GROUNDS OF JUDICIAL REVIEW

Judicial review is not an appeal mechanism, but a review of public law functions (R v Richmond upon Thames London Borough Council, ex parte JC (2000) The Times, 26 April 2000 (QBD); [2001] LGR 146 (CA)). There are a number of classifications on the grounds upon which a decision by a public authority may be found to be invalid. A commonly used classification is the tripartite distinction in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 between:

  • illegality,
  • irrationality, and
  • procedural impropriety.

This classification is not set in stone. Within each of the three heads are a number of grounds which are capable of being characterised in more than one way. In addition, many factual situations can be analysed in more than one way. For example, where a statute lays down a procedure with which a public authority needs to comply, a failure to follow the wording of the statute could fall under both the illegality head and the procedural head.

Illegality

Illegality arises where a decision-maker who must understand correctly the law that regulates his or her decision-making power and must give effect to it fails to do so (Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374). Illegality also includes ultra vires acts and errors of law. An error in relation to a precedent (jurisdictional) fact is also often placed under the illegality heading. An action or decision is said to be tainted by illegality if:

  • it was purportedly taken under legislation which does not contain the requisite power; or
  • it was purportedly taken under legislation which contains precise limits on the circumstances in which a power or duty can be used, and the action or decision in question either exceeds those limits or fails to perform the power or duty in a proper way.

‘Illegal’ could also be used to describe a statutory instrument which conflicts with primary legislation, or an Act of Parliament which is incompatible with European Union law. One particular aspect of illegality is an allegation of a breach of Convention rights under the Human rights act 1998 (see chapter 88).

Jurisdiction and vires in general. The courts will intervene to ensure that the powers of public decision-making bodies are exercised lawfully. Such a body will not act lawfully if it acts ultra vires or outside the limits of its jurisdiction. The term ‘jurisdiction’ has been used by the courts in different senses. A body will lack jurisdiction in the narrow sense if it has no power to adjudicate upon the dispute, or to make the kind of decision or order, in question; it will lack jurisdiction in the wide sense if, having power to adjudicate upon the dispute, it abuses its power, acts in a manner which is procedurally irregular, or in a Wednesbury sense, unreasonable, or commits any other error of law. In certain exceptional cases, the distinction between errors of law which go to jurisdiction in the narrow sense and other errors of law remains important.

A body which acts without jurisdiction in the narrow or wide sense may also be described as acting outside its powers or ultra vires. If a body arrives at a decision which is within its jurisdiction in the narrow sense, and does not commit any of the errors which go to jurisdiction in the wide sense, the court will not quash its decision on an application for judicial review even if it considers the decision to be wrong.

There is a presumption that the acts of public bodies, such as orders, decisions and byelaws, are lawful and valid until declared otherwise by the court. Although some acts or measures may be described as being ‘void ab initio’ or as ‘nullities’, the modern view is that it is for the court to determine both whether an act is unlawful and what the consequences of that finding of unlawfulness should be.

Manifest unreasonableness. A decision of a tribunal or other body exercising a statutory discretion will be quashed for ‘irrationality’, or as is often said, for ‘Wednesbury unreasonableness’. As grounds of review, bad faith and improper purpose, consideration of irrelevant considerations and disregard for relevant considerations and manifest unreasonableness run into one another. However, it is well established as a distinct ground of review that a decision which is so perverse that no reasonable body, properly directing itself as to the law to be applied, could have reached a decision, will be quashed.

Ordinarily the circumstances in which the courts will intervene to quash decisions on this ground are very limited. The courts will not quash a decision merely because they disagree with it or consider that it was founded on a grave error of judgment, or because the material upon which the decision-maker could have formed the view he did was limited. However, the standard of reasonableness varies with the subject matter of an act or decision. The court will quash an act or decision which interferes with fundamental human rights for unreasonableness if there is no substantial objective justification for the interference. By contrast, the exercise of discretionary powers involving a large element of policy will generally only be quashed on the basis of manifest unreasonableness in exceptional cases.

In addition to administrative acts and decisions, byelaws may be held to be void for manifest unreasonableness.

Generally where a statute provides that one body or person may substitute its own determination for that of another body where that body is ‘proposing to act unreasonably’, such a provision will be construed as applying only where the latter body is proposing to act unreasonably in the Wednesbury sense.

Jurisdictional defects. An inferior court, administrative tribunal or other public decision-making body will also lack jurisdiction and act ultra vires in the narrow sense where it has no power to adjudicate upon the dispute or to make the kind of decision or order in question. A public body will lack jurisdiction or vires in this sense where it is improperly constituted, or the proceedings have been improperly constituted, or authority to decide has been delegated to it unlawfully. A public body purporting to exercise statutory powers will also act without such jurisdiction or vires where its act or decision lies outside the ambit of the enabling power by reason of the parties, the subject matter, or the geographical area in which the subject matter arose. Where the exercise of statutory powers is subject to the existence of a fact or fulfilment of a condition, the exercise of those powers in the absence of that fact or without fulfilment of that condition will be without jurisdiction and ultra vires. A body may be taking a valid decision exhaust its powers such that any further decision on the same matter will be made without jurisdiction or vires.

Save where Parliament has otherwise provided, a tribunal of limited statutory jurisdiction cannot acquire jurisdiction to determine a matter by consent of the parties. Nor can it decline to adjudicate in respect of a matter on which it is bound to adjudicate.

Ultra vires acts. Whether or not a decision is ultra vires depends upon the relevant primary or secondary legislation and its interpretation on the particular facts and circumstances of each case. Therefore few general rules can be laid down. Some examples include, however, a refusal to refer a complaint relating to a milk price-fixing to a committee of investigation contrary to the policy and objects of the relevant statute (Padfield v Minister of Agriculture, fisheries and Food [1968] AC 997); the destruction of food which was ‘unlikely to become’ unfit for human consumption (R v Thames Magistrates’ Court, ex parte Clapton Cash and Carry [1989] COD 5218); the removal of school governors because of their failure to support the ILEA’s educational policy (Brunyate v Inner London Education Authority [1989] 1 WLR 542).

Errors of law. An alternative way of analysing illegality is an error of law. This is where a public body makes a decision based upon an incorrect interpretation of the law. For example, the House of Lords has held that the defendant borough council misinterpreted s. 4(2)(b) of the Housing (Homeless Persons) Act 1977 in holding that the immigrant claimant became ‘intentionally homeless’ by bringing his homeless family to the United Kingdom to live with him (Re Islam (Tafazzul) [1983] 1 AC 688).

Precedent (jurisdictional) fact/error of fact. Although error of fact has not historically been regarded as a ground for judicial review (R v Hillingdon London Borough Council, ex parte Puhlhofer [1986] AC 484), the courts will review instances where the public body has failed to establish a vital fact which triggers its power and makes the exercise of its powers lawful, e.g. the requirement to establish that a person is an ‘illegal entrant’ before the power of deportation can lawfully arise under the Immigration Act 1971 (Khera v Secretary of State for the Home Department [1984] AC 74). Factual aspects of a decision may be reviewed in some limited circumstances (see per Lords Slynn of Hadley, Nolan and Clyde in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 AC 295).

For there to be a sufficient mistake of fact giving rise to unfairness the following criteria need to be fulfilled:

  • there must be a mistake as to an existing fact, including mistake as to the availability of evidence;
  • the fact or evidence must now be uncontentious and objectively verifiable;
  • the claimant or his advisers must not have been responsible for the mistake of fact; and
  • the mistake must have played a material (but not necessarily decisive) part in the Tribunal’s reasoning (E v Secretary of State for the Home Department [2004] EWCA Civ 49, [2004] QB 1044). (See also R (Ross) v West Sussex Primary Care Trust [2008] EWHC 2252 (Admin), LTL 29/9/2008; Connolly v Secretary of State for Communities and Local Government [2009] EWCA Civ 1059, [2009] NPC 114; and R (March) v Secretary of State for Health [2010] EWHC 765 (Admin); [2010] Med LR 271.)

There is a distinction to be made between cases where an appeal court is satisfied, on new evidence, that a minister or inferior body or tribunal took a decision on the basis of a belief as to the existence of a material fact that has now been demonstrated to be plainly wrong, and cases where it took its decision in the mistake belief that there was in fact no apparently cogent evidence to refute a material finding it had made (see Shabana Shaheen v Secretary of State for the Home Department [2005] EWCA Civ 1294, [2006] Imm AR 57, where on the facts, the Court of Appeal held that the Immigration Appeal Tribunal had not made an error of law).

. In exercising their functions, public bodies evaluate evidence and reach conclusions of fact. The court will not ordinarily interfere with the valuation of evidence or conclusions of fact reached by a public body properly directing itself in law. The e3xercise of statutory powers on the basis of a mistaken view of the relevant facts will, however, be quashed where there was no evidence, or no sufficient evidence, available to the decision-maker on which, properly directing himself as to the law, he could reasonably have formed that view. The court may also intervene where a body has reached a decision which is based on a material mistake as to the established fact. Although the general rule is that a judicial review is determined on the basis of the material that was before the decision-maker, where it is alleged that there has been a mistake of fact fresh evidence may be admitted.

The court adopts a different approach where the existence of a state of affairs is a statutory precondition to the jurisdiction of a public body. Where the existence of such a state of affairs is put in issue, the decision-maker must determine that issue, but his determination is subject to review by the court. In each case, the extent to which the court will intervene depends on the proper construction of the governing statutory provision. In some cases the jurisdiction of the decision-maker has been held to depend on the existence, objectively determined, of a particular fact or facts. Such facts may be described as jurisdictional or precedent facts. The court will itself determine whether a jurisdictional fact exists and intervene if its conclusion differs from that of the decision-maker. In doing so, the court may admit evidence on the issue. In other cases the statute will provide that a body is to have power or jurisdiction where it ‘is satisfied’ of certain matters, or where certain facts ‘appear’ to that body. In that case the court will generally only intervene if the body’s finding that the necessary facts existed was not one which a reasonable person, properly directed as to the question to be determined, could have come to, or if the body is not in fact satisfied as to the relevant matters. Where the determination of the jurisdictional fact is not in terms expressed to be a question for the subjective consideration of the relevant body, the courts may still construe the statutory provision as requiring only that the body should be subjectively satisfied as to the existence of any jurisdictional fact.

Errors of law. There is a general presumption that a public-decision making body has no jurisdiction or power to commit an error of law; thus where a body errs in law in reaching a decision or making an order, the court may quash that decision or order. The error of law must be relevant, that is to say it must be an error in the actual making of the decision which affects the decision itself. Even if the error of law is relevant, the court may exercise its discretion not to quash where the decision would have been on different had the error not been committed. Where a notice, order or other instrument made by a public body is unlawful only in part, the whole instrument will be invalid unless the unlawful part can be severed.

In certain exceptional cases, the presumption that there is no power or jurisdiction to commit an error of law may be rebutted, in which case the court will not quash for an error of law made within jurisdiction in the narrow sense. The previous law which drew a distinction between errors of law on the face of the record and other errors of law is now obsolete.

A public body will err in law if it acts in breach of fundamental human rights; misinterprets a statute, or any other legal document, or a rule of common law; frustrates the purpose of a statute or otherwise acts for an improper purpose; takes a decision on the basis of secondary legislation, or any other act or order, which is itself ultra vires; takes legally irrelevant considerations into account, or fails to take relevant considerations into account; admits inadmissible evidence, rejects admissible and relevant evidence, or takes a decision on no evidence or on the basis of a material mistake of fact; misdirects itself as to the burden of proof; fails to follow the proper procedure required by law; fetters its discretion or improperly delegates the decision; fails to fulfil an express or implied duty to give reasons; acts arbitrarily or discriminately; or otherwise abuses its power.

The distinction between law and fact. The distinction between what will be treated as a question of law and what will be treated as a question of fact is one of importance. In general, where a body makes an error of law in reaching a decision, it will act without jurisdiction or power, and the court may quash that decision on an application for judicial review. By contrast the court will generally not intervene on the ground that a body has reached an erroneous finding of fact unless the finding is manifestly unreasonable or a mistake has been made as to an established and material fact that gives rise to unfairness or the finding of facts was otherwise reached through an error of law or is a precedent fact.

There is often difficulty in deciding whether a question should be classified as one of law or as one of fact (or fact and degree). Determination of the primary facts is not a matter of law, but to make a finding unsupported by any evidence is an error of law. Drawing inferences from the facts as found, and in particular determining whether the primary or secondary facts fall within the ambit of a statutory description, are potentially classifiable as questions of law, as questions of fact, or as questions of mixed law and fact. The method of classification may be important, for judicial review of findings of law may entail an independent determination of the matter already decided, whereas a review of findings of fact is likely to be more limited. It has been said that if the question is one which only a trained lawyer can be expected to decide correctly, there is a presumption that it will be categorised as one of law. Otherwise the question is usually treated as one of mixed law and fact, so that the range of meanings that can reasonably be ascribed to a statutory expression is a question of law; but whether the facts as found fall within the ambit of that expression will be held to be a question of fact, on which the decision of the competent authority will not be disturbed unless it is perverse (or is such that no reasonable authority properly instructed in the law could have arrived at it), or is erroneous because a wrong legal approach has been adopted.

A court will generally be reluctant to disturb the findings of a tribunal with specialised knowledge of technical subject matters, irrespective of whether these findings be classified as law or fact.

Irrationality

A decision may be tainted by irrationality where the decision-making body allegedly:

  • acted for an improper purpose;
  • acted with bad faith;
  • fettered its discretion;
  • improperly delegated its functions;
  • reached a conclusion that no body properly directing itself on the relevant law and acting reasonably could have reached;
  • failed to take into account relevant matters or took into count irrelevant matters’
  • abused its powers or infringed a legitimate expectation; or, possibly,
  • acted in a disproportionate manner; or
  • did not act consistently.

The Human Rights Act 1998 may also provide a backdrop to claims based upon the ground of irrationality. When scrutinising an executive decision which interferes with human rights, the court will ask, applying an objective test, whether the decision-maker could reasonably have concluded that the inference was necessary to achieve one or more of the legitimate aims recognised by the Convention (R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840). The proportionality of any inference will now be an issue in any review by the courts of the decision of a public authority R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532) in a case raising the Human Rights Act 1998.

Improper purpose. In cases where a power granted to a public body for one purpose is exercised by it for a different purpose, that power is deemed not to have been validly exercised, e.g. where a local authority decided to avoid the products of a company in order to put pressure upon its parent companies to withdraw their interests from South Africa (R v Lewisham London Borough Council, ex parte Shell UK Ltd [1988] 1 All ER 938); where a transaction by a local council was for the improper purpose of circumventing its restrictions on borrowing and spending (Crédit Suisse v Allerdale Borough Council [1997] QB 306).

Generally the interpretation by the courts of the purpose of a statutory provision involves search for the ‘natural and ordinary meaning’ of the word or term. Although reference may be made to Parliamentary records to aid the construction of legislation which is ambiguous or obscure (Pepper v Hart [1993] AC 593) this principle is not applicable in relation to the determination of the general purpose of a statutory scheme, but only to resolve ambiguity in a statutory provision.

The exercise of a discretionary power for a purpose alien to that for which it was granted is unlawful, regardless of whether or not that alien purpose is in the public interest. If the purposes for which the power can legitimately be exercised are specified by statute and those purposes are construed as being exhaustive, an exercise of that power in order to achieve a different and collateral object will be pronounced invalid. The fact that the relationship between the subject matter of the power and the prescribed purposes for which it may lawfully be exercised is expressed to be ascertained to the satisfaction of the competent authority does not necessarily preclude the court from deciding independently whether those purposes have indeed been pursued. If the permitted purposes are left unspecified, ore are not exhaustively specified, by statute, it lies with the court to determine what, if any, are the implied restrictions on the purposes for which the power is exercisable; statutory powers are not to be employed so as to defeat the spirit of the Act conferring them. An exercise of a statutory power which would undermine the operation of provisions in the statute for consultation or appeal will conflict with the objects of the Act. The use of statutory powers to impose penalties in respect of conduct of which the decision-maker does not approve will be quashed where that is not a legitimate purpose, as will the improper use of a power to obtain financial benefits, or the use of a power for illegitimate political purposes. In some contexts the motives or purposes animating those performing an act or making a decision may be immaterial, provided that the object for which the power was conferred has been substantially fulfilled and that the repository of the power was acting in good faith.

Where a power is exercised for purposes partly authorised and partly unauthorised by law, the court generally adopts one of two approaches. It may ascertain the dominant or true purpose for which a power is exercised, and if that purpose is permitted, the exercise will be lawful even though some secondary or incidental advantage may be gained for a purpose which is outside the authority’s powers. Alternatively, it will ascertain whether the decision to exercise the power was significantly influenced by the existence of the unauthorised purpose, and if it was, quash the exercise of the power on the ground that it was exercised having regard to an irrelevant consideration.

Where a prima facie case of misuse of power has been made out, it is open to a court to draw the inference that unauthorised purposes have been pursued if the competent authority fails to adduce any grounds supporting the validity of its conduct.

Bad faith. A decision is made in bad faith if it has been affected by motives such as fraud, malice, or personal self-interest. A power is deemed to have been exercised fraudulently where the decision-maker had an intention to achieve an object other than that which is claimed to be seeking, e.g. he promotion of another public or private interest. A power is regarded as exercised maliciously if an action or decision is motivated by a personal animosity towards those who are directly affected by its exercise, e.g. the decision by a county council to cease advertising in journals controlled by Times Newspapers (which had an article criticising a councillor) was explicitly held to be motivated by bad faith and declared invalid (R v Derbyshire County Council, ex parte The Times Supplements Ltd (1991) 3 Admin LR 241).

The exercise of a discretion by a public body in bad faith is unlawful and will be quashed by the court. A decision is taken in bad faith if it is taken dishonestly or maliciously although the courts have also equated bad faith with any deliberate improper purpose. A decision or order, though itself taken or made in good faith, will be quashed by the court if procured by fraud. In very exceptional circumstances a narrow definition of the statutory grounds for challenging an administrative act may be effective to exclude fraud or bad faith as a ground of challenge; but it is well established that in general legislative formulae purporting to exclude judicial review of a tribunal’s proceedings altogether do not operate to exclude challenges founded on fraud. Fraud or bad faith must be expressly pleaded by the party alleging it.

There are situations where tortious liability may be incurred in respect of acts done in bad faith although no liability would arise were the same acts to be done in good faith.

Fettering of discretion. Where a public body maintains a rigid policy with no exceptions it thereby fetters it discretion. Although a public authority can have a policy, it must consider particular cases rather than fetters its discretion by always following its stated policy blindly.

The courts may be prepared to scrutinise closely the conduct of a decision-maker in assessing whether or not he or she has unlawfully fettered his or her discretion, e.g. a course of conduct involving the consistent rejection of applications belonging to a particular class may justify an inference that the public body has adapted a policy to refuse them all. however, it is unlikely that the courts will deem a decision-maker to have fettered his or her discretion in circumstances where he or she afforded those individuals affected the ability to make representations, e.g. decisions of local authorities in relation to the disposition of planning appeals or proposals for the compulsory acquisition of land have been upheld in circumstances where the decision was made after a public inquiry (Franklin v Minister of Town and Country Planning [1948] AC 87; Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281).

Where a public body has discretion in exercising its public functions, it must not fetter that discretion by adopting an over-rigid policy. There is a balance to be struck between certainty, rigidity and individual consideration. It is generally lawful, and can be desirable, for a public body to have a policy which allows for exceptions, so long as there is genuine flexibility.

Improper delegation. In general a public law function must be exercised only by the body to whom it has been given. When a power is provided to a person in circumstances indicating that trust is being placed in his or her individual judgment and discretion, that person must exercise that power personally unless he or she has been expressly empowered to delegate it to another. Public bodies which exercise functions analogous to the judiciary are precluded from delegating their powers of decision unless there is express authority to that effect (General Council of Medical Education and Registration of the United Kingdom v Dental Board of the United Kingdom [1936] Ch 41).

Where an authority vested with discretionary powers affecting private rights then empowers one of its committees, members or officers to exercise those powers independently without any supervisory control, the exercise of those powers is likely to be held invalid. Thus, for example, a delegation by the Director of Public Prosecutions to non-qualified lawyers of the power to review prosecutions in order to decide whether there was sufficient evidence to proceed was held to be unlawful because the statute giving the power to the Director clearly contemplated that it would only be delegated to a member of the Crown Prosecution Service who was a lawyer (R v Director of Public Prosecutions, ex parte Association of First Division Civil Servants (1988) The Times, 24 May 1988).

Wednesbury unreasonableness. Lord Green MR stated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223:

it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.

In order to prove ‘Wednesbury unreasonableness’ something overwhelming must be proved but this test has been fulfilled in a number of cases, e.g. a local authority resolution to ban a rugby club from its property for not putting pressure upon three of its players not to participate in a tour of South Africa (Wheeler v Leicester City Council [1985] AC 1054); a justice’s clerk’s refusal to supply duplicate legal aid orders (R v Liverpool Justices, ex parte R. M. Broudie and Co. (1994) 7 Admin LR 242); and the Lottery Commission’s refusal to allow a bidder one month to allay its concerns about the bid (R v National Lotter Commission, ex parte Camelot Group plc [2001] EMLR 3).

Failure to take account of relevant considerations. A further limb of the ground of irrationality comprises failure to take account of relevant considerations or the taking into account of an irrelevant consideration. For example, the court held that a borough council took into account irrelevant (philanthropic) considerations in deciding to overpay its staff, and also failed to take into account relevant considerations of comparable wages and the costs of living (Roberts v Hopwood [1925] AC 578).

A statute may expressly or impliedly make clear considerations to which regard must or must not be had. There may also be considerations to which the decision-maker may have regard in the exercise of his discretion subject to normal public law principles (see CREEDNZ Inc v Governor-General [1981] 1 NZLR 172).

A failure to assess the evidence properly, resulting in a decision which appears to be unsupported by the evidence, can also be characterise as a failure to take account of relevant considerations. This may arise where the court is unable to identify the evidence to support a decision, in which event the decision will be flawed in law (AJ (Liberia) v Secretary of State for the Home Department [2006] EWCA Civ 1736, LTL 15/12/2006).

It is not necessary to prove that the influence of irrelevant factors was the chief or main influence upon the decision made or action taken. As a general rule it is enough to prove that the influence was material or substantial (R v Inner London Education Authority, ex parte Westminster City Council [1986] 1 WLR 28). Where a decision-maker leaves out of account some relevant matter, the legal test is whether that factor might realistically have caused the decision-maker to reach a different conclusion (W v Special Educational Needs Tribunal (2000) The Times, 12 December 2000).

If the challenge is based upon a claim that relevant considerations were not taken into account, the courts will normally try to assess the actual or potential importance of the factor that was overlooked, even though this may involve a degree of speculation. Examples of decisions challenged under this ground include the unlawful expenditure of public funds by a board of guardians in cancelling a series of loans to miners without taking into account the ability of the debtors to repay their loans (Attorney-General v Tynemouth Poor Law Union Guardians [1930] 1 Ch 616) and the decision of a university to refuse to permit a controversial meeting on its premises which had been influenced by an irrelevant consideration, namely, the likelihood of violence outside the premises (R v University of Liverpool, ex parte Caesar-Gordeon [1991] 1 QB 124).

Abuse of power/substantive legitimate expectation. There is authority that an undertaking or promise by a public authority may lead to a legitimate expectation which must not be thwarted (R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299) the fulfilment of substantive expectations has been upheld, e.g. an expectation contained in the terms of a Home Office circular setting out the conditions for the adoption of children from abroad (R v Secretary of State for the Home Department, ex parte Asif Mohammed Khan [1984] 1 WLR 1337) and an expectation that foreign doctors given particular immigration status would be able to seek and obtain employment in the UK in their field (which subsequent guidance then sought to restrict) (R (Bapio Action Ltd) v Secretary of State for the Home Department [2008] UKHL 27, [2008] 1 AC 1003). A suggestion that the concept of substantive legitimate expectation is nothing more than a challenged based upon Wednesbury unreasonableness grounds (R v Secretary of State for the Home Department, ex parte Hargreaves [1997] 1 WLR 906) was effectively circumvented in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213.

Proportionality. Proportionality is a concept central both to EU law and to the European Convention on Human Rights and means that remedies or measures should be proportionate to the legitimate aim that is sought to be achieved or the state of affairs they are intended to redress, and thus the administrative process should be in proportion to the outcome of the process. The conventional view is that proportionality is simply a facet of irrationality/Wednesbury unreasonableness and there is no separate ground of proportionality within the domestic context (R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696). However, it is clear that the tests of proportionality and Wednesbury unreasonableness do not always yield the same results but are moving closer together (R (Association of British Civilian internees: Far East Region) v Secretary of State for Defence [2003] EWCA Civ 473, [2003] QB 1397). Although there is an overlap between the traditional grounds of judicial review and the approach of proportionality, the intensity of review is greater under the proportionality approach (R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532). Proportionality has been raised in the context of personal liberty (R v Secretary of State for the Home Department, ex parte Pegg [1995] COD 84) and has also been applied where a sentencing decision is susceptible to judicial review (R v Highbury Corner Justices, ex parte Uchendu (1994) 158 JP 409).

The principle of proportionality requires that there be a reasonable relationship between the objective which is sought to be achieved and the means used to achieve that end. The principle of proportionality will be applied by the court when reviewing action or legislation for compatibility with the Convention for the Protection of Human Rights and Fundamental Freedoms or European Union law. The courts will also quash punishments imposed by administrative bodies or inferior courts which are wholly out of proportion to the relevant misconduct. It remains an open question whether proportionality is a free-standing ground of review in domestic law. However, the courts will often consider a lack of proportionality an indication or aspect of Wednesbury unreasonableness. Although normally in judicial review proceedings the court will not substitute its own view for that of the decision-maker, where the proportionality principle applies, the court will assess for itself whether the right balance has been struck.

The intensity of review. Where a body is endowed by statute with a discretionary power, the court will not quash any exercise of that power which is lawful and reasonable simply because the court disagrees with the decision taken. The court will review the exercise of a discretionary power to ensure that it was lawful and reasonable, according the principles set out above. The intensity of scrutiny will vary according to the subject matter and statutory context.

Where the exercise of a discretionary power is liable to interfere with fundamental human rights, the courts will examine the decision-maker’s actions more rigorously than where such interests are not directly affected by the action taken. The court will decide for itself whether, as a matter of law, a fundamental human right has been breached. Scrutiny of administrative action may be less intense where the exercise of a discretion involves considerations of policy or allocation of resources, national security, where statutory powers are required to be exercised in emergencies, or where they are subject to political controls.

Administrative consistency. There is a general principle, as one aspect of irrationality as a ground for review, that like cases should be treated alike (but clearly where cases are not alike this may justify differential treatment).

Where the Agricultural Wages Board established a new category of worker whose minimum wage was lower than that of a standard worker, but excluded mushroom harvesters from those who could be paid this rate, this exclusion was found to infringe the principle of public administration that all persons in a similar situation should be treated similarly (R (Middlebrook Mushrooms Ltd) v Agricultural Wages Board of England and Wales [2004] EWHC 1447 (Admin), The Times, 15 July 2004).

Procedural impropriety

Procedural impropriety is concerned with the procedure by which a decision is reached, not the ultimate outcome. In order to prove procedural impropriety the claimant must show that the decision was reached in an unfair manner. If there is no statutory framework which expressly stipulates the relevant procedural requirements, there are two applicable common law rules under this head, namely:

  • the rule against bias, which requires the public body to be impartial and to be seen to be so; and
  • the right to a fair hearing whereby those affected by a decision of a public body are entitled to know what the case is against them and to have a proper opportunity to put their case forward.

Infringement of express procedural rules

A decision made or action taken by a public body should not infringe express procedural rules outlined in primary or secondary legislation, e.g. a notice of school closure was quashed where there was a failure to consult under s. 184 of the Education Act 1993 and a government circular (R v Lambeth London Borough Council, ex parte N [1996] ELR 299); procedural codes are laid out in the town and country planning legislation which set out the procedure for an appeal or a full structured inquiry. Courts may be called upon to adjudicate upon the extent to which the statutory procedure if fulfilled. There have also been cases where the courts have supplemented a statutory scheme over and above that which is expressly specified (e.g. Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255). However, it is generally recognised that such supplementation should be exercised only in extreme circumstances where considered necessary to promote the purpose of the legislation (Wiseman v Borneman [1971] AC 297).

Implied procedural rules

The requirement to comply with express procedural rules is supported by the common law obligation to provide a fair hearing. The rules of natural justice embody a duty to act fairly. Whenever a public function is performed there is an inference, in the absence of an express requirement to the contrary, that the function is required to be performed fairly. This is more compelling in the case of any decision which may adversely affect a person’s rights or interests (e.g. R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299) but will not apply to situations which are too remote to qualify for a fair hearing.

Bias

In some cases where the decision-maker has a direct personal or proprietary interest in the outcome of a matter, he or she should always be disqualified from adjudicating upon the issue. However, when the interest is indirect, the courts generally apply the following test. First, the court should ascertain all the circumstances which have a bearing on the suggestion that the tribunal is biased. Secondly, it should ask whether those circumstances would lead a fair-minded and informed observer to conclude that there is a real possibility that the tribunal is biased (Porte v Magill [2001] UKHL 67, [2002] 2 AC 357. See also Bolkiah v Brunei Darussalam [2007] UKPC 62. LTL 9/11/2007.

The House of Lords has held a judge in the House of Lords involved with Amnesty International to be automatically disqualified because his participation in a case where Amnesty was an intervener offended the fundamental principle that man may not be a judge in his own cause. Although this principle normally applies only in cases where the judge has a pecuniary interest, the court confirmed that it could and did extend to cases where the judge has a non-pecuniary interest (sufficient to amount to an interest in the outcome of the proceedings) in one of the parties thereto (R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) [2000] 1 AC 119, subsequently applied in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451).

In considering the questions of apparent bias it is necessary to look beyond pecuniary or personal interests and to consider in addition whether, from the point of view of the fair-minded and informed observer, there is a real possibility that the decision-maker is biased in the sense of approaching the decision with a closed mind and without impartial consideration of all relevant issues (Georgiou v Enfield London Borough Council [2004] EWHC 779 (Admin), [2004] LGR 497).

The question of independence should be tested by reference to the fair-minded and informed observer’s knowledge of all the information which could have been ascertained by fair-minded outside observer (Re P (A Barrister) [2005] 1 WLR 3019). The fair-minded observer would not reach a conclusion without seeking to obtain the full facts (Virdi v Law Society [2010] EWCA Civ 100, [2010] 1 WLR 2840). However, the information to be attributed to the fair-minded and informed observer includes that which would be apparent to the court upon investigation and is not restricted to that available to a hypothetical observer at an original hearing (National Assembly for Wales v Condron [2006] EWCA Civ 1573, [2006] NPC 127). The attributes of the fair-minded and informed observer include reserving judgment until she has seen and fully understood both sides of an argument, taking the trouble to inform herself on all relevant matters, taking a balanced approach to any information she is given, being able to put material into social, political or geographical context, knowing that judges like anyone else have their weaknesses but knowing that fairness requires judges to be, and be seen to be, unbiased (Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416, subsequently applied in Competition Commission v BAA Ltd [2010] EWCA Civ 1097, [2011] UKCLR 1).

A public body should not allow decisions to be made by people who have a financial interest in the decision or a family/business connection with any party. However, it has been held that no bias arose in the case of a grant of planning permission to develop a rugby club’s land where it was subsequently discovered that the club had an interest in acquiring land belonging to the chairman of the planning authority (R v Secretary of State for the Environment, ex parte Kirkstall Valley Campaign Ltd [1996] 3 All ER 304), nor where a planning officer had to consider various development proposals, including one put forward by her husband’s company, since her decision was actually adverse to that company (R (Persimmon Homes Ltd) v Vale of Glamorgan Council [2010] EWHC 535 (Admin), LTL 22/3/2010). Bias may also arise because of a personal business relationship between the adjudicator and one of the parties, or because of partisanship by the adjudicator in relation to the issues to be resolved. Where a decision-maker takes part in the determination of an appeal against one of his or her own decisions (unless he or she is expressly authorised to do so by statute) it will be tainted by apparent bias, e.g. a clerk to a statutory tribunal could not act as clerk to the appeal tribunal hearing the appeal against that decision (R v Salford Assessment Committee, ex parte Ogden [1937] 2 KB 1). See also R (Al-Hasan) v Secretary of State for the Home Department [2005] UKHL 13, [2005] 1 WLR 688.

Right to a fair hearing

The right to a fair hearing embodies the idea of even-handedness between the parties in relation to obtaining information which is made available, and the provision of an opportunity to make representations. The concept of a fair hearing varies from case to case. For example, there may be an entitlement to an oral hearing in cases where the livelihood or liberty of the claimant is at stake, whereas such an entitlement will not be deemed necessary in relation to more minor matters with less potentially adverse consequences. The two main elements of procedural fairness are:

  • the right to know the opposing case; and
  • a fair opportunity to answer that case.

Reasons

There is no general duty under English law upon a decision-maker to give reasons for his or her decisions although statute does provide for such a duty in certain instances (e.g. Housing act 1985, s. 64). However, in R v Civil Service Appeal Board, ex parte Cunningham [1992] ICR 816 Lord Donaldson MR stated that:

I do not accept that, just because Parliament has ruled that some tribunals should be required to give reasons for their decisions, it follows that the common law is unable to impose a similar requirement upon other tribunals, if justice so requires.

In R v Ministry of Defence, ex parte Murray [1998] COD 134, the Divisional Court confirmed that although the law did not at present recognise a general duty to give reasons, there was a perceptible trend towards an insistence on greater transparency in decision-making. Where a statute conferred a power to make decisions affecting individuals, the court would readily apply necessary additional procedural safeguards so as to ensure the attainment of fairness. The Court of Appeal has acknowledged that it might be the trend for requirements to give reasons to become the norm rather than the exception, but despite this there remains no general duty at common law to give reasons for an administrative decision. Indeed the Court of Appeal considered that the Freedom of Information Act 2000 was Parliament’s considered statutory framework for the disclosure of information held by public authorities and its enactment therefore militated against the incremental imposition by the judiciary of a common law general duty to give reasons (R (Hasan) v Secretary of State for Trade and Industry [2008] EWCA Civ 1312, LTL 25/11/2008).

Reasons should therefore be given where either:

  • a decision without reasons was insufficient to achieve justice; or
  • the decision appeared aberrant.

Cases suggest that a duty to give reasons arises in cases where the body departs from its usual policy or practice (R v Islington London Borough Council, ex parte Rixon [1997] ELR 66), and where a failure to give reasons or the giving of inadequate reasons would lead to the quashing of the decision in question (R v Westminster City Council, ex parte Ermakov [1006] 2 All ER 302).

Procedural legitimate expectation

A procedural legitimate expectation arises in circumstances where a decision deprived the claimant of:

some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that it will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. (Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374).

The concept of procedural legitimate expectation has been applied to ensure that no adverse decision will be taken without first giving the affected party an opportunity of making representations.

Examples of legitimate expectations are that taxi drivers had a legitimate expectation of consultation prior to the issue of licences in circumstances where such consultation had been expressly promised (R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’ Association [1072] 2 QB 299)’ civil servants had a legitimate expectation of consultation prior to the removal of trade union right, subject to considerations of national security (Council of Civil Unions v Minister for the Civil Service [1985] AC 374); coal miners’ unions had a legitimate expectation of consultation on pit closures (R v British Coal Corporation, ex parte Vardy [1993] ICR 720); illegal immigrants had a legitimate expectation of an opportunity to state their case prior to deportation (R v Attorney-General of Hong Kong, ex parte Ng Yuen Shiu [1983] 2 AC 629); residents had a legitimate expectation of being consulted about all the options in respect of a traffic order (R (Montpeliers and Trevors Association) v City of Westminster [2005] EWHC 16 (Admin), [2006] LGR 304).

Consultation

In many areas consultation is playing an increasingly important role. For example, in the context of environmental decisions, consultation is particularly significant given the Government’s obligations under the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters 1998 (the Aarhus Convention). There are four basic requirements of an adequate consultation:

  • It must be at a time when proposals are still at a formative stage.
  • The proposer must give sufficient reasons for any proposal to allow intelligent consideration and response.
  • Adequate time must be given for consideration and response.
  • The product of consultation must be conscientiously taken into account in finalising any proposals.

See R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213, adopting the formulation of Stephen Sedley QC in R v Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168.