Introduction
Judicial review is a fundamental constitutional process in England and Wales through which the courts supervise the exercise of power by public bodies. It is not an appeal on the merits of a decision, but rather a review of the decision-making process itself. The core function of judicial review is to ensure that public bodies act within their legal powers (intra vires), upholding the rule of law and ensuring fairness to the individual. The modern framework for the grounds of judicial review was famously categorised by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, often called the GCHQ case. This essay will enumerate and explain these principles: illegality, irrationality, and procedural impropriety, as well as the developing ground of proportionality.
Illegality
The first ground of review is illegality. This principle requires that a decision-maker must correctly understand the law that grants them power and must act within the limits of that power. As Lord Diplock stated in the GCHQ case, the decision-maker "must understand correctly the law that regulates his decision-making power and must give effect to it" (p. 410). A public body acts illegally if it acts beyond its powers, a concept known as ultra vires. This can happen in several ways. A public body may make an error of law, as established in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, where the House of Lords held that any error of law by a public body will make its decision unlawful. It can also occur if a body acts for an improper purpose or considers irrelevant factors, as seen in Attorney-General v Fulham Corporation [1921] 1 Ch 440, where a local authority with the power to provide public wash-houses acted illegally by setting up a commercial laundry. Furthermore, a public body may not unlawfully delegate its power or fetter its discretion by adopting an overly rigid policy.
Irrationality
Irrationality, also known as 'Wednesbury unreasonableness', is the second ground. This principle stems from the case of Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. Lord Greene established that a court could intervene if a decision is "so unreasonable that no reasonable authority could ever have come to it" (p. 230). In the GCHQ case, Lord Diplock preferred the term 'irrationality', describing it as a decision "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it" (p. 410). The threshold for proving irrationality is exceptionally high, as courts are cautious not to substitute their own view for that of the public authority. It is reserved for extreme cases where the decision defies all logic and reason.
Procedural Impropriety
Procedural impropriety covers failures in the decision-making process. It can be divided into two main areas: a failure to observe statutory procedural rules and a failure to observe the common law rules of natural justice. Firstly, if a statute lays down a procedure that a public body must follow, a failure to comply with it can render a decision unlawful, particularly if the procedure is deemed to be mandatory. For example, in Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd [1972] 1 WLR 190, a minister’s failure to consult a key representative body as required by statute rendered the order made invalid in respect of that body. Secondly, procedural impropriety includes breaches of the rules of natural justice. These are the rule against bias (nemo iudex in causa sua – 'no one should be a judge in their own cause') and the right to a fair hearing (audi alteram partem – 'hear the other side'). The rule against bias was famously applied in R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119, where a decision was set aside due to a judge's connection with one of the parties. The right to a fair hearing requires that those affected by a decision are given a chance to present their case.
Proportionality
A further ground, which has gained significant traction in recent decades, is proportionality. This principle, which originated in European law, is generally considered a more intensive standard of review than Wednesbury unreasonableness. Proportionality requires the court to assess the balance struck by the decision-maker, considering whether the objective of a decision justifies the limitation of a right (Craig, 2021). It is primarily applied in cases concerning rights under the Human Rights Act 1998 and former EU law. In R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, the House of Lords noted that proportionality involves a more structured inquiry than traditional irrationality. While senior judges have suggested it may eventually replace the Wednesbury test for all cases, it has not yet been fully adopted as a general ground of review in all areas of domestic administrative law.
Conclusion
In summary, the principles of judicial review as enumerated by the courts provide the legal basis for holding public bodies to account. The grounds of illegality, irrationality, and procedural impropriety, originating from Lord Diplock’s classification in the GCHQ case, form the cornerstone of administrative law. They ensure that decisions are made lawfully, rationally, and with procedural fairness. The emergence of proportionality as a distinct ground, particularly in human rights cases, shows that these principles are not static and continue to evolve to protect the rights of individuals against the power of the state.
References
- Craig, P. (2021) Administrative Law. 9th edn. Sweet & Maxwell.
Cases
- Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd [1972] 1 WLR 190.
- Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.
- Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.
- Attorney-General v Fulham Corporation [1921] 1 Ch 440.
- Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
- R (Daly) v Secretary of State for the Home Department [2001] UKHL 26.
- R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119.
