Judicial Review

There is a general rule that decision-making powers, once given by Parliament cannot then be further 'sub-delegated'.

Lord Greene MR confirmed that in exception to the rule against delegation, government Ministers may sub-delegate decision-making powers to civil servants in their department.

This is because under the convention of ministerial responsibility, govt. Ministers are ultimately responsible to Parliament for their departments.

Under s101 of the LCA 1972 local authorities may delegate decision-making powers to committees, provided they make a formal resolution to do so.

Minister of Housing and Local Government reject an appeal from Lavender & Sons (who had had planning permission rejected). The letter of rejection stated that he would not grant permission for mineral extraction unless the Minister of Agriculture is not opposed to it, as was the case.

The court found that although the Minister for Agriculture was entitled to formulate a general policy, this decision had not been based on a general policy but on another Minister's objection. The Minister of Housing and Local Government had fettered his discretion by not opening his mind to Lavender & Sons appeal.

Applying a general policy as to the exercise of discretion in too strict a manner.

Ministry of Technology formulated a general policy of only awarding grants in plant and machinery if the item in which the business is to invest costs at least 25. However, BO wanted to invest in 4million worth of oxygen cylinders that only cost 20.

The HofL held that MofT did have the right to formulate its own general rule, but only provided it did not preclude the Ministry from considering individual cases.

Lord Reid stated that anyone who has a statutory discretion must not shut his ears to an application and must always be willing to listen to anyone with something new to say.

Using power for improper or unauthorised purpose

CofA found that the Home Office had no authority to revoke licenses. The purpose was simply to raise revenue in a way not provided for by Parliament.

This would represent a misuse of power conferred on the Government by Parliament.

Dual Purposes- 'Primary purpose' test

HofL found that the primary object of the Corporations was the construction of the lavatories with a necessary entrance/ exit (not build a subway.)

It was held that where there are dual purposes behind a decision, provided the permitted/ authorised purpose is the 'primary' purpose then the decision is not ultra vires.

Dual purposes- Material influence test

Modified the Westminster Corporation (primary purpose test) to ask 'Was the authority pursuing an unauthorised purpose which materially influenced the making of its decision'

Taking into account irrelevant considerations and failing to take into account relevant considerations

Poplar Borough Council had exercised its power under statute to pay its employees such wages 'as it saw fit'. They proceeded to set generous minimum wages.

The HofL found that the Council had taken into account irrelevant factors (socialist philanthropy and feminist ambition) and also failed to take into acccount relevant considerations, namely wage levels in the labour market and the burden which would be placed on the rateplayers.

Taking into account irrelevant considerations

Minister for Agriculture had a discretionary power to hear complaints made by those in the farming industry about the conduct of the Milk Distribution Board. The Minister refused to consider a complain because he was concerned about the potential political embarrassment if his close links to the Board came out.

It was found that potential political embarrassment to the minister was not a matter the Minister ought to have taken into account when refusing to consider the complaint.

An error of law will always be amenable to judicial review

Ouster clause

This case confirmed that full ouster clauses are a 'nullity' as Parliament could not have intended to have provided that its decisions were immune from challenge.

Errors of fact

HofL said that decisions based on alleged errors of fact which go to the root of a public authority's capacity to act (ie 'jurisdictional' or 'precedent' facts) are reviewable.

The 'Wednesbury Principle'

Laid down by Lord Greene MR. 'Having regard to relevant considerations only, the decision-maker came to a conclusion so unreasonable that no reasonable authority could ever have come to it.

• Revised irrationality test
• Lord Diplock: a decision needs to be 'so outrageous in its defiance of logic that no sensible person could have arrived of it.'

Revised irrationality test

The test should be that the decision maker acted 'beyond the range of reasonable responses open to the decision maker'

Lord Roskill used the term 'Wednesbury unreasonableness' and found the decision irrational.

Rules of natural justice

Lord Russell: It is implied that Parliament does not authorise powers to be exercised in breach of the rules of natural justice, unless expressly stated.

Right to a fair hearing

Claimants should know the case against them and have the right of reply at each stage of the decision-making process.

The rule against bias- direct interest

HofL established that an interest which may lead to financial gain falls into the direct interest category.

The rule against bias- direct interest

Lord Brown-Wilkinson extended the category of direct interest to non-pecuniary interest where the decision-maker is involved in promoting the same cause as a part to the case.

The rule against bias- indirect bias

The HofL said that the following test should be applied in cases of apparent indirect bias:

'would a fair-minded and impartial observer conclude that there had been a real possibility of bias?' (not if there was actually bias, but how the decision-making process would appear to the observer).

Right to a fair hearing

The right to a fair hearing is flexible and depends on the context of each individual case.

The right to a fair hearing

Megarry V-C established three categories of claimant depending on the nature of their interest.

1) forfeiture (deprived of something they previously enjoyed)

2) Legitimate expectation (seeking renewal or confirmation of something which he has held previously- ie expect the established practice will continue)

3) Application (first time applicant)


This case was a mere applicant case. C had been rejected for a boxing managers license 6 times and claimed he had not received a fair hearing. However, the court held that the all the rules of natural justice required was that the license granting board act honestly and without bias.

Rules of natural justice- forfeiture cases

HofL held that the outcome was of special importance to the complainant as he stood to lose his pension rights and livelihood. Therefore he was entitled at the very least to know the case against him. The decision to dismiss Ridge was unlawful.

Rules of natural justice- legitimate expectation cases

Taxi drivers were given a written promise that more licenses wouldn't be granted, but this promise was then broken. The Council was not at liberty to disregard its promise.

Rules of natural justice- legitimate expectation cases

Khan's nephew was not admitted to the UK with the reason given not contained in the Home Office's circular on immigration rules.

Rules of natural justice- applicant

The Gaming Board were under a duty, even with first time applicants, to give applicants a sufficient indication of the objections against them to enable them to answer those objections. However, it had done this. It had no further duty to give reasons for its decisions.

When does the right to a fair hearing apply?

It was held the that Labour Party members who had been suspended had not yet been dismissed and, since the investigation was only at a preliminary stage and a final decision had not yet been made, the officers did not have the right to seek judicial review.

Duty to give reasons

High Court ruled that the law did not recognise a general duty to give reasons for an administrative decision.

Duty to give reasons (exception)

Where the decision looks aberrant there may be a duty to give reasons. In this case Cunningham was given less than half of the normal compensation payout for unfair dismissal for no apparent reason, not was any reason even offered.

Duty to give reasons

Lord Mustill expressly accepts there is no general duty to give reasons for an administrative decision.

However, he made an exception in this case because the decision related to the prisoner's term of imprisonment. This was clearly a very serious issue that had a serious impact on the individual's rights.

Right to a fair hearing

Every claimant, regardless of the category of case, is entitled to a hearing which is fair and reasonable in all the circumstances.

Lord Bridge said that:

'what the requirements of fairness demands depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates.'

Therefore, what is a fair hearing depends on the facts at hand.

Fairness and cross-examining of witnesses

Lane LJ said there should be discretion as to whether cross-examining should be permitted, but if the circumstances required it, it should be allowed.

Here the right to cross-examine was needed to enable prisoners to contest hearsay evidence.

Delegated legislation

The rules of natural justice do not apply to legislative functions because delegated legislation usually affects the public or a section of the public as a whole, rather than having a separate effect on each individual's rights. Fairness could not dictate that each member of the public should be heard before legislation is made.

Mandatory/ directory requirement

LEAs were required by statute to give notice to the public if they closed down existing schools, opened new schools or changed the nature of a school.

The school had not given any notice at all since it believed such notice would cause chaos.

It was found that there had been a breach of a mandatory requirement by failing to comply with the statutory instructions to provide notice.

Mandatory/ directory requirement

LEAs were required by statute to give notice to the public if they closed down existing schools, opened new schools or changed the nature of a school.

Unlike in the case of Bradbury, the school had placed notices but they had not complied with the requirement to place a notice near the entrance of the school. The court found in favour of the authority and said that they had merely breached a directory requirement rather than a mandatory requirement.

Mandatory/ directory requirement (revised approach)

Lord Steyn: Urged to move away from rigid mandatory/ directory requirement definition. Correct approach for the court is to put itself in the position of those who had enacted the legislation. Would Parl. have intended the consequence of non-compliance with the relevant statutory requirement to be the invalidity of the decision that had been taken?

Procedural exclusivity

Lord Diplock said that there were clear public policy reasons for not allowing 'evade safeguards imposed in the public interest against groundless, unmeritorious or tardy attacks on the validity of decisions' by using an ordinary civil claim rather than judicial review.

Identity of decision-maker

Source of power test- if the body making a decision has been set up under statute or under delegated legislation, or derives its power under  a reviewable prerogative power, then it is a public body.

Nature of power- if the body make the decision is exercising public law functions, it may still be a public body.

Sufficient interest

s31(3) SCA 1981: C will only have sufficient standing to bring a judicial review claim if he has 'sufficient interest in the matter to which a claim relates'

Time limit

s31(6) SCA 1981 allows the court to refuse a claim where it feels there has been  'undue delay'.

Sufficient interest

A pressure group may have sufficient standing to bring a claim in JR. The two most important factors are whether anybody else is better placed to bring the claim and the role of the pressure group.

Time limit

CPR r 54.5(1) requires that a claim form must be filed promptly and in any case within a maximum of three months.

Rule 54.5(3) Time limits are without prejudice to any statutory provisions shortening time limit.

Time limit

Emphasised that CPR r 54.5(1) three month rule is a maximum time limit and courts still have the right to refuse a claim within that time if there has still be an undue delay.

In this case C knew of the decision to grant planning permission for a wind farm as soon as the decision had been made and there was no reason for delaying the application for JR. It had not been made promptly.

Time limit

The application was not submitted with three months specified in CPR 54.5(1) but there were valid reasons for this (problems with legal aid, waiting on decision from SofS for Environment, permission to obtain planning drawings) so there had not been undue delay.

Time limit

Confirmed that if an applicant was unaware of JR as a course of action and makes an application after three months there is no obligation for the courts to extend the deadline. In this case it was 2yrs after the decision.

Ouster clauses

CofA upheld the validity of a 'partial' outster clause restricting the time limit for JR applications to six-weeks.

Implied ouster clause- statutory remedies

Under the Tax Management Act 1970, Goldstaw had 30 days to appeal against the decision, which he failed to do.

The court confirmed that if C has failed to make proper use of an appropriate statutory procedure, it will not normally use its discretion to allow an application for JR.

s6- Decision maker 'public authority'?

s7- Claimant 'victim'?

Conditional rights (check Art. wording)

• 1) Limitations prescribed by law?
• 2) Legitimate aim (check Article)
• 3) Necessary in democratic society?

- Daly test

i) legislative object 'sufficiently important to to justify limiting fundamental right?

ii) measures designed to meet that legislative objective rationally connected to it?

iii) means used to impair freedom 'no more than necessary' to accomplish objective.

Public authorities cannot act without legal authority. If they do so, their decision will be ultra vires because of the lack of relevant power.