Judicial review: illegality

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To bring a claim in judicial review the claimant must:

  • Have>standing → i.e. they must have good cause to go before the court (usually those who have been affected by the decision or have a sufficient interest in the decision will have standing
  • Bring a case against an amenable body → e.g. a public body established by statute or a Minister exercising statutory/prerogative powers
  • Be granted permission to have his/her case heard → this is an entirely discretionary power of the High Court
  • Have rounds for the court to review the decision → i.e. there must be a basis for review recognised by the common law (see below)

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.

The grounds for review

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:

  • Illegality e.g. errors of law
  • Irrationality (Wednesbury unreasonableness)
  • Procedural impropriety i.e. whether the correct procedures have been followed by the amenable body

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

  • For example, the ground of illegality is extremely hard to pin down as distinct from some of the other grounds e.g. if a decision-maker takes something into account that they should not have taken into account when making their decision, have they acted illegally, irrationally (unreasonably), or without regard for procedural fairness? Perhaps all three!

Ground for review: illegality

Illegality as a ground for review is certainly well established in the case law, but what does it mean?

  • Lord Diplock, in the GCHQ case, said that the law regulates the decision-making powers of public bodies and they must give effect to that. If they do not then they have acted illegally and are subject to judicial review
  • But this isn’t a very helpful definition and doesn’t really help

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

  • But again this is also not really that helpful

We can only progress our understanding by looking at some cases…

R v Somerset CC, ex parte Fewings [1995] 1 WLR 1037

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

  • Bingham made a clear distinction between private persons and public bodies → public bodies may only take into account lawful considerations when exercising their discretion

R v Foreign Secretary, ex parte World Development Movement [1995]

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).

  • If in R v Somerset CC, ex parte Fewings [1995] the interest was on taking into account/not taking into account lawful and unlawful considerations, the court in World Development Movement is concerned with upholding the statutory purpose.

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?

  • Yes! The court took a purposeful approach in seeking to uphold the purpose of the Act - which was to provide aid to the world’s poor.
  • Because the project was economically unsound, and failed to demonstrate more than marginal benefit for Malaysia, the decision to award aid was deemed unlawful as being contrary to the purpose of the statute conferring powers upon the Foreign Secretary to make aid decisions

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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Fewings and World Development Movement

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

Westminster v London and North Western Railway Co [1905]

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

  • However, the court must ensure that the official is not acting upon one motive (the lawful one i.e. to install the toilets) “under colour and pretence,” (at 432) whilst pursuing an unlawful motive (the construction of an unwarranted subway)
  • Thus, a public body may do something it is not lawfully entitled to do (such as build a subway) if it is merely incidental to the performance of some other, lawful, act (such as to install the toilets)
  • This contrasts sharply with World Development Movement where the motive of the Foreign Secretary to secure political and diplomatic relations with Malaysia (not to mention the arms contract!) was not merely incidental to the exercise of discretion in respect of aid – but was in fact the primary motive.

Don't forget jurisdiction

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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