The Emergence of Judicial Review and the Control of Public Power

1. The Emergence of Judicial Review and the Control of Public Power

2. Introduction The main aim of this lecture is to explain the constitutional significance of judicial review. Begin by exploring the relationship between judicial reviewDicey’s concept of the rule of law. Explain the distinction between judicial review and appeal. Trace the emergence of judicial review as a remedy with reference to procedural reform. Discuss some of the grounds of review against a background of public law decision-making. Critical assessment of the role of judicial oversight.

3. RULE OF LAW Dicey’s second major principle which qualifies the unlimited nature of parliamentary sovereignty: ’a bridle for Leviathan’. ‘The rule of law is both a legal rule and a political ideal or principle of governance comprising values that should be reflected in the legal system and should be respected by those concerned in the making, development and enforcement of the law’ (Turpin and Tomkins). In other words it is the essential part of ‘constitutionalism’. Courts exercise a control function over Parliament and government e.g. judicial review.

4. Dicey's view The ordinary courts, as opposed to specialist administrative courts as in France, play an ever more important role in controlling sub-ordinate decision-makers such as justices of the peace and local officials. Public and private power for Dicey should be equally subject to the ordinary law.

5. Origins 'The technique by which the courts have extended the judicial control of powers is that of stretching the doctrine of ultra vires... They can make the doctrine mean almost anything they wish by finding implied limitations in Acts of Parliament ...' (Wade and Forsyth). From a historical standpoint the Court of King's Bench had established the power to quash the decisions of inferior tribunals for error on the face of the record. This was achieved by the classic remedies writs of certiorari (quashing order) and prohibition (prohibiting order).

6. The emergence of judicial review a common law remedy Ridge v Baldwin [1964] - important aspects of administrative law developed by the judges e.g. principles of natural justice. Consistent with the notion that the common law is infused with concepts of impartiality (e.g. Trevor Allen). Chief Constable of Brighton dismissed without a hearing. Negative liberty - citizens are free to do anything which does not break a specific law - feature of unwritten constitution.

7. Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 '...the justice of the common law will supply the omission of the legislature'. • Legitimate expectation re procedural fairness reinforced by Article 6 ECHR

8. What is judicial review? Judicial review is not an appellate process. If successful, appeals can change decisions e.g. courts and tribunals JR provides no guarantee of final outcome JR is about the legality of decision itself. Is the authority acting within its powers? Quashing order which is the classic remedy will refer the matter back to the decision maker who will be required to take the decision lawfully next time.

9. The meaning of ultra vires Ultra vires - beyond the powers - the courts are called in to act because a public body is acting unlawfully by exceeding its powers. In other words exercising a control function under the rule of law Statutory powers - discretionary powers Prerogative power - powers formerly exercised by King/Queen now by ministers e.g. mercy, negotiating treaties, declaring war Procedural defect in the conduct of public body.

10. Special remedies Quashing Order/Certiorari has the effect of quashing an ultra vires decision.If the remedy is granted an ultra vires decision will be rendered VOID. Prohibiting Order /Prohibition - serves to prohibit the authority from acting unlawfully in the future. Mandatory Order/Mandamus - instructs (mandates) an authority to do its statutory duty, which may be to exercise its statutory discretion lawfully in the future

11. General remedies Declaration - not imposed by the court but states what the legal position is between the parties. Often sufficient for public bodies who are not prepared to act unlawfully. Injunction (equitable remedy) that usually prevents a body from acting. Damages only available in limited circumstances in public law.

12. What is the constitutional basis of JR • Parliament has only conferred a legal decision making power on the basis that it was to be exercised on the correct legal basis. This view looks to legislative intent (Forsyth). • Competing view - the doctrine is not based on legislative intent but becomes a vehicle through which the common law courts develop control over the administration - because the decision is erroneous under the general law. This obviously gives far greater scope for judicial invention (Craig).

13. Public Private Law Divide There has been an increased interface between public and private law as the private sector has become progressively more involved in the process of administration. Given this trend the scope for the courts to intervene becomes a matter of enormous importance.

14. Procedural reform Modern two-stage procedure introduce and enacted under the Supreme Court Act 1981. Lord Diplock then confirmed the 'exclusivity principle' in O'Reilly v Mackman [1982]. Public law decisions could now only be challenged by way of judicial review. But how to distinguish the public from the private? Key decision - R v Panel on Takeovers and Mergers, ex parte Datafin [1987] - not only source of power but the nature of the functions

15. Human Rights Act, “public functions”, and the reach of judicial review R (on the application of Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936 - patient in a nursing home run by a private charity but paid for by her local authority who wanted to contest its closure on the basis of interference with Article 8 right to privacy. Poplar Housing v Donoghue ([2002] QB 48 YL v Birmingham City Council [2007] UKHL 27

16. LOCUS STANDI Rules of standing: RSC Order 53 r.3(7) that the court shall not grant leave to apply for JR unless the applicant has a 'sufficient interest' in the matter to which the application relates IRC v National Federation of Self-Employed and Small Businesses Ltd [1981] [Fleet Street Casuals (or Mickey Mouse) case] Challenge to a settlement with printers reached by the inland revenue by a group with no direct interest in the matter. Group interests: R v HM Inspectorate of Pollution, ex parte Greenpeace [1994]

17. Wednesbury unreasonableness

18. Associated Provincial Picture Houses v Wednesbury Corporation[1948] Sunday Entertainments Act 1932 legalised Sunday opening of cinema under conditions that ‘the authority think fit to impose’. WC inserted condition that no children under 15 admitted whether or not with adult. Objectionable to cinema owners. Challenge failed as the condition fell within the discretionary power of the public authority. The Wednesbury decision has come to be regarded as a highly significant case which set a very high threshold for judicial review. Lord Greene MR was in no doubt that the court must not substitute itself for the authority and become a Court of Appeal.

19. Irrationality/Wednesbury unreasonable A decision so unreasonable that no reasonable authority could take it. E.g. red haired teacher dismissed for no other reason than the colour of her hair, illustrates how absurd a decision needs to be to reach this standard. Roberts v Hopwood[1925] AC 578 model employer decided to pay women the same pay rates as men, ignoring market conditions.

20. Further issues relating to procedure • Limiting the jurisdiction of the courts Anisminic v Foreign Compensation Commission [1969] 2 WLR 163 - ouster clauses • JR is a two stage procedure - permission followed by hearing • Around 5500 to 7000 claims per year, only fraction go to full hearing • Remedy of last resort, all other avenues exhausted • Strict time limit of three months unless an exceptional case.

21. GCHQ case

22. Main grounds set out Judicial activism of the 1960s, reform of procedure and new judicial approach Council for Civil Service Unions v Minister for the Civil Service [1985] challenged the banning of unions at GCHQ by the government, hence GCHQ case: Lord Diplock set out the grounds as follows: 1. Illegality with many sub-grounds 2. Irrationality also termed Wednesbury unreasonableness 3. Procedural impropriety/natural justice Proportionality as a ground was anticipated - it now applies under HRA.

23. Exercise of statutory powers In exercising discretion the decision-maker must have regard to the statutory purpose but also in reaching their decision it must be clear that relevant considerations have been taken into account and that irrelevant considerations have been ignored. There have been many successful challenges where it has been established that the issues have not been balanced by the decision-maker.

25. Illegality: purpose and relevance Padfield v Ministry of Agriculture [1968] AC 997 Limits on discretion even if it appears wide: 'If the minister in any such case so directs’ Note that with JR there is no guarantee of final outcome, only that the authority will act lawfully. Bromley LBC v GLC [1983] 1 AC 768 - famous 'Fares Fair' case, implementation of manifesto promise to lower fares was in breach of fiduciary duty to rate payers. Wheeler v Leicester CC [1985] 2 All ER 1106 unlawful to prevent a rugby club use a council training ground because of objection to participation by some of its players in a tour to South Africa

26. The doctrine of legitimate expectation Procedural legitimate expectations have long been recognised under the common law but the principle has been extended. R v North & East Devon Health Authority ex p Coughlan [1999] The Times July 20; [2001] QB 213 Sedley LJ : (1) reasonable weight (on conventional grounds of reasonableness) must be given to promise when changing its mind; (2) the promise gives rise to a legitimate expectation to be consulted before the decision is made (court decides this on the basis of reasonable fairness); (3) if the promise gives rise to a substantive benefit (as in the instant case) the court will consider whether resiling from the promise is sufficiently unfair to amount to an abuse of power.

28. Judicial Review and the Human Rights Act In the absence of a codified constitution containing a formal Bill of Rights there was a gradual erosion of individual rights over the period 1980-1997. The enactment of a piece of legislation incorporating the ECHR was one approach to securing rights more effectively. Prior to the HRA UK was a member of the ECHR but any alleged breach of a convention right had to be taken to Luxembourg.

29. How the act works * Positive duty placed on public bodies under Section 6 as it is unlawful for them to act in a way which is incompatible with a convention right: central government, including executive agencies, local government, the police, immigration officers, prisons, courts and tribunals, companies exercising functions which would otherwise be exercised by government. * Courts now required under section 2 to take into account ECHR jurisprudence but not directly bound by it. * New power under section 3 to interpret legislation under so that it is given effect in a way that is compatible Convention rights. This is a very strong interpretative obligation which can have major impact.

30. Section 4 declaration of incompatibility The courts not given the power to invalidate primary legislation. If they are unable to interpret legislation so that it is convention compatible - a declaration of incompatibility can be issued. The legislation remains in force but Parliamentis able to adopt a special fast track procedure to amend the offending measure. Parliament is not legally required to amend legislation. If there was no response to the declaration of incompatibility a claimant can still take her case to Strasbourg for resolution. Belmarsh Detainees case good example.

31. Proportionality and the HRA R v Secretary of State for the Home Department, ex parte Daly [2001] 3 All ER 433 Challenge to a policy that allowed prison authorities to search cells while prisoner absent giving the prison authorites access to confidential legal correspondence. Policy deemed unlawful as it breached legal professional privilege. Lord Steyn commented that the intensity of review is greater under proportionality.

32. The proportionality test The reviewing court is required to assess the balance the decision-maker has struck, not merely whether it is within range of rational or reasonable decisions (Lord Steyn). The test asks if: (a) the legislative objective is sufficiently important to justify limiting a fundamental right; (b) the measures designed to meet the legislative objective are rationally connected to it; (c) the means are no more than is required to accomplish the objective (i.e. proportional).

33. A & Others v Home Secretary[2004] (the “Belmarsh detainees” case) The indefinite detention under the Anti-Terrorism Crime and Security Act 2001 without trial of a group of non British nationals suspected of being terrorists was held to be unlawful The provision to detain contrary to ECHR Art. 5 required a derogation under Art. 15. The derogation only valid if strictly required for a public emergency threatening the life of the nation. On this issue of derogation wide margin of appreciation given by majority to the government - held this was a political issue and only government has access to the security information upon which such a judgment could be made. Lord Hoffman dissented ‘no threat to the life of the nation’.

34. Was the legislation compatible with the ECHR? Article 15 requires that any measures … in derogation of its obligations under the Convention should not go beyond what is ‘strictly required by the exigencies of the situation’ test of the proportionality of responses to actions and to threats of actions; threat presented by suspected terrorists could have been countered in much less intrusive ways Further the measures were discriminatory against foreign nationals and thus contrary to Article 14 of the ECHR ‘The case turned on the inability of the Attorney General to defend the national/non national distinction’ Prof. Gearty

35. R (on the application of Rogers) v Swindon NHS Primary Care Trust and Sec of State for Health [2006] Woman suffering from breast cancer was refused treatment by a new drug Herceptin. In other parts of the country this drug was available on the NHS. Challenged under HRA as a threat to her right to life and as unlawful discrimination. Court of Appeal upheld her claim finding that the health authority lacked a rational policy for allocating health care.

36. Resource allocation issues “ ….‘judges look at the rights of individuals; health managers have to balance the rights of many different patients’. Such opinions … reflect persistent anxieties as to the constitutional and institutional competence of the courts to adjudicate upon polycentric questions, such as those which arise in the context of health care rationing, and are rooted in an overly narrow conception of public law’s function as a vehicle for the preservation of individual autonomy against the collective goals pursued by the organs of the state” (K. Syrett p.669).

37. HRA Cases • Begum case – whether a girl practising a particular kind of Islam can insist on wearing her own type of dress as school uniform. • Pro-Life Alliance case – whether the BBC could ban an election broadcast which contained offensive material. • Shayler case – whether a former member of the security services could claim that being prevented under the official secrets act from speaking out was a breach of his right to free speech.

38. Examples of JR cases • challenge to a local authority ban on stag hunting ex parte Fewings[1994] • whether a woman could use her late husband’s sperm ex parte Blood[1997] • constitutional right to have access to the courts ex parte Whitam [1998] • procedure for dealing with bids for the national lottery had been fairly conducted by the regulator, OFLOT: see R v The National Lottery Commission, ex parte Camelot Group PLC (2000) LAWTEL 21/9/2000; [2001] EMLR 43 • challenge to a health authority which refused to prescribe the drug herceptin to a woman suffering from breast cancer: R (on the application of Rogers) v Swindon NHS Primary Care Trust and Sec of State for Health [2006] • Luton BC, Notts CC & Ors v SS for Education [2011] EWHC 217 – Decision to cancel the BSF school building programme without consultation was found to be unlawful and quashed.

39. Conclusion • Sophisticated grounds of JR have been established under the common law. • These grounds have serve to constrain the discretionary powers of public authorities. • This, in turn, raises important questions relating to placing limits on judicial intervention. The Wednesdbury test imposed a high threshold, keeping the courts from being drawn into the political process. • The HRA and proportionality has tended to increase the profile of the judicial role in human rights cases. • In consequence, the courts are increasingly drawn into controversial debates, including deciding resource allocation issues.