Judicial Review (Illegality) - 2

PUBLIC LAW
JUDICIAL REVIEW
ILLEGALITY
INTRODUCTION
To bring a claim in judicial review the claimant must:
 Have>standing → i.e. they must have good cause to go before the court (usually
those who have been affected by the decision or have a sufficient interest in the
decision will have standing
 Bring a case against an amenable body → e.g. a public body established by statute
or a Minister exercising statutory/prerogative powers
 Be granted permission to have his/her case heard → this is an entirely
discretionary power of the High Court
 Have rounds for the court to review the decision → i.e. there must be a basis for
review recognised by the common law (see below)
⇒ Some say judicial review isn’t really about this, it is more about access to the special
remedies the court can provide (the HC) in particular e.g. quashing order, mandatory
order, declaration, prohibit a public body from doing something they intend to do,
injunctions, etc.
THE GROUNDS FOR REVIEW
Like other areas of the common law, the grounds for review have developed on a case-
by-case basis.
⇒ In the GCHQ case, Lord Diplock famously assessed the existing authorities and placed
those under three grounds for review:
 Illegality e.g. errors of law

 Irrationality (Wednesbury unreasonableness)
 Procedural impropriety i.e. whether the correct procedures have been followed by
the amenable body
We can probably add a fourth ground following the Human Rights Act 1998 – that is,
proportionality i.e. the amenable body must pursue the public good but with
proportionate means
⇒ However, these identified ‘grounds’ are really only an extremely convenient construct
and we should be wary of understanding them as fixed or established categories
 For example, the ground of illegality is extremely hard to pin down as distinct from
some of the other grounds e.g. if a decision-maker takes something into account that
they should not have taken into account when making their decision, have they acted
illegally, irrationally (unreasonably), or without regard for procedural fairness?
Perhaps all three!
GROUND FOR REVIEW: ILLEGALITY
⇒ Illegality as a ground for review is certainly well established in the case law, but what
does it mean?
 Lord Diplock, in the GCHQ case, said that the law regulates the decision-making
powers of public bodies and they must give effect to that. If they do not then they
have acted illegally and are subject to judicial review
 But this isn’t a very helpful definition and doesn’t really help
 Another approach to thinking about illegality is founded in the term ultra vires,
which means ‘without power’ or ‘beyond power’ i.e. a public body’s decision is
judicially reviewable if it was made ultra vires
 But again this is also not really that helpful
We can only progress our understanding by looking at some cases…
R V SOMERSET CC, EX PARTE FEWINGS [1995] 1 WLR 1037
The council acquired a large piece of land in 1921 – land which featured matured
woodlands and a population of red deer. Acting under s.120 of the Local Government
Act, which allows councils to acquire and maintain land for “the benefit, improvement or
development of their area,” the council decided to ban deer hunting on the land because
hunting is unnecessarily cruel
In judicial review proceedings, the council’s decision to ban hunting was quashed. This
was because the council failed to take into account what would be for the “benefit,
improvement or development of their area” and were motivated instead by ethical or
moral considerations relating to hunting.
The claim in judicial review survived an appeal to the Court of Appeal
 Bingham made a clear distinction between private persons and public bodies →
public bodies may only take into account lawful considerations when exercising their
discretion
R V FOREIGN SECRETARY, EX PARTE WORLD DEVELOPMENT
MOVEMENT [1995]
A slightly different approach to illegality review was taken by the court in this case
concerning World Development Movement (an NGO campaigning for more/better aid to
be spent).
 If in R v Somerset CC, ex parte Fewings [1995] the interest was on taking into
account/not taking into account lawful and unlawful considerations, the court in
World Development Movement is concerned with upholding the statutory purpose.
Acting under powers conferred by the Overseas Development and Cooperation Act
1980, the Foreign Secretary sought to provide £195m in aid to the Malaysian
Government to support the building of a hydroelectric dam. By any sensible economic
assessment (including an official assessment carried out by an auditor), the dam was a
“bad buy,” because electricity generation by the dam would be so expensive it would
actually lead to increased energy costs for Malaysians.
⇒ The World Development Movement, who campaigns for more and better aid, sought
to challenge the decision to award aid to the dam-building project on the grounds that the
money could be better spent elsewhere - and indeed, that the funding of the dam would
actually cause Malaysians harm. The insistence of the UK Government’s support of the
project was no doubt linked to developing diplomatic relations with Malaysia (who were,
at the time, also entering into arms contracts with UK firms)
⇒ Could the Administrative Court interfere with the decision to award aid even though
the statute did not require the Foreign Security to consider cost effectiveness when
exercising discretion?
 Yes! The court took a purposeful approach in seeking to uphold the purpose of the
Act - which was to provide aid to the world’s poor.
 Because the project was economically unsound, and failed to demonstrate more
than marginal benefit for Malaysia, the decision to award aid was
deemed unlawful as being contrary to the purpose of the statute conferring powers
upon the Foreign Secretary to make aid decisions
The grant of international aid requires the consideration
of political, economic and diplomatic matters. The Administrative Court recognised that
these matters are for the Foreign Secretary to take into account as he sees fit—but the
court could not tolerate such a ‘bad buy’ that runs counter to the statutory purpose of
the 1980 Act to provide aid for the world’s poor.

Judicial Review (Illegality) - 2

Uploaded by

Copyright:

Available Formats

Judicial Review (Illegality) - 2

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Judicial Review (Illegality) - 2

Uploaded by

Copyright:

Available Formats

PUBLIC LAW

To bring a claim in judicial review the claimant must:

THE GROUNDS FOR REVIEW

 Illegality e.g. errors of law

R V SOMERSET CC, EX PARTE FEWINGS [1995] 1 WLR 1037

The claim in judicial review survived an appeal to the Court of Appeal

You might also like

Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.