Judicial Review is a vital mechanism to ensure the rule of law; but misapplied, it can defeat the rule of law.
Before going on to look at reforming the system, we need to know what it is, and the court statistics suggest that most people who go to law do not understand it. Occasionally it seems, neither do the judges.
There are major problems with the system, largely because the rules have never been laid down by Parliament, leaving the judges to devise rules by implying them into Acts of Parliament: this though means it is very tempting for a judge to overstep the mark, as we saw in the recent wayward judgment of the Supreme Court.
Before reform can be considered, the current law must be understood. Even so, this article (which is being built up over the next few days) can only be a surface skim. Thick volumes are written on the subject, even though judicial review is very minor field of law in terms of the number of cases heard. Minor as it is in that sense, it is at the heart of ensuring the rule of law.
The essence of judicial review
Judicial review is a procedure by which a court can restrain an administrative body or official from exceeding their lawful jurisdiction. Without these remedies, public bodies would run riot.
The name is recent, but the remedies are ancient. In the old days of the Court of King’s Bench, writs of mandamus were directed at magistrates who had neglected to mend roads and bridges, or certiorari to courts which heard cases outside their jurisdiction (or of which the King’s Bench were jealous; they practically destroyed cheap, local justice by using ‘creative’ interpretation of statutes to starve local courts).
The Stuart era saw major constitutional decisions of the King’s Bench, such as The Prince’s Case (1606) and The Case of Proclamations (1610) defying the King and affirming that law can only be made and repealed by King, Lords and Commons together. There have been others throughout the ensuring centuries.
Today, judicial reviews are heard by the Queen’s Bench Division of the High Court (in England and Wales and in Ulster) and the Court of Session (in Scotland). These days it is not about neglectful clerks and overbearing corporations. Bureaucracy is bigger and the law governing it is full of tripwires. Still the cases are still few, because authorities hire expensive lawyers to check the legality of everything they do. Nice work if you can get it.
The quarterly statistics published by the Ministry of Justice show that of all the judicial reviews begun, only 1% result in a win. That is a little misleading, as some must be settled out of court, but it shows how applicants are too ready to jump to a lawyer.
The biggest proportion of cases (about a third of them) are immigration and nationality cases. These also take up a large proportion of all cases reaching as far as the Supreme Court. The success rate is still just 1% though.
That 1% figure should encourage bureaucrats that they are in little danger of challenge, but actually it may be worrying: it means they are not taking risks, are staying too safe. I have sat and watched decisions being made, and this rings painfully true.
The continuing need for judicial review was outlined by Lord Denning in a lecture given early in his judicial career, in 1949, and later published:
Every society must have the means to protect itself from marauders. It must have powers to arrest, to search, and to imprison those who break the laws. So long as those powers are properly exercised, they are themselves the safeguards of freedom. But powers may be abused, and, if those powers are abused, there is no tyranny like them. It leads to a state of affairs when the police may arrest any man and throw him into prison without cause assigned. It leads to the search of his home and belongings on the slightest pretext—or on none. It leads to the hated gestapo and the police State.Lord Denning: ‘Freedom Under the Law’
If an Act of Parliament gives a power to a minister or a local council, and that power is exercised, the only role of the court should be to enforce that power as a lawful exercise of authority. However it is not as simple as that: powers are give subject to conditions and they are given for stated or implied purposes. Powers must not be abused.
Existence; extent; exercise
With any delegated power, the court can look at the existence of that power, the extent of that power and the exercise of that power. The three are distinct:
- Existence: if a council seizes a private car, perhaps deeming to polluting, first you have to find out if the council actually has power to do that. If not, obviously the act is invalid, and the act of having seized the car is a trespass to property, giving the owner a right to damages.
- Extent: if the council does have a right to seize a car, what conditions are placed on the exercise of the power? Maybe they are empowered only to seize such a car when on the highway, or only after giving due notice to the owner, or only if they believe the car is a public danger: fail on any of those conditions and the seizure is invalid.
- Exercise: The car may be seized in accordance with the power given and all the conditions laid down, and so outwardly wholly lawfully – however a court may still quash the council’s actions if it falls foul of conditions implied into any grant of authority, that the power be used for the right reasons. This is a more uncertain position.
The problematic issue then is when the court is invited to strike down an action which on the face of it is within the council’s powers. If a court takes it upon itself to overturn a decision made by someone with authority, to retrain an abuse of powers or what the judge considers an abuse, that is big step to take, apparently contradicting an Act of Parliament. They may do so because of the implied rules.
The principal code permitting the quashing of an outwardly lawful exercise of power is known as the “Wednesbury rules”. These rules were laid down not by Parliament but by judges, in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation in 1948. The Wednesbury case concerned the lawfulness of conditions placed on a cinema’s licence: the Act gave councils a wide-open power to impose conditions, and the court looked at whether a absolute power is actually absolute. In Wednesbury, the King’s Bench Division determined that Parliament would have expected decisions to be made in a particular way and for particular reasons, and that a decision might be reviewed on that basis.
The Wednesbury Rules
In Wednesbury, the High Court ruled that a decision which on the face of it is within the powers given is nevertheless unlawful if:
- In making the decision, the defendant took into account factors that ought not to have been taken into account, or
- the defendant failed to take into account factors that ought to have been taken into account, or
- the decision was so unreasonable that no reasonable authority would ever consider imposing it.
The relevant and irrelevant factors for a decision are open for debate unless the Act sets them out. Most of the cases are challenges to planning permissions: what constitutes a relevant ‘planning reason’ is now drummed into every planning officer and planning committee member.
The third limb, unreasonableness, was a throw-away backstop word in Wednesbury, but using that word “unreasonable” was a hostage to fortune. It was explained as essentially meaning the same as the first two limbs, or “there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.” Short of actual insanity, it must be assumed that if a decision is the sort than no man in his right mind would make, that it must have been made for an improper purpose, taking improper factors into account or ignoring proper factors.
Lord Diplock in the GCHQ case said that “unreasonable” means:
“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.”
There may not long be such things as “accepted moral standards” but defiance of logic goes back again to evidence of improper considerations.
After too much judicial activism based on “Wednesbury unreasonableness”, Lord Ackner in the House of Lords, in R. v. Secretary of State for the Home Department, ex parte Brind (1991), tried to redress the balance:
it has to be expressed in terms that confine the jurisdiction exercised by the judiciary to a supervisory, as opposed to an appellate, jurisdiction. Where Parliament has given to a minister or other person or body a discretion, the court’s jurisdiction is limited, in the absence of a statutory right of appeal, to the supervision of the exercise of that discretionary power, so as to ensure that it has been exercised lawfully. It would be a wrongful usurpation of power by the judiciary to substitute its, the judicial view, on the merits and on that basis to quash the decision. If no reasonable minister properly directing himself would have reached the impugned decision, the minister has exceeded his powers and thus acted unlawfully and the court in the exercise of its supervisory role will quash that decision. Such a decision is correctly, though unattractively, described as a “perverse” decision. To seek the court’s intervention on the basis that the correct or objectively reasonable decision is other than the decision which the minister has made is to invite the court to adjudicate as if Parliament had provided a right of appeal against the decision – that is, to invite an abuse of power by the judiciary.
The extent to which judge have heeded Lord Ackner is debatable, but his remains the standard: the courts supervise only to ensure that decisions are made lawfully, not to judge the merits of a decision, which would be an abuse of power.
On the principles given, primary legislation should be completely unreviewable. The courts have their authority from the law and judge only by the law, and primary legislation makes that law. However even here, the courts have started to trespass.
An Act of Parliament cannot be challenged, and to date the only occasion a court has done so was the Factortame case (1990), in which the House of Lords approved an injunction to prevent enforcement of an Act of Parliament which contravened European law. There are other types of primary legislation though: in the overseas territories the Queen may retain legislative authority as part of the Royal Prerogative.
In Campbell v Hall in 1774, Lord Mansfield laid down a comprehensive code of the basic constitutional law for British colonies: the Crown has plenary power to make law and raise taxes until such time as the colony in question is granted a representative assembly. Parliament may limit that power, but otherwise the Crown may legislate freely.
As the Crown’s power is primary legislative power, not a delegated power, then logic should dictate that it is not subject to any implied limitation on that power there is no instrument into which a limitation can be implied.
However, judges have the bit between their teeth. In the Chagos Islanders cases, the first time round the Court struck down a law enacted by the territory’s Commissioner with the excuse that it was delegated legislation and an order expelling all inhabitants went beyond the words of his commission. Then primary legislation was passed, by the Crown by Order in Council – Campbell v Hall was cited and this was clearly primary legislation, but still two of the five justices were prepared to overturn the legislation because they did not approve of it, as had the High Court and Court of Appeal.
The Royal Prerogative
This is the battleground of the latest scandal.
There is nothing new in the courts’ reviewing exercises of the royal prerogative: they have been doing that since King James’s time if not before. What is new is that the courts have started to apply Wednesbury principles.
Historically, the courts have long reviewed exercises of the royal prerogative to ensure that the power exists and the extent of that power. The edges even of that type of review have been uncertain. A leading case was Attorney-General v De Keyser’s Royal Hotel Limited  AC 508, where the court found that the royal prerogative stopped where a statutory scheme deals with he subject matter: the power existed but the extent was curtailed. The House of Lords took this further in R v Secretary of State for the Home Department, ex parte Fire Brigades Union: even a statutory scheme that had not been brought into force would trump a prerogative version.
It was thought that the royal prerogative could into be reviewed as to the manner of its exercise: after all, it is not delegated power and is that which Dicey called “the remaining portion of the Crown’s original authority, and it is therefore … the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the King himself or by his Ministers”. This concept of the prerogative as essentially a primary and discretionary power was rejected by the House of Lords in the GCHQ case: the Law Lords applied the Wednesbury principles to its exercise. They did in passing concede that certain powers might not be reviewable, including the power to dissolve Parliament (but did not mention prorogation).
The prorogation case, Miller / Cherry, seemed to apply the Wednesbury principles to the power of prorogation, but that was not actually how the judgment was worded: the Supreme Court invented a rule previously unheard of, and expressed it as a limit on the extent of the power, not its exercise. It is unlikely that a similar case will be heard for many years if ever. Academic opinion might eventually resolve that the case was wrongly decided, but we have it as law for now.
Parliament has in some Acts decreed that certain decisions are not subject to judicial review. The court has found ways around even plain words meant to keep them out.
The Foreign Compensation Act 1950 established the Foreign Compensation Commission, to compensate owners of property confiscated by foreign states, and Section 4(4) of the Act said:
“The determination by the commission of any application made to them under this Act shall not be called in question in any court of law.”
In the case of Anisminic Ltd v Foreign Compensation Commission  2 AC 147 however, the House of Lords got round that. The Commission had refused to compensate Anisminic for assets confiscated in the Suez crisis, and the House of Lords decided that this decision was made under a mistake of law and therefore its decision was a nullity: therefore there was no “determination” and Section 4(4) did not exclude the Court.
A similar decision, but more political came in 2017, in R v Secretary of State for Foreign and Commonwealth Affairs & Ors ex parte Privacy International  EWCA Civ 1868. Here the relevant Act was the Regulation of Investigatory Powers Act 2000, of which Section 67(8) says:
Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.
This should have been clear, but emboldened by the Anisminic case, the Court again allowed a review of the Tribunal despite the clear words of the Act. Here the court said:
The IPT is not itself part of the High Court, but is an inferior tribunal. In line with established principle, section 67(8) should be read in a narrow and restricted way, with the result that it cannot be found to mean that it excludes recourse to ordinary judicial review in the High Court in relation to the IPT. To give section 67(8) such a meaning would immunise decisions of the IPT on points of law from all review and the possibility of correction by the higher courts, from the High Court up to the Supreme Court. Parliament cannot have intended such a result.
So “Parliament cannot have intended such a result”, yet did Parliament not say just that? The words were “shall not be subject to appeal or be liable to be questioned in any court“. It appears that if Parliament wishes to exclude decisions from review it will have to use even stronger words, and even stronger words would be of uncertain efficacy.
In both examples, a tribunal was involved, and judges are suspicious or perhaps jealous of administrative tribunals.
To exclude review from an administrative power, that power would have to be granted with an unquestionable absolute discretion, such that while the existence and extent of the power might still be questioned, the exercise should not be.
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