Grounds of Judicial Review
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
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