Judicial review is a part of UK constitutional law that enables people to challenge the exercise of power, usually by a public body.
The English constitutional theory, as expounded by A. V. Dicey, does not recognise a separate system of administrative courts that would review the decisions of public bodies, as in France, Germany and many other European countries.
At the same time, the doctrine of Parliamentary sovereignty does not allow for the judicial review of primary legislation (primarily Acts of Parliament).
The constitutional theory of judicial review has long been dominated by the doctrine of ultra vires, under which a decision of a public authority can only be set aside if it exceeds the powers granted to it by Parliament.
However, the doctrine has been widely interpreted to include errors of law[1] and of fact and the courts have also declared the decisions taken under the royal prerogative to be amenable to judicial review.
[2] Therefore, it seems that today the constitutional position of judicial review is dictated by the need to prevent the abuse of power by the executive as well as to protect individual rights.
[5] Delay or lack of sufficient interest can also lead to the court refusing to grant a remedy after it had considered the case on the merits.[4]: s.
[8] In these examples R is used literally (an abbreviation for the Latin regina or rex, but pronounced "Crown"), Claimant X is substituted for the name of the claimant (e.g. Helena Jones or Jones or Acme Widgets Ltd) and Defendant Y is substituted for the public body whose decision is being challenged (e.g. West Sussex County Council or Environment Agency) or in certain cases, the person in charge of that body (e.g. Secretary of State for the Home Department or Chief Constable of West Yorkshire Police).
[9] This is a purely cosmetic formality that arises from a historical procedure where His Majesty's Judiciary acted on his behalf in a supervisory capacity.
Technically a judicial review is brought by the Crown, on the application of the claimant, to ensure that powers are being properly exercised.
In R v Panel for Takeovers and Mergers, ex parte Datafin [1987] 1 QB 815, the Court of Appeal held that a privately established panel was amenable to judicial review because it in fact operated as an integral part of a governmental framework for regulating mergers and takeovers, while those affected had no choice but to submit to its jurisdiction.
Sometimes the legislator may want to exclude the powers of the court to review administrative decisions, making them final, binding and not appealable.
[13] When the Government wanted to introduce a new Asylum and Immigration Act containing such clear words, members of the judiciary protested to the extent of saying that they will not accept even such an exclusion.
[15] The House of Lords held in O'Reilly v Mackman[16] that where public law rights were at stake, the claimants could only proceed by way of judicial review.
If an issue is a mix of private law rights, such as the right to get paid under a contract, and public law issues of the competence of the public authority to take the impugned decision, the courts are also inclined to allow the claimant to proceed using ordinary civil procedure, at least where it can be demonstrated that the public interest of protecting authorities against frivolous or late claims has not been breached (Roy v Kensington and Chelsea and Westminster Family Practitioner Committee (1992), Trustees of the Dennis Rye Pension Fund v Sheffield City Council (1997)).
In Lord Diplock's words, this ground means that the decision maker "must understand correctly the law that regulates his decision-making power and must give effect to it".
[18] An example of when this happened was in Allingham v Minister of Agriculture and Fisheries where a notice preventing farmers from growing sugar beet was unlawful because the power to put up the sign was delegated by the original committee.
The court will quash a decision where the authority has misunderstood a legal term or incorrectly evaluated a fact that is essential for deciding whether or not it has certain powers.
For example, in R v Hillingdon Borough Council, ex parte Pulhofer,[20] the local authority had to provide homeless persons with accommodation.
In R v Somerset County Council, ex parte Fewings the local authority decided to ban stag hunting on the grounds of it being immoral.
In Padfield v Ministry of Agriculture, Fisheries and Food, the minister refused to mount an inquiry into a certain matter because he was afraid of bad publicity.
An authority will be acting unreasonably where it refuses to hear applications or makes certain decisions without taking individual circumstances into account by reference to a certain policy.
[22] Under Lord Diplock's classification, a decision is irrational 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 could have arrived at it."
Proportionality exists as a ground for setting aside administrative decisions in most continental legal systems and is recognised in England in cases where issues of EU law and human rights are involved.
An Act of Parliament may subject the making of a certain decision to a procedure, such as the holding of a public hearing or inquiry,[24] or a consultation with an external adviser.
If the applicant has certain legitimate expectations, for example to have his licence renewed, the rules of natural justice may also require that they are given an oral hearing and that their request may not be rejected without giving reasons.
[32] Unlike many other legal systems, English administrative law does not recognise a general duty to give reasons for a decision of a public authority.
Examples of where a mandatory order might be appropriate include: compelling an authority to assess a disabled person's needs, to approve building plans, or to improve conditions of imprisonment.
A declaration is a judgment by the Administrative Court which clarifies the respective rights and obligations of the parties to the proceedings, without actually making any order.
Where there is an imminent risk of damage or loss, and other remedies would not be sufficient, the court may grant an interim injunction to protect the position of the parties before going to a full hearing.