Chapter 23: Judicial Review: Introduction, Jurisdiction and Procedure

A. Introduction Judicial review represents the means by which the court control the exercise of governmental power. Government departments, local authorities, tribunals, state agencies exercising powers which are governmental in nature must exercise theirs powers in a lawful manners. Judicial Review has developed to ensure that public bodies which exercise law-making power or adjudicatory powers are kept within the confines of the power conferred. Judicial Review is concerned with the legality of the decision made, not with the merits of the particular decision. Accordingly, the task of the judges is to ensure that the exercise of any power which has been delegated to ministers and administrative and adjudicatory bodies is lawful according to the power given to that body by Act of Parliament. Judicial Review is principally concerned with the question of jurisdiction and natural justice. The primary question to be asked is whether a particular person or body with delegated law-making or adjudicatory powers had acted intra vires or ultra vires, and whether the decision making process entailed the application of natural justice. If the person or body was acting within its jurisdiction, and respecting the demands of natural justice, the courts would not interfere with the decisioneven the decision was in some respect wrong. B. The role of Judicial Review Has the decision maker acted within the power given? o In essence, the courts seek, by judicial review, to ensure 4 principal objectives: that Acts of Parliament have been correctly interpreted; that discretion conferred by statute has been lawfully exercised; that the decision maker has acted fairly; that the exercise of power by a public body does not violate human rights. C. What is a 'public body' for the purpose of Judicial Review? Judicial Review is only available to test the lawfulness of decision made by public bodies. If Judicial review is applied for, and the court rules that the body whose decision is being challenged is a private body, then remedy of the aggrieved individual will lie in private law, nor public law, proceedings.

D. The Courts' Interpretation of Public Bodies R v City Panel on Takeovers and mergers ex parte Datafin Ltd (1987):o the Takeover Panel had dismissed a complaint made by a bidder of 'acting in concert' contrary to the rules on takeovers. The bidder applied for judicial review. The bidder applied for Judicial Review. The court declined to grant the application on the basis that there were no grounds for judicial review but, nevertheless, rejected the claim made by the City Panel that the court had no jurisdiction to consider the application. The Panel was subject to judicial review, despite its lack of statutory or prerogative could be, or could have been in the absence of the Panel, exercised by a government department. o Lord Justice Lloyd stated that, for the most part, the source of the power will be decisive. Accordingly, if a body is set up under statute or by delegated legislation, then the source of the power brings the body within scope of judicial review. However, Lloyd LJ also recognized that in some cases the matter would be unclear. Where that situation existed, it was necessary to look beyond the source of the power and consider the 'nature of the power' being exercised. o In Lloyd LJ's view, 'if a body in question is exercising public law function, or if the exercise of its functions have public law consequences, then that may be sufficient to bring the body within the reach of judicial review.' By contrast, City Panel on Takeover and Mergers case, in R v Disciplinary Committee of the Jockey Club ex parte Aga khan (1993):o the Aga Khan sought judicial review of the Jockey Club's decision to disqualify his winning horse from a race for failing a dope test. o The court ruled that the relationship between racehorse owners and the Club, and the powers of the Club, derived from agreement between the parties and was a matter of private rather than public law. More recently, in R(Julian West) v Lloyd's London (2004):o the court of appeal ruled that decisions taken by Lloyd's London were not amenable judicial review either on the basis that it was performing a governmental function or because it was a public authority within the meaning of section 6(1) of the Human Rights Act 1998. o The decision were solely concerned with commercial relationship between the applicant and Lloyd's and were governed by the contracts into which the applicant had entered. o Accordingly, the decisions were of private and not a public nature. In Marcic v Thames Water (2004):o Under section 6 of the Human Rights Act 1998, public authorities are defined as including courts and tribunals and 'any person certain of whose functions of a public nature.'

o A privatized water and sewerage company was held to be a public body for the purposes of the Act. The Act excludes both House of Parliament and those acting in connection with parliamentary proceedings. o For the purposes of judicial review, section 7 provides that an applicant is only to have sufficient interest if he or she is victim of the unlawful act. E. Review and Appeal Judicial Review must be distinguished from an appeal against a decision. The appellate court will have the power to reconsider the case and to substitute its own decision for that of the lower court. An appeal may be made on both law and the facts of the case, so that a full rehearing may take place. By contrast, Judicial Review is concerned solely with the manner in which the decision maker has applied the relevant rules: it is thus procedural in nature. Judicial Review is not an appeal from a decision, but a review of the manner in which the decision was made. R(Sivasubramaniam) v Wandsworth County Court (2003):o The Court of Appeal ruled that the High Court Ought not to entertain an application for permission to apply for judicial review of the decision of a judge in the county court where the applicant had failed to pursue the alternative available remedy of an appeal, or where a county court judge had refused permission to appeal against the decision of a district judge, save in the exceptional circumstances of clear want of jurisdiction, or procedural irregularity amounting to a denial of a fair hearing. F. The outcome of Judicial Review There is no automatic right to a remedy in judicial review proceedings. The remedy is discretionary. This matter is contentious. G. The Basis for Judicial Review The Supreme Court Act 1981:o Section 31 (1); o Section31 (2); o Section 31 (3); The Civil Procedure Rules 1998, provides that:o An action must be brought within 3 months of the decision against which review is sought. However, shorter time periods may be specified in statute and these must be complied with.

Applying for leave for judicial review o It must be noted that there is no unfettered right to judicial review. o The aggrieved individual must seek to apply for judicial review, and a number of criteria, which are discussed below , govern the exercise of the discretion to grant of refuse the application for judicial review. The 'sufficient interest' test The manner in which the test is applied. Individual Standing: personal rights and interests. The standing of interest and pressure groups.

H. Standing to Apply for Judicial Review The 'sufficient interest' test ('locus standi') o The Supreme Court Act 1981, s31(3); o Prior to 1977 the rules on standing were largely in the hands of judges and the way the rules operated largely depended in the remedy being sought. Attorney-General (ex rel McWhirter) v Independent Boardcasting Authority (1973) o The test was one of whether the person was 'aggrieved' and not a 'mere busybody'. R v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association (1972). o The Supreme Court Act 1981 provides that the court must not grant leave for an application for judicial review 'unless it considers that the applicant has a sufficient interest ('locus standi') in the matter to which the application relates'. The manner in which the 'sufficient test' test is applied o R v Inland Revenue Commissioners ex parte National Federation of Self Employed and Small Businesses (1982): The House of Lords' approach was as follows. The question of whether there is standing should be examined in 2 stages:i. Standing should be considered when leave to apply is sought. At this stage, the court is concerned, according to Lord Scarman, to ensure that 'it prevents abuse by busybodies, cranks and other mischief makers'. ii. If leave is granted, the court may at second stage, when the merits of the case are known-revise its original decision and decide that after all the applicants do not have sufficient interest. The effect of this is to reduce the issues of sufficient interest and to elevate the question of the merits of the case. Individual Standing: Personal rights and interests o In Schmidt v Secretary of State for Home Affairs (1969):-

Students who had entered the country as 'students of scientology' challenged the decision of the Home Office not to allow them to remain once the permitted period of stay had expired. The students had a 'legitimate expectation' that they would be allowed to make representations to the Home Office, which they were denied, over a matter affecting their individual liberty. The students had 'sufficient interest' for leave to be granted. o In R v Secretary of State for the Environment ex parte Ward (1984): A Gypsy living on a caravan site was held to have standing to apply for an order requiring that the Secretary of State should direct the local authority to fulfill its statutory duty to provide an adequate site. Standing was also granted to Mrs. Gillick, the mother of several daughters, who wished to challenge a Health Authority over its policy relating to contraception for young girls [(Gillick v West Norfolk and Wisbech Area Health Authority (1986)] and to a journalist acting in the public interest [R v Felixstowe Judge ex parte Leigh (1987)]. o By Contrast, in Holmes v Checkland (1987): An opponent of cigarette smoking was deemed not to have standing to seek to restrain the BBC from broadcasting a snooker championship sponsored by a tobacco company on the ground that he had no more interest than any other member of the public and accordingly could only proceed with the aid of the Attorney General. o In R v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg (1994): The applicant sought judicial review of the government's ratification of the Treaty on European Union without parliamentary consent. Rees-Mogg was held to have sufficient standing, but the application was dismissed on the basis that the issues was non-justiciable. The Standing of interest and pressure groups o Actions in defence of the group's own interests. In R v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators' Association (1972):i. Liverpool Corporation had the duty of licensing taxis and fixing the number of licenses to be granted. When the Corporation announced that the number of licenses was to be increased, without consulting the Operators' Association, leave to apply for judicial review was sought. The Association had sufficient standing.

Equally, in Royal College of Nursing v Department for Health and Social Security (1981), the Royal College had standing to challenge a departmental circular concerning the role of nurses in abortions. o The standing of interest and pressure groups acting in the public interest. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses (1982):i. provided the test for standing. ii. The fact, in brief, entailed the employment of casual labor on newspapers, where the workers frequently adopted false names and paid no income tax. The Inland Revenue Commissioners (IRC) entered into an agreement with the relevant trade union, workers and employers to the effect that if the workers filled in tax returns for the previous two years, the IRC would not pursue tax due for previous years. The National Federation (an association of taxpayers) argued that the IRC had no power to enter into this agreement and sought judicial review. The IRC defended the action on the basis that the National Federation did not have locus standi to apply for judicial review. iii. The court upheld the IRC's claim. The House of Lords ruled that the court had been correct in granting leave at the first stage, but on the facts (the second stage), the National Federation lacked locus standi to challenge the legality of agreement. iv. The House of Lords ruled that there was no standing to challenge the particular wrongdoing alleged but that, if the Revenue had in fact been acting with impropriety, there would have been standing in a taxpayer to challenge its unlawful acts. In R v Her Majesty's Treasury ex parte Smedley (1985):i. The applicant for review sought to challenge the decision of the treasury to pay a sum of money from the Consolidated Fund, without express parliamentary approval, to meet European Community obligations. Smedley was thus applying in his own interest and in the interests of all British taxpayers and electors. ii. The court held that he had standing, although the challenge failed on its merits. A case to be distinguished from the National Federation case is R v Attorney General ex parte ICI plc (1986):-

ii.

The application was based on complaint that four competitor companies had been assessed at too lenient a rate, contrary to the Oil Taxation Act 1975. ii. The court held that the company had standing: it had a genuine and substantial complaint. In R v Secretary of State for the Environment ex parte Rose Theatre Trust Company Ltd (1990):i. Schiemann J cited a number of propositions which he deducted from IRC case. The Rose Theatre case concerned the question of whether a company which had been incorporated for the purpose of campaigning to save historic Globe Theatre site in London had locus standi. Included in the guidelines were that the question of whether locus standi exists is not purely a matter within the discretion of the court; that locus standi did not necessary entail a direct financial or legal interest; that the assertion of an interest by a person or group does not mean that sufficient interest exists; and that, even where thousands of people joined together in a campaign, that was not conclusive that sufficient interest existed. However, in R v Poole Borough Council ex parte BeeBee (1991):i. the same judge ruled that 2 pressure groups, the World Wildlife Fund (WWF) and the British Heperetological Society (BHS), had sufficient interest to challenge a decision of the Council which had granted planning permission to itself for the development of a heathland with designated 'special scientific interest' status. The BHS had a financial interest in the site, and the WWF had undertaken to pay any legal costs if necessary. A liberal approach to locus standi, in R v Secretary of State for the Environment ex parte Greenpeace Ltd (No2) (1994):i. Greenpeace applied for judicial review to challenge the decision of the Inspectorate of Pollution to allow the sitting of a nuclear reprocessing plant (THORP) at Sellafield. It was held that the Inspectorate had not abused its powers in varying British Nuclear Fuel plc's licence. However, while Greenpeace lost the case, the court nevertheless ruled that Greenpeace did have standing to challenge the decision. It was in the interest of justice to allow Greenpeace-an organization with over 400,000 supporters in the UK- to bring an action

i.

on behalf of all concerned with the project. The court declined to follow the Rose Theatre decision, but warned that it should not be assumed that Greenpeace or other pressure group would automatically be held to have sufficient interest in any future case. Further cases involving successful challenges by pressure groups:i. R v Secretary of State for Foreign and Commonwealth Affairs ex parte World development Movement Ltd (1995) o the WDM sought judicial review of the Foreign Secretary's decision to grant financial aid to Malaysia for the building of the Pergau dam. The WDM argued that the Secretary of State had exceeded his powers. The advice and assistance in relation to aid and had consultative status with the United Nation's bodies. Further, it was unlikely that there would be any other person or body with sufficient interest to challenge the decision. ii. R v Secretary of State for Employment ex parte Equal Opportunities Commission (1995) (the EOC case) o the EOC sought a declaration that the UK was in breach of European Community law obligations in relation to Article 119 (now 141) of the EC treaty and the Equal Pay and Equal Treatment Directives of the Community. The alleged breach concerned the Employment Protection (Consolidation) Act 1978, which discriminated between full time and part time employees in relation to redundancy pay and compensation for unfair dismissal. The House of lord confirmed that the EOC had locus standi and, moreover, that English Law was incompatible with the requirements of European Community law. iii. R v Secretary of State for the Environment ex parte the Royal Society for the Protection of Birds (1995) (the RSPB case) o the Royal Society had sufficient interest to challenge the decision of the Secretary of State's decision affecting the development of land which had hitherto been a special site for the conservation of birds.

I.