Tackling a judicial review (JR) problem question in a public law exam can be daunting. It requires a methodical approach, a firm grasp of the grounds of review, and the ability to apply complex case law to a given scenario. This guide will break down the essential components of a first-class answer, focusing on how to structure your response, the key arguments to deploy, and the remedies a court can offer. We will explore the core grounds of illegality, irrationality, and procedural impropriety, as well as the crucial role of the Human Rights Act 1998.
💡 Key Takeaway
Success in judicial review questions hinges on a clear, structured analysis. Identify the decision, the public body, and the potential grounds for challenge. Argue each ground systematically, applying relevant case law. Do not forget to consider the Human Rights Act 1998 and conclude with a discussion on available remedies. A well-structured answer is as important as the legal knowledge itself.
Structuring Your Answer: The Golden Rules
Before diving into the substantive grounds, a good answer must establish the preliminary requirements for bringing a judicial review claim. This demonstrates a complete understanding of the process.
1. Is the Decision Amenable to Judicial Review?
First, identify the specific decision or action being challenged. Then, determine if the body that made the decision is a 'public body'. The test for this comes from R v Panel on Take-overs and Mergers, ex parte Datafin plc [1987] QB 815, which established the 'public function' test. If a body, even a private one, is exercising a public function, its decisions can be reviewed. The source of the power (e.g., statute) is relevant but not determinative.
2. Does the Claimant Have Standing?
The claimant must have 'sufficient interest' in the matter to which the application relates, as per section 31(3) of the Senior Courts Act 1981. The test was defined in R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617. It's a liberal test, but you must still explain why your claimant (e.g., an individual affected, a pressure group) meets the threshold.
3. Are there any Ouster Clauses?
Check the facts for any statutory clause that attempts to 'oust' the jurisdiction of the courts. The courts are fiercely protective of their review function. A total ouster clause will likely be read down, as established in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. A partial ouster (e.g., a time limit) is more likely to be upheld.
4. Time Limits
A claim for judicial review must be filed promptly and in any event not later than 3 months after the grounds to make the claim first arose. This is a strict deadline.
Grounds for Review I: Illegality
Illegality is the first of the three classic grounds for judicial review articulated by Lord Diplock in the Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ case). It means that the decision-maker must understand correctly the law that regulates their decision-making power and must give effect to it.
Simple Ultra Vires & Errors of Law
This is the most straightforward form of illegality. A public body acts 'ultra vires' (beyond its powers) if it does something for which it has no legal authority. For example, in Attorney-General v Fulham Corporation [1921] 1 Ch 440, the corporation was empowered to provide wash-houses for residents to wash their own clothes, but it set up a paid-for laundry service. This was held to be ultra vires. Furthermore, all errors of law are reviewable. The landmark case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 established that any error of law by a public body will render its decision a nullity.
Abuse of Discretion
Often, a statute will grant a public body discretionary power. However, this discretion is not absolute. It must be exercised in accordance with the law. Abuse of discretion includes:
- Taking into account irrelevant considerations: The decision-maker must not be influenced by factors that are not relevant to the purpose of the power. In R v Secretary of State for the Home Department, ex parte Venables [1998] AC 407, the Home Secretary took into account a public petition about the tariff for two convicted child murderers, which was deemed an irrelevant consideration.
- Failing to take into account relevant considerations: The decision-maker must consider all factors that are relevant. In R v Somerset County Council, ex parte Fewings [1995] 1 All ER 513, the council banned stag hunting on its land for ethical reasons, failing to consider the relevant factor of whether it was for the "benefit, improvement or development" of the area.
- Improper purpose: The power must be used for the purpose for which Parliament conferred it. In Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, the Minister refused to refer a complaint to a committee, which frustrated the policy of the Act. The House of Lords held this was an improper use of his discretion.
Grounds for Review II: Irrationality
Irrationality, often called 'Wednesbury unreasonableness', is a high threshold for a claimant to meet. It concerns the substance of the decision itself, not the process.
The Wednesbury Unreasonableness Test
The classic test was formulated by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. A decision is unreasonable 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 to be decided could have arrived at it."
In the GCHQ case, Lord Diplock re-labelled this as 'irrationality', defining it as a decision which is "so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
This is a difficult ground to prove. The courts are hesitant to intervene on this basis, as it risks straying into the merits of the decision, which is the role of the executive, not the judiciary. A key example of a successful claim is R v Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514, where the court found the decision to deport an asylum seeker to a country where he faced a threat to his life was irrational.
📝 Exam Tip
When arguing irrationality, stress how high the threshold is. Use the exact language from the Wednesbury and GCHQ cases. It is often better to argue irrationality as a secondary ground after illegality or procedural impropriety, as it is much harder to establish.
Grounds for Review III: Procedural Impropriety
This ground concerns the process by which a decision is made, rather than the substance of the decision itself. It encompasses two main areas: procedural ultra vires and a breach of the rules of natural justice.
Procedural Ultra Vires
If a statute lays down a specific procedure for making a decision, that procedure must be followed. A failure to do so may render the decision invalid. The courts distinguish between mandatory requirements, which must be followed, and directory requirements, where a failure to comply may not invalidate the decision. In Aylesbury Mushrooms Ltd [1972] 1 WLR 190, a failure to consult the Mushroom Growers' Association as required by statute was a breach of a mandatory requirement and rendered the decision void.
The Rules of Natural Justice
These are common law rules of fairness that apply to decision-making processes. They are summed up by two Latin maxims:
- Audi alteram partem (the right to a fair hearing): A person affected by a decision should be given a fair opportunity to present their case. This doesn't always mean a full oral hearing, but it does require that the person knows the case against them and has a chance to respond. The leading case is Ridge v Baldwin [1964] AC 40, which held that a chief constable was entitled to a hearing before being dismissed.
- Nemo judex in causa sua (the rule against bias): The decision-maker must be impartial. Even the appearance of bias can be enough to invalidate a decision. In R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) [2000] 1 AC 119, a decision of the House of Lords was set aside because one of the judges had links to Amnesty International, which was a party to the case.
The Human Rights Act 1998 & Proportionality
The introduction of the Human Rights Act 1998 (HRA) added a powerful dimension to judicial review. It requires public authorities to act in a way that is compatible with rights under the European Convention on Human Rights (ECHR). When a Convention right is engaged, the courts may apply a more intensive standard of review than Wednesbury unreasonableness: the doctrine of proportionality.
Key Provisions of the HRA 1998
- Section 3: Requires courts to read and give effect to primary and subordinate legislation in a way which is compatible with the Convention rights, so far as it is possible to do so.
- Section 6: Makes it unlawful for a public authority to act in a way which is incompatible with a Convention right, unless it could not have acted differently because of primary legislation.
Proportionality: A More Intense Review
Where a decision interferes with a qualified Convention right (e.g., Article 8 - right to private and family life, or Article 10 - freedom of expression), the court will assess whether the interference is 'proportionate'. The test for proportionality was set out in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532.
Lord Steyn in Daly stated that proportionality requires the court to assess the balance which the decision-maker has struck, not merely whether it is within the range of rational or reasonable decisions. It asks: (i) whether the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) whether the measures designed to meet the objective are rationally connected to it; and (iii) whether the means used to impair the right are no more than necessary to accomplish the objective.
| Aspect | Wednesbury Unreasonableness | Proportionality |
|---|---|---|
| Focus | The reasonableness of the decision (is it irrational?). | The balance between the objective and the rights interference. |
| Intensity | Low intensity. High deference to the decision-maker. | High intensity. More intrusive analysis of the decision. |
| Key Question | Was the decision so unreasonable that no reasonable authority could have made it? | Was the interference with the right necessary and justified? |
| Case Law | Associated Provincial Picture Houses Ltd v Wednesbury Corporation | R (Daly) v Secretary of State for the Home Department |
⚠️ Common Mistake
Do not apply the proportionality test unless a Human Rights Act 1998 issue is clearly engaged in the problem scenario. For non-HRA cases, the correct standard of review for the substance of a decision remains Wednesbury unreasonableness. Clearly signpost which test you are applying and why.
Remedies in Judicial Review
A good answer must conclude by advising on the remedies the court can grant. The remedies in judicial review are discretionary. The main remedies, known as the 'prerogative remedies', are:
- Quashing Order: This nullifies the original decision. It is the most common remedy.
- Prohibiting Order: This prevents a public body from making a decision it is about to make.
- Mandatory Order: This compels a public body to perform a public duty.
In addition, the court can grant ordinary remedies such as:
- Declaration: A statement of the legal position of the parties.
- Injunction: An order to do or refrain from doing a specific act.
- Damages: Only available if there is a separate cause of action in tort or contract, or under the HRA 1998.
Frequently Asked Questions (FAQs)
What is the difference between appeal and judicial review?
Judicial review is concerned with the legality of the decision-making process, not the merits of the decision itself. The court asks whether the decision was made lawfully (e.g., without illegality, irrationality, or procedural impropriety). An appeal, by contrast, is usually a statutory right to have a higher court or tribunal reconsider the merits of the case, asking whether the original decision was 'right' or 'wrong'.
Can I get damages in a judicial review claim?
Damages are not a standalone remedy in judicial review. They can only be awarded if the claimant has a separate, pre-existing cause of action (like a claim in tort or contract) or if a claim is made under the Human Rights Act 1998 for a breach of a Convention right where an award of damages is considered 'just satisfaction'.
What does 'ouster clause' mean?
An ouster clause is a provision in a statute that attempts to prevent the courts from judicially reviewing a decision of a public body. The courts are very hostile to these clauses. As seen in Anisminic v Foreign Compensation Commission, the House of Lords held that such clauses cannot prevent review of a decision that is a nullity due to an error of law.
Is proportionality now a general ground of review in UK law?
Not yet. Proportionality is the established standard of review in cases involving the Human Rights Act 1998 and in EU law cases. However, for general domestic judicial review cases that do not involve these areas, the standard of review for the substance of a decision remains Wednesbury unreasonableness. There is ongoing academic and judicial debate about whether it should become a general ground.
How important is the pre-action protocol for judicial review?
It is extremely important. Before initiating a claim, the claimant is expected to send a 'letter before claim' to the proposed defendant. This letter should set out the grounds of the claim and give the public body a chance to respond and potentially resolve the dispute without litigation. A failure to follow the protocol can have adverse costs consequences for the claimant, even if they win the case.