Administrative law judicial review

1. Judicial Review
DEFINITION : "Judicial review, now regulated by RSC, Ord. 53,
provides the means by which judicial control of administrative action is
exercised. The subject matter of every judicial review is a decision made by
some person (or body of persons) whom I will call the "decision-maker" or
else a refusal by him to make a decision."
Judicial review is different from an appeal. The distinction is that an appeal
is concerned with the merits of the decision under appeal while judicial
review is concerned only with the legality of the decision or act under
review.
GROUNDS FOR JUDICIAL REVIEW
In the GCHQ Case (1985), Lord Diplock classified the grounds on which
administrative action is subject to judicial control under three heads,
namely, 'illegality', 'irrationality', and 'procedural impropriety'. He also said
that further grounds may be added as the law developed on a case-by-case
basis.
(A) ILLEGALITY
Illegality as a ground for judicial review means that the decision-maker
must understand correctly the law that regulates his decision-making
power and must give effect to it. Whether he has or not is a question to be
decided in the event of dispute by judges.
This would mean that when a power vested in a decision-maker is
exceeded, acts done in excess of the power are invalid as being ultra vires
(substantive ultra vires).
An example would be where a local council, whose power is derived
from statute, acts outside the scope of that authority. See:

2. Bromley Council v Greater London Council (1983).
Government Ministers have also sometimes acted outside their authority.
See:
R v Home Secretary, ex parte Fire Brigades Union (1995).
(B) IRRATIONALITY
By irrationality as a ground for judicial review, Lord Diplock in the GCHQ
Case (1985) meant what is referred to as Wednesbury unreasonableness.
In Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) the
Court of Appeal held that a court could interfere with a decision that was
'so unreasonable that no reasonable authority could ever have come to it'.
Lord Diplock in the GCHQ Case said that this 'applies to a decision which
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 to be decided
could have arrived at it.'
Case examples include:
Strictland v Hayes Borough Council (1896)
R v Derbyshire County Council, ex parte The Times (1990)
This ground has been used to prevent powers from being abused by, for
example, exercising a discretion for an improper purpose or without taking
into account all relevant considerations.
(C) PROCEDURAL IMPROPRIETY
Procedural impropriety as a ground for judicial review covers the failure by
the decision-maker to observe procedural rules that are expressly laid
down in the legislation by which its jurisdiction is conferred, or a failure to
observe basic rules of natural justice, or a failure to act with procedural

3. fairness (procedural ultra vires).
An example of procedural rules not being followed is:
Aylesbury Mushroom Case (1972).
PROCEDURE FOR JUDICIAL
REVIEW
The procedure of application for judicial review is contained in the Supreme
Court Act 1981 and Order 53 of the Rules of the Supreme Court, and is in
two stages.
Leave of the High Court is needed for every application for judicial review.
Leave is generally a matter decided by a single judge without a hearing, but
if necessary the decision may be made after a brief hearing. The application
for leave is made ex parte, ie without notice to the other side, by filing a
notice of application with an affidavit verifying the facts relied on, in the
Crown Office.
Where leave is refused without a hearing, the application for leave may be
renewed in open court before a single judge or a Divisional Court. It may be
further renewed in the Court of Appeal.
When leave is obtained the hearing of the application for judicial review
takes place before a single judge of the Queen's Bench Division or a full
Queen's Bench Divisional Court in cases which involve criminal law.
Appeals against a decision can be made to the Court of Appeal and from
there to the House of Lords.
Applications for judicial review
must be brought within a time
limit and the applicant must have

4. locus standi:
By Order 53, an application for judicial review shall be made promptly, and
in any event within three months from when grounds for the application
first arose, unless there is good reason for extending the period.
At the stage when leave is sought for an application for judicial review, the
court must not grant leave 'unless it considers that the applicant has a
sufficient interest in the matter to which the application relates' (s31(3) of
the Supreme Court Act 1981).
REMEDIES
If an application for judicial review is successful the following remedies are
available.
Firstly, the prerogative orders (mandamus, prohibition and certiorari):
Mandamus is an order from the High Court commanding a public authority
or official to perform a public duty.
Prohibition is an order issued primarily to prevent an inferior court or
tribunal from exceeding its jurisdiction, or acting contrary to the rules of
natural justice.
Certiorari is an order quashing decisions by inferior courts, tribunals and
public authorities where there has been an excess of jurisdiction or an ultra
vires decision; a breach of natural justice; or an error of law. By setting
aside a defective decision, certiorari prepares the way for a fresh decision
to be taken.