Public Law Project Information Leaflet 3

A brief guide to the grounds

for judicial review

1. Public law wrongs

Public law is not at base about rights, even though abuses of power may and often do invade private rights;
it is about wrongs that is to say misuses of public power.
(Sedley J in R v Somerset CC ex parte Dixon [COD] 1997 323, QBD).

The ultimate (though not necessarily the most appropriate) means by which public law disputes
are resolved is by bringing the matter before the Administrative Court using a claim for judicial
review. Broadly, in order to succeed, the claimant (the person or body bringing the case) will need
to show that either:

the person or body is under a legal duty to act or make a decision in a certain way and is

unlawfully refusing or failing to do so; or
a decision or action that has been taken is beyond the powers (in Latin, ultra vires) of the

person or body responsible for it.

Only then, will a public law wrong have occurred. Generally, it does not matter if the judge, faced
with the same decision, would have decided the merits of the case differently. This reflects the fact
that judicial review involves supervision of administrative decision making did the public body
act in a lawful manner in deciding the way that it did. There are three categories of public law
wrongs which are commonly used and which will be considered in turn:

(a) Illegality;
(b) Fairness; and
(c) Irrationality and proportionality.

2. The approach of the Administrative Court

The approach of the courts to public law disputes, and the development of special procedures for
handling judicial review claims have a number of important practical consequences. For example:

there are special protections in the procedure intended to ensure administrative decision

making is not paralysed by the prospect of claims, or the way they are pursued. These are
manifested in the time limit rules, and in the requirement to seek permission;
judicial review claims proceed, as far as possible, on the basis of agreed facts. The rules do

not easily accommodate cases where the facts are in dispute (orders for disclosure are rare,
oral evidence rarer);
both parties are expected to co-operate with the court, and take a candid, cards on the table

approach to the litigation;

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the court will sometimes act proactively, bringing issues into play which have not been

raised by either party;
depending on the nature of the decision being challenged, there may be a degree of

deference to the decision maker, given her/his democratic mandate, or special expertise;
the court has a discretion to refuse permission for judicial review, or a remedy, even when

a public law wrong has been committed; and
decisions will often be remitted back to the decision maker with guidance from the court,

rather than quashed.

3. Illegality

Decision-makers must understand the law that regulates them. If they fail to follow the law
properly, their decision, action or failure to act will be illegal. Thus, an action or decision may be
illegal on the basis that the public body has no power to take that action or decision, or has acted
beyond its powers. This arises, for example when the legislation relating to a public body does not
include the necessary power or has precise limits on when the power can be used. Public bodies
acting illegally in this way can be described as acting ultra vires (which means beyond or
outside their powers).

Sometimes legislation allows the exercise of a wide and seemingly unrestrained discretion by the
public body, or provides that a duty should be discharged in certain circumstances, but does not
prescribe a particular process for determining whether those circumstances arise in an individual
case. Here, illegality can occur where the action, failure to act or decision in question violates the
public law principles set down by the courts for processes of this kind. These principles require
public bodies to:

take into account relevant information (and to assign the appropriate amount of weight to

such information), and to ignore irrelevant information;
ask the right questions and to undertake sufficient enquiry, for example by addressing the

right issue, and taking reasonable steps to obtain the information on which a proper
decision can be based;
not to delegate a decision for which they are exclusively responsible, and that therefore

only they can make - allowing another person to take a decision for them, means that they
are giving their power away and fail to be properly accountable.
ensure that they have not fettered their discretion by for example applying a very rigid

policy as if it were legislation.
comply with the Human Rights Act by acting compatibly with the Convention, so far as it

is possible for them to do so.

4. Fairness

Fairness demands that a public body should never act so unfairly that it amounts to an abuse of
power. This means that:

1. If there are express procedures laid down by legislation that it must follow in order to reach a
decision, it must follow them.

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2. It must not breach the rules of natural justice. One of the key issues here is the rule against bias,
which requires the public body to be impartial and to be seen to be so. For example, the public
body must not allow decisions to be made by people who have strongly held views which may
cause them to reach a decision based on prejudice, nor allow decisions to be made by people
who have a financial interest in the decision.

There must also be a fair hearing before a decision is reached, although this does not always
literally mean an oral hearing. Basically, a person is entitled to know the case against them,
and must have the opportunity to put their case properly. Any other requirements above and
beyond this will depend on the seriousness of the issue, for example, if someones livelihood or
liberty is at stake. Examples of unfairness could include the following:

Failing to tell the individual what the case was against them, or taking into account
evidence or factors which s/he was not aware of

Failing to allow the individual to put their case forward

Failing to give the individual the facilities for putting their case forward properly

Refusing to hear evidence which might have led to a different decision

Denying access to relevant documents

Holding a hearing in the absence of the individual when they had a good reason for
not being able to attend

Failing to notify the individual of the time and place of the hearing that would lead
to the decision being taken

Failing to consult those who the public body had a duty to consult, or those who
had a legitimate expectation that they would be consulted before the decision
was made, perhaps because they had been consulted in the past or because it would
seem obvious that someone has an interest in a matter and should be consulted.

A legitimate expectation may also arise where a public body has made a promise of a benefit, and
it then goes back on this promise. In this instance the courts have said that it could amount to an
abuse of power to take such a benefit away. The classic example here is a promise of a home for
life which was in fact what the key case was all about. A local authority that had promised a
resident of a care home that it would remain their home for life, was found to have acted
unlawfully by breaching this promise.

Finally, fairness may also demand that the public body give reasons for their decision. Certain
statutory procedures will require this, although there is no specific requirement in law generally.
However, more recent cases have suggested that in certain circumstances reasons should be given,
and this will often depend on the nature of the decision and how important it is to an individual.
Reasons for a decision may be required when the decision-maker is a professional judge, the
decision would otherwise appear aberrant (aberrant meaning to diverge from the normal type), or
where the subject matter is particularly highly regarded, such as a persons liberty.

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5. Irrationality and proportionality

The courts may also intervene to quash a decision if they consider it to be so demonstrably
unreasonable as to constitute irrationality or perversity on the part of the decision maker. The
benchmark decision on this principle of judicial review was made as long ago as 1948, in the
Wednesbury case:

"If a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to
it, then the courts can interfere... but to prove a case of that kind would require something overwhelming...
Lord Greene Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB
223, HL.

This threshold is extremely difficult to meet, which is why the Wednesbury ground is usually
argued alongside other grounds, rather than on its own. The onus is also on the claimant to
establish irrationality or perversity.

However, the threshold will be a lower one, that of proportionality, when European Union law or
Human Rights Act breaches are involved. In general terms, the concept of proportionality requires
a balancing exercise between, on the one hand, the general interests of the community and the
legitimate aims of the state and, on the other, the protection of the individuals rights and interests.
One approach is to ask:

is the states objective legitimate?

is the measure suitable for achieving it?

is it necessary, in the sense of being the least intrusive means of achieving the aim? and

does the end justify the means overall?

The onus also lies upon the State to show that these conditions can be met.

6. What shall I do next?

If you think you may have grounds to bring a judicial review you should seek advice from a
solicitor who specialises in public law or in the area of law which covers your situation e.g.
housing, community care etc. Dont forget you may be able to make a formal complaint or go to
the Ombudsman instead. There is more information in the other leaflets in this series.

This leaflet is copyright Public Law Project October 2006. You may print copies for your own personal use only.
Copies of this leaflet can be obtained free of charge from www.publiclawproject.org.uk
The information contained in this leaflet is for information only. You should always seek advice from an appropriate
adviser or solicitor in relation to the specific circumstances of your own case.

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