One of the cornerstones of administrative law in England and Wales is the concept of judicial review. In English law, judicial review allows a member of the public who is affected by the decisions of a public body, to lodge an appeal with the High Court to have the decision reviewed by a judge.
Not all decisions can be referred to the courts for judicial review, however. The various grounds for appeal have developed over time, culminating in the court's decision in Council for Civil Service Unions v. Minister for the Civil Service [1985] that the only grounds for appeal were: illegality, irrationality and procedural impropriety.
What is a Public Body?
Until 1987, judicial review was available only as a remedy against decisions of public bodies. A public body is simply a body that exercises powers for the benefit of the public, rather than personal or private profit. Traditionally this definition has meant judicial review was limited to decisions of local government, the NHS and similar entities.
However, following the High Court's decision in R v. Panel on Takeovers and Mergers, ex parte Datafin Ltd [1987], any private body which exerts public functions may have decisions relating to those public functions subjected to judicial review also.
What is Illegality in Judicial Review?
For the purposes of administrative and public law, illegality is a catch-all term for decisions that covers any decision which is not supported by law. This can include abuses of power and also the traditional ultra vires rule; which the common law had traditionally classified as separate grounds for review.
The High Court ruled in Anisminic Ltd v. Foreign Compensation Commission [1969] that public bodies would be ultra vires if they attempted to decide a case that was outside of their area of control, or made errors of law in their decision-making process.
However, Re Racal Communications [1981] extends this latter case further by ruling that any “error of law” is ground for review as an illegality. This has the advantage of removing the need to determine whether an error is ultra vires, and therefore actionable, or within the remit of the body in question.
The Definition of Irrationality in Administrative Law
For the most part, English law defines irrationality in the same manner as the ordinary person would understand it. In Associated Picture Houses Ltd v. Wednesbury Corporation [1948], the High Court defined irrationality as “so unreasonable no reasonable body could have come to the decision”.
This Wednesbury unreasonableness, as it became known, formed the basis of many judicial review cases until the decision in Council for Civil Service Unions v. Minister for the Civil Service [1985] further expanded irrationality further.The 1985 case allows the wider ground of appeals for decisions “so outrageous in defiance of logic and moral standards that no sensible person could have arrived at [them]”.
Procedural Impropriety
In Council for Civil Service Unions v. Minister for the Civil Service [1985], Lord Diplock regarded procedural impropriety as any error in the procedure a body was to follow when coming to a decision. This can include bias; a breach of the common law's rules of fairness; or deviation from the procedures laid down by statue, amongst other things.
Due to its complexity, the common law recognises two forms of bias: standard bias and apparent bias. In order to remove the possibility of bias, Dimes v. Grand Junction Canal Co. (1852) states that any pecuniary interest bars a decision-maker from making decisions in a case.
While Locabail (UK) Ltd v. Bayfield Properties [2000] established that a judge can ordinarily be expected to set aside any irrelevant personal interests in order to decide a case, R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) [2000] established that non-pecuniary interests, such as membership of a club or other organisation, may be sufficient to bar a decision-maker from the decision-making process.
Apparent bias has a similar open definition to that described above. The case of Porter v. Magill [2002] simply defines it as “where a fair-minded and informed observer would conclude there was a real possibility of bias”. This later definition would seem to cover the pecuniary and non-pecuniary issues established in the earlier cases as well as establishing wider grounds for future appeals.
Judicial review is a wide-ranging system of grounds of appeal against the decisions of both public bodies and private entities exercising public functions. Where a decision is thought wrong on the grounds of illegality, irrationality or procedural impropriety, individuals have the right to petition the High Court for leave to appeal the decision. This is in addition to any appeals process the body in question may have set in place itself.
Zoe Kirk-Robinson - Zoë Kirk-Robinson is a freelance writer/artist specialising in legal writing, internet technology and creative writing. She holds a ...
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