V. Home Office (1990); r. V. Legal Aid Board ex parte Donn & Co.

(1996); R. v. Disciplinary Committee of the Jockey Club ex parte the Aga

Khan (1993) per Hoffman LJ). Agreement may therefore be relevant

but not conclusive.

The judges are not in agreement about the nature of a public function

and have expressed concerns about the state of the law. Indeed, if as

was suggested in Chapter 16, the basis of judicial review is to protect

against abuses by powerful bodies it is arguable that a non-govern-

mental power such as that of a trade union, or large company or

private school should be reviewable where it has serious consequences

for the individual (see R. v. Disciplinary Committee of the Jockey Club

ex parte the Aga Khan (1993) per Lord Bingham MR). The position of

charitable bodies that are obliged to act only for public purposes is

uncertain. In RSPCA v. A-G (2001), Lightman J stated that a charity

might in theory be subject to judicial review (see also Scott v. National

Trust 1998). However, his Lordship pointed out that the appropriate

forum would normally be charity proceedings in the Chancery division

413

Judicial Review Remedies

with the approval of the Charity Commissioners. A charity as such

is not ‘public’ for the purpose of the Human Rights Act 1998 (below

Ch. 18).

17.3.2 Exclusivity

Assuming that a decision is one of public law, must the judicial review

procedure always be used? Because the judicial review procedure is

more restrictive than an ordinary action, there is a school of thought

that the rule of law is threatened by forcing people to use it. As against

this, the judicial review procedure is geared to the special concerns of

challenging government action so that it would be inefficient if people

could circumvent it.

In O’Reilly v. Mackman (1982), a group of prisoners sought to

challenge a decision not to give them remission for good behaviour.

They were outside time for judicial review and attempted to bring an

ordinary civil action for a declaration. The House of Lords struck out

their claim as an abuse of the court’s process. Lord Diplock said that

the judicial review procedure should normally be used because of its

safeguards which protected the government against ‘groundless,

unmeritorious or tardy harassment’. However, Lord Diplock accepted

that an ordinary action might sometimes lie although he did not fully

explain when. He did, however, stress that a prisoner has no legal right

to remission, which was an ‘indulgence’ from the government but at

most a legitimate expectation that his case would be considered fairly.

In Cocks V. Thanet dc (1983) the House of Lords applied o’Reilly to

hold that a claimant under homelessness legislation must use judicial

review rather than a more convenient action in a local county court.

This was because the legislation gave no absolute rights but required a

discretionary government decision before a claimant became entitled

to housing.

Perhaps recognising its potential for injustice, the courts subse-

quently backed away from a strict application of O’Reilly. In particu-

lar it was decided that a citizen can raise a defence in any relevant

proceedings against an unlawful government claim (Wandsworth BC v.

Winder (1985); Boddington v. British Transport Police (1998)). In Roy

v. Kensington, Chelsea and Westminster Family Practitioners Commit-

tee (1992) this was taken further. A doctor was seeking a discretionary

‘practice allowance’ from the National Health Service. He had estab-

lished entitlement to some kind of allowance, but not as to how much.

The House of Lords suggested that whenever a litigant was pursuing

or defending a ‘private law right’ whether as a defence or as a claim

414 General Principles of Constitutional and Administrative Law

s/he need not use the judicial review procedure. Their Lordships defined

‘private right’ widely to include any case where a person could estab-

lish even part of a definite claim against the government.

These cases seem to leave O’Reilly v. Mackman little to bite on,

because in the absence of a ‘private law right’, judicial review with

its flexible standing requirement would in any event be the only pos-

sible procedure (see Gouriet v. UPOW (1975); Lonrho v. Tebbit (1992);

Mercury Communications v. Director General of Telecommunications

(1996); Trustees of the Dennis Rye Pension Fund v. Sheffield City Council

(1997)). Indeed Feldman (1999) suggests that the O’Reilly rule might

violate Art. 6 of the ECHR, the right to a fair trial.

Since new Civil Procedure Rules were introduced in 2000, the ordin-

ary civil procedure has become more flexible and the differences from

the judicial review procedure less substantial. In particular Part 24

of the Civil Procedure Rules contains safeguards to protect the public

interest in pointless litigation by allowing the court to strike out a civil

action at an early stage if the defendant can show that it has no reason-

able chance of success. (In judicial review proceedings however, the

claimant must establish a reasonable chance of success.) In R. (Balbo)

v. Secretary of State (2001) the court refused to allow judicial review

to challenge a government demand for a penalty against a transport

company that had, apparently inadvertently, carried asylum seekers.

This was because the issue were factual for which a defence in ordinary

civil proceedings would be more appropriate. In Clark v. University of

Lincolnshire and Humberside (2000) a student brought an ordinary

action, in breach of contract against a decision by the university to fail

her. It was argued that she should have brought a judicial review claim

within the three-month time limit. The Court of Appeal held that she

was entitled to bring a civil action. Even if judicial review were appro-

priate, as was the case here because the university also had statutory

powers, the court would not strike out a claim merely because of the

procedure that had been adopted unless the court’s processes were

being misused or the procedure chosen was unsuitable. Moreover the

court can transfer a case from the Administrative Court to an ordinary

procedure at any time (CPR 54.20).

17.4 The Exclusion of Judicial Review

Sometimes a statute attempts to exclude judicial review. The courts are

reluctant to accept this and construe such statutes narrowly. For

415

Judicial Review Remedies

example, a provision stating that a decision shall be ‘final’ does not

exclude review but merely prevents the decision maker from reopen-

ing the matter and excludes any right of appeal that might other-

wise apply (Ex parte Gilmore (1957)). Even a provision stating that a

‘determination of the tribunal shall not be questioned in any court

of law’ is ineffective to prevent review where the tribunal exceeds its

‘jurisdiction’ (powers) on the basis that the tribunal’s act is a nullity

and so not a ‘determination’. Given that a government body exceeds

its jurisdiction whenever it makes an error of law, this neatly side-

steps the ‘ouster clause’ (Anisminic Ltd v. Foreign Compensation Com-

mission (1969)).

A sufficiently tightly drafted ‘ouster clause’ would surmount Anis-

minic. A clause often found in statutes relating to land-use planning

and compulsory purchase allows challenge within six weeks and then

provides that the decision ‘shall not be questioned in any court of

law’. The courts have interpreted this provision literally, on the ground

that review is not completely excluded and that the policy of the statute

is to enable development of land to be started quickly (see R. v. Corn-

wall CC ex parte Huntingdon (1994)).

A provision stating that a particular act such as entry on a register

or a certificate shall be ‘conclusive evidence’ of the matters stated may

also be effective since it does not exclude review as such but makes it

impossible to prove invalidity (R. v. Registrar of Companies ex parte

Central Bank of India (1985); see also Anti-Terrorism and Investiga-

tory Powers Bill 2000, clause 29 (3): certificates that person is an

international terrorist). However, this clause may not protect against a

challenge for unfairness.

Statutes dealing with the surveillance and the security services

feature a clause stating that a decision cannot be challenged even on

jurisdictional grounds (e.g. Security Services Act 1989 s. 5 (4); Regu-

lation of Investigatory Powers Act 2000 s. 67 (8)). The purports to

exclude judicial review of a decision to detain a non-British citizen

under the Act and against a certificate of the Home Secretary to exclude

the Refugees Convention under the Act. However, apart from the

conclusive evidence provision (above) the language appears to create

the weaker form of ouster that did not survive Anisminic (see clauses 29,

30, 33). Moreover there is a right of appeal to the Special Immigration

Commission (clauses 25, 26) and on a point of law to the Court of

Appeal (see Special Immigration Commission Act 1997). Article 6 of

the ECHR may be invoked on the ground that an ouster clause prevents

a fair trial. There are no overrides in the ECHR to the right to a fair trial

and there must arguably always be provision for judicial review even

416 General Principles of Constitutional and Administrative Law

though the level and scope of this may vary with the particular context.

For example decisions based on political policy or national security can

be subject to a lower level of review (see R. (Alconbury) v. Secretary of

State [2001] 2 All ER 929).

Summary

17.1 There is a special procedure for challenging decisions of public bodies. This

is called the Application for Judicial Review and is highly discretionary. The

procedure provides the citizen with a range of remedies including damages,

but also provides machinery for protecting government against improper or

trivial challenges. Leave to apply is required and judicial review will be

refused where there is an equally convenient alternative remedy.

17.2 Standing is flexible and increasingly liberal although a third party may not be

given standing where others are in a better position to challenge the decision.

17.3 The Application for Judicial Review applies only to public law functions which

usually include powers exercised by a wide range of bodies connected to the

government or exercising statutory powers but do not usually include exclude

powers derived exclusively from contract or consent. In some cases the

citizen may challenge public law powers outside the judicial review pro-

cedure on the basis of the rule of law principle that, where private rights are

at stake, unlawful government action can be ignored.

17.4 The remedies and procedure for judicial review are discretionary so that

even though an unlawful government decision is strictly speaking a nullity,

the court may be refuse to intervene. Delay, misbehaviour, the impact on

third parties and the absence of injustice may be reasons for not interfering.

Public inconvenience or administrative disruption are probably not enough

in themselves but they might be relevant to the court’s discretion coupled

with another factor such as delay.

17.5 Sometimes statutes attempt to exclude judicial review. The courts are reluc-

tant to see their powers taken away and interpret such provisions strictly.

The Human Rights Act 1998 reinforces this.

Further Reading

Cane, P. (1995) ‘Standing Up for the Public’, Public Law 276.

Fredman S. and Morris, G. (1995) ‘The costs of exclusivity: public and private re-

examined’, Public Law 68.

Law Commission (1994) Administrative Law: Judicial Review and Statutory Appeals,

Law Com. No 226, HC 669.

Le Sueur (1992) ‘Applications for judicial review: the requirement of leave’, Public

Law 102.

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.

Taggart (ed.), The Province of Administrative Law, chapters 1, 2, 10.

Woolf, H. (1990) Protection of the Public: A New Challenge, 24 et seq.

417

Judicial Review Remedies

Exercises

Note: material in Chapter 16 may also be relevant to some of these questions.

17.1 What are the advantages and disadvantages of the application for judicial

review procedure from the point of view of the citizen? When may gov-

ernment action be challenged in the courts by means of an ordinary action?

17.2 The distinction between public private powers is too uncertain and artificial

to define the court’s judicial review jurisdiction. Discuss.

17.3 This case is ‘a good example of a case where the commissioner’s investi-

gation and report can provide the just remedy when judicial review might

fail to; and can reach facts that might not emerge under the judicial review

process’ (Henry LJ in R. v. Local Commissioner ex parte Liverpool City

Council (2001)). Explain and compare judicial review with the ombudsman

(Chapters 8, 12 ) as a method of protecting the citizen.

17.4 Snobville District Council has statutory power to acquire within its area, land

which in its opinion it ‘is desirable to set aside as a public park’. The Council

makes a compulsory purchase order in respect of a row of houses owned by

Fred, who lets them at a low rent and who has frequently been prosecuted by

the Council under public health legislation for offences involving over-

crowding in the houses. The governing statute provides that a compulsory

purchase order may be challenged in the High Court within six weeks of its

confirmation by the minister on the ground of ultra vires, but ‘thereafter a

Compulsory Purchase Order shall not be questioned in any court of law’.

Fred does not challenge the order, but, nine months after its confirmation by

the minister, John, one of the residents in Fred’s houses, learns that the

Council had agreed with another landowner, X, to acquire Fred’s land rather

than X’s on the ground that ‘since Fred’s houses were unhealthy this would

kill two birds with one stone’. John also believes that there is already ade-

quate provision for public parks in Snobville. Advise John.

17.5 Forever Open Housing Association provides sheltered accommodation for

vulnerable people. It is a charity and is registered with the Housing Corpora-

tion, a government agency that funds and regulates housing providers. Mary

lives in a residential home owned by Forever Open, her accommodation

being paid for by the local authority under its statutory obligation to arrange

for care provision for the elderly. When Mary took up residence, Forever

Open told her that she ‘now has a home for life’. Forever Open now proposes

to close the home in order to concentrate its resources upon housing teen-

age drug addicts as advised by the Housing Corporation. Advise Mary

whether and how she can challenge this proposal.

17.6 By statute (fictitious) the NHS is required to provide ‘an effective health care

service for all UK citizens’. The statute also provides that decisions made by

any NHS hospital in relation to the provision of any service to the public shall

not be questioned in any court. St Tony’s hospital is short of money and

trained staff due to government financial cuts. The Secretary of State has

issued a circular to all hospitals stating among other things that no further

patients be admitted for sex-change operations, and that hip-replacement

operations should normally be performed only on patients who play an

active part in the economic life of the community.

418 General Principles of Constitutional and Administrative Law

(a) The Holby Transsexual Rights Society, a local pressure group, objects to

the circular. They discovered its contents six months after it came into

effect. Advise the Society as to its chances of success in a claim for

judicial review.

(b) Frank, who is an unemployed resident in a hostel for the homeless is

refused a hip replacement operation. Advise him.

18 Human Rights and

Civil Liberties

18.1 Introduction: The Bill of Rights Debate

Human rights disputes require the decision maker to decide the

limits of the law in the sense of when the legal rights of individuals

should give way to the public welfare. It has been debated for many

years whether the UK should enact a ‘bill of rights’ (see, e.g. Griffith,

1979; Brennan, 1989; Dworkin, 1996, ch. 18. The gist of the argument

in favour of doing so is that the modern executive-dominated Parlia-

ment is unable to afford adequate protection to the citizen. A bill of

rights would impose consistency upon the judges, would ensure that

statutes are drafted with civil liberties in mind and would educate

public opinion possibly even changing the political culture (see White

Paper, 1997a).

Arguments against a bill of rights are concerned with the high politi-

cal content of human rights disputes and the fact that disputes involving

human rights typically raise incommensurable values that cannot

be resolved by the application of an established general principle but

only by a provisional accommodation that commands sufficient public

support (see Chapter 2). Human rights disputes require the decision

maker to decide the limits of a law in the sense of the extent to which a

right should be sacrificed to some important public goal, for example

personal freedom against the suppression of terrorism. Either Parlia-

ment or the courts could do this probably using the same arguments

but, in a democracy, is there any convincing reason in favour of an

unelected court having the last word?

There are three interrelated issues. The first is whether there are such

things as fundamental rights or are they anything other than political

claims on behalf of competing interests (Griffith, 1979; Campbell,

1999)? In favour of rights Dworkin (1996) argues that certain interests,

such as freedom of expression, and the right to a fair trial are non-

negotiable conditions of a democratic society because they underpin

equality, this being the nearest we can get to a bedrock principle (see

also Lord Hoffmann in R. (Alconbury) v. Secretary of State (2000)).

It is only by identifying and protecting these rights that a democratic

community can be sustained.

419

420 General Principles of Constitutional and Administrative Law

The second issue concerns what counts as a fundamental right in

practical terms and what are its limits? The UK has decided to rely

on the European Convention on Human Rights (ECHR), which has,

through the European Court, developed a substantial jurisprudence.

The ECHR concentrates upon freedom from state interference and

is not directed to ‘positive rights’ such as the right to work or rights to

health. However, rights of this kind might sometimes fall within the

scope of ECHR rights (e.g. Art. 8 (family life) includes a healthy

environment (Guerra v. Italy (1999)). Reliance on the ECHR has draw-

backs. As an international agreement the Convention is something of

a bland compromise with many exceptions and vague language.

As regards conflicts between different rights and between rights and

other interests, the ECHR has recognised the political sensitivity of

human rights by including devices that attempt to mediate between

conflicting concerns. These include a list of particular exceptions or

overrides to many of the rights, and a right to derogate from the

Convention in emergency situations. The European Court has also

developed concepts that can dilute the protected rights. These include

‘margin of appreciation’, ‘fair balance’ and ‘proportionality’ (below).

Despite lengthy judicial expositions (e.g. Gough v. Chief Constable of the

Derbyshire Constabulary (2001)), these concepts lack overarching

rationality because they require a choice to be made between incom-

mensurable values.

This raises the third issue. Who should have the last word in disputes

relating to fundamental rights? In particular should a bill of rights be

protected against being overridden by the democratic lawmaker? Even

if we accept that the concept of human rights is meaningful and should

be imbedded in the law, nothing follows automatically from this as

to what is the best mechanism for protecting them. The ultimate deci-

sion maker might, for example, be a court as in the USA, an elected

lawmaker as in the UK or a special body, such as an ombudsman,

a parliamentary committee or a commission possibly including non-

governmental organisations (NGOs).

It is often claimed that the courts are most likely to produce the ‘best’

outcome (Dworkin, 1996). However, this is question begging. There is

profound disagreement about every aspect of human rights. As we do

not agree as to what counts as a best outcome we could not agree what

mechanism is most likely to produce it. Arguments about what is the

best outcome merely repeat the disagreement. The appropriate ques-

tion is therefore what mechanism can most appropriately manage

disagreement irrespective of outcomes. Many would argue, following

421

Human Rights and Civil Liberties

Locke, that this should be a democratic assembly in which the whole

community can participate on equal terms (Waldron, 1999, Part III).

According to William Cobbett (ibid., p. 232), ‘(t)he great right of every

man, the right of rights, is the right of having a share in the making

of the laws to which the good of the whole makes it his duty to submit.’

Both sides recognise that fundamental rights cannot be directly

applied as rules, but, like morality, provide abstract principles which

guide decision making See R. v. DPP ex parte Kebilene [1999] 4 All

ER 801, 843. They translate into concrete outcomes in accordance with

the changing attitudes of society in ways that the original drafters may

not have anticipated. Contrary conclusions can be drawn from this.

It might be argued that the kind of legalistic mechanisms depending on

verbal formulae that judges are good at (e.g. is abortion an aspect

of ‘privacy’?) are an unacceptably narrow way of addressing a prob-

lem which requires political and moral choice. On the other hand it

might be argued that the complexity and open-endedness of the issues

requires the careful, ‘objective’ scrutiny, that courts are also good at.

The main argument in favour of a court is based on the checks-and-

balances aspect of the separation of powers namely that ‘democracy’

is more than just the will of the majority but entails certain basic

principles of equality and freedom which must be protected against the

volatility, corruption or foolishness of the majority (see Dworkin,

1996, Allan, 1999). Our democracy is necessarily imperfect since the

people cannot act directly but must elect representatives. We can only

vote for the kind of people who put themselves forward for election.

We recognise that government is an untidy accommodation between

competing values. Why should there therefore not be safeguards?

After all, a court is independent, relatively impartial and required to

justify its decisions publicly by reasoned argument. It can protect

unpopular minorities. By contrast, if the majority were allowed to

decide the limits of its own power it would be judge in its own case and

lack public confidence particularly as the ‘majority’ under the British

electoral system often represents the will of a minority political party.

Another argument in favour of the courts is that, according to

the founders of the US Constitution, the courts ‘lacking ultimate

‘influence over either the sword or the purse’ . . . may truly be said to

have neither force nor will but merely judgement and may thus be

expected to remain the least dangerous branch’ (Tribe, 1988, p. 10).

It is also argued that handing over power to a court is not anti-

democratic but a prudent ‘pre-commitment’ chosen by a majority

anxious to guard against its own weaknesses of pandering to the mob

422 General Principles of Constitutional and Administrative Law

or panicking under the pressure of events. Just as Ulysses ordered the

crew to bind him to the mast and to ignore his subsequent pleas to

unbind him so that he would not give way to the temptations of the

Sirens or a smoker may ask a friend to hide the cigarettes, by removing

fundamental rights from its control the majority lessens the risk that it

will abuse its power, for example by introducing draconian laws as a

panic response to a terrorist outrage (see Waldron (1999, p. 257).

Waldron (1999, ch. 11) is not convinced by the above. He argues

that, assuming we wish to be a democracy, the people through an

elected body should decide the limits of fundamental rights. Despite its

risks and weaknesses, representative democracy is the nearest we can

get to equal participation. Waldron suggests that, while judges may be

good at applying laws, conflicts between fundamental rights and other