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( 155 .)


(a) Contractual liability
(b) Tortious liability
7 Tribunals

1 Nature and foundations of judicial review
The decision of a minister, local authority or other public o¬cer or body may be
challenged in court by recourse to the machinery of judicial review. Judicial
review is to be distinguished from appeal, which is sometimes available as
a means of contesting an administrative decision. Judicial review is the exercise
of an ancient and inherent supervisory jurisdiction of the court, by which excess
or abuse of public power may be restrained or remedied. On the other hand,
655 The courts: judicial review and liability

appeal to a court against an administrative act is possible only where, excep-
tionally, provision for it is made by statute. Take, for instance, Quigly v Chief
Land Registrar [1993] 1 WLR 1435. Quigly sought to appeal against an admin-
istrative decision of the Chief Land Registrar, but the court ruled that it had no
jurisdiction to hear an appeal from such a decision. This ruling was upheld by
the Court of Appeal. Ho¬mann LJ remarked that ˜A right of appeal to the court
is entirely a creature of statute™; there was no provision in the relevant legislation
for a right to appeal against the decision in question. The judge continued: ˜This
does not mean that the exercise of administrative powers by the registrar is alto-
gether beyond judicial control. I should have thought that it would be subject to
judicial review in the same way and on the same principles as any other public
power.™ While some statutes provide for appeal to a court against the decision of
a public authority (it might be, as in certain planning matters, from the decision
of a minister), provision is more commonly made for appeals against adminis-
trative decisions to be heard by a special tribunal, at all events in the ¬rst
instance, sometimes with a right of further appeal to a court on questions of law.
The distinction between appeal and review was emphasised by Lord Greene
MR in Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB
223, 234 (what he said in this passage with reference to a local authority may be
taken as applying to any public authority whose decision is challenged in pro-
ceedings for judicial review):

The power of the court to interfere . . . is not as an appellate authority to override a deci-
sion of the local authority, but as a judicial authority which is concerned, and concerned only,
to see whether the local authority have contravened the law by acting in excess of the
powers which Parliament has confided in them.

The distinctive features of judicial review were considered by the House of
Lords in Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155.
The Law Lords noted that judicial review is concerned, not with the merits or
demerits of the decision reached by an administrative authority “ with whether
that decision was right or wrong “ but with the process by which the decision
was reached. Lord Hailsham of St Marylebone said:

[I]t is important to remember in every case that the purpose of the remedies [in judicial
review] is to ensure that the individual is given fair treatment by the authority to which he
has been subjected and that it is no part of that purpose to substitute the opinion of the judi-
ciary or of individual judges for that of the authority constituted by law to decide the matters
in question. The function of the court is to see that lawful authority is not abused by unfair
treatment and not to attempt itself the task entrusted to that authority by the law. There are
passages in the judgment of Lord Denning MR (and perhaps in the other judgments of the
Court of Appeal) in the instant case . . . which might be read as giving the courts carte blanche
to review the decision of the authority on the basis of what the courts themselves consider
656 British Government and the Constitution

fair and reasonable on the merits. I am not sure whether the Master of the Rolls really
intended his remarks to be construed in such a way as to permit the court to examine, as
for instance in the present case, the reasoning of the subordinate authority with a view to
substituting its own opinion. If so, I do not think this is a correct statement of principle. The
purpose of judicial review is to ensure that the individual receives fair treatment, and not to
ensure that the authority, after according fair treatment, reaches on a matter which it is
authorised by law to decide for itself a conclusion which is correct in the eyes of the court.

In R v Cambridge Health Authority, ex p B [1995] 1 WLR 898, 905, Sir Thomas
Bingham MR said that a court exercising judicial review has ˜one function only,
which is to rule upon the lawfulness of decisions™.
The jurisdiction and powers of an appellate court or tribunal depend on the
particular provision made in the relevant statute, but in broad terms we may say
that appeal is concerned with merits, judicial review with legality and process.
Again, whereas an appellate court is usually empowered to substitute its own
decision for that of the body appealed from, a court exercising review cannot
normally do this: it is restricted to granting one or more of certain speci¬c
remedies “ for instance, an order setting aside the decision of the administra-
tive body. The courts, as Ja¬ey and Henderson observe, ˜have by historic
warrant and general consent a valuable and indispensable role in the adminis-
trative process™. Their task, say these authors, ˜is to contain administrative activ-
ity within the bounds of delegated power: to apply to administrative action the
test of “legality”™((1956) 72 LQR 345, 346).
The justi¬cation for judicial review has been looked for in the principle that
powers granted to a public body must not be exceeded. This is the ultra vires
principle: the act of a public authority that falls outside the limits of its juris-
diction or powers is unlawful and will be prevented or, after the event, set aside
by the reviewing court. Where power is conferred by statute it will be for the
court to determine what limits Parliament has imposed on the use of the power
and whether those limits have been exceeded.

Daymond v South West Water Authority [1976] AC 609 (HL)
Section 30 of the Water Act 1973 authorised water authorities ˜to ¬x, and to
demand, take and recover such charges for the services performed, facilities
provided or rights made available by them . . . as they think ¬t™. The South West
Water Authority imposed a charge for sewerage services on a householder,
Daymond, whose house was not connected to a public sewer. Daymond con-
tested the validity of the charge.

Viscount Dilhorne: . . . Section 30 must have been intended to entitle water authorities to
demand, take and recover their charges from some persons and classes of persons. Is it to
be inferred that it was the intention of Parliament that they should be at liberty to charge
657 The courts: judicial review and liability

anyone they thought fit in Great Britain? That has only to be stated to be rejected for it is,
to my mind, inconceivable that Parliament should have intended to entrust such an exten-
sive power of taxation to a non-elected body. Is it then to be inferred that it was intended
to give them only power to charge those living in their area and those who came into it and
made use of their services, facilities and rights? I think that such a limitation must be implied.
If that is to be inferred, is it also to be inferred that they are completely at liberty to charge
such of those persons as they think fit? . . .
The natural inference to be drawn from a provision which only says that a statutory body
can demand, take and recover such charges for the services it performs, the facilities it pro-
vides and the rights it makes available, as it thinks fit, is, in my opinion, that it can charge
only those who avail themselves of its services, facilities and rights.

There was no other provision in the Act indicating that any di¬erent interpre-
tation was to be placed on section 30. The House of Lords decided (by a major-
ity) that the charge imposed on Daymond was not permitted by the statute.
What a statute permits, or does not permit, may be spelled out clearly and
unmistakably in the language used: what is intra vires and what ultra vires is
immediately apparent. Often, however, the statutory language is equivocal and
has to be interpreted (as in Daymond™s case, above). In this task the court may
be assisted by presumptions “ for instance, the presumption that Parliament
would not have intended to authorise interference with fundamental rights,
unless its intention to do so appears ˜by irresistible inference from the statute
read as a whole™ (Lord Reid in Westminster Bank v Minister of Housing and Local
Government [1971] AC 508, 529). Presumptions of this kind derive from the
common law, which is to say that the courts have developed them, and so we see
that judicially created principles may be applied by the courts in deciding what
a statute permits to be done. It has been questioned whether, in this case, the
courts are really giving e¬ect to the unexpressed but presumed intention of
Parliament or are rather simply requiring statutory powers to be exercised in
conformity with principles which the courts see it as their responsibility to
uphold, and which have their source in a judicial conception of the rule of law.
If this is so it would seem that the judges are not acting “ or at all events are not
acting exclusively “ on a principle of ultra vires. Rather they are enforcing the
rule of law, taken to mean not only that precisely limited statutory powers must
not be exceeded, but that powers must not be used “ we should say abused “ in
ways or for purposes that run counter to principles of justice and fair dealing
evolved by the courts in the long experience of judging and developing the
common law.
In recent years the ultra vires theory of the basis of judicial review has been
strongly challenged by those who ¬nd the source and justi¬cation of review in the
common law. In their view the principles applied by the courts are not derived
from an implied “ and altogether ¬ctional “ intention of Parliament, but rest on
the historic function and character of courts ˜as guardians and pronouncers of
658 British Government and the Constitution

values anchored in society and culture™ (R Cotterrell in G Richardson and H Genn
(eds), Administrative Law and Government Action (1994), p 17) “ values which
the courts have ˜discovered™ in, or transplanted into, the common law. Paul Craig
and Nicholas Bamforth, ˜Constitutional analysis, constitutional principle and
judicial review™ [2001] PL 763 say (at p 767) that proponents of the common law
model (they are among them):

argue that the principles of judicial review are in reality developed by the courts. They are
the creation of the common law. The legislature will rarely provide any indication as to the
content and limits of what constitutes judicial review. When legislation is passed the courts
will impose the controls which constitute judicial review which they believe are normatively
justified on the grounds of justice, the rule of law, etc. . . . The courts will decide on the
appropriate procedural and substantive principles of judicial review which should apply to
statutory and non-statutory bodies alike. Agency action which infringes these principles will
be unlawful. A finding of legislative intent is not necessary for the creation or general appli-
cation of these principles.

On the other hand, the courts have generally continued to explain the review
jurisdiction in terms of ultra vires, as providing a basis for their far-reaching
power of control that is overtly respectful of parliamentary sovereignty. (See eg,
R v Lord President of the Privy Council, ex p Page [1993] AC 682, 701; Boddington
v British Transport Police [1999] 2 AC 143, 164, 171.) Some academic commen-
tators, too, remain wedded to ultra vires as the comprehensive, unifying princi-
ple of the judicial review of statutory powers and have mounted a spirited defence
of this principle. For them it is no mere ¬ction to say that Parliament, in grant-
ing manifold powers to ministers, local authorities, non-departmental public
bodies and other agencies, does so on an unexpressed condition that the powers
must be used rationally, fairly and for the purposes for which they are given. Even
though a large measure of discretion is allowed in exercising the power “ the
statute using some such phrase as ˜the Minister may, if he thinks ¬t . . .™ “ it is
argued that Parliament cannot be indi¬erent as to whether the power is diverted
to collateral ends that are not compatible with the statutory purpose, or is used
in an arbitrary manner that disregards the rights or legitimate expectations of
individuals, or de¬es reason. If the courts devise principles to forestall abuses
such as these, are they not acting to reinforce the will of Parliament?
(The ultra vires controversy has attracted a considerable literature.
Signi¬cant contributions to the debate can be found in C Forsyth (ed), Judicial
Review and the Constitution (2000). See further M Elliott, The Constitutional
Foundations of Judicial Review (2001); Craig and Bamforth, ˜Constitutional
analysis, constitutional principle and judicial review™ [2001] PL 763; Barber,
˜The academic mythologians™ (2001) 21 OJLS 369; Halpin, ˜The theoretical
controversy concerning judicial review™ (2001) 64 MLR 500; Allan, ˜The consti-
tutional foundations of judicial review™ [2002] CLJ 87.)
659 The courts: judicial review and liability

Although the focus is often on judicial review as a means of protecting the
individual and providing remedies for wrongs done, we should not lose sight of
a broader aim of review. Lord Woolf regards judicial review as ˜primarily con-
cerned with enforcing public duties on behalf of the public as a whole and as
only concerned with vindicating the interests of the individual as part of the
process of ensuring that public bodies do not act unlawfully and do perform
their public duties™ (Protection of the Public: A New Challenge (1990), pp 33“4).
If review is to have a deeper e¬ect in improving the quality of administration
and the o¬cial treatment of members of the public, it must generate clear prin-
ciples which can provide guidance to administrators, who in their turn must
accept a responsibility to act upon the guidance so given. In these respects it
must be said that the achievement of judicial review has been modest. Although
it has developed greatly in recent decades as a means of redress for wrongs, the
principles of review are still something lacking in clarity and precision while the
reaction of the administration to this burgeoning jurisdiction has been mixed,
by turns unaware, acquiescent, sceptical or hostile, less often conscientiously
receptive. There are some indications, however, that a more positive adminis-
trative response may be emerging. (See further Rawlings, ˜Judicial review and
the “control of government”™ (1986) 64 Pub Adm 135; Richardson and Sunkin,
˜Judicial review: questions of impact™ [1996] PL 79; Barker, ˜The impact of judi-
cial review: perspectives from Whitehall and the courts™ [1996] PL 612; Halliday,
˜The in¬‚uence of judicial review on bureaucratic decision-making™ [2000]
PL 110; Sunkin and Pick, ˜The changing impact of judicial review™ [2001]
PL 736; and M Hertogh and S Halliday (eds), Judicial Review and Bureaucratic
Impact (2004). On the tensions “ damaging or creative? “ which may arise
between the judiciary and the executive see Loveland, ˜The war against the
judges™ (1997) 68 Political Quarterly 162 and Woolf, ˜Judicial review: the ten-
sions between the executive and the judiciary™ (1998) 114 LQR 579.)
Judicial review is a procedure which is known to both English and Scots law.
While the principal grounds on which judicial review may be sought are largely
the same in the two jurisdictions, there are several di¬erences of procedure. The
questions ˜against whom may judicial review be sought?™ and ˜who may seek
judicial review?™, for example, are answered di¬erently in English and Scots law
(see further below). In both English and Scots law judicial review has its own
procedure, di¬erent in a variety of respects from ordinary private law proce-
dure. This has been true in English law since 1977 and in Scots law since 1985.
In England the procedure is known as the claim for judicial review. It is gov-
erned by Part 54 of the Civil Procedure Rules. In Scotland the procedure is
known as the petition for judicial review. It is governed by Rule 58 of the Rules
of the Court of Session. The procedures are designed to allow for a relatively
speedy process. Unmeritorious claims or petitions can be dispensed with
quickly. The procedure is not principally designed to allow courts to resolve
substantial disagreements of fact. In most judicial review cases there will be no
disagreement between the parties as to the facts: the issue will be whether the
660 British Government and the Constitution

government minister or other public authority has acted (or is proposing to act)
lawfully or not. For this reason, most evidence in judicial review cases will be
written rather than oral, and there will not be extensive cross-examination. In
both English and Scots law judicial review procedure is exclusive: if a litigant
wishes to argue that an authority subject to judicial review has acted unlawfully,
the judicial review procedure is the only procedure available to them. (The
leading authority on this point in English law is O™Reilly v Mackman [1983]
2 AC 237; in Scots law the issue of exclusivity is clear from the terms of Rule 58.)
The remedies available in judicial review allow the courts to quash an unlaw-
ful decision, to order that a duty be performed, to prohibit an unlawful decision
from being taken or to make a declaration (in Scots law a declarator) “ an
authoritative ruling on a question of law in contention between the parties. In
English law the ¬rst three of these remedies were formerly known as certiorari,
mandamus and prohibition. They are now known as quashing, mandatory and
prohibiting orders. In Scots law they are known as reduction, implement and
suspension. It is important to note that damages, while theoretically available,
are granted in judicial review cases only rarely. This is because of the nature of
the argument in judicial review. As we have seen, the argument in judicial
review focuses less on whether the claimant (or petitioner) should be compen-


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( 155 .)