Judicial Review: Examples Of Forms Of Protection Against The Overreach Of Executive Powers

Judicial Review

Judicial Review (JR) is a course of proceedings that questions the decisions made by governing bodies and other public authorities to establish whether or not they acted lawfully when making their decisions. This shows signs that the JR process is sufficient enough to limit the overreach of executive powers. The courts are there to maintain the lawfulness of the decision-makers, as an authoritative figure. JR is not to be used to challenge the decision already been made, but to question the legality of the final outcome. Even if after the review finds flaws with the legality of the decision, the same conclusion may be reached, as long as the process is now carried out in a legal manner. If a JR is successful this would usually result in a previous decision being overturned or for the original process to be assessed for a second time taking into account the outcome of the JR.

To apply for JR there are three important questions that need to be answered. First of all is it a public body or a body that is carrying out public function. If it is a private company or organisation there are different courses of actions to take. Secondly do you personally have enough of an interest in the matter. If the decision you wish to review has no impact on you or any kind of relevance to you at all then JR will not be permitted. Third of all, have all other possible avenues been considered? If there are other steps to be taken they should be done so before applying for JR as this is seen as a last resort, and JR can be declined on that basis.

When you consider the possible grounds for applying for JR, it is clear to see that there are plenty of courses of actions to take. Grounds for JR are illegality, irrationality, procedural impropriety, proportionality, legitimate expectations and human rights. Lets look at each one individually to identify how they are used to protect against the use of executive powers.

Illegality.

If the decision-maker did not have the relevant legal powers to make the initial decision, then the decision can be overturned due to the illegality of it, if the authority acts outside the powers conferred (ultra vires) by the legislation as in the case of R v Thames Magistrates’ Court, ex p Clapton Cash & Carry Ltd [1989] COD 518.

“In this case the magistrate had made an order under s9(3) Food Act 1984 in which he condemned food at the applicant’s shop oand ordered it to be destroyed. The applicants, the company who owned the shop and Mr Badat, a director of that company, sought relief by way of judicial review of the order as there was no right of appeal against it under the Food Act 1984.The relief sought was an order to quash the magistrate’s order on the grounds that it was made outside the magistrate’s powers”

Therefore in their view making the decision illegal. (OU 2020 Unit4 .1)

Jurisdictional errors.

If errors are made of the law, or makes errors of fact, a person would be able to initiate JR, such as in the case of Galloway v London Corp (1866) LR 1 HL 34).

“It was held that when persons were authorised by Parliament to compulsorily acquire land from others, they cannot be allowed to exercise powers conferred on them for any collateral object; that is, for any purpose except for those which the legislature has invested them with extraordinary powers.”

Showcasing the jurisdictional error. (OU 2020 Unit 4. 1.3)

If the process proceeding a decision was deemed unacceptable, implicating procedural impropriety, this would be good cause for JR. “In R v Gough [1993] AC 646 at 670, “per Lord Goff of Chievely, it was held that for a decision to be impugned (questioned) there had to be a real danger of bias, in the sense that the decision-maker might be regarded as favouring one party to the decision under consideration over another.”

Questioning the impropriety of the decision. (OU 2020 Unit 4.6.1)

If a decision is made that would be deemed as completely unreasonable implying irrationality, could cause a decision to be overturned. Its clear to see that the judgment in Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223.] the judge identified three grounds of review. One of them being that the use of statutory powers “if it uses them to produce “unreasonable” or “irrational” results.” Meaning that no reasonable person could have rightly thought that Parliament would have indeed allowed that decision to be made. (page 54 Loveland 2018)

If a course of action is disproportionate to the target being achieved there are grounds for JR due to Proportionality. For example in the case of Wood v Commissioner of Police of the Metropolis [2009] EWCA Civ 414, [2010] 1 WLR 123 “the Court of Appeal held that the police had failed to justify as proportionate interference with art 8 ECHR when they took and retained photographs of a shareholder, who was otherwise a person of good character and with no previous conviction and who the police had no reason to believe guilty of any misconduct, leaving a hotel where the company’s AGM was taking place. The shareholder was a campaigner against the arms trade and the company was involved in organising an arms trade fair”

The police had no right to retain any information of the individual as it had no bearing on their investigation. (OU 2020 Unit 4.4 )

If a decision-maker has expressly stipulated that proceedings will commence with regards to a particular manor but fails to do so this is a failure of legitimate expectations this is then grounds for JR. The term, is used when someone is led to believe by the decision-maker, that they will be put at some kind of advantage by the outcome, whether it is substantive or procedural.

“Protection of expectations given by public authorities is now an aspect of, and can be said to reside in, the extended principles of the rule of law that require predictability and legal certainty. Where a public authority adopts a repeated practice or makes a promise, the law requires that practice or promise to be honoured unless there is a good reason not to do so. In R (Nadaraha) v Secretary of State for the Home Department [2005] EWCA Civ 1363, this was ruled to be part of the principle of fairness and good administration by public bodies in the way that they deal with the public.”

Therefore breaking the terms of an agreement or even a contract whether it verbal or written. (Open University (OU) 2020 Unit 4.3)

Human rights is another ground for JR. If a persons human rights, set out in the ECHR Article 6, the victim of that particular breach is entitled to seek JR. For example, in R (Corporation of London) v Secretary of State for Environment, Food and Rural Affairs [2004] EWCA Civ 1765, [2005] 1 WLR 1286, a decision by the department in granting consent to a market authority to grant leases, was found to be susceptible for judicial review, despite it having a strong private law contractual element. Equally, while employment law cases involving terms and conditions are generally deemed not subject to judicial review, where an employer exercises a power which is not wholly contract-based it may be.”

Although not a public authority breaching a person’s human rights would come under review. (OU 2020 Unit 3.1 )

When looking back at at all the different grounds of JR its clear to see that it is the most effective way of holding our public bodies and government to account for the unlawful actions they may take. It can be seen as protecting the public interests by reviewing the fairness of their. It gives the general public as individuals or our organisations the ability to challenge the decisions being made and to address whether or not they are indeed abiding by the law.

Judicial review, as set up in the UK Constitution, is sufficient to protect against the overreach of executive power.