Constitutional position
The English constitutional theory, as expounded byProcedural requirements
Under the Civil Procedure Rules a claim (application) for judicial review will only be admissible if permission (leave) for judicial review is obtained from the High Court, which has supervisory jurisdiction over public authorities and tribunals. Permission may be refused if one of the following conditions is not satisfied: # The application must be made promptly and in any event within three months from the date when the grievance arose. Note that legislation can impose shorter time limits while a court may hold that an application made in less than three months may still be not prompt enough. # The applicant must have a sufficient interest in the matter to which the application relates. This requirement is also known as standing (or “locus standi”). # The application must be concerned with aStyling of the claimant
Unlike other civil proceedings in English courts, in judicial review court papers the claimant is styled as ''The King (on the application of Claimant X)'' (or ''Queen'' when reigning). For example, ''The King (on the application of Claimant X) v Defendant Y'' or more succinctly ''R (on the application of Claimant X) v Defendant Y'' or ''R (Claimant Y) v Defendant Y''. In these examples ''R'' is used literally (an abbreviation for the Latin ''regina'' or ''rex'', but pronounced "Crown"), ''Claimant X'' is substituted for the name of the claimant (e.g. ''Helena Jones'' or ''Jones'' or ''Acme Widgets Ltd'') and ''Defendant Y'' is substituted for the public body whose decision is being challenged (e.g. ''West Sussex County Council'' or ''Environment Agency'') or in certain cases, the person in charge of that body (e.g. ''Secretary of State for the Home Department'' or ''Chief Constable of West Yorkshire Police''). This is a purely cosmetic formality that arises from a historical procedure where Her Majesty's Judiciary acted on her behalf in a supervisory capacity. Technically a judicial review is brought by the Crown, on the application of the claimant, to ensure that powers are being properly exercised. Before 2001, judicial review cases were styled ''R v Defendant Y, ex parte Claimant X'', but this was reformed as part of a general reduction in use of Latin legal terms and due to the fact that such hearings are not, in fact, '' ex parte'' in any meaningful sense.Amenability to judicial review
The decision complained of must have been taken by a public body, i.e. a body established by statute or otherwise exercising a public function. In '' R v Panel for Takeovers and Mergers, ex parte Datafin'' 9871 QB 815, theOuster clauses
Sometimes the legislator may want to exclude the powers of the court to review administrative decision, making them final, binding and not appealable (''Exclusivity rule
The House of Lords held in '' O'Reilly v Mackman'' that where public law rights were at stake, the claimants could only proceed by way of judicial review. They could not originate their action under the general civil law procedure, because that would be avoiding the procedural safeguards afforded to public authorities by the judicial review procedure, such as the requirement of sufficient interest, timely submission and permission for judicial review. However, a defendant may still raise public law issues as a defence in civil proceedings. So for example, a tenant of the public authority could allege illegality of its decision to raise the rents when the authority sued him for failing to pay under the tenancy contracts. He was not required to commence a separate judicial review process ('' Wandsworth London Borough Council v Winder'' (1985)). If an issue is a mix of private law rights, such as the right to get paid under a contract, and public law issues of the competence of the public authority to take the impugned decision, the courts are also inclined to allow the claimant to proceed using ordinary civil procedure, at least where it can be demonstrated that the public interest of protecting authorities against frivolous or late claims has not been breached ('' Roy v Kensington and Chelsea and Westminster Family Practitioner Committee'' (1992), '' Trustees of the Dennis Rye Pension Fund v Sheffield City Council'' (1997)).Grounds for review
IIllegality
In Lord Diplock's words, this ground means that the decision maker "must understand correctly the law that regulates his decision-making power and must give effect to it". A decision may be illegal for many different reasons. There are no hard and fast rules for their classification, but the most common examples of cases where the courts hold administrative decisions to be unlawful are the following:The decision is made by the wrong person (unlawful sub-delegation)
If the law empowers a particular authority, e.g. a minister, to make certain decisions, the minister cannot subdelegate this power to another authority, e.g. an executive officer or a committee. This differs from a routine job not involving much discretion being done by civil servants in the minister's name, which is not considered delegation. An example of when this happened was in '' Allingham v Minister of Agriculture and Fisheries'' where a notice preventing farmers from growing sugar beet was unlawful because the power to put up the sign was delegated by the original committee. Where a decision is made by a properly empowered department within a local council, s.101 of theJurisdiction: Error of law or error of fact
The court will quash a decision where the authority has misunderstood a legal term or incorrectly evaluated a fact that is essential for deciding whether or not it has certain powers. So, in '' R v Secretary of State for the Home Department, ex parte Khawaja'' 984AC 74, the House of Lords held that the question as to whether the applicants were "illegal immigrants" was a question of fact that had to be positively proved by the Home Secretary before he could use the power to expel them. The power depended on them being "illegal immigrants" and any error in relation to that fact took the Home Secretary outside his jurisdiction to expel them. However, where a term to be evaluated by the authority is so broad and vague that reasonable people may reasonably disagree about its meaning, it is generally for the authority to evaluate its meaning. For example, in '' R v Hillingdon Borough Council, ex parte Pulhofer'' 986AC 484, the local authority had to provide homeless persons with accommodation. The applicants were a married couple, who lived with their two children in one room and applied to the local authority for aid. The local authority refused aid because it considered that the Pulhofers were not homeless and the House of Lords upheld this decision because whether the applicants had accommodation was a question of fact for the authority to determine.The decision maker went beyond their power: ultra vires
The classic example of this is '' Attorney General v Fulham Corporation'' (1921) where Fulham council had the power to set up wash-houses for those without the facilities. They decided to charge people to use it. The court held they went beyond their power by trying to benefit commercially from something that was supposed to be for everyone. Another example of this is the case of '' R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd''. Section 1 of the Overseas Development and Co-operation Act 1980 empowered theIgnoring relevant considerations or taking irrelevant considerations into account
This ground is closely connected to illegality as a result of powers being used for the wrong purpose. For example, in '' Wheeler v Leicester City Council'', the city council banned a rugby club from using its ground because three of the club's members intended to go on a tour inFettering discretion
An authority will be acting unreasonably where it refuses to hear applications or makes certain decisions without taking individual circumstances into account by reference to a certain policy. When an authority is given discretion, it cannot bind itself as to the way in which this discretion will be exercised either by internal policies or obligations to others. Even though an authority may establish internal guidelines, it should be prepared to make exceptions on the basis of every individual case.Irrationality
Under Lord Diplock's classification, a decision is irrational if it is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it." This standard is also known as Wednesbury unreasonableness, after the decision in '' Associated Provincial Picture Houses Ltd v Wednesbury Corporation'', where it was first imposed. Unlike illegality and procedural impropriety, the courts under this head look at the merits of the decision, rather than at the procedure by which it was arrived at or the legal basis on which it was founded. The question to ask is whether the decision "makes sense". In many circumstances listed under "illegality", the decision may also be considered irrational.Proportionality
Proportionality is a requirement that a decision is proportionate to the aim that it seeks to achieve. For example, an order to forbid a protest march on the grounds of public safety should not be made if there is an alternative way of protecting public safety, such as by assigning an alternative route for the march. Proportionality exists as a ground for setting aside administrative decisions in most continental legal systems and is recognised in England in cases where issues of EU law andProcedural impropriety
A decision suffers from procedural impropriety if in the process of its making the procedures prescribed by statute have not been followed or if the "rules ofStatutory procedures
An Act of Parliament may subject the making of a certain decision to a procedure, such as the holding of a public hearing or inquiry, or a consultation with an external adviser. Some decisions may be subject to approval by a higher body. Courts distinguish between "mandatory" requirements and "directory" requirements. A breach of mandatory procedural requirements will lead to a decision being set aside for procedural impropriety.Breach of natural justice
The rules of natural justice require that the decision maker approaches the decision making process with "fairness". What is fair in relation to a particular case may differ. As pointed out by=The rule against bias
= The first basic rule of natural justice is that nobody may be a judge in his own case. Any person that makes a judicial decision – and this includes a decision of a public authority on a request for a licence – must not have any personal interest in the outcome of the decision. If such interest is present, the decision maker must be disqualified even if no actual bias can be shown, i.e. it is not demonstrated that the interest has influenced the decision. The test as to whether the decision should be set aside is whether there is a "real possibility f bias, as established in '' Gough v Chief Constable of the Derbyshire Constabulary'' 001 which dropped the 'fair-minded observer' part of the test.=The right to a fair hearing
= Whether or not a person was given a fair hearing of his case will depend on the circumstances and the type of the decision to be made. The minimum requirement is that the person gets the chance to present his case. If the applicant has certain=Duty to give reasons
= Unlike many other legal systems, English administrative law does not recognise a general duty to give reasons for a decision of a public authority. A duty to give reasons may be imposed by statute. Where it is not,Legitimate expectations
A legitimate expectation will arise when a person (or a group or class of persons) has been led by a policy, promise or representation of a public body to understand that, for example, certain steps will be followed in reaching a decision. Considerations of legitimate expectations: # When an individual or a group has been led to think that certain steps will apply. # When an individual or a group relies on a policy or guidelines which govern an area of past executive action. The above principle has been recognized in the case of '' R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators Association'' 9722 QB 299. The court may uphold not only a legitimate expectation that a certain procedure would be followed by a public body ("procedural" expectations), but also an expectation of some substantive benefit. In a leading case in 2001 on the latter point, Ms Coughlan, having been badly injured in a car accident, was promised a "home for life" by the health authority when she was transferred from the hospital to a care home. When the authority tried to evict her later, the court held the authority to their promise, since to frustrate Ms Coughlan's legitimate expectation would be unfair in the circumstances.''R v. North and. East Devon Health Authority, ex parte Coughlan'' 001QB 213Possibility of additional grounds of review
It has been suggested that proportionality (which is now expressly cited as a doctrine of review only in human rights cases and cases with an EU dimension) should become a separate general head of review. There is some authority for the proposition that the courts employ a normative legal concept of "moral desert". Dr Kennefick of Queen's College, Oxford has posited that the essential question that the courts ask themselves is this: "did they deserve it?" When both parties deserve it, the secondary inquiry is "who deserved it more?" On the unlikely occurrence of equal moral desert existing between two parties, the courts should, Kennefick argues, be able to give both parties a remedy.Remedies
The following remedies are available in proceedings for judicial review: * Quashing order * Prohibiting order * Mandatory order * Declaration * Injunction * Damages (only available if sought on non-Judicial Review grounds) In any case more than one remedy can be applied for; however, the granting of all remedies is entirely at the court’s discretion.Quashing order
A quashing order (formerly a writ of certiorari) nullifies a decision which has been made by a public body. The effect is to make the decision completely invalid. Such an order is usually made where an authority has acted outside the scope of its powers (''ultra vires''). The most common order made in successful judicial review proceedings is a quashing order. If the court makes a quashing order it can send the case back to the original decision maker directing it to remake the decision in light of the court’s findings. Very rarely, if there is no purpose in sending the case back, it may take the decision itself.Prohibiting order
A prohibiting order (formerly aMandatory order
A mandatory order (formerly a writ of mandamus) compels public authorities to fulfill their duties. Whereas quashing and prohibition orders deal with wrongful acts, a mandatory order addresses wrongful failure to act. A mandatory order is similar to a mandatory injunction (below) as they are orders from the court requiring an act to be performed. Failure to comply is punishable as a contempt of court. Examples of where a mandatory order might be appropriate include: compelling an authority to assess a disabled person's needs, to approve building plans, or to improve conditions of imprisonment. A mandatory order may be made in conjunction with a quashing order, for example, where a local authority's decision is quashed because the decision was made outside its powers, the court may simultaneously order the local authority to remake the decision within the scope of its powers.Declaration
A declaration is a judgment by the Administrative Court which clarifies the respective rights and obligations of the parties to the proceedings, without actually making any order. Unlike the remedies of quashing, prohibiting and mandatory order the court is not telling the parties to do anything in a declaratory judgment. For example, if the court declared that a proposed rule by a local authority was unlawful, a declaration would not resolve the legal position of the parties in the proceedings. Subsequently, if the authority were to proceed ignoring the declaration, the applicant who obtained the declaration would not have to comply with the unlawful rule and the quashing, prohibiting and mandatory orders would be available.Injunction
An injunction is an order made by the court to stop a public body from acting in an unlawful way. Less commonly, an injunction can be mandatory, that is, it compels a public body to do something. Where there is an imminent risk of damage or loss, and other remedies would not be sufficient, the court may grant an interim injunction to protect the position of the parties before going to a full hearing. If an interim injunction is granted pending final hearing, it is possible that the side which benefits from the injunction will be asked to give an undertaking that if the other side is successful at the final hearing, the party which had the benefit of the interim protection can compensate the other party for its losses. This does not happen where the claimant relies onDamages
Damages are available as a remedy in judicial review in limited circumstances. Compensation is not available merely because a public authority has acted unlawfully. For damages to be available there must be either: # a recognised private law cause of action such as negligence or breach of statutory duty; or # a claim under European law or the Human Rights Act 1998.Discretion
The discretionary nature of the remedies stated above means that even if a court finds a public body has acted wrongly, it does not have to grant any remedy. Examples of where discretion will be exercised against an applicant may include where the applicant's own conduct has been unmeritorious or unreasonable, for example where the applicant has unreasonably delayed in applying for judicial review, where the applicant has not acted in good faith, where a remedy would impede an authority's ability to deliver fair administration, or where the judge considers that an alternative remedy could have been pursued.References
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