Grounds of Judicial Review

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CHAPTER – 1
GROUNDS OF JUDICIAL REVIEW
INTRODUCTION
“Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs – that is to say misuses of public power.” * Sedley.J1
The ultimate (though not necessarily the most appropriate) means by which public law disputes are resolved is by bringing the matter before the Administrative Court using a claim for judicial review. Broadly, in order to succeed, the claimant (the person or body bringing the case) will need to show that either:

* The person or body is under a legal duty to act or make a decision in a certain way and is unlawfully refusing or failing to do so; or

* A decision or action that has been taken is ‘beyond the powers’ (in Latin, ‘ultra vires’) of the person or body responsible for it.

Only then, will a public law wrong have occurred. Generally, it does not matter if the judge, faced with the same decision, would have decided the merits of the case differently. This reflects the fact that judicial review involves ‘supervision’ of administrative decision making – did the public body act in a lawful manner in deciding the way that it did. There are three categories of public law wrongs which are commonly used and which will be considered in turn2:

(a) Illegality;
(b) Irrationality and proportionality; and.
(c) Fairness or Procedural impropriety

In R v Somerset CC ex parte Dixon [COD] 1997 323, QBD
2Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, by Lord Diplock

The first two grounds are known as substantive grounds of judicial review because they relate to the substance of the disputed decision. Procedural impropriety is a procedural ground because it is aimed at the decision-making procedure rather than the content of the decision itself. The three grounds are mere indications: the same set of facts may give rise to two or all three grounds for judicial review. The approach of the Administrative Court

The approach of the courts to public law disputes, and the development of special procedures for handling judicial review claims have a number of important practical consequences. For example: * There are special protections in the procedure intended to ensure administrative decision making is not paralysed by the prospect of claims, or the way they are pursued. These are manifested in the time limit rules, and in the requirement to seek permission; * Judicial review claims proceed, as far as possible, on the basis of agreed facts. The rules do not easily accommodate cases where the facts are in dispute (orders for disclosure are rare, oral evidence rarer); * Both parties are expected to co-operate with the court, and take a candid, cards on the table approach to the litigation; * The court will sometimes act proactively, bringing issues into play which have not been raised by either party; * Depending on the nature of the decision being challenged, there may be a degree of deference to the decision maker, given her/his democratic mandate, or special expertise; * The court has a discretion to refuse permission for judicial review, or a remedy, even when a public law wrong has been committed; and * Decisions will often be remitted back to the decision maker with guidance from the court, rather than quashed.

Illegality
Decision-makers must understand the law that regulates them. If they fail to follow the law properly, their decision, action or failure to act will be “illegal”. Thus, an action or decision may be illegal on the basis that the public body has no power to take that action or decision, or has acted beyond its powers. This arises, for example when the legislation relating to a public body does not include the necessary power or has precise limits on when the power can be used. Public bodies acting illegally in this way can be described as acting “ultra vires” (which means beyond or outside their...
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