Judicial Review Handbook

The Hon Sir Michael Fordham

• Publisher: Hart Publishing
• Year: 2012
• ISBN:
  9781782250296
• Edition: 6
• Topic: Diritto
• Subtopic: Diritto amministrativo

Writing in the sixth edition of this Handbook, author Michael Fordham described his ambition when writing the first edition (and indeed all subsequent editions) of this book as "to read as many judicial review cases as I could and to try to extract, classify and present illustrations and statements of principle". Behind this aim lay the practitioner's overwhelming need to know and understand the case-law. Without it, as Fordham says "much can be achieved in public law through instinct, experience and familiarity with general principles which are broad, flexible and designed to accord with common sense". But with knowledge of the case law comes the vital ability to be able to point to and rely on an authoritative statement of principle and working illustration. Knowing the case-law is crucial: "the challenge is to find it".
This, the sixth edition of the Handbook, continues the tradition established by earlier editions, in rendering the voluminous case-law accessible and knowable. This Handbook remains an indispensable source of reference and a guide to the case-law in judicial review. Established as an essential part of the library of any practitioner engaged in public law cases, the Judicial Review Handbook offers unrivalled coverage of administrative law, including, but not confined to, the work of the Administrative Court and its procedures. Once again completely revised and up-dated, the sixth edition approximates to a restatement of the law of judicial review, organised around 63 legal principles, each supported by a comprehensive presentation of the sources and an unequalled selection of reported case quotations. It also includes essential procedural rules, forms and guidance issued by the Administrative Court. As in the previous edition, both the Civil Procedure Rules and Human Rights Act 1998 feature prominently as major influences on the shaping of the case-law. Their impact, and the plethora of cases which explore their meaning and application, were fully analysed and evaluated in the previous edition, but this time around their importance has grown exponentially and is reflected in even greater attention being given to their respective roles. Attention is also given to another new development - the coming into existence of the Supreme Court. Here Michael Fordham casts an experienced eye over the Court's work in the area of judicial review, and assesses the early signs from a Court that is expected to be one of the key influences in the development of judicial review in the modern era. The author, a leading member of the English public law bar, has been involved in many of the leading judicial review cases in recent years and is the founding editor of the Judicial Review journal. "...an institution for those who practise public law...it has the authority that comes from being compiled by an author of singular distinction". (Lord Woolf, from the Foreword to the Fifth Edition)

A. THE NATURE OF JUDICIAL REVIEW:

keys to understanding what the Court is doing

P1	A constitutional guarantee
P2	Supervisory jurisdiction
P3	Impact
P4	Materiality
P5	Targets
P6	Power sources
P7	Constitutional fundamentals
P8	EU law
P9	The HRA
P10	Cooperation & candour
P11	Precedent & authority
P12	Reviewing primary legislation
P13	Restraint
P14	Balancing
P15	The forbidden method
P16	Hard-edged questions
P17	Evidence & fact
P18	Costs
P19	Making the claim
P20	Interim remedies
P21	Permission
P22	Substantive hearing
P23	Appeal
P24	Remedies
P25	Monetary remedies

<1.1> means “see para 1.1”

P1 A constitutional guarantee. Judicial review is the rule of law in action: a fundamental and inalienable constitutional protection.

1.1 Constitutional supervision of public authorities

1.2 Judicial review and the rule of law

1.3 Judicial review’s constitutional inalienability

1.1 Constitutional supervision of public authorities. Judicial review is a central control mechanism of administrative law (public law), by which the judiciary discharge the constitutional responsibility of protecting against abuses of power by public authorities. It constitutes a safeguard which is essential to the rule of law: promoting the public interest; policing the parameters and duties imposed by Parliament; guiding public authorities and securing that they act lawfully; ensuring that they are accountable to law and not above it; and protecting the rights and interests of those affected by the exercise of public authority power.

1.1.1 Controlling administrative action. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 408E (Lord Diplock: “Judicial review … provides the means by which judicial control of administrative action is exercised”); R (Beeson) v Dorset County Council [2002] EWCA Civ 1812 [2003] UKHRR 353 at [17] (Laws LJ, for the Court of Appeal: “The basis of judicial review rests in the free-standing principle that every action of a public body must be justified by law, and at common law the High Court is the arbiter of all claimed justifications”); HM Government Consultation Paper: Access to Justice With Conditional Fees (March 1998) (“the ability to challenge the acts or omissions of public authorities is a necessary check on the use of the power of the State, and a positive encouragement to maintain high standards in public administration by public bodies”); Sedley [2012] JR 95 at [7] (“executive government exercises public powers which are created or recognised by law and have legal limits that it is the courts’ constitutional task to patrol”).

1.1.2 Restraining abuses. R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696, 751B (Lord Templeman: “judicial review [is] a remedy invented by the judges to restrain the excess or abuse of power”); R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42, 62B (Lord Griffiths: “The great growth of administrative law during the latter half of this century has occurred because of the recognition by the judiciary and Parliament alike that it is the function of the High Court to ensure that executive action is exercised responsibly and as Parliament intended”).

1.1.3 Securing obedience to law. Land Securities Plc v Fladgate Fielder [2009] EWCA Civ 1402 [2010] Ch 467 at [70] (Etherton LJ: “There is a public interest in bringing judicial scrutiny and remedies to bear on improper acts and decisions of public bodies”), [94] (the “essential nature” of judicial review being “to ensure that a public body complies with the law”); Sheffield City Council v Smart [2002] EWCA Civ 4 [2002] HLR 639 at [20] (judicial review as “the means by which the exercise of power by any public authority is strictly limited to the scope and purposes of the power’s grant, and subjected also to the common law’s insistence on rationality and fairness”, with the HRA as “a condition of the lawful exercise of power by every public authority”); R v Secretary of State for Transport, ex p London Borough of Richmond Upon Thames (No.3) [1995] Env LR 409, 415 (“the purpose of judicial review is to ensure that government is conducted within the law”); Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 1 WLR 521, 526A (“Judicial review was a judicial invention to secure that decisions are made by the executive or by a public body according to law”); <1.2> (judicial review and the rule of law).

1.1.4 Judicial review as a constitutional duty.¹ R v Ministry of Defence, ex p Smith [1996] QB 517, 556D-E (Sir Thomas Bingham MR: “the court [has] the constitutional role and duty of ensuring that the rights of citizens are not abused by the unlawful exercise of executive power” and “must not shrink from its fundamental duty to ‘do right to all manner of people’”); R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53 [2009] 1 AC 287 at [25] (Lord Bingham, describing the Court’s duty under the HRA: “the court cannot abdicate its function of deciding whether as a matter of law the [statutory] scheme, as promulgated and operated, violate[s] the … [Convention] right”); R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513, 567D-568B (Lord Mustill: “The courts interpret the laws, and see that they are obeyed. This requires the courts on occasion to step into the territory which belongs to the executive, to verify not only that the powers asserted accord with the substantive law created by Parliament but also that the manner in which they are exercised conforms with the standards of fairness which Parliament must have intended … To avoid a vacuum in which the citizen would be left without protection against a misuse of executive powers the courts have had no option but to occupy the dead ground … Absent a written constitution much sensitivity is required of the parliamentarian, administrator and judge if the delicate balance of the unwritten rules evolved … is not to be disturbed, and all the recent advances undone”); <7.2.2> (the separation of powers as a constitutional principle).

1.1.5 Importance of judicial review. Roberts v Gwyrfai District Council [1899] 2 Ch 608, 614 (Lindley MR: “I know of no duty of the Court which it is more important to observe, and no power of the Court which it is more important to enforce, than its power of keeping public bodies within their rights”); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 641C-D (Lord Diplock, referring to “progress towards a comprehensive system of administrative law” as “having been the greatest achievement of the English courts in my judicial lifetime”); Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70, 173H (Lord Goff, referring as a legal landmark to the development of “our modern law of judicial review … from its old, ineffectual, origins”); Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349, 378E (Lord Goff, referring as “perhaps the most remarkable” of “radical” judicial developments, “the decisions of this House in the middle of this century which led to the creation of our modern system of administrative law”); Mahon v Air New Zealand Ltd [1984] AC 808, 816G (“The extension of judicial control of the administrative process has provided over the last 30 years the most striking feature of the development of the common law in those countries of whose legal systems it provides the source”); Scott v National Trust for Places of Historic Interest or Natural Beauty [1998] 2 All ER 705, 710j (judicial review as an “increasingly important jurisdiction”; Access to Justice (1996) p.250 (“the growth of public law and, in particular, judicial review has been one of the most significant developments in the English legal system in the last 25 years”).

1.1.6 ‘Abuse models’: reserving the ability to deal with abuses.

(A) ABUSE MODELS AND REVIEWABILITY. <P34> (reviewability); Leech v Deputy Governor of Parkhurst Prison [1988] AC 533, 582E (Lord Oliver: “One has to postulate, for the question to be a live one at all, that there has been an error of law or an abuse or excess of power”); R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815, 827C (“what is to happen if the panel goes off the rails? Suppose, perish the thought, that it were to use its powers in a way which was manifestly unfair. What then?”), 845H (posing an “obvious example”: “if it reached a decision in flagrant breach of the rules of natural justice”); R v Ethical Committee of St Mary’s Hospital (Manchester), ex p H [1988] 1 FLR 512, 518H-519A (positing the committee as advising that the IVF unit should in principle refuse treatment to people of a particular race or religion); R v Secretary of State for the Home Department, ex p Herbage (No 2) [1987] QB 1077, 1095F-G (were there “cruel and unusual punishment”, “it would be an affront to common sense that the court should not be able to afford [a remedy]”); R v Inland Revenue Commissioners, ex p Mead [1993] 1 All ER 772, 782e (“Absurd examples, such as a policy only to prosecute black men or the political opponents of an outgoing government, which are virtually unthinkable, do however point to the theoretical existence of the jurisdiction to review”); R v Criminal Injuries Compensation Board, ex p P [1995] 1 WLR 845, 863D-E (using “the fanciful but archetypal example of perversity, [namely] if the scheme had been revised in 1979 to exclude only redheaded victims”); R v Secretary of State for the Home Department, ex p Ruddock [1987] 1 WLR 1482, 1491G-H (“To take an extreme and one hopes unlikely example, suppose an application were put before the court alleging a warrant was improperly issued by a Secretary of State against a political opponent … to see if anything discreditable could be learnt …”).

(B) ABUSE MODELS AND STATUTORY OUSTERS. <P28> (ouster); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 170B-E (Lord Reid, positing the case of a statutory ouster and an order which is “a forgery”); Ex p Waldron [1986] QB 824, 846G-H (referring to the “serious inadequacy in the powers of the courts to protect the citizen from an actual or potential loss of liberty arising out of a serious error of law”).

(C) ABUSE MODELS AND STANDING. R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 641C (Lord Diplock’s objective of avoiding a “grave lacuna” was based on the prospect of “flagrant and serious breaches of the law by persons and authorities exercising governmental functions which are continuing unchecked”).

1.1.7 Judicial review in the Supreme Court. Lord Phillips PSC Gresham Lecture 2010: The Challenges of the Supreme Court [2010] JR 285, 293 (describing “judicial review cases … [as] the most important part of the diet of the Supreme Court”). See the case surveys² on judicial review and public law in the Supreme Court.

1.2 Judicial review and the rule of law. Judicial review is the Courts’ way of enforcing the rule of law: ensuring that public authorities’ functions are undertaken according to law and that they are accountable to law. Ensuring, in other words, that public bodies are not “above the law”.

1.2.1 The rule of law as a constitutional principle. <7.2.1>.

1.2.2 Judicial review: the rule of law in action. AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at [142] (Lord Reed: “Judicial review under the common law is based upon an understanding of the respective constitutional responsibilities of public authorities and the courts. The constitutional function of the courts in the field of public law is to ensure, so far as they can, that public authorities respect the rule of law. The courts therefore have the responsibility of ensuring that the public authority in question does not misuse its powers or exceed their limits”); R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 at [37] (Baroness Hale: “the scope of judicial review is an artefact of the common law whose object is to maintain the rule of law - that is to ensure that, within the bounds of practical possibility, decisions are taken in accordance with the law, and in particular the law which Parliament has enacted, and not otherwise”), [64] (Lord Phillips: “The rule of law requires that the laws enacted by Parliament, together with the principles of the common law that subsist with those laws, are enforced by a judiciary that is independent of the legislature and the executive”), [122] (Lord Dyson: “there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review”); R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33 at [38] (Lord Hope: “The rule of law requires that the Secretary of State must fulfil the duty that has been laid on her by section 3(2) of the 1971 Act. In the event of a challenge it is for the courts to say whether or not she has done so”); R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 [2003] 2 AC 295 at [73] (“The principles of judicial review give effect to the rule of law”); Bobb v Manning [2006] UKPC 22 [2006] 4 LRC 735 at [14] (“The rule of law requires that those exercising public power should do so lawfully”); Toussaint v Attorney General of Saint Vincent & the Grenadines [2007] UKPC 48 [2007] 1 WLR 2825 at [29] (judicial review as part of the rule of law); R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 [2009] 1 AC 756 at [41] (referring to “the rule of law, to which the principles of judicial review give effect”); R (Lambeth London Borough Council) v Lambeth Independent Appeals Panel [2012] EWHC 943 (Admin) at [66] (John Howell QC: “The primary function of judicial review is to uphold the rule of law by securing that only those things that public authorities have power to do have any legal effect”); R v HM the Queen in Council, ex p Vijayatunga [1988] QB 322, 343E-F (“Judicial review is the exercise of the court’s inherent power at common law to determine whether action is lawful or not; in a word to uphold the rule of law”); R v Secretary of State for Trade and Industry, ex p Greenpeace Ltd [1998] Env LR 415, 424 (judicial review Court is “primarily concerned with the maintenance of the rule of law by the imposition of objective legal standards upon the conduct of public bodies”); R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42, 62B (“the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law”); Attorney General’s Reference No.2 of 2001 [2003] UKHL 68 [2004] 2 AC 72 at [30] (Court’s “purpose is to uphold, vindicate and apply the law”), [35] (“Courts exist to uphold the law”); Begum v Tower Hamlets London Borough Council [2003] UKHL 5 [2003] 2 AC 430 at [57] (Art 6 “founded on the rule of law … that there should be the possibility of adequate judicial review”); R (C) v Secretary of State for Justice [2008] EWCA Civ 882 [2009] QB 657 at [55] (rule of law supporting quashing...

Table of contents

• Cover
• Title
• Copyright
• Foreword
• Preface
• Contents
• A. THE NATURE OF JUDICIAL REVIEW
• B. PARAMETERS OF JUDICIAL REVIEW
• C. GROUNDS FOR JUDICIAL REVIEW
• D. MATERIALS
• Table of Cases
• Table of Legislation
• Table of Statutory Instruments
• Index