The area of law in which this question is concerned is judicial review. Judicial review can be defined as ‘… the means by which the Courts control the exercise of Governmental powers. ’ The Courts will look at the way in which a decision was made, not the decision itself, to find out if any powers have been abused.
Judicial review is an application to the Courts to assess an action or decision made by a public body on a point of public law. A particular decision may be found to be in breach of natural justice or have been made ultra vires, that is, beyond the scope of the powers.The case of O’Reilly v Mackman shows the general rule that when claiming against a public body, judicial review should be used. Lord Diplock described this as an ‘exclusivity principle’. The use of this principle has been criticised by academics due to the strictness of it, and has been referred to as a ‘serious setback in administrative law’ .
The courts have since tried to use a broader approach in relation to the use of judicial review. In Roy v Kensington and Chelsea and Westminster FPC , the House of Lords held that judicial review does not have to be used where a private law right involves addressing a public law matter.This decision was supported in Mercury Communications Ltd v DG of Telecommunications .
This illustrates the Courts taking a more flexible approach to that used in O’Reilly and focuses more on stopping an abuse of power than strictly distinguishing between the routes available in public and private law. Another exception is the use of collateral challenge. This allows judicial review to be used in a civil or criminal case as a defence, and it often involves a particular decision being made ultra vires. This can be seen in Wandsworth LBC v Winder and in the later case of Boddington v British Transport Police .
A public body normally derives its powers from the common law or Statute, but it has been found that many public bodies don’t relate in any way to the government. Therefore the courts look at the nature of the power being used to distinguish public and private bodies. In R v City Panel on Takeovers and Mergers ex parte Datafin the Courts looked at the panel in a way that questioned whether or not the Government would have had to make a body of similar functions if the Panel did not exist. They decided that they would and therefore it was the nature of the power which declared it a public body.However, in R v Disciplinary Committee of the Jockey Club ex parte Aga Khan the Courts decided that it was a private matter which meant that the nature of the functions exercised by the Club could not be subject to judicial review. Before leave for judicial review is granted, the applicant must meet two factors.
The case must be one which can be answered (prima facie) and the claimant must have ‘sufficient interest’ in the case which gives him the right to bring it to Court (locus standi). These elements are in place to stop ‘vexation litigants’ wasting the Courts time.In R v HM Inspectorate of Pollution, ex parte Greenpeace (No. 2) it was held that Greenpeace had a sufficient interest in the issue even though they weren’t directly affected by it.
For an applicant to rely on judicial review at least one of three possible grounds must be met; illegality, irrationality, and procedural impropriety. These grounds were laid down by Lord Diplock in CCSU v Minister for Civil Service (GCHQ case). Illegality was defined in the GCHQ case as ‘…the decision maker must understand correctly the law that regulates his decision making power and must give effect to it. By this he meant that the Statute or common law from which the power is derived must be followed but not be abused.
If the body goes beyond the scope of powers given to him then he is acting ultra vires. In Attorney General v Fulham Corporation it was found that the corporation had acted ultra vires as they had used the power for a purpose that had not been granted. When making or decision or an action, relevant aspects must be considered and irrelevant aspects should be ignored. If a final decision has been based on an irrelevant consideration then it will be deemed ultra vires.In Roberts v Hopwood it was held that the Council had looked at irrelevant aspects and ignored relevant ones.
However, the use of irrelevant considerations will not make a decision unlawful so long as it was a relevant consideration which largely influenced the final decision . Another aspect of illegality concerns a body delegating powers given to them to another person; this would also deem a decision ultra vires . However, it is possible for Ministers to delegate powers given to them to officials as it would be unreasonable to expect a Minister to complete all jobs given to them .The next ground is that of irrationality which was first introduced as ‘unreasonableness’ in Associated Provincial Picture Houses Ltd v Wednesbury Corporation . It was held that the decision of a public body will only be deemed unreasonable if they have reached the decision in a manner so unreasonable that no other authority could have reached it.
In Hall and Co v Shoreham-by-Sea UDC an unreasonable condition was found. An aspect of this ground is proportionality, which concerns itself with cases involving human rights or EU issues.It is often described as ‘taking a sledgehammer to crack a nut’ which refers to the means used to reach the end decision. It was fully accepted into UK law after the passing of the Human Rights Act 1998 but it was has been previously considered in R v Secretary of State for Home Department ex parte Brind . It was later followed in R V Secretary of State for Home Department ex parte Daly in which it was held that when looking at a breach of rights the Court must go beyond what is rational and consider what is proportionate.Procedural impropriety is the final ground and it involves two aspects; the failure to observe procedures laid down in the legislation, and, the failure to observe the basic rule of natural justice. The first aspect is concerned with procedural requirements which must be met when giving a decision. This includes giving notice to the individual(s) concerned and giving reasons for the decision.
In Lee v Department of Education and Science the amount of time given for appeals to be lodged was found to be a breach of the Education Act 1944.In Agriculture, Horticultural and Forestry Training Board v Aylesbury Mushroom Company a breach of statutory process was found after a failure to consult the Mushroom Company about a training scheme. The second aspect of procedural impropriety involves the failure to use natural justice as this can lead to an unfair decision.
This must be honoured in judicial review. Natural justice includes the rule against bias (nemo judex in causa sua) and hearing both sides (audi alteram partem), both of which are now included in The Human Rights Act 1998.It is unlawful for a decision to be based on a bias view.
A bias view often comes from a personal interest in the issue in question . The test for bias is that even a possibility of bias can render a decision unsafe and the case can be reheard, this was approved in Porter v Magill . A defendant has the right to know what his charges are and to put his side across, if this does not occur then the hearing of both sides has not been satisfied .