Judicial Review and Government Decisions

• The lecture provides an introduction to judicial review.
• The role and purpose of judicial review are explained.
• Discusses the difference between tribunal appeal and judicial review.
• Covers the constitutional basis of judicial review.
• Explains the ways in which the law attempts to restrict judicial review.

The Chart of Judicial Review

• Parliament delegates administrative power to the government.
• The government makes decisions that affect people.
• Individuals challenge the lawfulness of government decisions through judicial review.
• Courts ensure the government acts lawfully and does not exceed its powers.

What Judicial Review Is and Is Not About

• Judicial review enables courts to supervise the lawfulness of decisions by public bodies.
• Judicial review aims to ensure the government acts according to the law.
• The core aim is to ensure the law is observed and the decision-making power is neither abused nor exceeded.
• Judicial review is concerned with how a government decision is made, not whether that decision is correct.
• Courts review the legality and lawfulness of government decisions and actions.
• The courts examine the jurisdiction, decision-making process, reasonableness, and compatibility with the Human Rights Act.
• The sources of law for JR are legislation and common law.
• The courts do not re-take decisions.

Friends of the Earth v Secretary of State for Business, Enterprise and Regulatory Reform

• The Warm Homes and Energy Conservation Act 2000 required the Secretaries of State to create a strategy to eliminate fuel poverty.
• Section 2(2)(c) of the UK Fuel Poverty Strategy aimed to end fuel poverty for vulnerable households in England by 2010.
• However, the Government did not deliver this goal.
• The court was invited to interpret the duty to "eliminate fuel poverty", questioning whether it necessitated success or just an attempt.
• It was also considered whether relevant secretaries unlawfully failed to perform their duty.
• The court found the legislative obligation to be described in terms of effort or endeavour.
• Opinions on policy implementation can vary, and in the absence of a rationality challenge about the policy it is not for the court to adjudicate.

Appeal vs. Review

• The right to appeal is a statutory right granted by Parliament, while judicial review is a common law right.
• Judicial review is available even if Parliament has not provided a right to appeal.
• Appeals involve tribunals or courts assessing the merits of decisions, which may involve replacing the judgment of a lower court.
• Judicial review involves looking at the lawfulness of a decision, not its merits; the court does not substitute its judgment with its own.

Public Bodies and Functions

• Examples of public bodies include UK Government, devolved governments, local authorities, state agencies, and tribunals “Public functions" are defined as governmental decisions that impact the general population’s rights and interests.
• Judicial review applies to: Decisions by non-public bodies performing a public function; decisions by government under non-statutory power; Decisions by non-public bodies performing non-government function.

R v Panel on Take-overs and Mergers, ex parte Datafin plc

• Datafin attempted a takeover of company Y, complaining to the Panel on Takeovers and Mergers that company X violated their code of conduct.
• When the Panel dismissed their complaint, Datafin sought judicial review, questioning whether their decision fell within the jurisdiction and was lawful.
• The decision was subject to judicial review, even though the Panel wasn't exercising legal power, and the Panel's decision was lawful.
• Lloyd LJ suggests that the source of power isn't the only test for judicial review.
• To assess whether a decision is subject to JR, the governmental and public nature of the functions performed by public or private bodies are centrally important.

R (Hooper) v Secretary of State for Work and Pension

• Mr. Hooper and other widowers challenged discrimination, with the fact that under the Social Security Contributions and Benefits Act 1992, widows received benefits or tax allowances which widowers did not.
• The question before the court was whether the Minister's failure to pay pensions to widowers was unlawful.
• The Secretary of State was acting unlawfully by failing to pay the pensions.
• The court noted that Acts of Parliament should be read as not precluding common law or prerogative actions by the Crown needed to prevent Convention rights infringements.
• This indicates a willingness to review all justiciable governmental function decisions, regardless of identifiable legal powers.

R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan

• The Jockey Club disqualified Aga Khan's horse, Aliysa, from a race because a prohibited substance had been found.
• Aga Khan sought judicial review, questioning whether the Jockey Club was a public body exercising a public function.
• The Jockey Club's decision was not subject to judicial review.
• The Club isn't in its origin, its history, its constitution or (least of all) its membership a public body.
• The court distinguishes this case from Datafin, in which the panel regulated a national activity the government would otherwise regulate.
• The government would not regulate horse racing in the absence of the Jockey Club.
• The court seeks to identify the nature of the decision and the power used, not the nature of the decision-making body generally.

Decisions by Government Department Under Non-Statutory Powers

• Whether to use public money to pay pension, like in Hooper
• Decisions regulation of takeovers, like in Datafin.
• Disciplinary decsions like in Aga Khan.
• Possibility of JR decreases as ‘governmental’ element reduces

Procedure for Applying for Judicial Review

• The Stages are: Pre-action; permission; substantive determination of the claim.
• Before applying, a pre-action protocol letter should be writted, explaining why the public body's actions are unlawful and what resolution is sought, with an intent to apply for judicial review should the situation not be rectified.
• For the permission stage, the individual must get ‘leave’ to apply for judicial review from the court.
• A hearing will resolve the claim substantively.

Obtaining Permission

• Granting permission to apply for judicial review is discretionary, with some judges more willing to grant permission than others.
• The applicant must exhaust available remedies, demonstrate sufficient interest, remain within time limits, present an arguable case with realistic prospects, and show that a different outcome is possible.

Exhausting Available Remedies

• Judicial review is a last resort, requiring individuals to exhaust all other avenues before applying, according to R. v Inland Revenue Commissioners, Ex p. Preston.
• Permission for judicial review is at the court's discretion.
• Courts will allow judicial review even when other remedies exist if those remedies are inadequate, onerous, or slow.

Sufficient Interest

• Under the Senior Courts Act 1981, section 31(3), an application for JR requires leave from the High Court, and the court must deem that the applicant has ‘sufficient interest’ in the matter.
• ‘Sufficient interest’ is not defined in legislation and it is left to the judges to determine.
• Claimants usually have a ‘sufficient interest' when the impugned decisions affect them directly.
• Someone living close to a proposed airport would likely be affected by light and noise pollution, for instance.

R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Business Ltd

• Some casual print workers had avoided paying income tax by falsifying information, and were then offered a deal of registering to pay tax in the future with no retrospective action.
• In response, the Federation wanted to intervene, arguing that this was unfair to its law-abiding, tax-paying members.
• The Federation did not have standing to pursue its claim.
• Decision: The claimant did not have standing to pursue its claim.
• Implication: Standing is to be assessed in accordance with the substance of the case.

The Current Stance: A More Open Approach

• An individual will undoubtedly have standing if a decision has affected them personally.
• Generally, a group, association, or corporation representing its members or acting in the public interests will be able to claim standing.
• Relevant cases are: R v Inspectorate of Pollution, ex p Greenpeace; R v Secretary of State for Foreign Affairs, ex p World Development Movement
• For a court to take a case into account it needs to be of importance, there needs to be a vindication of the rule of law, the nature of the breach needs to be serious, there needs to be an absence of a responsible challenged, the reputation of the body matters and whether a significant number of its members are affected by a decision.

The Open Approach and Its Concerns

• There are some concerns of abuse of JR and use of JR as a platform to pusue protests or political ends.
• Legislation and discrimination have become a common challenge in the UK.

Time Limits

• Applications for JR must generally be brought within three months from the date of the decision.
• For planning claims specifically, the appplication must be made in 6 weeks of the decision.
• The courts have discretion to continue JR if there is "good reason".

Arguable Ground

• While the courts have discretion to grant permission to proceed, the claimant must still demonstrate that it has an “arguable” case.
• It aims at eliminating claims which are frivolous vexatious or hopeless at an early stage

Different Outcomes

• Senior Courts Act 1981, section31(2)(2A) & 2(B)
• The court will grant relief if the outcome will be substantially different if the conduct occurs.

Refusal of Permission

• In 2018, 3,597 claims for JR were lodged in the High Court.
• Only 184 cases reached full hearing.
• The rest were mostly refused permission to proceed, withdrawn, or resolved out of court.

Grounds Reviewed in Council of Civil Service Unions v. Minister for the Civil Services

• The Minister for the Civil Service, Margaret Thatcher, had made a decision that British Intelligence Agency workers at GCHQ couldn't join a trade union due to national security.
• The decision was made with prerogative power and the issuance of an order in council.
• There were two questions: the justiciability of the claim and the legitimacy of the powers

Illegality

• Concluded the decision was justiciable, and the justiciability of a decision made by prerogative power can be legitimized on one of the two following grounds:
• The decision altered the right and obligations in the private law;
• They deprived a benefit which they either did have or were reasonably expected to have.

Grounds of JR

• There are three grounds of judicial review, Illegality, Procedural impropriety and Irrationality

Remedies of Judicial Review

• The granting of remedy in JR is the discretion of the court.
• Include, Quashing order (certiorari); Prohibiting order (prohibition); Mandatory order (mandamus); Declarations; Injunctions and Damages, restitution and recovery

Unique Nature of UK's Uncodified Constitution

• There are two sources of law, legislation and common law.
• Courts need constitutional authority to review governmental actions and decisions for JR.
• This has an impact on jurisdiction, grounds, intensity of judicial review.
• Two theories: ultra vires theory and common law

Ultra Vires Theory: The Constitutional Basis

• Ultra vires means beyond the given powers.
• Is linked to parliamentary sovereignty to make statutory powers to public bodies.
• Courts ensure public bodies do not act outside their legal jurisdiction in the scope of their statutory powers.
• Courts enforce the intention of Parliament.

Example of Ultra Vires Theory

• Minister has statutory power to approve building an airport.
• Excludes building a prison or motorway.
• Parliament only intended building of an airport.
• Courts can strike down anything that goes beyond this power - to uphold parliamentary sovereignty.

Weakness of This Theory

• Not all public powers are statutory.
• Non statutory powers include prerogative powers.
• Problem: there is no parliamentary intention because the power is non-statutory.
• Courts held that some prerogative powers are subject to JR.

Strength of This Theory

• Ultra vires theory provides an explanation of judicial review.
• Courts will insist on procedural fairness.

Common Law: The Constitutional Basis

• This theory is based in common law.
• Courts will correct any abuse of power - statutory power involved or not
• The concept of abuse of power is common law construct based on  judge-made law.
• Besides ultra vires, acting improperly, unreasonably or in breach of natural justice.

Middle Way Approach

• The constitutional basis is within context of interaction of separation of powers, rule of law, and parliamentary sovereignty.

Limitations on Judicial Review: Sceptical View

• There are limits on JR due to the democracy argument
• Judges do not have expertise in public administration issues.
• Whether the executive has relesvant expertise to answer questions.

Limitations: Sceptical View of Judicial Review

• This view argues that courts should have a modest role that should be limited.
• An adversarial proces is deemed ineffective for resolving social and economic problems.
• Consultation should happen more generally with the public, not judicially.

Limitation: Justiciability

• This indicates certain exercise of public power is not judicially reviewable.
• Meaning the courts has no jurisdiction.
• Parliamentary privilege should not apply in this situation.

Parliamentary Privilege

• Freedom of speech in Parliament should be protected from legal liability, including committees and MPs being sued for defamation.
• Parliament has the right to determine its own rules and procedures.

Prerogative Power

• Courts have the authority to determine the scope or limits of prerogatives.
• Exercise of some prerogative power is still beyond jurisdcition of courts such as ministers, grants of honour, dissolution of parliament, foreign affairs and national security are not subjects for reviews.
• GCHQ is a watershed.

Ouster Clause

• Legislation seeking to deny or ‘oust’ the court’s supervisory jurisdiction over the exercise of public power.
• 2022, Section 3 (Non-justiciability of the prerogative powers to dissolve Parliament and call a new Parliament via the Miller 2 case).
• Review and Courts Act 2022, Section 2 (Exclusion of review of Upper Tribunal's permission-to-appeal decisions via the Cart case).

Ouseter vs Clause

• Courts interpret the ouster clause in a way that limits the scope of statutory exclusion of judicial review, i.e. Curt & Anisminic and Privacy International.

R (Cart) v Upper Tribunal

• Facts involved the the Section 13(8)(c) application on permission.
• Issue of appeal was excluded from the right to appear to CA, and that the FTT & UT refused to grant permission for appeal to UT on child support decision.
• Question: Could Cart (who was unsuccessful in FTT and had been refused permission to appeal to the UT) seek JR in High Court of the refusal of appeal?
• There was no clear words necessary to ousst.
• The 2007 Act did not contain clear words necessary to ous or exclude judicial review of unappealable decisions.
• Decision: was to ensure that within the bounds of practical possibilit decisions were taken.
• There was a real risk without judicia review

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 House of Lords

• There was a question on excluding tribunals decisions.
• There was an error in interpreting the order.
• The court accepted the claimants determination.

Limitations of Judicial Review: Deference

• The courts have the authority to say something different but sometimes they choose not to.
• The defer to those who are in areas of more competence.
• They mark out review on certain points.

Deference

• Different grounds enalbe distinct scrutiny.
• Error or unfair processes.

Important Points of Balance

• Each case is judged in its merit.
• Individuals require adequate rights and protection.
• Balance public policy goals.

Summary of Judicial Review

• Reviewing the legality of government actions.
• Legal framework within which public administration operates.
• Governed by senior judges
• Principles need to be made by judges and those in parliament

Explore factors influencing judicial deference towards government decisions. Understand scenarios where court intervention is likely or unlikely. Learn about approaching judicial review cases based on rationality and legislative interpretation.