17.2 The Judicial Review Procedure

Before 1977 there was no single legal process that combined all the

remedies. The old prerogative orders had developed separately from

the other (‘ordinary‘) remedies. Each group of remedies had to be

sought in a different court, each generating an overlay of confusing

technicality. In 1974 the Law Commission recommended that all the

remedies be brought together into one procedure and that pointless

differences between them be removed. This was implemented by rules

of court in 1977, confirmed by the Supreme Court Act 1981, s. 31 and

revised by the Civil Procedure Rules 2000 Part 54 (see Practice

Direction [2000] 1 WLR 1654). A claim for judicial review is made in

what is now called the Administrative Court (formerly the Crown

Office List), and means ‘a claim to review the lawfulness of – (i) an

enactment; or (ii) a decision, action or failure to act in relation to the

408 General Principles of Constitutional and Administrative Law

exercise of a public function’ ( CPR 54.2 (a)). The court can issue any

of the remedies in any combination and is not limited to those for

which the claimant has applied (Supreme Court Act 1981 s. 31 (5)).

There is also the ancient prerogative writ of habeas corpus (‘produce

the body’) which, according to Dicey (1959, p. 199), is ‘worth a hundred

constitutional articles guaranteeing civil liberty’ but may be of little

practical importance today (see Le Sueur, 1992, cf. Shrimpton, (1993)).

Habeas corpus is not part of the judicial review procedure although the

grounds for issuing it are probably the same as those of judicial review

(see Law Commission, 1994). It requires anyone detaining a person to

bring the prisoner immediately before a judge to justify the detention.

However, judicial review can also provide a speedy way of challenging

unlawful detention.

17.2.1 Standing

The applicant must show that he has ‘sufficient interest’ in the matter

to which the application relates (Supreme Court Act 1981 s. 31(3)).

The question of standing must be considered not only at the threshold

stage of permission to apply but also at the full hearing when it is

examined in depth (see IRC v. National Federation of Self-Employed

and Small Businesses Ltd (1981)). The courts take a broad approach to

standing which is not confined to persons whose legal rights are

directly in issue. They have, for example, given standing to pressure

groups, at least where they have a specific involvement with the matter

as representatives of people directly affected by the decision or where

they have showed serious involvement by investing money or expert-

Ise (r. V. Pollution Inspectorate ex parte Greenpeace (No. 2) (1994)).

Groups and individuals representing the general public interest have

also been given standing at least where there is no other way of

challenging the decision (R. v. HM Treasury ex parte Smedley (1985);

R. v. Foreign Secretary ex parte World Development Movement (1995);

R. v. Secretary of State for Foreign and Commonwealth Affairs ex parte

Rees-Mogg (1994)). Indeed the contribution of pressure groups has

been welcomed as adding a valuable dimension to judicial review (R. v.

Secretary of State ex parte Greenpeace (1998) Envir. LR 415). It has

been suggested that anyone who is not a mere busybody with no

connection with the issues should have standing (R. v. North Somerset

DC ex parte Dixon (1998)).

On the other hand in R. v. Secretary of State for the Environment ex

parte Rose Theatre Trust Ltd (1990), a case that has been much criti-

cised, it was held that a campaigning interest in protecting the site of

409

Judicial Review Remedies

the Shakespearian Rose Theatre was not sufficient in itself. It was also

emphasised that individuals cannot give themselves standing merely by

forming a group. Perhaps this could be contested on the commu-

nitarian basis that group involvement is a manifestation of democratic

legitimacy? A restrictive approach was also taken in R. (Bulger) v.

Secretary of State (2001) where it was held that the father of a baby

murdered by two boys in horrific circumstances did not have standing

to challenge the Lord Chief Justice‘s recommendation to the Home

Secretary of the length of the punishment element of their sentence.

The court stressed that there was no need for a third party to intervene

since the Crown and the boys could both challenge the decision and

raise all the relevant issues. According to Rose LJ a low threshold

of standing can be justified because of the importance to the rule of

law that someone should be able to call decision makers to account

but this was not the case here. The particular remedy is also a factor.

For example in R. v. Felixtowe Justices ex parte Leigh (1987) a news-

paper editor had standing for a declaration that magistrates should

not hide behind anonymity but not mandamus to reveal the identity of

magistrates in a particular case.

However, in many cases including Bulger and Rose Theatres, even

where the claimant lacks standing the court considers the substantive

issues. It seems therefore that the court has a broad discretion. At the

permission stage, standing is likely to be generous, so as to filter out

only hopeless cases. At the full hearing, those whose legal rights are

in issue would always have standing, while in other cases the court

will balance the extent of the applicant’s interest against the public

importance of the issues involved and the particular remedy sought.

Moreover, even where a person has no standing in their own right, the

court has a discretion to hear any person thereby broadening the scope

of the process and allowing interest groups to have a say (CPR 54.17).

17.2.2 Government protection

An important feature of the application for judicial review is the

amount of discretion it gives to the court. This is designed to make

the procedure speedy and effective but also to protect the public

interest against malicious or futile challenges to government. The main

provisions are as follows:

. As we have seen permission to apply is required from a judge before

proceedings can be commenced (SCA 1981 s. 31 (3), CPR 54.4). This

410 General Principles of Constitutional and Administrative Law

is sometimes depicted in the media as having ‘obtained a judicial

review’. However, at this stage the applicant merely shows that he

has a chance of success. The procedure is ex parte, that is, the gov-

ernment side does not have to appear. Moreover there need not be a

formal hearing (CPR 54.12). There is a right to renew the applica-

tion for permission before another judge in open court or, in the

case of a refusal in open court, before the Court of Appeal.

. The court has a discretion in relation to procedural matters. The

case is normally decided on the basis of affidavits (sworn written

statements), but the court may allow discovery of documents,

witnesses and cross-examination if this is needed to do justice (see

O’Reilly v. Mackman (1982)).

. There is a time limit. The present Rules seens to have rationalised the

somewhat incoherent provisions that were originally made. The claim

must be filed (a) promptly; and (b) not later than three months after

the ground to make the claim first arose. In the case of a quashing

order this means the date of the decision (CPR 54.5 (1) (b)). The time

limit can be extended by agreement and is subject to any shorter time

limit in a particular statute (CPR 54.6). The time limit can also be

extended by the court. However, even within three months the court

may refuse leave to make the application or refuse to give a remedy

if ‘undue delay’ results in ‘substantial hardship to any person, sub-

stantial prejudice to the rights of any person, or would be detrimen-

tal to good administration’ (Supreme Court Act 1981 s. 31 (6) (7));

see Caswell v. Dairy Produce Quota Tribunal (1990)).

. The court can refuse to grant a remedy even when a decision is ultra

vires and strictly speaking void (Credit Suisse v. Allerdale DC (1996)).

The court will not set aside a decision where, for example, no injus-

tice has been done, or where the interests of third parties would

be prejudiced or where intervention would cause serious public

disruption (e.g. R. v. Secretary of State for the Home Deptartment

ex parte Swati (1986); R. v. Secretary of State for the Environment ex

parte Association of Metropolitan Authorities (1986); Coney v. Choice

(1975)). The court might also prefer a declaration to an enforceable

order where enforcement might be impracticable or hinder the

governmental process (see e.g. R. v. Panel on Takeovers and Mergers

ex parte Datafin plc (1987); Chief Constable of North Wales Police v.

Evans (1982); R. v. Boundary Commission for England ex parte Foot

[1983] 1 All ER 1099, 1116). An important reason not to intervene is

where the applicant has an alternative and equally appropriate

remedy such as a right of appeal or an internal means of redress.

411

Judicial Review Remedies

Judicial review is intended to be a last resort (see e.g. R. v. Chief

Constable of the Merseyside Police ex parte Calverley (1986)).

17.3 Choice of Procedure: Public and Private Law

The special features of the application for judicial review raise two

questions: (i) When is the procedure available? (ii) When must it be

used in place of other methods of approaching the courts? As we have

seen, before the judicial review procedure was created in 1977, the pre-

rogative orders were available only in the Divisional Court of the

Queen’s Bench Division, but the other remedies, declaration, injunc-

tion and damages, were, and still are, available in any court. Decisions

of governmental bodies and powerful private bodies such as trade

unions were also challengeable in the ordinary courts.

Until the 1980s the citizen could apply to any court for a declara-

tion or injunction. Indeed free access to the courts is a constitutional

principle which the leave procedure seems to deny. Nevertheless in

O’Reilly v. Mackman (1982) the House of Lords held that a ‘public

law’ case must normally be brought under the application for judicial

review procedure. It will be remembered that a major plank of Dicey’s

rule of law was the idea that English law does not recognise any

distinction between public and private law. O’Reilly v. Mackman has

therefore caused problems. Two distinct questions must be separated.

Firstly, what is a public law matter? If a matter is not one of public

law then the application for judicial review procedure is irrelevant.

Secondly, the ‘exclusivity’ question, that is, what ‘exceptional cases’ fall

outside the special procedure in a public law matter?

17.3.1 Public law matters – scope of the judicial review procedure

Although it is often suggested that powerful private bodies should be

subject to the judicial review (see Craig, 1998), the judicial review pro-

cedure applies only to ‘public functions’ (CPR 54.1). Not all disputes

involving public officials concern public functions. The issues involved

may be the same as arise in a private context (for example, dismissal

of a clerk in a government office). The Court of Appeal has decided

that a public law function depends upon a combination of factors.

First, the power must have some governmental underpinning. Where a

power is conferred directly by statute, royal prerogative, or even

governmental rules of practice, this test will normally be satisfied (see

Scott v. National Trust (1998)). In other cases the position is more

412 General Principles of Constitutional and Administrative Law

difficult. It was held in R. v. Panel on Takeovers and Mergers ex parte

Datafin plc (1987) that the Takeover Panel, a self-regulating voluntary

body which acted as a city ‘watchdog’, was exercising public law

functions. This was because it was set up in the public interest, it

reported to the government, and although not having statutory powers

itself, was supported by the statutory powers of the Department of

Trade (see also Donoughue v. Poplar Housing and Regeneration Com-

munity Association Ltd (2001)). Another test is to ask whether, if the

body in question did not exist the government would have to intervene

(see R. v. Chief Rabbi ex parte Wachman (1993)). However, this is not

reliable since there is no agreement on what functions are necessary

in this sense.

The Court of Appeal has also said that a power which is based

exclusively on agreement or contract, for example, the disciplinary

power exercised by sport or professional associations is a private law

power (see R. v. Disciplinary Committee of the Jockey Club ex parte the

Aga Khan (1993); R. v. East Berkshire Health Authority ex parte Walsh

(1985); R. v. Home Secretary ex parte Benwell (1985)). This seems

somewhat rigid since many contractual regulatory bodies, such as

professional associations, exercise their powers for the purpose of

protecting the public in much the same way as the Takeover Panel.

However, in Donoughue (above) the contractual power of a housing

association to evict a tenant was regarded as a public function for the

purpose of the Human Rights Act, because the activities of the associ-

ation were enmeshed with those of a local authority (see also McLaren