Judicial Review In English Law
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Judicial review is a part of
UK constitutional law The United Kingdom constitutional law concerns the governance of the United Kingdom of Great Britain and Northern Ireland. With the oldest continuous political system on Earth, the British constitution is not contained in a single code but princ ...
that enables people to challenge the exercise of power, usually by a public body. A person who contends that an exercise of power is unlawful may apply to the
Administrative Court An administrative court is a type of court specializing in administrative law, particularly disputes concerning the exercise of public power. Their role is to ascertain that official acts are consistent with the law. Such courts are considered s ...
(a part of the King's Bench Division of the High Court) for a decision. If the court finds the decision unlawful it may have it set aside (quashed) and possibly (but rarely) award damages. A court may impose an injunction upon the public body. When creating a public body, legislation will often define duties, limits of power, and prescribe the reasoning a body must use to make decisions. These provisions provide the main parameters for the lawfulness of its decision-making. In addition, the Human Rights Act 1998 provides that statutes must be interpreted so far as possible, and public bodies must act, in a manner which is compliant with the European Convention on Human Rights and Fundamental Freedoms. There are also
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
constraints on the decision-making process of a body. Unlike in some other jurisdictions, such as the United States, English law does not permit judicial review of primary legislation (laws passed by Parliament), even where primary legislation is contrary to EU law or the European Convention on Human Rights. A person wronged by an Act of Parliament therefore cannot apply for judicial review if this is the case, but may still argue that a body did not follow the Act.


Constitutional position

The English constitutional theory, as expounded by A. V. Dicey, does not recognise a separate system of administrative courts that would review the decisions of public bodies (as in France, Germany and many other European countries). Instead, it is considered that the government should be subject to the jurisdiction of ordinary
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
courts. At the same time, the doctrine of
Parliamentary sovereignty Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all ...
does not allow for the judicial review of primary legislation (primarily
Acts of Parliament Acts of Parliament, sometimes referred to as primary legislation, are texts of law passed by the legislative body of a jurisdiction (often a parliament or council). In most countries with a parliamentary system of government, acts of parliament be ...
). This limits judicial review in English law to the decisions of officials and public bodies, and secondary (delegated) legislation, against which ordinary common law remedies, and special " prerogative orders", are available in certain circumstances. The constitutional theory of judicial review has long been dominated by the doctrine of ''
ultra vires ('beyond the powers') is a Latin phrase used in law to describe an act which requires legal authority but is done without it. Its opposite, an act done under proper authority, is ('within the powers'). Acts that are may equivalently be termed ...
'', under which a decision of a public authority can only be set aside if it exceeds the powers granted to it by Parliament. The role of the courts was seen as enforcing the "will of Parliament" in accordance with the doctrine of Parliamentary sovereignty. However, the doctrine has been widely interpreted to include errors of law and of fact and the courts have also declared the decisions taken under the
royal prerogative The royal prerogative is a body of customary authority, privilege and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign and which have become widely vested in th ...
to be amenable to judicial review. Therefore, it seems that today the constitutional position of judicial review is dictated by the need to prevent the abuse of power by the executive as well as to protect individual rights.


Procedural requirements

Under the
Civil Procedure Rules The Civil Procedure Rules (CPR) were introduced in 1997 as per the Civil Procedure Act 1997 by the Civil Procedure Rule Committee and are the rules of civil procedure used by the Court of Appeal, High Court of Justice, and County Courts in civil ...
a claim (application) for judicial review will only be admissible if permission (leave) for judicial review is obtained from the High Court, which has supervisory jurisdiction over public authorities and tribunals. Permission may be refused if one of the following conditions is not satisfied: # The application must be made promptly and in any event within three months from the date when the grievance arose. Note that legislation can impose shorter time limits while a court may hold that an application made in less than three months may still be not prompt enough. # The applicant must have a sufficient interest in the matter to which the application relates. This requirement is also known as
standing Standing, also referred to as orthostasis, is a position in which the body is held in an ''erect'' ("orthostatic") position and supported only by the feet. Although seemingly static, the body rocks slightly back and forth from the ankle in the s ...
(or “locus standi”). # The application must be concerned with a public law matter, i.e. the action must be based on some rule of public law, not purely (for example)
tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
or
contract A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...
. However, the Court will not necessarily refuse permission if one of the above conditions is in doubt. It may, in its discretion, examine all the circumstances of the case and see if the substantive grounds for judicial review are serious enough. Delay or lack of sufficient interest can also lead to the court refusing to grant a remedy after it had considered the case on the merits. The pre-action protocol states that it is usual for the claimant to write a
letter before claim A demand letter, letter of demand, (of payment), or letter before claim, is a letter stating a legal claim (usually drafted by a lawyer) which makes a demand for restitution or performance of some obligation, owing to the recipients' alleged breac ...
to the proposed defendant. The purpose of the letter is to identify the issues in dispute and to avoid litigation where possible. The protocol specifies a template for the letter. It is usual to allow 14 days for a response. The parties should also consider whether alternative dispute resolution might provide a satisfactory alternative to litigation.


Styling of the claimant

Unlike other civil proceedings in English courts, in judicial review court papers the claimant is styled as ''The King (on the application of Claimant X)'' (or ''Queen'' when reigning). For example, ''The King (on the application of Claimant X) v Defendant Y'' or more succinctly ''R (on the application of Claimant X) v Defendant Y'' or ''R (Claimant Y) v Defendant Y''. In these examples ''R'' is used literally (an abbreviation for the Latin ''regina'' or ''rex'', but pronounced "Crown"), ''Claimant X'' is substituted for the name of the claimant (e.g. ''Helena Jones'' or ''Jones'' or ''Acme Widgets Ltd'') and ''Defendant Y'' is substituted for the public body whose decision is being challenged (e.g. ''West Sussex County Council'' or ''Environment Agency'') or in certain cases, the person in charge of that body (e.g. ''Secretary of State for the Home Department'' or ''Chief Constable of West Yorkshire Police''). This is a purely cosmetic formality that arises from a historical procedure where Her Majesty's Judiciary acted on her behalf in a supervisory capacity. Technically a judicial review is brought by the Crown, on the application of the claimant, to ensure that powers are being properly exercised. Before 2001, judicial review cases were styled ''R v Defendant Y, ex parte Claimant X'', but this was reformed as part of a general reduction in use of Latin legal terms and due to the fact that such hearings are not, in fact, ''
ex parte In law, ''ex parte'' () is a Latin term meaning literally "from/out of the party/faction of" (name of party/faction, often omitted), thus signifying "on behalf of (name)". An ''ex parte'' decision is one decided by a judge without requiring all ...
'' in any meaningful sense.


Amenability to judicial review

The decision complained of must have been taken by a public body, i.e. a body established by statute or otherwise exercising a public function. In '' R v Panel for Takeovers and Mergers, ex parte Datafin'' 9871 QB 815, the Court of Appeal held that a privately established panel was amenable to judicial review because it in fact operated as an integral part of a governmental framework for regulating mergers and takeovers, while those affected had no choice but to submit to its jurisdiction. Actions taken under the
royal prerogative The royal prerogative is a body of customary authority, privilege and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign and which have become widely vested in th ...
were traditionally thought to be
nonjusticiable Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is used to determine if the party bringing the suit is a party ...
political matters and thus not subject to judicial review, but ''
Council of Civil Service Unions v Minister for the Civil Service ''Council of Civil Service Unions v Minister for the Civil Service'' , or the GCHQ case, is a United Kingdom constitutional law and UK labour law case that held the royal prerogative was subject to judicial review. In 1984, by issuing an Order in ...
''
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UKHL 9 established that they can be, depending on the purpose for which the prerogative powers are exercised.


Ouster clauses

Sometimes the legislator may want to exclude the powers of the court to review administrative decision, making them final, binding and not appealable (''
R (Cowl) v Plymouth City Council R, or r, is the eighteenth letter of the Latin alphabet, used in the modern English alphabet, the alphabets of other western European languages and others worldwide. Its name in English is ''ar'' (pronounced ), plural ''ars'', or in Irelan ...
''). However, the courts have consistently held that none but the clearest words can exclude judicial review. When the Government wanted to introduce a new Asylum and Immigration Act containing such clear words, members of the judiciary protested to the extent of saying that they will not accept even such an exclusion. The Government withdrew the proposal. The courts however do uphold time limits on applications for judicial review.


Exclusivity rule

The House of Lords held in ''
O'Reilly v Mackman ''O'Reilly v Mackman'' 983UKHL 1is a UK constitutional law case, concerning judicial review. Facts Convicted prisoners claimed that a decision that they lost remission of their sentences, after a riot in Hull prison, was null and void because o ...
'' that where public law rights were at stake, the claimants could only proceed by way of judicial review. They could not originate their action under the general civil law procedure, because that would be avoiding the procedural safeguards afforded to public authorities by the judicial review procedure, such as the requirement of sufficient interest, timely submission and permission for judicial review. However, a defendant may still raise public law issues as a defence in civil proceedings. So for example, a tenant of the public authority could allege illegality of its decision to raise the rents when the authority sued him for failing to pay under the tenancy contracts. He was not required to commence a separate judicial review process ('' Wandsworth London Borough Council v Winder'' (1985)). If an issue is a mix of private law rights, such as the right to get paid under a contract, and public law issues of the competence of the public authority to take the impugned decision, the courts are also inclined to allow the claimant to proceed using ordinary civil procedure, at least where it can be demonstrated that the public interest of protecting authorities against frivolous or late claims has not been breached ('' Roy v Kensington and Chelsea and Westminster Family Practitioner Committee'' (1992), '' Trustees of the Dennis Rye Pension Fund v Sheffield City Council'' (1997)).


Grounds for review

I
''Council of Civil Service Unions v Minister for the Civil Service''
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AC 374,
Lord Diplock William John Kenneth Diplock, Baron Diplock, (8 December 1907 – 14 October 1985) was a British barrister and judge who served as a lord of appeal in ordinary between 1968 and until his death in 1985. Appointed to the English High Court in ...
summarised the grounds for reversing an administrative decision by way of judicial review as follows: * Illegality * Irrationality (unreasonableness) * Procedural impropriety * Legitimate expectation 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. Those grounds are mere indications: the same set of facts may give rise to more than one ground for judicial review.


Illegality

In Lord Diplock's words, this ground means that the decision maker "must understand correctly the law that regulates his decision-making power and must give effect to it". A decision may be illegal for many different reasons. There are no hard and fast rules for their classification, but the most common examples of cases where the courts hold administrative decisions to be unlawful are the following:


The decision is made by the wrong person (unlawful sub-delegation)

If the law empowers a particular authority, e.g. a minister, to make certain decisions, the minister cannot subdelegate this power to another authority, e.g. an executive officer or a committee. This differs from a routine job not involving much discretion being done by civil servants in the minister's name, which is not considered delegation. An example of when this happened was in '' Allingham v Minister of Agriculture and Fisheries'' where a notice preventing farmers from growing sugar beet was unlawful because the power to put up the sign was delegated by the original committee. Where a decision is made by a properly empowered department within a local council, s.101 of the
Local Government Act 2003 The Local Government Act 2003 (c 26) is an Act of the Parliament of the United Kingdom. It made various changes to the administration of local government in the United Kingdom. Although it contained mainly financial provisions, section 122 repea ...
allows for delegation.


Jurisdiction: Error of law or error of fact

The court will quash a decision where the authority has misunderstood a legal term or incorrectly evaluated a fact that is essential for deciding whether or not it has certain powers. So, in ''
R v Secretary of State for the Home Department, ex parte Khawaja R, or r, is the eighteenth letter of the Latin alphabet, used in the modern English alphabet, the alphabets of other western European languages and others worldwide. Its name in English is ''ar'' (pronounced ), plural ''ars'', or in Irela ...
''
984 Year 984 ( CMLXXXIV) was a leap year starting on Tuesday (link will display the full calendar) of the Julian calendar. Events By place Europe * Spring – German boy-king Otto III (4-years old) is seized by the deposed Henry II ...
AC 74, the House of Lords held that the question as to whether the applicants were "illegal immigrants" was a question of fact that had to be positively proved by the Home Secretary before he could use the power to expel them. The power depended on them being "illegal immigrants" and any error in relation to that fact took the Home Secretary outside his jurisdiction to expel them. However, where a term to be evaluated by the authority is so broad and vague that reasonable people may reasonably disagree about its meaning, it is generally for the authority to evaluate its meaning. For example, in '' R v Hillingdon Borough Council, ex parte Pulhofer''
986 Year 986 ( CMLXXXVI) was a common year starting on Friday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * August 17 – Battle of the Gates of Trajan: Emperor Basil II leads a Byz ...
AC 484, the local authority had to provide homeless persons with accommodation. The applicants were a married couple, who lived with their two children in one room and applied to the local authority for aid. The local authority refused aid because it considered that the Pulhofers were not homeless and the House of Lords upheld this decision because whether the applicants had accommodation was a question of fact for the authority to determine.


The decision maker went beyond their power: ultra vires

The classic example of this is ''
Attorney General v Fulham Corporation Attorney may refer to: * Lawyer ** Attorney at law, in some jurisdictions * Attorney, one who has power of attorney * ''The Attorney'', a 2013 South Korean film See also * Attorney general, the principal legal officer of (or advisor to) a gove ...
'' (1921) where Fulham council had the power to set up wash-houses for those without the facilities. They decided to charge people to use it. The court held they went beyond their power by trying to benefit commercially from something that was supposed to be for everyone. Another example of this is the case of ''
R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd ''R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd'' is a judicial review case in English law decided by the Divisional Court of England and Wales on 10 November 1994 in which the World Developm ...
''. Section 1 of the
Overseas Development and Co-operation Act 1980 Overseas may refer to: *Overseas (album), ''Overseas'' (album), a 1957 album by pianist Tommy Flanagan and his trio *Overseas (band), an American indie rock band *Overseas (song), "Overseas" (song), a 2018 song by American rappers Desiigner and Lil ...
empowered the Foreign Secretary to assign funds for development aid of economically sound projects. The Secretary of State assigned the funds for a project to construct a power station on the Pergau River in
Malaysia Malaysia ( ; ) is a country in Southeast Asia. The federation, federal constitutional monarchy consists of States and federal territories of Malaysia, thirteen states and three federal territories, separated by the South China Sea into two r ...
(see
Pergau Dam Pergau station or formally known as Stesen Janaelektrik Sultan Ismail Petra is a hydroelectric power station in Kuala Yong, Kelantan, Malaysia. It is located about 100 km west of Kota Bharu. Power station The power station is an underground hydr ...
) which was considered uneconomic and not sound. The House of Lords held that this was not the purpose envisaged by the enabling statute and the minister therefore exceeded his powers. A similar principle exists in many continental legal systems and is known by the French name of .


Ignoring relevant considerations or taking irrelevant considerations into account

This ground is closely connected to illegality as a result of powers being used for the wrong purpose. For example, in '' Wheeler v Leicester City Council'', the city council banned a rugby club from using its ground because three of the club's members intended to go on a tour in
South Africa South Africa, officially the Republic of South Africa (RSA), is the southernmost country in Africa. It is bounded to the south by of coastline that stretch along the South Atlantic and Indian Oceans; to the north by the neighbouring countri ...
at the time of
apartheid Apartheid (, especially South African English: , ; , "aparthood") was a system of institutionalised racial segregation that existed in South Africa and South West Africa (now Namibia) from 1948 to the early 1990s. Apartheid was ...
. In '' R v Somerset County Council, ex parte Fewings'' the local authority decided to ban stag hunting on the grounds of it being immoral. In '' Padfield v Ministry of Agriculture, Fisheries and Food'', the minister refused to mount an inquiry into a certain matter because he was afraid of bad publicity. In '' R v Inner London Education Authority, ex parte Westminster City Council'', the London Education Authority used its powers to inform the public for the purpose of convincing the public of its political point of view. In all these cases, the authorities have based their decisions on considerations which were not relevant to their decision making power and acted unreasonably (this may also be qualified as having used their powers for an improper purpose). Note that the improper purpose or the irrelevant consideration must be such as to ''materially influence'' the decision. Where the improper purpose is not of such material influence, the authority may be held to be acting within its lawful discretion. Hence in ''
R v Broadcasting Complaints Commission, ex parte Owen R, or r, is the eighteenth letter of the Latin alphabet, used in the modern English alphabet, the alphabets of other western European languages and others worldwide. Its name in English is ''ar'' (pronounced ), plural ''ars'', or in Irela ...
''
985 Year 985 ( CMLXXXV) was a common year starting on Thursday (link will display the full calendar) of the Julian calendar. Events By place Europe * Summer – Henry II (the Wrangler) is restored as duke of Bavaria by Empress Theoph ...
QB 1153, the broadcasting authority refused to consider a complaint that a political party has been given too little broadcasting time mainly for good reasons, but also with some irrelevant considerations, which however were not of material influence on the decision.


Fettering discretion

An authority will be acting unreasonably where it refuses to hear applications or makes certain decisions without taking individual circumstances into account by reference to a certain policy. When an authority is given discretion, it cannot bind itself as to the way in which this discretion will be exercised either by internal policies or obligations to others. Even though an authority may establish internal guidelines, it should be prepared to make exceptions on the basis of every individual case.


Irrationality

Under Lord Diplock's classification, a decision is irrational if it is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it." This standard is also known as
Wednesbury unreasonableness ''Associated Provincial Picture Houses Ltd. v Wednesbury Corporation''
948 Year 948 ( CMXLVIII) was a leap year starting on Saturday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * Arab–Byzantine War: Hamdanid forces under Sayf al-Dawla raid into Asia Minor ...
1 KB 223 is an English law case that sets out the standard of unreasonableness of public-body decisions that would make them liable to be quashed on judicial review, kn ...
, after the decision in '' Associated Provincial Picture Houses Ltd v Wednesbury Corporation'', where it was first imposed. Unlike illegality and procedural impropriety, the courts under this head look at the merits of the decision, rather than at the procedure by which it was arrived at or the legal basis on which it was founded. The question to ask is whether the decision "makes sense". In many circumstances listed under "illegality", the decision may also be considered irrational.


Proportionality

Proportionality is a requirement that a decision is proportionate to the aim that it seeks to achieve. For example, an order to forbid a protest march on the grounds of public safety should not be made if there is an alternative way of protecting public safety, such as by assigning an alternative route for the march. Proportionality exists as a ground for setting aside administrative decisions in most continental legal systems and is recognised in England in cases where issues of
EU law European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its val ...
and
human rights Human rights are Morality, moral principles or Social norm, normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for ce ...
are involved. However, it is not as yet a separate ground of judicial review, although Lord Diplock has alluded to the possibility of it being recognised as such in the future. At present, lack of proportionality may be used as an argument for a decision being irrational.


Procedural impropriety

A decision suffers from procedural impropriety if in the process of its making the procedures prescribed by statute have not been followed or if the "rules of
natural justice In English law, natural justice is technical terminology for the rule against bias (''nemo iudex in causa sua'') and the right to a fair hearing ('' audi alteram partem''). While the term ''natural justice'' is often retained as a general c ...
" have not been adhered to.


Statutory procedures

An Act of Parliament may subject the making of a certain decision to a procedure, such as the holding of a public hearing or inquiry, or a consultation with an external adviser. Some decisions may be subject to approval by a higher body. Courts distinguish between "mandatory" requirements and "directory" requirements. A breach of mandatory procedural requirements will lead to a decision being set aside for procedural impropriety.


Breach of natural justice

The rules of natural justice require that the decision maker approaches the decision making process with "fairness". What is fair in relation to a particular case may differ. As pointed out by Lord Bridge in ''
Lloyd v McMahon Lloyd, Lloyd's, or Lloyds may refer to: People * Lloyd (name), a variation of the Welsh word ' or ', which means "grey" or "brown" ** List of people with given name Lloyd ** List of people with surname Lloyd * Lloyd (singer) (born 1986), American ...
'' 987AC 625, "the rules of natural justice are not engraved on tablets of stone". Below are some examples of what the rules of natural justice require:


=The rule against bias

= The first basic rule of natural justice is that nobody may be a judge in his own case. Any person that makes a judicial decision – and this includes a decision of a public authority on a request for a licence – must not have any personal interest in the outcome of the decision. If such interest is present, the decision maker must be disqualified even if no actual bias can be shown, i.e. it is not demonstrated that the interest has influenced the decision. The test as to whether the decision should be set aside is whether there is a "real possibility
f bias F, or f, is the sixth letter in the Latin alphabet, used in the modern English alphabet, the alphabets of other western European languages and others worldwide. Its name in English is ''ef'' (pronounced ), and the plural is ''efs''. His ...
, as established in '' Gough v Chief Constable of the Derbyshire Constabulary'' 001 which dropped the 'fair-minded observer' part of the test.


=The right to a fair hearing

= Whether or not a person was given a fair hearing of his case will depend on the circumstances and the type of the decision to be made. The minimum requirement is that the person gets the chance to present his case. If the applicant has certain
legitimate expectations The doctrine of legitimate expectation was first developed in English law as a ground of judicial review in administrative law to protect a procedural or substantive interest when a public authority rescinds from a representation made to a per ...
, for example to have his licence renewed, the rules of natural justice may also require that they are given an oral hearing and that their request may not be rejected without giving reasons. This was the principle in the case of ''
Ridge v Baldwin ''Ridge v Baldwin'' 964AC 40 was a UK labour law case heard by the House of Lords. The decision extended the doctrine of natural justice (procedural fairness in judicial hearings) into the realm of administrative decision making. As a result, th ...
'' 964AC 40.


=Duty to give reasons

= Unlike many other legal systems, English administrative law does not recognise a general duty to give reasons for a decision of a public authority. A duty to give reasons may be imposed by statute. Where it is not,
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
may imply such a duty and the courts do so particularly with regard to judicial and quasi-judicial decisions.


Legitimate expectations

A legitimate expectation will arise when a person (or a group or class of persons) has been led by a policy, promise or representation of a public body to understand that, for example, certain steps will be followed in reaching a decision. Considerations of legitimate expectations: # When an individual or a group has been led to think that certain steps will apply. # When an individual or a group relies on a policy or guidelines which govern an area of past executive action. The above principle has been recognized in the case of '' R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators Association''
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2 QB 299. The court may uphold not only a legitimate expectation that a certain procedure would be followed by a public body ("procedural" expectations), but also an expectation of some substantive benefit. In a leading case in 2001 on the latter point, Ms Coughlan, having been badly injured in a car accident, was promised a "home for life" by the health authority when she was transferred from the hospital to a care home. When the authority tried to evict her later, the court held the authority to their promise, since to frustrate Ms Coughlan's legitimate expectation would be unfair in the circumstances.''R v. North and. East Devon Health Authority, ex parte Coughlan'' 001QB 213


Possibility of additional grounds of review

It has been suggested that proportionality (which is now expressly cited as a doctrine of review only in human rights cases and cases with an EU dimension) should become a separate general head of review. There is some authority for the proposition that the courts employ a normative legal concept of "moral desert". Dr Kennefick of Queen's College, Oxford has posited that the essential question that the courts ask themselves is this: "did they deserve it?" When both parties deserve it, the secondary inquiry is "who deserved it more?" On the unlikely occurrence of equal moral desert existing between two parties, the courts should, Kennefick argues, be able to give both parties a remedy.


Remedies

The following remedies are available in proceedings for judicial review: * Quashing order * Prohibiting order * Mandatory order * Declaration * Injunction * Damages (only available if sought on non-Judicial Review grounds) In any case more than one remedy can be applied for; however, the granting of all remedies is entirely at the court’s discretion.


Quashing order

A quashing order (formerly a
writ of certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
) nullifies a decision which has been made by a public body. The effect is to make the decision completely invalid. Such an order is usually made where an authority has acted outside the scope of its powers (''ultra vires''). The most common order made in successful judicial review proceedings is a quashing order. If the court makes a quashing order it can send the case back to the original decision maker directing it to remake the decision in light of the court’s findings. Very rarely, if there is no purpose in sending the case back, it may take the decision itself.


Prohibiting order

A prohibiting order (formerly a
writ of prohibition A writ of prohibition is a writ directing a subordinate to stop doing something the law prohibits. This writ is often issued by a superior court to the lower court directing it not to proceed with a case which does not fall under its jurisdicti ...
) is similar to a quashing order in that it prevents a tribunal or authority from acting beyond the scope of its powers. The key difference is that a prohibiting order acts prospectively by telling an authority not to do something in contemplation. Examples of where prohibiting orders may be appropriate include stopping the implementation of a decision in breach of natural justice, or to prevent a local authority licensing indecent films, or to prevent the deportation of someone whose immigration status has been wrongly decided.


Mandatory order

A mandatory order (formerly a
writ of mandamus (; ) is a judicial remedy in the form of an order from a court to any government, subordinate court, corporation, or public authority, to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain from ...
) compels public authorities to fulfill their duties. Whereas quashing and prohibition orders deal with wrongful acts, a mandatory order addresses wrongful failure to act. A mandatory order is similar to a mandatory injunction (below) as they are orders from the court requiring an act to be performed. Failure to comply is punishable as a contempt of court. Examples of where a mandatory order might be appropriate include: compelling an authority to assess a disabled person's needs, to approve building plans, or to improve conditions of imprisonment. A mandatory order may be made in conjunction with a quashing order, for example, where a local authority's decision is quashed because the decision was made outside its powers, the court may simultaneously order the local authority to remake the decision within the scope of its powers.


Declaration

A declaration is a judgment by the Administrative Court which clarifies the respective rights and obligations of the parties to the proceedings, without actually making any order. Unlike the remedies of quashing, prohibiting and mandatory order the court is not telling the parties to do anything in a declaratory judgment. For example, if the court declared that a proposed rule by a local authority was unlawful, a declaration would not resolve the legal position of the parties in the proceedings. Subsequently, if the authority were to proceed ignoring the declaration, the applicant who obtained the declaration would not have to comply with the unlawful rule and the quashing, prohibiting and mandatory orders would be available.


Injunction

An injunction is an order made by the court to stop a public body from acting in an unlawful way. Less commonly, an injunction can be mandatory, that is, it compels a public body to do something. Where there is an imminent risk of damage or loss, and other remedies would not be sufficient, the court may grant an interim injunction to protect the position of the parties before going to a full hearing. If an interim injunction is granted pending final hearing, it is possible that the side which benefits from the injunction will be asked to give an undertaking that if the other side is successful at the final hearing, the party which had the benefit of the interim protection can compensate the other party for its losses. This does not happen where the claimant relies on
legal aid Legal aid is the provision of assistance to people who are unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to co ...
.


Damages

Damages are available as a remedy in judicial review in limited circumstances. Compensation is not available merely because a public authority has acted unlawfully. For damages to be available there must be either: # a recognised private law cause of action such as negligence or breach of statutory duty; or # a claim under European law or the Human Rights Act 1998.


Discretion

The discretionary nature of the remedies stated above means that even if a court finds a public body has acted wrongly, it does not have to grant any remedy. Examples of where discretion will be exercised against an applicant may include where the applicant's own conduct has been unmeritorious or unreasonable, for example where the applicant has unreasonably delayed in applying for judicial review, where the applicant has not acted in good faith, where a remedy would impede an authority's ability to deliver fair administration, or where the judge considers that an alternative remedy could have been pursued.


References

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External links


A Judge Over your Shoulder
- a guide on Judicial Review for administrators United Kingdom administrative law
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