Interfere with a decision to ban active homosexuals from serving in the

army has been condemned by the European Court of Human Rights

(below p. 386).

By virtue of s. 10 of the Crown Proceedings Act 1947, a member of

the armed forces could not sue in respect of injuries which the Secretary

of State certified were attributable to service for pension purposes,

whether or not the victim qualified for a pension. This covered injuries

on active service, injuries on military premises and injuries caused by

other military personnel. This clear injustice was remedied by the

Crown Proceedings (Armed Forces) Act 1987 but without retrospective

force and giving the Secretary of state power to restore the immunity in

war time. This left a large area of immunity in respect of injuries

incurred before 1987, a period during which health and safety stan-

dards were not especially stringent. However, in Matthews v. Ministry

of Defence (2002), it was held that s. 10 violated the plaintiff ’s right to a

fair trial under Art. 6 of the European Convention on Human Rights.

There was no strong policy reason in favour of the immunity so that

the interference failed the proportionality test and the court made a

declaration of incompatibility. This was a procedural immunity in that

it depended on the Secretary of State’s certificate thereby engaging

Art. 6. It is less clear whether Art. 6 applies to a substantive immunity,

where a public body is made automatically exempt from liability. (see

Osman v. UK (1999)).

Summary

15.1 The police are organised upon a local basis. There is no national police

force but about 49 local or regional forces, each one in theory independent.

In practice they share resources and work closely together, confined by

central government controls. Police powers derive from the general law and

are vested in each individual constable. Managerial and financial controls

358 General Principles of Constitutional and Administrative Law

are divided between individual chief constables, local authorities and the

Home Office. Central government control over the police generally has been

increased by recent legislation.

15.2 There is no formal method of rendering the police subject to political or demo-

cratic control or accountability. It is controversial whether this is desirable.

There are disputes about whether accountability should be national or local

and whether there should be democratic accountability at all. As in every

area of government, limited resources must be balanced and priorities

established.

15.3 There is provision for public consultation about policing matters, but this

is left to the police themselves to arrange and detailed machinery is not

prescribed.

15.4 The courts exercise a limited degree of control over police decisions. This is

based upon the law of judicial review but in some cases a higher level of civil

liability is imposed, reflecting Dicey’s notion of the rule of law. On the other

hand the police have a degree of immunity in the law of negligence.

15.5 There is an independent Police Complaints Authority which monitors the

investigation of complaints against the police and in serious cases super-

vises the investigation. The procedure is not public and open, and the actual

investigation is carried out by the police themselves.

15.6 The armed forces are servants of the Crown and are under the direct control

of the elected government. Historically, control over the armed forces was

based largely on the Royal Prerogative particularly in the case of the navy.

The Bill of Rights 1688 placed the army under parliamentary control and in

modern times all the armed services are regulated by statute as far as

organisation and discipline is concerned but not as regards deployment.

There is a special system of military law with its own courts, but it is subject

to control by the ordinary courts. The rights of members of the armed forces

have been strenghened by the Human Rights Act 1998. Members of the

armed forces have no special legal immunites but the extent to which the

courts will interfere depends on the sensitivity of the particular issue and in

particular the extent and urgency of the need to deploy force.

Further Reading

Lustgarten, The Governance of the Police.

Clayton and Tomlinson, Civil Actions Against the Police.

Jowell and Oliver, The Changing Constitution, chapter 11.

Exercises

15.1 Explain the legal position of a police constable as regards control over his or

her activities.

15.2 To what extent is policing in Britain a local responsibilty? Would a national

police force desirable?

359

The Police and the Armed Forces

15.3 Do you think that the police are adequately protected against political

interference?

15.4 To what extent are local police forces subject to democratic control?

15.5 You believe that you are being subject to unreasonable harassment by the

police because

(i) The public house of which you are the manager has been selected for

police surveillance every weekend.

(ii) Your son, who is black, claims that a policeman beat him up and

smashed his portable radio because he refused to step into the gutter to

allow the policeman to pass by.

(iii) Your wife, who is a civilian caterer at the local police station, is subject

to verbal sexual harassment at her place of work.

What remedies are available to you in the courts and elsewhere?

15.6 The Chief Constable of Denton announces that his force can no longer patrol

wealthy residential areas after dark because of a shortage of funds, and that

residents should employ private security guards. This policy is contrary to

central government advice. Your client, who lives in a wealthy residential

area tells you that her house is regularly burgled and that she wishes to

compel the local police force to change this policy.

(i) Advise her.

(ii) Advise the local police authority what steps, if any, they can take to

change this policy.

(iii) Advice the Home Secretary whether he can compel a change of policy.

15.7 To what extent are members of the armed forces subject to a special legal

regime?

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Part IV

The Citizen and the State

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16 Judicial Review of the

Executive: The Grounds

of Review

16.1 Introduction: Constitutional Basis of Judicial Review

Judicial review, sometimes called the supervisory jurisdiction, is the

High Court’s power to police the legality of decisions made by public

bodies. A right to binding judicial review is required under Art. 6

of the European Convention on Human Rights (the right to a fair

trial, see Bentham v. Netherlands (1985)), although the level of review

depends on the context (Zumbotel v. Austria (1993)). An accommoda-

tion must be struck between competing concerns. The rule of law

requires at least that the government justify its powers by reference

to statute or the royal prerogative and may also require the govern-

ment to conform to basic procedural standards of justice and equality.

On the other hand, parliamentary supremacy prevents the courts from

overriding a statute. Both the separation of powers and the European

Convention on Human Rights requires the courts to check misuse of

power by the executive but also to avoid trespassing into the political

territory of the government. At least in cases where a decision maker

is politically accountable to the electorate, the courts claim not to be

concerned with the ‘merits’ of government action, that is whether it

is good or bad, but only whether governmental decisions fall within

their authorising legislation and meet legal standards of fairness and

‘reasonableness’ (see e.g. R. (Alconbury) v. Secretary of State (2001)

particularly Lord Hoffmann’s speech, R. v. Somerset CC ex parte Few-

ings (1995) per Laws J). However, we shall see that these legal stan-

dards shade into questions of merits and that there is considerable

room for debate as to the proper limits of the courts’ powers.

The separation of powers also requires the court to respect bodies

of equal status to itself. We saw an example of this in the context of

parliamentary privilege. For example the High Court cannot review

another superior court decision (Re Racal Communications (1981)).

The High Court can review all executive bodies including ministers

and local government, police and military decisions, inferior courts

including magistrates courts, the county court and the many hundreds

of statutory tribunals and non-departmental public bodies. It is not

clear how far judicial review extends to powerful private bodies such as

363

364 General Principles of Constitutional and Administrative Law

educational institutions, sporting and professional associations which

make decisions affecting the individual and sometimes act on behalf of

the government (see Chapter 17).

Judicial review covers a wide range of matters. In the CCSU case it

was suggested that some matters are non-justiciable in the sense of

inappropriate for judicial review. This might be because of their politi-

cal sensitivity or because the courts lack relevant powers or expertise

to deal with them. Examples include the dissolution of Parliament, the

appointment of ministers, the granting of honours and the making of

a treaty and other matters concerning relationships with overseas

governments. However, Allan (2000, Ch. 6) argues that, as a blanket

principle, this violates the rule of law. He suggests that any exclusion

from review should have reasoned justification and that the matter

should depend on the circumstances of the particular case. The extent

of the decision-maker’s discretion, the political nature of the issues,

alternative remedies, the court’s expertise and effectiveness are factors

which must be set against the gravity of the interference with individual

rights and the public interest in protecting the rule of law.

Thus, while the principles of judicial review are of general applica-

tion, the way they are applied in the sense of the intensity of review, the

range of grounds available or the selection of remedies, varies with

the context. We will meet examples throughout this chapter and the

next. In particular the courts apply strict standards to judicial bodies,

such as tribunals which determine legal rights (e.g. R. v. Army Board

ex parte Anderson (1992)) but are less willing to interfere with a deci-

sion which involves the discretionary allocation of scarce resources

for example whether or not to treat an NHS patient (see R. v. Cam-

bridge Health Authority ex parte B (1995)). The courts also respect the

sphere of accountability of the executive to Parliament although some

judges are more deferential to this than others (see the disagreement in

R. v. Secretary of State for the Home Department ex parte Fire Brigades

Union (1995)). As early as 1911 one judge at least was expressing doubts

about ministerial responsibility (see Dyson v. A-G (1911)).

Similarly the court may defer to specialist expertise. For example in

Clarke v. University of Lincolnshire and Humberside (2000), it was held

that matters of academic judgement in a university such as the award

of degree classifications or prizes were not normally reviewable by the

courts but other aspects of the relationship between the university and

the student were justiciable, in particular allegation of breaches of the

university regulations. The courts usually defer to a minister’s opinion

as to what national security requires but will ensure that the matter

is genuinely one of national security (CCSU v. Minister for the Civil

365

Judicial Review of the Executive: The Grounds of Review

Service (1985)). Other cases where the courts are cautious include elec-

toral matters (R. v. Boundary Commission for England ex parte Foot

(1993), child care (R. v. Harrow LBC (1990)) and voluntary regulatory

bodies (R. v. Panel on Takeovers and Mergers ex parte Datafin plc

(1987)), although there is usually no protection for unfair procedures.

The legal basis of judicial review is disputed. One perspective bases

judicial review upon broad common law notions that powerful bodies

must act in accordance with basic values of fairness and justice, respect

for rights and rationality (Dr Bonham’s Case (1610); Cooper v. Wands-

worth Board of Works (1863)). During the late nineteenth century,

however, the democratic basis of both central and local government

had led to a shift in the justification for judicial review. The assump-

tion was that, because most government powers are created by statute,

the courts’ role should be confined to ensuring that powers were

exercised as Parliament intended. The ‘ultra vires’ doctrine (‘beyond

powers’) became widely accepted as the constitutional basis of judicial

review. For a time from the First World War until the early 1960s

the ultra vires doctrine was used to justify a low level of judicial review

according to which, a government decision falling within the lan-

guage of the statute that created the power could not be challenged

(see Local Government Board v. Arlidge (1915); Liversidge v. Anderson

(1942); Franklin v. Minister of Town and Country Planning (1948)).

More recently, heralded by Ridge v. Baldwin (1964) (below), the

courts have taken a more active role in controlling government. This

was recognised by Lord Mustill in the Fire Brigades case (above) where

he explained that a perception that parliament accountability has failed,

leaving the citizen without remedy has stimulated the courts to fill the

‘dead ground’. However, in the same passage Lord Mustill warned

of the danger of violating the separation of powers. The courts have

developed broad grounds of review including unfairness, unreason-

ableness and error. They have also extended judicial review to the royal

prerogative and to bodies which do not derive their powers from statute

(e.g. R. v. Panel on Takeovers and Mergers ex parte Datafin plc (1987))

and have begun to invoke the common law as underpinning judicial

review (e.g. R. v. Secretary of State ex parte Piersen [1997] 3 WLR 492,

518). These developments have made the ultra vires doctrine question-

able as the basis of judicial review.

Some writers have therefore suggested that the judicial review

principles are free-standing common law principles even if they are

displaced by clear words in a statute (see Allan, 2000, p. 207; Craig,

1998; Oliver, 1987). In Council of Civil Service Unions v. Minister for

the Civil Service (1983), Lord Diplock famously classified the grounds

366 General Principles of Constitutional and Administrative Law

of judicial review independently of ultra vires under three broad but

not exhaustive principles, these being ‘illegality, irrationality and pro-

cedural impropriety’. On the other hand there are dicta that the basis

of judicial review remains the ultra vires doctrine at least in relation to

statutory powers (Boddington v. British Transport Police [1998] 2 WLR

639 at 650, 655, 662; Credit Suisse v. Allerdale DC [1996] 2 All ER 129

at 167; Page v. Hull University Visitor [1993] 1 All ER 97 at 107;

O’Reilly v. Mackman [1982] 3 All ER 1124 at 1129).

The two approaches could be reconciled by claiming that it is

Parliament’s intention that principles of judicial review be implied into

the exercise of statutory powers because Parliament can be assumed to

respect the rule of law (see Forsythe, 1996; Elliott, 1999a, b; cf. Craig,

2001). However, this could be regarded as a fiction and indeed as

undermining the integrity of the rule of law. It turns the ultra vires

doctrine into an empty vessel for whatever happens to be the pre-

vailing orthodoxy, whether in terms of human rights, as is currently

the case or the ‘principles of good administration’ which flourished in

the 1980s (see R. v. Lancashire County Council ex parte Huddlestone

[1986] 2 All ER 941 at 945; R. v. Monopolies and Mergers Commission

ex parte Argyle Group plc [1986] 2 All ER 257 at 266). The ultra vires

doctrine is certainly an important aspect of judicial review but not the

whole story. In particular it cannot easily rationalise judicial review of

royal prerogative and other non-statutory powers.

An important function of judicial review is the protection of indi-

vidual rights. On the other hand judicial review goes beyond the protec-

tion of legal rights as such. For example a member of the public can

sometimes seek judicial review even if he or she has no rights at stake

and judicial review might be invoked between government agencies

such as central government and a local authority or between the UK

government and the devolved governments. Moreover, even where the

rights of the individual are at stake, the court has a discretion whether

or not to intervene and might in principle refuse to give the citizen a

remedy for reasons of the public interest (see Chapter 17).

16.2 Appeal and Review

Judicial review must not be confused with an appeal. An appeal is a

procedure which exists only under a particular statute or, in the case of

a voluntary body, by agreement. An appeal allows the appellate body

to decide the whole matter again, unless the particular statute or

agreement limits the grounds of appeal (e.g. Tribunals and Inquiries

367

Judicial Review of the Executive: The Grounds of Review

Act 1992 s. 11, questions of law). An appeal therefore may involve a

thorough reconsideration of the whole decision whereas judicial review

is concerned only with ensuring that legal standards are complied with.

Depending on the particular statute, an appellate body might be a

court, tribunal, minister or indeed anyone. A claim for judicial review

is possible only in the High Court.

An appellate body can usually substitute its decision for the first

instance decision, although in some cases its powers are limited to

sending the matter back to be decided again by the lower body.

In judicial review proceedings the court cannot make a decision on the

merits but must send the matter back to the decision maker with

instructions as to its legal duties.

Unlike a right appeal of appeal which can be raised only in the body

specified, the invalidity of government action can be raised not only in

the administrative court but, by way of ‘collateral challenge’ in any

proceedings where the rights of a citizen are affected by the validity of

government action (e.g. Boddington v. British Transport Police (1998),

prosecution for smoking contrary to railway bylaws alleged to be ultra

vires as a defence). This is because an unlawful government decision is

of no effect in law (void/nullity) and can be ignored thus vindicating

the rule of law (Entick v. Carrington (above)). In the case of an appeal

the offending decision is fully valid until the appeal body changes it.

This concept of nullity does not always lead to a just solution. For

example in Credit Suisse v. Allerdale BC (1996) a local authority

successfully relied on the argument that a guarantee which it has given

was ultra vires so as to prevent the guarantee being enforced against it,

and in DPP v. Head (1959) a man charged with having sexual relations

with a patient ‘detained’ under the mental Health Acts was able to

argue that because the patient’s detention order had not been made

according to the required formalities, she was not detained under the

relevant Acts.

Under the Human Rights Act 1998 the question arises whether the

availability of judicial review is a sufficient safeguard to comply with

the right to a fair trial before an independent tribunal under Art. 6 of

the European Convention on Human Rights. There is a problem where

the government decision that is being challenged does not itself pro-

vide for an independent decision maker. For example many decisions

involving the compulsory acquisition of land or planning restrictions

on the use of land are made by ministers who are predisposed in

favour of government policies and lack the independence of a judge.

In R. (Alconbury) v. Secretary of State (2001), the House of Lords,

held that, although such decisions impact on individual rights, the law

368 General Principles of Constitutional and Administrative Law

must recognise that the minister has a political discretion intended to

implement a public goal. On the other hand, where a decision is a direct

adjudication about the existence of a right and where the decision

maker has no discretion, for example a decision by a tax tribunal, it

may be that nothing short of a full right of appeal would satisfy the

right to a fair trial (below p. 430).

16.3 Classification of the Grounds of Review

Unfortunately there is no general agreement as to how to classify the

grounds of review and the text books take different approaches. The

grounds themselves are broad and vague and overlapping a conspic-

uous example of this being Wheeler v. Leicester City Council (below

p. 383). In the following sections I shall organise the grounds of judi-

cial review on the basis of Lord Diplock’s classification in CCSU v.

Minister for the Civil Service (1985) (above) that is, under the three

heads of ‘illegality, irrationality and procedural impropriety’. How-

ever, the Diplock categories tell us little in themselves and do not avoid

overlaps. Indeed the House of Lords has emphasised that the heads of

challenge are not watertight compartments but run together (Bod-

dington v. British Transport Police [1998] 2 All ER 203, 208). It might

be helpful at this point to provide a checklist.

1. ‘Illegality’

. ‘Narrow’ ultra vires or lack of jurisdiction in the sense of straying

beyond the limits defined by the statute.

. Errors of law, and (in certain cases) errors of fact.

. ‘Wide’ ultra vires in the sense of acting for an ulterior purpose,

taking irrelevant factors into account or failing to take relevant

factors into account.

. Fettering discretion.

2. ‘Irrationality’

. ‘Wednesbury’ unreasonableness. This could stand alone or be the

outcome of taking an irrelevant factor into account.

. Proportionality.

3. Procedural impropriety

. Violating important statutory procedures.

. Bias.

. Lack of a fair hearing.

. Failure to give reasons for a decision.

369

Judicial Review of the Executive: The Grounds of Review

16.4 Illegality

Narrow ultra vires

16.4.1

A decision is ultra vires if it is outside the language of the statute.

In the case of courts and judicial tribunals the terminology of ‘lack’

or ‘excess’ of jurisdiction means the same as ultra vires although a dis-

tinction is sometimes made between lacking jurisdiction at the outset

and straying outside jurisdiction by some subsequent defect. In most

cases, however, this distinction does not matter (Aninsminic Ltd v.

Foreign Compensation Commission (1969)) (a possible exception being

personal liability (below p. 406)). An example is A-G v. Fulham Cor-

poration (1921). A local authority had power to provide a ‘wash-house’

for local people It interpreted this as authorising the provision of a

laundry service for working people who could leave washing to be

done by staff and delivered to their homes. This was held to be unlaw-

ful in that ‘wash-house’, according to the court, means a place where

a person can do their own washing. More recently in Bromley LBC

v. GLC (1983) the House of Lords held that an obligation to provide

an ‘efficient and economic’ public transport service meant that the

council could not subsidise the London Underground for social pur-

poses. Among other lines of reasoning it was held that ‘economic’

meant that there was an obligation to break-even financially.

These cases raise questions as to the assumptions that the courts

bring to the task of interpreting statutes. For example, if the court

in Bromley had adopted a principle in favour of local democratic

freedom the outcome might have been different. Where the scope of a

statute is unclear, the courts rely on presumptions of interpretation

which protect the rights of the individual. These presumptions are

applied unless overridden by express statutory language and probably

also by necessary implication (see R. v. Secretary of State for the Home

Department ex parte Simms [1999] 3 All ER 400 at 412 per Lord

Hoffmann). One such presumption is that a citizen shall not be taxed or

charged without clear statutory language (e.g. Congreve v. Home Office

(1976): increase in TV licence fee). Another presumption is against

excluding access to the courts (e.g. Anisminic Ltd v. Foreign Compen-

sation Commission (1969); R. v. Lord Chancellor ex parte Witham

(1997): increase in the charge for instituting court proceedings excluded

the poor). There is also a presumption in favour of personal freedom.

In Raymond v. Honey (1993) it was held that prisoners retained their

legal rights except in as far as the governing legislation necessarily

excluded them. A prisoner therefore had a right to write to a solicitor

370 General Principles of Constitutional and Administrative Law

and to the confidentiality of correspondence with his lawyer (see also

Simms (above), Pierson v. Secretary of State (1997), R. v. Secretary of

State for the Home Department ex parte Leech (1993)). These presump-

tions have been strengthened by the Human Rights Act 1998 which

requires government action to conform to the European Convention

on Human Rights unless a statute renders this impossible (see Chapter

18). They have often been criticised on the basis that they might favour

individualistic values at the expense of social welfare (e.g. Fulham and

Bromley (above)).

There is further leeway in the ultra vires doctrine. The courts will

permit an activity that, although not expressly authorised by the

statute, is ‘reasonably incidental’ to something that is expressly author-

ised (e.g. A-G v. Crayford UDC (1962): voluntary household insurance

scheme reasonably incidental to power to manage council housing

because it helped tenants to pay the rent). However, the courts take a

strict approach which impacts particularly on local authority freedom.

For example in Macarthy and Stone v. Richmond LBC (1991) a charge

for giving advice in connection with planning applications was held

not to be incidental to the authority’s planning powers. The giving of

advice was not expressly authorised and was therefore itself an inci-

dental function. The House of Lords took the view that something

cannot be incidental to what is itself incidental. In Hazell v. Hammer-

smith and Fulham BC (1991), it was held that interest swap arrange-

ments made by several local councils to spread the risk of future

changes in interest rates were not incidental to the council’s borrow-

ing powers because they concerned debt management rather than

borrowing as such.

16.4.2 Errors of law

The question whether the court can review decisions on the ground

of legal or factual errors has caused problems. There seems to be a

clash of principle. On the one hand, if the court can intervene merely

because it considers that a decision is wrong it would be trespassing

into the merits of the case (see R. v. Nat Bell Liquors (1922)). On the

other hand the rule of law surely calls for a remedy if a decision maker

misunderstands the law. After many years of groping towards an

accommodation the courts have adopted a compromise. The outcome

appears to be that almost all errors of law and some errors of fact can

be challenged. This would conform to the European Convention on

Human Rights, Art. 6 which requires a high level of review in relation

to matters of law (Bryan v. UK (1995)).

371

Judicial Review of the Executive: The Grounds of Review

A rationale which was popular in the nineteenth century is the

doctrine of the ‘jurisdictional’ or ‘collateral’ or ‘preliminary’ question.

According to this doctrine, if a mistake relates to a state of affairs

which the court thinks that Parliament intended should exist object-

ively before the official has power to make the decision, then the court

will interfere on the ground that the authority has acted ultra vires if the

court thinks that the required state of affairs does not exist. For

example in White and Collins v. Minister of Health (1939), the Secretary

of State had power to acquire land ‘other than a garden or parkland’.

It was held that the court could interfere if it thought that the minister

had wrongly decided whether the plaintiff’s land was parkland. This

can be justified on the rule-of-law ground that a minister should not be

allowed to expand his own powers (see Farwell J in R. v. Shoreditch

Assessment Committee [1910] 2 KB 859 at 880). However, there seems

to be no logical way of deciding which of many issues that a decision

maker has to decide are preliminary in this sense.

A second device which flourished during the 1960s but has largely

been superseded is the doctrine of ‘error of law on the face of the

record’ or patent error (R. v. Northumberland Compensation Appeal

Tribunal ex parte Shaw (1952)). This allows the court to quash a

decision if a mistake of law can be discovered by reading the written

record of the decision without using other evidence. This could not be

squeezed into the ultra vires doctrine. Thus decisions tainted by patent

error are valid unless and until formally quashed by the court. This

provides a practical compromise by allowing obvious mistakes to be

rectified without reopening the whole matter. Many bodies were

required to give written reasons for their decisions as part of the record

(now Tribunals and Inquiries Act 1992 s. 10), and the courts were

liberal in what material they regarded as part of the record.

As a result of the speeches of the House of Lords in Anisminic Ltd v.

Foreign Compensation Commission [1969] 2 AC 147, notably that of

Lord Reid, the older doctrines have been made largely redundant

in relation to errors of law. Anisminic appears to have made all errors of

law reviewable at least in principle. In Anisminic the FCC had wrongly

interpreted the criteria for awarding compensation to the victims of

an Arab–Israeli conflict. The governing statute purported to prevent

challenge in the courts to a ‘determination’ of the FCC. However, the

statute did not protect an act that was not in law a ‘determination’ at

all, that is, where the commission had acted outside its jurisdiction so

that its decision was a complete nullity. A majority of the House held

the FCC’s mistake meant that a factor was taken into account that

Parliament did not intend which therefore took the FCC outside its

372 General Principles of Constitutional and Administrative Law

jurisdiction. Anisminic has been widely taken as deciding that any

mistake of law makes a decision ultra vires thereby giving narrow ultra

vires a powerful extension. It is not clear that their Lordships intended

to go so far (see South East Asia Fire Brick Sdn BHD v. Non-Metallic

Mineral Products Manufacturing Employees Union (1981)). However,

the wide reading of Anisminic has been confirmed, albeit obiter, in Re

Racal (1981), O’Reilly v. Mackman (1983), and Page v. Hull University

Visitor (1993)).

The courts have to some extent drawn back. They have used two

main devices.

. In Re Racal Communications (1981) Lord Diplock suggested that

Anisminic did not apply to decisions of courts which could be

trusted to decide questions of law for themselves although this was

later denied (R. v. Manchester Coroner ex parte Tal (1984)). In Page

v. Hull University Visitor (1993) it was held that the specialised rules

of universities could be conclusively interpreted by the University

Visitor.

. They have manipulated the difficult distinction between questions

of law and questions of fact. Anisminic has not been applied to mis-

takes of fact which arguably should not be reviewable because the

primary decision maker is usually in a better position than the court

to discover the facts. It is not always easy to distinguish between

questions of law, questions of fact and questions of opinion. A ques-

tion of law basically involves the meaning and usually the application

of a rule. A question of fact involves the existence of some state of

affairs or event in the world outside the law and depends on evidence.

A question of opinion is where on the same evidence more than

one view can reasonably be taken (Luke (Lord) v. Minister of Hous-

ing and Local Government [1968] 1 QB 172). It has been held that the

courts should not interfere where the question involves a broad

subjective or political concept or a term in everyday use unless the

decision-maker’s interpretation is unreasonable. The courts may

treat some apparently legal questions of interpretation as matters

of fact or opinion where they concern broad everyday notions or

involve value judgements or matters of degree (see e.g. Pulhoffer

v. Hillingdon BC (1986), ‘homeless’; R. v. Monoplies and Mergers

Commission ex parte South Yorkshire Transport (1993), ‘substan-

tial’ part of the UK; Edwards v. Bairstow (1956), trade; Brutus

v. Cozens (1973), ‘insulting’; R. v. Radio Authority ex parte Bull

(1997), ‘political nature’. In these cases the initial question as to

373

Judicial Review of the Executive: The Grounds of Review

whether the statutory meaning requires this approach is of course

a question of law (Shah v. Barnett LBC [1983] 2 AC 309, 341 –

ordinarily resident).

16.4.3 Errors of fact

We have seen that errors of fact are not normally reviewable but

there are exceptions (see Jones, 1990). The doctrine of the preliminary

question (above) applies to errors of fact where it is sometimes called

the ‘precedent fact’ doctrine. This allows the court to decide the ques–

tion of fact for itself. For example in Kawahaja v. Secretary of State

for Home Affairs (1983) the Home Secretary could deport an ‘illegal

immigrant’. The House of Lords held that the court could decide

whether the appellant was in fact an illegal immigrant and was not

limited to deciding whether the minister’s decision was unreasonable.

The problem is to decide what kind of case falls within the doctrine.

This depends upon the statutory context. In Kawahaja the court

was influenced by the fact that the decision involved personal freedom,

so that a high level of judicial control was required. By contrast, in

Bugdaykay v. Secretary of State (1987) the question was whether the

applicant was a genuine asylum seeker. Here the decision was heavily

laden with subjective political judgement and the court was not pre-

pared to treat the matter as one of precedent fact.

Judicial review does not include a reinvestigation of disputed facts

unless the decision is perverse (Adam v. Newham BC (2002)). However,

in R. v. Criminal Injuries Compensation Board ex parte A (1999) 2 AC

330, 344–5, Lord Slynn said that ‘misunderstanding or ignorance of an

established and relevant fact’ is reviewable, but emphasised that this is

no more than an application of ordinary review principles. (See also

Secretary of State for Education and Science v. Tameside MBC [1977]

AC 1014 at 1017.) This principle also complies with Art. 6 of the ECHR

which requires a right to challenge findings of fact, but not necessarily a

full re-investigation of the facts, as an aspect of the right to a fair trial

(see R. (Alconbury) v. Secretary of State (2001); Bryan v. UK (1995);

Chapman v. UK (2001)). However, where the decision is directly

concerned with a citizen’s legal rights or entitlements, as opposed to a

decision taken in the public interest which incidentally affects rights, if

there is a dispute on the primary facts, Art. 6 may require a full appeal

on the facts, unless the decision maker is independent (see Adam v.

Newham BC (2002), below p. 430).

374 General Principles of Constitutional and Administrative Law

‘Wide’ ultra vires: improper purposes and irrelevant

16.4.4

considerations

These aspects of illegality arise in the context of discretionary powers

and are sometimes labelled abuse of discretion. Even though the deci-

sion maker keeps within the express language of the statute its motive

may be improper or it may be influenced by irrelevant factors or it may

overlook relevant factors. This applies even where the statute appears

to give the decision maker an unrestricted subjective discretion using

such expressions as ‘if the minister thinks fit’ since even the widest

discretionary power is in principle reviewable (Padfield v. Minister

of Agriculture (1968): a minister acting under a particular statutory

power must not be influenced by wider political considerations that do

not advance the policy of the Act).

The court will not set aside a decision if the irrelevant con-

sideration would not have made any difference to the outcome. In this

sense the line between legality and merits is blurred (see R. v. ILEA

ex parte Westminster City Council (1986); R. v. Secretary of State for

Social Services ex parte Wellcome Foundation (1987)). In the context of

improper purposes this is sometimes expressed as the ‘dominant

purpose’ test. For example in Westminster Corporation v. London and

North Western Railway (1905) the local authority had power to con-

struct public lavatories. It incorporated a subway into the design of

its lavatories. This was held to be lawful on the basis that the subway

was merely incidental to the lavatory. Although it could be used by

people to cross the street it was also an appropriate method of

reaching the lavatory. By contrast in Webb v. Minister of Housing

(1965) the local authority had power to construct coast protection

works. It incorporated a promenade into their scheme compulsorily

acquiring a number of houses for the purpose. This was held to be

unlawful on the ground that more land was acquired than was needed

for an adequate coast protection barrier. The whole scheme was in-

valid and the good part could not be separated from the bad. Similarly

in R. v. Lewisham LBC ex parte Shell UK Ltd (1988), the council

decided to boycott Shell’s products on the ground that Shell had

interests in South Africa which, at the time, was subject to apartheid.

It was held that the policy itself could have been lawfully justified on

the ground of promoting good race relations in the borough. How-

ever, as the council had tried to persuade other local authorities to

adopt a similar policy it had gone too far, its broad purpose being

to put pressure on Shell.

375

Judicial Review of the Executive: The Grounds of Review

In a borderline case the court is able to scrutinise in considerable

depth the actual motives of the decision maker. In Porter v. Magill

(2002), a local authority had embarked upon a policy of selling off its

housing. It concentrated sales in marginal electoral wards with a view

to attracting votes. The House of Lords held that, while political reality

must be accepted, the policy could not be justified on the basis of legiti-

mate housing purposes. A democratic body can hope for an electoral

advantage as the outcome of its policies (and probably choose between

alternative legitimate policies for electoral reasons), but it cannot

distort policies in order to seek electoral advantage.

The starting point as always is the language of the particular stat-

ute. For example in R. v. City of Westminster Housing Benefit Review

Board (2001), legislation required the housing benefit authority to

reduce a claim when it considered that the rent was unreasonably high,

‘having regard in particular to the cost of suitable accommodation

elsewhere’. The board interpreted this as preventing it from taking into

account the claimant’s personal circumstances including his wife’s

pregnancy and his reduced income as an asylum seeker. The House of

Lords held that personal circumstances were relevant pointing out that

the phrase ‘in particular’ invited other factors to be considered and

that a matter is legitimate provided that it was reasonably (or prop-

erly) regarded as relevant.

The scope of a statutory power may not be clear from the statutory

language. The court must therefore infer from all the circumstances

what are proper purposes and relevant considerations. Indeed, in West-

minster (above) Lord Bingham said that ‘(i)n the absence of very clear

language I would be very reluctant to conclude that the . . . board were

precluded from considering matters which could affect the mind of a

reasonable and fair minded person’. This requires them not only to

draw on rule of law values, but also to make political and moral judge-

ments. For example the Town and Country Planning Act 1990 s. 70 (2)

requires land use planning authorities ‘to have regard to the provisions

of the development plan . . . and any other material considerations’

leaving it to the courts to decide what these are. In Stringer v. Minister

of Housing (1971) it was held that any factor relating to the use of land

can be relevant. Thus in Tesco Stores v. Secretary of State for the

Environment (1993) the House of Lords held that a local planning

authority could adopt a policy that those who profit from planning

permission should pay something back into the community.

What is ‘relevant’ may change in the light of changing community

values to which the courts should be sensitive (see Pickwell v. Camden

376 General Principles of Constitutional and Administrative Law

BC (1987)). In R. (Bulger) v. Secretary of State (2001) the court,

drawing on international obligations held that in fixing the length of

time a convicted child offender must serve, the Secretary of State must

take into account the welfare of the child and keep its progress and

rehabilitation under review. In R. v. Secretary of State for the Home

Department ex parte Venables (1997) it was held that public opinion,

in the shape of an opinion poll in The Sun newspaper, was not relevant

where the Secretary of State was charged with the judicial duty of

reviewing the sentence in a notorious child murderer case since his

judicial function must be exercised by his independent judgement. The

courts have also held that local authorities should concern themselves

with local issues as opposed to general issues of national or inter-

national politics (see R. v. ILEA ex parte Westminster City Council

(1986); R. v. Lewisham LBC ex parte Shell UK Ltd (above)). It has also

been held that local authorities should be guided by business principles

in fixing wages, fares and prices (Roberts v. Hopwood (1925); Prescott

v. Birmingham Corporation (1955); Bromley LBC v. GLC (1983)).

The courts are therefore policing the boundaries of the democratic

process and in doing so imposing their own constitutional values

(see Alder, 2001). In cases where a very wide range of factors might be

relevant, the court may leave it to the official to decide what is rele-

vant, interfering only if the decision is perverse. For example in R. v.

Somerset CC ex parte Fewings (1995) a majority of the Court of

Appeal thought (obiter) that a local authority might be entitled to

take into account moral attitudes towards hunting in exercising a

power to manage land for the ‘benefit of the community,’ but would

not be required to do so (see also CREEDNZ Inc. v. Governor-General

(1981)). However, Laws J at first instance took the view that moral

factors could be taken into account only if clearly authorised by the

governing legislation.

In R. v. Foreign Secretary ex parte World Development Movement

(1995) the court perhaps went too far into the merits of government

action. The government had statutory power to give financial aid to

other countries for ‘economic’ purposes. It decided to give a grant to

Malaysia for the Pergau Dam project. The Court of Appeal held that

Parliament must have intended the word ‘economic’ to include only

‘sound’ economic decisions so that the court was entitled to infer that

the decision had been made primarily for an ulterior purpose (perhaps

of facilitating an arms sale arrangement). This seems to come very

near to interfering with the merits of the decision since the court

could deepen its investigation into any statutory function by saying

that Parliament must have intended that function to be carried out

377

Judicial Review of the Executive: The Grounds of Review

‘soundly’. On the other hand, parliamentary scrutiny of public spend-

ing did not expose the misdeeds in this case so that the court’s role may

be justifiable as the only available constitutional check.

16.4.5 Fettering discretion

An official fetters his or her discretion by applying a rigid rule without

being prepared to consider departing from it review (ex parte Kynoch

(1919)). An official must be prepared to be flexible in the circumstances

of the particular case. Officials can of course follow general rules or

policies generated within government. Indeed government would be

impracticable without them. Moreover the principle of fairness requires

that people be treated equally thereby generating rules. Nevertheless,

unless a rule is laid down by or under statute, officials must always

consider whether in any given case an exception should be made.

As Lord Reid put it in British Oxygen Co. v. Ministry of Technology

[1971] AC 610, 625 ‘a Ministry or large authority may have had already

to deal with a multitude of similar applications and then they will almost

certainly have evolved a policy so precise that it could well be called a

rule. There can be no objection to that, provided that the authority

is always willing to listen to anyone with something new to say.’

This is a vital protection for the individual against official intransi-

gence. For example in R v. Secretary of State for the Home Department

ex parte Hindley (2000); a ‘whole life tariff ’ set by the Home Secretary

for a convicted murderer was lawful, provided that it was open to

periodic review. On the other hand the courts are not normally con-

cerned with the weight to be given to any particular factor so that, short

of tying their hands completely, officials can give preference to policies

or rules departing from them only in exceptional cases. Examples of

unlawful fetters include the following:

. Rigid application of government policies or party political policies

without making an independent judgement (R. v. Waltham Forest

DC ex parte Baxter (1988); R. v. Local Commissioner for Adminis-

tration ex parte Liverpool City Council (2001)).

. Electoral mandates (Bromley LBC v. GLC (1983)).

. Agreements and contracts (Ayr Harbour Trustees v. Oswald (1883);

Stringer v. Minister of Housing (1971)). Given that a contract neces-

sarily ties the hands of the body that makes it, the courts will inter-

vene only if the contract is clearly contrary to a statutory obligation

(see R. v. Hammersmith and Fulham LBC ex parte Beddoes (1987)).

378 General Principles of Constitutional and Administrative Law

. Advice given by officials (Western Fish Products v. Penwith District

Council (1981)); thus the doctrine of estoppel, under which in cer-

tain circumstances a person is bound by a promise or statement on

which another relies, does not apply to governmental decisions

made under statute.

. Acting under the dictation of another body (Lavender v. Minister of

Housing (1970)) but consulting another body and even relying on

another body unless an objection raised is lawful (see R. v. GLC ex

parte Blackburn (1976)).

16.4.6 Legitimate expectations

The fettering discretion doctrine sometimes protects the citizen. It may

also work the other way in that it enables a public body to go back on

promises or assurances that it has given to a citizen. The concept of

‘legitimate expectation’ confronts the fettering discretion doctrine.

First recognised by Lord Denning in Schmidt v. Home Secretary

(1969), a legitimate expectation arises where the citizen has been led to

believe by some action of the government that he will obtain some

benefit or advantage. This might be generated by a promise or

assurance either announced generally (A-G for Hong Kong v. Ng Yuen

Shiu (1983): interview would be given before deportation), R. v.

Secretary of State for the Home Department ex parte Khan (1985) or

given, specifically to an individual (Preston v. IRC (1985)). However, a

legitimate expectation cannot be inferred merely from the general

context (Re Westminster City Council (1986)) but might be generated

by a practice whereby people in the same position as the applicant

have been given a benefit in the past (CCSU v. Minister for the Civil

Service (1985) but see R. v. Secretary of State for the Environment ex

parte Kent (1988): practice of informal consultation on planning

applications going beyond statutory requirements not sufficient). It is

doubtful whether a general announcement in Parliament can gener-

ate a legitimate expectation and there is apparently no legitimate

expectation that the government will honour an international treaty

obligation (R. v. DPP ex parte Kebilene (1999)). The statement that

gives rise to the expectation must be clear and unambiguous and it

must be reasonable for the claimant to rely upon it (see Preston v. IRC

(above)). Furthermore, where an assurance is given to an individual,

the individual must have disclosed all relevant information (R. v. IRC

ex parte MFK Underwriting (1990). Moreover where the individual is

relying on a general government policy, the purpose of that policy

379

Judicial Review of the Executive: The Grounds of Review

might not be consistent with a legitimate expectation (e.g. Re Findlay

(1985), parole policy).

It is clear that a legitimate expectation cannot confer an absolute

right and that a legitimate expectation can be withdrawn (CCSU

(above), O’Reilly v. Mackman (1982). The question is whether the

expectation confers a heightened claim to the benefit in question and

how is this enforced. Sometimes, as in Shiu, and CCSU (above) the

expectation itself may be only procedural, that is of being consulted or

given a hearing before a decision is made. In other cases it may be

substantive, that is of an actual benefit or permission. In Khan (above)

where the government stated by letter that certain policies concern-

ing overseas adoptions would be followed, Lord Parker CJ suggested

`

that ‘vis-a-vis the recipient of such a letter, a new policy can only be

implemented after such recipient has been given a full and serious

consideration whether there is some overriding public interest which

justifies a departure from the procedures stated in the latter’ (at 48).

This is ambiguous. On the one hand, even where the expectation is

substantive, the claimant might be entitled only to a hearing. Apart

from this, the court would intervene only if the government could offer

no rational reason for its change of policy. On the other hand it might

require the government, not merely to provide a reason for changing

its policy but to advance a strong justification for doing so. This would

take the courts into the merits of the case.

The cases are conflicting. The possibility of a substantive legiti-

mate expectation was accepted in R. v. Secretary of State for the Home

Department ex parte Ruddick (1987) where it was held that the minister

had in fact complied with the expectation. It was rejected in R. v. Secre-

tary of State for Health ex parte United States Tobacco International

Inc. (1992). In that case the government had encouraged the company

to manufacture snuff in the UK. After the company had incurred

expense on its investment the government withdrew its permission on

medical advice. It was held that any legitimate expectation could not

override the government’s statutory power. However, the company was

entitled to a hearing on the health issue and an opportunity to persuade

the government to change its mind. In R. v. Minister of Agriculture ex

parte Hamble Fisheries (1995) Sedley J gave stronger effect to a sub-

stantive legitimate expectation. This concerned a claim to retain the

benefit of a fishing licence in the face of a change in a policy designed to

conserve fishing stocks. Sedley J suggested that a legitimate expectation

creates a binding obligation that could only be overridden, if the

objectives of the statute could not otherwise be achieved, a matter to be

assessed by the court. However, in R. v. Secretary of State for the Home