The K-Zone: judicial review

The process by which administrative action is held up to strutiny by the courts. At present, applications for judicial review are heard by the Administrative Court, a subdivision of the Queen's Bench Division of the High Court, staffed by judges experienced in this type of action. Judicial review (JR) has its own proceedings and procedures. In particular, leave to apply for JR must be made within three months of the event that is alleged to give rise to the claim.

For an application to succeed, the application must show four things: (i) that an application for JR is appropriate for the kind of loss suffered by the claimant; (ii) that the body against which the claim is made is subject to JR at all; (iii) that the applicant has sufficient standing to make that claim; (iv) that the actions of the reviewed organization give grounds for review.

The applicant can ask the court to grant a number of orders. A Mandamus or `mandatory order' compels the reviewed body to do something; a prohibitory order compels it to refrain from doing something, a declaration sets out the court's view on the legality of a particular course of action, and a certiorari or `quashing order' nullifies a decision and remits it for reconsideration. In addition the applicant can seek an injunction which is, in practice, similar to a mandatory or a prohibitory order.

Appropriateness of judicial review

In general, JR will not be granted if the claimant has a private-law cause of action against the defendant, e.g., in contract, or has a right of appeal against a decision. For some years, courts were ready to give leave to apply for JR where the right of appeal or the private law remedy would be expensive or time-consuming. However, the rapid rise in the number of applications led the courts to reconsider this approach, and it is now more difficult to get JR where alternative remedies exist. However, the courts have not applies this policy consistently.

As well as limiting JR to cases where there is no private law action, it is now recognized that JR should be the exclusive procedure where it would be appropriate at all. For example, if a claim is based on the contention that a public body has acted UltraVires, this must normally be persued through JR (OReillyVMackman1983). However, there are a number of exceptions. First, it was decided in RoyVKensingtonAndChelseaAndWestminsterFPC1992 that a private law action could be used if there were a mixture of private law and public law issues at stake. In effect, this decision limits the O'Rielly principle to cases where there are no private-law rights at issue. Second, WandsworthLBCVWinder1985 establishes that a counter-claim to a private law claim can be based on the fact that the claimants' original actions were UltraVires. This is so even where the counter-claim involves no private law rights and would therefore not fall into the category of exceptions covered by Roy v Kensington.

In practice, the CPR gives the court a power to transfer cases from one form of hearing to another provided that the court has the experience and jurisdiction to hear the case. This may mean that the procedural niceties raised by O'Reilly, etc., will become less important.

Whether the body is reviewable

Judicial review will only lie against bodies exercising public duties. However `public duties' is not always easy to define, and the scope of judicial review has expanded enormously in the last 30-40 years. The major first milestone was the decision in RVCriminalInjuriesCompensationBoardExParteLain1967 which held that a body set up under prerogative powers was reviewable. Traditionally only powers set up under statute were considered to be reviewable, because only these bodies would have there powers clearly defined. The next development was RVPanelOnTakeoversAndMergersExParteDatafin1987. The panel was not a body whose powers had any obvious source; it had no statutory or prerogative basis. Nevertheless, it was held to be exercising `public duties' for the purposes of JR. This determination was made because the Panel has extensive powers, and those powers do not arise entirely from the consent of the organizations it regulates. In addition, it decisions were not subject to any effective appeal procedure.

The `Datafin principle' gives the courts considerable leeway to deem that a body is subject to JR. However, there are certain bodies that remain unreviewable. First, an employer is not generally reviewable on employment matters at the behest of its employees, even if it is a public body. Second, many occupational regulatory bodies are unreviewable, particularly in sport. Third, private educational bodies are unreviewable in respect of their academic policies, although state schools and colleges are reviewable.

If the body under question is of a class which is considered to be appropriate for JR, in the sense that it exercises public duties, it is still necessary to decide whether that particular body is reviewable. In particular, there are certain bodies and individuals that are excluded by statute from the scope of JR. Moreover, statute will occasionally attempt to `oust' the jurisdiction of the court. The courts have been ingenious in their approach to such `ouster clauses', and have often found ways to circumvent them.

Standing

Leave to apply for judicial review is only granted to individuals who have a `sufficient interest' in the matter. In practice, standing is a complex matter of mixed fact and law and, unless the individual is clearly a meddlesome busybody, leave to apply is not normally refused on the grounds of standing. Instead, standing is determined in the full hearing along with the merits of the case.

Traditionally the courts took a rather restrictive view of standing, holding that only a person who is directly affected by an administrative action should have standing to apply for review. However, this restriction was relaxed considerably in IRCVNationalFederationOfSelf-EmployedAndSmallBusinesses1982. In that case, Lord Diplock asserted that it was entirely proper for a public-spirited individual or body to challenge the legality of an administrative action. This trend has generally continued (e.g., (R (Whitehouse) v IBA (1985), R v Foreign Secretary ex p Rees-Mogg) but there are a few notable exceptions. In particular, RVSecretaryOfStateForTheEnvironmentExParteRoseTheatreTrust1990 denied standing to a pressure group set up to contest a particular ministerial decision.

Grounds for review

The modern expression of the grounds for review are to be found in Lord Diplock's speech in CouncilOfCivilServiceUnionsVMinisterForCivilService1984, usually known as the `GCHQ case'. In this case the Union was challenging the right of the Prime Minister to disallow trades unions operating in the GCHQ - an organization involved in surveillance for national security purposes. The court held that the PM's actions were reviewable but, in this case, interests of security supported his decision.

Along the way, Lord Diplock divided grounds for judicial review into three classes: `illegality', `irrationality', and `procedural impropriety'. Illegality covers cases where a body acts beyond the powers conferred on it my legislation (that is, actions are ultra vires) and where a decision maker incorrectly informs himself as to the law. `Irrationality' covers cases of exceptional unreasonableness, in the `Wednesbury' sense (see: AssociatedProvincialPictureHousesVWednesburyCorporation1948). Procedural impropriety covers failures to comply with procedures laid down in legislation and, in some circumstances, breaches of NaturalJustice.

The HumanRightsAct1998 imposes a duty on public bodies to operate within the confines of the EuropeanConventionOnHumanRights. If they fail to do so, then their actions may automatically be ultra vires and thus reviewable. In principle, therefore, the Act considerably extends the ability of the courts to quash administrative decisions on human rights grounds.

PublicLaw