Judicial Review (5)

In this lecture we focus on two topics: (a) legitimate expectation as a ground of review and (b) the
judicial review procedure or ‘Application for Judicial Review’ (previously outlined in the first lecture on
the subject).

1. Legitimate Expectation

Rawlings: ‘cutting edge’ field in that it’s a rapidly developing area of judicial development. It’s also
controversial; it’s not the same but is akin to estoppel.

Q: you are dealing with a PA. Perhaps you’re talking about a planning matter. Official from the PA makes
a promise about the way the PA is going to act. Later on the PA would like to go back on that promise.
Alternatively, you haven’t got a clear promise but there’s been a course of dealing over time either
involving you or other people in the same position. You rely on that course of dealing and at some point
in the future, PA says we’re not going to be bound by that course of dealing.

Can you review the PA here? (an official going back on promise or change of course of dealing

Competing considerations here:

For:

 Legal certainty (PA shouldn’t be allowed to change its mind)

 individual hardship (especially where there is reliance and detriment)
 trickery (defence against trickery by PA)

Against:

 Administrative flexibility-responsiveness
o Contexts change; what may be appropriate at one time may not be even a short time
period after. E.g. just think about the public expenditure deficit –
promises/understandings which may have been built up in the preceding ‘good years’
may not be viable as authorities are required to limit their budgets.
 ‘the democratic twist’
o Promises may be built up when one party is on power, should the government change,
previous expectations are likely to be dashed.
o We’d want to be wary of a legal doctrine which would prevent an incoming government
or LA from changing policy; it’s what people have voted for.
 Third-party considerations
o E.g. with a planning permission, suppose you’re led to believe that the PA will reject
your application if you add an extra storey to your house in your plans. That expectation
for instance may affect the interests of your neighbours (the TP’s here)

Courts have wrangled with these competing considerations and over the last 30 years or so, we really
see the doctrine of legitimate expectations taking off and being elaborated.
(a) Procedural legitimate expectation – the ‘easier’ bit!

A-G of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 (Breakthrough case)

The then colonial government in HK announces that people who have illegally entered HK from
mainland China should come forward and their case will be considered on the merits; family
consideration, extent of consideration etc…, and those people will be given a chance to be heard and
their situation would either be regularised or sent back.

People come forward and the colonial government then shifts ground and says we’re not going to listen
to your cases.

The argument here is that a legitimate (understandable and acceptable) expectation has been raised
that these people will have a fair hearing before they’re sent back.

PC very firmly thinks the colonial government has been double dealing here.

Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 (per Lord Diplock)

Dealing case. We know that in the end they lost because of considerations of national security.
Argument was that before you tell us we can’t be members of a national trade union, we should be
consulted. Why? Because there’s a standard course of dealing that when terms and conditions of union
membership will be changed, the union will be consulted first.

Court says yes there is a legit expectation. Nonetheless, here it was trumped by the national security
consideration.

(b) Substantive legitimate expectation.

A more tricky area is that of substantive legitimate expectation; where you’ve been promised something
of substance and now the official wants to go back on that promise or course of dealing.

If we go back to the 90s, we see the courts nibbling at this idea. Some brave judges saying we should
have the doctrine others saying it’s going too far. Matters come to a head in Coughlan. (note: This is still
the leading case)

R. v. North and East Devon Health Authority, ex p. Coughlan [2000] 2 WLR 622:

Note: The case just predates the operation of the HRA so courts clearly know about it but it’s not
applicable here.

The case concerns an old lady living in her own property. At some point, (the case proceeds on the
assumption that this is true) she was persuaded to give up her own home and move into the LA’s
residential home on the basis that this would be a ‘home for life’. It is clear the social workers are using
phrases along these lines and generally being encouraging and persuading her to move into the home.
Some years later, she and a number of other residents in this residential home are faced with the
closure of the home. The health authority has a number of these residential homes and they’re a bit old-
fashioned, so they want to close a number of them and concentrate its work in a new modern facility.
The exact plans remain a bit murky. (This does seem to influence the court a bit)

Mrs Coughlan and her lawyers get to know about the closure. Question for us is whether she can say
you can’t close this home because you made me a promise that this would be a home for life. Seems to
be quite a bold argument as if it wins, health authority is going to have to keep that home open for the
foreseeable future.

There are a dwindling number of residents in this residential home because the health authority isn’t
putting new people in.

Lurking in the background, there are some comparisons to YL v Birmingham (different as HR case and
about private care home. Here, pre HRA and PA run home – but clearly floating around, there’s medical
evidence that moving her may have a severe effect on her health. She’s that vulnerable. In that sense,
she’s a bit like YL. Notice HRA not in operation. If it was, she’d have been covered. Can CL step in?)

Lord Woolf in the CA:

There are at least three possible outcomes.

(a) The court may decide that the public authority is only required to bear in mind its previous
policy or other representation, giving it the weight it thinks right, but no more, before deciding
whether to change course. Here the court is confined to reviewing the decision on Wednesbury
grounds….

(b) On the other hand the court may decide that the promise or practice induces a legitimate
expectation of, for example, being consulted before a particular decision is taken. Here it is
uncontentious that the court itself will require the opportunity for consultation to be given
unless there is an overriding reason to resile from it (see A-G for Hong Kong v Ng Yuen Shiu) in
which case the court will itself judge the adequacy of the reason advanced for the change of
policy, taking into account what fairness requires.

(c) Where the court considers that a lawful promise or practice has induced a legitimate
expectation of a benefit which is substantive, not simply procedural, authority now establishes
that here too the court will in a proper case decide whether to frustrate the expectation is so
unfair that to take a new and different course will amount to an abuse of power. Here, once the
legitimacy of the expectation is established, the court will have the task of weighing the
requirements of fairness against any overriding interest relied upon for the change of policy.

The court having decided which of the categories is appropriate, the court’s role in the case of
the second and third categories is different from that in the first.
 In the case of the first, the court is restricted to reviewing the decision on conventional grounds.
The test will be rationality and whether the public body has given proper weight to the
implications of not fulfilling the promise.

In the case of the second category the court’s task is the conventional one of determining
whether the decision was procedurally fair.

In the case of the third, the court has when necessary to determine whether there is a sufficient
overriding interest to justify a departure from what has been previously promised.

So it seems in some cases, where to “frustrate the expectation” is so unfair it amounts to “an abuse of
power”, the court has the extra task of weighing the requirement of fairness against the need for a
change in policy.

There are two big questions then:

1. How do we know whether a substantive expectation case falls into (a) or (c), with the dramatic
difference being that the former is susceptible to Wednesbury review but the latter to an extra,
intrusive test.
2. If we find ourselves in category (c), how does the court do its balancing exercise? What are the
relevant considerations?

Lord Woolf gives minimal guidance to both these questions:

In Coughlan, he says it is a category (a) case as the expectation is very important to her and to resile on
it so unfair as to amount to an abuse of power. During the balancing exercise, he comes out in her
favour noting amongst other things that from the point of view of the LA, it is only a question of money.
So he seems to downplay the consideration of resource allocation and Coughlan wins. It’s a very striking
case.

We need to look at subsequent developments in the case law: The ground of a substantive legitimate
expectation is distinctly recognised but the courts have been reluctant to develop it much further. It will
be interesting to see how the courts run with it in the age of austerity and it is certain that we can
anticipate similar cases coming along.

Note: With regards to remedies, remedies in JR are discretionary. So this is often used to balance the
interests of the individual against that of the community and third parties.

R. v. Secretary of State for Education ex p. Begbie [2000] 2 WLR 1115

R (Bibi) v. Newham LBC [2002] 1 WLR 237

Refugees living in temp housing and they would like permanent housing from the LA. The LA looks at the
case law and it believes it’s under a duty to jump these people to the top of the housing waiting list and
give them permanent accommodation. Turns out, (as a result of a subsequent HL ruling) that it’s a
mistake. They are under a continuing duty to have such people on a waiting list but they don’t have this
super prioritisation.

The refugee family, the bibi’s are clearly disappointed. They argue they have a substantive legitimate
expectation. They’ve been told by LA they’re at the top of the waiting list they now find they’re some
way from the top. The question here is whether the court will enforce this substantive legitimate
expectation against Newham LBC.

It’s clearly quite a difficult case as against this expectation are issues of resource allocation and the
interests of third parties.

HC judge says that the substantive legitimate expectation should stand and they should be on top of the
list.

CA however say they don’t want to give a remedy that goes that far. They say that we are remitting this
case to the LA and the LA must consider it afresh giving “weight” to the substantive legitimate
expectation. So it doesn’t in terms say these people must go to the top but gives them an advantage in
the on-going allocation situation. Kind of a middle of the way substantive legit expectation case.

Naharajah Abdi v. Secretary of State for the Home Department [2005] EWCA Civ 1363 (Laws LJ at
paragraph 42):

Proportionality will be judged, as it is generally to be judged, by the respective force of the

competing interests arising in the case.

Thus where the representation relied on amounts to an unambiguous promise; where there is
detrimental reliance; where the promise is made to an individual or specific group; these are
instances where denial of the expectation is likely to be harder to justify as a proportionate
measure…

On the other hand where the government decision-maker is concerned to raise wide-ranging or
"macro-political" issues of policy, the expectation's enforcement in the courts will encounter a
steeper climb.

All these considerations, whatever their direction, are pointers not rules. The balance between
an individual's fair treatment in particular circumstances, and the vindication of other ends
having a proper claim on the public interest (which is the essential dilemma posed by the law of
legitimate expectation) is not precisely calculable, its measurement not exact. It is no surprise
that, as I ventured to suggest in Begbie, "the first and third categories explained in the Coughlan
case… are not hermetically sealed". These cases have to be judged in the round.

This judgment is interesting because Laws LJ imports proportionality as a way of testing substantive
legitimate expectations in Lord Woolf’s category (c). Woolf doesn’t explicitly use the word
proportionality but that’s clearly how Laws interprets it. He then goes on to give us more of an
understanding as to how that proportionality test should apply in the category.
Essentially, the more specific the promise, the greater the detrimental reliance, the more likely the court
will uphold the promise. On the other hand, the greater the policy considerations, the less likely the
expectation will be enforceable.

Notice he says the balance is not exactly calculable.

R(Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755

R(Bancoult) v Foreign and Commonwealth Secretary (No 2) [2008] UKHL 61

The case concerns some Chegos islanders. The question is whether the government ever gave them an
assurance whether they’d be able to go back to their islands in the Indian oceans when they’d been
evicted in the 60s. Courts split 3-2 whether the promise had actually been made and decided against the
islanders.

2. The Application for Judicial Review

Organisational development

A. Old style

- Divisional Court and prerogative orders (and declaration and injunction)

- ‘Ad hoc and piecemeal’

If you look back to the 70s, we’re dealing with a system which was the product of ‘ad hoc and
piecemeal’ development over the centuries. There are 3 big things to take note of.

1. Relatively little JR of course as that fits with the model of restraint. (I.e. the time of Wednesbury.
This was only just after Ridge v Baldwin etc…)
a. The arguments being made goes to something called the divisional court (part of WB
division) headed by LCJ with 2 flanking judges. Relatively small number of cases but they
did go to the LCJ.
2. This is the era of the prerogative orders. Remember old style remedies (quash, prohibit, require
– note latin terms)
3. Because those orders had developed over the centuries, they were just surrounded by a jungle
of technical rules.
a. Different time limits etc. what u could get in terms of document discovery for instance
varied.

B. Reform phase 1: Development of the AJR procedure (1977-1981)

- ‘The shadow of Dicey…..’

- Reworking of ‘Order 53 procedure’: AJR as umbrella procedure
- Supreme Court Act 1981, s. 31
- The ‘Crown Office list’
During the late 70s, there were some reforms attempting to modernise procedures making sure it is fit
for the purpose as the grounds of review expand. Note that we still have the same Latin terminology
here. Also, recall Dicey saying we’re different from the French in that we don’t have a clear cut
distinction between public and private law. The ordinary courts in our jurisdiction do it all. So the
divisional court did the so-called ‘public law’ cases, but handled private cases as well.

C. Reform phase 2: The Administrative Court and the CPR (2000)

- ‘The shadow of the HRA…’

- And note the change of nomenclature:
o ‘quashing order’ [certiorari]
o ‘mandatory order’ [mandamus]
o ‘prohibiting order’ [prohibition]

D. Reform phase 3: tribunal reform and regionalisation

- Tribunals, Courts and Enforcement Act 2007

- Generic First-tier Tribunal
- Upper Tribunal with a statute-based ‘judicial review’ jurisdiction
- R. (C) v Upper Tribunal [2010] EWCA Civ 859
- May Committee, Justice outside London (2007).
- Cardiff; Birmingham, Manchester, Leeds (2009)

Summary of Phases C and D: We had had repeated bouts of reform of the procedure.

- 2 big themes
o Increasing specialisation
 Emphasised in the fact of an administrative court as part of the high court
 Haven’t gone completely anti-dicey in that the administrative court is part of the
ordinary court structure. (not a divided court structure of the type dicey was so
concerned about drawing upon the French experience)
o Repeated efforts of modernisation
 AJR as an umbrella procedure
 Sweeping away of certain terminologies
- Where we ended up was with 2 particular changes late on in NL
o Reform of tribunal system
 Knock on effect for JR
- Regionalisation
o All the way till 09, all JR cases were being heard in the HC in London with very rare
exceptions
o Centralised model which reflects the idea of HR as a control over central government.
o Statistics indicated it was really skewing things with regards to access to justice.
 o Begs the question; if JR is for people against the state, it doesn’t seem to be doing much
for those outside London

A staged process:

As noted previously, in England and Wales we operate on the basis of ‘permission’ (formerly ‘leave’) to
seek judicial review (‘filter stage’).

Remember too that the process now also includes arrangements for forced interaction between the
parties, centred on a ‘pre-litigation protocol’.

 Code of guidance as to what you should be doing if you are a JR regulator even before you come
to court
 Sanctioned through cost orders
 It’s about trying to get the claimant and PB engaging in correspondence ahead of any court
proceedings first with a view to settlement and also to crystallise the issues so by the time it
goes to court, the judge can seize on the issues intention
 Been in operation for the last decade
 Difficult to gauge how effective it is

The second stage is thus the first formal court stage. The courts have developed a number of checks at
this stage; some have also been inserted by Parliament. So it is a mix of CL and statute.

This ‘filter’ stage involves various grounds of refusal:

 Insufficiently arguable case

o This is the most important filtering requirement. The problem is, what an ‘arguable case’
is, is itself contentious. Has it got to be a case that is likely to win or can it be any case
that has a remote hope?
o What we see over time is the courts adjusting what they mean by ‘arguable’ and today it
is fair to say they are tougher than they may have been 10 or 20 years ago.
o One explanation of this is the increase in caseload which the courts have in JR. Does
seem to be a correlation b/w the number of requests and the toughness
o Second point is the scale of judicial discretion here. Typically these will be decided by a
single judge on the papers.
o There is research which shows that different judges have different attitudes to the
allowing of permission with some taking a hard line and some a liberal line.
o So there is an element here of judicial lottery. So it does matter to whom the papers are
sent.

 delay (three months’ time-limit as the ‘default’ position)

o Time limits in JR are very sharp indeed. The default position is 3 months. To get more
than 3 months b/w actually knowing of the grounds of making a claim and actually filing
papers is very difficult indeed.
 o The reason for this is said to be protection of the public administration. Government has
got to keep on governing. E.g. if there’s something for which there’s said to be
insufficient consultation, courts are very wary of using JR to derail this governmental
process.
o Contrast this with normal civil proceedings where the time limit is 3-6 years.
o Indeed there are a line of cases which suggests if you wait just under 3 months, that
itself may be considered a delay. If you’re talking about a case which has many knock on
effects, you’ve really got to be thinking of an application in a matter of days.

 no sufficient interest in the matter (lack of locus standi or standing to sue)

o Covered in more detail below

 no issue of 'public law'

o From time to time you have people trying to seek JR of private organisations which will
of course be thrown out.

 availability of alternative remedies

o This is very important as is often seen as the backup. You often have some sort of right
of appeal. Maybe to a minister or tribunal and you have to exhaust those other
remedies before you seek JR; to save HC time/resources etc…

 challenge is premature

Really need to emphasise that the majority of the action in litigation goes on around permission. Most
applications for permission are refused.

Statistics:

Judicial and Court Statistics 2009 ( p158):

There were 9,097 applications for permission to apply for judicial review received in the
Administrative Court in 2009. Some 24 per cent (862) of the total applications for permission to
apply for judicial review considered in 2009 were granted. Of the 495 substantive applications
for judicial review disposed of in 2009, 39 per cent (192) were allowed, 57 per cent (282) were
dismissed and 4 per cent (21) were withdrawn.

9097 applications; disguises a far higher number of cases which are resolved through the pre litigation
protocol requirements as the number denotes cases which have already gone through that stage and
turned up in court. To put that in context, the number of applications for permission to apply has been
steadily rising over the last 10 years. There’s been something like a doubling over the last decade. The
number of cases however is not overwhelming as it covers not only CL claims but HR and EU claims as
well.
The second point is the high number that drop out at the permission stage. About a quarter were
allowed. This doesn’t mean to say that 75% were rejected as there is scope there for settlement after
proceedings for permission have been launched and before the actual grant/refusal of permission.

Stats show the number where remedies were awarded. Not insignificant but not a huge number. Makes
you think about the significance of JR in our constitution. The stats seem to bring us down to earth a bit
in terms of the day to day realities of JR.

One last point; there is a continuing tension around the permission stage. Permission decisions usually
take place based on the papers and are decided by a single judge. Whereas the full hearing may be a
single judge but could be 3 judges (depending on how serious the case seems to be) and down in the RCJ
(or equivalent) and a full public hearing. The tension is how seriously the judge should take it. Should
they do a lot calling for extra papers etc… or do a quick look and push it into the public hearing process.
Competing arguments there about transparency and efficiency.

Note the heavy concentration in immigration and asylum matters (p.174):

Immigration / Asylum 6,660

Criminal 305

Others 2,132

Total 9,097

To put it bluntly, JR in this country is immigration and asylum centred with a few other things. Roughly ¾
of all the applications for permission in 2009 involved immigration and asylum.

- The nature of immigration and asylum decision making itself

o A lot of studies showing that the quality is often very poor
o On the other hand, there are high incentives for individuals to litigate (want to stay in
country and if refugees, by definition, may have real concerns about being sent back)
- Of course it doesn’t mean that JR doesn’t have a much broader constitutional significance.
o We’d hope anyway that the principles we’ve been talking about in JR will inform
decision making in those many other areas where statistically speaking, we don’t find
much litigation.

Standing to sue

Consider tort law; there the person who can sue is essentially the one who suffered the damage. As
such, this is not really an issue in tort as the claimant is almost always self-evident. With JR, we have
some real issues. What the courts have developed and what parliament has now legislated is that to be
able to make a claim in common law, you must have a ‘sufficient interest’ in the matter at hand.
‘Sufficient interest’ [common law and EU law based claims]

What Denning said is that it’s to exclude the so called busybody. We don’t want to see people going to
courts and being litigious for the sake of it (costly for courts and public admin) and we don’t want to see
people getting involved in other people’s business. Over the years, the courts have become much more
liberal in terms of standing to sue and are prepared to allow many more bodies than they would have 30
years ago.

IRC v. National Federation of Self-Employed and Small Businesses [1982] AC 617 (Lord Diplock) (still
the leading case)

Use to be something called “fleet street” where all newspapers were printed. The printing was from late
at night till early morning. There were some informal practices, especially with regards to declaration for
tax. Called the ‘mickey mouse’ case as you just wrote your name on a form, worked the night and got
paid in cash.

All quite notorious and eventually the IRA is pressured to take action. They cut a deal with the trade
unions and say ‘no more mickey mouse’ but in return, we’ll cut an amnesty. We won’t go back and try
and find out who Mickey Mouse and all the similar names were.

So that’s the deal. Clearly the trade unions are not going to raise issues about the unlawfulness of that
deal. (Could be argued that IRA breached a duty to act lawfully) Neither would the IRA.

What happens is that an interest group, National Federation of Self-Employed and Small Businesses,
comes and says IRA is always hard on us, they ought to uphold the law in regard to these powerful trade
unions. So the question becomes whether these people have sufficient interest in this matter.

The classic argument would be that ‘no you don’t have an interest in somebody else’s tax affairs’. The
argument they make is based on the RoL. They say that if we’re not allowed to come to court and argue
that this amnesty is unlawful, in practice no one will.

Lord Diplock interestingly takes a pro-rule of law type approach and says ultimately somebody needs to
be able to come to court and say a serious breach has been committed even though it may not
personally affect them.

So that’s a significant expansion in terms of parties who can come to court.

- So tie that back in with what we said the functions of JR were in lecture 1.
- One of the functions is the protection of the individual;
- If JR is almost private law in orientation (protection of the individual suffering) you may say
‘strict standing requirements’
- Whereas if you say it’s about the upholding of the RoL, you may want to be a lot more
lenient/flexible at this stage.
 - The other point to stress about this case is the fact that it’s a pressure group case
- So this opened up JR to use by pressure groups for campaigning purposes
- There are a line of cases showing this. You see the likes of Greenpeace, liberty, justice, now
coming in and seeking to use that lord Diplock type reasoning in order to vindicate their view of
the public interest.
- Connotations for JR looking more ‘political in nature’ to being used for essentially more political
purposes.
- If you want a striking development of it look World Development Movement.

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

R. v. Secretary of State for Foreign Affairs ex p. World Development Movement [1995] 1 WLR 886

The position today is the number of cases where you’d seen someone thrown at CL for lack of
significant interest are far and few. Best known is:

R(Al-Haq) v Secretary of State for foreign and Commonwealth Affairs [2009] EWHC 1910

Attempt to use British court for rulings on the invasion of Gaza by Israelis brought by Palestinian
activists.

- Why specifically CL? EU legal principle requires that to invoke EU law, you can’t be procedurally
discriminated against so you must have at least as good access as common law. So since
sufficient interest test is the CL test, it has to be at least the same test as EU law.
- What is so striking is that it is far easier to get into court in this respect under CL and EU law
than it is under the HRA
- Under the HRA, P has decided that you must be ‘the victim’. So ‘you’ can complain if ‘you’ are
having ‘your’ convention rights affected.

HRA – victim test

So in some ways we see JR opening up but there are certain areas we see restrictive approaches being
applied (e.g. victim test)

HRA, s. 7(1), (3), and (7).

(Though note the role of the Commission for Equality and Human Rights; see in this regard, Equality Act
2006, s. 30).

Third party intervention (amicus briefs)

This is another area we see a generous approach:

This goes to the idea of JR being use as a vehicle discussing competing versions of the public interest
[Historical benchmark - refusal to allow the Children’s Legal Centre to intervene in Gillick v West Norfolk
and Wisbech AHA [1985] 1 All ER 533]

Mrs Gillick was a campaigner who took a ‘traditional view’ of family values. She was concerned that it
was becoming the practice in medical practices according the country to give contraceptive advice to
girls under the age of 16. Her view as that the giving of that advice was unlawful. The argument being
that it was unlawful for a man to have sex with a girl under 16. From Mrs. Gillicks perspective, this was
almost amounting to aiding and abetting the commission of criminal offences. The argument gets into
court and she seeks a declaration that her local health authority will not do it or will be stopped from
doing it. She wants a declaration that it’d be unlawful for them to do it.

She says she’s a concerned party and she has sufficient interest as she doesn’t want such advice to be
given to her daughters.

Of course the medical profession and government come back and say ‘life goes on in the real world’.
Young girls do have sex and it is important in public policy terms for their protection that we make
contraceptive advice available.

Case reaches HL and Gillick loses. What is relevant though is that there is a case to intervene there from
a TP, the children’s legal centre (a specialist unit representing children in the legal services)

They say it’s more than a bit of unreality in the case. About to be argued in the HL by a parent with a
particular view of family values and on the other, the government and the medical profession who is
representing the interests of children In this case (i.e. under 16 girls)

HL said no we aren’t going to hear you. In our procedure we’re adversarial and essentially bi-polar (one
party v another) and we don’t want to see JR procedure opening up.

You can see the kind of thing they’re worried about. In the US, there’s a long standing history of TP
intervention.

Illustrative cases:

The HL decision in Gillick was subjected to much criticism especially on the grounds that the government
was essentially arguing for an important group of society who was not being represented in particular.

There is now increasing recognition that public interest is itself a contestable concept and courts should
be willing to hear different sections of public interest when deciding (more specifically JR) cases

These days, parties like justice and liberty seem to intervene a lot

2 trends have driven this

 Growth in HR
 o HR cases will often involve competing trends and competing rights. E.g. with a case on
right to life, there are many interests which want to get in on an argument there. Just
think abortion
 If you analyse the content of TP briefs, they are often used (and somewhat selectively) as a
vehicle for drawing to the attention to our courts, comparative legal developments
 So in the torture case (A) where question is whether our court could and in what circumstances
ever rely on information from torture. You see e a big intervention with a lot of comparative
material from the likes of Canada and Australia where this has not been accepted.

R (Burke) v General Medical Council [2005] EWCA Civ 1003

A. v. Secretary of State for the Home Department [2005] UKHL 71 (‘the torture case’)

Getting at the facts – disclosure

Again, JR shows an expansionary tendency. Clearly, much may depend on whether you can get the
evidence and in particular, can you get at the official documentation which is hidden away somewhere?
By definition in JR if you’re the challenger, you’ll be challenging a PB and to make out your case, you may
well need the internal documentation.

Again, if you go back in time, the courts took very restrictive approach to this. Fitted the idea of a culture
of official secrecy. Very protective of the government. Again you see the courts being pressed and a
more liberal generation of judges essentially saying we have to shift the balance. This has been done in a
number of ways.

- Obvious connection with the rise of a duty to give reasons

- Equally obvious connection with FOIA legislation

In terms of JR itself, 2-stages

1. To say that we don’t usually require government to disclose documents but we do expect the
government to ‘be candid’
- i.e. we don’t tell them to disclose but they should look at their own documentation and disclose
what the claimants need
- can be seen with the huddleston case in 1986
- So all well and fine, but what happens if the government doesn’t play by the rules? If they’re
‘economical with the truth’
2. SO in the last few years in particular, we see the courts saying yes we expect them to be candid
but from time to time, we’re going to order disclosure and actually see what’s there. Key case
Tweed
- Again you can see it’s in part bound up with HRA. The line of cases where this has really come to
the fore are cases involving allegations of torture
- So movement recalibrating the advantage more in favour of the claimant and less in favour of
the government.
[Historical benchmark - National Federation case (above)]

R v Lancashire CC ex P Huddleston [1986] 2 All ER 941 ‘duty of candour’

Tweed v Parades Commission for Northern Ireland [2007] 2 WLR 1

R(Al-Sweady) v Secretary of State for Defence [2009] EWHC 2387

Remedies revisited

(a) Elaborating the judicial ‘tool-kit’

R. v. Secretary of State for Transport ex p. Factortame [1989] 2 WLR 997; (No.2) [1990] 3 WLR 818

M. v. Home Office [1993] 3 WLR 433

HRA, s. 4 (declaration of incompatibility)

Yet again, we see some more expansion here. Think in terms of the ‘judicial toolkit’; the instruments the
courts have at its disposal to deal with unlawfulness once its established unlawfulness

- Essentially, both the number and sophistication of the instruments has been increased over
time. Much of the development has taken place under the idea of the remedy of a declaration.
That the court declares something to be the case
- A good illustration is the way in which the idea of declarations has expanded with the HRA.
Because under s4, courts can make a declaration of incompatibility. It’s a new remedy that’s sort
of a variation on a courts general power to issue a declaration.
- Earlier, we know that in the factortame case, the courts in a sense ‘invented’ a new remedy to
deal with the requirements of Eu law. Viz, that of disapplication of a statute.
- If you think in terms of the ‘multi-streams’ of the jurisdiction, it’s worth thinking about which
remedies are available in each stream.
- Suppose you want to challenge prim legislation and you’re looking around for a source of law
with which you can make a challenge. Obviously if you can find one, you’re best of going under
EU law. If you can show it’s applicable, you can stand on it (EU law) and have the statute
disapplied a la Factortame (it’ll still be on the statute books but won’t be applied against your
client). If you can’t, your next best chance is obviously the HRA. Notice it’s ‘next best’. May be
able to get interpretation. May be able to get declaration of incompatibility. Remember
declaration doesn’t actually stop the statute applying. If driven to CL, you’re in real trouble as
the best you have is the obiter in Jackson.
- Juxtapose that with standing to sue where CL is clearly the best. When it comes to remedies, it’s
the worst

(b) Remedial discretion

Remedies in JR are discretionary. You don’t get a remedy as a right, even if you show a ground of
illegality. You still have to persuade the court to grant you the remedy you like.
 - This is about balancing the protection of the C on the one hand with requirements of public
administration on the other.
- So you can have cases where even though somebody can show a ground of unlawfulness, the
court won’t grant a remedy.
- Courts take into account certain considerations in deciding whether to award a remedy.

Today, relevant considerations include:

 Any prejudicial delay by the claimant in bringing the case

 Whether the claimant has suffered substantial hardship
 Any impact the remedy may have on third parties
 Whether a remedy would have any practical effect or the matter has become academic
 Whether the remedy would promote good administration

Just to underline this, one of the things to look at when you reflect on JR, do think about the rise of
judicial discretion in this area. It’s an inherent part of the way JR has developed and you see it at all
stages including the grounds where we stress this theme of variability and context specific approaches
to JR.