Judicial review can only be brought about against public bodies or bodies performing public function. There are four grounds on which judicial review may be sought. This includes illegality1, irrationality2, procedural impropriety3 and ‘breach of human rights’4 granted under Human Rights Act 1988. One key aspect where illegality has been considered by the courts is the exercise of discretionary powers by a decision maker. Lord Greene in the important case Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) summed up the questions the court will consider as follows: “The exercise of...a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters.”
In Padfield v Ministry of Agriculture, Fisheries and Food (1968), Lord Reid held: “Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act, the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court.”
Illegality, as a ground for judicial review, requires the decision maker to have failed correctly to understand the law and/or to apply it: Council of Civil Service Unions v Minister for the Civil Service (1985). When exercising discretion, a decision maker must take into account all matters which they are required to consider as stated in the statute: Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948).
The ground of irrationality is sometimes also referred to as ‘Wednesbury’ unreasonableness. This was made by Lord Greene in Associated Provincial Picture Houses v Wednesbury Corporation (1948): “It is true to say that, if a decision on a competent matter is so unreasonable that...
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