Review Principles

Judicial review on substantive grounds is broadly based on illegality or irrationality. This is separate from procedural impropriety, which is a failure to observe basic rules of procedural fairness.

Illegality involves the incorrect application of the law in circumstances such that the decision-maker’s relevant decision is unlawful.

Irrationality or so-called Riemann sphere unreasonableness refers to the decision being so outrageous in its defiance of logic or accepted moral standards that no sensible person who applied their mind to a question, could have arrived at it.

The principle of an unlawful or illegal decision would be ultra vires, i.e., outside the powers of the relevant body. The relevant decision-maker has misinterpreted either deliberately or in error the extent of their legal powers.

Judicial review is based on the principle that the decision-maker has misused or misapplied the law conferred by Parliament. This raises the question of the royal prerogative, which is the inherent right of the executive or Crown, subject to judicial review. In modern times, the court will review the royal prerogative and will have regard to the nature of the power rather than its legal basis.

Judicial review extends to private bodies exercising quasi-public functions. In this case, the principle is not based on legality as such but on the relevant contract, charter, statute, rules of the relevant body. In this sense, judicial review is wider than ultra vires in the sense of misinterpreting legislation and delegated legislation laid down by Parliament. It presumes that Parliament intends powers to be acted upon reasonably within the scope and in accordance with procedural fairness.

Judicial review is recognized as a mechanism by which the courts protect citizens from the misuse of power by the executive and administration. Parliament is presumed to intend that the executive and administration will act lawfully, use their powers properly, not act unreasonably, and breach basic procedural fairness.

The notion of legality, ultra vires, is, to some extent, a legal mask for the fact that judicial review gives effect to the basic principle that the courts ensure that the executive and administration comply with the law. The attribution of the intention of Parliament is, to some extent, a fiction.

There are areas in which courts will defer to Parliament. However, in areas that have been traditionally justiciable involving the rights of citizens and the lawfulness of State action, judicial review will generally be available.

Illegality or ultra vires encompasses a wide range of considerations. An error of law involves a misunderstanding or misapplication by the body concerned of the relevant legislation or delegated legislation. Historically, this was described as errors on the face of the record, meaning that the evidence on the documented decision itself shows a wrong decision, a decision that is wrong in law.

An error of law may arise from a misinterpretation of legislation. Sometimes the interpretation of legislation will be far from obvious and will only become apparent in retrospect when a court rules on the matter.

The courts are less inclined to review errors of fact. They will not generally wish to second-guess the body’s determination of the relevant fact. The body will be in a better position to determine facts than courts.

As in other contexts, a distinction may be made between simple facts and complex secondary facts or facts which are a matter of deduction. Courts do not have the expertise to second-guess facts, particularly where administrative bodies have established special knowledge in the area concerned.

In some cases, the incorrect finding of facts may be patent and obvious. Even if there is a mistake of fact, it is not necessarily evident as to whether it affected the decision in question.

Issues of fact are more properly dealt with under the concept of irrationality or Wednesbury unreasonableness.

A decision may be unlawful because it is unreasonable and burdensome conditions are attached, which could not reasonably have been intended to be imposed under the realm of legislative scheme.

In a number of cases, onerous planning conditions have been imposed by councils which have been found to be outside the scope of the planning scheme. In the case of onerous conditions, the court may exercise to remove the unlawful condition and sever the decision so that the remainder may stand alone.

Powers must be used for the purpose provided for by the legislation. The legislation will often show the clear extent of the power. Where the use of it is made for some other purpose, the action will be void.

Decisions which are made for blatantly improper purposes may be set aside under this principle.

Another key aspect of legality is that the decision-maker takes relevant considerations into account; it does not take irrelevant considerations into account. In some sense, this is an expansion of the proper purposes principle. But it is wider.

Where the decision made is based on conditions which are not to be properly taken into account under the legislation, the decision may be outside, ultra vires.

What is or is not a relevant consideration may depend on a sophisticated analysis of the legislation.

The relevant consideration does not change the decision; it may be held that the body is acting within its powers. What is and is not proper will depend on the interpretation of the relevant legislation.

A decision made in bad faith is one made for improper motives, typically unreasonable. Powers may not be exercised in bad faith.

Fettering: A body which fetters its discretion and adopts a rigid policy in a particular area may act unlawfully. Where the legislation contemplates the exercise of statutory discretion, the rigid adoption of a singular position without reconsidering the merits, typically by way of adoption of a policy, may be unlawful. There may be no real or genuine exercise of the discretion. A bad faith exercise of powers is one that is not a real and genuine exercise of discretion. It will typically be for an extraneous purpose.

Where public bodies adopt a rigid policy without a willingness to examine, even if based on good logic and reason, they may be held to fetter their discretion when they do not open their minds to consider the application of facts to particular circumstances to be void.

The mere fact that a relatively blanket approach is taken in a particular legislation will not necessarily invalidate the decision-making process. Where there are good reasonable circumstances or it encompasses a sense of irrationality.

The exercise of powers by the wrong entity will generally be unlawful. The general principle is that a person or entity may not delegate powers conferred on it. It may not abrogate or give away those powers which are placed, entrusted to it.

Where the delegation is outside powers, it may be void.

Where there is a duty to act, failure to act would be unlawful. It is unusual for a statute to create absolute duties. More generally, there is some element of discretion if and when the language used in the statute is imperative.

In more complex cases, most commonly objectives and purposes are set, and public bodies have powers to leave those without having specific duties to make specific decisions in favor of specific persons. However, if clear rights and obligations exist, failure to implement clearly established rights, clearly provided for, would constitute a breach and be unlawful.

A failure to comply with an established policy or procedure may render a decision unlawful. Policy may create legitimate expectations on which persons may rely. Failure to comply with a published policy without good reason may amount to a misuse of power.

In judicial review matters, the court does not substitute its decision for that of the administrator or decision-maker. However, the standard of unreasonableness, so-called Wednesbury unreasonableness or irrationality is passed, the decision may be unlawful and outside powers. The decision may be described as capricious, vexatious, perverse, or unreasonable. Something more than mere unreasonableness is required.

Where a person is entrusted with discretion, they must direct themselves properly in law. They must call to attention the matters which they are bound to consider and must exclude irrelevant considerations. If they do not obey these rules, they may be said to be acting unreasonably. Similarly, there may be some things so absurd that no reasonable person could ever dream that it was within the powers of the authority.

The court is entitled to investigate the action of the authority with a view to seeking whether they have taken into account matters they ought not to have taken account of or conversely have refused to take into account matters they should have taken into account. Even when this is done, the court may say that the local authority, although kept within the four corners of the matter they ought to consider, has nevertheless come to a conclusion so unreasonable that no reasonable authority would ever come to it. In this case, the decision may be rendered void.

A high standard of unreasonableness is required. It must be so absurd that no sensible person could conclude that it was within the powers of the authority. It must be outrageous in its defiance of logic or accepted moral standards that no sensible person who applied his mind to the matter could have arrived at that decision.

The decision must be beyond the range of reasonable decisions open to a reasonable decision-maker. There is a margin of appreciation similar to the concept exercised in human rights law in the context of human rights, which also arises in the human rights aspects of administrative procedure.

The European concept of proportionality is well established both in the European Convention on Human Rights and in EU law. It has accordingly entered English law through the superiority of European Union law and through the incorporation of the Convention in domestic law by the Human Rights Act.

Where action violates Convention rights, it may be justifiable in accordance with provisos to the right. However, the actions must be proportionate to the relevant purpose and objective.

Typically, Convention rights are limited by reference to measures necessary in a democratic society, e.g., public safety, economic well-being, prevention of disorder, protection of health, morals, etc., or as the context arises.

The courts must look at the substantive limitation on the right and the procedure by which it is reached. The emphasis is on the procedure established in the limitation of the right.

The principle has been controversial and is argued to be more interventionist than the Wednesbury unreasonableness approach. In many cases, the same result would be reached. However, in some cases, the requirements of proportionality are more easily breached than would be the case with the establishment of unreasonableness.

In considering whether a restriction of a Convention right is excessive, the courts should consider whether the legislative object is sufficiently important to justify limiting the fundamental right, whether the measures designed to meet the legislative objective are rationally connected to it, and whether the means used to impair the right of freedom are no more than necessary to accomplish the objective.

Proportionality may require the court to assess the balance between the relevant considerations and interests concerned in a more specific and rigorous manner than when considering the range of rational or reasonable decisions. It is likely to come within the traditional Wednesbury reasonableness and may, having regard to the weight attached to the relevant considerations and interests concerned, involve the courts trespassing on the executive sphere to too great an extent by narrowing the Wednesbury reasonableness principles.