GROUNDS FOR JUDICIAL REVIEW

Introduction
• In discussing grounds for Judicial Review two
cases are of central importance:
• Associated Provincial Picture Houses Ltd. V
Wednesbury Corp. [1948] 1 KB 223; 2 All ER
680.
• Council of Civil Service Unions v Minister for
the Civil Service [1985] AC 374; [1984] 3 All
ER 935.aka GCHQ case
 Introduction
• Associated Provincial Picture Houses Ltd. V
Wednesbury Corp. [1948] 1 KB 223; 2 All ER
680.
• Is a challenge of a decision by the corporation
to attach a condition to a cinema licence
whereby children under the age of 15 not
permitted into a cinema on Sunday.
 Introduction
• Its unreasonableness was argued.
• Held: Lord Green identified a number of
principles which could form the basis of a
challenge to the exercise of executive
discretion which are known as ‘Wednesbury
Principles aka Wednesbury Unreasonableness
 Introduction
• The exercise of a discretion must be real and
genuine;
• The decision maker must have regard for
relevant matters and disregard irrelevant
matters;
 Introduction
• A decision must not be exercised for reasons
of bad faith or dishonesty;
• A discretion must be exercised for the
purpose for which it was intended.
• A discretion must be exercised reasonably
• This principle is apparent in GCHQ
 Introduction
• Council of Civil Service Unions v Minister for
the Civil Service [1985] AC 374; [1984] 3 All
ER 935.aka GCHQ case
• Under art 4 of Civil Service Order in Council
1982 Minister for Civil Service empowered to
make regulations or issue instructions relating
to the terms of employment of Civil Servants.
 Introduction
• An instruction was given to employees of
Government Communications Head Quarters
(GCHQ) banning employees from being
members of the trade union as it was felt that
the union would disrupt the sensitive
intelligence work going on there and pose a
threat to national security.
 Introduction
• The established practice was to consult the
employees prior to any alteration to the terms
of their employment.
• Held: The instruction was reviewable by the
courts, either under the prerogative power or
delegated power under the prerogative.
 Introduction
• Lord Diplock held that there are three
grounds under which administrative action is
subject to review:
• ILLEGALITY
• IRRATIONALITY
• PROCEDURAL IMPROPRIETY
 INTRODUCTION
• These heads are not mutually exclusive.
• A decision may be challenged on several
different review principles and more than one
such argument is upheld by the court.
 GROUNDS
• Diplock in GCHQ:
• Decision maker must correctly understand the
law that regulates his decision making power
and must give effect to it.
 GROUNDS
• What must be shown is some ground for
vitiating the decision-making process. These
are broadly:
• illegality
• Procedural impropriety
• Irrationality
 Illegality
• Illegality: the decision maker must understand
correctly the law that regulates his decision-
making power and must give ‘effect to it.’
• RELEVANT/IRRERELEVANT CONSIDERATIONS
• A decision maker must have regard to
relevant matters and disregard irrelevant
matters.
 Relevant/Irrelevant
Considerations
• R v Somerset CC ex parte Fewings [1995] 3 All
ER 20
• Land owned by a public authority banned the
hunting of deer because they thought it was
cruelty to animals. The claimants sought JR
under the Act.
• Held: The council must take relevant matters
into consideration and animal welfare was
relevant.
 Relevant/Irrelevant
• R v Secretary of State Home Department ex
parte Asif Khan [1985] 1 All ER 40
• SOS set out criteria for admitting children into
the UK for adoption. The claimant sought JR
when a child he intended to adopt was denied
• Held: The circular set out the criteria and the
decision took irrelevant matters about the
natural parents ability to care for the child into
consideration
 ILLEGALITY
FIDUCIARY DUTY
• Local authorities who collects money to
provide services eg. Garbage collection, must
ensure that these services are spent in a way
that benefits the community as a whole.
 Fiduciary Duty
• Prescott London BC v Birmingham Corp [1954] 3
All ER 698
• The local council decided to give free travel on
county buses to women over 64 and men over
69 years of age.
• Held: The council had no power to provide these
benefits which were based on discrimination and
favouritism toward a section of society and
which was against equality.
 ILLEGALITY
Fettering of a discretion
• Decision makers are in a position where they
have a large measure of discretion as to the
decision which they reach in a particular case.
• They must ensure that they do not allow even
relevant considerations to so influence their
thinking that they cannot be said to have
exercised a discretion in the decision process.
 ILLEGALITY
Improper Purpose
• The power that is given by Parliament to the
decision maker should be used for a particular
purpose, usually expressed in statute.
• Provided that a decision maker acts in
accordance with statute they will have acted
intra vires.
• If the act is for an improper purpose the court
can intervene.
 Improper Purpose
• Wheeler v Leicester City Council [1985] AC
1054
• Three members of the Leicester Rugby Team
toured South Africa with the English Team
during apartheid. The council condemned the
tour and passed a resolution preventing the
club from using the grounds which the council
controlled.
 Improper Purpose
• Held: The ban on the use of the grounds was
unfair, unreasonable and amounted to
procedural impropriety.
• The council was using the statutory power to
punish the club, when they had done nothing
wrong.
 ILLEGALITY
Bad Faith
• In Wednesbury it was held that a decision
could be quashed on the basis of having been
in bad faith ie dishonestly.
• It is a grave or serious charge, and is usually
rare as it suggest ill will and malice.
• The evidential burden is high but where
discharged the claimant will succeed.
 Bad Faith
• R v Derbyshire County Council ex parte Times
Supplement[1991]. Under the Education Act local
education authorities were to advertise vacancies in a
manner that would bring it to persons qualified to fill
the posts.
• The Sunday Times was critical to the local education
authority and individuals.
• The Education authority decided to stop advertising
in any media owned by Rupert Murdock even though
his papers had the highest readership.
 Bad Faith
• The papers sought judicial review.
• Held: The Educational council’s decision was
in bad faith. The decision was not taken by
educational grounds but was motivated by
vindictiveness towards the papers.
 IRRATIONALITY
• The decision is so outrageous in its defiance of
logic or of accepted moral standard that no
sensible person who had applied his mind to
the question to be decided would have
arrived at it: Wednesbury
• The decision is so unreasonable that no
reasonable authority could arrive at that
decision.
 Irrationality
• Hall v Shoreham-by-the-sea UDC [1964] 1 All
ER 1
• The local authority could grant planning
permission subject to conditions that they
thought fit. The claimant was granted
permission subject to building a road at their
site to which the general public had access to,
at their own expense.
 Irrationality
• Held: The condition was utterly unreasonable
as it sought to transfer the public burden of
constructing the road to the shoulders of a
private developer.
 PROCEDURAL IMPROPRIETY
• A failure to observe procedural rules laid
down by statute.
• A failure to observe the basic common law
rules of natural justice.
 PROCEDURAL IMPROPRIERTY
• Natural Justice Ridge v Baldwin
• Legitimate Expectation
• The Right to a Fair Hearing
• Reasons
• The Rule Against Bias
 JURISDICTIONAL ERROR

• J.R. will lie where an inferior court or

tribunal or public body has acted without
or in excess of its jurisdiction.
• Such bodies must not act outside their
powers or ultra vires.
• Follow prescribed procedures
 JURISDICTIONAL ERROR
• Cannot delegate except as expressly laid
down.
• Public Body must not ask itself the wrong
question.
• It must not ask itself the wrong question.
 JURISDICTIONAL ERROR
• It must not take into account matters which it
has not been directed to take into account.
• Any order made must be one which the
relevant body has jurisdiction to make.
• LOCUS CLASSICUS: Anisminic Ltd. v Foreign
Compensation Commissi0n [1962] QB 1044.
 Jurisdictional Error
• The FCC rejected a claim for compensation on
the erroneous ground that as the claimant’s
successor in title was not of British nationality
the claim did not comply with the terms of the
relevant delegated legislation. This was an
error of law.
 Jurisdictional Error
• Held: The Courts could interfere with the
FCC’s decision due to the error in law.
• FCC had taken irrelevant material in
consideration and therefore the decision was
Ultra Vires and a Nullity.
• Such errors of law are automatically
reviewable.
ERROR ON THE FACE OF THE RECORD
• Where there is an error on the face of the
record JR will lie even if the body being
reviewed has kept within its jurisdiction.
• R v Northumberland Compensation Appeal
Tribunal ex parte Shaw [1952] 1 KB 338.
• A former employee claimed compensation on
the termination of his employment.
ERROR ON THE FACE OF THE RECORD
• In aggregating two periods of employment the
tribunal stated that only the second period
should be taken into account.
• As the error was on the face of the order the
decision was quashed.
• The main remedy is a quashing order.
 NATURAL JUSTICE
• J.R where there is a breach on the rules of
natural justice.
• LOCUS CLASSICUS: Ridge v Baldwin [1964] AC
40.
• The Chief Constable of Brighton had been
tried and acquitted of conspiracy to obstruct
the course of justice.
 NATURAL JUSTICE
• He was dismissed from office without giving
him any notice and without giving him an
opportunity to be heard.
• The Committee heard representation from his
solicitors but no notice of any specific charge
given.
 NATURAL JUSTICE
• The Committee confirmed its earlier decision.
• The initial and reconvened decisions were
quashed as being contrary to the rules of
justice.
• Rules of Natural Justice affected by the
decision under scrutiny which affect the
applicant’s pecuniary interest or livelihood.
 NATURAL JUSTICE
• In GCHQ Lord Diplock held that the rules of
natural justice apply where a decision affects
some other person either:
• By altering rights or obligations which are
enforceable by or against that other person in
private law; or
 NATURAL JUSTICE
• By depriving that other person of some
benefit or advantage which either:
• He had in the past been permitted by the
decision maker to enjoy and which he can
legitimately expect to continue until rational
grounds for withdrawing it have been
communicated on which he is to be given an
opportunity to comment; or
 NATURAL JUSTICE
• He has received assurance from the decision
maker will not be withdrawn without first
giving him an opportunity of advancing reason
for not withdrawing it.
• Rules of N.J. apply in: compulsory purchase,
disciplinary procedures, and licence
applications.
• Legitimate Expectation to a benefit.
 WEDNESBURY UNREASONABLENESS
• Decision will be quashed where it is so
unreasonable that no reasonable person or
body properly directing itself on the law could
ever make.
• Applies in exceptional cases where the
unreasonableness of a decision verges on an
absurdity. Nottinghamshire CC v Sect., of
State for Environment 1986 AC 240.
 WEDNESBURY UNREASONABLENESS
• See: R v Ealing London B.C. ex p Times
Newspaper (1986) 85 LGR 316
• Council held unreasonable for not providing
certain newspaper in their libraries because
they did not agree with the politics of the
newspaper’s proprietors.
 WEDNESBURY UNREASONABLENESS
• A surprising decision coupled with a failure to
give reasons may be held unreasonable:
• R v Civil Service Appeal Board, ex parte
Cunningham [1991] 4 All ER 310