24 March 2023
24 March 2023
This guide seeks to answer a number of key questions relating to judicial review.
Judicial review is the principal mechanism used by the courts to police the exercise of public law functions. This is a constitutionally important aspect of English law. It seeks to ensure that bodies exercising public law functions act lawfully and fairly and do not abuse their powers.
There are a number of common misconceptions about judicial review that:
Judicial review is increasingly used in the commercial sphere as businesses face greater regulation and administrative oversight. In recent years Ashurst has been involved in judicial review proceedings in the healthcare, telecommunications, transport, real estate/planning, energy, financial services, tobacco, media, tax and EU/Competition sectors.
Businesses may wish to challenge decisions by means of judicial review, intervene in judicial review proceedings which are of relevance to them, or may even be subject to an application for judicial review.
The first question that arises when considering judicial review proceedings is whether the party which has done something which may give rise to a challenge is susceptible to review.
A "claim for judicial review" in the English court procedural rules (the CPR)) is defined as "a claim to review the lawfulness of an enactment; or a decision, action or failure to act in relation to the exercise of a public function".1 It is significant that the definition focuses on the nature of the function being performed rather than the body performing it. In reality the category of bodies whose functions may be challenged is constantly evolving.
The courts have adopted a flexible approach to determining whether a body is subject to judicial review. There is no single test.
The following characteristics have been considered relevant to whether an act or function can be reviewed.
The courts' application of a flexible approach has resulted in the court being prepared to judicially review decisions that might not appear to be appropriate for judicial review. These include those of:
An application for judicial review cannot be made unless the court has granted permission. The court will only grant permission if it considers that the applicant has sufficient interest in the matter to which the application relates.12
The courts have adopted an increasingly liberal approach to the "sufficient interest test". This recognises that it is desirable for the courts to allow responsible citizens to bring claims for the benefit of the public in appropriate cases.
However, the purpose of the test is to ensure that frivolous and vexatious litigation against public bodies is avoided. As such, the applicant's interest will be assessed in the context of all factual and legal circumstances in the case, including:
Judicial review allows for the involvement of parties other than the claimant and the defendant. This reflects the role of judicial review as a mechanism for public accountability rather than bipartite dispute. There are two principal categories of third party who may participate in judicial review.
The most common target for judicial review is a "decision", often communicated in a decision letter. However, the scope of "targets" for judicial review is very broad. There have been successful applications for permission to bring judicial review in respect of primary legislation, subordinate legislation, policies and schemes, proposals, guidance and opinions.
A claim will often involve several potential connected targets. An example of this would be a planning resolution and consequential planning permission.
There are certain claims which the courts have traditionally not considered. A claim may fail if it lacks substance or materiality. The courts have always been mindful of the fact that proceedings should be proportionate to the issues involved and the remedy sought. They are disinclined to entertain cases which are based on hypothetical or academic issues.
Additionally, the courts are reluctant to entertain challenges to decisions relating to the internal procedures of the UK Parliament and challenges to decisions of the superior courts of England and Wales (e.g. the High Court, Court of Appeal and Supreme Court).
Challenges to decisions relating to the validity of Acts of Parliament have traditionally been outside the remit of judicial oversight, and since May 2022, the Upper Tribunal's refusal to grant permission to appeal decisions of the First Tribunal can no longer be subject to judicial review.22
The courts have also shown an unwillingness to pass judgement on certain issues such as national security and economic policy.
There have traditionally been three grounds for judicial review. These are illegality, irrationality, and procedural impropriety. These categories are not exhaustive nor mutually exclusive.
The most obvious example of illegality is where a body acts beyond the powers which are prescribed for it. In other words, it acts ultra vires (a concept imported from company law).
There is a fundamental hierarchy in English law which comprises: (1) primary legislation, (2) subordinate legislation and (3) decision-making. Illegality can occur where any of these is inconsistent with the parameters imposed by a superior source of law. In April 2013, Npower successfully challenged Milton Keynes Council's decision to implement a new planning document that would introduce minimum separation distances between wind turbines and residential properties on the basis that the document conflicted with the existing local plan and national legislation on wind energy.23
Decisions taken for improper purposes may also be illegal. So, for example, the decision of a local authority not to renew the lease of premises occupied by a firm of solicitors bringing claims against the local authority was invalidated by improper exercise of discretion.24 The local authority's decision was not based on a rational assessment of all relevant considerations. The only consideration which it had regard to was its desire to punish the claimant for the perceived damage to the local authority's financial interest. This constituted an improper purpose.
A further category of illegality is where a body either abdicates or delegates responsibility for a decision or impermissibly fetters its discretion. It has been accepted that it is a practical necessity of administration that responsibility be devolved (rather than delegated) in certain cases (so, for example, it is permissible for a duly authorised civil servant to exercise a power granted to his Minister).25 This is subject to exceptions, for example, performance of the Secretary of State's function under the Prison Rules 1999 cannot be delegated.26
However, a body may not surrender its decision-making responsibilities to another body. Similarly, a body must not blindly follow policy guidelines where it is required to exercise its discretion; it must maintain an open mind.
Illegality also extends to circumstances where the decision-maker misdirects itself in law. When exercising a discretionary power, a decision-maker may take into account a range of lawful considerations. If the exercise of the discretionary power has been influenced by considerations that cannot lawfully be taken into account, or relevant considerations required to be taken into account have been disregarded, a court will normally find that the power had been exercised illegally.
One of the most well-known grounds of challenge is on the basis that a decision is irrational or unreasonable. However, it is difficult to satisfy.
In the leading case, a local authority granted a cinema licence pursuant to legislation which granted it a discretion to impose such conditions as it saw fit.27 A licence was granted subject to the condition that unaccompanied children under fifteen years of age should not be admitted to Sunday performances. It was held that the authority had not acted unreasonably. The court was entitled to investigate only whether the authority had taken into account matters that it ought not to, or had disregarded matters that it ought to have taken into account.
The courts have raised the bar for irrational or unreasonable behaviour. This is because they do not want to stray into territory which requires them to pass judgement on the merits of decisions rather than the process by which they have been made.
One formulation of the test is that an irrational or unreasonable decision must be "so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it"28. In a recent judicial review, the Secretary of State's refusal to put in place a solution to a specific issue affecting claimants' universal credit awards following an amendment to the Universal Credit Regulations 2013 was deemed "so irrational that no reasonable Secretary of State for Work and Pensions would have struck the balance in that way".29
There has been criticism of the extreme formulations of the test but it remains the case that it is difficult to bring a successful judicial review on the basis of irrationality or unreasonableness.
English law imposes minimum standards of procedural fairness. This concept is based on the principle of natural justice. The "twin pillars" of procedural impropriety have been described as "the rule against bias" and "the right to be heard".30 The right to be given reasons for a decision is also an integral element of procedural fairness.
While actual bias is relatively rare, it is a conclusive factor in disqualifying a decision-maker. More common is where apparent bias is alleged. The courts have adopted a test of whether there is a "real possibility" of bias. In other words, "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the [decision] was biased".31
Thus, where the chairman of a planning committee had a close relationship with developers, apparent bias was found.32 However, an adjudicator of a construction dispute was not apparently biased in circumstances where he had ruled previously on the dispute and where he had engaged in a telephone conversation with the solicitor of one of the parties.33
The right to be heard is fundamental in criminal and asylum cases, but also extends to commercial situations. A flawed consultation process restricting the right to be heard is now a common ground for judicial review. In many situations, a decision maker will be required to consult by statute, and any flaw in that process may invalidate the final decision.
In March 2013, HS2 Action Alliance, a not-for-profit organisation working with other action groups opposed to the Government's proposal to build the "High Speed 2" rail link, were successful in their claim that the consultation process for the compensation scheme for blighted properties was flawed.34 The court held that the consultation period was so unfair as to be unlawful. The Government had failed to provide adequate information to consultees on the practical implications of the proposed schemes and had failed to conscientiously consider the claimants' consultation response.
In relation to the right to reasons, there is a large body of case law that supports the existence of this general duty.35 There is an obvious rationale for reasoned decisions: it enables claimants to assess whether a decision has been made for illegal or irrational reasons.
Allied to the ground of procedural impropriety is the notion of "legitimate expectation". This is sometimes considered as a discrete ground for judicial review and arises where a party has been given an expectation that a body will act in a certain way, either because of express statements from the authority, or from prior conduct.
It is likely that for a legitimate expectation to arise there will need to have been a clear promise or evidence of a regular practice,36 reliance and detriment (although this is not a prerequisite).37
The challenge to the Government's decision to scrap the "Building Schools for the Future" programme is an example of a successful claim on the basis of legitimate expectation. The issue in this case was that the Government made its decision without conducting a consultation. The claimant local authorities had committed to building schools under the BSF programme, and successfully argued that they had a legitimate expectation to be consulted before the decision was made.38
The court held that, in view of the fact that the BSF programme had previously been run as a partnership between central and local government, project-specific decisions could not lawfully be made abruptly without prior consultation.
Detailed analysis of the provisions of the Human Rights Act 1998 is beyond the scope of this Quickguide. However, section 6 (1) of the Act provides that "it is unlawful for a public authority to act in a way which is incompatible with a Convention right". This may provide an independent ground for judicial review.
For example, it was held that the police acted unlawfully in deciding to cancel a vigil prompted by the murder of Sarah Everard under the Covid-19 regulations on gatherings. It was found that it was not arguable that the Covid-19 regulations were incompatible with Art. 11 ECHR (freedom of assembly and association).39
Judicial review is not intended to provide a means for the merits of decisions to be challenged. Because of this the following remedies are available in a judicial review claim:
A successful judicial review will often result in a quashing order and an order that the matter be remitted to the decision-making body for reconsideration. But this will not necessarily result in a different outcome from the original decision. Where the original decision was unreasonable or unlawful, then the same outcome may be precluded. However, where there has been a procedural defect it is possible that the same decision will be reached again. In certain instances, a successful judicial review may leave a claimant in a worse position than it was in originally.
Traditionally, a quashing order has immediate retrospective effect. This means that some of the public body's ongoing actions could also be invalid. This may, in turn, have an effect on third parties acting in good faith. For example, business owners may suddenly be unable to conduct their business as they relied on a certain licence granted by a public authority which was immediately quashed retrospectively.
Since April 2022,41 the courts have a number of additional options regarding quashing orders:42
Prospective-only quashing orders do, however, raise concerns that people will continue to be negatively impacted by a decision, even after a court has found it to be unlawful.
It is a principle of judicial review that remedies are discretionary. So a claimant may be able to show that a decision-maker has acted improperly but the court may nevertheless decline to grant the remedy sought.
The court may make a declaration or order an injunction where "it would be just and convenient" in "all the circumstances of the case".43
There is no right in judicial review to claim damages for losses caused by unlawful administrative actions. It is only possible to receive damages in judicial review claims if there is another established cause of action, separate to the ground for judicial review, such as breach of statutory duty, misfeasance in public office or a private action in tort.
For example, if a decision-maker takes into account an irrelevant consideration, this will likely provide grounds for quashing the decision on the basis of illegality, but it may also create a right to damages for misfeasance in public office if it can be proved that the action complained of was done knowingly or maliciously. Where a separate cause of action accrues, the claim for judicial review may include a claim for damages to avoid the need to bring parallel proceedings.
Even though damages are not available, there may be other financial gain to be had from bringing a judicial review claim. The publicity associated with a judicial review claim will often encourage a public body to retract a decision or settle the dispute.
The detailed procedure for making a claim for judicial review is beyond the scope of this Quickguide. A number of key points are set out below: