INTRODUCTION

Judicial review is the means by which the courts control administrative action by public bodies (including inferior courts and tribunals). It is a supervisory jurisdiction which reviews administrative action rather than being an appellate jurisdiction.

The principal rules of the court governing claims for judicial review are in CPR, Part 54, supplemented by PD 54A. CPR, r. 54.1(2)(a), defines a claim for judicial review 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.

Although other remedies may be asked for, the characteristic remedies in judicial review claims are the prerogative mandatory, prohibiting and quashing orders (see 74.53 to 74.60), which county courts do not have power to grant (County Courts Act 1984, s. 38(3)(a)). Judicial review claims are assigned to the Queen’s Bench Division in the High Court by the Senior Courts Act 1981, sch, 1, para. 2(b), and are dealt with in the Administrative Court.

APPLICATIONS FOR JUDICIAL REVIEW

Most judicial review claims are brought in the Administrative Court and are governed by Pt 54 of the Civil Procedure Rules and its four accompanying practice directions. However, under the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal now has jurisdiction to deal with certain judicial review claims: Tribunals, Courts and Enforcement Act 2007 ss.15, 18. These are, broadly speaking, claims relating to decisions of the First-tier Tribunal in certain Criminal Injuries Compensation Scheme appeals and claims relating to certain decisions of the First-tier Tribunal where there is no right of appeal to the Upper Tribunal (see further below). This section deals first with traditional judicial review claims in the Administrative Court and then with judicial review claims in the Upper Tribunal.

BODIES OPEN TO JUDICIAL REVIEW

There are to conditions necessary to determine whether a decision by a body is judicially reviewable:

  • the decision or action must be made by a public body; and
  • the public body must make a public law decision or take a public law action.

Any body performing public law duties or powers is susceptible to judicial review. Historically, the most important factor considered by the courts in identifying activities subject to judicial review was the source of the power being exercised by the decision-maker whose decision was sought to be challenged. However, the courts have recognised that such an approach is too restrictive and they are now influenced by the type of function performed by the decision-maker (R v Panel on Take-overs and Mergers, ex parte Datafin plc [1987] QB 815).

The essential elements which comprise a public law body are

  • a ‘public element’ (which can take many different forms); and
  • the exclusion of bodies whose sole source of power is consensual submission to their jurisdiction (per Sir John Donaldson MR in R v Panel on Take-overs and Mergers, ex parte Datafin plc).

Thus, the test of is a public body is not solely an examination of the source of the regulator’s power but also a consideration of the regulator’s functions.

Central government and statutory bodies

Central government and bodies which derive authority from statute are susceptible to judicial review. Central government’s bodies which have been held to be reviewable also includes inferior courts, local authorities, tribunals and inquiries and regulators with a statutory basis. Ministers acting on behalf of the Crown are also subject to judicial review (Re M [1994] 1 AC 377). The Parliamentary Commissioner for Standards has been held not to be reviewable because he or she is one of the means by which the Select Committee on Standards and Privileges carries out its functions, and those functions form part of the proceedings of Parliament (R v Parliamentary Commissioner for Standards, ex parte Al Fayed [1998] 1 WLR 669) and the courts will not intervene in the affairs of Parliament.

Other courts and tribunals susceptible to judicial review include magistrates’ courts, coroners’ courts, local election courts (R v Cripps, ex parte Muldoon [1984] QB 68 (DC); [1984] QB 686 (CA)), patents appeal tribunals (Baldwin and Francis Ltd v Patents Appeal Tribunal [1959] AC 663), county courts (save where they perform the functions of a superior court) and statutory tribunals in certain circumstances (where a High Court judge does not sit, and dependent upon their powers and relationship with the High Court according to its enabling statute) (see R v Cripps, ex parte Muldoon [1984] QB 686). Judicial review does not lie against the High Court or the Court of Appeal, but only against the decisions of inferior courts.

Following the creation of a single tribunal structure by the Tribunals, Courts and Enforcement Act 2007, it has been held by the Supreme Court that a decision of the Upper Tribunal is subject to judicial review only if there is an important point of practice or principle or some other compelling reason for the case to be reviewed (R (Cart) v Upper Tribunal [2011] UKSC 28, [2011] 3 WLR 107). Any historical exceptions relating to judicial review of immigration and asylum decisions identified in R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738, [2003] 1 WLR 475, cannot now apply to the centralised tribunal system (R (Rana) v Upper Tribunal (Immigration and Asylum Chamber) [2010] EWHC 3558 (Admin), LTL 20/1/2011).

The Senior Courts Act 1981, s. 29(3), enables the High Court to make prerogative orders against the Crown Court to the same extent as it may against an inferior court other than in relation to the Crown Court’s jurisdiction in trial on indictment matters. Trial on indictment includes decisions as to sentence, such as confiscation and compensation orders, as they are an integral part of the trial process and therefore outside the scope of judicial review (R (Faithfull) v Crown Court at Ipswich [2007] EWHC 2763 (Admin), [2008] 1 WLR 1636).

Nationalised industries are also subject to judicial review. For example, the British Coal Corporation has been held to be reviewable in respect of its decision to close coal pits (R v British Coal Corporation, ex parte Vardy [1993] ICR 720).

A person or body exercising prerogative powers (i.e. non-statutory acts of executive government) may be amenable to judicial review (R v Criminal Injuries Compensation Board, ex parte Lain [1967] 2 QB 864). In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 the House of Lords held that prerogative powers were reviewable, but Lord Roskill listed six examples of prerogative powers which he thought would not be reviewable, i.e. treat making, defence of the realm, prerogative of mercy, grant of honours, dissolution of Parliament and the appointment of ministers. The prerogative of mercy has subsequently been held to be judicially reviewable (R v Secretary of State for the Home Department, ex parte Bentley [1994] QB 349). The prerogative power of colonial governance does not enjoy immunity from judicial review (R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2008] UKHL 61, [2009] 1 AC 453).

However, in R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin), [2008] ACD 70, the issue of political promises made in relation to the government entering into a treat was within the scope of judicial review, although it was found that in the specific circumstances there had been no breach of legitimate expectation by the government’s decision not to hold a referendum before entering into the Lisbon Treaty.

The High Court has reviewed the exercises of prerogative powers by the Crown in certain instances, including a decision of the Foreign Secretary to refuse to issue an application with a passport (R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett [1989] QB 811) and the residual power of the Home Secretary to depart from immigration rules (R v Secretary of State for the Home Department, ex parte Beedassee [1998] COD 525).

Non-statutory bodies

Non-statutory bodies which carry out public law functions will also be susceptible to judicial review. Bodies concerned with the regulation of commercial and professional activities to ensure compliance with proper standards, e.g. the Law Society and the Institute of Chartered Accountants, may be susceptible to judicial review whether or not their powers derive from statute or royal charter. Other self-regulating organisations and other private institutions may also perform some types of public function.

The Panel on Takeovers and Mergers was held in R v Panel on Take-overs and Mergers, ex parte Datafin plc [1987] QB 815 to be judicially reviewable despite the fact that it had no direct statutory authority. The Court of Appeal was influenced by the fact that the Panel ‘oversees and regulates a very important part of the United Kingdom financial market’ without any legal support. It considered that if the body in question exercised public law functions or the exercise of its functions had public law consequences, this would be sufficient to make it reviewable. The Panel clearly exercised public functions.

Following R v Panel on Take-overs and Mergers, ex parte Datafin plc the Advertising Standards Authority was found to be a public body upon the basis that, in the absence of a self-regulatory body such as the Authority, its function would be exercised by the Director General of Fair Trading (R v Advertising Standards Authority, ex parte Insurance Service plc (1990) 2 Admin LR 77). Similarly, although financial services self-regulating organisation lack statutory underpinning (but were contemplated by the Financial Services Act 1986), they have been found to be reviewable (R v Life Assurance Unit Trust Regulatory Organisation Ltd, ex parte Ross [1993] QB 17), as has the London Metal Exchange, which is a recognised investment exchange (R v London Metal Exchange, ex parte Albatros Warehousing BV (2000) LTL 31/3/2000). However, the decisions of bodies set up by self-regulating organisation pursuant to regulatory powers are not also automatically reviewable. The Insurance Ombudsman Bureau (a body recognised by LAUTRO as performing a complaints investigation function for the purposes of the Financial Services Act 1986 and with voluntary membership) has been held to possess power over its members which was solely derived from contract and was not therefore regarded as a public body (R v Insurance Ombudsman Bureau, ex parte Aegon Life Assurance Ltd [1994] COD 426).

The Court of Appeal has held it arguable that the Press Complaints Commission is a body subject to judicial review (R v Press Complaints Commission, ex parte Stewart-Brady (1997) 9 Admin LR 274).

A housing association, as a registered provider of social housing, is amendable to judicial review in respect of its functions in managing and allocating its housing stock (R (Weaver) v London and Quadrant Housing Trust [2009] EWCA Civ 587, [2010] 1 WLR 363 at [83]).

However, R v Panel on Take-overs and Mergers, ex parte Datafin plc has been interrupted narrowly in some subsequent cases. In R v Chief Rabbi, ex parte Wachmann [1992] 1 WLR 1036, Simon Brown J stated that, ‘[t]o attract the court’s supervisory jurisdiction there must be not merely a public but potentially a governmental interest in the decision making power in question’. Sports bodies not backed by statute are generally outside the scope of judicial review. In R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 1 WLR 909 the Court of Appeal also took a slightly different approach and required the existence of governmental and not simply ‘public’ functions and possibly actual (as opposed to potential) governmental intervention. Therefore the Jockey Club was held to fall outside the scope of the court’s supervisory jurisdiction because it did not form part of a system of governmental control. The court was also influenced by the fact that the Club’s source of power was contractual and that a private law remedy was available to the claimant (see also R (Mullins) v Appeal Board of the Jockey Club [2005] EWHC 2197 (Admin), [2006] ACD 2; and R v Football Association Ltd, ex parte Football League Ltd [1993] 2 All ER 833).

Decisions of leaders of particular faiths on disciplinary issues have consistently been held not to be judicially reviewable (R v Chief Rabbi, ex parte Wachmann; R Imam of Bury Park Jame Masjid Luton, ex parte Sulaiman Ali [1994] COD 142; R v London Beth Din, ex parte Bloom [1998] COD 131; R v Provincial Court of the Church in Wales, ex parte Williams [1999] COD 163). However, the consistory courts of the Church of England have been deemed to be within the jurisdiction of the High Court because of their regulation by measures which have the effect of Acts of Parliament and therefore form part of the fabric of the state (R v Chancellor of the Chichester Consistory Court, ex parte News Group Newspapers [1992] COD 48).

A defendant private limited company, set up by a local authority to manage local farmers’ markets, and having as directors stallholders of those markets, was a public body amenable to judicial review. The defendant owed its existence to the authority which had set it up using its statutory powers, the defendant had effectively stepped into the authority’s shoes and the authority had assisted the defendant in many respects (R (Beer) v Hampshire Farmers Market Ltd [2003] EWCA Civ 1056, [2004] 1 WLR 233).

A private company limited by guarantee, operating on a mutual basis, whose members were healthcare professionals who were afforded the right to request certain discretionary benefits, such as professional indemnity or insurance cover, in exchange for an annual fee, was not amendable to judicial review. Its relevant functions were not governmental, but rather those of an insurance company. The company was not woven into the fabric of public regulation just because it operated in the healthcare sphere or because there was a public interest in patients being indemnified against negligent treatment (R (Moreton) v Medical Defence Union Ltd [2006] EWHC 1948 (Admin), LTL 2/8/2006).