⇒ To bring a claim in judicial review the claimant must:
⇒ Some say judicial review isn’t really about this, it is more about access to the special remedies the court can provide (the HC) in particular e.g. quashing order, mandatory order, declaration, prohibit a public body from doing something they intend to do, injunctions, etc.
⇒ Like other areas of the common law, the grounds for review have developed on a case-by-case basis.
⇒ In the GCHQ case, Lord Diplock famously assessed the existing authorities and placed them under three grounds for review:
⇒ We can probably add a fourth ground following the Human Rights Act 1998 – that is, proportionality i.e. the amenable body must pursue the public good but with proportionate means
⇒ However, these identified ‘grounds’ are really only an extremely convenient construct and we should be wary of understanding them as fixed or established categories
⇒ Illegality as a ground for review is certainly well established in the case law, but what does it mean?
⇒ Another approach to thinking about illegality is founded in the term ultra vires, which means ‘without power’ or ‘beyond power’ i.e. a public body’s decision is judicially reviewable if it was made ultra vires
⇒ We can only progress our understanding by looking at some cases…
⇒ The council acquired a large piece of land in 1921 – land which featured matured woodlands and a population of red deer. Acting under s.120 of the Local Government Act, which allows councils to acquire and maintain land for “the benefit, improvement or development of their area,” the council decided to ban deer hunting on the land because hunting is unnecessarily cruel
⇒ In judicial review proceedings, the council’s decision to ban hunting was quashed. This was because the council failed to take into account what would be for the “benefit, improvement or development of their area” and were motivated instead by ethical or moral considerations relating to hunting.
⇒ The claim in judicial review survived an appeal to the Court of Appeal
⇒ A slightly different approach to illegality review was taken by the court in this case concerning World Development Movement (an NGO campaigning for more/better aid to be spent).
⇒ Acting under powers conferred by the Overseas Development and Cooperation Act 1980, the Foreign Secretary sought to provide £195m in aid to the Malaysian Government to support the building of a hydroelectric dam. By any sensible economic assessment (including an official assessment carried out by an auditor), the dam was a “bad buy,” because electricity generation by the dam would be so expensive it would actually lead to increased energy costs for Malaysians.
⇒ The World Development Movement, who campaigns for more and better aid, sought to challenge the decision to award aid to the dam-building project on the grounds that the money could be better spent elsewhere - and indeed, that the funding of the dam would actually cause Malaysians harm. The insistence of the UK Government’s support of the project was no doubt linked to developing diplomatic relations with Malaysia (who were, at the time, also entering into arms contracts with UK firms)
⇒ Could the Administrative Court interfere with the decision to award aid even though the statute did not require the Foreign Security to consider cost effectiveness when exercising discretion?
⇒ The grant of international aid requires the consideration of political, economic and diplomatic matters. The Administrative Court recognised that these matters are for the Foreign Secretary to take into account as he sees fit—but the court could not tolerate such a ‘bad buy’ that runs counter to the statutory purpose of the 1980 Act to provide aid for the world’s poor.
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⇒ In Fewings, the court granted relief because the decision-maker had not taken into account considerations they were lawfully required to take into account, whilst taking into account (and giving undue weight to) considerations they were not lawfully entitled to take into account
⇒ In World Development Movement, the court granted relief because the statutory purpose to provide aid was not met where such an economically flawed prospect for public expenditure was pursued by the decision-maker
⇒ The local authority, in pursuit of a statute to provide public conveniences, installed toilets underground and provided for the necessary steps for the public to access these conveniences from both sides of the road. The claimant, who owned a large and valuable property adjacent to the subway, sought relief from the High Court against the installation of these toilets.
⇒ The claimant argued that whilst the local authority had the legal power to install public toilets, the creation of a subway providing access for the public to walk under the road (whether to use the toilets or not) was beyond the lawful powers conferred upon the local authority by statute.
⇒ The House of Lords disagreed: they ruled that that the installation of the toilets (and, importantly, the necessary subway to access these toilets) were within the statutory powers conferred upon the local authority
⇒ Jurisdiction is still absolutely vital to the question of legality
⇒ We could easily characterise Fewings as a case in which the local authority exceeded its jurisdiction by deciding matters which were moral or ethical
⇒ In World Development Movement, the Foreign Secretary had a broad jurisdiction to decide where aid will go - but even he exceeded his jurisdiction by bargaining aid for arms contracts (allegedly)
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