Why is judicial review of executive action so important?
By Simon Parsons, HILS member.
In any state there is a need for public officials, as it is only through them that the state can do anything. These officials include ministers, legislators, police officers, tax officers and other administrators, central and local. They are referred to as public bodies and they are given many legal powers and duties which enable them to govern the country. In the most part these powers and duties are given to public bodies by Acts of Parliament although some are given by the common law i.e. via the royal prerogative. The legality of the use of these powers can be challenged by the process known as judicial review and the court of first instance is the Administrative Court which is part of the High Court.
Decisions of public bodies can be challenged by way of judicial review and may be quashed as ultra vires (beyond its powers). Following the incorporation of the European Convention on Human Rights in domestic law many judicial reviews concern the abuse of Convention rights. In Council of the Civil Service Union v Minister for the Civil Service  AC 374 (the“GCHQ”case) the House of Lords held that a public body’s decision may only be quashed if it abused its power (illegality), or if it failed to observe the basic rules of natural justice or it failed to act with procedural fairness (procedural impropriety), or if the public body’s decision was so irrational or perverse that no reasonable body could have made it (unreasonableness or irrationality). These are the common law principles (or grounds) of judicial review of administrative action the last one being also known as ‘Wednesbury unreasonableness’ (Associated Provincial Picture Houses Limited v Wednesbury Corporation  1 K.B. 223 (CA)) a term that is often used interchangeably with the term ‘irrationality’. To these must be added proportionality which is the appropriate standard of review for human rights and EU law. In each case where a ground (or grounds) is made out, the public body’s decision will be void from the beginning i.e. as if the decision had never been taken (void ab initio).
When determining whether governmental action is legal and valid the Administrative Court is exercising what is known as an inherent jurisdiction i.e. it derives from the common law which has developed over centuries and not from statute. The judges are very quick to resist any attempts to curtail this jurisdiction because it gives effect to the underlying values of judicial review that is the rule of law and the separation of powers. See, for example, R (Ben Hoare Bell solicitors and others) v Lord Chancellor  EWHC 523 (Admin). The rule of law requires that those who exercise governmental power comply with minimum standards of good government which are essential in a liberal democracy. Decisions have to be legal, reasonable, rational and fair and untainted by bias and partiality. Judicial review is also important to the separation of powers because it is requires an independent and impartial judiciary to supervise the executive i.e. those who exercise governmental power.
Judicial review is the last option to choose. If there is another way of challenging the exercise of governmental power, such as statutory right of appeal then it should be used. Judicial review is discretionary as the Administrative Court can refuse permission for a judicial review or refuse to grant sought remedies. The Administrative Court has the jurisdiction to intervene to consider whether a public body has the statutory power to make a decision but also (this is the big shift in judicial policy that started in the 1960s) whether a public body, having the power to make a decision, abused its discretion (e.g. by taking into account an irrelevant consideration).The court has the jurisdiction to hold that a purported decision is a nullity see Anisminic v FCC (No 2)  2 AC 147 (HL).
Supervision not appeal.
These principles of English public law do not permit the Administrative Court to make findings of fact on matters within the province of the public body or substitute its discretion for that of the public body. Judicial review looks at legality, not merits-it cannot provide the applicant with a substitute decision. The court will not review a decision in order to determine whether or not it was the right decision to make-that would be a review on the merits. The court will only review a decision so as to determine whether or not it was a lawful decision i.e. did the decision maker make an illegal, or irrational decision or was the decision was the result an improper procedure. If the claimant considers that a public body has made the wrong decision but the Administrative court finds that the public body acted within its powers (intra vires) the application for judicial review will be refused because findings of fact are a question for the public body not the court. Thus the jurisdiction of the court is supervisory and not appellate.
The difference between supervision and appeal is important because it acknowledges that Parliament has the sovereignty to decide who makes governmental decisions and not the courts. The separation of powers is thus observed. For example, in R (AC) v Berkshire West Primary Care Trust  EWCA Civ 247 the claimant was a male to female transsexual who was dissatisfied with the hormone treatment given to stimulate breast growth, so she applied to the Trust for a breast augmentation. The Trust had a policy to fund breast reduction for female to male transsexuals but not to fund male to female augmentation. The Trust considered that augmentation did not improve psychological condition of male to female transsexual patients contrast reduction for female to male transsexuals. Thus the Trust ruled out providing augmentation on a routine basis because it took the view it was not clinically effective. The claimant had not shown any exceptional circumstances to justify funding the augmentation and so was refused it. The claimant sought judicial review of that decision. The claimant’s case failed both in the High Court and the Court of Appeal. The Court of Appeal took the firm view the Trust was entitled to take the decision as to whether a proposed treatment was likely to be clinically effective or not. The Trust was required by statute to consider the views of treating consultants who recommended the augmentation but was entitled to reach its own view as to what treatments would be funded as part of NHS care. It was a decision on the merits of the treatment and was intra vires and lawful. If the court had substituted a decision to allow for the augmentation that would be an abuse of its constitutional role because it would amount to an appeal under the guise of judicial review. Parliament had entrusted the treatment decision to the Trust not the court and if the court took the decision it would undermine the sovereignty of Parliament and the separation of powers. The courts would be straying into the area of public policy which is a matter for those who have governmental power i.e. the executive. Contrast if the Trust had not taken the views of the consultants before taking the decision not to treat then the court could intervene as that would be procedural ultra vires and unlawful. The court could quash the decision and order the Trust to consulate but the final decision would still be with the Trust.
Applying for judicial review-the procedure.
Before applying for judicial review the parties should follow the pre-action protocol which was first introduced in 2002. It is issued by the Ministry of Justice and requires the parties to consider the use of alternative dispute resolution and the parties are warned that, if the protocol is not followed and litigation is started prematurely, then that conduct will taken into account when determining costs. The protocol sets out best practice to be followed before issuing a claim although this is not mandatory and it is up to the parties as to how a settlement should be reached. Best practice can include using the service of an ombudsman or mediation by an independent third party. The protocol does not apply where the claimant is an asylum seeker and is about be removed from the United Kingdom. If the protocol fails then the claimant (assuming there is not a right of appeal) may apply for judicial review. The following needs to be considered.
Is the defendant a public body?
The answer must be yes for the defendant to be susceptible to judicial review. Most public bodies are created by Act of Parliament to carry out a public function, for example the Legal Aid Agency. Government ministers are public bodies as are local authorities. The BBC is a public body having been created by Royal Charter. More rarely public bodies can be created by a minister exercising the royal prerogative e.g. the Criminal Injuries Compensation Board (CICB) see R v CICB ex parte Lain  2 QB 864 . The most difficult case is that of regulatory bodies whose powers do not originate from statute nor from the prerogative. For example, the City Panel on Take-Overs and Mergers has no formal legal status but is subject to judicial review because it exercises governmental power and is subject to statutory sanctions see R v Panel on Take Overs and Mergers ex parte Datafin plc  QB 817. Decisions of the CILEx disciplinary tribunal can be subject to judicial review: R (Kaur) v Institute of Legal Executives Appeal Tribunal  EWCA Civ 1168. Inferior courts such as county courts and magistrates’ courts are subject to judicial review. The Crown Court is subject judicial review but only on matters that do not relate to trial on indictment. Thus all of these are regarded as public bodies.
In respect of judicial review and the European Convention on Human Rights under section 6 (1) of the Human Rights Act 1998 (HRA) Convention rights are binding only against ‘public authorities”. Under section 6 (3) (b) HRA the term covers ‘any person certain of whose function are functions of a public nature’. This means that ‘public authority’ includes bodies which are self-evidently of a public nature, such as government departments, the police, local authorities, the security and intelligence services. These are referred to a ‘standard or core public authorities’. They are bound by Convention rights in all their functions both public and private. Secondly there are ‘functional public authorities’ these also have both public and private functions but by section 6(5) HRA are bound by Convention rights only in respect of their public functions. For example, the acts relating to employment are private so an employee of a core public authority could use Convention rights directly against that authority but an employee of a functional public authority could not. Examples of functional public authorities are the privatised utility companies. Section 7 HRA allows for proceedings to be brought by judicial review.
Is it a public law decision?
A public law decision is one in which there is the exercise of governmental power by a public body. If there is such a decision then it ought to be challenged by judicial review (the exclusivity rule) whereas private law matters are to be dealt with by ordinary action: O’Reilly v Mackman  2 AC 237 HL. The procedure is set out in the Civil Procedure Rules 1998, Part 54. There are, however exceptions to the O’Reilly principle: (i) where none of parties object to the use of private law or (ii) where a claimant was asserting a private law right which incidentally involved the examination of a public law issue, he can seek to establish that right in a private law action: Roy v KCFPC  1 AC 624 HL or (iii) using public law as a defence to a private law matter: Wandsworth LBC v Winder  1 AC 46. If the decision is relating to private law then ordinary civil action should be used, e.g. sue for trespass, negligence, breach of contract etc.
Under Part 54 the claimant must obtain the court’s permission to apply for judicial review (the permission stage).
The purpose of this stage is to filter out claims that are unworthy of consideration. First, is the claim ‘meritorious’ -does the claim contain an arguable case? This is subject to the ‘no difference’ principle.If the court concludes that it is highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred, then the court must refuse permission unless there are ‘reasons of exceptional public interest’ which makes it appropriate for permission to be granted: section 84 Criminal Justice and Courts Act 2015. Second, does the court have jurisdiction? For example, in Council of Civil Service Unions v Minister for the Civil Service  A C 374 HL (GCHQ Case) the House of Lords held that whilst judicial review of the exercise of prerogative powers was possible that depended on the subject-matter of the prerogative power. Prerogative powers relating to the making of treaties, the defence of the realm, the prerogative of mercy, grant of honours and the appointment of ministers are non-justiciable and cannot be subject to judicial review. To hold otherwise would result in the courts straying into the political sphere where policy decisions have to be made and that is a matter for Parliament and the executive. Third, ouster clauses- it is quite common for an Act of Parliament to have in it a clause either completely excluding the judicial review of a public law decision or imposing a time limit for judicial review usually six weeks. The House of Lords in Anisminic was able to get around the former so as to uphold the rule of law. In respect of the latter the courts regularly accept such time limit clauses and hold the claimant to them: R v Secretary of State for the Environment,ex parte Ostler  3 WLR 288. Fourth, the claimant must apply promptly without undue delay and in any case within three months although the court can under Part 54 extent the time-limit. Fifth, the claimant must have pursued all alternative remedies before applying for judicial review (the cardinal principle). Lastly, the claimant must be able to show that they have standing or locus standi in respect of the alleged ultra vires decision i.e. some right of the claimant that should be protected by law has been subject to an alleged abuse of power by a public body which is so severe that judicial review is justified see section 31 (3) of the Senior Courts Act 1981. This requirement means some claimants will get permission to proceed and some will not. Standing is initially dealt with at the permission stage but may be considered again if the judicial review proceeds to trial at which point the court will be in possession of all the facts and law. This means that a claimant who was given standing at the permission stage may have it withdrawn at the substantive hearing. It is possible for pressure groups to have standing (associational standing) see R v Inspectorate of Pollution ex parte Greenpeace Ltd (No 2)  4 All ER 329. To have standing in respect of a judicial review alleging violations of human right the claimant must be a victim of the alleged violation see section 7 HRA.
Remedies are to be specified at the permission stage. Once permission is granted the case then moves on to the substantive hearing stage. This stage and remedies will be considered in a second article.