Judicial Review (part two)


A wide range of decisions can be made subject to Judicial Review. Often, these involve decisions as to how money should be spent or how individuals should be treated. Common claims include decisions by the Home Office to make people subject to deportation orders or decisions of local authorities as to how to allocate their funds. There is a very broad range of decisions which can be Judicially reviewed and they can touch on many areas of everyday life.

Public body

Public bodies may be thought of as bodies that deliver a public service. They may include government ministers, local authorities, chief police constables, prison governors, NHS Trusts, regulatory bodies such as the Office for Standards in Education (Ofsted), and courts and tribunals themselves. Public bodies ‘exercise their public functions’ when they carry out the work they were created for. So when a local authority decides a planning application, it is exercising a public function. But when it employs a member of staff, or enters into a contract with a company to clean its offices, it is acting like any private individual or company, and its actions are not governed by public law.

Whether the client has standing

Section 31 (3) of the Senior Courts Act 1981 states as follows: No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

This has come to be called ‘standing’. Clients need to demonstrate a sufficient interest in the case in order to be a party. A recent decision in Good Law Project v Runnymede sets out a detailed account of recent cases on standing is worth reading in full: (GLP -v- Runnymede judgment (judiciary.uk))

Time limit

Most judicial review cases must be brought before the court promptly, and in any event within three months of the decision or action being challenged. The key word is ‘promptly’ – in certain cases three months may not be “prompt” enough. It is best to view three months as a longstop rather than as a deadline to aim for. These time limits mean applications should be made as soon as possible once it is clear that the case is suitable for judicial review. The following are not usually accepted as excuses for late applications:

  • ignorance of the law even if you have been badly advised; or
  • delay in seeking proper advice;
  • -the fact that the public body’s decision may itself have been delayed; or
  • any agreement by the public body to give you extra time to bring a claim for judicial review.

Common basis for arguing a decision is unlawful

  • Illegality
  • Irrationality
  • Procedural impropriety

Illegality and irrationality are referred to as the substantive grounds of review. This is because they focus on the substance of the decision under review.

Procedural impropriety focused instead on the procedure followed in arriving at the decision under review.

An action is illegal or ultra vires if it is beyond the powers of the public body in question either because the powers claimed do not exist, or because they are exceeded or abused in the same way.

When determining the status of decisions of public bodies, administrative law once distinguished between unlawfulness ‘on the face of the record’ which rendered a decision void, and unlawfulness within the exercise of powers, which rendered a decision voidable. That distinction was swept away by the decision of the House of Lords in Anisminic v Foreign Compensation Commission [1969] 2 AC 147. At p.171, Lord Reid stated:

“It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word ‘jurisdiction’ has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors, it is as much entitled to decide that question wrongly as it is to decide it rightly“.

Lord Dyson JSC in R (Lumba) v Secretary of State for the Home Department (JUSTICE intervening) [2012] 1 AC 245, [66] summarised the effect of Anisminic in the following terms:

“A purported lawful authority to detain may be impugned either because the defendant acted in excess of jurisdiction (in the narrow sense of jurisdiction) or because such jurisdiction was wrongly exercised. Anisminic establishes that both species of error render an executive act ultra vires, unlawful and a nullity. In the present context, there is in principle no difference between (i) a detention which is unlawful because there is no power to detain and (ii) a detention which is unlawful because the decision to detain, although authorised by state, was made in breach of a rule of public law. For example, if the decision to detain is unreasonable in the Wednesbury sense, it is unlawful and a nullity. The importance of Anisminic is that it established that there was a single category of errors of law, all of which rendered a decision ultra vires.”

The result is that, as a matter of public law, a decision of a public body may be void not simply because the body exceeded the letter of its powers, but also if the decision was taken for an improper purpose, or was substantively irrational (in the Wednesbury sense), or because the decision was reached taking into account irrelevant considerations or failing to take into account relevant considerations, or because the process by which the decision was arrived at was unfair.

Wednesbury Unreasonable:

The term denotes behaviour on the part of a public authority that is particularly perverse or absurd.

‘To sum it up, the levels of public expenditure and the incidence and distribution of taxation are matters for Parliament, and, within Parliament, especially for the House of Commons . . If a statute, as in this case, requires the House of Commons to approve a minister’s decision before he can lawfully enforce it, and if the action proposed complies with the terms of the statute . . it is not for the judges to say that the action has such unreasonable consequences that the guidance upon which the action is based and of which the House of Commons had notice was perverse and must be set aside. For that is a question of policy for the minister and the Commons, unless there has been bad faith or misconduct by the minister. Where Parliament has legislated that the action to be taken by the Secretary of State must, before it is taken, be approved by the House of Commons, it is no part of the judges’ role to declare that the action proposed is unfair, unless it constitutes an abuse of power in the sense which I have explained.


The Senior Courts Act 1981 provide for a number of remedies which can follow from a successful Judicial Review Claim. These are:

 A quashing order -This is an order which overturns or undoes the decision being challenged, so that it has no legal effect. This is the most common outcome of successful judicial reviews.

A prohibiting order – This stops a public body from taking an unlawful decision or action that it has not yet taken.

A mandatory order – The court can direct a public body to take an active step, e.g. to take a new decision within a specific period of time. This type of order is comparatively rare.

A declaration – This is an order stating clearly and concisely what the law is, where this is disputed. Often judges prefer not to do this because (they say) the law is adequately set out in their written judgment, so a declaration is not necessary.