396 General Principles of Constitutional and Administrative Law

of political policies or out of the competing duties of decision

makers may be built into the system by statute. In this kind of

case bias does not invalidate the decision unless the decision maker

acts unfairly (R. v. Frankland Prison Visitors ex parte Lewis (1986):

prison visitors having judicial and investigatory roles; R. v. Secretary

of State for the Environment ex parte Kirkstall Valley Campaign Ltd

(1996): local authority had interest in developing land for which it

also had to decide whether to grant planning permission).

According to the House of Lords, this relaxed approach satisfies

Art. 6 of the ECHR at least in the context of policy decisions taken

by ministers. In R. (Alconbury) v. Secretary of State (2001) a variety

of decisions made by the Secretary of State were challenged on the

ground of incompatibility with Art. 6. These included decisions to

‘call-in’ planning appeals which would otherwise be decided by

independent inspectors and to confirm compulsory purchase orders

relating to road and rail schemes in which the government had an

interest. It was common ground that the Secretary of State was not

an independent and impartial tribunal. The question was whether

the process as a whole, including the protection given by judicial

review, satisfied Art. 6.

The House of Lords, overruling the lower courts, held unan-

imously that the process satisfied Art. 6. They held that the juris-

prudence of the European Convention supported a fundamental

distinction between policy or political decisions for which the min-

ister is answerable to Parliament and judicial decisions made by

courts and similar bodies. It would be wrong for policy decisions to

be second guessed by the courts. Therefore, provided that there is

judicial review in relation to the legality and fairness of the decision

‘a government minister can be both a policy maker and a decision

taker without violating Art. 6 (1)’ (per Lord Hutton [2001] 2 All ER

929 at 1018), The position might be otherwise where a decision turns

on findings of law or disputed facts as opposed to policy, where

further safeguards such as independent fact finding might be neces-

sary. This depends on the circumstances (see Lord Hoffmann at 992

and Adam v. Newham BC (2002), below p. 430). Thus the House of

Lords endorsed the traditional common law approach.

16.6.6 Reasons for decisions

There is no general duty to give reasons for decisions, although many

statutes impose such a duty (see R. v. Criminal Injuries Compensation

397

Judicial Review of the Executive: The Grounds of Review

board ex parte Moore (1999); Stefan v. GMC (1999); Tribunals and

Inquiries Act 1992 s. 10). This has been justified on the grounds of

cost, the danger of excessive formality, the difficulties of expressing

subjective reasons, and because, in the case of collective decisions, it

may be impossible to identify specific reasons (see McInnes v. Onslow-

Fane (1978); R. v. Higher Education Funding Council (1994); Stefan v.

GMC (1999)). However, these concerns do not meet the main justi-

fication for the giving of reasons, which lies in the value of respect

for human dignity and equality so that those who purport to exer-

cise power are accountable. Even an admission that a decision is based

on subjective judgement fulfils this requirement. The giving of reasons

also strengthens public confidence in the decision-making process,

strengthens the rationality of the process itself, supports accountability

and helps challenge, a factor regarded as essential by the ECHR.

However, the ECHR has confined itself to holding that courts, as

the citizen’s last protection, must give reasons for their decisions

(Van de Hurk v. Netherlands (1984)). The ECHR has also held that

reasons need not be detailed and comprehensive provided that they

enable the parties to understand the basis of the decision (Helle v.

Finland (1997)).

However, the courts do require reasons to be given in a wide range

of cases, drawing upon the general principle of fairness which allows

the court to take all the circumstances into account. In R. v. Secretary

of State for the Home Department ex parte Doody (1993) 3 All ER 92

at 107 Lord Mustill referred to ‘a perceptible trend towards an insist-

ence upon greater openness in the making of administrative decisions’.

Indeed in R. v. Lambeth LBC ex parte Walters (1993) it was suggested

that reasons should be given unless there was some special justification

for not doing so. However, the dominant view seems to be that a duty

to give reasons must either be expressed or implied in the relevant

statute or there must be some special justification for giving reasons.

In R. v. Higher Education Funding Council (above), Sedley J held that

arguments which applied to all cases were not sufficient, for example

the difficulty of challenging a decision in the absence of reasons. Never-

theless, the cases where reasons must be given may be sufficiently wide

ranging to come close to a general duty. Examples of cases where

there is a duty to give reasons include the following:

. Judicial decisions analogous to those of a court (R. v. Minister of

Defence ex parte Murray (1998).

. Cases which involve very important interests, where, if reasons were

not given, the individual would be at a disadvantage (e.g. Doody

398 General Principles of Constitutional and Administrative Law

(above): fixing of minimum sentence for life prisoner; Stefan (above):

risk of loss of livelihood, unrepresented defendant).

. Cases where the particular decision is aberrant or unusual or where

a severe penalty is involved (e.g. R. v. Civil Service Appeals Board ex

parte Cunningham (1991): compensation award out of line with that

given in analogous cases by industrial tribunal; R. v. DPP ex parte

Manning (2000), decision not to prosecute after coroner’s finding of

unlawful killing).

. A legitimate expectation might also generate a duty to give reasons

for overriding the expectation (R. v. Secretary of State for Transport

ex parte Richmond BC (No. 4) (1996)).

. If an appeal is provided this may point to a duty to give reasons

where the appeal would otherwise be pointless (Stefan (above)).

On the other hand, a comprehensive appeal that reopens the whole

case may point against a duty to give reasons at first instance.

. In Padfield v. Minister of Agriculture (1968), the House of Lords

suggested that if a minister refuses to give reasons the court can infer

that he has no proper reasons for his decision. However in Lonrho v.

Secretary of State for Trade and Industry (1989) the House took

the view that a failure to give reasons does not in itself justify the

drawing of an adverse inference but is at most supportive of other

evidence that the decision is improper.

. Failure to give reasons concerns the decision after it is made and

should be distinguished from failing before the decision is made to

disclose grounds in the sense of allegations against the applicant.

Failure to disclose such grounds would normally be unfair as a breach

of the right to a hearing. There is also the ‘cards on the table’ doctrine

(R. v. Lancashire County Council ex parte Huddlestone (1986)). Once

an applicant has obtained leave to apply for judicial review the

authority must then assist the court by disclosing the reasons for its

decision but only in as far as the reasons relate to the particular

ground of challenge.

Summary

16.1 The courts’ task of ensuring that public bodies keep within their powers is an

important aspect of the rule of law and of the separation of powers. On the

other hand, the separation of powers also requires the courts not to trespass

upon the sphere of other branches of government. The law of judicial review

attempts to steer a middle course between these ideals. It is sometimes said

that judicial review is concerned to ensure that powers are exercised in a

fair and proper manner but not with whether a government decision is right

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Judicial Review of the Executive: The Grounds of Review

or wrong. Another popular formulation is that judicial review concerns

‘illegality, irrationality and procedural impropriety’. The latter includes the

rules of natural justice.

16.2 Since the late nineteenth century judicial review has been based on the

theory that the government has acted beyond its powers (ultra vires). In

theory an ultra vires decision is a nullity. This is often regarded as unreal

because, unless successfully challenged in the courts, even illegal govern-

ment action is in practice effective. The courts have sometimes departed

from the theory of strict nullity in the interests of doing justice. The ultra vires

doctrine may no longer be adequate to explain the law of judicial review. The

common law and in some cases the Human Rights Act 1998 provide alterna-

tive foundations for judicial review.

16.3 Particular problems are raised in relation to whether the courts should be

able to correct errors made by government bodies. Most errors of law and

clear errors of fact are probably reviewable. However, some broad terms in

statutes are regarded as analogous to questions of fact so that the court will

only interfere if the decision-maker’s approach is unreasonable.

16.4 Notions of improper purposes and irrelevant considerations may invite the

courts to enter into the merits of government action. An improper purpose or

an irrelevant consideration will invalidate a decision if it has an impact on

the outcome and where the statute confers wide discretionary powers the

courts limit democratic decision making by deciding what factors should be

taken into account.

16.5 Conversely, a statutory discretion cannot be fettered whether by a policy, an

undertaking or any other commitment although the courts cannot normally

interfere with the relative importance an official gives to the various factors

to be taken into account when exercising a discretion.

16.6 The doctrine of legitimate expectation gives some protection to a citizen

where government goes back on a commitment. However, the extent to which

this is a substantive right going beyond a procedural right to a reasoned

explanation and a hearing is unclear.

16.7 It may be difficult to distinguish between a discretionary power and an

absolute duty particularly in cases where demands on local authorities have

to be met from limited resources.

The doctrine of Wednesbury unreasonableness also comes near to interfer-

16.8

ing with the merits of a decision. The threshold of unreasonableness varies

with the context on a sliding scale determined by the impact of the decision

on the individual and whether the decision involves political factors with

which a court should not interfere. At one extreme a bare ‘rationality‘ test is

applied. At the other extreme, where the Human Rights Act 1998 applies, the

court itself may weight the competing considerations exercising what is

effectively an appeal function. Between these extremes the test appears to

be whether the outcome is within the range of reasonable responses to the

particular context. In effect the court is drawing upon widely shared social

and moral values.

16.9 The doctrine of proportionality is applied in the human rights context and

may extend to other contexts. This requires the court to weigh the competing

factors on the basis that the interference with the right must be no greater

than is necessary to achieve a legitimate objective, (in the case of some

400 General Principles of Constitutional and Administrative Law

rights protected by the European Convention on Human Rights, ‘a pressing

social need’. Proportionality is discussed further in Chapter 18.

16.10 The rules of natural justice or procedural fairness are also underpinned by

the Human Rights Act 1998 although what amounts to a fair trial depends on

the context, and in particular the extent to which the decision is a policy

orientated political decision. The doctrine of legitimate expectation may also

confer a right to a hearing but the courts have disagreed as to whether there

can be ‘substantive’ legitimate expectations which bind government to

honour a previous undertaking or at least require an exceptional justification

to override. In this context and in others courts are increasingly requiring

reasons to be given for decisions.

Further Reading

Elliott (1999) ‘The ultra vires doctrine in a constitutional setting: still the central

principle of administrative law’, 58 Cambridge Law Journal 129.

Craig (1992) ‘Legitimate expectations: a conceptual analysis’, Law Quarterly Review

79.

Craig (1999) ‘Competing models of judicial review’, Public Law 428.

Craig and Bamforth (2001) ‘Constitutional principle, constitutional analysis and judi-

cial review’, Public Law 763.

Irvine (1996) ‘Judges and decision makers: the theory and practice of Wednesbury

Review’, Public Law 59.

Jowell (2000) ‘Beyond the rule of law: towards constitutional judicial review’, Public

Law 671.

Jowell (1999) ‘Of vires and vacuums: the constitutional context of judicial review’,

Public Law 448.

Jones (1990) ‘Mistake of fact in administrative law’, Public Law 507.

Laws (1995) ‘Law and democracy’, Public Law 72.

Oliver (1998) ‘A negative aspect to legitimate expectations’, Public Law 558.

Olowofoyeku (2000) ‘The Nemo Judex rule: the case against automatic disqualifica-

tion’, Public Law 456.

Richardson and Genn (eds), Administrative Law and Government Action, Part 1.

Richardson, G and Sunkin, M. (1996) ‘Judicial review: questions of impact’, Public

Law 79.

Walker, P. (1995) ‘What’s wrong with irrationality?’, Public Law 556.

Wong, G. (2000) ‘Towards the nutcracker principle: reconsidering the objections to

proportionality’, Public Law 92.

Woodhouse, D. (1995) ‘Politicians and the judiciary: a changing relationship’, Parlia-

mentary Affairs 401.

Exercises

16.1 To what extent is the law of judicial review adequately explained on the

basis of the ultra vires doctrine?

16.2 How far does the law of judicial review prevent judges interfering in politics?

16.3 Explain the significance of legitimate expectations in relation to the rule

against fettering discretion.

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Judicial Review of the Executive: The Grounds of Review

16.4 ‘I think the day will come when it will be more widely recognised that the

Wednesbury case was an unfortunately retrogressive decision in English

administrative law’ (Lord Cooke in R. v. Secretary of State ex parte Daly

(2001). What does he mean and do you agree?

‘The difference in practice (between Wednesbury unreasonableness and

16.5

proportionality) is not as great as is sometimes supposed . . . even without

reference to the 1998 Act the time has come to recognise that this principle is

part of English administrative law, not only in when judges are dealing with

community acts but also when they are dealing with acts subject to domestic

law’ (Lord Slynn). Do you agree?

16.6 Does the bias rule strike a reasonable balance between efficiency and

justice?

16.7 ‘What may not have been recognised back in 1974 was the emergence of

judicial review to the point where most if not all matters which could form the

basis for a complaint of maladministration are matters for which the elastic

qualities of judicial review might provide a remedy’ (Henry LJ in R. v. Local

Commissioner ex parte Liverpool City Council (2001)). Discuss.

16.8 Jack and Jill are law students. Each has obtained a place at the College of

Law to study for the Solicitors’ Final Examination. Jack applies to Meanshire

County Council for a grant for this course under a statute which requires the

authority ‘to have regard to the manpower needs of the community and all

other material factors’. He is informed by letter that ‘owing to the current

surplus of solicitors we are unable to entertain any applications from law

students.’ Jill makes a similar application to Greedshire County Council and

is told that her application ‘will be considered on its merits but it is the policy

of the Council to award grants to law students only of exceptional ability.’

Jill who has no financial resources is invited to submit a written statement,

and having done so is informed that her application has been refused.

No reasons are given. Jill wishes to have a personal hearing before the

council to impress upon them her personal circumstances although a council

officer had told her that personal circumstances are irrelevant. Advise Jack

and Jill as to the grounds, if any, on which they can challenge these deci-

sions in the courts.

16.9 Under the Sports Act 2002 (fictitious), the Minister of Sport has power, ‘where

he considers it necessary in the interest of public safety and good order, to

require the admission of paid spectators to any sporting event to be subject

to showing membership cards at the entrance’. The Minister also has power

to revoke any such membership cards. The Minister, interpreting ‘sport’ as

including any activity which is competitive, has made an order requiring

entrance to chess competitions to be subject to the showing of membership

cards. There has been some evidence of disorder at the events. The Minister

has been advised that chess events are an important source of the opposi-

tion party’s finances. In another case, a civil servant has revoked the mem-

bership cards of all the members of a football club because the club has

failed to provide an all-seating stadium. The club is in the third division and

the present stadium is very rarely more than half full. Discuss.

16.10 Sam a pupil at a sixth form college was ordered by the head teacher to

remove a tattoo across his forehead which expressed support for vege-

tarianism. Having refused to do so Sam was suspended. He appealed to the

college governing body but his appeal was rejected without reasons being

402 General Principles of Constitutional and Administrative Law

given. One of the members of the appeal committee was a parent gover-

nor and a neighbour of Sam but had deliberately absented himself from

the governors’ meeting that considered Sam’s case. Another member of the

committee was the manager of a local meat packing company. Advise Sam.

17 Judicial Review Remedies

It could be argued that the courts provide the only open and universal

means by which the individual can challenge governmental action.

Ministerial responsibility to Parliament is of little use to the citizen

directly in that it operates within a political framework and can be

called upon only by Members of Parliament. The various commissions

that have been established as a result of the work of the Committee

on Standards in Public Life play a valuable monitoring role but again

the citizen cannot obtain a decision from them as a matter of right.

Nor do they deliberate in public. The ombudsman has a useful role

overlapping with that of the courts and is cheaper and its powers of