial review

The remainder of Part II of this guide will be dedicated to examining the process for
claiming judicial review and the grounds upon which judicial review can be claimed.
The grounds of judicial review are set out in common law (through decisions of the
courts) in England and Wales. This means that the principle of legality is flexible and
historically contingent – we can see considerable development and change in the
approach to judicial review over time. A classic definition of the grounds for judicial
review in the law of England and Wales is that of Lord Diplock in CCSU v Minister for the
Civil Service [1985] AC 374:
Judicial review has I think developed to a stage today when without reiterating any
analysis of the steps by which the development has come about, one can conveniently
classify under three heads the grounds upon which administrative action is subject
to control by judicial review. The first ground I would call ‘illegality’, the second
‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further
development on a case by case basis may not in course of time add further grounds. I have
in mind particularly the possible adoption in the future of the principle of ‘proportionality’
which is recognised in the administrative law of several of our fellow members of the
European Economic Community; but to dispose of the instant case the three already well-
established heads that I have mentioned will suffice.
By ‘illegality’ as a ground for judicial review I mean that the decision-maker must
understand correctly the law that regulates his decision-making power and must give
effect to it. Whether he has or not is par excellence a justiciable question to be decided, in
the event of dispute, by those persons, the judges, by whom the judicial power of the state
is exercisable.
By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury

unreasonableness’. 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 be decided could have arrived at it. Whether a decision falls within
this category is a question that judges by their training and experience should be well
equipped to answer, or else there would be something badly wrong with our judicial
system…
I have described the third head as ‘procedural impropriety’ rather than failure to observe
basic rules of natural justice or failure to act with procedural fairness towards the person
who will be affected by the decision. This is because susceptibility to judicial review under
this head covers also 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. But the instant case
is not concerned with the proceedings of an administrative tribunal at all.
From the above excerpt from Lord Diplock’s speech we can see the identification of
the three major heads of judicial review at the time, along with a recognition that
more may develop over time. As we will see from the subsequent chapters, we can
see that proportionality has now developed into a clear and distinct ground of judicial
review, at least where matters of EU Law are at stake and where the court is dealing
with arguments about a breach of a Convention rights under the Human Rights Act
1998. We can also see that the courts have added additional grounds, including the
concept of legitimate expectation, over the past 20 years. As such, Lord Diplock’s
‘grounds’ or ‘heads’ of judicial review may now look more like Figure 5.1.
Legitimate
expectations
Figure 5.1 Grounds of judicial review
5.5 Codification as an alternative?

When we considered the impact of judicial review on public authorities, it was noted
above that some researchers found that decision-makers argued that a significant
problem with the way our courts approach the development of judicial review is that
it leads to uncertainty. In Australia, the Administrative Decisions (Judicial Review)
Act 1977 seeks to codify both a process for claiming judicial review (which is similarly
codified in England and Wales) and also the grounds upon which judicial review can
be claimed at the Federal level. An excerpt of the relevant sections of the Act can be
found below:
5 Applications for review of decisions
(1) A person who is aggrieved by a decision to which this Act applies that is made after the
commencement of this Act may apply to the Federal Court or the Federal Circuit Court
for an order of review in respect of the decision on any one or more of the following
grounds:
(a) that a breach of the rules of natural justice occurred in connection with the making
of the decision;
(b) that procedures that were required by law to be observed in connection with the
making of the decision were not observed;
(c) that the person who purported to make the decision did not have jurisdiction to
make the decision;
(d) that the decision was not authorized by the enactment in pursuance of which it
was purported to be made;
(e) that the making of the decision was an improper exercise of the power conferred
by the enactment in pursuance of which it was purported to be made;
(f) that the decision involved an error of law, whether or not the error appears on the
record of the decision;
(g) that the decision was induced or affected by fraud;
(h) that there was no evidence or other material to justify the making of the decision;
(i) that the decision was otherwise contrary to law.
(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed

as including a reference to:
(a) taking an irrelevant consideration into account in the exercise of a power;
(b) failing to take a relevant consideration into account in the exercise of a power;
(c) an exercise of a power for a purpose other than a purpose for which the power is
conferred;
(d) an exercise of a discretionary power in bad faith;
(e) an exercise of a personal discretionary power at the direction or behest of another

person;
(f) an exercise of a discretionary power in accordance with a rule or policy without

regard to the merits of the particular case;
(g) an exercise of a power that is so unreasonable that no reasonable person could

have so exercised the power;
(h) an exercise of a power in such a way that the result of the exercise of the power is
uncertain; and
(i) any other exercise of a power in a way that constitutes abuse of the power.
(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:
(a) the person who made the decision was required by law to reach that decision only
if a particular matter was established, and there was no evidence or other material
(including facts of which he or she was entitled to take notice) from which he or
she could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a
particular fact, and that fact did not exist.
It is possible that such codification can bring advantages – those in favour of the ultra
vires theory of judicial review would argue that such codification in England and Wales
would more closely align the courts with the will of parliament. It may also be that
decision-makers would have greater certainty about the impact of judicial review on
their decisions, as (subject to the inherent role of the courts in interpreting the scope
of the grounds set out in statute) the grounds of judicial review would be set out in
statute and limited accordingly.
However, it might also be argued that to codify the grounds of judicial review, even if
the codification is relatively general and open-ended, is to limit its development. If this
is the case then we might regard any efforts to codify the grounds of review with some
suspicion.

this chapter:
1. Your view of the theoretical basis for judicial review might influence your thinking
on a range of other issues covered in this chapter and subsequent chapters.
However, you should also look at this chapter and subsequent chapters and
consider the way in which the case law that is discussed might offer support for
one or other of the theories.
2. It is important to have some appreciation of the literature on the impact of

judicial review. The summary above seeks to demonstrate that public authorities
have reacted to the existence of judicial review in a number of ways, including
by altering their decision-making processes to be in alignment with the values
inherent in the decisions of the courts. However, some officials have been critical
of the uncertainty created by the development of the grounds of judicial review.
3. Claimants may benefit from judicial review in both tangible ways (e.g. by obtaining
a remedy that they sought, leading to the provision of a service or the resumption
of a service that had been curtailed) and in intangible ways (e.g. by having their
faith in public administration restored). However, there can also be significant

disadvantages for claimants, particularly where they are unsuccessful in their
claim. These disadvantages may include stress and anxiety and the imposition of
significant legal costs.
4. Although constitutional theory supposes that unlawful administrative acts are

void, the practice of the courts does not always reflect this, although there is a
presumption that unlawful administrative acts will be void ab initio unless a strong
policy consideration demands otherwise.
5. The grounds of judicial review have developed considerably over the years and
continue to develop. The Australian example demonstrates that it is possible to
codify the grounds for judicial review, although this has the potential to limit the
development of the law.
Notes
6 Access to judicial review and remedies
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.1 Procedural exclusivity . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.2 The process for claiming judicial review . . . . . . . . . . . . . . . . . 53
6.3 Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.4 Time limits and delay . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
6.5 Costs and other hurdles . . . . . . . . . . . . . . . . . . . . . . . . . 57
6.6 The remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
6.7 Discretion and remedies . . . . . . . . . . . . . . . . . . . . . . . . . 59

Introduction
This chapter asks you to think about the process for claiming judicial review, the rules
on procedural exclusivity, standing and the remedies that might be sought from the
courts. It is interesting to note that, until 1977, the approach to claiming judicial review
was the same as for anyone who was seeking to claim a private law remedy – i.e. the
process began by issuing a writ against the defendant, which was a public authority. A
growing number of claims, along with the immense complexity caused in interpreting
the law governing the application for, and grant of, the prerogative remedies
(discussed below) led to a desire for reform of the process for claiming judicial review.
This reform process commenced in 1977 and culminated in the rules (since amended
on a number of occasions) in the Senior Courts Act 1981. These reforms are interesting
to study because they introduce a number of developments that were not previously
part of the law in England and Wales. In particular, their changes introduced a limited
public–private divide in the procedural law governing legal claims. Initially, this new
process was adhered to rigidly – a concept known as procedural exclusivity. As we will
see, although the rules on procedural exclusivity remain in place, the rigidity of the
rules have been eroded over time because of the challenges that arise where a rigid
distinction is applied between claims for a remedy in public law and in private law.
Linked to these changes was the development of a concept of standing, where an

applicant needs to demonstrate a ‘sufficient interest’ in the matter to which the
application relates in order to bring a claim. The judicial development of the rules on
standing has been a fascinating process, although one might argue that over time our
courts have developed the standing rules to such an extent that they may no longer
serve the originally intended purpose. We will look at this development below.
Allied to all of this procedural material are some very important practical questions.
As we will see, in principle, judicial review is very accessible in England and Wales
– standing is liberal and there is a fairly broad concept of what is subject to review
(see Chapter 7). However, there is clear evidence that, although the procedures do
not offer a significant barrier to claims for judicial review, a number of substantive
barriers to bringing a claim for judicial review exist. In particular, there has been an
erosion of legal aid, court fees are relatively high and the cost of bringing claims is
also acknowledged to be considerable. Furthermore, because of the costs regime in
place, should a claimant lose, the claimant will bear all of the costs of the proceedings,
both the costs incurred by the claimant and by the government. This leads to some
important substantive challenges for claimants, so these need to be analysed in any
meaningful assessment of the accessibility of judicial review.
The final part of this chapter will ask you to think about the remedies available
in judicial review claims. We shall not look in great detail at the mass of case law
surrounding the grant of the remedies or the circumstances in which a grant can be
made but make you aware of the remedies and their basic impact, which is important
when dealing with problem questions.
Learning outcomes
be able to:
1. Describe and explain the process for claiming judicial review in England and
Wales, the rules on standing, the approach to procedural exclusivity and the
remedies available from the courts.
2. Demonstrate an understanding of the practical challenges that claimants might

face in bringing a claim for judicial review, with reference to costs and the lack
of availability of legal aid.
3. Offer a critical analysis of the material covered in this chapter in light of the legal
and practical challenges that have been discussed.
Administrative law 6 Access to judicial review and remedies page 51
Core text
¢¢ Endicott, Chapter 10 ‘How to sue the government: judicial processes and judicial
remedies’ and Chapter 11 ‘Standing: litigation and the public interest’.
Essential reading
¢¢ Oliver, D. ‘Public law procedures and remedies – do we need them?’ (2002) Public
Law 91 (available in Westlaw).
Further reading
¢¢ Harlow and Rawlings, Chapter 15 ‘Elite dimension: court structures and process’.
¢¢ Craig, Chapter 25 ‘Remedies: standing’, Chapter 26 ‘Judicial remedies’ and

Chapter 27 ‘Remedies and reform’.
¢¢ Wade and Forsyth, Chapter 15 ‘Ordinary remedies’, Chapter 16 ‘ Prerogative

remedies’, Chapter 17 ‘Boundaries of judicial review’ and Chapter 18 ‘Procedure
of judicial review’.
6.1 Procedural exclusivity
Further reading
¢¢ De la Mere, T. ‘Procedural exclusivity: slaying the procedural bugbear?’ (1998)
Judicial Review 133.
¢¢ Civil Procedure Rules, Rule 54.2 and 54.3.
54.2
The judicial review procedure must be used in a claim for judicial review where the
claimant is seeking –
a. a mandatory order;
b. a prohibiting order;
c. a quashing order; or
d. an injunction under section 30 of the Supreme Court Act 19811 (restraining
a person from acting in any office in which he is not entitled to act).
54.3
1. The judicial review procedure may be used in a claim for judicial review
where the claimant is seeking –
a. a declaration; or
b. an injunction.
(Section 31(2) of the Supreme Court Act 1981 sets out the circumstances in which
the court may grant a declaration or injunction in a claim for judicial review)
(Where the claimant is seeking a declaration or injunction in addition to one of
the remedies listed in rule 54.2, the judicial review procedure must be used)
2. A claim for judicial review may include a claim for damages, restitution
or the recovery of a sum due but may not seek such a remedy alone.
(Section 31(4) of the Supreme Court Act sets out the circumstances in which the
court may award damages, restitution or the recovery of a sum due on a claim for
judicial review)
The imposition of the new procedure for the claiming of judicial review raised the
question of whether it would be possible for claimants to launch proceedings in
judicial review through the ‘old’ private law procedure. The approach adopted by
the House of Lords in early cases was a rigid one – claims for judicial review must
only come through the application for judicial review procedure (outlined below).
However, over time this approach has become less rigid due to the problems that it
disclosed.
O’Reilly v Mackman [1983] 2 AC 387

So Order 53 since 1977 has provided a procedure by which every type of remedy for
infringement of the rights of individuals that are entitled to protection in public law
can be obtained in one and the same proceeding by way of an application for judicial
review, and whichever remedy is found to be the most appropriate in the light of what
has emerged upon the hearing of the application, can be granted to him. If what should
emerge is that his complaint is not of an infringement of any of his rights that are entitled
to protection in public law, but may be an infringement of his rights in private law and
thus not a proper subject for judicial review, the court has power under rule 9 (5), instead
of refusing the application, to order the proceedings to continue as if they had begun by
writ. There is no such converse power under the R.S.C. to permit an action begun by writ
to continue as if it were an application for judicial review; and I respectfully disagree with
that part of the judgment of Lord Denning M.R. which suggests that such a power may
exist; nor do I see the need to amend the rules in order to create one.
My Lords, Order 53 does not expressly provide that procedure by application for judicial
review shall be the exclusive procedure available by which the remedy of a declaration
or injunction may be obtained for infringement of rights that are entitled to protection
under public law; nor does section 31 of the Supreme Court Act 1981. There is great
variation between individual cases that fall within Order 53 and the Rules Committee
and subsequently the legislature were, I think, for this reason content to rely upon
the express and the inherent power of the High Court, exercised upon a case to case
basis, to prevent abuse of its process whatever might be the form taken by that abuse.
Accordingly, I do not think that your Lordships would be wise to use this as an occasion
to lay down categories of cases in which it would necessarily always be an abuse to seek
in an action begun by writ or originating summons a remedy against infringement of
rights of the individual that are entitled to protection in public law.
Per Lord Diplock at 284–285.
The decision of the House of Lords in O’Reilly introduced a public–private divide in

the ability to bring a claim. This led to unintended consequences in later cases, as
situations where a rapid challenge through private law could resolve minor disputes
with public authorities (as in the case of Cocks) were no longer available.
Cocks v Thanet District Council [1983] 2 AC 286 – in this case a claimant’s endeavour to
challenge a council’s decision regarding his family’s homelessness through seeking a
declaration in the County Court was rejected. It was held that all such claims must now
be brought through the judicial review procedure.
Over time, the courts have become increasingly flexible in their application of the
procedural exclusivity rules so as to avoid the need for an excessively formal division
where a claimant has a legitimate reason for bringing a claim through the private law
procedure even though it may have a public law element.
Roy v Kensington and Chelsea Family Practitioner Committee [1992] 1 AC 624 – where a
GP’s contractual claim for payment turned in part on the determination of a public law
issue, it was permissible to bring a claim.
British Steel plc v Customs and Excise Commissioners (No.1) [1996] 1 All ER 1002 – where
there is a tax dispute focused on the legality of the interpretation of a statute granting
the power to impose taxation, the appropriate means of challenge is through judicial
review and not private law proceedings.
Mercury Telecommunications Ltd v Director General of Telecommunications [1996] 1 WLR

48 – where a matter is contractual, even where constrained by licence conditions of BT
set by the DGT under statutory powers, a claim might still be issued under private law.
The experience of other countries seems to show that the working out of this distinction
[between public and private law] is not always an easy matter. In the absence of the single
procedure allowing all remedies--quashing, injunctive and declaratory relief, damages-
-some flexibility as to the use of different procedures is necessary. It has to be borne in
mind that the overriding question is whether the proceedings constitute an abuse of the
process of the court.
Per Lord Slynn of Hadley at 57.

Trustees of the Dennis Rye Pension Fund v Sheffield City Council [1998] 1 WLR 840 at 849 –
where Lord Woolf MR said:
[Deciding whether a case should be brought by CFR or private law means involved] not only
considering the technical questions of the distinctions between public and private rights
and bodies but also looking at the practical consequences of the choice of procedure
which has been made. If the choice has no significant disadvantage for the parties, the
public or the court, then it should not normally be regarded as constituting an abuse.
From the above, we can see that over time the courts have started to take a more
pragmatic approach to procedural exclusivity.
6.1.1 Collateral challenge

It is also important to understand that the law permits claims through a process
known as ‘collateral challenge’ in some circumstances.
Boddington v British Transport Police [1999] 2 AC 143.
R v Wicks [1998] AC 92.
Activity 6.1
1. Explain the policy reasons for and against adopting strict rules on procedural
exclusivity. What is the purpose of these rules?
2. Analyse the current approach of the courts to procedural exclusivity. In what

ways have the courts become more flexible in their approach and why do you
think that they have adopted this more flexible approach?
3. Identify the circumstances in which a claimant can bring a claim for collateral
challenge. Why might the ability to bring collateral challenge be important?
6.2 The process for claiming judicial review

After the reforms of 1977, the process for claiming judicial review has become more
complex, with two stages. Instead of having a different set of criteria for claiming each
remedy, as was the case prior to 1977, the current law requires (other than where there
is an exception to the rule on procedural exclusivity) claimants to follow a particular
path. The usual expectation is that claimants will exhaust all internal complaints
mechanisms then will follow the pre-action protocol before bringing a claim for
judicial review. The judicial review claim itself consists of two stages – a permission
stage and a substantive hearing if permission is granted.
Exhaust complaints process
Pre-action letter/protocol
Permission stage
Substantive hearing
Figure 6.1 Process for claiming judicial review
6.2.1 Exhaust complaints processes
Further reading
¢¢ Le Sueur, A. ‘How to resolve disputes with public authorities’ (2002) Public Law
203.
¢¢ Lewis, C. ‘The exhaustion of alternative remedies in public law’ (1992) Cambridge

Law Journal 138.
¢¢ R v Secretary of State for the Home Department, ex parte Swati [1986] 1 All ER 717.
¢¢ R v Falmouth and Truro Port HA, ex parte South West Water Ltd [2001] QB 445 – a
claimant should not pursue judicial review until any statutory mechanisms for
redress have been exhausted.
¢¢ R (On the Application of Cowl) v Plymouth City Council [2001] EWCA Civ 1935 – an
interesting case where the Court of Appeal makes it clear that, wherever
possible, recourse to the law should be avoided in disagreements between
individuals and public authorities.
The case law above illustrates that the general expectation of the courts is that
claimants will exhaust any internal complaints or grievance mechanisms prior
to launching a claim for judicial review. Claimants will not be expected to follow
grievance processes where such processes could not deliver an effective resolution.
Leech v Deputy Governor of Parkhurst Prison [1988] AC 553 – no need to follow an appeal
mechanism in the Prison Rules where the secretary of state did not have the power to
deliver an effective remedy.
6.2.2 Follow the pre-action protocol
Further reading
¢¢ Pre-action protocol for judicial review available at: www.justice.gov.uk/courts/
procedure-rules/civil/protocol/prot_jrv
¢¢ Sunkin, M. and V. Bondy (2009) The dynamics of judicial review litigation: the
resolution of public law challenges before final hearing (London: The Public Law
Project, 2009), Section 2 ‘From dispute to challenge’ https://publiclawproject.
org.uk/resources/the-dynamics-of-judicial-review-litigation/
The pre-action protocol for judicial review is designed to give the parties a final
opportunity to resolve the dispute out of court. The pre-action protocol envisages that
the claimant will send a letter before the claim and the public authority will respond.
Sunkin and Bondy’s study suggests that the pre-action protocol has been successful in
delivering a resolution of the dispute between the parties in some cases.
6.2.3 The permission stage
Further reading
¢¢ Bondy, V. and M. Sunkin ‘Accessing judicial review’ (2008) Public Law 647.
The permission stage (required by Rule 54.4 of the Civil Procedure Rules) is designed to
be a filter. Claimants are expected to show that they have standing, that there are no
other procedural bars standing in the way of their claim and also that there are no other
procedural bars (particularly in respect of time limits). In addition to this, claimants need
to demonstrate that they have an arguable case. The arguable case will turn on the ability
of the claimant to demonstrate that the action of the public authority will be unlawful in
view of the grounds for review, which will be analysed in subsequent chapters.
6.3 Standing
Essential reading
¢¢ Cane, P. ‘Standing up for the public’ (1995) Public Law 276 (available in Westlaw).
Further reading
¢¢ Cane, P. ‘Standing, legality and the limits of public law’ (1981) Public Law 322.
¢¢ Schiemann, Sir K. ‘Locus standi’ (1990) Public Law 342.
¢¢ Ministry of Justice Cm 8703 Judicial review: proposals for further reform (London:
Ministry of Justice, 2013), Chapter 2 ‘Background’.
¢¢ McGarry, J. ‘The importance of an expansive test of standing’ (2014) Judicial

Review 60.
Section 31(3) of the Senior Courts Act 1981:
No application for judicial review shall be made unless the leave of the High Court has
been obtained in accordance with rules of court; and the court shall not grant leave to
make such an application unless it considers that the applicant has a sufficient interest in
the matter to which the application relates.
Standing is an important element of the claim for judicial review. As noted above,
its predominant purpose is as a filtering mechanism. The most important case on
standing is probably that of R v Inland Revenue Commissioners, ex parte National
Federation of Self Employed and Small Businesses Ltd [1982] AC 617. In this case, Lord
Scarman set out his view of the purpose of the need for permission to bring a judicial
review claim and the standing requirement in particular, when he said:
The one legal principle, which is implicit in the case law and accurately reflected in the
rule of court, is that in determining the sufficiency of an applicant’s interest it is necessary
to consider the matter to which the application relates. It is wrong in law, as I understand
the cases, for the court to attempt an assessment of the sufficiency of an applicant’s
interest without regard to the matter of his complaint. If he fails to show, when he applies
for leave, a prima facie case, or reasonable grounds for believing that there has been a
failure of public duty, the court would be in error if it granted leave. The curb represented
by the need for an applicant to show, when he seeks leave to apply, that he has such a case
is an essential protection against abuse of legal process. It enables the court to prevent
abuse by busybodies, cranks, and other mischief-makers. I do not see any further purpose
served by the requirement for leave. [at 653]
The decision of the House of Lords in this case demonstrates one of the core
challenges of standing. The general view of the principle is that standing is a
requirement to be dealt with at the permission stage but, in this case, the House of
Lords held that it may not always be possible to determine whether or not a claimant
has standing at the permission stage and may only be resolved at the full hearing,
injecting an unwelcome element of uncertainty for both claimants and public
authorities.
The law of standing has since become increasingly expansive. The law has always
been open to ‘personal’ claims, where individuals are seeking judicial review of
decisions that affect them personally. The approach to claims made by interest groups,
who claim to be representing either the public interest or a group of people with a
common interest has been more controversial but has at the same time become ever
more liberal.
It would be helpful for you to consider the following cases.
Cases concerning personal interests
R (On the Application of Edwards) v Environment Agency [2004] EWHC 736 (Admin).
Cases concerning ‘public interest’ claims
R v HM Treasury, ex parte Smedley [1985] 1 All ER 589.
R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1995] 1 AC 1.
Cases concerning groups
R v Secretary of State for Social Services, ex parte Child Poverty Action Group [1989] 1 All ER
1047.
R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co. (No.2) [1990] 1
QB 504.
R v Inspectorate of Pollution, ex parte Greenpeace Ltd (No.2) [1994] 4 All ER 329.
R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development
Movement [1995] 1 All ER 611.
6.3.1 Limitations on grant of leave in ‘makes no difference’ cases

The Criminal Justice and Courts Act 2015 inserted the following ‘makes no difference’
provision requiring that the High Court must refuse to grant leave to make an
application for judicial review where the conduct complained of in the application
made no difference to the outcome of the application. The relevant legislative
provisions are sub-ss.31 (3C)–(3F) of the Senior Courts Act 1981.
(3C) When considering whether to grant leave to make an application for judicial review,
the High Court—
(a) may of its own motion consider whether the outcome for the applicant would
have been substantially different if the conduct complained of had not occurred, and
(b) must consider that question if the defendant asks it to do so.
(3D) If, on considering that question, it appears to the High Court to be highly likely that
the outcome for the applicant would not have been substantially different, the court must
refuse to grant leave.
(3E) The court may disregard the requirement in subsection (3D) if it considers that it is
appropriate to do so for reasons of exceptional public interest.
(3F) If the court grants leave in reliance on subsection (3E), the court must certify that the
condition in subsection (3E) is satisfied.
These provisions have not yet been subject to any detailed treatment in reported
cases, in part because such permission proceedings are seldom reported. Similarly, the
statistics that are available do not allow us to see the number of cases that have been
refused permission to proceed under s.31(3D).
Activity 6.2
1. Read the 1995 article by Cane and try to categorise the cases in light of the
framework that he adopts. What do the more recent cases tell us about the
development of the law?
2. In view of the purposes of the law of standing set out by Lord Scarman, is it still
possible to argue that the standing test delivers on its objectives?
Extension activity
Consider the government proposals for the reform of standing in the consultation
paper referred to above. How would you reform the law of standing, or would you
leave it as it is? For an argument against reform, see the article by McGarry above.
6.4 Time limits and delay

Section 31(6) of the Senior Courts Act 1981:
(6) Where the High Court considers that there has been undue delay in making an
application for judicial review, the court may refuse to grant—
(a) leave for the making of the application; or
(b) any relief sought on the application,
if it considers that the granting of the relief sought would be likely to cause substantial
hardship to, or substantially prejudice the rights of, any person or would be detrimental
to good administration.
(7) Subsection (6) is without prejudice to any enactment or rule of court which has the
effect of limiting the time within which an application for judicial review may be
made.
Rule 54.5(1) and (2) of the Civil Procedure Rules:
(1) The claim form must be filed –
(a) promptly; and

(b) in any event not later than 3 months after the grounds to make the claim first
arose.
(2) The time limits in this rule may not be extended by agreement between the parties.
The purpose of imposing such time limits is to try to provide certainty for public
authorities and those who are relying on the decisions of public authorities. It is
possible for the court to extend the time limit, although this seldom occurs.
Caswell and Another v Dairy Produce Quota Tribunal for England and Wales [1990] 2 AC 738
– the House of Lords holding that the extension of the time limit will be exceptional
and that even where the time limit is extended, a remedy might be withheld if the
grant of a remedy would be detrimental to good administration.
R v Criminal Injuries Compensation Board, ex parte A [1999] 2 AC 330 – time limit

extended where the claimant was a victim of a serious sexual assault and her mental
state prevented a claim for judicial review within the requisite time limit. The House of
Lords held that the time limit could be extended in a case like that of A.
6.4.1 The challenge of ‘promptness’

R v Swale Borough Council, ex parte Royal Society for the Protection of Birds [1991] 1 PLR 6.
– applications brought within three months but subject to unreasonable delay are not
allowed where substantial hardship might be caused to others.
Case C-406/08 Uniplex (UK) Ltd v NHS Business Services [2010] 2 CMLR 47.
R (Macrae) v Hertfordshire DC [2011] EWHC 2810 (Admin) and overturned by the Court of
Appeal in [2012] EWCA Civ 457.
The two cases above illustrate the challenges of the ‘promptness’ rule, exemplified
by the Swale Borough Council case. In Uniplex, the claimant’s claim, which related to
public procurement, was struck out by the English court since, although the case was
brought within the three-month deadline for judicial review claims, it was struck out
by the courts due to lack of promptness. The CJEU held that this was a breach of the
principle of legal certainty.
In Macrae, the Court of Appeal was asked to consider whether the ‘promptness’ rule
infringed the requirements of Article 6 ECHR. It declined to do so as the appeal was
determined on other grounds but there remains a significant question of whether the
uncertainty of the ‘promptness’ requirement is compatible with the requirement of
legal certainty imposed by Article 6 ECHR.
Activity 6.3
1. Explain why the time limit for judicial review claims is generally imposed strictly
and the policy reasons for the rule. You may find it helpful to read the Caswell
decision to help you with this.
2. Consider the circumstances in which the time limit may be extended. Why are
the courts so restrictive in their approach?
6.5 Costs and other hurdles
Essential reading
¢¢ Hickman, T. ‘Public law’s disgrace’ UK Constitutional Law Association
Blog (9 February 2017). https://ukconstitutionallaw.org/2017/02/09/
tom-hickman-public-laws-disgrace/
Further reading
¢¢ Review of civil litigation costs: final report (TSO, 2009) available at: www.judiciary.
uk/wp-content/uploads/JCO/Documents/Reports/jackson-final-report-140110.pdf
¢¢ Fordham, M. and J. Boyd ‘Rethinking costs in judicial review’ (2009) Judicial

Review 306.
¢¢ Clayton, R. ‘Public interest litigation: costs and the role of legal aid’ (2006) Public
Law 429.
Since judicial review litigation is treated as civil litigation in England and Wales,
it operates on the ‘loser pays’ principle – i.e. the losing party pays the costs of the
successful party. This means that the losing party will be liable for not only the costs
incurred by his/her own side but also those of the government department concerned.
As you might imagine, particularly in cases that go to appeal, these costs could be
very significant indeed. The preliminary report of the Jackson review of costs in civil
claims found that there was little data on the costs of judicial review applications but
some representations made to the review suggested costs per side of £3,000–£5,000
for a paper-based application for permission with a further £10,000–£15,000 should
the case be given permission to proceed. It is acknowledged that in complex cases,
costs might be as much as three times these estimates. Should appeals be pursued,
these costs will rise further. Evidently, this may impose a great burden on claimants.
As Hickman’s article explains, the reduction in availability of legal aid along with the
relatively high cost of claims means that access to judicial review, although available in
a purely procedural sense, may not be available in practice.
6.5.1 Costs capping orders

It is possible, under rules 46.16to 46.19 of the Civil Procedure Rules to apply for a
‘costs capping order’ (CCO) in judicial review cases. This was previously known as a
‘protective costs order’ or PCO.
R (On the application of Corner House Research) v Secretary of State for Trade and Industry
[2005] EWCA Civ 192.
Weaver v London Quadrant Housing Trust [2009] EWCA Civ 235.
The reality here is that it is relatively difficult to obtain a CCO and the cost of obtaining
one could be significant! CCOs are also not available in cases where there is no wider
public interest at stake alongside the individual interest of the claimant, or for costs at
the permission stage.
Activity 6.4
1. What, according to Hickman, are the major barriers facing claimants for judicial
review in terms of the cost of bringing proceedings?
2. How could the law be reformed in order to improve the regime on costs? It may
help you to read the article by Fordham and Boyd when you are formulating an
answer to this question.
6.6 The remedies

It is possible to seek both the ‘prerogative’ remedies (quashing, prohibiting and
mandatory orders) and the private law remedies of declaration and injunction. The
basic function of each is described below:
Quashing order The quashing order (which used to be called certiorari), is an order of the
court that quashes an unlawful decision of a public authority. As such, the
decision is void.
Prohibiting The prohibiting order may be sought to prevent a public authority, which
order is proposing to act in an unlawful way, from taking such unlawful action.
Mandatory A mandatory order (was called mandamus) orders a public authority to
order exercise its powers in a lawful manner. As such, it is requested when a
public authority is refusing to exercise its powers.
Declaration The declaration is not a remedy as such because it has no immediate
legal effect. The declaration is used primarily as a means for resolving
disputes, as a declaration states the court’s view of what the law is on a
particular issue. Declarations might be granted on an interim or a final
basis.
Injunctions Injunctions are ordinarily granted on an interim basis, subject to a final

decision on an issue, although they can be used as a final remedy in
some limited cases. An injunction might be prohibitory or mandatory. A
prohibitory injunction prevents a public authority from doing something
that it was otherwise proposing to do, whereas a mandatory injunction
obliges a public authority to take action where it was proposing not to.
The circumstances for the grant of each of these remedies are analysed in great detail in
the textbooks but, as noted in the introduction, you will not be expected to know a great
detail about the grant of each remedy. It would, however, be useful for you to know some
of the basic case law and an activity has been set below to aid you to do that.
6.7 Discretion and remedies

It is important to remember from our discussion about the concept of ‘voidness’ in
public law that remedies in judicial review cases are discretionary (see Chapter 5).
There is a general presumption that a remedy will be granted but, in cases of public
interest or perhaps due to lack of ‘promptness’ (see Section 6.4.1), a remedy may be
refused by the courts.
Parliament has intervened relatively recently in order to try to further limit the
availability and use of judicial review where such judicial review claims might have
no or limited impact on the decision that has been made by a public authority. The
Criminal Justice and Courts Act 2015 added the new sub-ss.31(2A)–(2C) of the Senior
Courts Act 1981. Until relatively recently, this section had not been subject to detailed
judicial consideration but a number of recent cases have addressed this issue. The
legislation provides as follows:
(2A) The High Court—
(a) must refuse to grant relief on an application for judicial review, and
(b) may not make an award under subsection (4) on such an application,
if it appears to the court to be highly likely that the outcome for the applicant would not
have been substantially different if the conduct complained of had not occurred.
(2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers
that it is appropriate to do so for reasons of exceptional public interest.
(2C) If the court grants relief or makes an award in reliance on subsection (2B), the court
must certify that the condition in subsection (2B) is satisfied.
R (on the application of Goring-on-Thames Parish Council) v South Oxfordshire DC

[2018] EWCA Civ 860 – in this case the Court of Appeal held that the requirements in
s.31(2A) of the Senior Courts Act 1981 applied not only to procedural errors made by
public authorities but also substantive errors made in the decision-making process.
Furthermore, the court held that the power of the court to withhold a remedy under
its more general discretion over whether to grant a remedy was not overridden by the
statutory provisions and was a separate (and perhaps broader jurisdiction. So far, the
courts have not explored the interface between the broader discretion to withhold
a remedy enjoyed by the court and the specific requirement that it must withhold a
remedy in s.31(2A) of the Senior Courts Act 1981.
East Staffordshire BC v Secretary of State for Communities and Local Government [2017]
EWCA Civ 893 – this case concerned an error of interpretation made by a planning
inspector in the determination of planning permission. In this case, it was argued that
the court should not quash the decision because the error of law made no difference
but the Court of Appeal declined to refuse a remedy under s.31(2A) of the Senior Courts
Act 1981 as it could not be demonstrated that the Planning Inspector’s decision would
have been the same had a correct interpretation of planning law been adopted.
Activity 6.5
1. Using your textbook, identify examples of circumstances where each of the
remedies listed above has been granted and the basic circumstances in which
they will be granted.
2. Why do you think that parliament has acted to require the courts to refuse to
grant a remedy in cases where the conduct complained of is highly unlikely to
have made a difference to the outcome for the applicant?

this chapter:
1. The process for claiming judicial review in England and Wales is built upon the
concept of procedural exclusivity. This means that, in general, all claims for a
remedy against a public authority exercising its public powers must come through
the claim for judicial review procedure. However, we can see that over time, the
courts have become more pragmatic in their approach to this issue and have
allowed some claimants to bring an action in private law even where the subject
matter of the case requires the court to make determinations about the exercise of
public power. There is a further exception, known as ‘collateral challenge’ open to
claimants in circumstances where they are seeking to challenge the imposition of a
penalty and are questioning the legal basis on which the penalty is being imposed.
2. Claim for judicial review is a two-stage process. There is a permission stage and
then a substantive hearing if permission is granted. The purpose of the permission
stage is to act as a ‘filter’, removing cases where the claimant cannot show that
they have standing, or where there is some other procedural bar such as exceeding
the time limit or delay, or where the claimant does not have an arguable case.
3. The concept of ‘standing’ is important in administrative law. This governs who can
make a claim for judicial review and turns on a ‘sufficient interest’ test. Many argue
that, over time, our courts have liberalised the standing requirements to a degree
that they are no longer a significant barrier to claimants.
4. The reality for many claimants is that, while the procedural barriers to bringing a
claim may not be all that significant for many claimants, the substantive barrier of
costs is far more problematic. It is important not to underestimate the challenges
of access to justice in administrative law.
5. The remedies in judicial review are known as the ‘prerogative’ – i.e. quashing,
prohibiting and mandatory orders and then the ‘private law’ – declarations and
injunctions. All are available through the judicial review procedure. While the grant
of a remedy is usual, the courts are not required to grant a remedy – the grant of a
remedy is discretionary.
7 The availability of judicial review
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7.1 Jurisdictional error and errors of law and fact . . . . . . . . . . . . . . 63
7.2 Errors of fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
7.3 Amenability to review . . . . . . . . . . . . . . . . . . . . . . . . . . 69
7.4 Justiciability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Introduction
A central question for those who are seeking judicial review of the decisions of a
public authority must deal with the question of whether the decision or action of a
public authority is subject to judicial review or not. A number of key questions must be
considered. Judicial review is focused upon the concept of jurisdictional error, which
asks at its heart whether or not a public authority had the power (or jurisdiction) to
do what it has done. The concept of jurisdictional error can then be subdivided into
errors of law or errors of fact. As we will see from the discussion below, judicial review
is generally open to the review of errors of law but the scope of the courts’ powers
to review errors of fact is less clear. Linked to the issue of jurisdictional error is the
possible applicability of ouster clauses – clauses included in legislation that purport
to exclude judicial review. Finally, we will consider some other reasons why decisions
may not be amenable to judicial review. We will briefly revisit the question of
amenability of decisions to review (covered in more detail in Chapter 2) and then we
will introduce another important concept – justiciability. The concept of justiciability
creates an important question for the courts – when and in what circumstances should
they defer to executive decision-makers?
The concept of jurisdiction is central in administrative law. However, it is not a

concept that enjoys a great deal of certainty in its application.
There are many words in common usage in the law which have no precise or constant
meaning. But few, I think, have been used with so many different shades of meaning in
different contexts or have so freely acquired new meanings with the development of the
law as the word jurisdiction.
Per Lord Bridge in In re McC (A Minor) [1985] AC 528 at 536.
The basic idea underlying the concept of jurisdiction is simply to ask whether or not
a public authority is acting within its powers (intra vires) or beyond its powers (ultra
vires). Errors of law are errors made by public authorities either in the interpretation of
the scope of their powers (so that a public authority is seeking to exercise power that
it does not have) or it may be an error of law in the exercise of its power that renders
its decision to be unlawful. It is important to have an understanding of the way errors
of law are treated by the law.
The question of whether an error of fact is subject to judicial review has been a more
difficult one for the law. Until relatively recently, it was generally felt that review of
errors of fact was highly restricted. In recent years, the courts have taken a more
expansive approach. We will consider this in greater detail below.
In some circumstances, the legislature has endeavoured to exclude the ability of the
courts from engaging in judicial review of certain administrative decisions. It is clear
that such ‘ouster clauses’ or ‘exclusion clauses’ may raise some significant questions
about the ability of the courts to vindicate the rule of law. As we will see, judges have
become increasingly suspicious of such clauses and, since the decision of the House of
Lords in Anisminic v Foreign Compensation Commission [1969] 2 AC 147, has significantly
limited the potential for the legislature to oust the jurisdiction of the courts in judicial
review.
The issue of amenability has already been partly considered in Chapter 2 – the question
of amenability deals with two separate issues. One is the question of whether the body
concerned is exercising a public function. This was addressed in some detail in Chapter
2 but we will revisit it briefly here. The second question that arises is the question of
whether the matter raised in the legal proceedings is what might be described as a
‘public law matter’. Rather than considering the nature of the body subject to review,
this aspect of the ‘amenability’ issue examines the subject matter of the case in order
to determine whether the issue at stake is one that is appropriate for resolution
through judicial review, or should be resolved instead through private law.
The final issue that you need to consider is the concept of justiciability. This concept
is related to the separation of powers and is a concept that is used in order to consider
Administrative law 7 The availability of judicial review page 63
whether an issue is suitable for resolution through the judicial process. Since after
this chapter we shall move on to consider the grounds for review, it is helpful for us to
examine reasons why judges might decide that the subject matter of certain cases is
not suitable for resolution in the courts and the policy reasons for doing so.
Learning outcomes
be able to:
uu Describe and explain the concepts of ‘jurisdiction’, ‘jurisdictional error’, ‘errors of
law’, ‘errors of fact’ and the impact of ouster clauses on the availability of judicial
review.
uu Offer a critical analysis of the development of the law in respect of the above
concepts.
uu Explain and analyse the law and theoretical arguments relating to the debates
around amenability to judicial review and justiciability, using relevant case law
examples.
Core text
¢¢ Endicott, Chapter 2 ‘The rule of law and the rule of judges’ (to revisit here),
Chapter 7 ‘Discretion and deference’ and Chapter 9 ‘Errors of law and control of
fact-finding’.
Further reading
¢¢ Harlow and Rawlings, Chapter 15 ‘Elite dimension: court structures and process’.
¢¢ Craig, Chapter 16 ‘Error of law’, Chapter 17 ‘Error of fact’ and 28-001–28-005.
¢¢ Wade and Forsyth, Chapter 8 ‘Jurisdiction over fact and law’.
7.1 Jurisdictional error and errors of law and fact

As noted above, judicial review is based on the concept of jurisdictional error. In each
judicial review case, the court is essentially considering the question of whether the
body subject to review has acted intra or ultra vires. Judicial review is focused mainly
on errors of law but will also consider errors of fact in certain circumstances.
7.1.1 Errors of law

In the past, the courts placed great focus on whether an error of law was made ‘going
to’ the jurisdiction or ‘within’ jurisdiction. Prior to the decision of the House of Lords
in Anisminic (discussed below), the general approach of the courts was that errors
‘going to’ the jurisdiction were treated as being ‘jurisdictional errors’ and subject to
the control of the court, whereas errors made ‘within’ jurisdiction were considered to
be matters for administrative discretion and were not usually treated as jurisdictional
errors.
Scope of power
or discretion
‘Going to’ (‘jurisdictional’) ‘Within’ (‘non-jurisdictional’)
Figure 7.1 ‘Going to’ or ‘within’ the jurisdiction

If you think of the dotted line surrounding the sphere above as the scope of the power
or discretion granted to a public authority then the traditional approach of the courts
was to look at errors ‘going to’ the jurisdiction and see these as jurisdictional errors.
Such errors are, in essence, errors where a public authority is seeking to exercise
power that it does not possess (often described as ‘simple ultra vires’. Errors made
‘within’ jurisdiction, which were not generally subject to judicial review were legal
errors made within the scope of the jurisdiction of a public authority.
It is not true to say that errors made ‘within’ jurisdiction were never subject to judicial
review. The courts were willing to review ‘errors on the face of the record’ made within
jurisdiction for many years. This concept is best explained by the dicta of Lord Denning
in R v Northumberland Appeal Tribunal, ex parte Shaw [1952] 1 KB 338:
Until about 100 years ago, certiorari was regularly used to correct errors of law on the face
of the record. It is only within the last century that it has fallen into disuse, and that is
only because there has, until recently, been little occasion for its exercise. Now, with the
advent of many new tribunals, and the plain need for supervision over them, recourse
must once again be had to this well-tried means of control. I will endeavour to show
how the writ of certiorari was used in former times, so that we can take advantage of the
experience of the past to help us in the problems of the present.
Per Lord Denning at 348.
It will have been seen that throughout all the cases there is one governing rule: certiorari
is only available to quash a decision for error of law if the error appears on the face of the
record. What, then, is the record? It has been said to consist of all those documents which
are kept by the tribunal for a permanent memorial and testimony of their proceedings…
Following these cases, I think the record must contain at least the document which
initiates the proceedings; the pleadings, if any; and the adjudication; but not the
evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal
does state its reasons, and those reasons are wrong in law, certiorari lies to quash the
decision.
Per Lord Denning at 351–353.
Activity 7.1
1. Explain the concept of ‘jurisdictional error’.
2. Explain the distinction between errors made ‘going to’ and ‘within’ jurisdiction.
3. Analyse the scope of the concept of an ‘error on the face of the record’. Do
you think that this was an effective means of control of errors made ‘within’
jurisdiction?
7.1.1.1 The impact of ouster clauses
Essential reading
¢¢ de Smith, S.A. ‘Judicial review in administrative law: the ever-open door’ (1969)
27 Cambridge Law Journal 161.
Further reading
¢¢ Laurie, E. ‘Assessing the Upper Tribunal’s potential to deliver administrative
justice’ (2012) Public Law 288.
¢¢ Eliasson, A., R. Chiarella and S. Ahmad ‘Ousting the ouster clause?’ (2017) Judicial
Review 263.
¢¢ Craig, R. ‘Ouster clauses, separation of powers and the intention of parliament:

from Anisminic to Privacy International’ (2018) Public Law 570.
Ouster clauses are measures included in legislation designed to ‘oust’ the jurisdiction
of the courts. The most famous case in respect of ouster clauses is the decision of the
House of Lords in Anisminic v Foreign Compensation Commission [1969] 2 AC 147. In this
case, s.4(4) of the Foreign Compensation Act 1950 provided that:
The determination by the commission of any application made to them under this Act
shall not be called in question in any court of law.
The majority in the House of Lords held that this ‘ouster clause’ did not preclude
judicial review of the decision of the Foreign Compensation Commission because an
error of law, even if made ‘within’ jurisdiction was ultra vires, void and thus a nullity
– i.e. it did not constitute a ‘determination’ for the purposes of s.4(4) of the Foreign
Compensation Act 1950. In his famous judgment in this case, Lord Reid said:
But there are many cases where, although the tribunal had jurisdiction to enter on the
inquiry, it has done something or failed to do something in the course of the inquiry
which is of such a nature that its decision is a nullity. It may have given its decision in
bad faith. It may have made a decision which it had no power to make. It may have
failed in the course of the inquiry to comply with the requirements of natural justice.
It may, in perfect good faith, have misconstrued the provisions giving it power to act
so that it failed to deal with the question remitted to it and decided some question
which was not remitted to it. It may have refused to take into account something
which it was required to take into account. Or it may have based its decision on some
matter which under the provisions setting it up, it had no right to take into account. I
do not intend this list to be exhaustive.
Per Lord Reid [at [171].]
As we can see from the judgment above, the decision in Anisminic is significant because
it suggests that a range of errors even made ‘within’ jurisdiction could render a
decision by a public authority to be unlawful, even if these errors are not ‘on the face
of the record’. As Endicott notes in his book (see Chapter 9, pp.320–328), there has been
some debate over whether the decision in Anisminic genuinely intended to change
the law on jurisdictional error in such a significant way but this has been the practical
effect. We can see this sentiment in a number of subsequent judicial decisions.
Re Racal Communications Ltd [1981] AC 374
The breakthrough made by Anisminic was that, as respects administrative tribunals and
authorities, the old distinction between errors of law that went to jurisdiction and errors
of law that did not, was for practical purposes abolished. Any error of law that could be
shown to have been made by them in the course of reaching their decision on matters of
fact or of administrative policy would result in their having asked themselves the wrong
question with the result that the decision they reached would be a nullity.
Per Lord Diplock [at [383]].
Page v Hull University Visitor [1993] 1 All ER 97
In my judgment the decision in Anisminic Ltd v Foreign Compensation Commission rendered

obsolete the distinction between errors of law on the face of the record and other errors
of law by extending the doctrine of ultra vires.
Per Lord Browne-Wilkinson [at [107]].
R (Strickson) v Preston County Court [2007] EWCA Civ 1132
The narrower pre-Anisminic sense of jurisdiction referred to the tribunal’s right to

embark upon the question in hand at all: what might be called the condition
precedent for its having any jurisdiction in the matter. The issue whether, having
perfectly properly embarked upon some question, the tribunal then arrived at the wrong
answer, was on this approach an entirely different matter, and not an issue of jurisdiction
at all.
Per Laws LJ [at [26]].
From the above, we can see that, despite some academic doubts about the precise
scope of the decision in Anisminic, the courts have adopted an expansive approach to
the decision in Anisminic, essentially dissolving the distinction that previously existed
between errors made ‘within’ jurisdiction and errors ‘going to’ the jurisdiction. The
practical impact of Anisminic is therefore extremely significant. Referring back to
Figure 7.1, we might say that the impact of Anisminic could be said to be as in Figure 7.2.
Power
Case law pre-Anisminic Anisminic
Figure 7.2 Anisminic jurisdiction
Activity 7.2
1. Explain the impact of the decision in Anisminic. Why do many feel that it is such a
vital decision for the development of judicial review in England and Wales?
Are all errors of law now subject to review?

Although the decision in Anisminic reduced the impact of ouster clauses and has been
interpreted in such a way that most ouster clauses now have limited effect, it is not
true to say that there are no limitations on the court’s ability to examine ‘errors of law’.
Courts and tribunals

Re Racal Communications Ltd – the High Court is not subject to judicial review as a
‘superior court of record’. The process of appeal (if available) is the applicable route to
be used to challenge a decision of the High Court.
R (Cart) v Upper Tribunal [2011] UKSC 28 – in those cases where there was no appeal
available to the Court of Appeal from the Upper Tribunal, judicial review is available
only in restricted circumstances.
‘Special jurisdictions’
R v Lord President of the Privy Council, ex parte Page [1993] A. 682 – the special jurisdiction
of the university visitor is not subject to judicial review.
Ouster of jurisdiction
There are relatively few circumstances where ouster clauses will continue to be
effective but there are some circumstances where the effect is maintained. The best
example is in relation to issues of security. See, for example, s.67(8) of the Regulation
of Investigatory Powers Act 2000:
Except to such extent as the Secretary of State may by order otherwise provide,
determinations, awards, orders and other decisions of the Tribunal (including decisions
as to whether they have jurisdiction) shall not be subject to appeal or be liable to be
questioned in any court.
R (on the application of Privacy International) v Investigatory Powers Tribunal [2017] EWHC
114 (Admin) – the provision outlined above serves to oust the jurisdiction of the courts
in judicial review and appeal.
You might also consider s.65(2)(a) of the Regulation of Investigatory Powers Act 2000,
which limits the jurisdiction of other courts in Human Rights Act claims relating to
matters covered by the Act and allows recourse only to the Investigatory Powers
Tribunal:
(2) The jurisdiction of the Tribunal shall be–
(a) to be the only appropriate tribunal for the purposes of section 7 of the Human
Rights Act 1998 in relation to any proceedings under subsection (1)(a) of that section
(proceedings for actions incompatible with Convention rights) which fall within
subsection (3) of this section;
A v B (Investigatory Powers Tribunal: Jurisdiction) [2009] UKSC 12 – in human rights cases

covered by the Regulation of Investigatory Powers Act 2000, the provision outlined
above ousts the jurisdiction of any other court.
It is perhaps important to note that parliament accepted that the ouster of jurisdiction
in s.67(8) of the Act was very broad, so has relaxed the restriction of appeal through
s.242 of the Investigatory Powers Act 2016, which, when it comes into force, will
introduce a new s.67A into the Regulation of Investigatory Powers Act 200, expanding
the scope of the right to appeal.
Partial ouster
It has long been accepted that partial ouster clauses, such as the setting of time limits
for bringing judicial review claims have effect. In certain planning applications, the
time limit for bringing a judicial review claim is reduced to six weeks from the usual
three months and the courts have held that access to review is precluded by such
clauses.
R v Secretary of State for the Environment, ex parte Ostler [1977] QB 122 – six-week
time limit on claims for review of decision relating to compulsory purchase of land
precludes judicial review after the period has elapsed.
Activity 7.3
1. Explain the circumstances in which ouster clauses may still have an effect to
limit or remove the potential for claims for judicial review.
2. Why might ouster clauses be important? Explain the reasons why such clauses
might be included in legislation.
3. Why might ouster clauses be a source of concern for those who want to ensure
compliance with the rule of law?
7.2 Errors of fact
Essential reading
¢¢ Williams, R. ‘When is an error not an error? Reform of jurisdictional review of
error of law and fact.’ (2007) Public Law 793 (available in Westlaw).
Further reading
¢¢ Grekos, M. ‘Material error of fact – a separate ground of review in administrative
law?’ (2004) Judicial Review 184.
¢¢ Forsyth, C. ‘Error of fact revisited: waiting for the “Anisminic moment”’ (2018)
Judicial Review 1.
As noted above, errors of fact are not so readily reviewable as questions of law –
the courts generally hold that the finding of fact is ordinarily a matter for public
authorities and tribunals and should not generally be the subject of judicial
interference. However, there are some circumstances in which errors of fact can be
subject to review.
7.2.1 Jurisdictional or precedent fact

Where a finding of fact determines the jurisdiction of a particular public authority in
respect of a matter, the finding of such a ‘jurisdictional fact’ is subject to review. There
are many examples of this in practice, but see as examples.
R v Fulham, Hammersmith and Kensington Rent Tribunal, ex parte Philippe [1950] 2 All ER
211 – where a tribunal has the power to set rents and could take account of ‘premiums’
(as defined by the legislation) when setting that rent, an error of fact (where the
tribunal took account of a ‘premium’ when, in fact, none had been paid) was an error
of fact subject to review.
Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320
– where powers are used to obtain a compulsory purchase order and acquire a house
where it is ‘unfit for human habitation’, the court can review the factual evidence
to ensure that the authority has actually proven the facts necessary to enable it to
exercise the power.
7.2.2 The difficult question of the fact/law distinction

It is, of course, not always easy to draw a distinction between questions of fact and
questions of law. The general principle that the courts have adopted is that questions
of fact are normally left in the hands of the decision-maker but at the same time we
can see that, in some circumstances, the courts hold that certain questions of fact
should be subject to review in some circumstances. The precise reason for this (other
than the desire to uphold the principle of legality) are not always clear. In general, the
courts are perhaps less willing to become involved in reviewing facts somehow related
to policy than in circumstances where, on interpreting the legislation, they are more
suitable for review and interpretation by the courts. Consider, for example:
Children Act 1989, s. 20(1):
(1) Every local authority shall provide accommodation for any child in need within their
area who appears to them to require accommodation as a result of—
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or
not permanently, and for whatever reason) from providing him with suitable
accommodation or care.
R (A) v Croydon LBC [2009] UKSC 8– which aspects of the phrase ‘child in need’ are more
objective and suitable for resolution by the court?
The 1989 Act draws a clear and sensible distinction between different kinds of question.
The question whether a child is ‘in need’ requires a number of different value judgments.
What would be a reasonable standard of health or development for this particular child?
How likely is he to achieve it? What services might bring that standard up to a reasonable
level? What amounts to a significant impairment of health or development? How likely
is that? What services might avoid it? Questions like this are sometimes decided by the
courts in the course of care or other proceedings under the Act. Courts are quite used
to deciding them upon the evidence for the purpose of deciding what order, if any, to
make. But where the issue is not, what order should the court make, but what service
should the local authority provide, it is entirely reasonable to assume that Parliament
intended such evaluative questions to be determined by the public authority, subject
to the control of the courts on the ordinary principles of judicial review.
Per Baroness Hale [at [26]].
But the question whether a person is a ‘child’ is a different kind of question. There is
a right or a wrong answer. It may be difficult to determine what that answer is. The
decision-makers may have to do their best on the basis of less than perfect or conclusive
evidence. But that is true of many questions of fact which regularly come before the
courts. That does not prevent them from being questions for the courts rather than for
other kinds of decision-makers.
Per Baroness Hale [at [27]].
As we see from these two quotes, findings of fact that are more subjective, such as that
of whether a child is ‘in need’ are usually left to the primary decision-maker (the public
authority), whereas the more objective question of whether the individual concerned
is a ‘child’ is deemed to be suitable for resolution by the court.
You could also look at the following two cases for further discussion of the law/fact
distinction.
Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929 (particularly Lord
Carnwath at [20]–[28]).
R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC
48 and see the helpful case summary by Daly, P. ‘Reviewing Britain’s tribunal system’
(2013) 72 Cambridge Law Journal 494.
7.2.3 Material errors of fact

In more recent years, there has also been a development of a substantive ground of
review in relation to ‘errors of fact’. Although there is not a great deal of case law on this
issue, it is important to know something of E v Secretary of State for the Home Department
[2004] EWCA Civ 49; [2004] QB 1044, where Carnwath LJ (as he then was) said:
In our view, the time has now come to accept that a mistake of fact giving rise to
unfairness is a separate head of challenge in an appeal on a point of law, at least in those
statutory contexts where the parties share an interest in co-operating to achieve the
correct result. Asylum law is undoubtedly such an area. Without seeking to lay down
a precise code, the ordinary requirements for a finding of unfairness are… First, there
must have been a mistake as to an existing fact, including a mistake as to the availability
of evidence on a particular matter. Secondly, the fact or evidence must have been
“established”, in the sense that it was uncontentious and objectively verifiable. Thirdly,
the appellant (or his advisers) must not been have been responsible for the mistake.
Fourthly, the mistake must have played a material (not necessarily decisive) part in the
tribunal’s reasoning.
Per Carnwath LJ [at [66]].
Activity 7.4
1. Explain the concept of ‘jurisdictional fact’. When does the court review findings
of fact by public authorities using this concept and why do they do so?
2. What are questions of law and what are questions of fact in the process of
judicial review? Is it easy to draw this distinction?
3. Under what circumstances will the courts review a material error of fact made
by a public authority?
7.3 Amenability to review

In Chapter 3, we considered the amenability of private bodies to judicial review. You
should now understand that it is possible for private bodies to be subject to review
where the functions that the private body exercises are of a public nature. The second
question that we might ask in relation to ‘amenability’ is whether the matter that is
at stake is a ‘public law matter’. If the dispute is a private law one – i.e. a contractual
dispute between a public authority and an individual, then ordinarily it will not be
appropriate for a claimant to seek judicial review – any action should be in private law.
The strongest example of this is found in the case of R v East Berkshire Health Authority,
ex parte Walsh [1985] QB 152, where Lord Donaldson M.R. said:
The ordinary employer is free to act in breach of his contracts of employment and if he
does so his employee will acquire certain private law rights and remedies in damages
for wrongful dismissal, compensation for unfair dismissal, an order for reinstatement
or re-engagement and so on. Parliament can underpin the position of public authority
employees by directly restricting the freedom of the public authority to dismiss, thus
giving the employee ‘public law’ rights and at least making him a potential candidate for
administrative law remedies. Alternatively it can require the authority to contract with its
employees on specified terms with a view to the employee acquiring ‘private law’ rights
under the terms of the contract of employment. If the authority fails or refuses to thus
create ‘private law’ rights for the employee, the employee will have ‘public law’ rights to
compel compliance, the remedy being mandamus requiring the authority so to contract
or a declaration that the employee has those rights. If, however, the authority gives the
employee the required contractual protection, a breach of that contract is not a matter
of ‘public law’ and gives rise to no administrative law remedies.
Per Lord Donaldson MR [at [165]].
7.4 Justiciability
Core text
¢¢ Endicott, Chapter 7 ‘Discretion and deference’, Section 7.3.
Essential reading
¢¢ Young, A.L. ‘In Defence of due deference’ (2009) 72 Modern Law Review 554
(available in the Online Library).
Further reading
¢¢ Jowell, J.L. ‘Judicial deference: servility, civility or institutional capacity’ (2003)
Public Law 592.
¢¢ Clayton, R. ‘Principles for judicial deference’ (2006) Judicial Review 109.
As noted above, the concept of justiciability links with the concept of deference and
is used by the courts to determine whether an issue is suitable for determination
by the courts. As we progress through Chapters 8, 9 and 10 you will need a basic
understanding of the concept of justiciability and the way in which it is sometimes
used to limit the issues that the courts will consider in judicial review.
There are various ways to think about this issue, but in Young’s article, referenced
above, she suggests that one way of looking at the issue of justiciability and judicial
deference to the decisions that are made is through considering constitutional and
institutional limitations that the courts may face:
Constitutional Institutional
Separation of powers – the need to Institutional capacity – the courts may
acknowledge that certain matters are lack the necessary expertise and thus be
matters for the executive, delegated to in a worse position to consider the issues
them by parliament and thus it may not be than the primary decision-maker. This may
legitimate for the courts to intervene. often be the case in respect of questions
in relation to technical issues, such as the
regulation of medicines.
Parliamentary sovereignty – the courts Polycentric questions – the courts will
may be reluctant to review a decision be less willing to consider issues relating
that has somehow been endorsed by to polycentric questions (questions with
parliament, due to the desire not to offend many ‘correct’ answers, or no truly correct
the principle of parliamentary sovereignty. answer) such as the amount of resources
to allocate to health when contrasted with
the amount of resources to allocate to
education, as these are political questions,
not ideally resolved in the judicial sphere.
Endicott also identifies a number of ‘issues’ that may be deemed not to be justiciable,
including cases involving money, certain issues of national security and issues of
international law or the policies of other states. In Chapters 8, 9 and 10 we will
interrogate some of these issues in greater detail. However, at this stage, simply try to
bear in mind that these concerns arise in many cases and are inspired by a number of
constitutional and institutional concerns.
Activity 7.5
1. Explain the concept of ‘justiciability’.
2. What sort of issues will be considered to be ‘non-justiciable’? Drawing on the

reading (particularly the part of Chapter 7 by Endicott noted above), give some
examples.
3. Try to explain the broad reasons why some issues are held to be non-justiciable.
Why might the courts be reluctant to become involved in some matters of
public administration?

this chapter:
1. The concept of jurisdiction is crucially important for judicial review. At one stage,
the courts were particularly concerned to draw the distinction between errors of
law ‘going to’ the jurisdiction and errors of law made ‘within’ jurisdiction but this is
no longer the case. The decision in Anisminic is deemed to be an important case in
dissolving this distinction.
2. The courts have become increasingly suspicious of ‘ouster clauses’, as they are
thought by some to be an unjustifiable restriction on the ability of claimants to
vindicate their legal rights. However, some ‘ouster clauses’ have been held to be
effective by the courts. As the discussion above endeavours to show, some ‘ouster
clauses’ might be useful because they assist in upholding the principle of legal
certainty.
3. The distinction between ‘errors of law’ and ‘errors of fact’ is not entirely clear.
The courts were generally reluctant to review errors of fact in judicial review
proceedings but have generally become more open to such review over time. We
now appear to have three fairly clear grounds for review of factual questions:
a. Where the finding of fact is central to the question of jurisdiction

(‘jurisdictional fact’).
b. Where questions of fact are appropriate for resolution by the courts, or where
the question is one of mixed law and fact (which tends to arise where the
factual question is more objective). The question of whether such issues are
open to review turns on the interpretation of the relevant statute and also
questions of policy that will be determined by the reviewing court.
c. Material errors of fact, provided that the criteria in E v Secretary of State for the
Home Department are met.
4. Some issues are not ‘amenable’ to judicial review in the sense that they are not
truly ‘public law’ matters. The relationship between a public authority and an
employee who has a contract of employment is such an example.
5. The question of ‘justiciability’ is a crucial one that helps to explain why the courts
are reluctant to engage in the judicial review of particular issues. There are certain
institutional and constitutional concerns, which may encourage a court to defer to
the decision-maker.
Notes
8 Illegality
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
8.1 Arguments relating to a lack of legal authority . . . . . . . . . . . . . . 75
8.2 Failure to fulfil a statutory duty . . . . . . . . . . . . . . . . . . . . . . 77
8.3 Use of power for an improper purpose . . . . . . . . . . . . . . . . . . 78
8.4 Relevant and irrelevant considerations . . . . . . . . . . . . . . . . . . 78
8.5 Exercise and delegation of powers . . . . . . . . . . . . . . . . . . . . 79
8.6 Failure to follow statutory processes . . . . . . . . . . . . . . . . . . . 80

Introduction
At the start of this chapter it is apposite to revisit the words of Lord Diplock in CCSU v
Minister for the Civil Service [1985] AC 374:
Judicial review has I think developed to a stage today when without reiterating any analysis of
the steps by which the development has come about, one can conveniently classify under three
heads the grounds upon which administrative action is subject to control by judicial review.
The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural
impropriety’. That is not to say that further development on a case by case basis may not in
course of time add further grounds. I have in mind particularly the possible adoption in the future
of the principle of ‘proportionality’ which is recognised in the administrative law of several of our
fellow members of the European Economic Community; but to dispose of the instant case the
three already well-established heads that I have mentioned will suffice.
By ‘illegality’ as a ground for judicial review I mean that the decision-maker must understand
correctly the law that regulates his decision-making power and must give effect to it.
Whether he has or not is par excellence a justiciable question to be decided, in the event of
dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.
As you will see from the part of the judgment set out above, arguments relating to
illegality are potentially broad in scope, as they relate to the legal powers that the
decision-maker enjoys and the legal restrictions on those powers. As such, many of the
issues raised in the case law relate to an important skill that you should have begun to
develop in Legal system and method – that of statutory interpretation.
In this chapter you will be asked to think about a number of legal issues that might
be the basis of arguments relating to legality. The coverage here is not intended to
be exhaustive but offers an indication of the main areas in which illegality arguments
tend to arise. From a theoretical perspective, it is important to have some knowledge
of these illegality arguments because they may help your understanding of the
policy- and rule-making processes and possible challenges that might arise in this
regard. From a practical perspective, illegality arguments are an important element of
the control of legality. As such, some of the tasks in this chapter will ask you to apply
illegality arguments to hypothetical problem questions.
As Endicott explains (see pp.357–358) a particular challenge in trying to define the

grounds of judicial review is that there is a great deal of overlap between the three
‘grounds’ defined by Lord Diplock. One could contend that all arguments that lead to
a decision being held to be unlawful are arguments about ‘illegality’, as procedural
unfairness and irrationality or a lack of proportionality could also be situations
where a decision-maker has failed to ‘understand correctly the law that regulates his
decision-making power and must give effect to it’. However, if we simply assessed all
grounds and doctrines of judicial review in relation to ‘illegality’ then this would have
the potential to be rather confusing. As such, the courts tend to use the three broad
grounds outlined by Lord Diplock to draw a distinction between the various grounds.
You will see from the readings advised above that most administrative law textbooks
do not necessarily cover ‘illegality’ as a separate ground of review but intersperse it
in their discussions of other issues (such as rationality, procedural propriety, etc.). As
such, it is challenging, other than by reference to Leyland and Anthony, to recommend
textbook readings on this topic. As a result, you are encouraged to look at some of
these cases, as the cases themselves are often highly instructive. You are not expected
to read all of the cases but it will greatly assist you in the development of your legal
skills if you learn to examine the various cases.
Learning outcomes
be able to:
uu Describe and explain the circumstances under which arguments relating to
‘illegality’ may render the decision, action or inaction of a public authority to be
unlawful.
uu Apply these arguments to a hypothetical problem scenario.
Administrative law 8 Illegality page 75
Core text
¢¢ Endicott, pp.358–359.
Further reading
¢¢ Leyland, P. and G. Anthony Textbook on administrative law (Oxford: Oxford
University Press, 2016) eighth edition [ISBN 9780198713050], Chapter 11 ‘Illegality
I’ and Chapter 12 ‘Illegality II’.
¢¢ Wade and Forsyth, Chapter 11 ‘Abuse of discretion’, pp.318–364.
8.1 Arguments relating to a lack of legal authority

The first set of arguments are perhaps the most straightforward – they are arguments
relating to what we might describe as ‘simple ultra vires’, where the decision-maker
is purporting to take a decision that they do not have the legal authority to take. This
is always an issue of statutory interpretation, both for decision-maker and the court.
If you think back to the discussion in Chapter 7, this is essentially a claim that the
decision-maker has made an error of law ‘going to the jurisdiction’.
There are a huge number of examples that could be offered here but the following are
instructive.
R (on the application of The Public Law Project) v Lord Chancellor [2016] UKSC 39
Under s.9(2) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the
Lord Chancellor was given the following powers in relation to the variation of those
who were entitled to receive civil legal aid:
The Lord Chancellor may by order—
(a) add services to Part 1 of Schedule 1, or
(b) vary or omit services described in that Part, (whether by modifying that Part or
Parts 2, 3 or 4 of the Schedule).
Using these powers, the Lord Chancellor sought to preclude access to legal aid to
those who were not lawfully resident in the UK and who had not been so resident for
at least 12 months. The Public Law Project (an interest group) challenged this change
to the Regulations on eligibility arguing that the legislative provisions permitted
a variation or omission of the services that could be offered but not the classes of
persons who could receive such legal aid. In the judgment of the Supreme Court, Lord
Neuberger said:
In my view, that argument is sound, and should be accepted. Turning to section 9(2)
(b) itself, as a matter of ordinary language, the relevant parts of the draft order do not
seek to ’vary or omit services‘: rather they seek to reduce the class of individuals who are
entitled to receive those services by reference to a personal characteristic or circumstance
unrelated to the services. Of course, the words of section 9(2)(b) have to be interpreted
in their context, and I accept that a sufficiently clear and strong context could justify a
different conclusion, in the sense that the words of section 9(2)(b) could, as a matter of
language, just about extend to a regulation such as the draft order. Nonetheless, that is
not their natural meaning, and, of course, the natural meaning of the words in question is
an important factor in an issue of statutory interpretation… [at [30]].
R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development
Movement [1995] 1 WLR 386
This case concerned a challenge by the World Development Movement (a pressure

group) to the grant of economic development aid to Malaysia in order to support the
building of the Pergau Dam. In this case, the evidence was that there was little or no
real economic benefit to Malaysia from the project as electricity could be generated
more cheaply from other sources. Section 1(1) of the Overseas Development and Co-
operation Act 1980 provided that:
The Secretary of State shall have power, for the purpose of promoting the development
or maintaining the economy of a country or territory outside the United Kingdom, or the
welfare of its people, to furnish any person or body with assistance, whether financial,
technical or of any other nature.
The Divisional Court ultimately held that the grant of aid was, in the circumstances,
unlawful. Rose LJ said:
As to the absence of the word ‘sound’ from section 1(1), it seems to me that, if Parliament
had intended to confer a power to disburse money for unsound developmental
purposes, it could have been expected to say so expressly. And I am comforted in this
view by the way in which the successive ministers, guidelines, Governments and White
Papers … have, over the years and without exception, construed the power as relating to
economically sound development…
Accordingly, where, as here, the contemplated development is, on the evidence, so

economically unsound that there is no economic argument in favour of the case, it is
not, in my judgment, possible to draw any material distinction between questions of
propriety and regularity on the one hand and questions of economy and efficiency of
public expenditure on the other. It may not be surprising that no suggestion of illegality
was made by any official, or that the Secretary of State was not advised that there would,
or might be, any illegality. No legal advice was ever sought.
The Secretary of State is, of course, generally speaking, fully entitled, when making
decisions, to take into account political and economic considerations such as the
promotion of regional stability, good government, human rights and British commercial
interests… [at [402]].
R (Electoral Commission) v Westminster Magistrates’ Court [2010] UKSC 40
Section 58 of the Political Parties, Elections and Referendums Act 2000 provided that:
(1) This section applies to any donation received by a registered party—
(a) which, by virtue of section 54(1)(a) or (b), the party are prohibited from accepting,
but
(b) which has been accepted by the party.
(2) The court may, on an application made by the Commission, order the forfeiture by the
party of an amount equal to the value of the donation.
(3) The standard of proof in proceedings on an application under this section shall be that
applicable to civil proceedings.
In this case, a political party had received a donation from an overseas donor in breach
of the relevant provisions of the Act. The Electoral Commission (the regulator) sought
a forfeiture order seeking a forfeit of donations of £349,216, which constituted the full
amount of the donations made by the donor concerned. The Westminster Magistrates’
Court declined to issue a forfeiture order for this amount and instead granted an order
for £14,481. The key question in the case was the interpretation of the word ‘may’ in
s.58(2) – did this word suggest an ‘all or nothing’ discretion, where the magistrates
could only impose a forfeiture order for the full amount of the donations or nothing
at all, or could it order the forfeiture of a lesser sum? The Supreme Court, having
examined the purpose of the statute, held that it was open to the magistrates to issue
a forfeiture order for an amount lower than the full sum of the donation. Lord Philips
of Worth Matravers PSC observed:
35 If Parliament had enacted the Neill Committee scheme there would have been a
strong presumption in favour of forfeiting the whole of a donation from an impermissible
source. It would, or would be likely to, be a foreign donation and objectionable as such.
Indeed there would have been a case for making forfeiture of such donations automatic.
But Parliament adopted a scheme under which impermissible donations may or may not
be foreign. Under this scheme the significance of an individual impermissible donation
may vary widely. At one extreme it may be a donation from a foreign source, accepted by
a political party with full knowledge of its provenance. At the other extreme it may be a
donation from an individual who is entitled to be on an electoral register and has in the
past been on an electoral register, been believed to be on an electoral register, but who,
because of some administrative error for which he is not responsible, has been removed
from the register at the time when he made his donation.
36 Parliament plainly made the power to forfeit discretionary with the intention that the
magistrates’ court should discriminate between cases where forfeiture was warranted
and cases where it was not. It seems to me natural to assume that Parliament intended
the court to consider whether forfeiture was a proportionate response to the facts of
the particular case. This involves considering whether forfeiture is necessary to achieve
either the primary or the secondary object of the Act. The most relevant consideration
is whether forfeiture is necessary to prevent the retention of a foreign donation in
the individual case. Proof of acceptance of a donation from an impermissible source
should raise a presumption that the donation is foreign. If the party cannot rebut that
presumption, forfeiture should follow. If the party succeeds in demonstrating that the
donor was entitled to be placed on an electoral register, forfeiture should then depend
on whether it is an appropriate sanction for such shortcomings as led to the acceptance
of the donation. This will require consideration of culpability, the size of the donation
and the effect that forfeiture will be likely to have on the political party. Partial forfeiture,
if permitted (as to which see below), will enable the court to impose an appropriate
sanction where total forfeiture would be disproportionate.
As you can see from each of the above examples, the question of whether a public
body has the power to take a particular action is subject to the interpretation of the
statute. It is often the case that statutes that grant powers to public authorities will be
construed in a purposive manner, looking behind the words of the statute in order to
determine parliament’s intent when granting a particular power.
8.2 Failure to fulfil a statutory duty

There may be an argument that a public authority was under a statutory duty and
that this has not been fulfilled. In order to determine whether this is the case, it is
necessary for the court to interpret the statute in order to determine the scope of
the duty imposed on the public authority and whether the it retains any discretion in
relation to the issue at hand. There may sometimes be policy reasons why the court
will determine that the duty on a public authority is not absolute, particularly where
resourcing issues might preclude the authority from fulfilling the duty.
R (Stennett) v Manchester City Council [2002] UKHL 34
Section 117 of the Mental Health Act 1983 placed local authorities under a statutory
duty to provide residential accommodation and care for patients who had been
discharged from detention in a mental hospital under the provisions of the Act.
A number of local authorities sought to charge the individuals concerned for
the provision of the accommodation and the Supreme Court held that the duty
incumbent on the authorities did not permit them to make a charge for the
accommodation provided.
R v Leeds City Council, ex parte N [1999] ELR 324
In this case, the local authority decided to close a school as it was not providing an
adequate standard of education and it also had too few students to continue to be
viable. The local authority was under a duty to consult ‘such persons as seem to them
to be appropriate’ under s.167(4) of the Education Act 1996 prior to any closure order
being made. N claimed judicial review of the closure order. The court rejected the
claim, holding that the authority had a discretion over who should be consulted and
that it had not breached its duty by failing to consult N.
R (on the application of Friends of the Earth) v Secretary of State for Business, Enterprise and
Regulatory Reform [2008] EWHC 2518 (Admin)
A duty incumbent on the secretary of state to publish and implement a strategy to end
fuel poverty, contained in s.2 of the Warm Homes and Energy Conservation Act 2000
was the subject of this challenge by Friends of the Earth. The claimants argued that
the secretary of state had failed to take all measures necessary to end fuel poverty,
as the government had stated that some of the necessary measures were beyond
the resources available to the department and others were not appropriate value for
money. The court held that the duty was not an absolute one and that the government
retained discretion to use the limited resources available for the fulfilment duty in
the way that it deemed most effective, subject to the possibility of a challenge to the
rationality of any such allocation.
8.3 Use of power for an improper purpose

The ‘proper purpose’ for which a statutory power is granted must be discerned from
the statute itself, subject to the usual principles of statutory interpretation. However,
there is a general presumption that parliament intends powers to be used in the
public interest and also that powers are to be used in a manner that is not arbitrary.
The examples below serve to illustrate some of these general principles.
Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997
A minister’s refusal to refer the price of milk (which was regulated by the state at the
time of this case) to a statutory inquiry that may have increased the price at a time
that may have been politically inconvenient for the government was the use of power
for an improper purpose. The statutory power was conferred in order to ensure a
proper functioning of the market for milk and should be used accordingly.
Congreve v Home Office [1976] QB 629
Under the Wireless Telegraphy Act 1949, s.1(4), the secretary of state had the power to
revoke television licences at his discretion. The claimant in the case and a number of
other individuals had bought a new television licence in advance of the expiry of their
old licence in order to avoid a large increase in price. The secretary of state wrote to
these individuals and advised that unless they paid the difference between the price
that they paid for their licence and the increased price that would have been due at
the time of expiry of their previous licence, the new licence would be revoked under
the powers contained in s.1(4) of the Act. The Court of Appeal held that such an action
would be the use of the statutory power for an improper purpose. Geoffrey Lane LJ said:
it is an improper exercise of a discretionary power to use a threat to exercise that power

as a means of extracting money which Parliament has given the executive no mandate to
demand. [at 660]
Wheeler v Leicester City Council [1985] AC 1054
A council used its statutory powers under s.17 of the Race Relations Act 1976 in an
endeavour to ban Leicester Rugby Club from using a recreation ground owned by the
council and evict the club accordingly. Some of the players who played for the club
went on a tour of South Africa during the apartheid period. At the time when the
players went on the tour they were not under contract with the club, so the club did
not have any direct control over these players. The House of Lords held that the use of
the council’s powers to manage the recreation ground in order to punish the club in
a case such as this was unlawful, as the club had no direct control over the players. In
the case, Lord Templeman said:
In my opinion this use by the council of its statutory powers was a misuse of power. The
council could not properly seek to use its statutory powers of management or any other
statutory powers for the purposes of punishing the club when the club had done no
wrong. [at 1081]
8.4 Relevant and irrelevant considerations

These cases all turn on the question of whether, in making a decision, the decision-
maker has taken account of factors that are not relevant to the decision, or has failed
to take account of factors that are. The factors that are relevant to a decision may be
listed in a statute, stated in a published policy, or may be inferred from the statute or
the circumstances of the case.
R v Secretary of State for the Home Department, ex parte Venables [1998] AC 407
This case concerned a decision of the secretary of state to set a minimum period
of imprisonment considerably in excess of that recommended by the trial judge or
Lord Chief Justice. This case is a well-known one in the UK where two ten-year-old
boys abducted and murdered a two-year-old boy. Both boys were imprisoned ‘at
her Majesty’s pleasure’, which then led to a need for the secretary of state to set
a minimum period of imprisonment. The secretary of state was influenced in his
decision to set a minimum period higher than that recommended by the judiciary
by petitions from the public and the results of polls in national newspapers. In his
judgment, Lord Woolf MR said:
Here it is clear that the Home Secretary took into account the petitions and other
documents presented to him urging the fixing of a higher tariff than that fixed by the
judiciary. This could well provide part of the explanation for the striking difference in the
figures of the judiciary and the Home Secretary for the penal element. This I regard as
being a departure from the standards of fairness the exercise of a discretion of this sort
requires. [at 435]
R (T) v Enfield London Borough Council [2004] EWHC 2297 (Admin)
The defendant council concluded that the claimant was not under the age of 18
and thus was not a ‘child’ and entitled to support under the Children Act 1989. The
council failed to consider the findings of a report by a consultant paediatrician,
which suggested that the claimant may well be under 18 years of age. The court held
the decision to be unlawful, as the decision-maker had failed to take account of this
relevant factor.
8.5 Exercise and delegation of powers

In general, if discretion is granted to a particular body or individual then the general
expectation is that the individual concerned will exercise that discretion. As you will
have learned in your study of public law, the law recognises the need for a degree
of delegation between secretaries of state (who enjoy far more statutory powers
and hold far more statutory duties than could ever be exercised by one person) and
senior civil servants. Furthermore, some statutes authorise the further delegation
of certain statutory powers. We can find a range of rules in relation to the exercise
and delegation of powers – there is the principle of delegatus non potest delegare
(no unlawful delegation), a requirement that decision-makers must not ‘act under
dictation’ and must not fetter their discretion by adopting rigid rules or policies.
8.5.1 Lawful and unlawful delegation

As noted above, there is a general principle that there should be no unlawful
delegation of power. Delegation will be lawful if it is authorised by the relevant statute
granting power, or if it falls under the scope of the Carltona doctrine. The Carltona
doctrine has faced some challenges in recent years, as ‘contracting out’ of public
services has opened up some difficult legal questions about the applicability of that
doctrine to contracted out entities.
Further reading
¢¢ Freedland, M. ‘The rule against delegation and the Carltona doctrine in an
agency context’ (1995) Public Law 19.
Carltona v Commissioner of Works [1943] 2 All ER 560 – where statute grants a power
to the secretary of state, the court will treat the decision of a departmental official
as being one made by the secretary of state without offending the rule against
delegation. In the case, Lord Greene said:
In the administration of government in this country the functions which are given
to ministers (and constitutionally properly given to ministers because they are
constitutionally responsible) are functions so multifarious that no minister could ever
personally attend to them. To take the example of the present case no doubt there have
been thousands of requisitions in this country by individual ministries. It cannot be
supposed that this Regulation meant that, in each case, the minister in person should
direct his mind to the matter … [at 563]
R v Secretary of State for the Home Department, ex parte Oladehinde [1991] 1 AC 254 – the
Carltona principle can extend to officials employed by a private body that is exercising
statutory functions under a ‘contracting out’ arrangement.
R (King) v Secretary of State for Justice [2015] UKSC 54 – In the context of this case,
where the relevant regulations of the Prison Rules referred to specific authorisation
by the secretary of state, the Carltona doctrine could not apply and any continued
segregation of the claimants would need the specific authorisation of the secretary of
state in person.
8.5.2 Acting under dictation

The law is clear that, where a statutory power is granted to a particular individual
or body, the expectation is that that person or body will exercise the power. It is not
lawful to pass on that decision-making power to another.
Laker Airways v Department of Trade [1977] 2 All ER 182 – in a situation where the Civil
Aviation Authority had the power to grant and revoke licences for the operation of
civil aviation, it was not lawful for the Civil Aviation Authority to follow an order given
by the Department of Trade to revoke a licence.
R v Secretary of State for the Environment ex parte Lancashire County Council [1994] 4 All
ER 165 – it was not lawful for the secretary of state to instruct the Local Government
Commission to increase the number of unitary local authorities and it was not lawful
for the Local Government Commission to follow the instruction, as the discretion over
such recommendations lay with the Commission.
8.5.3 Fettering of discretion

Where discretion is granted, it is permissible for a decision-maker to adopt a policy
in relation to the exercise of discretion (in accordance with some of the principles
discussed in Chapter 3). However, it is not lawful for the policy to be applied rigidly –
the decision-maker must be willing to retain discretion and consider exceptional cases
outside the policy.
Further reading
¢¢ Hilson, C. ‘Judicial review, policies and the fettering of discretion’ (2002) Public
Law 111.
¢¢ Knight, C.J.S. ‘A framework for fettering’ (2009) Judicial Review 73.
British Oxygen Co. Ltd v Board of Trade [1971] AC 610 – a policy that stated that no
government support would be granted to industrial projects where the sale price of
each individual product was lower than £20 was held to be unlawful in so far as the
Board of Trade refused to consider exceptional cases.
North West Lancashire Health Authority v A, D and G [1999] EWCA Civ 2022 – a policy
couched in such restrictive terms that its effect was to preclude funding for certain
types of surgery on the NHS was not lawful – it is necessary for decision-makers to
consider the merits of individual claims in appropriate cases.
8.6 Failure to follow statutory processes

If a decision-maker has failed to follow statutory requirements when making a
decision, this may render the decision unlawful. Some of these requirements have
already been discussed (the discussion of the law on consultation in Chapter 5 is a
good example) and there may be other situations where statutes impose procedural
requirements that should be followed. Any failure to follow statutory procedures is
likely to render a decision to be unlawful.
Activity 8.1
In order to combat growing security problems at airports, parliament has passed
the Airport Security Act 2017. The Act seeks to give powers to the Secretary of State
for Transport to introduce a range of measures designed to increase security at
British airports. Three sections of the Act are of particular significance:
uu Section 1, which permits the secretary of state to prohibit items that may be
‘used as a dangerous weapon in an aircraft cabin’ from being carried onto an
aircraft.
uu Section 2, which creates a system of licensing for all airport employees. The Act
states that no person can be employed by an airport until they are approved and
licensed as being ‘suitable’ by the Secretary of State for Transport.
uu Section 3, gives the secretary of state various powers. These include: imposing
penalties, including fines; confiscation of equipment; and, for serious breaches
of the Regulations made under s.1, revocation of an airport’s licence to host
passenger flights.
Advise the parties below on the likely legality of the following actions taken under
the Airport Security Act 2017:
1. Battcharge is a company that has created an innovative cylindrical powerbank
for the charging of mobile phones and tablet computers. Its product is
cylindrical in shape, is 8 cm long, 4 cm in diameter and weighs 400 g. The
secretary of state has prohibited the product under s.1 of the Act, stating that
the item could be used as a dangerous weapon in the aircraft cabin.
2. Klipperz Ltd is a company that has developed a pair of small nail clippers made
from carbon fibre. The secretary of state has prohibited these under s.1 on the
basis that a published policy on what may constitute a ‘dangerous weapon’
prohibits all forms of scissors and nail clippers.
3. A number of producers of travel goods are unhappy that the secretary of state
has indicated that a fee of £1000 will be introduced for each product to be
assessed under s.1 of the Act.
4. Iqbal has applied for a job at Blankshire airport and has thus sought a licence
under s.2 from the secretary of state. Sir Humphrey, a civil servant, has written
to Iqbal and advised him that he is not deemed to be suitable because of his
involvement with left-wing political groups during his years as a student.
5. Hillshire Airport, which has had its licence revoked as the secretary of state
has determined that it was in serious breach of s.1 when an error in security
processes allowed a small pair of scissors on board an aircraft. Hillshire Airport
believe that the secretary of state’s real motive behind the revocation of
the airport’s licence is that she owns a property near to the airport and has
previously complained about the level of noise made by aircraft.
Activity 8.2
In order to address the amount of plastic waste polluting the environment, the
Plastic Recycling Act 2017 is passed by parliament. It grants powers to the Secretary
of State for the Environment as follows:
uu Section 1 of the Act requires the secretary of state to ‘draw up and publish a
strategy to increase plastic recycling with the objective of achieving a recycling
rate of 95% of plastic waste by 2030’.
uu Section 2, which gives the secretary of state the power to give grants to projects
that will significantly increase the rate of recycling of plastics.
uu Section 3, which allows the secretary of state to prohibit the use of certain types
of plastic that are deemed to be impossible to recycle.
Advise the following parties on the likely legality of the following actions taken
under the Plastic Recycling Act 2017:
1. The Recycling Association, which wishes to challenge the secretary of state’s
strategy as they do not believe that the government plans to invest sufficient
resources into the recycling of plastic to meet the target set in the statute by
2030. The secretary of state has argued that there are insufficient resources to
deliver additional support and also that the recycling of certain forms of plastic
is unsustainable as the cost is disproportionate to the environmental benefit
that will be gleaned.
2. Fast Plas is a firm that is developing a new system for the recycling of plastic
film. The firm has been refused a grant under s.2 as the secretary of state has
determined that the recycling system is not sufficiently effective. Fast Plas are
aggrieved because the secretary of state has refused to consider the evidence in
three scientific papers that demonstrates that its system is more effective than
any of the other systems for the recycling of plastic film.
3. Plastibead is a firm that manufactures plastic beads to be added to cosmetics.

Plastibead are unhappy that their product has been prohibited using the powers
under s.3 of the Act, although they feel that the motivation for the prohibition
may in part be due to the considerable public pressure for the prohibition of
such small plastic beads.

this chapter:
1. The ‘illegality’ concept may have considerable overlap with the other grounds
of review, as these are simply different ways of categorising different kinds of
unlawful act.
2. The ground of review known as ‘illegality’ is largely focused on considering

whether the statutory powers of public authorities have been exercised lawfully. A
large part of the task in cases where illegality is the focus of the review will be that
of statutory interpretation, in order to discern the scope of the authority’s power
and any limitations upon it.
3. The courts generally construe statutes in a purposive manner and frequently

reflect on the policy context in which legal powers are granted and exercised in
the construction of statutes.
9 Irrationality, Wednesbury unreasonableness and
proportionality (including human rights issues)
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
9.1 The Wednesbury test . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
9.2 The development of the Wednesbury test . . . . . . . . . . . . . . . . . 86
9.3 Where now for Wednesbury? . . . . . . . . . . . . . . . . . . . . . . . 89
9.4 The proportionality test in English law . . . . . . . . . . . . . . . . . . 91
9.5 What is proportionality? . . . . . . . . . . . . . . . . . . . . . . . . . 92
9.6 Proportionality in human rights cases . . . . . . . . . . . . . . . . . . 93
9.7 Where does all this leave us? . . . . . . . . . . . . . . . . . . . . . . . 95

Introduction
At the start of this chapter, it is apposite to revisit the words of Lord Diplock in CCSU v
Judicial review has I think developed to a stage today when without reiterating any analysis
of the steps by which the development has come about, one can conveniently classify under
three heads the grounds upon which administrative action is subject to control by judicial
review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third
‘procedural impropriety’. That is not to say that further development on a case by case
basis may not in course of time add further grounds. I have in mind particularly the possible
adoption in the future of the principle of ‘proportionality’ which is recognised in the
administrative law of several of our fellow members of the European Economic Community;
but to dispose of the instant case the three already well-established heads that I have
mentioned will suffice.
By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury

unreasonableness’. 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 be decided could have arrived at it. Whether a decision falls within
this category is a question that judges by their training and experience should be well
equipped to answer, or else there would be something badly wrong with our judicial
system.
This chapter deals with one of the most controversial issues in administrative law
– the extent to which it is permissible for the courts to interfere in the substantive
exercise of discretion. This issue has created considerable controversy both in the
academic literature and the case law for the past 70 years or more. This area of law
is controversial because it involves arguments about the courts moving into ‘merits
review’ (i.e. addressing the merits of a decision beyond simply considering whether
there has been an error of law) and therefore it might be argued that the courts are
interfering in the exercise of discretionary power granted to a decision-maker by
parliament (thus raising questions about judicial interference with parliamentary
sovereignty). This also raises questions about the separation of powers – when, if
ever, is it permissible for the courts to interfere in the exercise of executive powers?
Furthermore, building on the work in Chapter 7, there is a need to analyse the
approach of the courts to the justiciability of the issues –it may be that the courts
lack the institutional capacity to review certain decisions effectively, or some issues
may not be justiciable. The purpose of this chapter is to allow you to develop a
framework for the analysis of the development and operation of the law in this
area. It is important to remember that this law, more than any other in the field of
administrative law, is in a constant state of development.
There are lots of cases here and our aims are to build up a framework through
which you can understand the development of the law in this area and to assess this
development against the constitutional arguments in relation to the law. Another
important question, examined both by judges and commentators, is the extent to
which the proportionality test has, or should, replace the Wednesbury test.
Learning outcomes
be able to:
uu Describe and explain the development of the courts’ approach to the review of
the rationality of the decisions of public authorities.
uu Analyse the interaction between the Wednesbury and proportionality tests
and consider the current legal position in terms of the test to be applied to
administrative acts and decisions.
uu Demonstrate an understanding of the impact of the Human Rights Act 1998 on
the approach to rationality review where the Convention rights apply.
Administrative law 9 Irrationality, Wednesbury unreasonableness and proportionality page 85
Core text
¢¢ Endicott, Chapter 7 ‘Discretion and deference’ and Chapter 8 ‘Substantive
fairness’.
Further reading
¢¢ Craig, Chapter 16 ‘Error of law’, Chapter 17 ‘Error of fact’ and 28-001 –28-005.
¢¢ Leyland and Anthony, Chapter 11 ‘Illegality I’ and Chapter 12 ‘Illegality II’.
9.1 The Wednesbury test
Further reading
¢¢ Jowell, J. and A. Lester ‘Beyond Wednesbury: substantive principles of
administrative law’ (1987) Public Law 368.
¢¢ Le Sueur, A. ‘The rise and ruin of unreasonableness?’ (2005) Judicial Review 32.
The Wednesbury test developed from the decision of the Court of Appeal in Associated
Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. This case
concerned the Corporation’s decision to attach a condition to the licence for the
claimant company’s cinema. The licence permitted the cinema to open and show films
on Sundays, with the condition that ‘…no children under fifteen years of age should be
admitted to Sunday performances with or without an adult’.
Section 1(1) of the Sunday Entertainments Act 1932 provided:
The authority having power, in any area to which this section extends, to grant licences
under the Cinematograph Act, 1909, may, notwithstanding anything in any enactment
relating to Sunday observance, allow places in that area licensed under the said Act to be
opened and used on Sundays for the purpose of cinematograph entertainments, subject
to such conditions as the authority think fit to impose.
The question for the court was whether a condition prohibiting the entry of children
under 15 on a Sunday was unreasonable and, if so, whether an unreasonable action
could be considered to be an unlawful action. The Court of Appeal found in favour of
the Corporation, holding that the condition was not unlawful. However, the decision
is very important because Lord Greene set out the circumstances in which the court
might find the action of a public authority to be unlawful because it could be said to
be unreasonable:
…there may be something so absurd that no sensible person could ever dream that it
lay within the powers of the authority. Warrington LJ in Short v Poole Corporation gave
the example of the red-haired teacher, dismissed because she had red hair. That is
unreasonable in one sense. In another sense it is taking into consideration extraneous
matters. It is so unreasonable that it might almost be described as being done in bad
faith; and, in fact, all these things run into one another.
It is clear that the local authority are entrusted by Parliament with the decision on a
matter which the knowledge and experience of that authority can best be trusted to
deal with. The subject-matter with which the condition deals is one relevant for its
consideration. They have considered it and come to a decision upon it. It is true to say
that, if a decision on a competent matter is so unreasonable that no reasonable
authority could ever have come to it, then the courts can interfere. That, I think, is
quite right; but to prove a case of that kind would require something overwhelming,
and, in this case, the facts do not come anywhere near anything of that kind.
I do not wish to repeat myself but I will summarize once again the principle applicable.
The court is entitled to investigate the action of the local authority with a view to
seeing whether they have taken into account matters which they ought not to take
into account, or, conversely, have refused to take into account or neglected to take into
account matters which they ought to take into account. Once that question is answered
in favour of the local authority, it may be still possible to say that, although the
local authority have kept within the four corners of the matters which they ought
to consider, they have nevertheless come to a conclusion so unreasonable that no
reasonable authority could ever have come to it. In such a case, again, I think the
court can interfere. The power of the court to interfere in each case is not as an
appellate authority to override a decision of the local authority, but as a judicial
authority which is concerned, and concerned only, to see whether the local authority
have contravened the law by acting in excess of the powers which Parliament has
confided in them.
Per Lord Greene [at 230–234].
It is clear from the above passage that it would be very difficult for a claimant to
demonstrate that a public authority had acted in an unreasonable manner on the basis
of the test as Lord Greene conceived of it. Le Sueur has described the test as it was
originally conceived as a ‘constitutional longstop’, designed to catch only the most
egregious cases of unreasonable action taken by public authorities (see Le Sueur, p.32).
There are relatively few examples of the Wednesbury test being used to find
administrative action to be unlawful in the years following the decision in the case.
Two of the more famous examples are the decisions of the House of Lords in:
Mixnam’s Properties Ltd v Chertsey Urban District Council [1965] AC 735 – where the court
found that the conditions imposed on a licence for a caravan park were unreasonable
(although note that although Wednesbury was cited by counsel, none of the Law Lords
mentioned the decision explicitly).
Wheeler v Leicester City Council [1985] 2 All ER 1106 – where Lord Roskill would have held
that the Council’s decision was Wednesbury unreasonable, although this case is often
treated as one where the Council acted for an ‘improper purpose’, as considered in
Chapter 8.
A further example of the general approach to Wednesbury up until the mid-1980s can be
found in the judgment of Lord Diplock in CCSU, set out in the Introduction to this chapter.
His description of the test as applicable to decisions ‘…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 be decided could have arrived at it’ once again emphasises the
exceptional level of unreasonableness required in order to satisfy the test.
Activity 9.1
1. Explain the substantive Wednesbury test of unreasonableness.
2. Consider the constitutional arguments for and against the Wednesbury test. Why
did the courts create the test as originally conceived in a way that is so difficult
for a claimant to satisfy?
9.2 The development of the Wednesbury test

Over time, there is evidence that the Wednesbury test has developed. There is some
case law that acknowledges the constitutional and policy arguments in favour of a
‘light touch’ approach to judicial review in certain circumstances. The other way in
which the test has developed concerns cases involving human rights. In cases where
human rights are at stake, even prior to the coming into force of the Human Rights Act
1998, there is evidence that the courts were exercising a more intensive standard of
scrutiny.
9.2.1 Less intensive review
Further reading
¢¢ Young, A.L. ‘In defence of due deference’ (2009) 72 Modern Law Review 554.
¢¢ Himsworth, C.M.G. ‘Poll tax capping and judicial review’ (1991) Public Law 76.
The final part of Section 7.4 asked you to think about the concept of justiciability
and consider the circumstances in which the courts might be reluctant to engage
in judicial review of discretionary decisions. It is important to be able to back this
theoretical consideration with evidence from the case law. We might find a number of
reasons why the courts may be reluctant to engage in detailed rationality reviews of
administrative decisions:
Argument for deference Cases

‘Polycentric questions’ and R v Secretary of State for the Environment, ex parte Hammersmith and Fulham
allocative decisions London Borough Council [1991] 1 AC 521 (‘capping’ of level of local taxation,
where approved by parliament).
R v Cambridge DHA, ex parte B (No.1) [1995] 2 All ER 129 (CA) (refusal to fund
expensive medical treatment with a limited chance of success for young child
with rare form of cancer).
R (On the Application of Pfizer Ltd) v Secretary of State for Health [2002] EWCA Civ
1566 (refusal to make Viagra available to NHS patients).
Decisions of expert bodies R v Independent Television Commission, ex parte TSW Broadcasting Ltd [1996] EMLR
291 (decision over a licence for a television broadcaster).
R v Medicines Control Agency, ex parte Pharma Nord (UK) Ltd [1998] EWCA Civ 891
(decision of whether or not to issue a licence to a pharmaceutical product and
judgments over safety and efficacy).
National security (though note R v Ministry of Defence ex parte Smith [1996] QB 517 (discharge of military
the limitations imposed on this personnel from army on grounds of their sexuality). Note, however, the dicta
ground over the years) of Simon Brown LJ:
To my mind only the rarest cases will today be ruled strictly beyond the
court’s purview – only cases involving national security properly so called
and where in addition the courts really do lack the expertise or material to
form a judgment on the point at issue [at 539].
A v Secretary of State for the Home Department [2004] UKHL 56 (detention
without trial or access to a court for foreign nationals suspected of links to
terrorism). In this case, see Lord Walker of Gestingthorpe:
Safeguarding national security is…the area of policy in which the courts are
most reluctant to question or interfere with the judgment of the executive
or (a fortiori) the enacted will of the legislature.
…a portentous but non-specific appeal to national security can be used
as a cloak for arbitrary and oppressive action on the part of government.
Whether or not patriotism is the last refuge of the scoundrel, national
security can be the last refuge of the tyrant [at [192]–[193]].
Separation of powers/comity R v Secretary of State for the Environment, ex parte Hammersmith and Fulham
London Borough Council [1991] 1 AC 521 (‘capping’ of level of local taxation,
where approved by parliament).
Secretary of State for the Home Department v Rehman [2001] UKHL 47
(deportation case where the secretary of state had determined that the
claimant posed a terrorist threat).
It is important to remember that some of the cases cited above demonstrate overlap
between the different reasons for deference. It is not always possible to explain the
rationales only on one ground.
9.2.2 More intensive review
Further reading
¢¢ Birkinshaw, P.J. European public law: the achievement and the challenge. (Alphen
aan Rijn: Kluwer, 2014) second edition [ISBN 9789041147448], Chapter 8
‘Principles of review’.
¢¢ Lienen, C. ‘Common law constitutional rights: public law at a crossroads?’ (2018)

Public Law 649.
In addition to the development of case law on the circumstances in which courts

should be deferential to the decisions of executive decision-makers, there is a similar
line of case law developing an ‘anxious scrutiny’ test, or a more invasive standard of
judicial review. This applies where individual rights (conceived broadly in line with the
rights protected in the European Convention on Human Rights) are at stake. There are
many cases that one might point to in order to exemplify this point but the following
cases explain the development of this line of case law.
R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696 – in this
case, although ultimately dismissing the appeal against the finding that a broadcast
ban was lawful by the lower courts, the Law Lords made it apparent that where there
was a potential interference with the right to freedom of expression, this must be
adequately justified by the secretary of state.
R v Secretary of State for the Home Department, ex parte Leech [1993] 4 All ER 539 (CA)
– in this case, the Court of Appeal found that the secretary of state’s creation of new
subordinate legislation on the examination of prisoners’ correspondence was an
excessive interference with the common law right to privileged legal correspondence.
R v Ministry of Defence ex parte Smith [1996] QB 517 – this concerned the discharge of
individuals from army service purely on the basis of their sexuality. In the case, the
following dicta can be found:
In short, I respectfully conclude with Neill L.J. that even where fundamental human
rights are being restricted, ‘the threshold of unreasonableness’ is not lowered. On
the other hand, the minister on judicial review will need to show that there is an
important competing public interest which he could reasonably judge sufficient to
justify the restriction and he must expect his reasons to be closely scrutinised. Even
that approach, therefore, involves a more intensive review process and a greater
readiness to intervene than would ordinarily characterise a judicial review challenge…
I approach the case, therefore, on the conventional Wednesbury basis adapted

to a human rights context and ask: can the Secretary of State show an important
competing public interest which he could reasonably judge sufficient to justify
the restriction? The primary judgment is for him. Only if his purported justification
outrageously defies logic or accepted moral standards can the court, exercising its
secondary judgment, properly strike it down.
Per Simon Brown LJ at 537 (first quote) and 541 (second quote).
The greater the policy content of a decision, and the more remote the subject matter
of a decision from ordinary judicial experience, the more hesitant the court must
necessarily be in holding a decision to be irrational. That is good law and, like most
good law, common sense. Where decisions of a policy-laden, esoteric or security-
based nature are in issue even greater caution than normal must be shown in applying
the test, but the test itself is sufficiently flexible to cover all situations.
The present cases do not affect the lives or liberty of those involved. But they do
concern innate qualities of a very personal kind and the decisions of which the
applicants complain have had a profound effect on their careers and prospects. The
applicants’ rights as human beings are very much in issue. It is now accepted that
this issue is justiciable. This does not of course mean that the court is thrust into the
position of the primary decision-maker. It is not the constitutional role of the court to
regulate the conditions of service in the armed forces of the Crown, nor has it the
expertise to do so. But it has the constitutional role and duty of ensuring that the
rights of citizens are not abused by the unlawful exercise of executive power. While
the court must properly defer to the expertise of responsible decision-makers, it
must not shrink from its fundamental duty to ‘do right to all manner of people’.
Per Sir Thomas Bingham MR [at 553].
R v Secretary of State for the Home Department, ex parte Simms [1999] 3 All ER 400 – in
this case, a prisoner challenged a prison service policy that prevented him from being
interviewed by the media. The House of Lords found that the policy was contrary
to both the common law right to freedom of expression and Article 10 ECHR. Lord
Hobhouse said:
In my judgment, this extreme policy is both unreasonable and disproportionate and
cannot be justified as a permissible restraint upon the rights of the prisoner [at [142]]
R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26 – this case
concerned a challenge to a Prison Service policy that allowed the random searching
of prisoners’ cells in such a manner that their privileged legal correspondence was
open to inspection by Prison Service staff. The House of Lords found the policy to be
unlawful:
In my opinion the policy provides for a greater degree of intrusion into the privileged
legal correspondence of prisoners which is greater than is justified by the objectives
the policy is intended to serve, and so violates the common law rights of prisoners… I
have reached the conclusions so far expressed on an orthodox application of common
law principles derived from the authorities and an orthodox domestic approach
to judicial review. But the same result is achieved by reliance on the European
Convention Article 8.
Per Lord Bingham [at [21]–[23]].
R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 – this case
concerned the secretary of state’s decision to return the claimant to Pakistan, as he
had entered the UK clandestinely and in breach of immigration legislation. Mahmood
was married to a British citizen and had two children with his wife and thus claimed
his Article 8 ECHR rights to private and family life. In the case, the key question before
the Court of Appeal was whether the standard of review should be that set out in the
Wednesbury case, or a stricter standard of review. Laws LJ argued that:
...the intensity of review in a public law case will depend on the subject matter in
hand; and so in particular any interference with by the action of a public body with a
fundamental right will require a substantial objective justification. [at [18]]
He then moved on to consider the nature of the intensity of judicial review in the
modern context, arguing that there is now…
...what may be called a sliding scale of review; the graver the impact of the decision in
question upon the individual affected by it, the more substantial the justification that
will be required. [at [19]]
See also R (UNISON) v Lord Chancellor [2017] UKSC 51, where the Supreme Court
impugned a change to the rules concerning tribunal fees for the Employment Tribunal
due to the infringement of the constitutional right of access to a court. See especially
Lord Reed at [88]–[89].
As you can see from the above case law, there are two major developments in the
Wednesbury test – the courts have developed a set of circumstances in which they will
be reluctant to review the actions of public authorities as there is a good reason for
deference. There is another set of cases where, if individual or constitutional rights are
at stake, the courts are willing to engage in anxious scrutiny of decisions.
Activity 9.2
1. Explain the way in which the Wednesbury test has developed in recent years.
Is the test now one single test, to be applied in all circumstances, or is there
evidence that there might be different approaches depending on the subject
matter of the case?
2. Draw up a list of case law authorities demonstrating the development of the

Wednesbury test over the years.
9.3 Where now for Wednesbury?

As you will have seen from the discussion above, the Wednesbury test has changed
markedly over the past few years, in the sense that it has become context sensitive –
i.e. the intensity of the standard of review varies depending on the subject matter of
the case. There is also a question of whether the Wednesbury test either has been (in
fact, even if not necessarily acknowledged by the judiciary) or should be replaced by
the proportionality test. Some authors have been critical of the development of the
Wednesbury test, or argue that it should continue to be a stand-alone test, alongside
proportionality. As things stand, the courts appear to accept that Wednesbury
and proportionality remain as separate tests, each with an appropriate sphere of
application. However, it is evident that there is increasing overlap between the two
tests. What is important is that you understand this development and some of the
theoretical arguments surrounding the interface and tension between the two tests.
You should also note that, in cases under the Human Rights Act 1998 and domestic
judicial review cases raising EU law, the proportionality test (discussed below) is
applicable. Where Wednesbury is applicable, the intensity of the standard of review
will be at its lowest when the court is considering policy matters and at its highest
when considering matters where a decision can be argued to encroach on individual
rights. Le Sueur and others have argued that the problem with the context-sensitive
approach is that, while it is simple to categorise some cases into one category or the
other, there is a substantial ‘grey area’ in between these two bright lines, where the
issues at hand might involve both rights and policy. In fact, this is regularly the case.
Individual
Rights
Intermediate
Zone?
Policy
Matters
Figure 9.1 Intensity of review depends on the subject matter
Essential reading
¢¢ Goodwin, J. ‘The last defence of Wednesbury’ (2012) Public Law 445 (available in
Westlaw).
Further reading
¢¢ Daly, P. ‘Wednesbury’s reason and structure’ (2011) Public Law 238.
¢¢ Craig, P. ‘The nature of reasonableness review’ (2013) 66 Current Legal Problems 131.
¢¢ Williams, R. ‘Structuring substantive review’ (2017) Public Law 99.
R (On the Application of the Association of British Civilian Internees – Far Eastern Region)
v Secretary of State for Defence [2003] EWCA Civ 473 – this case considers whether the
Wednesbury or proportionality test is applicable where no question of human rights
or EU law is raised. The Court of Appeal held that the Wednesbury test is applicable,
although any case concerning individual rights deserves anxious scrutiny. On the
question of the replacement of Wednesbury with proportionality, see Dyson LJ:
...[W]e have difficulty in seeing what justification there now is for retaining the
Wednesbury test. But we consider that it is not for this court to perform its burial rites.
The continuing existence of the Wednesbury test has been acknowledged by the House of
Lords on more than one occasion. [at [34]–[35]]
R (MN (Tanzania)) v Secretary of State for the Home Department [2011] EWCA Civ 193 – the
Court of Appeal again declined to overturn the Wednesbury test.
Kennedy v Information Commissioner [2014] UKSC 20 – in this case, concerning a
challenge to the legality of a refusal to provide information and the upholding of this
decision by the Information Commissioner, Lord Mance said:
The common law no longer insists on the uniform application of the rigid test of
irrationality once thought applicable under the so-called Wednesbury principle… The
nature of judicial review in every case depends on the context.
As Professor Paul Craig has shown (see e.g. ‘The Nature of Reasonableness’ (2013) 66 CLP
131), both reasonableness review and proportionality involve considerations of weight
and balance, with the intensity of the scrutiny and the weight to be given to any primary
decision maker’s view depending on the context. [at [51] and [54]]
You may also wish to consider the following cases.
Pham v Secretary of State for the Home Department [2015] UKSC 19.
Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69, esp. Lord
Neuberger at [131]–[133].
Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3, esp. Lord
Carnwath at [55]–[57].
Activity 9.3
1. Explain the current approach to the Wednesbury test adopted by the courts.
What are the uncertainties in the law?
2. Read the article by Goodwin noted above. What arguments does he adduce for
retaining the Wednesbury test in its current form?
3. Do you think that the context-sensitive approach delivers adequate legal

certainty? Could it ever be possible to deliver legal certainty in cases such as these?
9.4 The proportionality test in English law

As noted in the discussion above, the proportionality test is an alternative approach
that might be adopted to review the rationality of the decisions of public authorities.
The decision of the Court of appeal in R v Barnsley Metropolitan Borough Council, ex
parte Hook [1976] 1 WLR 1052 is an example of such a case. Here a market trader was
found urinating in a side street close to the market by the Council’s market inspector.
The Council penalised the market trader, who was previously of good character, by
removing his licence to trade on the market. The argument in the case was that the
penalty was excessive for what was a relatively minor offence. The judgment of the
court included the following passage:
Now there are old cases which show that the court can interfere by certiorari if a
punishment is altogether excessive and out of proportion to the occasion. In one case
the Commissioners of Sewers imposed an excessive fine: and it was quashed by the Court
of King’s Bench on the ground that in law their fines ought to be reasonable: see Rex v
Northumberland Compensation Appeal Tribunal, ex parte Shaw [1952] 1 KB 338, 350. So in this
case if Mr Hook did misbehave, I should have thought the right thing would have been
to take him before the magistrates under the byelaws, when some small fine might have
been inflicted. It is quite wrong that the Barnsley Corporation should inflict upon him the
grave penalty of depriving him of his livelihood. That is a far more serious penalty than
anything the magistrates could inflict. He is a man of good character, and ought not to be
penalised thus. On that ground alone, apart from the others, the decision of the Barnsley
Corporation cannot stand.
Per Lord Denning MR [at [1057–1058]].
However, despite cases such as these, the proportionality test was not embraced more
broadly in domestic judicial review cases. In the case of R v Secretary of State for the
Home Department, ex parte Brind [1991] 1 AC 696 the Law Lords were invited to assess
the broadcasting ban in that case using the proportionality test but declined to do so.
Lord Diplock also mentioned the possibility of the proportionality test being used as a
ground for review in CCSU , although the test was not considered or applied in the case.
The modern approach to proportionality and the application of the proportionality
test came to English law through two routes. The first of these is through EU law. You
will remember from your study of Public law that the European Communities Act 1972
requires the courts to give effect to EU law and thus where domestic judicial review cases
deal with matters of EU law, the proportionality test must be used. This is confirmed by
the Court of Appeal in R v Secretary of State for Health, ex parte Eastside Cheese Co. [1999]
3 CMLR 123, which involved the regulation of food and arguments that such regulation
were contrary to the provisions on free movement of goods in the EU Treaty.
The second way in which proportionality has found its way into English law is through
the European Convention on Human Rights and the Human Rights Act 1998. Section
2(1) of the Human Rights Act 1998 requires the courts to take account of decisions of
the Commission and Court of Human Rights and thus necessarily requires the courts to
take account of the methods of those bodies. Inherent in the weighing or balancing of
the Convention rights (either one right against another or the right against the margin
of appreciation of a public authority) is the principle of proportionality.
9.5 What is proportionality?
Essential reading
¢¢ Leigh, I. ‘Taking rights proportionately: judicial review, the Human Rights Act and
Strasbourg’ (2002) Public Law 265 (available in Westlaw).
Further reading
¢¢ Hickman, T. ‘The substance and structure of proportionality’ (2008) Public Law 694.
¢¢ Arden L.J. ‘Proportionality: the way ahead?’ (2013) Public Law 498.
The proportionality test is said to be different to the Wednesbury test because it is

more structured in its nature. It has at its heart three elements:
1. There is a necessity test, through which the court must consider whether
government action or regulation that restricts the rights of an individual is
necessary or not.
2. There is a suitability test, which considers whether, even where measures taken are
suitable, they are also necessary.
3. There is the proportionality stricto sensu test, which asks whether, even if
the measure is necessary and suitable, on the facts of the case before it the
government action still has a disproportionate impact on the rights of the
individual.
A useful interpretation of the proportionality test can be drawn from Lord Steyn in R
v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26 at [27]–[28],
where he stated that:
The contours of the principle of proportionality are familiar. In de Freitas v Permanent

Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy
Council adopted a three-stage test. Lord Clyde observed, at p 80, that in determining
whether a limitation (by an Act, rule or decision) is arbitrary or excessive the court should
ask itself: ‘whether: (i) the legislative objective is sufficiently important to justify limiting
a fundamental right; (ii) the measures designed to meet the legislative objective are
rationally connected to it; and (iii) the means used to impair the right or freedom are
no more than is necessary to accomplish the objective.’ Clearly, these criteria are more
precise and more sophisticated than the traditional grounds of review. What is the
difference for the disposal of concrete cases?
The difference, he suggests, is that:

The starting point is that there is an overlap between the traditional grounds of review
and the approach of proportionality. Most cases would be decided in the same way
whichever approach is adopted. But the intensity of review is somewhat greater
under the proportionality approach. Making due allowance for important structural
differences between various Convention rights, which I do not propose to discuss, a few
generalisations are perhaps permissible. I would mention three concrete differences
without suggesting that my statement is exhaustive. 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
inasmuch as it may require attention to be directed to the relative weight accorded to
interests and considerations. Thirdly, even the heightened scrutiny test developed in R v
Ministry of Defence, ex parte Smith [1996] QB 517, 554 is not necessarily appropriate to the
protection of human rights.
Lord Steyn summarised the current position in UK law as follows:
In other words, the intensity of the review, in similar cases, is guaranteed by the twin
requirements that the limitation of the right was necessary in a democratic society, in the
sense of meeting a pressing social need, and the question whether the interference was
really proportionate to the legitimate aim being pursued.
The differences in approach between the traditional grounds of review and the
proportionality approach may therefore sometimes yield different results. It is therefore
important that cases involving Convention rights must be analysed in the correct way. This
does not mean that there has been a shift to merits review. On the contrary, as Professor
Jowell (2000) PL 671, 681 has pointed out the respective roles of judges and administrators
are fundamentally distinct and will remain so. To this extent the general tenor of the
observations in Mahmood [2001] 1 WLR 840 are correct. And Laws LJ rightly emphasised in
Mahmood, at p 847, para 18 ‘that the intensity of review in a public law case will depend
on the subject matter in hand’. That is so even in cases involving Convention rights. In law
context is everything.
Activity 9.4
1. Outline the major elements of the proportionality test.
2. Explain how the proportionality test might be similar to the approach in the
Wednesbury test and how it might be different. To help you with this, please see
the judgment of Lord Mance JSC in Kennedy v Information Commissioner [2014]
UKSC 20, especially at [54].
3. Read the article by Leigh noted above. In what different senses can the
proportionality test be used?
9.6 Proportionality in human rights cases
Essential reading
Further reading
¢¢ Leigh, I. ‘The standard of judicial review after the Human Rights Act’ in Fenwick
et al. (eds) Judicial reasoning under the UK Human Rights Act (Cambridge:
Cambridge University Press, 2007) [ISBN 978052117590].
¢¢ Masterman, R. ‘Taking the Strasbourg jurisprudence into account: developing

a “municipal law of human rights” under the Human Rights Act’ (2005) 54
International and Comparative Law Quarterly 907.
¢¢ Ramshaw, A. ‘The case for replicable structured full proportionality analysis in all
cases concerning fundamental rights’ (2019) 39 Legal Studies 120.
¢¢ Rivers, J. ‘Proportionality and variable intensity of review’ (2006) 65 Cambridge

Law Journal 174.
¢¢ Mead, D. ‘Outcomes aren’t all: defending process-based review of public
authority decisions under the Human Rights Act’ (2012) Public Law 61.
The use of the proportionality test in human rights cases is frequent, e.g. wherever a
claimant argues that Convention rights have been infringed by the decision or action of
a public authority, or where there is a failure to observe a Convention Right in a decision.
9.6.1 The proper role of the court

You will see from your reading on Wednesbury that there is a great concern to ensure
that the courts do not become engaged in ‘merits review’. This is a situation where the
courts are argued to be ‘second guessing’ or ‘re-taking’ the decision of the decision-
maker, rather than reviewing its legality. However, under the Human Rights Act 1998,
there is a need for the court to engage in a ‘merits review’ of the decision in order
to ensure that the decision-maker’s initial decision took adequate account of the
Convention rights of the claimant.
Huang v Secretary of State for the Home Department [2007] UKHL 11.
Independent Safeguarding Authority v SB [2012] EWCA Civ 977.
Both of the above cases address the need of the court (authorised by the Human Rights
Act 1998) to examine the evidence considered by the decision-maker and determine
whether or not the court would reach the same decision on the basis of that evidence.
This is (arguably) a significantly different approach to that under Wednesbury.
9.6.2 The approach to proportionality review in human rights cases
Essential reading
Further reading
¢¢ Hart, D. ‘An ABC on proportionality – with Bank Mellat as our primer’ UK Human
Rights Blog (22 June 2013).
Bank Mellat v HM Treasury [2013] UKSC 39
In the Bank Mellat case, Lord Reed explains the approach to proportionality review
under the Human Rights Act 1998. It is impossible for us to reproduce all of the
pertinent parts of his judgment here but of particular importance is the discussion at
[68]–[76]. At the very least, you should read this and the blog post by Hart, above.
Also consider the following cases:
A v Secretary of State for the Home Department [2004] UKHL 56 – this case is a good
example of one where the court did not need to apply a proportionality test in respect
of the breach of Article 5 ECHR since, once it is determined that the right is engaged and
is breached, there is no need for any balancing, as the right in Article 5 is unqualified.
R (On the Application of Begum) v Head Teacher and Governors of Denbigh High School [2006]
UKHL 16 – a helpful example of a case where the court considered the balancing of Article
9 ECHR and the broader rights of schools to regulate the dress code of their students.
Miss Behavin’ Ltd v Belfast City Council [2007] UKHL 19 – balancing of Article 1 of the
First Protocol ECHR and the broader public interest in relation to the licensing of
an adult shop. Note that one important finding to come from this case is that the
HRA does not impose procedural requirements for decision-makers (i.e. it is not
necessary for decision-makers to show in some documented form that they have
considered the Convention rights of the claimant) but only that the ultimate decision
is Convention-compliant.
R (on the application of Animal Defenders International) v Secretary of State for Culture,
Media and Sport [2008] UKHL 15 – balancing of Article 10 ECHR against the public
interest in prohibiting paid political advertising on television and radio.
Activity 9.5
1. Read the article by Leigh noted above. Explain the distinction between
‘qualified’ and ‘unqualified’ rights in the Convention and explain the difference
in judicial approach that should be adopted to the different types of rights.
2. What is the justification for the intrusive approach to review in Human Rights
Act cases advocated by the House of Lords in Huang?
3. Read the judgment of Lord Reed in Bank Mellat and the blog post by Hart
referred to above. Explain the approach to proportionality that should be
adopted in Convention rights cases. What are the major steps and what factors
should the court consider?
4. Consider three judicial review cases concerning breaches of a Convention right

(draw from those listed above or choose others mentioned in the textbooks
or journal articles). Outline the issues, the approach taken by the courts to the
review of the alleged breach of a Convention right and the ultimate findings of
the court.
9.6.3 The approach to proportionality in EU law cases
Essential reading
¢¢ Hart, D. ‘Supreme Court on EU and ECHR proportionality – back to basics’ UK
Human Rights Blog (27 June 2015).
The approach to proportionality in EU Law cases is given complexity by the fact that EU
law issues that come up in judicial review cases do not always raise issues of individual
rights – quite often they are policy-based. As such, proportionality review in the EU
law context illustrates more readily that the proportionality test is context-sensitive
and is also applied with various levels of intensity by the courts. Furthermore, the
proportionality test in EU law cases may also be applied differently depending on the
nature of the challenge – is the challenge related to the proportionality of a measure
that limits rights granted to individuals under EU law, or is it a challenge to a measure
implementing EU law, for instance?
The case of Lumsdon v Legal Services Board [2015] UKSC 41 illustrates the challenges.
Again, Lord Reed gives the leading judgment and explains the different contexts in
which proportionality might be used in EU law. As with the decision in Bank Mellat,
there is too much material for us to reproduce here but please read the judgment,
especially at [33]–[74] for an excellent explanation of the application.
Activity 9.6
1. Read the judgment of Lord Reed in Lumsdon and the blog post by Hart and
explain the different ways in which the proportionality test can be used in the
EU law context.
9.7 Where does all this leave us?
Further reading
¢¢ Craig, P. ‘The nature of reasonableness review’ (2013) 66 Current Legal Problems 131.
It is important to note that many feel that the law is presently in a rather confusing
state. The extent to which the proportionality test has or will replace the Wednesbury
test, or the extent to which the two tests have come together remains something
that is debated both by the judges and by commentators. In his article cited above,
Craig argues that, while there are differences in approach between Wednesbury and
proportionality, there are also substantial similarities in the approaches adopted in
the current law. What matters for you is not so much that you can provide a definitive
answer on the current legal position but that you understand the nature and
development of the case law and also the underlying constitutional and theoretical
explanations for the use of Wednesbury and proportionality. Perhaps it is best to leave
the final word in this chapter to Lord Neuberger in Keyu:
131. The appellants raise the argument that the time has come to reconsider the basis on
which the courts review decisions of the executive, and in particular that the traditional
Wednesbury rationality basis for challenging executive decisions should be replaced by
a more structured and principled challenge based on proportionality. The possibility of
such a change was judicially canvassed for the first time in this jurisdiction by Lord Diplock
in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410E, and it has
been mentioned by various judges in a number of subsequent cases – often with some
enthusiasm, for instance by Lord Slynn in R (Alconbury Developments Ltd) v Secretary of State
for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 51. In
other words, the appellants contend that the four-stage test identified by Lord Sumption
and Lord Reed in Bank Mellat v HM Treasury (No.2) [2013] UKSC 39, [2014] AC 700, paras 20
and 74 should now be applied in place of rationality in all domestic judicial review cases.
[…]
133. The move from rationality to proportionality, as urged by the appellants, would
appear to have potentially profound and far-reaching consequences, because it
would involve the court considering the merits of the decision at issue: in particular,
it would require the courts to consider the balance which the decision-maker has
struck between competing interests (often a public interest against a private interest)
and the weight to be accorded to each such interest – see R (Daly) v Secretary of State
for the Home Department [2001] UKHL 26, [2001] 2 AC 532, para 27, per Lord Steyn.
However, it is important to emphasise that it is no part of the appellants’ case that the
court would thereby displace the relevant member of the executive as the primary
decision-maker – as to which see per Lord Sumption and Lord Reed in Bank Mellat (No
2) at paras 21 and 71 respectively. Furthermore, as the passages cited by Lord Kerr from
Kennedy v Charity Commission (Secretary of State for Justice intervening) [2014] UKSC 20,
[2015] AC 455, paras 51 and 54, and Pham v Secretary of State for the Home Department
(Open Society Justice Initiative intervening) [2015] UKSC 19, [2015] 1 WLR 1591, paras 96,
113 and 115 show, the domestic law may already be moving away to some extent from
the irrationality test in some cases.

this chapter:
1. The test of rationality and the interface between the Wednesbury and
proportionality tests are controversial and are also a rapidly developing area of
administrative law.
2. From its origins, the Wednesbury test has developed into a complex, context-
sensitive standard of review. This is not uncontroversial and some scholars, such as
Le Sueur, argue that this has imbued the test with uncertainty.
3. The proportionality test has developed in English law mainly from European origins
and finds its place in domestic law through Human Rights Act cases and judicial
review cases that raise issues of EU law. It demands a more structured approach
than the Wednesbury test, although is still applied with varying degrees of intensity
depending on the context.
4. The application of the proportionality test is different depending on whether it is

used in the context of the Convention rights and the Human Rights Act 1998 or EU
Law.
5. The interface between the Wednesbury and proportionality tests and the question
of whether proportionality has replaced or should replace Wednesbury is a
controversial one. The courts have not yet determined this issue with any clarity, as
illustrated by Lord Neuberger’s ‘final word’ above.
10 Legitimate expectations and equality
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
10.1 Legitimate expectations . . . . . . . . . . . . . . . . . . . . . . . . . 99
10.2 Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
10.3 What has this chapter sought to do? . . . . . . . . . . . . . . . . . . 105

Introduction
This chapter asks you to build up your knowledge of the different grounds of
judicial review. The previous chapters have examined illegality and irrationality/
proportionality (as defined by Lord Diplock in CCSU) and Chapter 11 will tackle
procedural impropriety. This chapter will consider two grounds that have developed
with greater clarity since the decision in CCSU and were therefore not examined in that
case.
The first of these is the concept of legitimate expectation. There is some debate in
the literature as to whether this concept has developed from the private law concept
of estoppel or at least partly as an import from European legal systems. Regardless
of its origins, the broad objectives of the legitimate expectation principle, the values
that underpin it and the objectives of the principle are now clear. This chapter will ask
you to consider these developments and will also endeavour to allow you to build an
analytical framework upon which you can consider the strengths and weaknesses of
the legitimate expectation doctrine as it stands.
The second part of this chapter will ask you to consider the development of the
principle of equality as a ground of judicial review. As we will see, to some extent the
principle has always been inherent in the law but recent cases demonstrate the way
the law is developing.
Learning outcomes
be able to:
uu Describe and explain the development of the courts’ approach to the legitimate
expectation concept.
uu Analyse the current position in relation to substantive legitimate expectations,
assessing any remaining weaknesses or deficiencies of the law.
uu Demonstrate an understanding of the development of the principle of equality in
judicial review.
Core text
¢¢ Endicott, Chapter 7 ‘Discretion and deference’ and Chapter 8 ‘Substantive
fairness’.
Further reading
¢¢ Craig, Chapter 16 ‘Error of law’, Chapter 17 ‘Error of fact’ and 28-001–28-005.
¢¢ Leyland and Anthony, Chapter 11 ‘Illegality I’ and Chapter 12 ‘Illegality II’.

Administrative law 10 Legitimate expectations and equality page 99
10.1 Legitimate expectations
Further reading
¢¢ Craig, P.P. ‘Legitimate expectations: a conceptual analysis’ (1992) Law Quarterly
Review 79.
¢¢ Reynolds, P. ‘Legitimate expectations and the protection of trust in public

officials’ (2011) Public Law 330.
¢¢ Sales, P. and P. Steyn ‘Legitimate expectations in English public law: an analysis’

The legitimate expectation concept is focused upon the idea of fairness and the
enforcement of promises or representations. At its heart, the legitimate expectation
principle creates the idea that it is unlawful for a public authority to fail to abide by
a promise or representation that it has made without good reason, provided that
the promise is lawful and that whoever made the promise was entitled to bind the
authority. As you will have seen from your studies of the earlier chapters of this
module guide, discretion brings advantages, such as the ability to deliver rapid
changes of policy. However, the legitimate expectation principle limits this flexibility
by seeking to enforce the principle of legal certainty in appropriate cases and thus
preventing immediate departures from previous policies. To that extent, the principle
could be said to pit the principle of legal certainty against the flexibility that is
delivered by discretion (as illustrated below).
Certainty Flexibility
Figure 10.1 Legitimate expectations: striking a balance between certainty and

flexibility
Judges have expressed a number of views on why the legitimate expectation concept
has developed in the law. In R v Ministry of Agriculture, Fisheries and Food, ex parte
Hamble [1995] 2 All ER 714 , Sedley J expressed the following view:
…the real question is one of fairness in public administration. It is difficult to see why
it is any less unfair to frustrate a legitimate expectation that something will or will not
be done by the decision maker than it is to frustrate a legitimate expectation that the
applicant will be listened to before the decision maker decides to take a particular step.
Per Sedley J at 724.
Activity 10.1
1. What are the conflicting interests at stake when the courts are considering
whether or not to enforce a legitimate expectation?
2. What are the justifications for enforcing a legitimate expectation?
10.1.1 Procedural legitimate expectation

The law on procedural legitimate expectation is well developed. It has frequently been
accepted that, where a decision-maker has promised that an individual or group will
be given the opportunity to make representations or respond to a consultation before
a decision is taken, then the courts will frequently uphold this expectation. To some
extent, it is unsurprising that the courts have been more willing to enforce procedural
rather than substantive legitimate expectations because many of the significant
concerns that might be raised by the enforcement of a substantive legitimate
expectation (particularly the limiting of discretionary power and the imposition of

costs on the executive) do not arise so pressingly in procedural legitimate expectation
cases. Although the decision-making process might be slowed by the enforcement of
a procedural legitimate expectation, it does not bind a public authority to a course of
action; it only requires that the public authority hears those to whom it has promised
a hearing before making a decision.
R v Liverpool Corporation, ex parte Taxi Fleet [1972] 2 QB 299 – in this case, Liverpool
Corporation departed from its promise that there would be no increase in the number
of taxi licences in Liverpool without further consultation with affected parties. The
Court of Appeal granted a prohibiting order, preventing the issuing of further licences
until those affected had the opportunity to make further representations.
Attorney-General for Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 – in this case the Hong
Kong authorities promised that, prior to deporting illegal entrants to Hong Kong
who had entered from China, the individuals would be given the opportunity to
make representations. The authorities sought to resile from this policy and the Privy
Council upheld the Hong Kong Court of Appeal’s decision that it was unlawful for the
authorities to depart from the policy on hearings that had been made.
R (on the Application of Greenpeace) v Secretarty of State for Trade and Industry [2007] EWHC
311 (Admin) – this case concerned the government’s approach to consultation on the
issue of nuclear power. The government issued a White Paper in 2003 suggesting that it
was uncertain on whether ‘new build’ nuclear power was desirable and promised ‘the
fullest consultation’ before a policy on the issue was decided. It then issued a general
consultation paper on the future of the UK’s electricity supply, which the government
took to be the ‘fullest consultation’ promised in the White Paper. Greenpeace challenged
this and argued that it had a legitimate expectation to consultation, which had not been
fulfilled. The High Court found in favour of Greenpeace.
Activity 10.2
1. Draw up a list of cases on procedural legitimate expectation. Why was the court
willing to enforce the expectation in each of these cases?
2. Why do you think that the courts have been more willing to enforce legitimate
expectations to procedure, rather than legitimate expectations to substance?
10.1.2 Substantive legitimate expectation
Further reading
¢¢ Craig, P.P. and S. Schønberg ‘Substantive legitimate expectations after Coughlan’
¢¢ Sales, P. and P. Steyn ‘Legitimate expectations in English public law: an analysis’

¢¢ Steele, I. ‘Substantive legitimate expectations: striking the right balance’ (2005)

Law Quarterly Review 300.
¢¢ Bell, J. ‘The doctrine of legitimate expectations: power-constraining or right-

conferring legal standard?’ (2016) Public Law 437.
The doctrine of substantive legitimate expectation is invariably more controversial

than that of procedural legitimate expectation because it emphasises the tension
between the need to enhance legal certainty and fairness and the need for flexibility
on the part of public authorities. Furthermore, some feel that the courts’ enforcement
of substantive legitimate expectations may constitute an infringement of the
separation of powers, as the court may be seen as requiring executive decision-makers
to adhere to policies that would not otherwise be pursued. The original case law on
substantive legitimate expectation suggested that the origin of the concept is drawn
from the private law concept of estoppel, but over time the courts have suggested (as
one can see from the quote from Sedley J. above) that the concept is now built upon a
broader conception of fairness.
10.1.3 How is a legitimate expectation created?

There is no set rule on how a legitimate expectation might be created. One way to
look at the possible routes for the creation of an expectation is by considering the ‘3
Ps’ – promises, practices and policy statements. However, it is possible that there are
other routes that could lead to the creation of a legitimate expectation on the part of
the parties.
Route Cases
Promises R v Secretary of State for the Home Department, ex parte Ruddock [1987] 1 WLR 1482 – promise by
the secretary of state.
R v North and East Devon Health Authority, ex parte Coughlan [2000] 3 All ER 850 (CA) – clear and
unambiguous promise by the decision-maker.
R (on the Application of Bibi) v Newham LBC (No. 1) [2001] EWCA Civ 607 – representation made
by local authority.
Practices R v Inland Revenue Commissioners, ex parte Unilever [1996] STC 681 – ‘Course of dealing’, where
Unilever had been permitted to pay corporation tax in instalments.
R v Secretary of State for the Home Department, ex parte Adimi [2001] QB 667 – UK’s adherence
to the principles of the Geneva Convention (and the fact that it was ratified by the UK) in its
treatment of asylum seekers.
Policy statements R v Ministry of Agriculture, Fisheries and Food, ex parte Hamble [1995] 2 All ER 714 – policy on
the reallocation of fishing licences between boats gives rise to a legitimate expectation for
those who rely on it.
R v Secretary of State for Education and Skills, ex parte Heather Charis Begbie (By Her Mother and
Litigation Friend Rachel Begbie) [1999] EWCA Civ 210 – a political manifesto promise on funding
for private school places does not give rise to a legitimate expectation.
R (on the Application of Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755
– policy on support for those making appeals against wrongful conviction while in prison
may give rise to a legitimate expectation.
Activity 10.3
1. Explain the ways in which a legitimate expectation can be engendered.
2. Analyse the way the courts consider the different ways in which legitimate
expectations might be created. Are some considered to be stronger than others?
10.1.4 When should a legitimate expectation be enforced?

Once the question of whether a legitimate expectation has been created by a
particular form of representation has been answered, the next issue is then whether
the court should enforce the expectation. In R (On the Application of Manik Bibi) v The
London Borough of Newham [2001] EWCA Civ 607, Schiemann LJ said:
In all legitimate expectation cases, whether substantive or procedural, three practical
questions arise. The first question is to what has the public authority, whether by
practice or by promise, committed itself; the second is whether the authority has acted
or proposes to act unlawfully in relation to its commitment; the third is what the court
should do [at [19]].
We have addressed the first question above. The second question for the court is
whether the authority is proposing to act in an unlawful way. It is important to note
that usually (other than in a case like Coughlan, where the promise was a ‘home
for life’, the finding of a legitimate expectation does not bind a public authority
in perpetuity but means that public authorities may not act in frustration of the
expectation without giving reasonable notice, or without taking some transitional
measures that alleviate the impact on those who are most heavily affected. Note that
the modern law is generally focused on considering the broad, but difficult to define,
concept of ‘fairness’ when determining whether a public authority has acted in a
lawful manner. It should also be noted that the size of the group that might be able to
call upon the legitimate interest is also a relevant factor.
R v Inland Revenue Commissioners, ex parte Unilever [1996] STC 681 – promise could not
be withdrawn without offering reasonable notice.
R (on the Application of Niazi) v Secretary of State for the Home Department [2008] EWCA
Civ 755 – the Court of Appeal considered the role of ‘transitional measures’ when
considering the fairness of the withdrawal of a policy. See [60]–[64].
The final issue that the court will need to consider is the extent to which there might
be an overriding public interest in allowing the public authority to depart from a
legitimate expectation that should otherwise be upheld. The question is largely
whether there is an ‘overriding public interest’ in allowing the authority to depart
from an expectation that has been engendered.
R v Ministry of Agriculture, Fisheries and Food, ex parte Hamble [1995] 2 All ER 714 –
authority could depart from a legitimate expectation where scientific evidence
suggested that fishing of the type permitted by the policy statement was causing
much greater environmental harm than had been thought at the time the policy was
published.
R (on the Application of Niazi) v Secretary of State for the Home Department [2008] EWCA
Civ 755 – the need to reduce the costs of financial aid for legal services in light of
budget cuts.
Activity 10.4
1. How strong are arguments that suggest that enforcement of substantive
legitimate expectations is a substantial fetter on the executive’s freedom to
make policy?
2. Why is the size of the group seeking to rely on a legitimate expectation a

relevant factor for the courts?
3. When will the courts be willing to permit the decision-maker to depart from a
legitimate expectation that has been created?
4. What is the role of ‘transitional measures’? How might these reduce the impact
of departure from a legitimate expectation on individuals and groups?
10.1.5 Ultra vires representations

The final issue to consider in relation to legitimate expectation is the question of ultra
vires representations. This issue has created considerable difficulty for the courts
because to enforce an ultra vires representation would be to allow a public authority
to extend its jurisdiction by making promises. As such, the approach of the courts
on this issue is clear – ultra vires promises will not be enforced. This has led some (in
particular, see the article by Steele above) to suggest that, in some circumstances
where individuals suffer loss from reliance on an ultra vires representation,
compensation ought to be available. As things stand, this is not possible.
When dealing with the question of whether or not a representation is ultra vires, there
are two separate issues. The first is a question of whether the authority concerned has
the power to deliver the subject of the promise. The second question is, even where
the authority has the power to make the promise, whether or not the person who
made the promise to the claimant had the authority to do so? For example, a secretary
of state or senior civil servant is likely to have the authority to bind a government
department, whereas more junior employees may not.
Lever Finance Ltd v Westminster London Borough Council [1971] 1 QB 222 – indication of a
planning official that a minor variation from the approved plan was not material and
did not require additional planning permission was within the apparent authority of
that official and thus was not an ultra vires representation.
Western Fish Products v Penwith District Council [1981] 2 All ER 204 – the representation of
a planning official that the claimant firm had an existing use right was not binding on
the authority because it was not reasonable for the claimant to believe that the official
had the authority to make such a representation simply because of his title.
Rootkin v Kent County Council [1981] 1 WLR 1186 – where a local authority had paid the
claimant’s child’s costs of school transport in the erroneous belief that the child was
eligible for such a benefit as the home was more than three miles from the school, the
authority was not bound to continue payments once the error was discovered.
Rowland v Environment Agency [2003] EWCA Civ 1885 – the Environment Agency (and
certainly the relatively junior employee who had made a representation) had no
power to make the representation in respect of a disposition of public land upon
which the claimant was seeking to rely.
Activity 10.5
1. Why are the courts unwilling to enforce ultra vires representations? Is this
always fair to claimants?
2. Read the articles by Steele and Bell referred to above. What deficiencies and
uncertainties remain the in the law on legitimate expectations?
10.2 Equality
Core text
¢¢ Endicott, Section 8.3.2.
Essential reading
¢¢ Craig, Chapter 23 ‘Equality’ (available in Dawsons via the Online Library).
The second ground of review that you are asked to consider as a part of this chapter is
the ground of equality. To some extent, this is a newer and thus a developing area of
judicial review. As such, this chapter will not ask you to consider the issue in detail but
it is important for you to be aware that this ground of review exists and that the courts
have considered the question of equality in some judicial review cases.
The principle has primarily found its way into judicial review through three routes: (i)
common law cases on equality; (ii) cases that draw on Article 14 ECHR; and (iii) cases
that draw on the ‘public sector equality duty’, now to be found in s.149 of the Equality
Act 2010.
10.2.1 The common law

Cases such as Kruse v Johnson [1898] 2 QB 91 suggest that the court will intervene where
a byelaw seeks to treat different classes of people in different ways.
R v Secretary of State for the Home Department, ex parte Urmaza is a further example of
where the courts required a decision-maker to treat like cases alike and not to draw
distinctions in the application of a policy.
R (on the Application of Public Law Project) v Secretary of State for Justice [2015] EWCA
Civ 1193 – the Divisional Court held that the introduction of a test based on residence
for the grant of civil legal aid constituted unlawful discrimination and was thus ultra
vires. Note that this decision was overturned by the Court of Appeal and, while the
Supreme Court found the residence test to be ultra vires, it did not hear argument on
the discrimination issue, basing its decision solely on the construction of the relevant
empowering legislation.
The decision of the Supreme Court in R (Gallagher Group Ltd and others) v Competition
and Markets Authority [2018] UKSC 25 is important as it tells us that there is no
absolute requirement of equal treatment at common law. The case itself concerned
decisions by the Competition and Markets Authority to offer reduced penalties for
‘early resolution’ to certain market operators where they admitted anticompetitive
conduct, with a promise that, if their appeals in relation to its decisions over the
anticompetitive conduct were successful and the penalties paid as part of the ‘early
resolution’ process were successful then the penalties paid would be refunded. The
claimant companies did not appeal but sought to argue that the refusal to refund
the penalties paid as part of the ‘early resolution’ scheme was unlawful, as they were
entitled to the same treatment as the companies that had appealed. The Supreme
Court rejected this argument, holding that the common law does not per se require
absolute equality of treatment in order for action to the be lawful and, furthermore,
that the common law requirement of equality is an extension of the law on rationality
– i.e. that a failure to treat parties equally should be measured by rationality review. In
this case, the Supreme Court held that the inequality of treatment was not irrational
and thus was not unlawful.
10.2.2 Article 14 ECHR

It is important to note that Article 14 ECHR is not a stand-alone provision – it prohibits
discrimination in the enjoyment of the rights conferred by the Convention. As such, the
argument that the claimant puts forward needs to demonstrate that the discrimination
that occurs impacts on their enjoyment of another right protected by the Convention.
A v Secretary of State for the Home Department [2004] UKHL 56 – statute that permitted
detention without trial for non-UK nationals but did not do so for UK nationals was
contrary to Articles 5 and 14 ECHR and thus a declaration of incompatibility was
granted.
R (JS) v Secretary of State for Work and Pensions [2015] UKSC 16 – a claim that the
introduction of a housing benefit cap had a disproportionate and discriminatory effect
on women with children, such that rights under Article 1 of Protocol 1 to the ECHR (the
right to private property) and Article 14 were infringed. The claim was unsuccessful as
the Supreme Court held that the cap had a legitimate aim (reducing the cost of the
housing benefit system) and that any discrimination was justified.
R (Adath Yisroel Burial Society and Another) v Inner North London Senior Coroner [2018]
EWHC 969 (Admin) – this case concerned a policy adopted by the Coroner that no
death would be treated with priority due to the religion of the deceased in order to
secure equality of treatment of bereaved families in general in circumstances where
the Coroner’s resources were limited and under pressure. The claimants were a
charitable organisation representing adherents of the Orthodox Jewish faith and an
Orthodox Jewish woman. Their argument was that the Coroner’s policy failed to take
account of their right to have their religious views respected under Article 9 of ECHR
and of unlawful discrimination on grounds of religion under Article 14 of ECHR. The
Orthodox Jewish faith generally demands that funeral of a deceased person should
take place as soon as possible and ideally on the day of death. In the case, the court
held that the policy was an unlawful and disproportionate interference with the
claimants’ rights protected by Articles 9 and 14 of ECHR.
10.2.3 The public sector equality duty
Further reading
¢¢ Hickman, T. ‘Too hot, too cold, or just right? The development of the public
sector equality duties in administrative law’ (2013) Public Law 325.
As noted in Section 10.2, s.149 of the Equality Act 2010 imposes an equality duty upon
public authorities:
(1) A public authority must, in the exercise of its functions, have due regard to the need
to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is
prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected
characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected
characteristic and persons who do not share it.
There are relatively few cases that deal with this provision in great depth but the
following may be instructive of the approach of the courts.
R (on the application of Bailey) v Brent LBC [2011] EWCA Civ 1586 – a decision by the
council to close half of the libraries that it provided was not contrary to the public
sector equality duty. There was evidence that the council had taken account of the
equality impact assessment and had sought the views of the local community in
making its decision and, furthermore, the decision was justified in the circumstances
in light of substantial cuts to the budget of the council.
R (Hurley) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin)
– the secretary of state failed to have proper regard to equality impact assessment.
Note that this case underlines an important principle – here there was no question
that the equality impact assessment had been properly carried out but the secretary
of state had failed to consider it adequately. See [95]–[97].
R (on the application of Bracking) v Secretary of State for Work and Pensions [2013] EWCA
Civ 1345 – the secretary of state failed to demonstrate adequate consideration of the
equality impact assessment when removing benefits to support disabled persons to
live in their own homes.
Activity 10.6
1. Outline the ways in which equality has developed as a ground of judicial review.
2. What are the limitations imposed upon equality as a ground of judicial review?

this chapter:
1. The principle of legitimate expectation has developed over time in English law. The
courts originally considered procedural legitimate expectation and have only more
recently come to consider substantive legitimate expectation, although there were
cases where public authorities were subject to estoppel prior to the development
of a separate principle of legitimate expectation.
2. Legitimate expectation has developed over time and has moved away from
estoppel. Rather than being based on private law principles such as detrimental
reliance, it appears that the law is now based more squarely on public law
principles of fairness in public administration.
3. There are a number of ways in which a legitimate expectation can be engendered

(with promises, practices and policy statements being most common). Just
because one might argue that a legitimate expectation has been created, this does
not mean that the court will enforce it, as overriding issues of public interest, the
size of the group seeking to enforce the expectation and any transitional measures
taken by the authority to ameliorate any particular unfairness are all relevant
factors that the court will consider when it decides on enforcement.
4. There are a number of areas where the current law on legitimate expectation is
unclear or unsatisfactory. These include the question of whether determinantal
reliance is necessary, the problem of ultra vires representations and the question of
whether, in some circumstances, the law should require compensation to be paid
to those who are unable to get enforcement of a legitimate expectation.
5. Equality is a ground of judicial review, drawn from three major sources – the
common law, Article 14 ECHR (in conjunction with other rights) and the public
sector equality duty.
Notes
11 Procedural fairness
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
11.1 The value(s) of procedural fairness . . . . . . . . . . . . . . . . . . . 109
11.2 Fair hearings and the right to participate in decision-making . . . . . . 112
11.3 The scope and impact of Article 6 ECHR . . . . . . . . . . . . . . . . . 115
11.4 The duty to give reasons . . . . . . . . . . . . . . . . . . . . . . . . 116
11.5 The rule against bias . . . . . . . . . . . . . . . . . . . . . . . . . . 118

Introduction
At the start of this chapter it is apposite to revisit the words of Lord Diplock in CCSU v
Judicial review has I think developed to a stage today when without reiterating any
analysis of the steps by which the development has come about, one can conveniently
classify under three heads the grounds upon which administrative action is subject
to control by judicial review. The first ground I would call ‘illegality’, the second
‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further
development on a case by case basis may not in course of time add further grounds.
I have in mind particularly the possible adoption in the future of the principle of
‘proportionality’ which is recognised in the administrative law of several of our fellow
members of the European Economic Community; but to dispose of the instant case
the three already well-established heads that I have mentioned will suffice.
I have described the third head as ‘procedural impropriety’ rather than failure to
observe basic rules of natural justice or failure to act with procedural fairness towards
the person who will be affected by the decision. This is because susceptibility to
judicial review under this head covers also 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. But the instant case is not concerned with the proceedings of an
administrative tribunal at all.
As you will see from the part of the judgment set out above, arguments relating to
procedural impropriety deal with procedural fairness – a concept that has been
developed in the common law over many years and which is now applied to almost all
decisions made by public authorities. In addition to the common law requirements,
there may also be a link to illegality, in the sense that if a statute or statutory
implement contains a set of procedural rules to be followed prior to the making of a
decision, it will be unlawful for the authority concerned to act contrary to them.
The first part of the chapter asks you to think about the justifications and the risks
imposed by the rules on procedural fairness. There is no doubt that these rules bring
some significant advantages, but they can also be costly for public authorities to
implement and could also create the potential for unjustifiable complaints or judicial
review claims to be made against the decisions of public authorities. We will look at
the arguments in favour of and against the rigorous enforcement of such procedural
rules, both from the perspective of the theoretical literature and also from the
perspective of the judiciary.
Once this has been addressed, we will look at the three main areas of law on
procedural fairness: the right to a fair hearing/process before a decision is made,
the rule against bias and the duty to give reasons. In each of these areas we will
look at how the duty has developed and the current state of the law, and we will
also consider the impact that Article 6 ECHR has had on the development of the law
since the Human Rights Act 1998 came into force. Through this, we will see that the
law has developed considerably over the years, but throughout – certainly since the
‘procedural renaissance’ following the case of Ridge v Baldwin [1964] AC 40 – the law
has been flexible: it imposes procedural requirements that are proportionate to the
impact of the decision on the individual or group concerned.
Learning outcomes
be able to:
uu Describe and explain the purposes of the law on procedural fairness.
uu Describe and explain the development of the right to a fair hearing, the rule
against bias and the duty to give reasons.
uu Analyse the approach of the courts to the right to a fair hearing, the rule against
bias and the duty to give reasons in light of competing policy concerns.
Administrative law 11 Procedural fairness page 109
uu Assess the impact of Article 6 of the European Convention on Human Rights on

the development of the law covered in this chapter.
Core text
¢¢ Endicott, Chapter 4 ‘Due process’, Chapter 5 ‘Impartiality and independence’ and
Chapter 6 ‘Reasons: process and substance’.
Further reading
¢¢ Craig, Chapter 12 ‘Natural justice: hearings’ and 14 ‘Natural justice: bias and
independence’. Those with a particular interest in the area may wish to read
Chapter 13 ‘Natural justice: hearings, public interest immunity and closed
material procedure’ too.
¢¢ Leyland and Anthony, Chapter 16 ‘Procedural impropriety I: statutory

requirements’ and Chapter 17 ‘Procedural impropriety II: common law rules’.
¢¢ Wade and Forsyth, Chapter 12 ‘Natural justice and legal justice’, Chapter 13 ‘The
rule against bias’ and Chapter 14 ‘The right to a fair hearing’.
11.1 The value(s) of procedural fairness
Further reading
¢¢ Loughlin, M. ‘Procedural fairness: a study in the crisis of administrative law
theory’ (1978) 28 University of Toronto Law Journal 215.
We might argue that procedural fairness brings with it a number of important values
and goals. One of these is undoubtedly the pursuit of fairness to the individual – that
the law seeks to ensure that, before a decision is taken that impacts on the rights of
the individual, there is an adequate opportunity for that individual to participate in
the decision and, in addition, that the process of decision-making is not biased. There
may be a further imposition of a duty to give reasons, which may also be important
from the perspective of justice to the individual, but might also serve a number of
other important objectives. The first part of this chapter will ask you to think about
two issues: what values and functions do the rules on procedural fairness seek to serve
and, furthermore, what is the judicial approach to these functions?
11.1.1 What does procedural fairness seek to achieve?

Let’s start with a quote from Lord Reed in Osborn v Parole Board [2013] UKSC 61:
67 There is no doubt that one of the virtues of procedurally fair decision-making is that
it is liable to result in better decisions, by ensuring that the decision-maker receives
all relevant information and that it is properly tested. As Lord Hoffmann observed
however in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269, para 72,
the purpose of a fair hearing is not merely to improve the chances of the tribunal reaching
the right decision. At least two other important values are also engaged.
68 The first was described by Lord Hoffmann (ibid) as the avoidance of the sense of
injustice which the person who is the subject of the decision will otherwise feel.
I would prefer to consider first the reason for that sense of injustice, namely that
justice is intuitively understood to require a procedure which pays due respect to
persons whose rights are significantly affected by decisions taken in the exercise of
administrative or judicial functions. Respect entails that such persons ought to be
able to participate in the procedure by which the decision is made, provided they
have something to say which is relevant to the decision to be taken. As Jeremy Waldron
has written (‘How Law Protects Dignity’ [2012] CLJ 200, 210):
‘Applying a norm to a human individual is not like deciding what to do about a rabid
animal or a dilapidated house. It involves paying attention to a point of view and
respecting the personality of the entity one is dealing with. As such it embodies a crucial
dignitarian idea—respecting the dignity of those to whom the norms are applied as beings
capable of explaining themselves.’
69 This point can be illustrated by Byles J’s citation in Cooper v Wandsworth Board of Works
(1863) 14 CBNS 180 , 195 of a dictum of Fortescue J in Dr Bentley’s Case (R v Chancellor, Master
and Scholars of the University of Cambridge (1723) 2 Ld Raym 1334):
‘The laws of God and man both give the party an opportunity to make his defence, if he
has any. I remember to have heard it observed by a very learned man, on such an occasion,
that even God himself did not pass sentence on Adam before he was called on to make his
defence.’
The point of the dictum, as Lord Hoffmann explained in AF (No 3) at para 72, is that Adam
was allowed a hearing notwithstanding that God, being omniscient, did not require to
hear him in order to improve the quality of His decision-making. As Byles J observed (ibid),
the language used by Fortescue J ‘is somewhat quaint, but … has been the law from that
time to the present’.
70 This aspect of fairness in decision-making has practical consequences of the kind

to which Lord Hoffmann referred. Courts have recognised what Lord Phillips of Worth
Matravers described as ‘the feelings of resentment that will be aroused if a party to legal
proceedings is placed in a position where it is impossible for him to influence the result’:
Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269, para 63. […]
71 The second value is the rule of law. Procedural requirements that decision-makers
should listen to persons who have something relevant to say promote congruence
between the actions of decision-makers and the law which should govern their
actions: see eg Fuller, The Morality of Law, revised ed (1969), p 81, and Bingham, The Rule of
Law (2010), chapter 6.
72 The third matter to be clarified concerns the cost of oral hearings: a consideration
which appears to have underlain some of the changes to the rules and practice of the
board which have given rise to the present appeals, and which is reflected in the board’s
annual reports, where figures are given for the savings achieved by the refusal of oral
hearings in recall cases. The easy assumption that it is cheaper to decide matters without
having to spend time listening to what the persons affected may have to say begs a
number of questions. In the context of parole, where the costs of an inaccurate risk
assessment may be high (whether the consequence is the continued imprisonment of
a prisoner who could safely have been released, or re-offending in the community by a
prisoner who could not), procedures which involve an immediate cost but contribute
to better decision-making are in reality less costly than they may appear. In the present
cases, counsel for the board accepted that cost was not a conclusive argument against the
holding of oral hearings.
Although it is lengthy, the quote above illustrates the tension that exists in the law
on procedural fairness exceptionally well. The Osborn case concerned the right of
prisoners to have an oral hearing before the Parole Board in cases where they were
either facing recall to prison after release on licence or were seeking release from
prison on licence. The Parole Board declined to grant oral hearings arguing that
the cost of doing so would be too great. The Supreme Court found in favour of the
claimants, with Lord Reed outlining the values supported by procedural fairness in the
passage set out above.
It might be argued that the law on procedural fairness supports both what we might
describe as non-instrumental objectives (i.e. those based on fairness and other values
that the legal system might wish to support) and also instrumental objectives (i.e. that
procedural fairness may improve the quality of public decision-making).
Instrumental reasons Non-instrumental reasons

To improve the quality of public decision- To ensure that decision-making is fair
making by ensuring that full information is and that individuals do not feel that
available. public authorities have acted unjustly.
To help ensure that decision-makers act
within their powers, as there is an opportunity
for those who participate in the decision
to question the exercise of power and seek
explanations for the decisions that have been
made.
Instrumental reasons Non-instrumental reasons

Particularly in the case of the duty to give
reasons, to facilitate judicial review as the court
will have access to the public authority’s reasons
for making a decision.
To allow those affected by a decision to more
easily determine whether or not to challenge
it because they will have participated in the
decision-making process and will have access to
reasons for the decision.
11.1.2 What are the costs and dangers of procedural fairness?

As Lord Reed noted in his judgment in Osborn the challenge of procedural fairness is
that it leads to what Endicott (p.125) describes as process cost and process danger.
The process cost is the cost in both time and money incurred by the administration as
a result of the imposition of requirements of procedural fairness. Process danger arises
where the imposition of procedural requirements might impede the ability of the
authority to carry out its functions effectively, or may lead to injustice. One particular
problem that could be caused by rigid adherence to strict procedural requirements
is that it might be open to an individual to challenge a good and substantively lawful
decision made by a public authority due to the existence of a minor procedural defect.
This problem is addressed in English law at least in part by the fact that remedies
are discretionary, so in some cases the court may be unwilling to quash a decision
even if it is found to be unlawful due to the existence of a minor procedural error.
(An example of this is Walton v Scottish Ministers [2012] UKSC 44 – this was a case of a
failure to adhere to a statutory, rather than common law, procedure – but the principle
remains the same.) As such, the courts have to strike a balance between the benefits
that imposing standards on procedural fairness might bring against the disadvantages
that might arise in terms of process cost and process danger. It is now helpful to think
about the way in which the courts have sought to achieve this.
11.1.3 How do the courts strike the balance?

As noted in the introduction, the main way in which the courts seek to strike the
balance between the costs and benefits of procedural fairness is to impose procedural
requirements that are proportionate to the issues at stake. In the Further reading
article listed above, Loughlin argues that there are three broad models that courts
could adopt in response to questions of procedural fairness. He describes these models
as the ‘inactive formalist’, the ‘activist formalist’ and the ‘activist informalist’ models.
Activist
Formalist
Procedural
Fairness
Inactive Activist
Formalist Informalist
Figure 11.1 Loughlin’s three models

In his examination of the Canadian and English case law he suggests that an ‘activist
formalist’ approach would impose very strong procedural protections upon
individuals in respect of every decision that is to be taken. The ‘inactive formalist’
approach would impose strong procedural protections, but only in limited

circumstances, where the decision could have a very serious impact on the individual
who is subject to the decision. Contrastingly, the ‘activist informalist’ model is one
where the courts will impose flexible procedural requirements on decision-makers,
depending upon the circumstances of the case. This is the model that the courts
have adopted in recent years and is echoed in Endicott’s view that the requirements
of procedural fairness should be proportionate to the impact of the decision (so
someone facing loss of liberty or deportation might have a stronger expectation in
terms of procedural protections than someone who faces a minor fine).
Activity 11.1
1. Why is procedural fairness important? What objectives does the imposition of
the requirements of procedural protection serve?
2. Are there any potential disadvantages to the imposition of requirements of

procedural fairness?
3. How could and should the courts strike the balance between the needs of
procedural fairness and the need for efficiency in public administration?
11.2 Fair hearings and the right to participate in decision-making

The law on procedural fairness has its roots in the history of the common law, as the
excerpt from Lord Reed’s judgment in Osborn above seeks to illustrate. The common
law has long appreciated that, where an individual is affected by a decision of a public
authority, there is generally an expectation that the individual will be given the
opportunity to make representations prior to the decision being made.
Cooper v Wandsworth Board of Works (1863) 143 ER 414
I apprehend that a tribunal which is by law invested with power to affect the property of
one of Her Majesty’s subjects, is bound to give such subject an opportunity of being heard
before it proceeds: and that rule is of universal application, and founded upon the plainest
principles of justice.
(Per Willes J.)
Although the history of the development of the law in this area demonstrates some
departure from this principle in intervening years, the decision of the House of Lords
in Ridge v Baldwin [1964] AC 40 commenced the development of the modern law in this
area.
11.2.1 The requirements of the law on fair hearings/participation

The requirements of the law in terms of fair hearings or opportunities to participate in
decision-making processes (also known as the audi alteram partem principle – this is Latin
for ‘hear the other side’) has developed over time. You need to be aware of the basic
framework of requirements that are imposed by the law. It is possible to argue that the
modern law on fair hearings has four basic elements that need to be complied with in
order for a decision to be held to be fair by the common law, as shown in Figure 11.2.
evidence/accusations (N.B. right to a hearing/to make

duty to give reasons) representations
Fair hearing
right to legal representation cross examination
Figure 11.2 The four core elements of fair hearings

11.2.2 Availability of evidence/accusations

It is a general requirement of the common law that, if a decision is to be based
on evidence or accusations made by another, then the person who is accused of
wrongdoing or who is the subject of the decision should have the right to know the
nature of the evidence or accusations.
R v Gaming Board of Great Britain, ex parte Benaim and Khaida [1970] 2 QB 417 – where
the claimants faced the loss of their gaming licence in respect of the casino that they
managed, it was decided that they should have the opportunity to know the general
detail of the allegations and evidence against them, although not the full detail if this
would place the provider of evidence at substantial risk.
Bank Mellat v HM Treasury [2013] UKSC 39 (see Lord Neuberger at [178]–[185]) – in a case
where a bank was facing having its assets frozen due to the fact that it was suspected
of financing terrorists, it was decided that the bank should have the opportunity to
know the broad nature of the allegations and the evidence against it so that it could
seek to defend itself against the accusations.
R (Bourgass) v Secretary of State for Justice [2015] UKSC 54 – prisoners who were facing
an extended period in solitary confinement were entitled to know of the nature of the
allegations made against them regarding their conduct.
Activity 11.2
1. Why is it important for those who are affected by a decision to know something
of the allegations that have been made against them?
2. What are the potential problems with disclosing the nature of the allegations
and evidence in some cases?
3. Read the judgment of Lord Neuberger in Bank Mellat, noted above. Why did
he believe that it was important for the bank to know the reasons for the
imposition of the orders against it?
11.2.3 Right to a hearing

As we noted above, the common law has long imposed a requirement that those
who are affected by a decision should have the opportunity to be heard before a
decision is made. The hearing does not necessarily have to be an oral hearing – it is
often appropriate to allow individuals to make representations in writing. However,
the courts will sometimes impose a duty to hold an oral hearing on a decision-maker
where fairness will be served by this.
Lloyd v McMahon [1987] 1 AC 625 – in a case where a District Auditor was proposing to
impose a substantial surcharge on councillors who had refused to set a budget, the
Auditor was obliged to grant the councillors the opportunity to make representations.
In this case, the Auditor had offered the councillors an oral hearing as part of the
process and they had declined it, but there had been a very detailed written exchange.
The House of Lords rejected the councillors’ judicial review claim regarding the failure
to grant an oral hearing, arguing that the process that had been adopted had given
them an adequate opportunity to put their case forward.
R (On the Application of Thompson) v Law Society [2004] EWCA Civ 167 – in a case where a
solicitor was facing only a minor penalty for a minor infringement of the rules imposed
on solicitors, neither the common law nor Article 6 ECHR required an oral hearing to
be held, provided that it could be demonstrated that the written procedure that had
taken place had given the accused an adequate opportunity to put forward his point
of view.
R (On the Application of Smith) v Parole Board [2005] UKHL 1 and Osborn v Parole Board
[2013] UKSC 61 – both of these cases concern challenges to the Parole Board’s general
rule that it does not grant oral hearings to those who are seeking release from prison
on licence, or those who are facing recall to prison. In the two cases the House of Lords
and Supreme Court considered the impact of Article 6 ECHR (which generally requires
very strong procedural protection in cases where there may be a loss of liberty) and
held that it was unlawful for the Parole Board to deny an oral hearing in the cases
of the claimants. It is important to read the Smith judgment in particular in order to
understand the reasoning – the House of Lords held that in a cases such as Smith and
West (the other claimant in Smith’s case) oral hearings held substantial advantages
over written representations – the Parole Board could more readily test the veracity
of the claims made by the two men, there would be the presence of both verbal and
non-verbal (such as body language) evidence and, furthermore, as neither claimant
was particularly articulate in writing, it was held that the opportunity to make oral
representations might allow them to better present their cases.
Activity 11.3
1. How do the courts decide whether a written procedure will be adequate or if an
oral hearing will be required? What factors are taken into account?
2. Read the judgment of the House of Lords in Smith [2005] UKHL 1. What
advantages do you think oral hearings can sometimes deliver?
3. Why are public authorities and the courts sometimes unwilling to hold that an
oral hearing should be held?
4. What impact has Article 6 ECHR had on the law in this area?
11.2.4 Right to legal representation

The question of whether individuals should have the right to legal representation in
administrative proceedings is a vexed one. The courts have generally been reluctant to
impose a requirement of legal representation because of the very substantial process
cost that might be imposed by such a requirement. This approach was reiterated by
the courts in a number of cases.
Enderby Town Football Club v Football Association Ltd [1971] Ch 591.
R v Board of Visitors of the Maze Prison, ex parte Hone and McCartan [1988] AC 379 (HL):
But it is easy to envisage circumstances in which the rules of natural justice do not call for
representation, even though the disciplinary charge relates to a matter which constitutes
in law a crime, as may well happen in the case of a simple assault where no question of
law arises, and where the prisoner charged is capable of presenting his own case. To hold
otherwise would result in wholly unnecessary delays in many cases, to the detriment of all
concerned including the prisoner charged, and to wholly unnecessary waste of time and
money, contrary to the public interest.
Per Lord Goff at 390.
In the Hone and McCartan case the House of Lords held that even where prisoners
were facing an extension of their sentence as a result of the disciplinary charge
against them, the law did not impose a requirement that they should have legal
representation.
The impact of the Human Rights Act 1998 and Article 6 ECHR on
procedural fairness – a case study of legal representation in prison
disciplinary proceedings
As we can see above, the issue of the need for legal representation for prisoners
has caused the courts some difficulty in the past. Article 6 ECHR requires that an
individual is given a fair trial in the determination of his criminal or civil rights.
The question which arose out of this was whether or not breaches of the prison
rules, which could be subject to punishments like the extension of the period of
imprisonment, constituted criminal charges. If they did not, then Article 6 did not
apply and the common law as it stood after Hone and McCartan was valid. If such
disciplinary action was deemed to constitute a criminal charge then Article 6 did
apply, and the common law position of allowing the Prison Governor discretion
over whether to grant permission for legal representation would be incompatible
with Article 6. Ultimately, the UK courts found that the common law position was
satisfactory, whereas the ECHR did not.
• R (On the Application of Carroll) v Secretary of State for the Home Department
[2001] EWCA Civ 1221– the Court of Appeal decided that prison disciplinary
proceedings were not criminal charges and so Article 6 did not apply. In
essence, the Court of Appeal confirmed the common law position.
• Ezeh v UK (2002) 12 BHRC 589 and (2003) 15 BHRC 145 – the European Court
of Human Rights decided that Article 6 does apply to prison disciplinary
proceedings where punishment includes an extension of sentence.
• R (On the Application of Greenfield) v Secretary of State for the Home Department
[2005] UKHL 15, [2005] – Lord Bingham accepted that in the light of the
decision in Ezeh, the Court of Appeal’s decision in Carroll could not stand.
The decision of the Supreme Court in Re Maguire [2018] UKSC 17 concerned a challenge
by the claimant to the legality of rules of the Northern Ireland Bar Council requiring
that recipients of legal aid should be represented by senior and junior counsel.
Maguire wished to be represented by only a junior counsel and argued that the rules
of the Bar Council constituted an infringement of his right to choose his own defence
counsel under Article 6 of ECHR. The Supreme Court rejected this argument, noting
that the European Court of Human Rights has held that Article 6 does not require that
defendants should have absolute freedom to select their counsel where these are
funded by the state.
11.3 The scope and impact of Article 6 ECHR
Further reading
¢¢ Craig, P.P. ‘The Human Rights Act, Article 6 and procedural rights’ (2003) Public
Law 753.
The discussion above has sought to demonstrate the impact of Article 6 ECHR
on administrative decision-making in the case of prison discipline. However, it is
important to realise that the scope of Article 6 does not necessarily extend to all
administrative decisions. In order to understand why this is, it is necessary to consider
the text of Article 6(1) ECHR:
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
interest 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.
As you will note from the wording of Article 6 set out above, there is no specific
reference to administrative proceedings. As such, Article 6 will only apply to
administrative proceedings insofar as they have the character of criminal charges
(as in the cases on prison discipline, noted above) or can be characterised as having
an impact on the civil rights and obligations of the claimant. A good example of the
challenges in respect of the latter issue can be seen in the decision of the Supreme
Court in R (G) v Governors of X School [2011] UKSC 30. In this case, the claimant was a
teacher who faced an allegation of having an inappropriate relationship with one of his
students. The school denied the teacher the opportunity to have legal representation
in his disciplinary hearing, found him guilty of the allegation and passed the case on to
the Independent Safeguarding Authority, a public body with the power to prevent the
claimant from working in teaching in the UK. It was accepted that the latter body could
take a decision that would impact on the claimant’s civil rights (i.e. the right to practise
a profession) and as such Article 6 was engaged and legal representation was required.
The question for the Supreme Court in this case was whether the claimant should have
had legal representation before the disciplinary hearing in the school. The majority of
the Justices in the case held that Article 6 was not engaged in the disciplinary hearing
before the school and thus no legal representation was required.
Activity 11.4
1. Why do you think that the courts are reluctant to impose a requirement for legal
representation in processes of administrative decision-making?
2. When will legal representation be required for those who are facing the impact
of administrative decision-making?
3. What impact has Article 6 ECHR had on the law in this area? Are there
any limitations on the impact of Article 6 ECHR in cases of administrative
decision-making?
11.3.1 The right to cross-examine

The courts are generally reluctant to require cross-examination of witnesses or
other parties in cases of administrative decision-making. However, there are some
circumstances in which the common law, or perhaps the requirements of Article 6
ECHR, will permit cross-examination.
Bushell v Secretary of State for the Environment [1980] 2 All ER 608 (HL) – where a
government witness was presenting new evidence to an inquiry that had not been
previously disclosed, or where the evidence was particularly controversial, it was
held that counsel for participants in the inquiry should be able to cross-examine the
witness.
R (On the Application of Wilkinson) v Responsible Medical Officer of Broadmoor Hospital

[2001] EWCA Civ 1545 – in a case where doctors had agreed to detain an individual due
to concerns about his or her mental health, it was held that the doctors should be
subject to cross-examination. Note that the decision in this case is partially motivated
by the impact of Article 6 ECHR and the additional protection expected where
individuals face a limitation on or loss of liberty.
Activity 11.5
1. Under what circumstances will the courts require cross-examination of
witnesses in administrative proceedings?
2. Why do you think that the approach to cross-examination of witnesses has

generally been restrictive?
3. What impact has Article 6 ECHR had on the law in this area?
11.4 The duty to give reasons
Further reading
¢¢ Craig, P.P. ‘The common law, reasons and administrative justice’ (1994)
Cambridge Law Journal 282.
¢¢ Craig, P.P. ‘Reasons and administrative justice’ (1994) 110 Law Quarterly Review
12.
¢¢ Elliott, M. ‘Has the common law duty to give reasons come of age yet?’ (2011)
Public Law 56.
The duty to give reasons is an important part of the requirements in respect of

procedural fairness. The values supported by the duty are those which are outlined
at the start of this chapter – there is a general view that it can support the broad
instrumental and non-instrumental goals set out above. As we will see, the common
law has been unwilling to impose a blanket duty to give reasons in respect of all
administrative decisions. However, over time the duty has expanded and it is fair to say
that the duty now has broad scope.
Save Britain’s Heritage v Secretary of State for the Environment [1991] 1 W.L.R. 153 (HL) – a
claimant in a planning case was not entitled to detailed reasons for a decision unless
it could be demonstrated that a failure to give such reasons would cause substantial
prejudice to the claimant.
Lonrho plc v Secretary of State for Trade and Industry [1989] 1 WLR 525 – the secretary
of state was not required to give reasons for a refusal to refer a takeover to the
Monopolies and Mergers Commission.
R v Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310 (CA) – where the
Civil Service Appeal Board had departed from the usual measure of compensation in
a case where a prison officer had been dismissed, it was under an obligation to give
reasons for its decision.
Doody v Home Secretary [1994] 1 A.C. 531– the House of Lords held that the secretary of
state was under an obligation to give reasons for a decision to extend the minimum
period that the claimant must spend in prison before he could be considered for
parole. In so doing, the House considered the importance of the duty to give reasons
at common law, but Lord Mustill made it clear that there was no intention to create a
general duty to give reasons at common law:
I accept without hesitation, and mention it only to avoid misunderstanding, that the
law does not at present recognise a general duty to give reasons for an administrative
decision. [at 564]
R (On the Application of Farrakhan) v Secretary of State for the Home Department [2002]
EWCA Civ 606, [2002] QB 1391 – the Court of Appeal held that the duty to give reasons
was a vital aspect of the framework supporting judicial review of administrative action
in cases where it was argued that Convention Rights were engaged.
11.4.1 The adequacy of reasons

If there is a duty to give reasons, the next question that it is necessary to consider is
whether the reasons that have been given are adequate. The courts have generally
expected an adequate level of detail in the reasons in order to allow the recipient to
understand the motivation for the public authority’s decision.
Chief Constable, Lothian and Borders Police v Lothian and Borders Police Board [2005] SLT
315 – in this case the question was whether the reasons given for its decision by Police
Appeal Tribunal were adequate. The court determined that they were not and ordered
a re-hearing.
R (On the Application of Tofik) v Immigration Appeal Tribunal [2003] EWCA Civ 1138 – the
Immigration Appeal Tribunal’s refusal of claim where extenuating circumstances for
being out of time were given required greater reasoning than merely stating that the
claim was ‘out of time’.
11.4.2 Reasons and process cost

The courts have sometimes resisted the imposition of a duty to give reasons because
this would impose substantial costs on the authority concerned. An example of this
can be found in R (On the Application of the Asha Foundation) v Millennium Commission
[2003] EWCA Civ 88, where the Court of Appeal held that a body created to distribute
lottery funding to charities and other local groups was not required to give reasons
for its decisions, as the amount of money involved in each individual request was low
and the body concerned had to make a large number of decisions in a relatively short
period of time.
Activity 11.6
1. What purposes are served by the duty to give reasons and what disadvantages
might the imposition of a duty to give reasons bring?
2. When will a duty to give reasons be imposed by the courts? It is difficult to be

perfectly precise about this, but think of examples of categories of case where a
duty has been imposed.
3. When will the courts be reluctant to impose a duty to give reasons?
4. When will reasons be seen to be ‘adequate’?

5. Read the article by Elliott, cited above. Do you think that the common law on the
duty to give reasons is now adequate in scope, in light of the arguments that he
puts forward?
11.5 The rule against bias
Further reading
¢¢ Howell, J. ‘Alconbury crumbles’ (2007) Judicial Review 9.
¢¢ Maurici, J. ‘The modern approach to bias’ (2007) Judicial Review 251.
¢¢ Havers, P. and A. Henderson ‘Recent developments (and problems) in the law on

bias’ (2011) Judicial Review 80.
¢¢ Lucy, W.N.R. ‘The possibility of impartiality’ (2005) 25 Oxford Journal of Legal

Studies 3.
The rule against bias (also known as nemo judex in causa sua, which is Latin for ‘no
one should be a judge in his own cause’) seeks to render decisions which are tainted
by bias to be unlawful. The challenge for administrative law is that it is invariably
the case that decisions will be taken by government officials acting in response to
government policies, so it is difficult for any such decision to be taken in a manner
that is completely impartial. As such, the law seeks to strike a balance between the
need for impartiality and the reality that the delivery of such perfect impartiality is
difficult, if not impossible, to achieve. There are, however, some circumstances where
the approach taken by the courts is stricter – in essence, it is necessary to distinguish
between the different circumstances where bias might arise in order to determine the
judicial response to it.
11.5.1 Personal interests

The courts are generally strict wherever a party in a case has a personal interest in the
outcome, whether this is pecuniary or otherwise.
Dimes v Grand Junction Canal Proprietors (1852) 10 ER 301 (HL) – this established that
where a judge has a financial interest in the outcome of a case, whether direct or
indirect, his involvement in the case is contrary to the rule against bias.
El Farargy v El Farargy [2007] EWCA Civ 1149 – this established that where a judge at first
instance in a divorce case demonstrates a dislike to one or other of the parties and
makes this apparent in the conduct of the proceedings, the decision of the court will
be impugned as a result of the apparent bias.
R v Bow Street Stipendiary Magistrates, ex parte Pinochet Ugarte (No.2) [1999] 1 All ER 577
(HL) – this case established that where one of the Law Lords on the panel hearing an
appeal in a case has links to one of the interveners in the case and the judge has not
recused himself, this will render the decision of the court to be tainted by bias and a
new hearing will be held.
11.5.2 Institutional bias

There are a number of situations where institutional bias might taint a decision.
The courts have been willing to hold decisions unlawful due to the existence of
institutional bias in some circumstances, although where the decisions involve an
element of policy, or political disagreement, the courts have not generally been willing
to intervene. This is best demonstrated by the planning process cases discussed below.
It is important to note that the law here is controversial and demonstrates some of the
clear challenges that are posed by the mixing of the political and the administrative in
the system of public administration in England and Wales.
11.5.2.1 Decision-makers and appeals

R (On the Application of Al-Hasan) v Secretary of State for the Home Department [2005]
UKHL 13 – an appeal against a decision of the Governor of a prison to impose a penalty
upon a prisoner for a disciplinary offence was heard by the Deputy Governor, who was
present at the initial hearing of the case by the Governor. The House of Lords held that
the hearing of the appeal by the Deputy Governor offended the rule against bias, as
his decision in the appeal would likely be affected by what he had heard in the initial
hearing by the Governor. The hearing of the appeal here offended Article 6 ECHR.
Alconbury [2001] UKHL 23 – the House of Lords held that a decision of the Secretary
of State for the Environment in relation to a planning application in respect of the
development of land owned by the central government did not infringe the rule
against bias, despite the potential conflict of interest created by the government
policy in favour of the sale and development of the land concerned.
Begum (Runa) v Tower Hamlets LBC [2003] UKHL 5, [2003] 2 WLR 788 – a situation where
a decision over the allocation of social housing was subject to appeal to the manager
of the initial decision-maker was potentially an infringement of the rule against bias,
but the availability of an appeal to the County Court, which is an independent and
impartial tribunal for the purposes of Article 6 ECHR, was adequate to address any
potential bias.
11.5.2.2 Structures leading to a lack of independence

R (On the Application of Brooke) v The Parole Board [2008] EWCA Civ 29 – a situation
where the Parole Board was entirely reliant on the Home Office for its financing,
staffing and policy resulted in a situation where the Parole Board lacked adequate
independence.
11.5.2.3 Policies and opinions

Steeples v Derbyshire County Council [1985] 1 WLR 256 – a situation where a council
had agreed a contract to sell land to a developer and in that contract had agreed to
do all that it could to ensure that planning permission was granted to deliver the
planned development, was contrary to the rule against bias as the council, as planning
authority, had bound itself to a particular decision.
R (On the Application of Lewis) v Redcar and Cleveland BC [2008] EWCA Civ 746 and R
(Persimmon Homes) v Vale of Glamorgan Council [2010] EWHC 535, esp. [116]–[118] –
this case established that it is lawful for councillors who are to vote on the grant of
planning permission for a particular development to express a view on whether the
project should be granted planning permission in advance of the vote, provided
that they retain an open mind on the decision. These cases appear to accept that
in circumstances where a decision is politically controversial, councillors and other
elected officials are likely to have some preconceived view on the issue and this is
unavoidable.
Activity 11.7
1. What are the basic requirements of the law on the rule against bias?
2. Why do you think that the courts have generally been strict on cases of personal
bias?
3. What are the categories of institutional bias that the courts have considered?
4. How can cases of potential bias be addressed? Can institutional structures or

the availability of appeal to a court address issues of bias in relation to an initial
decision?
11.5.3 The applicable test for bias
Further reading
¢¢ Atrill, S. ‘Who is the “fair-minded and informed observer”? Bias after Magill’
(2003) 63 Cambridge Law Journal 279.
A particular challenge for the law in recent years has been the question of the
applicable test for bias. Since the coming into force of the Human Rights Act 1998, the
courts have changed the test in order to render it compliant with the requirements of
Article 6 ECHR. However, these changes have been criticised because it is argued that
the current test, set out by the House of Lords in Porter v Magill [2001] UKHL 67 lacks
clarity and is more difficult for the courts to apply than the traditional test, based on
the ‘reasonable man’ set out in Gough. See the changes over time in Figure 11.3.
‘...Real danger of bias.’

(R v Gough [1993] AC 646)
‘...whether ‘a fair-minded observer would have perceived a real possibility of bias’

(DGFT v Proprietary Assn of Great Britain and PATA [2001] 1 WLR 700)
‘...whether the fair-minded and informed observer, having considered the facts
would conclude that there was a real possibility that the Tribunal was biased.’
(Porter v Magill [2001] UKHL 67)
Figure 11.3 Changes to the test for bias
Activity 11.8
1. What is the current applicable test for bias? In what ways has the test developed
over the years?
2. Read Atrill’s article, cited above. What is the perceived problem with the test in
Porter v Magill [2001] UKHL 67?
11.5.4 The ‘fair-minded and informed observer’ – a significant problem?

A further potential criticism of the Porter v Magill [2001] UKHL 67 test is that the judicial
vision of the ‘fair-minded and informed observer’ is excessively complex and requires
the creation of a legal fiction which is, once again, complex for judges to apply in
individual cases. The definition of the observer by Lord Hope in Helow v Advocate
General for Scotland [2008] UKHL 62 perhaps serves to demonstrate the complexities:
My Lords,
1 The fair-minded and informed observer is a relative newcomer among the select group
of personalities who inhabit our legal village and are available to be called upon when
a problem arises that needs to be solved objectively. Like the reasonable man whose
attributes have been explored so often in the context of the law of negligence, the
fair-minded observer is a creature of fiction. Gender-neutral (as this is a case where the
complainer and the person complained about are both women, I shall avoid using the
word “he”), she has attributes which many of us might struggle to attain to.
2 The observer who is fair-minded is the sort of person who always reserves judgment on
every point until she has seen and fully understood both sides of the argument. She is not
unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488,
509, para 53. Her approach must not be confused with that of the person who has brought
the complaint. The “real possibility” test ensures that there is this measure of detachment.
The assumptions that the complainer makes are not to be attributed to the observer
unless they can be justified objectively. But she is not complacent either. She knows that
fairness requires that a judge must be, and must be seen to be, unbiased. She knows that
judges, like anybody else, have their weaknesses. She will not shrink from the conclusion,
if it can be justified objectively, that things that they have said or done or associations that
they have formed may make it difficult for them to judge the case before them impartially.
3 Then there is the attribute that the observer is “informed”. It makes the point that,
before she takes a balanced approach to any information she is given, she will take the
trouble to inform herself on all matters that are relevant. She is the sort of person who
takes the trouble to read the text of an article as well as the headlines. She is able to put
whatever she has read or seen into its overall social, political or geographical context.
She is fair-minded, so she will appreciate that the context forms an important part of the
material which she must consider before passing judgment.
Activity 11.9
1. Do you think that the definition of the ‘fair-minded and impartial observer’ in
Helow is excessively complex?
2. If the definition in Helow is too complex, what problems might this cause for the
application of the law on the rule against bias?

this chapter:
1. The law on procedural fairness has a long history in English law. It has three key
elements: a requirement that there is a fair hearing prior to an administrative
decision, a rule against bias and, more recently, the imposition of a duty to give
reasons.
2. The courts impose procedural requirements that are proportionate to the impact
of the decision to be made on the individual or group that will be affected by
the decision. The requirements on procedural fairness seek to deliver certain
instrumental and non-instrumental objectives. These are balanced against the
process cost and process danger of imposing requirements of procedural fairness.
3. The common law on the requirement of a fair hearing has a number of elements –
its main constituents are the right to know the allegations and evidence relevant
to the decision to be made, the right to make representations, a possible right
to legal representation and a possible right to cross-examine witnesses and
decision-makers.
4. The duty to give reasons seeks to serve the same values as the right to a fair
hearing. Although there is no absolute right to receive reasons for a decision, the
common law has extended the scope of the duty to give reasons over the years,
although the scope of the duty is sensitive to the need to be proportionate to the
impact of the decision on the individual.
5. The rule against bias is a further important element of procedural fairness,

although it is an area of law that has been beset by uncertainty, partially because
of the range of circumstances where bias can arise. In general, the law has been
strict in cases of personal bias, but imposes less stringent requirements in cases
of institutional bias, perhaps because complete impartiality is more difficult to
achieve in such cases.
6. Article 6 ECHR has had a considerable impact in some areas of the law, including
the right to an oral hearing, the right to legal representation and the rule against
bias, although it is important to note that Article 6 ECHR is not applicable in all
cases of administrative decision-making, as illustrated by the decision in R (G) v
Governors of X School [2011] UKSC 30.
Notes
Part III Other methods of grievance redress
12 Ombudsmen
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
12.1 The jurisdiction and powers of the ombudsmen . . . . . . . . . . . . 125
12.2 Judicial control over the jurisdiction of the ombudsmen . . . . . . . . 128
12.3 Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

Introduction
The development of the ombudsmen (starting with the Parliamentary Commissioner
for Administration and then developing to include the Local Commissioners for
Administration) was hugely significant for the system of administrative justice in the
United Kingdom. It arose from an acknowledgement, following the Crichel Down
affair, that judicial review was not always an appropriate and effective remedy for
those who had suffered injustice as a result of poor public administration. As a result,
building on the Whyatt Report, which was produced by JUSTICE in 1961, the idea
behind the Parliamentary Commissioner for Administration (PCA) was to assist in
strengthening the link between parliament and the executive, and to increase their
accountability by creating an independent office in parliament with strong links to
MPs to investigate complaints about poor administration made by members of the
public. The Local Commissioners for Administration (LCA) were then brought about
by the Local Government Act 1974 in order to serve similar objectives in the sphere of
local government.
At the time of their creation, the ombudsmen were seen primarily as a means of
handling complaints regarding poor administration and offering redress to those
who made them. Over time, the role has developed and the ombudsmen also play
an important role in developing public administration in the future, through the
publication of reports and the consolidation of some of their findings into principles of
good administration.
In order to help you to gain an understanding of the importance of the ombudsmen

in our system of administrative justice, this chapter asks you to consider the powers
of the ombudsmen, the interface between the ombudsmen and the courts and the
potential need for reform.
Learning outcomes
be able to:
uu Describe and explain the development of the ombudsmen in England and Wales.
uu Describe and explain the powers of the ombudsmen (specifically the
Parliamentary Commissioner for Administration and the Local Commissioners for
Administration) and the process that they adopt in considering complaints.
uu Analyse the effectiveness of the ombudsmen in resolving complaints, delivering
effective remedies to complainants and ensuring the improvement of future
administrative action.
uu Demonstrate an understanding of the interface between the ombudsmen and
the courts, both in terms of the judicial control of the ombudsmen’s powers and
the potential enforcement of the ombudsmen’s reports.
uu Consider the need for reform of the ombudsmen in light of recent government
reports and draft legislation.
Core text
¢¢ Endicott, Chapter 13 ‘Ombudsmen’.
Further reading
¢¢ Craig, Chapter 8 ‘Information, standards and complaints’, para. 8-017 onwards.
¢¢ Harlow and Rawlings, Chapter 12 ‘The Parliamentary Ombudsman: firefighter or

fire-watcher?’
¢¢ Leyland and Anthony, Chapter 6 ‘The ombudsman principle’.
¢¢ Whyatt, J. The citizen and the administration (the ‘Whyatt Report’). (London:
Stevens & Sons Ltd, 1961).
Administrative law 12 Ombudsmen page 125
12.1 The jurisdiction and powers of the ombudsmen
Further reading
¢¢ Kirkham, R. ‘The Parliamentary Ombudsman: withstanding the test of time’, 4th
Report, Session 2006–2007, HC 421. (London: The Stationery Office, 2007).
¢¢ Buck, T., R. Kirkham and B. Thompson The ombudsman enterprise and

administrative justice. (Farnham: Ashgate, 2011) [ISBN 9781138254350].
It is important to know something of the powers of the ombudsmen in order to

appraise the effectiveness of the system. The main powers of the Parliamentary
Commissioner for Administration are found in the Parliamentary Commissioner Act
1967 (PCA 1967) and the main powers of the Local Commissioners for Administration
are found in the Local Government Act 1974 (LGA 1974). The basic features of the
jurisdiction and powers of the ombudsmen are noted below.
Issue Legislative provision

Jurisdiction of the Section 5 of the Parliamentary Commissioner Act 1967, namely:
ombudsmen
• Referred by an MP, who has received a written complaint.
• Where the complaints relate to maladministration.
• Only where there is no other appeal or legal redress, unless it would be unreasonable to
expect the complainant to pursue it.
• May not investigate complaints listed in Schedule 3.
• Note that only those bodies mentioned in section 4 (i.e. those listed in Schedule 2 of the
Act) can be investigated.
• Within 12 months of the act or decision complained of.
• Section 6 excludes the possibility of local authorities or government departments
making complaints, but permits complaints by individuals or ‘any body of persons,
incorporated or not’.
Sections 24A–26D of the Local Government Act 1974, namely:
• Can consider complaints relating to local authorities, in relation to maladministration,
failures in service provision or failure to provide a service (ss.25 and 26).
• Complaints may be made by any member of the public who has suffered injustice
(s.26A), through self-referral by a local authority (s.26C) or where complaints come to the
attention of the Commissioner in the course of another investigation (s.26D).
• Where a member of public makes a complaint, this must be in writing, within 12 months
of the person having notice of the matter concerned.
• May not consider matters set out in Schedule 5 of the Act.
Process and powers • Bodies that are the subject of a complaint to be investigated must be given the
of investigation opportunity to comment on the complaint (s.7 PCA 1967 and s.28 LGA 1974). The decision
over whether to investigate is discretionary and in the hands of the PCA.
• The ombudsmen may pay the expenses of those who assist with an investigation (s.7 PCA
1967 and s.28 LGA 1974).
• Broad powers of investigation, including the power to call witnesses, demand
documents and information, lift the requirements of secrecy and hold those who
obstruct investigations in contempt (PCA 1967 ss.8–9 and LGA 1974, s.29).
As you will see from the above, the Parliamentary Commissioner for Administration
and the Local Commissioners for Administration both have a broad jurisdiction to
investigate complaints about central and local government respectively. They also
enjoy wide powers of investigation, with powers to demand documents, summon
witnesses and to compensate those who have incurred expenses by participating in
investigations.
One thing that you need to do is gain an appreciation of the limitations imposed on
the ombudsmen, as these may paint a less positive picture of their powers than the
overview above provides. The first activity is designed to help you think about these
limitations.
Activity 12.1
1. Explain the jurisdiction of the Parliamentary Commissioner for Administration
and the Local Commissioners for Administration. What can they investigate and
who can refer a complaint to them?
2. Consider the limitations on the matters to be investigated in Schedule 3 of the

PCA 1967 and Schedule 5 of the LGA 1974. What kind of matters are excluded? Do
you think all of these exclusions are satisfactory?
3. You will note from the above that the Parliamentary Commissioner for
Administration can consider complaints only if they have been referred by a MP.
Why do you think this is? Is it satisfactory?
4. Do the ombudsmen enjoy an ‘own initiative’ power of investigation? If not, do

you think that this would be a good idea?
12.1.1 The maladministration concept
Further reading
¢¢ Parliamentary and Health Services Ombudsman ‘Principles of good
administration’. (London: Parliamentary and Health Services Ombudsman,
2009).
¢¢ The Commission for Local Administration in England ‘Good administrative

practice’. (London: The Commission for Local Administration in England, 2001).
¢¢ Public Administration Select Committee annual report of the Parliamentary

Commissioner for Administration 1993–1994 (HC 1993–1994, 290).
As you will have noted from your reading so far, the maladministration concept is
an important tool of the ombudsmen, both of which generally review complaints in
order to determine whether any maladministration has taken place. It is therefore
important to understand the nature of the maladministration concept. A good place
to start is through reference to the ‘Crossman Catalogue’, an indicative definition given
by Richard Crossman MP as he sponsored the passage of PCA 1967 through Parliament:
What about the definition of maladministration? In the first place I can define it to some
extent negatively. It does not extend to policy, which remains a matter for Parliament. Nor
do we include under maladministration that whole group of discretionary decisions which
Sir John Whyatt treated separately in the first part of his Report. Discretionary decision,
properly exercised, which the complainant dislikes but cannot fault the manner in which
it was taken, is excluded by this Clause.
A positive definition of maladministration is far more difficult to achieve. We might have

made an attempt in this Clause to define, by catalogue, all of the qualities which make up
maladministration, which might count for maladministration by a civil servant. It would
be a wonderful exercise—bias, neglect, inattention, delay, incompetence, inaptitude,
perversity, turpitude, arbitrariness and so on. It would be a long and interesting list.
We have not tried to define injustice by using such terms as “loss or damage”. These
may have legal overtones which could be held to exclude one thing which I am
particularly anxious shall remain—the sense of outrage aroused by unfair or incompetent
administration, even where the complainant has suffered no actual loss. We intend that
the outraged citizen who persuades his Member to raise a problem shall have the right to
an investigation, even where he has suffered no loss or damage in the legal sense of those
terms, but is simply a good citizen who has nothing to lose and wishes to clear up a sense
of outrage and indignation at what he believes to be a maladministration.
HC Deb 18 October 1966 vol. 734 column 51 (Mr Richard Crossman)
The maladministration concept has continued to develop over time, with later
definitions being given by Sir William Reid (in the Public Administration Select
Committee annual report in your Further reading list, at para. 7) and, more recently, it
has been elaborated upon by the ‘Principles of good administration’ published by the
Parliamentary Commissioner for Administration and a similar document published
by the Local Commissioners for Administration (in the sense that if administration is
contrary to principles of good administration, we might assume that it is likely to be
considered to be maladministration). It is important to familiarise yourself with the
main features of the maladministration concept and also to understand how it has
developed over time.
Activity 12.2
1. What is maladministration? Explain the key features of the maladministration
concept.
2. Why do you think that the Parliamentary Commissioner Act 1967 and the Local
Government Act 1974 do not seek to define maladministration?
3. Why do you think that the ombudsmen publish principles of good

administration? What purpose do such documents serve?
12.1.2 Remedies from the ombudsmen
Further reading
¢¢ Kirkham, R., B. Thompson and T. Buck ‘When putting things right goes wrong:
enforcing the recommendations of the ombudsman’ (2008) Public Law 510.
It is important to remember that the ombudsmen do not have any powers to enforce
remedies where maladministration is found. Neither the PCA nor the LCAs can order
public authorities to act in a particular way or to offer redress, but they do have the
power to issue reports and require these to be laid before Parliament or the relevant
local authority.
Section 10 of the • PCA 1967, s. 10(1) – PCA to provide report (to the MP referring the complaint) should an
Parliamentary investigation have been undertaken, or a statement of reasons where an investigation
Commissioners Act has not been undertaken.
1967
• PCA 1967, s. 10(2) – Any report must also be sent to the department subject to the
investigation.
• PCA 1967, s. 10(3) – Where the PCA is aware that any maladministration has either not
been redressed, or believes that it will not be redressed, it can make a special report to
Parliament.
Note that, in addition to this, the PCA is required to lay a report before Parliament each
year. This annual report contains a summary of the major cases each year.
Local Government • A report to be provided to the complainant and the local authority.
Act 1974, ss. 30 and 31
• Report to be laid before the full council (of the local authority).
• If redress is recommended and not carried out, the report is to be publicised.
• Section 32 contains the power for the LCA to require the authority to publicise the
findings in a report.
Although the PCA and the LCAs do not have formal legal powers to enforce the reports
that are issued, the compliance rate is very high. In recent years, some cases have
sought to claim judicial review of the refusal of a public body to comply with the
report of an ombudsman.
R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293 – although the findings of
maladministration by the Parliamentary Commissioner for Administration might be
relevant for the consideration of whether there has been unlawful discrimination, this
was not determinative.
R (Bradley) v Secretary of State for Work and Pensions [2008] EWCA Civ 36 – this case
established that where a public authority refuses to follow a report recommending
redress due to maladministration, this refusal is subject to rationality review by the
courts.
R (EMAG) v HM Treasury [2009] EWHC 2495 (Admin) – the government’s refusal to follow
the recommendations of the PCA in respect of maladministration was subject to
judicial review.
R (Gallagher) v Basildon District Council [2010] EWHC 2824 (Admin) – in a case where
the LCA had made recommendations regarding redress, it was necessary for the
local authority to demonstrate that it was reasonable for it to refuse to follow them.
In this case, the court held that it was unlawful for the authority not to follow the
recommendations in the Commissioner’s report.
Activity 12.3
1. What remedies can ombudsmen offer?
2. To what extent are the powers of the ombudsmen sufficient to ensure effective
redress for situations where individuals are found to have suffered as a result of
maladministration?
3. Explain the role of the courts in the enforcement of the reports of the
ombudsmen. To what extent does the potential for judicial review of a refusal to
follow recommendations aid the enforcement of the reports?
12.2 Judicial control over the jurisdiction of the ombudsmen

As creatures of statute, the ombudsmen are subject to the control of the courts in
respect of jurisdictional error, as any other public body would be. It is necessary to
know something about the case law in this area. As we will see, there are relatively few
judicial review cases and the courts are often unwilling to interfere in the exercise of
the powers of the ombudsmen.
R v Commissioner for Local Administration, ex parte Liverpool City Council [2001] 1 All ER
462 – the Court of Appeal dismissed an appeal from the High Court which refused to
quash a finding of maladministration on the part of the LCA. The Commissioner had
found that a planning decision relating to a football ground had been tainted by
maladministration as the councillors demonstrated bias towards the outcome.
R v Parliamentary Commissioner for Administration, ex parte Dyer [1994] 1 All ER 375 –

the court refused a judicial review claim brought by a claimant who argued that the
remedy recommended by the PCA was inadequate.
R v Parliamentary Commissioner for Administration, ex parte Balchin (No.1 and No.2) (1998)
1 PLR 1 and (2000) 2 LGR 87 respectively – the court quashed the initial report of the
PCA in relation to compensation for blight to property caused by the building of a
road, finding that the report failed to address all relevant factors, including a piece of
relevant legislation.
Re Fletcher’s Application [1970] 2 All ER 527 – the court indicated that it would be difficult
for any claimant to succeed in an application for a mandatory order, seeking an
investigation by the PCA where the discretion under s. 7 had been exercised and an
investigation had been refused.
Activity 12.4
1. In light of the case law outlined above and the additional cases that you may
have read about in your books, how effective do you think the judicial control of
the ombudsman is?
2. In what circumstances will the courts seek to exert control over the
ombudsmen?
12.3 Reform
Further reading
¢¢ Cabinet Office ‘A Public Service Ombudsman: a consultation’. (London: Cabinet
Office, 2015).
¢¢ Cabinet Office ‘A Public Service Ombudsman: Government response to

consultation’. (London: Cabinet Office, 2015).
¢¢ Cabinet Office Draft Public Service Ombudsman Bill. (London: Cabinet Office,
2016). [ISBN 9781474139076].
¢¢ Gordon, R. ‘Better to serve the public: proposals to restructure, reform, renew

and reinvigorate public services ombudsmen’ (the ‘Gordon Report’). (London:
Cabinet Office, 2014).
¢¢ Kirkham, R. ‘The ombudsman, tribunals and administrative justice section: a

2020 vision for the ombudsman sector’ (2016) 38 Journal of Social Welfare and
Family Law 103.
In recent years, there has been much discussion about a reform of the ombudsman
system in England. The Cabinet Office published its consultation on a Public Service
Ombudsman in 2015, building upon the Gordon Report, published in the previous year.
A Government response to the consultation was published in late 2015.
The Government published a draft Public Service Ombudsman Bill in December 2016.
Of particular interest are:
uu There is no provision for an ‘MP filter’ for complaints about central government.
uu The power for Ministers to designate authorities to be subject to the ombudsman

in clause 21. This is only possible if the body is of central government, is a local
authority, carries out public functions (other than a local authority) in relation to a
particular local area, provides public health care in England or is a provider of adult
social care. For more information on this, see clauses 22–23.
uu Complaints must still pertain to maladministration or failures in service provision

(clause 6).
uu It is still not possible for the ombudsman to investigate where a viable alternative
remedy is available (clause 7) and Schedule 4 of the draft bill continues to contain
exclusions similar to those in Schedule 3 of the 1967 Act, which are enforced by
clause 8 of the draft bill.
uu The powers of investigation and means of ensuring compliance with

recommendations remain similar to those that are presently enjoyed.
The draft bill will bring about some significant changes in the sense that it will pull
together the offices of the Parliamentary and Health Services Ombudsman and the
Local Commissioner for Administration, with the objective of providing a single ‘no
wrong door’ office for dealing with complaints of maladministration and failures of
service delivery involving public authorities.
One issue that proved to be controversial during the consultation process was
whether the Public Service Ombudsman should have a power of ‘own initiative’
investigation. The Government rejected that proposal and such a provision is not
included in the draft bill.
Activity 12.5
1. Identify the main issues that arise in the discussions of reform of the
ombudsmen in England (i.e. the PCA and LCAs).
2. What, in your opinion, are the three most important reforms that could be
introduced to improve the ombudsmen?
3. Assess the draft Public Service Ombudsman Bill. Do you think that it goes far
enough in its proposed reforms, or are additional measures needed?

this chapter:
1. Ombudsmen are an important part of the machinery of administrative justice in

the United Kingdom, offering an alternative means for grievance redress outside
the realm of the courts. The model of ombudsmen that has been adopted in the UK
is primarily focused on complaints handling.
2. The two main public-sector ombudsmen of concern to administrative lawyers are

the Parliamentary Commissioner for Administration and the Local Commissioners
for Administration.
3. The ombudsmen have a broad jurisdiction to investigate complaints pertaining

to central and local government, although this is constrained by the relevant
provisions of the legislation set out above. Similarly, the ombudsmen have very
strong powers of investigation.
4. The work of the ombudsmen is primarily focused on investigating cases of

maladministration reported to them via complaints from members of the public.
5. The ombudsmen cannot impose binding remedies where maladministration is

found and instead rely on moral and political pressure to enforce their reports.
Despite this perceived limitation, the level of compliance with the ombudsmen’s
recommendations is very high.
6. There have been a number of proposals for reform in recent years, culminating in
a draft Public Service Ombudsman Bill that would seek to merge the offices of the
PCA, LCA and the Health Services Commissioner (which is already within the office
of the PCA). The proposals also make other recommendations for reform, such as
the removal of the MP filter for complaints.
13 Tribunals and inquiries
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
13.1 The system of tribunals . . . . . . . . . . . . . . . . . . . . . . . . . 133
13.2 Inquiries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

Introduction
Tribunals and inquiries are parts of the administrative justice system that deliver
accountability and deal with redress of grievance in specific contexts. It is important
that you are aware of what tribunals and inquiries are, their basic roles and functions
in the system and the generalities of their development and the legislative framework
underpinning them. A more detailed study of the operation and impact of tribunals
and inquiries is beyond the scope of this module, but for anyone with a particular
interest in the area, the book by Cane on tribunals is a very valuable study.
The role of tribunals has developed over the years. At the outset, tribunals were
a method of internal appeal, created by the executive and largely staffed by civil
servants to hear appeals in specific areas (such as immigration, social security and
taxation) in order to deal with the large number of grievances that arise in relation to
determination of individual cases in these areas. The Franks Report, published in 1957,
recommended that tribunals should become more independent and adjudicatory,
rather than simply being seen as part of the machinery of administration. Although
tribunals did become more akin to a process of adjudication than to administration
over time, it is only relatively recently that they have become independent of the
government departments that they oversee. The Leggatt Report, which was published
in 2001, recommended a significant overhaul of the tribunal system, with the tribunals
becoming independent of the government departments that originally created them
and becoming part of the judiciary.
After Leggatt, the process of tribunal reform commenced. This culminated in the
Tribunals, Courts and Enforcement Act 2007, which places the tribunals covered by
the Act (which are the major tribunals dealing with administrative disputes) on a clear
statutory footing and also places tribunal judges within the realm of the judiciary. This
move towards greater independence of the tribunals is a significant change, brought
about 50 years after the Franks Report made its recommendations. The Tribunals,
Courts and Enforcement Act is also significant because it created the Upper Tribunal
as a unified appeal body for all of the First Tier Tribunals. This is important because,
for the first time in the history of tribunals in the system of administrative justice,
there is an appeals body with such cross-cutting jurisdiction to address issues that
are common and to encourage common standards amongst the tribunals. You will be
asked to consider the Upper Tribunal in a little more detail later in this chapter.
Inquiries are another accountability mechanism that can be used in appropriate

cases. Inquiries can arise in several forms, the most frequent being those undertaken
by coroners – an inquest into a death. In addition to the coroner’s inquest, the
executive may also choose to order an inquiry where there is a major failure of public
administration, or where there is a need to investigate the operation of a certain
element of the public administration in order to facilitate reform. A final area where
inquiries are used is in relation to major infrastructure projects and other projects of
significant public interest and concern in planning law. Inquiries are notable because
they are the main way in which the system of administrative justice can adopt an
inquisitorial, as opposed to an adversarial process when investigating issues of public
administration.
Learning outcomes
be able to:
uu Describe and explain the role and development of tribunals and inquiries in
delivering accountability and redress of grievance in administrative law.
uu Understand how tribunals and inquiries fit within the system of administrative
justice.
uu Analyse the general legal provisions relating to tribunals and inquiries.
Administrative law 13 Tribunals and inquiries page 133
Essential reading
¢¢ Carnwath, R. ‘Tribunal justice: a new start’ (2009) Public Law 48 (available in
Westlaw).
¢¢ Endicott, Chapter 12 ‘Tribunals’ and Chapter 13 ‘Ombudsmen’, Section 13.13 ‘The

Inquiries Act’ only.

justice’ (2012) Public Law 288 (available in Westlaw).
Further reading
¢¢ Cane, P. Administrative tribunals and adjudication. (Oxford: Hart Publishing, 2010)
[ISBN 9781849460910].
¢¢ Craig, Chapter 9 ‘Tribunals and inquiries’.
¢¢ Franks Committee Lord Chancellor’s Department: Committee on Administrative

Tribunals and Enquiries (Cmnd 218, 1957).
¢¢ Harlow and Rawlings, Chapter 11 ‘Tribunals in transition’ and Chapter 13

‘Inquiries: a costly placebo?’
¢¢ Leggatt, A. Tribunals for users: one system, one service. (Stationery Office Books,
2001) [ISBN 9780117027312].
¢¢ Ireton, E. ‘How public is a public inquiry?’ (2018) Public Law 277.
13.1 The system of tribunals
Further reading
¢¢ HM Courts and Tribunals Service ‘Tribunals structure chart as of May 2018’
(London: HM Courts and Tribunals Service). www.judiciary.uk/publications/
tribunals-organisation-chart/
Note that the Employment Tribunals are not concerned with public administration,
so should not be part of your studies of this issue.
After the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007), the major
administrative tribunals were brought together into a unified structure of First Tier
Tribunals (FTT), with a system of appeals to the Upper Tribunal (UT). Both the FTTs and
the UT are divided into ‘Chambers’, dealing with issues that are within the scope of
a particular specialist area of public administration. The structure chart listed above
in Further reading explains the various chambers and the appeal routes to the UT. It
also notes a further complexity: jurisdictions vary in the sense that the FTT only has
jurisdiction over some matters where the decision takes place in England, in other
matters where the decision takes place in Great Britain (i.e. excluding Northern
Ireland) and then in other matters it enjoys jurisdiction over the issues concerned in
respect of the whole of the United Kingdom. The UT then hears appeals from the FTT
and also has some limited powers of judicial review.
This ‘systematisation’ of tribunals replaced a previous system where there were many
different tribunals and appeal tribunals, none of which were necessarily operating
on a consistent basis. The addition of the tribunal judiciary to the independence
requirement for the judiciary in the Constitutional Reform Act 2005 by s. 1 TCEA 2007
is a significant change, clarifying the position that the tribunal judiciary is now clearly
independent of the executive.
13.1.1 What do tribunals do and why are they important?

In terms of volume of claims, tribunals hear many more cases than the courts in
judicial review. See the table in Endicott, Section 12.1 for a breakdown. In most recent
years, tribunals have heard more than 500,000 individual cases (the vast majority
in relation to social security and child support) and judicial review claims have
numbered no more than 15–20,000 in the same period. As such, we might argue that
the tribunals do the bulk of the work in terms of dealing with individual grievances,
although the decisions in judicial review cases have a wider systemic effect because
of their value in precedent and also because judicial review cases tend to address
questions of law, whereas tribunals are often concerned with whether the legal rules
have been applied correctly in the cases before them.
Tribunals are similar to courts, but it is incorrect to suggest that they are courts – there
are some notable differences between courts and tribunals, even though the tribunal
system and the hearing process after the reforms brought about by TCEA 2007 are
closer to the procedures in the courts than they ever were in the past. Most tribunals
still have an expert in the subject matter before the tribunal sitting alongside the
tribunal judge and some also have lay members (who are neither experts nor judges)
on their panels. Some believe that this may lead to concerns about independence,
particularly where lay members are drawn from the relevant government
departments; but this is also a key advantage of the tribunal system – the tribunal
judges and expert members are highly knowledgeable in the field in which the tribunal
operates and are therefore well placed to deal with disputes that appear before them.
Tribunals might also be said to bring advantages because, in many cases, they may be a
cheaper and more proportionate means of grievance redress than a court procedure.
Although tribunals have become more court-like over the years, there remains no
absolute need for legal representation and the panel hearing the case is generally
more inquisitorial and willing to assist the claimant than would be the case in judicial
review proceedings.
Activity 13.1
1. What do tribunals do in the system of administrative justice in the United
Kingdom? Consider the following issues:
a. What jurisdiction do the tribunals have?
b. What volume of cases do they hear each year?
c. What purpose do they serve in the system of administrative justice?
2. In what ways are tribunals similar to courts and in what ways do they differ?
3. What reforms did the Tribunals, Courts and Enforcement Act 2007 bring to the
tribunal system and why might these reforms be important?
13.1.2 The Upper Tribunal
Essential reading
¢¢ Carnwath, R. ‘Tribunal justice: a new start’ (2009) Public Law 48 (available in
Westlaw).

justice’ (2012) Public Law 288 (available in Westlaw).
The Upper Tribunal was created by TCEA 2007 to serve as a unified appellate body,
hearing appeals from the tribunals and also exercising a limited judicial review
jurisdiction, created by section 19 of the same Act. Some have argued that the Upper
Tribunal is an important new development, which will lead to stronger harmonisation
of processes within the tribunal system and a more specialist system of judicial review
and hearing of appeals arising from the tribunals. It would be helpful for you to read
the article by Lord Carnwath and to consider whether the Upper Tribunal has met the
objectives that were set out for it on its creation.
Activity 13.2
1. Outline the reasons for the Upper Tribunal’s creation.
2. Read the article by Lord Carnwath. What advantages does he suggest that the
Upper Tribunal might bring?
Administrative law 13 Tribunals and inquiries page 135
3. Read the article by Laurie. Do you think that the Upper Tribunal has delivered on
what was promised?
13.2 Inquiries
Further reading
¢¢ Beatson, J. ‘Should judges conduct public inquiries?’ (2005) 121 Law Quarterly
Review 221.
¢¢ Requa, M. ‘Truth, transition, and the Inquiries Act 2005’ [2007] European Human
Rights Law Review 404.
¢¢ Thomas, (Lord) J. ‘The future of public inquiries’ [2015] Public Law 225.
The inquiry is a mechanism that can be used to investigate major events of public
concern (such as killings by state agencies, major public accidents and incidents and
the conduct of the police or military forces in certain situations). In addition to this,
coroners conduct inquests into deaths where they are accidental or unexplained,
which is another form of inquiry. Finally, inquiries, whether local or sometimes
national, are used to consider planning applications of major public interest, such
as those for airports, major roads and power stations, where the environmental
impact and the impact on the property of local residents are likely to be particularly
significant. Planning inquiries and inquests are conducted under the auspices of
specific legislation applicable in those contexts and you will not be asked to consider
those here. Our focus will be on public inquiries and mainly those conducted under
the powers granted to Ministers by the Inquiries Act 2005.
Inquiries might take two forms: statutory, and it is possible for a government Minister
to order a non-statutory inquiry. These are less formal than statutory inquiries under
the Inquiries Act 2005, but do not have the power to mandate the giving of evidence.
Inquiries under the Inquiries Act 2005, by contrast, have the power to mandate the
provision of evidence by anyone who may be in possession of relevant material, or
who may be able to present relevant oral evidence.
Inquiries are significant because, rather than being an adversarial procedure, they
are inquisitorial by nature. Rather than necessarily seeking to determine who is a
guilty party, such inquiries aim to discover the causes of a particular event, to make
recommendations for improvement of public administration and to adduce relevant
evidence in relation to these issues. Inquiries have often been criticised for the length
of time that they take to reach a conclusion and the enormous public cost that they
generate. For example, the Saville inquiry into Bloody Sunday took 12 years and cost
£192 million. It is common for large inquiries to cost several million pounds by the end
of the process. Although the Saville inquiry is perhaps an extreme example of the cost
and duration of what was a very complex and politically-charged inquiry, which also
generated substantial litigation, it is common for inquiries to last a number of years
and to lead to substantial cost for the public purse. This has led some to question the
necessity of such inquiries.
In order to understand the basics of the law relating to inquiries, it is helpful to

consider the following major points:
uu Inquiries under the Inquiries Act 2005 are convened by Ministers and it is the
Minister who convenes the inquiry who has the major say over its terms of
reference. This has led some to question whether or not inquiries are sufficiently
independent of government to be an adequate accountability mechanism.
uu Inquiries are often chaired by judges, whether currently serving or retired. This has
generated some concerns over the independence of the judiciary, as it could be
suggested that when judges chair an inquiry they have become part of a process
ruled by the executive. It is common for large inquiries to have more than one
panel member.
uu Lord Thomas, in the article cited above, has suggested that there should be a focus
on the proportionality of the inquiry process – i.e. that each inquiry should focus on
devoting resources appropriate to the issue being investigated and must be actively
managed by the chair in order to achieve this proportionality. He argues that this
can be achieved, in particular, by ensuring clear definition of the terms of reference,
ensuring that the consideration of evidence is limited to material that is directly
pertinent to the inquiry, and setting and adhering to clearly defined time limits.
Activity 13.3
1. What is the purpose of inquiries? From the readings set out for this chapter,
consider three examples of inquiries and explain why they were set up.
2. Statutory inquiries under the Inquiries Act 2005 and preceding legislation
are used with increasing frequency by the government. Do you think that
such inquiries are effective? Explain, giving your reasons, why there might be
concerns about the effectiveness of statutory inquiries.
3. Should judges be allowed to chair inquiries? What concerns might there be over
judicial independence if this is permitted?
4. What reforms might be necessary in order to improve the approach to inquiries

under the Inquiries Act 2005?

readings and completed the activities then you should have met the learning outcomes
noted at the outset. You can use the feedback to the activities in order to assess your
level of understanding. You may wish to take away these final points from this chapter:
1. Tribunals are a key part of the system of administrative justice. Over time they have
developed from being a part of the system of administration (in the sense that
each tribunal was created by and was ‘owned’ by the government department that
created it) to the independent system that we have today, created by the Tribunals,
Courts and Enforcement Act 2007.
2. As part of the machinery of administrative justice, the tribunals hear a large

number of cases each year – often up to 500,000. The majority of these arise in
relation to social welfare benefits.
3. Although they have become closer to courts in terms of their judiciary and
procedure, tribunals still differ from courts in a number of important respects.
Many tribunals still have lay members, some still make use of expert members and
the tribunal judges generally have significant specialism and expertise in relation
to the matters under the jurisdiction of their tribunals.
4. The Upper Tribunal serves as an important source of unification, both in terms of

the interpretation of tribunal rules and common points of law, and approaches
to issues. The Upper Tribunal’s judicial review jurisdiction has arguably been less
influential than originally hoped, as it exercises powers of judicial review in only
very limited circumstances.
5. Inquiries are another mechanism used to deliver accountability of government in

appropriate cases, such as when there are matters of public concern arising from
the actions of public officials. Inquiries are different to many of the other processes
of control because they are inquisitorial rather than adversarial in nature and they
aim to offer an account of the causes and steps that might be taken to address
issues, rather than necessarily to attribute blame or liability.
6. Although the process for statutory inquires was reformed to some extent by the
Inquiries Act 2005, there remain some concerns regarding the law in this area.
In particular, inquiries are often lengthy and expensive and there is also some
concern that where serving judges are asked to lead inquiries, this could raise
legitimate questions about the impact on judicial independence.
14 Liability in private law
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
14.1 The general position on liability . . . . . . . . . . . . . . . . . . . . 139
14.2 Routes to liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
14.3 The possible benefits and risks of imposing liability . . . . . . . . . . . 141
14.4 Some basic principles on negligence liability . . . . . . . . . . . . . . 142
14.5 Could the law be reformed? . . . . . . . . . . . . . . . . . . . . . . 144
14.6 Misfeasance in public office . . . . . . . . . . . . . . . . . . . . . . . 144
14.7 Human Rights Act damages . . . . . . . . . . . . . . . . . . . . . . . 145
14.8 The law of restitution . . . . . . . . . . . . . . . . . . . . . . . . . . 146

Introduction
The liability of public authorities in private law, or to pay damages for wrongful
actions, is an important part of the system of accountability. The general position
is that public authorities are liable for their torts, or the torts of their employees, in
the same way as any other individual or company. However, the legal position was
different in the case of the Crown until 1947, when the Crown Proceedings Act lifted
the immunity that the Crown enjoyed in the vast majority of cases so the Crown can
now be liable in contract and tort just like any other authority.
The liability of public authorities in private law is an enormous and complex subject,
so in this module we will focus only on limited issues of liability so that you can focus
on the major issues of controversy.
It is important to note that many of the policy issues that arise in relation to the
judicial review of administrative action arise in just the same way when we consider
the negligence liability of public authorities – it is no more or less intrusive to find the
action of a public authority unlawful because it is unreasonable or disproportionate
than it is to find a public authority liable in negligence because the court determines
that it has acted in breach of its duty of care by taking a particular decision. As such,
arguments about justiciability, the proper role of the courts and excessive judicial
interference with the exercise of public power arise frequently in cases concerning the
liability of public authorities.
It is notable that many European legal systems are more open to holding public
authorities liable to compensate those who are impacted by their unlawful and,
indeed, sometimes their lawful actions. The situation in English law is complicated by
the fact that liability of public authorities has developed through a complex web of the
private law of tort, rather than through a separate system of public law torts, as is the
case in France. This has the effect of creating considerable complexity in English law.
The law of England and Wales knows of only one public law tort – that of misfeasance
in public office. As we will see, this tort is applicable only in limited circumstances and
has not had a significant impact on the exercise of public power overall.
The coming into force of the Human Rights Act 1998 brought with it the need
to compensate those whose Convention rights have been violated (where such
compensation would be anticipated by the ‘just satisfaction’ principle inherent in
the Convention). This issue has caused some challenges for the courts in terms of
determining an appropriate level of compensation. It is also important to note that
the approach to determining liability in the Convention (examining the seriousness
of the breach rather than the question of the duty of care) has brought about some
consideration of possible reform of the approach to liability of public authorities in
negligence.
In addition to liability in tort, we will also assess the potential scope of the law of
restitution to impose liability on public authorities in appropriate cases.
Learning outcomes
be able to:
uu Describe and explain the main ways in which public authorities can be liable for
wrongful acts in private law, with a particular focus on negligence liability for
their actions and inaction.
uu Demonstrate an understanding of the policy reasons for the courts’ reluctance to
impose negligence liability on public authorities.
uu Describe and explain the approach of the courts to damages for breach of a
Convention right under the Human Rights Act 1998.
uu Offer a critical analysis of the potential routes to reform for negligence liability
in light of the approach taken to damages for breach of a Convention right under
the Human Rights Act 1998 and other proposals for reform.
uu Demonstrate knowledge of the other forms of liability in private law, including
liability in restitution.
Administrative law 14 Liability in private law page 139
Core text
¢¢ Endicott, Chapter 14 ‘Torts’ and 15 ‘Contracts’.
Essential reading
¢¢ Craig, P. and D. Fairgrieve ‘Barrett, negligence and discretionary powers’ (1999)
¢¢ Steele, J. ‘Damages in tort and under the Human Rights Act: remedial or
functional separation’ (2008) 67 Cambridge Law Journal 606 (available in the
Online Library).
Further reading
¢¢ Craig, Chapter 29 ‘Crown liability’ and Chapter 30 ‘Tort and restitution’.
¢¢ Harlow and Rawlings, Chapter 17 ‘‘Golden handshakes’: liability and

compensation’.
¢¢ Leyland and Anthony, Chapter 19 ‘Contracting and public bodies’ and Chapter 20
‘Public authority liability in tort’.
14.1 The general position on liability
Further reading
¢¢ Birkinshaw, P. European Public Law. (Alphen aan den Rijn: Kluwer Law
International, 2014) Chapter 10 ‘Principles of liability’.
As noted in the introduction, the general position on liability is that public authorities
are liable in tort, contract and restitution in the same way as private individuals. This
position was not true of the Crown until Parliament passed the Crown Proceedings Act
1947, section 2(1) of which provides:
(1) Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in
tort to which, if it were a private person of full age and capacity, it would be subject:—
(a) in respect of torts committed by its servants or agents;
(b) in respect of any breach of those duties which a person owes to his servants or
agents at common law by reason of being their employer; and
(c) in respect of any breach of the duties attaching at common law to the ownership,
occupation, possession or control of property:
Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this
subsection in respect of any act or omission of a servant or agent of the Crown unless the
act or omission would apart from the provisions of this Act have given rise to a cause of
action in tort against that servant or agent or his estate.
It is important to note some important principles of law. First is that unlawful action
per se does not give rise to liability. It is necessary for a claimant to demonstrate
that unlawful action also constitutes a cause of action in tort in order for a claim for
compensation to succeed. See the recent decision of the Supreme Court in Lee-Hirons v
Secretary of State for Justice [2016] UKSC 46.
The most frequent torts that arise in relation to the exercise of public powers were
considered by Lord Browne-Wilkinson in X v Bedfordshire County Council [1995] 2 AC 633
at 730–731, when he said:
The question is whether, if Parliament has imposed a statutory duty on an authority to

carry out a particular function, a plaintiff who has suffered damage in consequence of
the authority’s performance or non-performance of that function has a right of action
in damages against the authority. It is important to distinguish such actions to recover
damages, based on a private law cause of action, from actions in public law to enforce the
due performance of statutory duties, now brought by way of judicial review. The breach of
a public law right by itself gives rise to no claim for damages. A claim for damages must be
based on a private law cause of action. […]
Private law claims for damages can be classified into four different categories, namely:
(A) actions for breach of statutory duty simpliciter (i.e. irrespective of carelessness); (B)
actions based solely on the careless performance of a statutory duty in the absence of
any other common law right of action; (C) actions based on a common law duty of care
arising either from the imposition of the statutory duty or from the performance of it; (D)
misfeasance in public office, i.e. the failure to exercise, or the exercise of, statutory powers
either with the intention to injure the plaintiff or in the knowledge that the conduct is
unlawful.
As we have already noted above, unlawful action alone does not give rise to an action
for damages in English law. It is now necessary to consider the other potential routes
to liability identified by Lord Browne-Wilkinson in order to analyse the scope of
liability that public authorities might face.
Activity 14.1
1. What is the basic position as regards liability of public authorities? Do they
enjoy any general immunity from private law claims?
2. Identify the main ways in which public authorities may face tortious liability for
the exercise of their statutory powers and the fulfilment (or non-fulfilment) of
their statutory duties.
3. Is there an automatic right to damages where unlawful action is demonstrated?
14.2 Routes to liability
14.2.1 Breach of statutory duty as a route to liability

In general it is not possible to claim damages where all that can be demonstrated is
a simple breach of statutory duty. In order for such a claim to succeed it would be
necessary to demonstrate that the statute concerned had created the duty for the
benefit of a particular class of claimant and that, if breached, it was intended that
those in the protected class would have a claim in compensation. This might only
be discovered by interpretation of the statute and the courts have generally taken
a restrictive approach. As such, it is difficult for a claimant to succeed in a claim for
breach of statutory duty simpliciter.
R v Deputy Prisoner of Parkhurst Prison ex p Hague [1991] 3 All ER 733 (HL) – The House of
Lords held that the Prison Act 1952 was an Act designed to facilitate the management
of prisons, rather than to protect prisoners per se, and therefore did not give rise to an
action for damages where it was claimed that its provisions had been breached. Note
the more general observation that there is a general assumption that Parliament does
not intend liability to flow from breach of statutory duty unless explicitly stated.
O’Rourke v Camden LBC [1997] 3 All ER 23 (HL) – The House of Lords held that the
provisions of the Housing Act 1985 in respect of housing the homeless did not give rise
to an action in damages where it was alleged that the provisions were breached.
Cullen v Chief Constable of the Royal Ulster Constabulary [2004] 2 All ER 237 (HL) – in a
case where the requirements of the Northern Ireland (Emergency Provisions) Act 1987
had been breached because no reasons had been given for delaying the right of the
claimant to have access to a solicitor when accused of an offence of terrorism, this did
not give rise to an action for damages.
Activity 14.2
1. Why do you think that the courts are reluctant to take an expansive approach to
liability for breach of statutory duty?
2. In light of the cases above, what would a claimant need to show in order to be
successful in an action for breach of statutory duty simpliciter?
3. Are there any factors that will almost certainly preclude an action for breach of
statutory duty from being successful?
14.2.2 Negligence as a route to liability

The tort of negligence is the most common route through which public authorities
might face liability. The thing to note about the law in this area is that it is extremely
complex and confusing. As we noted in the introduction to this chapter, one of the
major problems that the courts have to face is that more often than not, the claim
before them will somehow relate to the exercise of discretion, or the failure to
exercise a statutory power. In these circumstances, questions of justiciability and the
desire to avoid ‘second guessing’ decision-makers might come to the fore. If we return
to Lord Browne-Wilkinson’s judgment in X v Bedfordshire County Council [1995] 2 AC 633,
he summarises the main arguments put forward by claimants in the cases:
In this category, the claim alleges either that a statutory duty gives rise to a common law
duty of care owed to the plaintiff by the defendant to do or refrain from doing a particular
act or (more often) that in the course of carrying out a statutory duty the defendant has
brought about such a relationship between himself and the plaintiff as to give rise to a
duty of care at common law. A further variant is a claim by the plaintiff that, whether or
not the authority is itself under a duty of care to the plaintiff, its servant in the course of
performing the statutory function was under a common law duty of care for breach of
which the authority is vicariously liable. [at 736]
It is important to note that it is possible that the imposition of negligence liability, or,
indeed, liability in tort more generally, could have some positive and negative impacts
on the behaviour of public authorities. It is this issue that we will turn to first.
14.3 The possible benefits and risks of imposing liability
Essential reading
¢¢ Craig, P. and D. Fairgrieve ‘Barrett, negligence and discretionary powers’ (1999)
If we consider the broad benefits and risks of imposing liability, we might summarise
them in the table below.
Potential benefits Potential risks

Is a more effective form of ‘corrective justice’ where If the law is too permissive and allows actions to be
unlawful action has led to economic loss, as the public brought too readily against public authorities, there
law remedies can’t deliver compensation. may be an excessive number of claims (floodgates
argument).
Imposition of liability might avoid ‘moral hazard’ (where When public authorities are found to be liable in tort,
public authorities might be unconcerned about damage the cost of remedy is borne by the public purse, thus
caused by wrongful acts as they do not bear the cost). increasing the cost of public administration.
Public authorities might be more cautious in the Public authorities might change their behaviour
exercise of their powers if they face potential liability in undesirable ways (such as by using their powers
and this might consequently improve the quality of defensively, or allocating excessive amounts of resource
public decision-making. into issues that are perceived to be ‘high risk’) if liability
is readily imposed.
It might be argued that the absence of potential liability The imposition of liability in tort might offend the
for public authorities means that judicial control of separation of powers and raise allegations of improper
wrongful acts is not sufficient. judicial interference with the exercise of discretionary
power.
Judges have addressed these issues in the case law. You may find it helpful to read the
judgments in Hill v Chief Constable of West Yorkshire [1989] 3 All ER 449 or X v Bedfordshire
County Council [1995] 2 AC 633, where the Law Lords consider some of the policy
arguments surrounding the imposition of negligence liability on public authorities.
The decision in Hill (which concerned the question of whether the police owe a
duty of care to the public at large when they are investigating crimes) is particularly
instructive, as the Lords consider the policy issues in some detail.
Activity 14.3
1. What benefits might the imposition of liability in tort on public authorities
bring?
2. What disadvantages might the imposition of liability in tort on public

authorities bring?
3. Find some examples from the case law that illustrate that the courts are aware
of the potential advantages and disadvantages of imposing tort liability on
public authorities.
14.4 Some basic principles on negligence liability

The tort of negligence has the same basic elements when a claimant is pursuing a
public authority as it has in all other circumstances. The touchstone of liability is the
duty of care and this is where much of the difficulty arises. The courts have generally
held that in order to determine whether a public authority owes a duty of care to
the public at large or a particular individual or class of individuals, it is necessary to
interpret the statutory duty or power concerned. In trying to determine whether or
not a duty of care is owed, the courts have adopted a number of different approaches.
Home Office v Dorset Yacht Club [1970] AC 728 – in this case it was held that the Home
Office could be vicariously liable for the failure of prison officers (who fell asleep) to
control the group of boys in their charge, which led to damage to the Dorset Yacht
Club’s yachts. This case is perhaps most significant for suggesting what became known
as the policy/operational dichotomy, where it was held that public authorities will not
ordinarily owe a duty of care for policy decisions, but will owe a duty of care in relation
to operational errors.
Hill v Chief Constable of West Yorkshire [1989] 3 All ER 449 – this case established that
some public functions, such as the general investigatory powers of the police, were of
such a nature that they had a ‘blanket immunity’ from liability and it could not be said
that the police owed a duty of care to the public at large in such cases.
Stovin v Wise and Norfolk CC [1996] 3 All ER 801 (HL) and Gorringe v Calderdale MBC
[2004] UKHL 15 – where the claim concerns the non-exercise of a statutory power
(both of these concerned the decisions of relevant authorities not to carry out road
improvements, or to delay them) then no duty of care will ordinarily exist. The
decision over whether to exercise a statutory power is ordinarily seen to be one for
the authority concerned and a failure to exercise that power, even where a particular
risk might have been acknowledged, will not lead to liability.
X v Bedfordshire County Council [1995] 2 AC 633 – in negligence cases, it is necessary

to consider the statutory framework in order to determine whether a duty of care
exists. In this case, it was held that no duty of care was owed to the claimants who
were bringing claims in respect of decisions in relation to child protection, as it was
held that statutes which created duties for the promotion of social welfare should not
automatically be considered to create a duty of care towards individuals.
14.4.1 Classes of claimant

Even if it is held that a duty of care exists towards a certain class of claimant, it is likely
that the scope of the duty of care will be interpreted restrictively.
JD v East Berkshire Community Health NHS Trust [2005] UKHL 23 – even where it was
held that a girl could recover damages resulting from the negligent diagnoses of
doctors which led to the girl’s father being accused of child abuse and affected their
relationship accordingly, the interpretation of the statute led the Lords to find that the
father did not have a claim, as the purpose of the statute was to protect children and
not their parents.
Jain v Trent Strategic Health Authority [2009] UKHL 4 – where a care home was closed
down as a result of a negligent inspection by a health authority, the owners of the care
home did not have a claim in negligence, as an interpretation of the statute which
granted powers of closure led to the conclusion that if the statute created a duty of
care to anyone, it was the residents of the home and not the owners.
14.4.2 The ‘unruly horse’ of the duty of care

Some case law in the late 1990s brought into question the appropriateness of some of
the case law on the duty of care, particularly that on ‘blanket immunities’.
Osman v Ferguson [1993] 4 All ER 344.
Osman v UK (1998) 5 BHRC 293 (European Court of Human Rights)
Barrett v Enfield LBC [1999] 3 All ER 193 (HL)
In the Osman case, the High Court applied Hill to a case brought by a family where a
father had been murdered by his son’s teacher. Their claim was that the police had
been negligent in investigating previous complaints made by the family regarding
the teacher’s behaviour. In applying Hill, the case was struck out. The family went
to the Court of Human Rights, which found that the striking out of their case was a
breach of Article 6 of the European Convention of Human Rights (ECHR). Although
the House of Lords in Barrett had doubts about the correctness of the decision of the
Court of Human Rights in Osman, there was an effort to change approach, removing
the blanket immunity in Hill, suggesting that the courts should be less willing to strike
out negligence claims against public authorities and that the courts should, rather
than using a ‘blanket immunity’ use the ‘fair, just and reasonable’ test from Caparo v
Dickman [1990] 2 AC 605 to determine whether a duty of care should be owed.
14.4.3 Has Barrett made a difference?

Although it is difficult to appraise the precise impact of Barrett, it might be argued that
subsequent cases (and, indeed, the finding that there was no duty of care in Barrett
itself) would suggest that the approach of the courts to the duty of care owed by
public authorities is still restrictive.
Phelps v London Borough of Hillingdon [2000] 4 All ER 504.
Brooks v Metropolitan Police Commissioner [2005] 2 All ER 489 (HL).
JD v East Berkshire Community Health NHS Trust [2005] UKHL 23.
Van Colle v Chief Constable of Hertfordshire and Smith v Chief Constable of Sussex [2008]
UKHL 50.
Jain v Trent Strategic Health Authority [2009] UKHL 4.
Michael & Others v The Chief Constable of South Wales Police [2015] UKSC 2.
In all of the above cases (of which JD is perhaps the most useful to read, although Van
Colle/Smith is also very instructive) other than Phelps, it was ultimately held that no
duty of care was owed to at least some of the claimants, regardless of the blanket
immunity being lifted.
Activity 14.4
1. How do the courts decide whether a public authority owes a duty of care to a
particular claimant?
2. Can you see any weaknesses in the reliance on the policy/operational dichotomy
suggested in Home Office v Dorset Yacht Club [1970] AC 728 to determine whether
or not a duty of care is owed?
3. Do you think that Barrett has made a substantial difference to the outcome of
most of the negligence claims brought against public authorities?
4. How does the question of ‘justiciability’ come into negligence cases? Consider
the decision in X v Bedfordshire County Council [1995] 2 AC 633. Why were the
Lords so reluctant to impose a duty of care in the child protection claims?
5. Do you think that the duty of care is an adequately certain basis for the liability
of public authorities in light of the case law above?
14.5 Could the law be reformed?
Further reading
¢¢ Du Bois, F. ‘Human rights and the tort liability of public authorities’ (2011) 127
¢¢ The Law Commission ‘Administrative redress: public bodies and the citizen’
Consultation Paper 187, The Law Commission, 2008. Part 3 ‘The current position
for redress’ and Part 4 ‘Liability in public and private law’.
¢¢ The Law Commission Administrative redress: public bodies and the citizen.
(London: The Stationery Office, 2010). Law Com No 322. [ISBN 9780102966244].
Part 3 ‘Private law’.
In JD v East Berkshire Community Health NHS Trust [2005] UKHL 23, Lord Bingham said:
[49] It would seem clear that the appellants’ claim would not be summarily dismissed in
France, where recovery depends on showing gross fault…Nor would they be summarily
dismissed in Germany where, it is said, some of the policy considerations which influenced
the House in X v Bedfordshire County Council were considered by those who framed §839
of the BGB and were rejected many years ago…Yet in neither of those countries have the
courts been flooded with claims. If, as some respected academic authorities suggested,
Barrett v Enfield London Borough Council [2001] 2 AC 550 shifted the emphasis of the
English courts from consideration of duty to consideration of breach…I would for
my part regard that shift as welcome, since the concept of duty has proved itself a
somewhat blunt instrument for dividing claims which ought reasonably to lead to
recovery from claims which ought not. But I should make it plain that if breach rather
than duty were to be the touchstone of recovery, no breach could be proved without
showing a very clear departure from ordinary standards of skill and care. It should be no
easier to succeed here than in France or Germany.
As such, Lord Bingham advocated a change to the approach to liability, towards that
adopted in many continental systems and in EU Law and the ECHR – i.e. a move away
from the duty of care and towards a focus on the seriousness of the breach in order
to determine whether liability should be imposed. Other than in cases involving
Human Rights Act damages, the best example perhaps being Van Colle v Chief Constable
of Hertfordshire [2008] UKHL 50, where the courts are required to consider the
seriousness of breach as the basis of liability, there has been no appetite for a change
to this approach.
Similarly, the Law Commission suggested a possible change to put the liability of
public authorities in negligence on a statutory footing, with the main element of
the test being the seriousness of the breach. Once again, this did not gain significant
backing and was not introduced.
Activity 14.5
1. Do you think that the law on the negligence liability of public authorities is in
need of reform? Are there any problems with the reliance on the duty of care as
the major determinant of liability?
2. Why do you think that the courts and the legislature have so far been reluctant
to reform the law on the liability of public authorities?
3. Outline the possible routes that might be used to reform the law on the
negligence liability of public authorities.
14.6 Misfeasance in public office
Further reading
¢¢ Aronson, M. ‘Misfeasance in public office: some unfinished business’ (2016) 132
The tort of misfeasance in public office is the main public law tort in English law, in
the sense that it can only apply to those who exercise public power. It is a tort that
requires some kind of wrongdoing by the tortfeasor, or at least recklessness as to
whether an action is unlawful.
Bourgoin v Ministry of Agriculture, Fisheries and Food [1986] QB 716.
Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 – creation of the
‘recklessness’ limb alongside the traditional ‘targeted malice’ test for misfeasance in
public office.
Official knows s/he has no

Targeted malice: power to do the act, or is
The use of power for an reckless as to whether s/he
improper purpose to has the power and is
cause harm. aware that the act will
injure, or will likely injure,
claimant.
Misfeasance
in public office
Figure 14.1 Types of misfeasance in public office

There are relatively few cases on the tort of misfeasance in public office, even
following the creation of a limb based on recklessness in Three Rivers, because it
remains exceptionally difficult to demonstrate that a public official acted with
knowledge of, or a reckless indifference to, a lack of power in the majority of cases.
Activity 14.6
1. Identify the routes through which a public official might become liable in the
tort of misfeasance in public office.
2. Why do you think that there are relatively few successful claims in the tort of
misfeasance in public office?
14.7 Human Rights Act damages
Essential reading
¢¢ Steele, J. ‘Damages in tort and under the Human Rights Act: remedial or functional
separation’ (2008) 67 Cambridge Law Journal 606 (available in the Online Library).
Further reading
¢¢ Varhaus, J. ‘Liability under the Human Rights Act 1998: the duty to protect life,
indirect victims and damages’ (2012) 71 Cambridge Law Journal 263 (available in
the Online Library).
One of the possible remedies where a breach of Convention rights is found by the
courts is the payment of Human Rights Act damages. The first thing that it is important
to note is that such damages are not based on a tortious measure – they are based on
the ‘just satisfaction’ principle under Article 41 of the ECHR. The courts have, over time,
begun to clarify the position on such damages and it is notable that the approach has
generally been relatively restrictive.
Anufrijeva v Southwark LBC [2004] 2 WLR 603 – in this case the Court of Appeal
suggested that Human Rights Act damages should be calculated on the same basis as
damages in tort. This has been subsequently rejected by later cases.
R v Secretary of State for the Home Department ex p Greenfield [2005] UKHL 14 – a prisoner
claimed Human Rights Act damages for a breach of Article 6 ECHR in relation to a
disciplinary hearing in a prison. Although it was accepted that there had been a breach
of Art. 6 ECHR, the House of Lords held that any payment of damages should be based
on the ‘just satisfaction’ principle in Art. 41 ECHR and that the determination of the
amount of damages should draw on the case law of the European Court of Human
Rights, which generally makes relatively modest awards. In this case, the House of
Lords held that no financial compensation should be paid, as ‘just satisfaction’ had
been achieved by the judicial acknowledgement of the breach and the granting of a
public law remedy to rectify the situation.
Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2 – a case involving the suicide
of a young woman. It was held that the hospital owed a duty under Art. 2 ECHR to
protect the woman in the circumstances of the case and there had been a sufficiently
serious breach to give rise to the need for compensation. The girl’s parents were
awarded £5,000 each, which is considerably lower than would have been awarded in a
claim in tort.
R (Faulkner) v Secretary of State for Justice [2013] UKSC 23 – in this case, prisoners argued
that there had been a breach of Art. 5 ECHR where the Parole Board had delayed
hearing their cases for release on licence following the expiry of their ‘tariff’ (i.e. the
minimum period that they were required to spend in prison before they could be
considered for release on licence). The House of Lords decided that there had been no
breach of Article 5 in this case and reiterated the position in Greenfield in terms of the
award and measure of Human Rights Act damages.
Activity 14.7
1. What does a claimant need to demonstrate in order for a court to consider the
award of damages under the Human Rights Act 1998?
2. What are the major principles that underpin the award of damages under the
Human Rights Act 1998?
3. Do you think that the award of Human Rights Act damages should follow the
‘just satisfaction’ principle contained in Art. 41 of the ECHR, or would it be
preferable to follow the compensatory approach in tort law? Steele’s article,
cited above, will help you to answer this question.
14.8 The law of restitution
Further reading
¢¢ Craig, paras 30-053–30-061.
¢¢ Alder, J. ‘Restitution in public law: bearing the cost of unlawful state action’
(2002) 22 Legal Studies 165.
The law of restitution has a relatively limited impact when applied to public
authorities, but it may in some circumstances allow the recovery of monies paid to
public authorities as a result of an error of fact or law. In general, this situation arises
where taxes or other charges have been paid to a public authority and the claimant
then seeks to recover these once an error is realised.
Deutsche Morgan Grenfell Group Plc v Inland Revenue Commissioners [2007] 1 AC 558 –
this case allowed recovery of taxes paid under a statutory regime that was ultimately
found to be contrary to EU law.
In reality, the law of restitution as it applies to public authorities is a very complex one
and you are not required to know it in great detail. It is, however, important to have
knowledge of the fact that public authorities might be subject to claim in restitution
in appropriate circumstances.

this chapter:
1. Liability in private law is an important form of accountability for public authorities.

It allows claimants to seek financial remedies that are not available through
judicial review unless the claimant can demonstrate a cause of action in private
law.
2. Many of the challenges that apply to judicial review (questions of institutional

capacity, justiciability and so on) also apply to actions in tort against public
authorities. Furthermore, careful consideration needs to be given to the policy
implications of imposing liability, even though the imposition of liability on public
authorities may bring some advantages.
3. The main route for the liability of public authorities is through the law of tort and
particularly the tort of negligence. There is considerable uncertainty over when a
duty of care will be owed by a public authority and also to whom that duty might
be owed.
4. Judges and the Law Commission have suggested that it might be preferable to
reform the law on the negligence liability of public authorities, moving away from
the duty of care as the main touchstone of liability and focusing instead on the
seriousness of the breach.
5. The approach to damages under the Human Rights Act 1998 is based on the ‘just
satisfaction’ principle contained in Article 41 of the Convention, and damages are
generally modest when compared to those paid to successful claimants in tort
cases.
6. The law of restitution is a potential route for the recovery of monies paid to a
public authority as a result of an error of fact or law. The case law in this area is
complex and predominantly arises in relation to tax matters.
Notes
15 European and comparative influences
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
15.1 Influences on the standard of and approaches to judicial review . . . . 151

Introduction
Rather than introducing lots of new ideas, as the previous chapters have sought
to do, this chapter asks you to pull together what you have learned and examine
the influence that European Law has had on the administrative law of England and
Wales. If you reflect on your studies so far, you should see that the influence has been
substantial and has predominantly come from two routes – either from the European
Convention on Human Rights and the jurisprudence of the European Court of Human
Rights (this has been substantially accelerated since the Human Rights Act 1998
came into force) or through European Union law, which is given effect in the United
Kingdom by the European Communities Act 1972. It may be that the influence of
European Union law is removed or substantially reduced after Brexit, but we cannot
yet be certain of the impact of this because we do not yet know the nature of the
United Kingdom’s exit from the European Union. If the United Kingdom remains a part
of the European Economic Area or the European Free Trade Area then it is likely that
the jurisprudence of the Court of Justice of the European Union will continue to have a
significant impact.
As a contrast, it might be argued that despite the common law’s strong links with
the law of the Commonwealth, the jurisprudence of the Commonwealth courts has
generally been less influential on administrative law in England and Wales. However,
it is possible to see some influences and it may be that such influence will grow in the
future, particularly if the United Kingdom system is more isolated from Europe due to
its departure from the European Union. However, although it might be argued that the
impact of Commonwealth jurisprudence is not as profound as that of European law,
we can still identify clear evidence of the impact in some areas.
Learning outcomes
be able to:
uu Describe and explain the role of European Law (the law of the European Union,
the European Convention on Human Rights and the jurisprudence of the Court
of Justice of the European Union and European Court of Human Rights) in the
development of judicial review in England and Wales.
uu Analyse the impact of European law on the development of judicial review in
England and Wales.
uu Consider the likely influence of other legal systems, particularly from the
Commonwealth, on the development of administrative law in England and
Wales.
Essential reading
¢¢ Birkinshaw, Chapter 8 ‘Principles of review’ (available on the VLE).
Further reading
¢¢ Cane, P. Controlling administrative power: a historical comparison. (Cambridge:
Cambridge University Press, 2016) [ISBN 9781316601501].
¢¢ Schwarze, J. ‘Judicial review of European administrative procedure’ (2004) Public

Law 146.
Strasbourg’ (2002) Public Law 265.
¢¢ Anthony, G. ‘Clustered convergence? European fundamental rights standards in

Irish and UK public law’ (2004) Public Law 283.
Administrative law 15 European and comparative influences page 151
15.1 Influences on the standard of and approaches to judicial

review
The standard of review has arguably been influenced by European law in a number
of ways. It is useful to be able to identify the influence that European law has had in
a number of areas. Examples might include the approach to the intensity of review,
the use of the proportionality test, the development of various aspects of procedural
fairness, the growth of the substantive legitimate expectation concept and a variety
of other possibilities, including the influence on the judicial debate about the
tortious liability of public authorities. You have studied all of these issues separately
throughout this guide – it is now helpful to try and draw these issues together in order
to appraise the impact of European law.
15.1.1 The approach to the proportionality test and the intensity of

judicial review
It was noted in Chapter 9 that the courts’ approach to the proportionality test and
the intensity of judicial review have been influenced by European law (both European
Union law and the European Convention on Human Rights) particularly following the
coming into force of the Human Rights Act 1998. It would be a good idea to revisit the
material covered in Chapter 9 here, but consider the following cases for examples of
how European law may have had an influence.
R v Secretary of State for Health ex parte Eastside Cheese Co [1999] 3 CMLR 123.
R v Secretary of State for the Home Department, ex parte Simms [1999] 3 All ER 400.
R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26.
Kennedy v Information Commissioner [2014] UKSC 20; [2015] AC 455.
Bank Mellat v HM Treasury [2013] UKSC 39; [2014] AC 700.
Lumsdon v Legal Services Board [2015] UKSC 41.
Activity 15.1
1. Consider the impact of European law on the development of the proportionality
test in the law on judicial review in England and Wales.
2. Can it be said that there is some ‘cross-fertilisation’ of the approach in

proportionality cases and in the approach to judicial review in cases where the
test of Wednesbury unreasonableness is applied? (You may find it helpful to
consider the decision in Kennedy and particularly the judgment of Lord Mance in
your answer to this question.)
It should also be noted that some jurisprudence of the Commonwealth courts has
also had an impact on the approach towards proportionality and the intensity of the
standard of review. A case of the Privy Council is often cited in proportionality cases,
and in the case of Bank Mellat Lord Reed discussed in some detail the approach of the
Commonwealth courts to proportionality in order to consider the test in a common
law context.
de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing

[1999] 1 AC 69.
Bank Mellat v HM Treasury [2013] UKSC 39; [2014] AC 700.
Activity 15.2
1. What is the impact of Commonwealth law on the development of the
proportionality test? Why do you think that the courts make reference to
Commonwealth jurisprudence?
15.1.2 The development of the approach to procedural fairness

In Chapter 11, you were asked to consider a number of ways in which European law,
and in particular the approach of the European Court of Human Rights to Article 6
ECHR, has impacted on the approach of the courts to procedural fairness. That chapter
identified a number of areas where the Convention has had an impact on European
law, so it would be helpful for you to revisit this material and assess the impact that
has been made.
Activity 15.3
1. Return to the study of Chapter 11 and consider the ways in which the European
Convention on Human Rights has had an impact on the following issues:
uu The right to oral hearings.
uu The legal representation of prisoners in prison disciplinary hearings.
uu The duty to give reasons.
uu The rule against bias and in particular the approach to bias in cases where
there are administrative appeals.
15.1.3 The legitimate expectation principle

In Chapter 10 you were asked to consider the development of the legitimate
expectation principle. Although we might argue that the principle may have its roots
in the law of equity and the concept of estoppel, it seems evident that the more recent
case law on legitimate expectation has developed a view of the concept that is much
closer to that in European law, particularly that of European Union law.
R v Ministry of Agriculture, Fisheries and Food, ex parte Hamble [1995] 2 All ER 714.
R v North and East Devon Health Authority, ex parte Coughlan [2000] 3 All ER 850.
Activity 15.4
1. Read the two cases outlined above. Consider the way in which the courts have
developed the law on legitimate expectation in line with the fairness principle
adopted in legitimate expectation cases in the Court of Justice of the European
Union.
15.1.4 The approach to negligence liability

In Chapter 14 you were asked to consider the judicial approach to the negligence
liability of public authorities. You were also asked to assess the approach of the
courts to damages under the Human Rights Act 1998. It is notable that these issues
have come together in the sense that they have prompted a judicial debate over the
appropriate approach to liability – should it be concerned with the breach of a duty of
care, or the seriousness of the breach?
JD v East Berkshire Community Health NHS Trust [2005] UKHL 23.
Van Colle v Chief Constable of Hertfordshire and Smith v Chief Constable of Sussex [2008]
UKHL 50.
Jain v Trent Strategic Health Authority [2009] UKHL 4.
Activity 15.5
1. Consider the judgment of Lord Bingham in JD and the later decision of the House
of Lords in Van Colle. What influence has European law had on the development
of the law on the liability of public authorities in negligence?
15.1.5 The tort of misfeasance in public office

In Chapter 14 you were also asked to consider the development of the tort of
misfeasance in public office and, in particular, the decision of the House of Lords in
Administrative law 15 European and comparative influences page 153
Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1. This decision considers
the law in Australia, New Zealand and Canada as it develops English law to allow
misfeasance in public office claims in relation to reckless acts of public officials.
Activity 15.6
1. Read the judgment in Three Rivers District Council v Bank of England (No 3) [2003]
2 AC 1. How important was the consideration of the Commonwealth decisions to
the ultimate outcome in the case?

this chapter:
1. Administrative law in England and Wales has generally been open to the
consideration of jurisprudence from other jurisdictions in order to develop
the law. The main sources of influence have been European law (due to the
pathways created by European Union law and the Human Rights Act 1998) and
Commonwealth jurisprudence, which is a potential source of comparative
common law approaches.
2. We can identify a number of areas where European law or the law of the
Commonwealth have influenced the development of English law in relation to
judicial review or the liability of public authorities in private law. You can identify
these by reflecting on your studies in previous chapters.
3. Administrative law throughout the world generally seeks to deal with a common
problem – delivering the accountability of public decision-makers. In such
circumstances, it is likely to be instructive to try and learn from the approach
adopted in other jurisdictions.
Notes

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Administrative law

Published by: University of London

Part I Administrative law, public authorities and decision-making processes 1

2 Administrative law and constitutional theory . . . . . . . . . . . . . . 11

3 Public authorities and public power . . . . . . . . . . . . . . . . . . . 21

Part II Judicial review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

4 The nature of administrative decision-making . . . . . . . . . . . . . 29

5 The nature of judicial review . . . . . . . . . . . . . . . . . . . . . . . 39

6 Access to judicial review and remedies . . . . . . . . . . . . . . . . . 49

7 The availability of judicial review . . . . . . . . . . . . . . . . . . . . 61

9 Irrationality, Wednesbury unreasonableness and proportionality

10 Legitimate expectations and equality . . . . . . . . . . . . . . . . . . 97

11 Procedural fairness . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

Part III Other methods of grievance redress . . . . . . . . . . . . . . . . 123

13 Tribunals and inquiries . . . . . . . . . . . . . . . . . . . . . . . . . 131

14 Liability in private law . . . . . . . . . . . . . . . . . . . . . . . . . 137

15 European and comparative influences . . . . . . . . . . . . . . . . . 149

Courses on which this module is offered

Notional study time

MODULE PURPOSE AND OVERVIEW

LEARNING OUTCOMES: KNOWLEDGE

1. Understand the key principles of judicial review;

4. Explain and offer a critical analysis of non-court-based forms of control of

LEARNING OUTCOMES: SKILLS

1. Evaluate and critique standard legal materials and arguments;

2. Engage in research in primary and secondary materials in order to build an

3. Apply the knowledge acquired in the module to respond to moderately complex

4. Construct coherent and accurate responses to self-test questions drawing on

BENCHMARK FOR LEARNING OUTCOMES

(c) Processes in public administration: legislation and delegated legislation. Discretion.

(g) Tribunals. The function, constitution and procedure of tribunals.

LEARNING AND TEACHING

The Laws Virtual Learning Environment

uu a complete version of the module guide;

uu online audio presentations;

uu past examination papers and reports;

uu Computer Marked Assessments – multiple choice questions with feedback

The Online Library

uu the professional legal databases LexisLibrary and Westlaw;

uu cases and up-to-date statutes;

uu key academic law journals;

uu links to important websites.

¢¢ Endicott, T. Administrative law (Oxford: Oxford University Press, 2018) fourth

1.2 Aims of this module guide . . . . . . . . . . . . . . . . . . . . . . . . . 3

1.3 Supporting your learning . . . . . . . . . . . . . . . . . . . . . . . . . 4

1.4 The reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1.5 Time spent studying . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1.6 The assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1.7 Some final words . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1.1 Why is administrative law important?

It is possible to think about administrative law in many ways. In functional terms,

1.2 Aims of this module guide

3. Offer a critical analysis of administrative law from a functional perspective.

1.3 Supporting your learning

1.4 The reading

2. Read the textbook, in order to gain a clear understanding of the background to

1.4.1 The core textbook

1.4.2 Additional textbooks

¢¢ Harlow, C. and R. Rawlings Law and administration (Cambridge: Cambridge

¢¢ Wade, W. and C. Forsyth Administrative law (Oxford: Oxford University Press,

1.4.3 Practitioners’ texts

¢¢ Fordham, M. Judicial review handbook (Oxford: Hart Publishing, 2012) sixth

1.4.4 Case books