Judicial Review Flowchart
Intro
Judicial review (JR) is a mechanism by which the courts ensure that public bodies act within the powers they have
been granted and do not exceed or abuse those powers. Courts are not concerned with the merits of the body’s
decision, but with the way in which decisions are made.
JR and constitutional principles:
1. Rule of law: assuring government does not exercise arbitrary powers + follows the law
2. SOP: judiciary oversees the executives use of power that was granted by parliament (legislature)
3. PS: it does not infringe on PS because it is only concerned with secondary legislation
1) Can claimant make a claim for judicial review?
Does claimants claim raise public law issue?
• ‘Procedural exclusivity’ means public law cases should follow judicial review process and only public law
remedies can be sought (Trim v North Dorset District Council)
◦ Examples: challenges to CPOs, to refusals of licenses, to refusals of discretionary financial grants
◦ Exception: cases with both public and private law issues may be raised in JR (Roy v Kensington Family
Practitioner Committee)
• ‘Collateral challenge’ = raising a public law issue as a defence in private law proceedings (Boddington v
BTP)
◦ Defendant caught smoking in train carriage = illegal -> in court raised the validity of the law as a defence
to his crimes
Is defendant amenable to judicial review?
• JR only of decision made by public bodies, 2 part test (ex p Datafin):
◦ Source of power: if body is set up by statute the it is a public body, if not then check...
◦ Nature of power: if a body is exercising public law functions then it is amenable to JR
• [HR claims] s.6(3) HRA 1998 = any court or tribunal carrying out a public function = public authority (Beer)
Does claimant have a ‘sufficient interest’ to make a claim (s.31(3) Senior Courts Act 1981)?
• People personally involved will always have sufficient interest
• Pressure groups = five factors to consider (ex p World Development Movement):
◦ Importance of matter raised
◦ The nature of the alleged breach
◦ Need to uphold the rule of law
◦ If anyone else is better placed to bring the claim
◦ The role of the pressure group (this is the most important point, WDM = highly prominent in promoting
aid to developing countries)
• Exception: group of individuals who were personally affected do not need to satisfy ^ conditions
• [HR claims] s.7(3) HRA 1998 = test is whether someone is directly and personally a ‘victim’ of the act in
question (excludes pressure groups)
Is claimant within the time limit (s.31(6) Senior Courts Act 1981)?
• Courts may refuse a claim if there is undue delay
• Maximum of 3 months (or 6 weeks for planning cases and 30 days for public procurement cases) (CPR
r.54.5)
◦ Should not use up 3 months time limit (Finn-Kelsey case)
◦ Time limits may be reduced by statute - look out for this
◦ Time limits can be extended for good reason (ex p Jackson: legal aid, difficulty obtaining evidence, etc.)
but merits of decision decided by judge (Hardy case) and delay in obtaining legal aid as sole excuse
is not sufficient (Kigen case)
Is JR jurisdiction restricted by an ouster clause?
• Ouster clauses: excludes any right of challenge once a decision has been made by a public body
• Full ouster clauses are ineffective, if decision is ultra vires then ouster is null (Anisminic)
• Partial ouster clauses give limited opportunity for decision to be challenged (ex p Ostler limited challenge
on CPO to six weeks) -> judges will not extend time of partial ouster clauses (strict rule)
, 2) If so, what are the claimants grounds of challenge?
Lord Diplock (CCSU case) identified 3 grounds for review:
ILLEGALITY (Ultra Vires) IRRATIONALITY
Lord Diplock: “The decision maker must understand correctly the law Challenges under irrationality grounds require proof of a very high degree of
that regulates his decision making powers and must give effect to it” unreasonableness - as ruling of irrationality may open courts up to accusations
of judging merits of a decision rather than if the decision was arrived at
Cannot act w/o legal authority lawfully (outside their jurisdiction)
• What powers did the statute in question create? Has the decision
maker gone beyond this? Two tests:
• ex p Leech (no.2): power given to prisoner governors did not • Wednesbury Principle: the decision was so unreasonable that no
include reading letters between prisoners and their solicitor reasonable authority could come to it
No delegation • CCSU test (Lord Diplock): decision was so outrageous in defiance of logic
• Vine v Dock Labour Board: decision-making powers cannot be or moral standards that no sensible person could arrive at it
further delegated (sub-delegated)
• Exceptions: Difficult to meet criterium but not impossible (R(DSD) v Parole Board)
◦ Carltona Principle: gov. Ministers can sub-delegate to civil
servants in their departments PROCEDURAL IMPROPRIETY
◦ s.101 Local Government Act 1972: local authorities can
sub-delegate to local authority committees provided they Rules against bias
make a formal resolution • Whether the decision-maker has any direct/indirect interest in the outcome
Fettering of discretion • Direct bias: decision-maker has a financial interest (Dimes case) or political interest (ex p
• The discretionary power parliament provides to a public body will Pinochet - Amnesty intl. thus promoting the cause against Pinochet)
not permit that body to restrict/fetter that discretion by: ◦ In cases of direct bias = court quashes decision
◦ Acting under the dictation of another (Lavender v Minister • Indirect bias: Porter test: “a fair-minded and impartial observer would conclude there had
for Housing - created a policy whereby powers would be been a ‘real possibility’ of bias” + immaterial whether decision was affected by bias (ex p
delegated powers to Min of Agri on any appeal he had an Hook: defendant went inside a room with tribunal members while they made their decision)
objection to)
◦ Formulating a general policy as to exercise discretion in too Right to a fair hearing
strict a manner (British Oxygen case) • Preliminary rights:
‣ General policies allowed if they don’t consist of a ◦ right to a fair hearing and reasonable in circumstance (Lloyd v McMohan)
blanket ban and aren’t too inflexible ◦ both sides listened to fairly + right to respond at each stage (Board of Edu v Rice)
‣ Ex p Brent said decision maker’s mind must be “kept • three case categories (McInnes v Onslow-Fane):
ajar” (open) ◦ Forfeiture case: where someone will lose something they had = greatest rights (Ridge
‣ “policy”, “generally”, “normally” or “usually” = blanket v Baldwin: granted right to know case against them + right to refute evidence + reply)
terms that may indicate not considering individual ◦ Legitimate expectation cases ( ex p Coughlan: Lord Woolf LJ):
cases ‣ procedural LE = where normal procedure was not followed (ex p Liverpool
Improper or unauthorised purpose Taxi: written promise to consult taxi drivers before issuing more licenses was
• Powers must be used for the (express or implied) purpose that not followed), sub-part:
statute intended • rational LE: public authority needs to consider its past policies or
• Congreve case: the power to revoke TV licenses was to make sure representations (ex p Asif Khan: home office did not follow its own
they weren’t wrongfully used, not to increase revenue - decision to guidance on abroad adoption applications)
revoke Congreve’s license because renewed prior to price ‣ substantive LE = where someone was led to believe they will gain a benefit
increase was quashed (ex p Coughlan) - only when specifically communicated
• When there is a dual purpose for using power (unclear which ◦ Application cases: these generate fewest rights
prevails): ‣ McInnes v Onslow-Fane: no reasons or hearing was required to refuse a
◦ Primary purpose test/Westminister case: if the authorised boxing license
purpose = primary purpose then decision is not ultra vires ‣ If successful challenge, claimant will be granted an honest hearing without bias
◦ Material influence test/ILEA case: action not ultra vires if • Limitations to right of fair hearing:
unauthorised purpose had no material influence • There is no right to a fair hearing if ruling is preliminary (Lewis v Heffer)
Taking/failing to take account of irrelevant/relevant considerations • Generally no right to reasons (R (Hasan) v SOS for Trade) unless:
• ex p Fewings: three types of factors (check to see if any are in ◦ decision looks aberrant (ex p Cunningham)
statute): ◦ reasoning is in public interest (ex p Doody)
◦ Mandatory factors: must be considered ◦ not giving reason would prevent the legality of the decision being challenged in
◦ Prohibitory Factors: must not be considered court (R (Help Refugees Ltd) v SoS Home Dep)
◦ Discretionary Factors: decision maker can choose • Right to a fair hearing does not include right to oral hearing/cross examination of
• Roberts v Hopwood [1925]: generous gender-equal minimum witnesses
wage was considered to be taking irrelevant consideration of the ◦ But in forfeiture cases one may expect right to oral hearing/cross-examination
“feminist ambition” and “socialist philanthropy” + did not consider ◦ Oral hearing only when fair and reasonable - dependent on each case (Lloyd v
relevant consideration of the effect on wage levels in the labour McMahon)
market.
• Padfield v Min of Agri: the potential political embarrassment of a • Rules of natural justice do not apply to bodies that have a legislative rather than
minister was an irrelevant consideration judicial function e.g. bylaws (Bates v Lord Hailsham)
Errors of law/facts
• Errors of law = decision maker has misread its legal powers = Procedural ultra vires
always reviewable (Anisminic case) • The correct procedure set out in legislation must be followed, otherwise:
• Exceptions: ◦ ‘Mandatory requirement’ courts will automatically quash the decision
◦ error did not effect outcome ◦ ‘Directory requirement’ courts decide whether to quash or not
◦ interpreting technical/special system of rules (ex p Page = • Test: ‘whether or not claimant substantially prejudiced by non-compliance with an
statutes of a university) important procedural safeguard’
◦ power granted is capable of broad interpretations (ex p • s.13 Education Act 1944 required local authorities to put up notices in certain places if
South Yorkshire Transport = body trusted to determine what school was closing down/changing
counts as a ‘substantial part of the United Kingdom’) ◦ Bradley v London Borough of Enfield: no notice was put up at all = mandatory
• Errors of fact = courts reluctant to review unless they are requirement
◦ ‘jurisdictional’ errors (Khwaja case) ◦ Coney v Choyce: notice was put up in the wrong position = directory requirement
‣ Ignores well established facts (E v SoS Home • R v Soneji: courts should use ^ requirement and then consider whether parliament would
Department) have intended non-compliance with statutory procedure to invalidate decision
‣ no evidence behind findings (SoS Education v (purposive approach)
Tameside MBC = grammar school case)
Intro
Judicial review (JR) is a mechanism by which the courts ensure that public bodies act within the powers they have
been granted and do not exceed or abuse those powers. Courts are not concerned with the merits of the body’s
decision, but with the way in which decisions are made.
JR and constitutional principles:
1. Rule of law: assuring government does not exercise arbitrary powers + follows the law
2. SOP: judiciary oversees the executives use of power that was granted by parliament (legislature)
3. PS: it does not infringe on PS because it is only concerned with secondary legislation
1) Can claimant make a claim for judicial review?
Does claimants claim raise public law issue?
• ‘Procedural exclusivity’ means public law cases should follow judicial review process and only public law
remedies can be sought (Trim v North Dorset District Council)
◦ Examples: challenges to CPOs, to refusals of licenses, to refusals of discretionary financial grants
◦ Exception: cases with both public and private law issues may be raised in JR (Roy v Kensington Family
Practitioner Committee)
• ‘Collateral challenge’ = raising a public law issue as a defence in private law proceedings (Boddington v
BTP)
◦ Defendant caught smoking in train carriage = illegal -> in court raised the validity of the law as a defence
to his crimes
Is defendant amenable to judicial review?
• JR only of decision made by public bodies, 2 part test (ex p Datafin):
◦ Source of power: if body is set up by statute the it is a public body, if not then check...
◦ Nature of power: if a body is exercising public law functions then it is amenable to JR
• [HR claims] s.6(3) HRA 1998 = any court or tribunal carrying out a public function = public authority (Beer)
Does claimant have a ‘sufficient interest’ to make a claim (s.31(3) Senior Courts Act 1981)?
• People personally involved will always have sufficient interest
• Pressure groups = five factors to consider (ex p World Development Movement):
◦ Importance of matter raised
◦ The nature of the alleged breach
◦ Need to uphold the rule of law
◦ If anyone else is better placed to bring the claim
◦ The role of the pressure group (this is the most important point, WDM = highly prominent in promoting
aid to developing countries)
• Exception: group of individuals who were personally affected do not need to satisfy ^ conditions
• [HR claims] s.7(3) HRA 1998 = test is whether someone is directly and personally a ‘victim’ of the act in
question (excludes pressure groups)
Is claimant within the time limit (s.31(6) Senior Courts Act 1981)?
• Courts may refuse a claim if there is undue delay
• Maximum of 3 months (or 6 weeks for planning cases and 30 days for public procurement cases) (CPR
r.54.5)
◦ Should not use up 3 months time limit (Finn-Kelsey case)
◦ Time limits may be reduced by statute - look out for this
◦ Time limits can be extended for good reason (ex p Jackson: legal aid, difficulty obtaining evidence, etc.)
but merits of decision decided by judge (Hardy case) and delay in obtaining legal aid as sole excuse
is not sufficient (Kigen case)
Is JR jurisdiction restricted by an ouster clause?
• Ouster clauses: excludes any right of challenge once a decision has been made by a public body
• Full ouster clauses are ineffective, if decision is ultra vires then ouster is null (Anisminic)
• Partial ouster clauses give limited opportunity for decision to be challenged (ex p Ostler limited challenge
on CPO to six weeks) -> judges will not extend time of partial ouster clauses (strict rule)
, 2) If so, what are the claimants grounds of challenge?
Lord Diplock (CCSU case) identified 3 grounds for review:
ILLEGALITY (Ultra Vires) IRRATIONALITY
Lord Diplock: “The decision maker must understand correctly the law Challenges under irrationality grounds require proof of a very high degree of
that regulates his decision making powers and must give effect to it” unreasonableness - as ruling of irrationality may open courts up to accusations
of judging merits of a decision rather than if the decision was arrived at
Cannot act w/o legal authority lawfully (outside their jurisdiction)
• What powers did the statute in question create? Has the decision
maker gone beyond this? Two tests:
• ex p Leech (no.2): power given to prisoner governors did not • Wednesbury Principle: the decision was so unreasonable that no
include reading letters between prisoners and their solicitor reasonable authority could come to it
No delegation • CCSU test (Lord Diplock): decision was so outrageous in defiance of logic
• Vine v Dock Labour Board: decision-making powers cannot be or moral standards that no sensible person could arrive at it
further delegated (sub-delegated)
• Exceptions: Difficult to meet criterium but not impossible (R(DSD) v Parole Board)
◦ Carltona Principle: gov. Ministers can sub-delegate to civil
servants in their departments PROCEDURAL IMPROPRIETY
◦ s.101 Local Government Act 1972: local authorities can
sub-delegate to local authority committees provided they Rules against bias
make a formal resolution • Whether the decision-maker has any direct/indirect interest in the outcome
Fettering of discretion • Direct bias: decision-maker has a financial interest (Dimes case) or political interest (ex p
• The discretionary power parliament provides to a public body will Pinochet - Amnesty intl. thus promoting the cause against Pinochet)
not permit that body to restrict/fetter that discretion by: ◦ In cases of direct bias = court quashes decision
◦ Acting under the dictation of another (Lavender v Minister • Indirect bias: Porter test: “a fair-minded and impartial observer would conclude there had
for Housing - created a policy whereby powers would be been a ‘real possibility’ of bias” + immaterial whether decision was affected by bias (ex p
delegated powers to Min of Agri on any appeal he had an Hook: defendant went inside a room with tribunal members while they made their decision)
objection to)
◦ Formulating a general policy as to exercise discretion in too Right to a fair hearing
strict a manner (British Oxygen case) • Preliminary rights:
‣ General policies allowed if they don’t consist of a ◦ right to a fair hearing and reasonable in circumstance (Lloyd v McMohan)
blanket ban and aren’t too inflexible ◦ both sides listened to fairly + right to respond at each stage (Board of Edu v Rice)
‣ Ex p Brent said decision maker’s mind must be “kept • three case categories (McInnes v Onslow-Fane):
ajar” (open) ◦ Forfeiture case: where someone will lose something they had = greatest rights (Ridge
‣ “policy”, “generally”, “normally” or “usually” = blanket v Baldwin: granted right to know case against them + right to refute evidence + reply)
terms that may indicate not considering individual ◦ Legitimate expectation cases ( ex p Coughlan: Lord Woolf LJ):
cases ‣ procedural LE = where normal procedure was not followed (ex p Liverpool
Improper or unauthorised purpose Taxi: written promise to consult taxi drivers before issuing more licenses was
• Powers must be used for the (express or implied) purpose that not followed), sub-part:
statute intended • rational LE: public authority needs to consider its past policies or
• Congreve case: the power to revoke TV licenses was to make sure representations (ex p Asif Khan: home office did not follow its own
they weren’t wrongfully used, not to increase revenue - decision to guidance on abroad adoption applications)
revoke Congreve’s license because renewed prior to price ‣ substantive LE = where someone was led to believe they will gain a benefit
increase was quashed (ex p Coughlan) - only when specifically communicated
• When there is a dual purpose for using power (unclear which ◦ Application cases: these generate fewest rights
prevails): ‣ McInnes v Onslow-Fane: no reasons or hearing was required to refuse a
◦ Primary purpose test/Westminister case: if the authorised boxing license
purpose = primary purpose then decision is not ultra vires ‣ If successful challenge, claimant will be granted an honest hearing without bias
◦ Material influence test/ILEA case: action not ultra vires if • Limitations to right of fair hearing:
unauthorised purpose had no material influence • There is no right to a fair hearing if ruling is preliminary (Lewis v Heffer)
Taking/failing to take account of irrelevant/relevant considerations • Generally no right to reasons (R (Hasan) v SOS for Trade) unless:
• ex p Fewings: three types of factors (check to see if any are in ◦ decision looks aberrant (ex p Cunningham)
statute): ◦ reasoning is in public interest (ex p Doody)
◦ Mandatory factors: must be considered ◦ not giving reason would prevent the legality of the decision being challenged in
◦ Prohibitory Factors: must not be considered court (R (Help Refugees Ltd) v SoS Home Dep)
◦ Discretionary Factors: decision maker can choose • Right to a fair hearing does not include right to oral hearing/cross examination of
• Roberts v Hopwood [1925]: generous gender-equal minimum witnesses
wage was considered to be taking irrelevant consideration of the ◦ But in forfeiture cases one may expect right to oral hearing/cross-examination
“feminist ambition” and “socialist philanthropy” + did not consider ◦ Oral hearing only when fair and reasonable - dependent on each case (Lloyd v
relevant consideration of the effect on wage levels in the labour McMahon)
market.
• Padfield v Min of Agri: the potential political embarrassment of a • Rules of natural justice do not apply to bodies that have a legislative rather than
minister was an irrelevant consideration judicial function e.g. bylaws (Bates v Lord Hailsham)
Errors of law/facts
• Errors of law = decision maker has misread its legal powers = Procedural ultra vires
always reviewable (Anisminic case) • The correct procedure set out in legislation must be followed, otherwise:
• Exceptions: ◦ ‘Mandatory requirement’ courts will automatically quash the decision
◦ error did not effect outcome ◦ ‘Directory requirement’ courts decide whether to quash or not
◦ interpreting technical/special system of rules (ex p Page = • Test: ‘whether or not claimant substantially prejudiced by non-compliance with an
statutes of a university) important procedural safeguard’
◦ power granted is capable of broad interpretations (ex p • s.13 Education Act 1944 required local authorities to put up notices in certain places if
South Yorkshire Transport = body trusted to determine what school was closing down/changing
counts as a ‘substantial part of the United Kingdom’) ◦ Bradley v London Borough of Enfield: no notice was put up at all = mandatory
• Errors of fact = courts reluctant to review unless they are requirement
◦ ‘jurisdictional’ errors (Khwaja case) ◦ Coney v Choyce: notice was put up in the wrong position = directory requirement
‣ Ignores well established facts (E v SoS Home • R v Soneji: courts should use ^ requirement and then consider whether parliament would
Department) have intended non-compliance with statutory procedure to invalidate decision
‣ no evidence behind findings (SoS Education v (purposive approach)
Tameside MBC = grammar school case)
