Judicial review: the substantive hearing stage and remedies.
By Simon Parsons, HILS member.
In the second half of the last century judicial deference to the government reduced and there was a great increase of judicial review of governmental power. This involved the development of the common law doctrine of ultra vires (beyond the powers) which supported the fundamental principles of the British Constitution namely the legislative sovereignty of Parliament and the rule of law. The executive should not exceed or abuse the governmental power given to it by the Parliament. This was a response to judicial concerns that political parties who had large majorities in the House of Commons were able to give ever greater powers of government to the executive i.e. the government. Note the concern today in Parliament of proposals to give ministers ‘Henry VIII’ powers in respect of Brexit i.e. the power to issue secondary legislation and the power to amend primary legislation with limited Parliamentary scrutiny.
This article examines the possible grounds to challenge the public law decisions taken by public bodies. Decisions of public bodies are liable to challenge by way of judicial review and may be quashed as ultra vires (beyond the powers) by reference to the ordinary principles of English public law. The jurisdiction of the court is supervisory and not appellate thus judicial review looks at legality, not merits (the quality of the decision) it cannot (supposedly) provide the applicant with a substitute decision as the decision is for government.
What are the possible grounds for the challenge? (Substantive hearing stage).
In Council of Civil Service Unions v Minister for the Civil Service  A C 374 HL (GCHQ Case) Lord Diplock identified (at 410-411) three grounds of judicial review as:
- Illegality -where a public body abuses its power. (Substantive ultra vires).
- Irrationality -unreasonableness- a decision that defies logic- a decision that no sensible person who had applied his mind to the subject matter could have arrived at. It requires something overwhelming. The standard has to be this high to avoid the danger of the court deciding on the merits of the decision. (Substantive ultra vires).
- Procedural impropriety-this encompasses failure to observe procedural rules set down in an Act of Parliament (procedural ultra vires) or failure to observe the rules of natural justice.
The first two grounds are known as the substantive grounds for judicial review because they relate to the substance or legality of the disputed decision. Procedural impropriety is aimed at the decision making process rather than the substance or legality of the decision itself. To these must be added proportionality which is the appropriate standard of review for human rights and EU law. There is also the doctrine of legitimate expectation. Note that the grounds overlap.
This was the most used and the most important ground until the development of proportionality. It is aimed at abuses of power by public bodies and includes the following. First, irrelevant and relevant considerations. A decision maker when given a discretionary power by Parliament must take into account relevant matters and ignore irrelevant matters. So in Roberts v Hopwood  AC 578 a local council was given statutory power to pay its employees’ wages. The council made the decision to pay its both its men and women employees a wage of £4 per week which was much higher than wages in the private sector. The cost of living fell but the council did not reduce the wages, even though the wages in the private sector were falling. The legality of the council’s decision was considered by the House of Lords and the House quashed the decision as ultra vires and illegal because the council had been influenced by irrelevant considerations namely social philanthropy and feminist ambition. The council had failed to take account of relevant considerations namely the wages level in the private sector and the cost to ratepayers. Second, fettering a discretion by the adoption of a policy. This principle was considered in British Oxygen Co Ltd v Minister of Technology  AC 610 where the Minister was given a statutory power to give companies grants to buy new plant and machinery. The Minister adopted a policy not to award grants for items costing less than £25. British Oxygen made an application for a grant for gas cylinders each one of which cost £20. The application was turned down. British Oxygen then made a challenge to the Minister’s decision arguing that the policy prevented the proper consideration of the application. The House of Lords held that the policy was legal providing the Minister, through his officials, was ready to make to exceptions it. The officials had ‘listened to all that the applicant had to say’ with an open mind thus there had been a valid exercise of the discretionary power. Thus the refusal to make a grant was intra vires and legal. Third, statutory powers must be not be used for an improper purpose but rather for the express or implied purposes for which they were granted. If the power is used in a way that is inconsistent with enabling Act’s objectives then it will have been have been used illegally. For example, in Laker Airways v Department of Trade  QB 643 the Minister of Trade was held to acted illegally when he used his statutory power to promote competition in long haul flights to protect British Airways dominant position on the transatlantic flight route. The power may be used another purpose but the authorised purpose must be dominant. For example, in Hanks v Minister of Housing and Local Government  1 QB 999 the Minister was given a statutory power to compulsory acquire land for redevelopment. Land was acquired but his power was also used alter the route of roads in the land acquired. This was held to be essential to achieve the redevelopment and therefore intra vires and legal. Fourth, fettering discretion by wrongful delegation. When an Act of Parliament gives a public body a discretionary power the general rule is that it illegal for that public body to delegate that power to another body or person. This does not mean that civil servants or local government officials cannot take decisions on behalf ministers or local authorities as the act of the official is considered to be that of the minister: Carltona Ltd v Commissioner of Works  2 All ER 560. But the delegation of a judicial power by a statutory body will be considered illegal, for example, in Vine v National Dock Labour Board  AC 488 a dock worker had been sacked by a committee set up by the Board. This was held to be illegal because it was a judicial power and was too significant be delegated. In contrast administrative powers may be legally delegated for example, in R v Race Relations Board, ex parte Selvarajan  1 WLR 1686 the Board was able to delegate its statutory power to investigate race relations to a committee, that carried some preliminary investigations and reported back, as that was an administrative function and it was not possible for the Board alone to carry out these investigations. Lastly, an error of law, this happens when a court or tribunal misinterprets a law which it has to apply to a case with the result there is an illegal decision by that court or tribunal see Anisminic v Foreign Compensation Commission (No 2)  2 AC 47 HL.
Before the GCHQ case and after it this ground of judicial review is also called ‘Wednesbury unreasonableness’ after Associated Provincial House v Wednesbury Corporation  1 KB 223. It is taken to have two meanings. First, abuse of discretion- this is where a public body is held to have acted unreasonably when it incorrectly interprets the law or it fails to consider matters that should be consider. Second, other abuses of discretion i.e. decisions that appear to be ‘so unreasonable that no reasonable authority could ever come to it, then the court can interfere…but to prove a case of that kind would require something overwhelming’ per Lord Green MR in Wednesday at 230. In the GCHQ case Lord Diplock said ‘By irrationality I mean what can now be succinctly referred as “Wednesbury unreasonableness”…It applies to a decision that is so outrageous…that no sensible person who applied his mind to the question to be decided could have arrived at it’. It is clear that this refers to the second meaning given by Lord Green and it requires something so irregular or exceptional that the courts have to intervene. For an example see Backhouse v Lambeth LBC (1972) 116 Sol Jo 802. It has to be set at such a high level to avoid the claim that the court does not like the merits of the decision so decides to change it. That would unconstitutional because Parliament has decided the decision is for the public body not the court. Thus this ground of review is rarely used and tends to be a last resort and when it is pleaded it is with other grounds. That said, there is obiter dictum in Association of British Civilian Internees- Far East Region v Secretary of State for Defence  EWCA Civ 473 which suggests the strictness of the Wednesbury test has been relaxed in recent years and is moving closer to proportionality and in some cases it is difficult to see any daylight between the two grounds. Thus there is no justification in retaining the Wednesbury test (per Dyson LJ). That may be so but the demise of the test is a matter for the Supreme Court.
The third ground of challenge recognised by Lord Diplock in the GCHQ case is procedural impropriety which is where a public body commits a serious procedural error. It covers two things. First, decisions that have been taken in violation of a procedure laid down in Act of Parliament either because the procedure has been overlooked or has been improperly observed (procedural ultra vires). There is a distinction between a ’mandatory’ requirement and a ‘directory’ requirement. The failure to observe a mandatory requirement will make a decision ultra vires. In contrast the failure to observe a directory requirement may not cause the resulting decision to be invalid. The courts may decide that a statutory procedure has both mandatory and directory requirements. For example in Bradbury v Enfield Borough Council  1 WLR 1311 a local education authority was required by the Education Act 1944 to give notice of, and the opportunity to object to, a plan to change the status of some of it schools to comprehensive. It failed to do so and this was held to be a mandatory requirement so the council had acted procedurally ultra vires. Contrast Coney v Choyce  1 ALL ER 979 where a local education authority also decided to change the status of its schools to comprehensive. It gave notice in newspapers and on public buildings and the opportunity to object but the authority failed to give notice outside the schools. The court held that the mandatory requirement of the 1944 Act to give adequate publicity had been satisfied and the requirement to put notice outside the schools was only directory. The authority’s decision was therefore procedurally intra vires and valid. So whether a requirement is mandatory or directory all depends on context sometimes the mistake will prejudice individual rights and sometimes the mistake will be trivial, the court must use its common sense to decide which.
Second, decisions that are taken in breach of the common law rules of natural justice. These consist of the right to a fair hearing and the rule against bias. They apply in both public law (especially in criminal cases) and private law (e.g. in a negligence claim). The right to a fair hearing has three central requirements (i) both sides to a case must receive reasonable notice of a hearing and be informed of the case to be answered ,(ii) the right to have a reasonable time to prepare a response and (iii) the right to be heard whether in person or in writing. There is no right to legal representation unless an oral hearing cannot be conducted in a fair way without it. There is no duty to give a reason for a decision in English law although such a duty may be imposed by statute. The rule against bias means that a person given power by law to take decisions which can have detrimental results for others should not act if they have any actual, financial or apparent interest in the issue to be decided. It should be noted that since the Human Rights Act came into force in 2000 the Convention rights of the right to liberty (article 5) and the right to a fair trial (article 6) exist in domestic law and are in addition to the common law rules.
Following the incorporation of the European Convention on Human Rights into domestic law, proportionality is applied domestically in human rights cases as the House of Lords held in R v Secretary of State for the Home Department ex parte Daly  UKHL 26 that for all cases raising a human rights issue, proportionality was the appropriate standard of review. Proportionality works on the assumption that administrative action ought not to go beyond what is necessary to achieve its desired result (in everyday terms, that you should not use a sledgehammer to crack a nut) and is often understood to bring the courts much closer to reviewing the merits of a decision. In Huang v Secretary of State for the Home Department  UKHL 11 this was added to by reference to the overriding need to ensure a fair balance between the rights involved. But note judicial deference which means that there are some choices of the executive or Parliament which the courts will accept as within a range of proportionate outcomes i.e. that on some issues a court cannot distinguish on proportionality grounds between a number of different options made available to a public authority. In other words, a public authority should only do that which, within a reasonable range of discretion, is proportionate to the desired result. A public authority’s use of discretionary powers should not result in decisions which cause a higher degree of interference with the rights of individuals than is required to achieve the desired result.
Note the doctrine of legitimate expectation see UPG v Att-Gen of Trindad & Tobago  UKPC 17 In the words of Lord Neuberger, in his leading judgment in the case, legitimate expectation is ‘based on the proposition that, where a public body states that it will do (or not do) something, a person who has reasonably relied on the statement should, in the absence of good reasons, be entitled to rely on the statement and enforce it through the courts’.
Required remedies should be pleaded for at the permission stage. They are discretionary so even if the claimant succeeds in their judicial review they are not entitled to the remedies as of right. The court has discretion over all remedies and can even award remedies not pleaded for. The remedies which the court may grant following a successful judicial review are as follows. First, a quashing order, by which the court sets aside a decision found to be unlawful. Second, a prohibiting order, by which the court prohibits a public body from performing an act found be unlawful. Third, a mandatory order, by which the court orders a public body to perform a statutory duty. Fourth, a declaration, by which the court declares that a decision is or will be unlawful. Fifth, an injunction which usually is an instruction not to do something but it can be positive. Lastly damages, by which (in limited circumstances) the court can award monetary compensation.
A quashing, prohibiting, or mandatory order can only be sought in judicial review proceedings. In practice the most common order is the quashing order by itself, even though the claimant has, for example, also requested a prohibiting order. This is because Parliament has given the decision to the public body and not the court so that decision will have to be remitted back to that body with instruction to make a fresh decision in accordance with the judgment of the court. It offends the principle of separation of powers for the court to decide the merits of the decision. However ‘where the court considers that there is no purpose to be served in remitting the matter to the decision-maker it may, subject to any statutory provision, take the decision itself’ CPR 54.19 (3). This is known as the substitutionary remedy and it allows the court to consider the merits of a decision. However the remedy may not be used where a statute declares it cannot. Also the remedy can only apply to decisions of inferior courts and tribunals where the court or tribunal has made an error of law or, where there is no error but there is only one decision which the court or tribunal can make. The result is that this remedy is a means for the court to save time rather than a general power to substitute its discretion for that of a public body.