United Kingdom administrative law
A person can apply to the High Court to challenge a public body's decision if they have a "sufficient interest",[1] within three months of the grounds of the cause of action becoming known.
Otherwise, a claimant can argue that a public body's decision was unlawful in five main types of case:[5] (1) it exceeded the lawful power of the body, used its power for an improper purpose, or acted unreasonably,[6] (2) it violated a legitimate expectation,[7] (3) failed to exercise relevant and independent judgement,[8] (4) exhibited bias or a conflict of interest, or failed to give a fair hearing,[9] and (5) violated a human right.
In Ahmed v HM Treasury the Supreme Court held that the United Nations Act 1946 section 1 did not confer on the Prime Minister the right to pass two orders that froze or seized funds of people designed by the UN Security Council as suspected terrorists without any possibility for review.
The Act could not have left the definition of what was 'necessary' or 'expedient' to the uncontrolled judgement of the Prime Minister, which affected the rights of citizens without the clear authority of Parliament.
But the House of Lords held that the Egyptian company was not Anisminic Ltd's 'successor' in title, that the FCC had therefore taken an irrelevant factor into account (its own error of law) in denying a claim, and that the decision had to be a nullity.
[18] In the best known case, Associated Provincial Picture Houses v Wednesbury Corporation, a cinema claimed that the council's requirement that it stop admitting children aged under 15 on Sundays after a local poll was unreasonable.
In Kruse v Johnson, Lord Russell CJ held that if a public body's actions 'were found to be partial and unequal in their operation as between different classes' it would be unreasonable and ultra vires.
This is similar to a contract (without the need for consideration) or estoppel, so that if a public body promises or assures somebody something, but does not deliver, they will be able to claim a 'legitimate expectation' was defeated.
The Court of Appeal held that it would be an abuse of power, breaking the assurance was 'equivalent to a breach of contract in private law', and it 'was unfair because it frustrated her legitimate expectation of having a home for life'.
On this point, and while the prerogative was also subject to judicial review, security was 'par excellence a non-justiciable question', their Lordships saying they were 'totally inept to deal with the sort of problems which it involves.
These common law principles are reinforced by the European Convention on Human Rights article 6, which in determining anyone’s ‘civil rights and obligations’,[33] or ‘any criminal charge’, requires ‘a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’ The rule against bias includes, for example, not allowing a judge to sit on any case in which he is financially interested, such as being a shareholder in a company that is a litigant.
According to Lord Nolan, even if there was no actual bias or conflict, ‘in any case where the impartiality of a judge is in question the appearance of the matter is just as important as the reality.’[36] Justice ‘should not only be done but should manifestly and undoubtedly be seen to be done’.
Byles J held that although ‘there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law shall supply the omission of the legislature.’[40] The right to know any case against you was illustrated in R v Secretary of State for the Home Department, ex p Doody, where prisoners who received life sentences were told a minimum period they had to stay in prison before any review, but not the judiciary’s recommendations.
The Supreme Court has, at least since 2014, adopted a practice of giving indirect effect to international law, to which the UK has acceded through binding treaties.
[47] This is a strong duty, and courts must, if a compatible interpretation is possible, use it because the Act presumes Parliament cannot have intended to violate international human rights law.
[49] If a compatible interpretation is impossible, a court must under section 4 issue a 'declaration of incompatibility', a (rare) notice to Parliament that the law does not match the Convention and should be changed.
The judge refused because Elizabeth was classified as male at her birth, and the House of Lords held that, despite being 'profoundly conscious of the humanitarian considerations underlying Mrs Bellinger's claim', they could not interpret the statute compatibly (to give the word 'woman' a non-biological meaning), and so they instead issued a declaration of incompatibility.
Section 6 requires all public bodies to act compatibly with the Convention, and this includes courts in developing common law and equity.
Judicial review applications are more limited than other forms of legal claims, particularly those in contract, tort, unjust enrichment or criminal law, although these may be available against public bodies as well.
The House of Lords held that, because they had no remedy in 'private law' by itself, and there was merely a 'legitimate expectation' that the prison's statutory obligations would be fulfilled, only a claim for judicial review could be brought, and the three month time limit had expired.
[59] In R (National Federation of Self-Employed and Small Businesses Ltd) v Inland Revenue Commissioners a taxpayer group (the NFSE) claimed that the Revenue should collect tax from 6000 casual Fleet Street newspaper workers, after they had decided to end a practice of tax evasion over many years by collecting for a previous two years and not investigate earlier infringements.
[60] It was also held that a theatre preservation group had no standing to review a minister's decision refusing to designate a site as an historic monument.
[64] Occasionally, the government has attempted to exclude judicial review through putting an ouster clause in an Act, providing that a public body's decisions should not be 'called into question'.
This clearly includes any government department, minister, council, or entity set up under a statute to fulfil public functions.
In R (Datafin plc) v Panel on Take-overs and Mergers the Court of Appeal held that the Takeover Panel, a private association organised by companies and financial institutions in the City of London to enforce standards in takeover bids, was subject to judicial review because it exercised 'immense power de facto by devising, promulgating, amending and interpreting the City Code' with 'sanctions are no less effective because they are applied indirectly and lack a legally enforceable base'.
[72] In contract, tort or unjust enrichment claims against public bodies, the courts may order standard remedies of compensation for loss, restitution of gains, or an award of specific performance.
