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Public Law
Judicial Review

Introduction
What is judicial review? The power of judicial review may be defined as the power of the
jurisdiction of the superior courts to review laws, decisions, acts and omissions of public
authorities in order to ensure that they act within their given powers. Broadly speaking, it is the
power of the courts to keep public authorities within proper bounds and legality. To the extent
that it is employed as a fetter on the state power, it is a most important constitutional tool. For
example a public authority must direct itself properly on the law and must not use its powers
for improper purposes. It must be noted that the court has no power suo motu to apply judicial
review. Its jurisdiction is always invoked at the instance of a person who is prejudiced or
aggrieved by an act or omission of a public authority. Once an applicant satisfies the
requirement of locus standi, an applicant may bring proceeding for judicial review even if there
is no decision on which a prerogative order can legally rest.
Additionally, the court has power, in judicial review application, to declare as
unconstitutional, law or governmental action which is inconsistent with the constitution.
As stated by Tracy Robinson, judicial review also establishes a clear nexus with the
supremacy of the constitution, in addition to placing a grave duty and responsibility on the
judiciary. It is important to contrast the power of judicial review in the Caribbean with what
prevails in the UK, where, because of the doctrine of parliamentary supremacy, the courts do
not have the power to question the legality and constitutionality of primary legislation. That
remains the position today, despite the acknowledgement of modern text writers that one of
the impacts of Britain’s participation in European Union is that parliamentary supremacy may
no longer be regarded as the corner stone of British Constitutional Law. Lord Nolan, in 1996
Radcliffe Lectures, has admitted that ‘while as a matter of law Parliament’s ultimate sovereignty
remains intact, its influence has diminished over the years, and external developments, which it
is unable to control, are tending to diminish that influence further. 1 Without saying so, the
1
Lord Nolan and Sedley, 1997, p s6.

1
statement appears to sound the death knell of the UK Parliament’s sovereignty. In the UK as far
as parliamentary legislation is concerned, all that the court can do is to declare the law. 2 This is
also true because Britain has no written constitution against which to measure the legality of
Parliament.3 However, the English courts have claimed the right to review the manner in which
public authorities exercise the power conferred on them by the legislature by literally claiming
(a) an inherent right to uphold the law (b) a duty to give effect to the intention of parliament.
Today, there is no question but that judicial review of the commonwealth Caribbean is taken
for granted.
None of the [Caribbean] constitutions has attempted to perpetuate the doctrine
of the legal omnipotence of Parliament acting by way of ordinary procedure…
The constitutions abound with restrictions on the legislative authority of
parliament... such restrictions today naturally suggest to the lawyer the existence
of judicial review.4
Breach of one’s fundamental Rights
It must also be noted that the constitution, also bequeath to our jurisprudence the
constitutional motion for the protection of fundamental right and freedoms. Any infringement
of these rights and freedoms by both the executive and the legislature could be restrained by a
constitutional motion.
Aggrieved persons could apply to the High Court for redress for any contravention or likely
contravention of these rights. The High Court was left with a wide amplitude of power for
appropriate redress.
The beauty of the constitutional motion was that it could be:
(a) combine with judicial review
(b) used to enforce substantive as well as procedural rights; and
(c) Invoked in the participation of a threaten breach.

2
British Railway Board v Pickin [1974] AC 765
3
Thompson, Allen and Walsh, 1994, p 456.
4
Carnegie, 1971.

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DISTINCTION BETWEEN REVIEW AND APPEAL
For better appreciation of the doctrine of judicial review, one must note the distinction
between review and appeal.
Even at this early stage, it is important to appreciate the distinction between review and
appeal, for judicial review proceedings the courts claim to exercise, supervisory, not appellate
jurisdiction. These are all somewhat artificial and very confusing because, as we shall soon see,
there is certainly some overlap between the two processes.
An appeal involves the transfer of a case from a lower court to a higher one for the
purpose of re-hearing. The right of appeal is usually conferred by statute, which normally sets
out the circumstances under which it may be invoked. Like judicial review, appeals also provide
an avenue for the protection of citizen’s rights, but unlike judicial review, their origins are not
founded on the common law.
We may note some features of appeal. First, right of appeal is usually statutory. Second, where
a statute does not restrict the grounds of appeal an appellate court is generally required to
decide whether the decision of the trial court was right or wrong. If it should come to the
conclusion that the decision was wrong, the appellate court is entitled to substitute its decision
for that of the authority which first determined the matter. Appeal may be on questions of law,
facts and discretion, or on law and facts only, or on law only, or even on the merits of a
decision. The grounds of appeal may also vary, and range from a complete rehearing of a case
to an appeal on a narrow point of law only. An appeal body may either substitute its decision
for that appealed from, or remit the matter to be heard de novo.
Judicial review, unlike appeal, allows a person to challenge the acts or omission of public
authority for legality. Such challenges may be mounted on the basis of the grounds for review
which the courts have developed over time, and which Lord Diplock has compressed into
‘illegality’, ‘irrationality’ and ‘procedural impropriety’. Until recently, judicial review only
applied to public bodies.
In judicial review proceedings, it is important to remember that the remedy is not intended to
detract from properly constituted authorities the power vested him them. In other words, it is
not permitted to substitute the courts as the bodies making decisions. It is intended, however,

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that the relevant authorities use their powers in a proper manner. In Council of Civil Service
Unions v Minister for Civil service,5 Lord Brightman attempted to capture the point by saying:
Judicial review is concerned, not with the decision, but with the decision making
process. Unless that restriction on the power of the court is observed, the court
will, in my view, under the guise of preventing abuse of power, be itself guilty of
usurping powers.

Ultra Vires Doctrine

(i) unlawful administrative decision and action by the state
In light of the fundamental rights provision in Caribbean Constitutions, it is now permissible to
frame a challenge to administrative action in terms of both the common law and the
constitution. Of course, the possibility that administrative actions may also violate the
fundamental rights provisions means that the court of law must be extremely careful in
balancing competing interest of the public in coming to a conclusion on a matter.
The principal weapon in judicial armoury for the control of State power has traditionally been
the doctrine of ultra vires. Professor Wade calls ultra vires ‘the central principle’ of
administrative law. Ultra vires is a Latin phrase meaning, simply, acting beyond one’s power or
authority. The general idea behind the term is that a decision or action of the functionary is said
to be ultra vires when that functionary acts outside the ambit or scope of its authority. The
doctrine of ultra vires of ultra vires is not limited to public law. So it is important that one
appreciates the several contexts in which the term is used. One area of very wide use of the
doctrine of ultra vires is in relation to subsidiary legislation. Here the doctrine is used essentially
‘as a means of controlling abuse of power by the executive arm of government.’ 6
While it is true to say that the ultra vires principle has waned in importance as the cornerstone
of judicial review, it is still important to remember that focusing on the ultra vires doctrine
helps at least to identify the utility of that principle in the context of litigation. Among its
important attributes is the reminder that judicial review is concerned with defining the scope of
State power and that most of its presumptions are to be viewed in the context of statutory

5
[1985] AC 374
6
Hoffman LaRoche v Sec of State [1974] 3 ALL ER 104, pp 131-32

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interpretation. It also provides a broad, general principle for judicial review. Of greater
importance today, is the fact that the courts have based the development of modern public law
principally on the exercise of discretion and the maintenance of the principles of good
administration. In ideological terms, the courts and government are seeing themselves in a new
and special relationship pursuing this common aim.7
Ultra vires then, is a ‘conceptual tool used as a conclusion for every type of successful challenge
of unlawful decision or action of any functionary purporting to exercise statutory or
constitutionally conferred authority.’
(ii) Distinction between substantive and procedural ultra vires
Substantive Ultra vires
Substantive ultra vires occurs when a public authority does something which is not authorized
by statute. Put simply, a public authority that has been granted powers, whether by the
constitution, statute or some other instrument, must not exceed the power so granted. It will
be taken to have exceeded it powers if it has done or decided to do an act that it does not have
the legal capacity to do.
It is important to appreciate that statutes are not wholly comprehensive. Sometimes,
powers are left to be implied. What happens in such situation? Here we invoke the ‘reasonably
incidental’ rule. This means that when a statute grants powers, an administrator is permitted to
do all that is reasonably incidental to those powers. In Taylor v Mayor, Aldermen- Citizens of
Bridgetown,8 had no difficulty in holding that the statutory right to create posts ‘walks hand in
hand with the right to abolish such post’. However, in AG v Coconut Marketing Board,9 it was
held that a board which had the power to ‘trade in coconut and coconut products’ had no
incidental power to ‘manufacture’ coconut products. A great deal therefore turns on the
interpretation and construction of a statute, especially where its language is ambiguous. The
issue is one of purely statutory interpretation.
In the case of Ali v Elections and Boundaries Commission, shows that creatures of
statutes have no choice in complying completely with their statutory powers. Whereas, in this

7
R v Lancashire County Council ex p Huddlestone [1986] 2 ALL ER 94, p 945
8
(1967) 13 WIR 368
9
(1944) 4 JLR 189

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case, the Election and Boundaries Commission chose to comply ‘substantially’ with its powers,
but eventually ignored full compliance with the Election Regulation Rules, the court had no
difficulty in quashing its decision to remove the applicant’s name from the register of voters.
An issue has arisen as to whether a constitutionally protected office, such as the Director of
Public Prosecution, is immune from judicial review. This issue was demonstrated in Sharma v
DPP.10 It was noted in the said case that, even though it was well established that judicial review
of a prosecutorial decision, is available in principle it is a highly exceptional remedy. 11
The decision of the director to consent to the prosecution of an individual is not
amenable to judicial review. Some of the reasons are adumbrated:
(a) ‘the great width of the DPP’s discretion and polycentric character of official decision
making in such matters including policy and public interest considerations which are not
susceptible of judicial review because it is neither within the constitutional function nor the
practical competence of the courts to assess their merits.’12
(b) ‘the wide range of factors relating to available evidence, the public interest and perhaps
other matters which [the prosecutor] may properly take into account’
(c) The delay inevitably caused to the criminal trial if it proceeds.
On these principles the decision to prosecute was left undisturbed.
Procedural ultra vires
Such situations occur when a public authority fails to follow procedures laid down by law. These
procedures may involve consultation with others,13 the imposition of time limits or the
improper form in which an order may be executed.
Two difficulties stand out in this regard. First, how may a functionary arrive at a decision when
no set procedures have been laid down in law? The courts have taken the liberty to prescribe
conditions of fair procedures in the decision making process by filling in the interstices
required.
Second what kind of breach will vitiate the decision? The traditional approach has been
to classify procedural breaches into mandatory and discretionary breaches. The former vitiate a
10
[2006] UK PC 57 (Privy Council Appeal No 75 of 2006).
11
R v Inland Revenue Commissioner ex p Mead [193] 1 ALL ER 772, 782
12
R v Horseferry Road Magistrates Court ex p Bennett [1994] 1 AC 42.
13
R v Devon County Council ex p Baker et al [1995] 1 ALL ER 73

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decision, while the latter does not. In this regard the cases speak with a discordant note, and
the courts have not been consistent in their determination of what constitutes discretionary
and mandatory breaches. It would appear as though when a provision is imperative its’
breach would be regarded as mandatory breach (Singh v Public Service Commission).

Grounds Judicial Review:

Lord Diplock has in recent times sought to rationalize the grounds for judicial review into three
categories: (i)procedural impropriety, (ii)irrationality and (iii)illegality. Lord Diplock may be
forgiven for not adding the fourth and most important category as far as the Caribbean states
are concerned: (iv)unconstitutionality.
(a) Improper delegation of proper.
Improper delegation is a species of ultra vires. This is so because public authorities are
required to act within their given powers. This means that they may not exercise powers
which have been otherwise conferred on someone else specifically.
The principle (delegatus non potest delegare) means that power conferred on A must be
exercise by A specifically. It cannot be delegated to someone else.
Traditionally, a distinction has been drawn between judicial, legislative and
administrative powers. It was said then that judicial and legislative powers could not be
delegated14 but that, depending upon the context, administrative powers could be
delegated. The distinction as to what administrative power could be delegated seems to
revolve around the question whether the power involved the exercise of an important
discretion. While a functionary could delegate the power to undertake work
preparatory to the decision making, the final decision had to be made by the
functionary so charged with the power.15
Obviously, the traditional approach provides a unhelpful way to resolve the
question of improper delegation, and several commentators on Caribbean Law have
justifiably condemned this approach. It is suggested that a better approach would be to

14
Hagley v Lamothe [1897] 1 WLR194
15
Jeffs v NZ Dairies Board [1967] 1 AC 551

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leave the question to the courts. In their determination they are to be guided in all the
circumstances of the case, including the level of the importance of the discretion to be
exercised.
Where a sanction is involved in the exercise of a delegated power, then
subdelegation may not be permitted. In the Guyanese case of Glasgow v Cadogan, s
22(1) of the Employers and Servants Ordinance, Cap 261, provided that, inter alia, that
no contract of service shall be enforced under s 21 unless the labourer who is to be
serve under it has been registered by a person appointed by the Governor in that
behalf. The person so appointed by the Governor also delegated his powers to another.
In holding that the person appointed by the Governor had no power to delegate his
powers, the Chief Justice said:
The evidence shows that James Winter was appointed by the Governor
under this ordinance, and that he, James Winter, took it upon himself to
delegate these powers to his nephew, Alexander Winter. This delegation
of powers by James Winter to his nephew was completely outside his
powers, even though he said that the Commissioner of Mines agreed…
From the ordinance it was quite clear that no one has the power to
register unless he is directly appointed by the Governor in that behalf.
Even where a power is expressly delegable, the delegation of related or ancillary power
may be prohibited. Such a situation is reflected in cases of R v licensing Authority ex p
Suntours. In the said case, it was agreed that where a quasi-judicial body was appointed
by virtue of a statute, the function of that body had to be exercise by that whole body,
and not part, in the absence of express statutory provisions or necessary implication to
the contrary. As he had not been shown to have had such powers, his purported
appointment of a quorum of authority was, therefore, ultra vires and void.
In the Rebeiro v da Silva, officers who had been vested with discretionary powers
by the mining regulations of 1931 for the issuing prospecting licences could not lawfully
delegate those powers to others, unless there was express power to so delegate.
Consequently, licence issued by a clerk in the department was held to be a nullity.

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(b) Rule of natural justice and legitimate expectation
When an individual seeks judicial review on the ground of his legitimate expectation being
defeated, Courts have to first determine whether there existed a legitimate expectation. A
legitimate expectation is said to arise “as a result of a promise, representation, practice or
policy made, adopted or announced by or on behalf of government or a public
authority.” Therefore it extends to a benefit that an individual has received and can
legitimately expect to continue or a benefit that he expects to receive.
Natural justice involves the application of procedural requirements designed to achieve
fairness in the decision making process. A failure to do so is controlled by the courts
basing themselves on the ultra vires doctrine.
We will here only note salient points necessary for which may provide grounds
for judicial review. The first here is:
(i) breach of rules of a fair hearing (the audi alteram partem rule) and the
(ii) second is a breach of rule against bias (the nemo iudex causa rule). These rules
provide a scheme of basic fairness in the decision making process. It must be
pointed out that natural justice has spawned the concept of legitimate
expectation.
Since Ridge v Baldwin, restored the principle of natural justice to a pedestal such that it
is perhaps the most important developmental area of law today. In this regard, Cooper v
Wandsworth Board of Works, stands out as a seminal case because Ridge v Baldwin was
built on it. In Cooper case, a local statute required of anyone intending to build a new
house to give notice to the board of workers seven days before beginning construction.
The statute gave the power to the Board to cause such house or building to be
demolished or altered in default of such notice. There was some dispute as to whether
Cooper has sent such notice or not to the board. But the Board demolished his house
which has been substantially built. In a strong affirmation of basic fairness, the court
asserted a common law right to a hearing where a statute is silent on the point,
especially in the context of loss of property. As Byles J put it:

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 … a long course of decision… establish that, although there are no positive
words in a statute requiring that the party shall be heard, yet the justice
of the common law will supply the omission of the legislature.
A modern formulation of the same theme is to be found in Wiseman v Borneman, where
Lord Guest said:
It is reasonably clear on authorities that where a statutory tribunal has been set
up to decide final questions affecting parties rights and duties, if the statute is silent
upon the question, the courts will imply into the statutory provision a rule that the
principles of natural justice should be applied.
For our purpose it is sufficient to appreciate that natural justice represents nothing
more than the imposition of certain procedural safeguards on a body or person whose
decisions may affect the rights, interests and legitimate expectation of others. The
courts have applied those safeguards as a tool in the supervision of public bodies.
However, natural justice has been extended to clubs,16 associations, trade unions17 and
professional associations. In Baize v AG, per Phillips JA, identified the twin pillars on
which natural justice is said to rest, namely: the right to a fair hearing and freedom from
bias in an adjudicator. However, it has been suggested that there is another string to
the bow at common law, and that is the concept of fairness.
While some judges still hang on to the old classifications, there is a general acceptance
of the notion of fairness as an additional limb to the principles of natural justice. This
shift is said to be a shift in focus from the rules of natural justice to the development by
the courts of ‘the duty to act fairly.’ 18 It is possible to argue, that the courts philosophy
of justice has at its foundation the desire to be fair at all times and that the principles of
natural justice merely reflect that desire. Indeed, the two principles of fair hearing and
absence of bias in an adjudicator are targeted to the decision maker precisely because
those principles are very significant aspects of fairness in the decision making process.

16
Demerara Turf Club v Phang (1961) 3 WIR 454
17
Annamunthodo v OWTU [1961] AC 945
18
McEldowney, 1994, p 476

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 1) Right to a fair hearing
We have already seen how, before the case of Ridge v Baldwin, it used to be thought
that the right to a fair hearing only applied to ‘judicial’ decisions. Ridge v Baldwin,
stressed that, despite the great difficulty of classifying powers into judicial, quasi judicial
and administrative components, the right to be heard had to depend on the
consequences of the decision to the individual rather than upon the nature of the
power in question. The approach was further expanded in the case of Durrayapah v
Fernando. It was held that a hearing was dependent upon (a) the nature of the property,
office or status of the complainant; (b) the circumstances in which the authority is
entitled to interfere; and (c) whether the authority can impose punishment or sanctions.
Fair hearing does not mean a hearing according to what would be required in the
court of law. Basically, it means an opportunity to put one’s side of a case before a
decision is reached. Accordingly, the legal requirement on the adjudicator is nothing
more than a basic duty of fairness. Of course, in deciding on what is fair, the courts have
to balance several interests, such as those of the state, principles of good
administration, speed and efficiency in the decision making and the level of injustice
suffered by the individual in having been denied the opportunity to present their case.
There are no fixed rules, nor is there any requirement that any rules of evidence should
be followed or applied.19 There is no insistence either that there must be an oral
hearing.20
The right to a fair hearing includes the following:
 Right to make representation (to the decision maker)
 Notice of a charge and full particulars thereof

Exceptions to the right to be heard

The right to be heard is not absolute. It may therefore be excluded for good reason. The
CCSU21 case illustrates one set of circumstances in which the right to a fair hearing may

19
Mahon v Air New Zealand Ltd [1948] AC 808
20
Lloyd v McMahon [1987] ALL ER 1118
21
[11985] AC 374

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 be curtailed. Principal among these are national security considerations. Lord Fraser
explained the point well by saying, ‘the decision on whether the requirements of
national security outweigh the duty of fairness in any particular case is for the
government and not for the courts.’ In other words, there are some matters, of which
national security is one, which are not amenable to the judicial process. The principle
has usually been invoked in immigration cases as well. 22 In Rees v Crane, refers to a set
of circumstances in which a fair hearing may be denied to an applicant. Among these
may be the fact that the investigation is purely preliminary, that there will be a full
chance to deal adequately with the complaints later, that the making of the inquiry
without observing the audi alteram partem maxim is justified by urgency or
administrative necessity, that no penalty or serious damage to reputation is inflicted by
proceeding to the next stage without such preliminary notice and that the statutory
scheme properly construed excludes such a right.
2) The Rule Against Bias
The right to a fair hearing would be a very hollow had it not been twined with the
requirement that the hearing should be before an unbiased decision maker. Every
person has a bias of one form or the other based on their life experiences. The West
Indian Constitutions protect the rights of the citizens to an unbiased adjudication by
insisting on equality before the law and the protection of the law.

Bias could include:

i) Financial interest
It is clearly established that a personal financial interest in a case, however small,
constitutes bias which would disqualify that person as a decision maker; whether the
interest is large or miniscule (R v Hammond).
ii) Non-pecuniary bias.
We may examine non-pecuniary bias from two angles- ‘judicial’ decisions and
‘administrative’ action. In the context of what may be style ‘judicial’ decisions,
the essential principle that the rule fights against is the ‘appearance’ of bias. Lord
22
R v Secretary of State for Home Affairs ex p Hosenball [1977] 3 ALL ER 452.

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 Hewart’s famous dictum in R v Sussex Justices ex p McCarthy, is usually cited in
support. There he said:
It is not merely of some importance but it is of fundamental
importance that justice should not only be done but should
manifestly and undoubtedly be seen to be done.
It appears to be the view that a judicial officer is expected to possess a degree of
rationality and to be largely immune to certain preconceptions. Similarly, in R v Ruel
Gordon, where two information was heard by a magistrate after each other and both
resulted in conviction, the court of Appeal in Jamaica held that the a resident
magistrate, being a trained lawyer, must be taken to have disabused his mind of any
knowledge he may have gained from previous case, and must be taken to have applied
himself to the issues presented to him in the second information. Accordingly, there was
no likely bias.
Exclusion of the rule against bias
In a practical world, there are times when the rule against bias must give way on
grounds of necessity. Such a situation must be illustrated where no other decision
maker is available to adjudicate on the matter. In such a case, there is a presumption
that parliament impliedly authorized the waiver of the rule against bias.

The Doctrine of Legitimate Expectation

The principle of legitimate expectation has been aptly described by Robert Thomas 23 as
one that concerns the relationship between public administration and the individual. It
seeks to resolve the basic conflict between the desire to protect the individual’s
confidence in expectation raised by administrative conduct and the need for

23
Thomas R, 2000, p 41

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administrators to purse the changing policy objectives. The principle means that that
expectations raised as a result of administrative conduct may have legal consequences.
Either the administration must respect those expectations or provide compelling
reasons why the public interest must take priority. The principle therefore concerns the
degree to which an individual’s expectation may be safeguarded in the face of a change
of policy which tends to undermine them. The role of the administrative courts is to
determine the extent to which the individual’s expectation can be accommodated
within the changing policy objectives.
In McInnes v Onslow Fane, is a useful case to start within the sense that it drew a
distinction between the attitude of natural justice to ‘rights’ and ‘non-rights’. Whereas
natural justice would apply to existing rights, the same did not apply to ‘non rights’.
‘Expectation cases’ was also singled out as one in which the applicant has some
legitimate expectation from what has already happened that his application will be
granted.
Here, however, the emphasis is on the ‘non-rights’ cases that has fillip the doctrine of
legitimate expectation by way of a recognition of the fact that some interest, other than
legal rights, also deserve the protection of law.
Its origins have been attributed to Lord Denning’s judgment in Schmidt v Secretary of
State for home Affairs. In this case, American students of scientology temporarily
resident in the UK applied to have their stay extended. The extension was refused
because the government has formed the view that scientology was objectionable and
that its growth in the UK should be curbed. The applicants argued that the Home
Secretary’s decision not to consider the applications was unlawful and void. That raised
the question whether the duty to act fairly had imposed on the government the added
duty to be flexible in its policies. Lord Denning addressed the point by saying:
It all depends on whether he has some right or interest or, I would add,
some legitimate expectation of which it would not be fair to deprive him
without hearing what he has to say.
Applying the principles to the facts of the case, Lord Denning said:

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 A foreign alien has no right to enter this country except by leave, and if he
is given leave to come for a limited period, he has no right to stay for a
day longer than the permitted time. If his right is revoked before the time
limit expires, he ought, I think, to be given an opportunity of making
representations: for he would have a legitimate expectation of being
allowed to stay for the permitted time. Except in such a case, a foreign
alien has no right- and, I would add, no legitimate expectation- of being
allowed to stay. He can be refused without reasons given and without a
hearing. Once his time has expired, he has to go.
In the case of AG of Hong Kong v Ng Yuen Shiu, established the point that expectation
may be based on some statement or undertaking by, or on behalf of, the public
authority which has the duty of making the decision, if the authority has through its
officers, acted in a way that would make it unfair or inconsistent with good
administration for him to be denied an inquiry.
Though it would appear, that the doctrine of legitimate expectation is based on
in natural justice and reasonableness, it would however, be more accurate to say that
the doctrine seems to rest on a broader notion of fairness.
(c) Abuse of Discretion
Discretion conferred upon public authority must be exercised reasonably in accordance
with the law. An abuse of discretion is a wrongful exercise of the discretion conferred
because it is the exercise of a discretion for a power not intended. Accordingly, the
courts may control it by the use of the ultra vires doctrine.
Taking into account irrelevant or immaterial considerations
The basic rule is that a public functionary must not stray from the confines of the power
conferred upon him. He must factor into the exercise of his discretion only those
considerations which are relevant and material for that purpose 24 or, as Lord
Templeman explained it, the seemingly wide power in a public authority must be tied
down to the discharge of the authority’s functions.

24
Padfield v Minister of Agriculture [1968] AC 997 is regarded as the locus classicus on this point.

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In Bhagwandin v Police Commissioner, it was held that previous conviction of the
applicant for selling liquor and tobacco without a license was a material factor to be
taken into account in determining a fresh application by him for a liquor license. In other
words, the previous conviction, character and history of the applicant were relevant
matters for consideration.
Improper purposes
In many ways, ‘improper purposes’ is mere an aspect of ‘irrelevant considerations’ and
only a thin line that divided them. A classical illustration is provided by the case of R v
ILEA ex p Westminster City Council, where the power of the local authority, which was to
publish information about central government, was found to be unlawful because it
sought to pursue the public rather than merely provide the public with raw facts.
‘Purpose’ in this context refers to the intention of the statute. A statutory power must
be exercised for the purpose for which it was intended. Accordingly, if the proper
purpose of the statute is not served, then the functionary would have acted ultra vires
the statute.
Unreasonableness
In Council of Civil Service Unions v Minister for the Civil Service, unreasonableness (or
irrationality) can now be said to be firmly establish as an independent head of
administrative wrongdoing. The Wednesbury principle established such a wide test that
a decision was said to be unreasonable only when it was so absurd that no reasonable
authority could have come to that conclusion.
Additionally, the courts made it clear that they were not willing to categorize a decision
as unreasonable merely because it was inconvenient, unwise or unjust. In the Barbadian
case of Redman v Gaskin, the holder of a hotel licence under the Liquor License Act
1957. The police objected on two grounds but could only sustain one ground, namely
annoyance of persons living in the area during the night. Notwithstanding the same, the
authority decided to grant a renewal of the license with the condition that there was to
be no noise nor dancing. In an attempt by the hotelier to upset the condition, the court

16
 held that they felt that the decision was not so unreasonable that no reasonable
authority could have come up with the decision.

Bodies amenable to judicial review

Traditional learning in public law teaches that the subject is concerned principally with public
authorities. The case law shows that all public authorities are subject to judicial review,
Governors, Governors General, Service Commissions, ministers, the judiciary have all been the
subject of judicial review.25
An attempt was made by Bernard J (as he then was) to define the term ‘public authority’
in LJ Williams v Smith and AG.’26 There he said:
No definitive meaning has been given in the Constitution to the
expression ‘public authority’. Normally, the expression in legal dogma
is taken to be confined to statutory bodies. But even so it has been held
that a natural person can be a public authority ...
Before R v Panel on Takeover Mergers ex p Datafin,27 it seemed to be the law that judicial
review was not available for redress against the activities of a private domestic body. It must
be noted that there are a lot of grey area between public authorities and private bodies and
there is sometimes some overlap of functions and activities between them. What is
manifestly clear is that the courts have not been able to provide a clear cut formula for
determining the outer boundaries of each. What we have a clues and indices by which the
courts have been resolving that important definitional problem on a case-by-case basis.
The crucial element is whether the dispute has a sufficient public law element. If it
has, public law would prevail even if there was a contract of employment.
The primary question to consider therefore, remains what is sufficient public law
element, though vague the formula is.
So when for example, the state plays a dominant role in the activity of the authority
or body, the tendency would be to treat the authority or body as a public authority.28

25
Hochoy v NUGE (1964) 7 WIR 174
26
(1980) 32 WIR 395
27
[1987] QB 814
28
Rambachan v Trinidad and Tobago Television, Suit No 4789 of 1982.

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According to DeMerieux, ‘the main devices used are the ‘public function’ analysis whereby
the private actor is seen as fulfilling a public function and the “nexus analysis” in which the
state is deemed to be involved in or to encourage private activity’.29
Where a body derives its legal authority from contract, but exercises a monopolistic
control over those functions, this may lead the court of law to treat it as though it were a
public authority (Barbados Cricket Association30).
Another example may be found in the case of a body operating under private
legislation but performing important regulatory functions, such as the stock exchange. In
Datafin case, Donalson MR described the panel as a body ‘without visible means of support’
because it was founded on neither statutory, prerogative or common law powers and was
not in a contractual relationship with the commercial community either. Nevertheless, the
court held that the Takeover Panel was a self-regulating, voluntary body which acted as a
“watchdog” in the city, was exercising a public law functions. Here, too, the court’s
guidelines are somewhat vague and unclear. While Donaldson MR said that “possibly the
only essential elements are what can be described as public elements, which can take many
forms”.
It is fair to concur with Lord Parker CJ that the ‘categories of judicially reviewable
powers are never closed. The system remain open-ended, and new territory can be annexed
to the judicial empire as the opportunities offer’.
It should be noted as well that even the cabinet can be amenable to judicial review.
In the case of Williams Construction Ltd v AG of Barbados,31 the facts were that in 1986 the
Ministry of Transport and Works, pursuant to the Financial Administration and Audit Act and
the rule made there under, the Cabinet was to exercise functions under the said laws. The
claimant instituted proceeding against the Cabinet for the award of a contract. Lord Bridge,
speaking for the Board said:

29
DeMerieux, 1992, p 101.
30
Griffith et al v Barbados Cricket Association (1989) 41 WIR 48
31
(1994) 45 WIR 914 (PC).

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 The fact that the Cabinet has a very broad function conferred on it by s 64
(2) of the Constitution of Barbados, in respect of which may be immune to
judicial review, seems to their Lordship for the present purposes to be quite
irrelevant. When the Cabinet exercises a specific statutory function which,
had it been conferred on a Minister instead of Cabinet, would
unquestionably have been subject to judicial review, their Lordship can see
no reason in principle why the Cabinet’s exercise of functions should not be
subject to judicial review to the same extent and on the same grounds as
the minister’s would have been.
The Williams Construction case thus illustrates the principle that when a policy making
organ, such as the cabinet, undertakes to perform administrative functions which have been
statutorily conferred, it cannot escape judicial review.

Locus standi-liberal vs. restrictive approach

{Here we reason and argue by analogy and inference}

Judicial Review Must Have Locus Standi

In her quote, Professor Harlow posits that an applicant for judicial review must have locus
standi; a ‘sufficient interest in the matter to which the application relates’. She is arguing that
courts should only grant judicial review to individuals personally affected by an administrative
action, and not just anyone with no interest who merely desire to review the legality of such
actions ‘in the public’s interest’ or as ‘an interested member of the public’. She goes on to state
that if no individual interest is affected (i.e. it concerns public interest), it is not up to the
judiciary but politics to provide solutions.

I disagree with her views and propose that a more liberalized stand on locus standi regarding
judicial review of administrative actions should be taken. This paper analyzes this proposal in
the context of Singapore administrative law.

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The current Singapore position on locus standi regarding judicial review of administrative
actions. The Singapore Order 53 reads, ‘No application for an order of mandamus, prohibition
or certiorari shall be made unless leave to make such an application has been granted in
accordance with this Rule.’ It does not contain any provision defining locus standi.

The Court of Appeal in Chan Hiang Leng, Colin v Minister for Information and the Arts (‘Colin’)
held that Singapore would not follow a higher threshold test at the application for leave stage
of Order 53, but prefers to adopt the tests advocated by the English courts, which is exemplified
in Inland Revenue Commissioners v National Federation of Self-Employed and Small
Businesses (‘IRC’). Thus the test for locus standi in Singapore is one based on ‘sufficient
interest’. This indirectly means that Singapore has not adopted as conservative a view as the
Malaysian position in Government of Malaysia v Lim Kit Siang.

However, it is unclear whether the use of the term ‘sufficient interest’ in Colin is a liberal one
akin to the English Order 53, based on which public-spirited citizens have managed to obtain
judicial reviews despite not having direct interests. Chan Sek Keong CJ has remarked that “In
Singapore, although the courts appear to have accepted the same ‘sufficient’ interest’ test to
determine whether leave for judicial review should be granted, that is not, in my view, also to
say that our courts will apply the test with the same rigour as the UK courts.”

Thus, the locus standi position in Singapore appears to require at least some form of personal
interest being affected before allowing access to judicial review of administrative actions. In
other words, a civic-minded citizen does not have standing for a judicial review regarding an
action purely in the ‘public’s interests’. Public interest litigation is thus curbed.

Since the Singapore Order 53 does not define locus standi, there is considerable flexibility for
local courts to evolve these rules. Singapore judges can choose to exercise creativity in this
matter. The following sections analyze why and how local courts should develop this area of the
law towards a much more liberalized state.

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Local courts should relax the current locus standi position and allow individuals access to
judicial review for acts concerning interests wider than that of their own (i.e. public interests)
for the following reasons:

1. GOOD GOVERNANCE AND PUBLIC ADMINISTRATION

This can be achieved throughPublic scrutiny

Civic-minded citizens being able to commence judicial reviews on behalf of the public will
provide a socially motivated check on administrative power, helping to highlight administrative
abuses and excesses. Knowing that their actions might be subject to close scrutiny, public
administrative bodies will be mindful of making good decisions. Such a practice will help to
improve the system of accountability and transparency in government decision-making. This
leads to good public administration, which in turn leads to good governance.

Publicity

Even if the judicial reviews still fail in merit, the widespread publicity usually garnered from a
citizen challenging an administrative action will still raise national awareness regarding legality
of such actions and put other citizens on guard of possible abuses. This also improves quality of
public administration.

Judicial pronouncements

“Judicial pronouncements will later represent the dos and don’ts in public administration and
mistakes previously made will not be repeated.” Public administration can be improved with
reference to such judicial pronouncements.

It is through the pronouncements of the courts that governmental departments are mindful of
the limits and excesses of their administrative powers. Courts must see that these great powers
and influence are exercised in accordance with law. These views were echoed by the Singapore
Court of Appeal in Chng Suan Tze v Minister of Home Affairs, Singapore & Ors. His Royal
Highness HRH Raja Azlan Shah said trenchantly: “Every legal power must have legal limits,
otherwise there is dictatorship…every discretion cannot be free from legal restraint; where it is

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wrongly exercised, it becomes the duty of the courts to intervene. “The courts are the only
defence of the liberty of the subject against departmental aggression. In these days when
government departments and public authorities have such great powers and influence, this is a
most important safeguard for the ordinary citizen: so that the courts can see that these great
powers and influence are exercised in accordance with law.”

BETTER REFLECTS DEMOCRACY.

“Public participation in the deliberation of local government matters is vital if democracy is to

flourish.” Judicial control over the executive who in turn has control over the citizens is the
hallmark of a vibrant democracy. As accountability and transparency are cardinal principles of
good governance, accepting responsibility and the concept of open government are important
in a parliamentary democracy. If the courts themselves self- impose strict standing rules in
reviewing the decisions of the executive, they are shirking from their duties as the
constitutional rampart to the citizens, which contradicts the fact that we pride ourselves as a
true democracy founded on the rule of law.

CONCLUSION & RECOMMENDATIONS

The Singapore judiciary has adopted a liberal view on locus standi in Colin, albeit the central
issue was regarding constitutional supremacy. Perhaps this implies that courts will be willing to
liberalize the rule in other aspects. Judges should exercise judicial activism regarding the rule
according to Singapore’s current needs, evolving it over time as situations change.

Currently, it appears that there is no pressing or urgent need to completely liberalize the rule.

But the liberalisation process has to start nevertheless to allow it to evolve through the natural
course of events. A continued and sustainable public administration is vital for Singapore to
survive as a major financial centre in the region. As discussed, there are strong reasons for such
liberalization, and any potential arguments or limitations against it are either unfounded or
inconsequential. The time has come for local courts to exercise their creativity regarding the
locus standi position. After all, truth fears no trial.

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NB. This lecture is not intended to be exhaustive on Judicial Review, but merely an
outline the applicable areas for assessment.

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