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sated and more on whether the public authority under review has acted lawfully
or not. Damages and compensatory remedies are, however, beginning to grow
in importance in public law, not least (as we saw in chapter 5) under the
in¬‚uence of European Community and European human rights law. We con-
sider their availability against the Crown and other public authorities when we
examine questions of liability later in this chapter.
Judicial review procedure and remedies are considered in greater depth in the
literature on administrative law: see eg, C Harlow and R Rawlings, Law and
Administration (2nd edn 1997), ch 16; S Bailey, Cases, Materials and
Commentary on Administrative Law (4th edn 2005), ch 14; M Elliott,
Administrative Law: Cases and Materials (3rd edn 2005), chs 13, 14 and S Blair,
Scots Administrative Law: Cases and Materials (1999), chs 10, 11.


2 Grounds of review
In Council of Civil Service Unions v Minister for the Civil Service (the ˜GCHQ™
case) [1985] AC 374, 410, Lord Diplock said:

Judicial review has I think developed to a stage today when . . . one can conveniently clas-
sify under three heads the grounds upon which administrative action is subject to control by
judicial review. The first ground I would call ˜illegality™, the second ˜irrationality™ and the third
˜procedural impropriety™.

In identifying these categories Lord Diplock had no intention of setting a limit
to the expansion of judicial review, for he added: ˜That is not to say that further
661 The courts: judicial review and liability


development on a case by case basis may not in course of time add further
grounds.™ We shall consider the grounds of review under Lord Diplock™s three
heads, albeit that in our consideration of irrationality we shall also consider
questions of proportionality. For reasons that we shall explore, these now need,
at least in some cases, to be read together. It is important to recognise that the
various heads of review are not entirely distinct. As Lord Irvine LC remarked in
Boddington v British Transport Police [1999] 2 AC 143, 152:

Categorisation of types of challenge assists in an orderly exposition of the principles under-
lying our developing public law. But these are not watertight compartments because the
various grounds for judicial review run together. The exercise of a power for an improper
purpose may involve taking irrelevant considerations into account, or ignoring relevant con-
siderations; and either may lead to an irrational result. The failure to grant a person affected
by a decision a hearing, in breach of principles of procedural fairness, may result in a failure
to take into account relevant considerations.


The grounds of review, with one relatively minor exception concerning ultra
vires (see below), are largely the same in English law and in Scots law. The Court
of Session was quick to accept that Lord Diplock™s formulation of the grounds
of review in the GCHQ case applied also in Scots law: see City of Edinburgh DC
v Secretary of State for Scotland 1985 SC 261.


(a) Illegality
If a public authority acts in bad faith, deliberately exceeding the limits of its
power, it is guilty of illegality. Such conduct is rare, and when a public author-
ity acts illegally it is generally as a consequence of an error of law, be it in mis-
interpreting a statute or disregarding common law principles that govern the
exercise of public power. At one time it was held that only certain errors of law
would a¬ect the validity of a decision, namely those which related to the scope
of the decision-maker™s powers (jurisdictional error) or which appeared on
the face of the record of the decision taken, but in English law these limitations
have been overcome and it is now clear that any relevant error of law (a¬ecting
the decision reached) can result in the decision being quashed by the court. (See
Anisminic v Foreign Compensation Commission [1969] 2 AC 147. This is not the
case in Scots law, where the distinction between ultra vires and intra vires errors
of law continues to be important: see eg, Watt v Lord Advocate 1977 SLT 130,
1979 SLT 137.) Lord Gri¬ths summarised the English law position as follows
(in R v Lord President of the Privy Council, ex p Page [1993] AC 682, 693):

If [administrative bodies] apply the law incorrectly they have not performed their duty cor-
rectly and judicial review is available to correct their error of law so that they may make
their decision upon a proper understanding of the law.
662 British Government and the Constitution


Administrative action may be shown to be invalid on the simple ground that
the public authority has stepped outside limits clearly ¬xed by a statute confer-
ring the power: here we may surely still say that the authority has acted ultra
vires. Such action is properly described as illegal. In addition, an exercise of
power “ or a failure to exercise it “ will o¬end against legality if such conduct
runs counter to the policy and objects of the empowering Act or defeats the
purpose for which the power was given. We may distinguish several ways in
which this kind of default, or illegality, may occur.
(1) Extraneous or improper purposes. A power-conferring statute will doubt-
less be found to give a discretion to the public o¬cer or body concerned. Any
such discretion may be exercised only for the purposes “ to be discovered by
construing the Act as a whole “ for which it was given and not for extraneous
purposes of the decision-maker.
In R v Secretary of State for Foreign A¬airs, ex p World Development Movement
[1995] 1 WLR 386 we see a striking instance of a minister™s decision being
held unlawful because it was not within the statutory purpose. The Overseas
Development and Co-operation Act 1980 authorised the minister to provide
¬nancial assistance ˜for the purpose of promoting the development or maintain-
ing the economy™ of a country outside the United Kingdom. It was held by the
Divisional Court that this provision did not empower the minister ˜to disburse
money for unsound development purposes™: in this instance the contemplated
development (the Pergau Dam in Malaysia) was ˜so economically unsound that
there is no economic argument in favour of the case™. The minister had taken into
account the ˜wider perspective™ of the United Kingdom™s political and commer-
cial relations with Malaysia in approving the project, but the decision to give
¬nancial aid to so uneconomic a scheme was not permitted by the Act. Following
the court™s decision, funds set aside for the Pergau Dam were reallocated for
emergency aid in Bosnia, Rwanda and other parts of the world. See the analysis
of this case by Harden, White and Hollingsworth [1996] PL 661.
This kind of abuse of power was also seen in Porter v Magill [2001] UKHL 67,
[2002] 2 AC 357. Under section 32 of the Housing Act 1985 local authorities
had power to dispose of land in furtherance of lawful public purposes.
Westminster City Council adopted a policy of increasing the sales of residential
properties in the city and in particular to sell 250 properties a year in eight mar-
ginal electoral wards. The aim of this policy was not the achievement of proper
housing objectives: rather it was contemplated that purchasers would as owner-
occupiers be likely to vote Conservative and that the composition of the
electorates in the eight marginal wards would be altered so as to improve the
prospects of the Conservative Party in the 1990 council elections. The House of
Lords held that the council™s adoption and implementation of this policy was
a deliberate misuse of the statutory power for an unauthorised and improper
purpose and was unlawful.
Statutes commonly specify the purposes for which a power is conferred and so
expressly indicate the limits of the discretion allowed. In other cases restrictions
on an exercise of statutory power may be inferred from the general purposes of
663 The courts: judicial review and liability


the Act or from fundamental principles which, it is presumed, Parliament will
have intended to uphold.


R v Ealing London Borough Council, ex p Times Newspapers Ltd (1986)
85 LGR 316 (DC)
Ealing London Borough Council was, by virtue of the Public Libraries and
Museums Act 1964, a library authority. As such it was empowered to provide a
public library service and was under a duty to provide a comprehensive and
e¬cient service for all persons in the borough (s 7).
Times Newspapers Ltd and other newspaper groups were engaged in a bitter
industrial dispute with dismissed print workers and their trade unions. In
response to representations from the unions and as a way of supporting their
cause, Ealing Council, acting in concert with other library authorities, banned
from public libraries in the borough all copies of newspapers and periodicals
published by the newspaper groups concerned in the dispute. A resident in the
borough applied for judicial review of the decision. The Divisional Court held
that it was ultra vires and void as an abuse of the council™s power.


Watkins LJ: . . . I am of the opinion that the ban imposed by the borough councils was for
an ulterior object. It was inspired by political views which moved the borough councils to
interfere in an industrial dispute and for that purpose to use their powers under the Act of
1964. Parliament, I am sure, did not contemplate such action as that to be within the power
it conferred when it enacted section 7.


We may ask, what considerations led the court to its conclusion that Parliament
had not intended to authorise such action as was taken by the council in this
case? In considering whether power has been used for an improper purpose
we may need to invoke common law principles rather than speculate about
Parliament™s intention. TRS Allan regards the decision in the Ealing case as an
application of a principle of equality “ ˜the right to be free from unfair or hostile
discrimination at the hands of the state™ “ which, he claims, is fundamental to
the rule of law: Law, Liberty, and Justice (1993), pp 170“1. Other cases that may
perhaps be explained in this way include Wheeler v Leicester City Council [1985]
AC 1054 and R v Lewisham London Borough Council, ex p Shell UK Ltd [1988] 1
All ER 938. (See Allan, above, pp 166“70; for a more sceptical interpretation of
Wheeler v Leicester City Council, see A Tomkins, Public Law (2003), pp 179“80.)
(2) Irrelevant considerations. It is further necessary, if the exercise of discre-
tionary power is to satisfy the requirement of legality, that the deciding author-
ity should take account of all considerations that are relevant to its decision
and disregard irrelevant considerations: arbitrary action in violation of these
constraints is held to be illegal. A statute may itself specify considerations to be
taken into account, but what factors are or are not relevant to the exercise of
a power will often be a matter of construction or inference. As Lord Bridge
664 British Government and the Constitution


observed in R v Tower Hamlets London Borough Council, ex p Chetnik Develop-
ments Ltd [1988] AC 858, 873, ˜if the purpose which the discretion is intended
to serve is clear, the discretion can only be validly exercised for reasons relevant
to the achievement of that purpose™.
Pad¬eld v Minister of Agriculture, Fisheries and Food, which revitalised judi-
cial review after a long period of quiescence, by setting a precedent for a more
penetrating scrutiny of executive action, was a case in which a minister™s
decision was held to be vitiated because he had been in¬‚uenced by irrelevant
considerations.


Padfield v Minister of Agriculture, Fisheries and Food [1968]
AC 997 (HL)
A milk marketing scheme for England and Wales had been established under
the Agricultural Marketing Act 1958. Under the scheme producers had to sell
their milk to a Milk Marketing Board, which itself ¬xed the prices to be paid, on
a regional basis. The Act provided machinery for dealing with complaints made
by producers to the minister about the operation of the scheme. A complaint
would be referred, ˜if the Minister in any case so directs™, to a committee of
investigation which would consider the complaint and make a report to the
minister. If the committee reported that anything done under the scheme was
contrary to the interest of the complainants and was not in the public interest,
the minister was empowered (although not obliged) to make an order amend-
ing the scheme. Producers in the south-eastern region complained to the
minister that the prices being paid to them by the board were too low and asked
that their complaint should be referred to the committee of investigation. The
minister refused to refer the complaint and the producers applied to the court
for an order commanding him to refer it.
Plainly the minister was not under a duty to refer every complaint to the com-
mittee of investigation and the minister argued that the Act gave him an unfet-
tered discretion (˜if the Minister . . . so directs™) whether or not to refer. The
House of Lords rejected this. Although the discretion was expressed in
unquali¬ed terms it must be exercised (per Lord Reid) ˜to promote the policy
and objects of the Act™. The minister had given his reasons for refusing to refer
the complaint and their Lordships went on to examine these. The minister had
said, in the ¬rst place, that the complaint raised wide issues, a¬ecting the inter-
ests of other regions and the price structure as a whole. Secondly, if the com-
mittee were to uphold the complaint the minister was concerned that he would
be expected to give e¬ect to its recommendations: the implication here, as their
Lordships saw it, was that a report by the committee might generate pressure on
the minister to take corrective action, against his judgement, and put him in a
politically embarrassing position.
The House of Lords held (Lord Morris dissenting) that the considerations on
which the minister had taken his decision left altogether out of account the
665 The courts: judicial review and liability


merits of the complaint and showed that he had misdirected himself in law.
That the complaint raised wide issues and a¬ected other regions was not a good
ground for refusing to refer it to the committee of investigation; on the contrary,
these were matters which the committee was well quali¬ed to investigate. As to
the possibility of political embarrassment, that was manifestly a bad reason and,
as Lord Upjohn remarked, was ˜alone su¬cient to vitiate the Minister™s decision
which . . . can never validly turn on purely political considerations™. In the result
the minister was directed to reconsider the complaint according to law.
The sequel to this decision was that the minister duly reconsidered the com-
plaint and referred it to the committee of investigation. The committee reported
in favour of the complainants: it was then for the minister to decide whether there
were ˜other public interests which outweigh the public interest that justice should
be done to the complainers™ (per Lord Reid in Pad¬eld). The minister concluded
that it would not be in the public interest to give e¬ect to the committee™s report.
This outcome shows the limits of judicial review, which does not allow a
court to substitute its own judgement of what is good policy for that of the min-
ister. Yet even the ¬nal decision of the minister in this case would have been
reviewable if he had again acted under a misapprehension as to what was legally
required of him in exercising his statutory discretion.
In this case the statute did not oblige the minister to give reasons for a refusal
to refer a complaint to the committee. He chose to give reasons and they were
found to be bad in law. Suppose that he had given no reasons. The Law Lords
were in no doubt that even so a court could intervene if the circumstances indi-
cated that the minister had acted contrary to the policy and objects of the
statute. This point was elaborated as follows by Lord Keith in R v Secretary of
State for Trade and Industry, ex p Lonrho plc [1989] 1 WLR 525, 539“40:

The absence of reasons for a decision where there is no duty to give them cannot of itself
provide any support for the suggested irrationality of the decision. The only significance of
the absence of reasons is that if all other known facts and circumstances appear to point
overwhelmingly in favour of a different decision, the decision-maker, who has given no
reasons, cannot complain if the court draws the inference that he had no rational reason for
his decision.

It is not always clear in advance what the courts will deem to be a relevant or
irrelevant consideration. R v Somerset County Council, ex p Fewings [1995] 1 All
ER 513 (DC) and [1995] 1 WLR 1037 (CA) concerned a decision of a local
authority to ban stag hunting on its land. The authority purported to rely on a
power in the Local Government Act 1972 which allowed it to make decisions
relating to the ˜bene¬t, improvement or development™ of the area (s 120(1)(b)).
It was clear that the authority had resolved to ban stag hunting on the land
because a majority of the councillors voting found it to be morally repulsive.
In the Divisional Court Laws J held that the authority had acted illegally as
the statutory power was not broad enough to encompass the sort of moral
666 British Government and the Constitution


judgement the councillors had sought to make: the statutory language ˜is not
wide enough to permit the council to take a decision about activities carried out
on its land which is based upon freestanding moral perceptions™, he ruled.
A majority of the Court of Appeal a¬rmed the decision of Laws J, but on

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