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for judicial review of the decisions.

Glidewell LJ: . . . In my judgement the agreement of 1985 to establish the mechanism known
as the modified colliery review procedure and the fact that the mechanism was constantly
used thereafter . . . gave to the [unions] and their members . . . a legitimate expectation.
This expectation was that, when British Coal proposed to close any pit or pits, they would
consult the relevant unions by using the review procedure, including the independent review
body, if the unions so wished, and would not withdraw the use of that consultative mecha-
nism without first informing the unions of their intention to do so and giving them a proper
opportunity to comment and object. Moreover, if British Coal wished to take this step, section
46(1) of the Act of 1946 obliged them to initiate consultations about an alternative proce-
dure. This in my judgement is a classic example of legitimate expectation.
The decisions announced by both the President of the Board of Trade and British Coal . . .
ignored British Coal™s obligation under section 46(1) and completely failed to satisfy the legit-
imate expectation of the mineworkers™ unions and their members that the review procedure
would continue to be followed unless and until notice to the contrary had been given.

The decisions were therefore unlawful. It was also held that in deciding not to
follow the review procedure, thereby depriving the unions and the workforce of
any independent scrutiny of the present and likely future pro¬tability or loss-
making capacity of each of the ten pits, the minister and British Coal had acted
irrationally. For this reason, also, the decisions could not stand.
In the cases considered so far, what the party expected was to be consulted.
(Another example of this is the GCHQ case itself: Council of Civil Service Unions
v Minister for the Civil Service [1985] AC 374.) This may be termed a procedural
expectation: what the party expected was that a particular procedure would be
followed. But what if a party legitimately expected not that a particular proce-
dure would be followed but that a certain decision would not be made at all?
What if a party expected a substantive outcome? Our courts have generally been
extremely reluctant to hold that public authorities should be bound by
such expectations. The thrust of the case law is that, whatever it is you legiti-
mately expect (ie, whether you expect to be consulted or whether you expect
that a certain substantive decision will not be made), the only protection that
the law will give to your expectation is that the decision-maker will be required
to act fairly “ to observe and apply the rules of natural justice (see R v Secretary
of State for the Home Department, ex p Hargreaves [1997] 1 WLR 906). The
general position is that a public authority will be judicially required not to
frustrate a party™s substantive legitimate expectation only where it would be
irrational or Wednesbury unreasonable for it to do so. This is the general posi-
tion. But there are exceptions “ as illustrated by the following case.
690 British Government and the Constitution


R v North and East Devon Health Authority, ex p Coughlan [2001]
QB 213 (CA)
Miss Coughlan was a severely ill and disabled woman in long-term care in
Mardon House, a purpose-built care home managed by the health authority.
She and other patients had been moved from a National Health Service hospi-
tal to Mardon House in 1993, having agreed to this upon an assurance by the
health authority that Mardon House would be their home for life. In 1998
the authority decided to close Mardon House and transfer responsibility for the
care of the patients to a local authority social services department. It was
accepted that this decision could not be impugned on grounds of irrationality.
Miss Coughlan brought proceedings for judicial review of the health author-
ity™s decision to close Mardon House. Her case that the decision was ¬‚awed
rested on a number of grounds, one of which was that the ˜home for life™
promise made to her had given rise to a legitimate expectation and that to frus-
trate it would be an abuse of power.

Lord Woolf: . . . In the ordinary case there is no space for intervention [by a court] on grounds
of abuse of power once a rational decision directed to a proper purpose has been reached
by lawful process. The present class of case is visibly different. It involves not one but
two lawful exercises of power (the promise and the policy change) by the same public
authority, with consequences for individuals trapped between the two. The policy decision
may well, and often does, make as many exceptions as are proper and feasible to protect
individual expectations. . . . If it does not, . . . the court is there to ensure that the power to
make and alter policy has not been abused by unfairly frustrating legitimate individual
expectations.

The approach to be taken, said Lord Woolf, ˜recognises the primacy of the
public authority both in administration and in policy development but it
insists . . . upon the adjudicative role of the court to ensure fairness to the indi-
vidual™. Such fairness must ˜include fairness of outcome™. A promise would be
more likely to have binding e¬ect if made ˜to a category of individuals who have
the same interest™ than if ˜made generally or to a diverse class, when the inter-
ests of those to whom the promise is made may di¬er or, indeed, may be in
con¬‚ict™. Accordingly:

most cases of an enforceable expectation of a substantive benefit . . . are likely in the nature
of things to be cases where the expectation is confined to one person or a few people, giving
the promise or representation the character of a contract.

In the present case the promise was limited to a few individuals and what was
promised was of great importance to Miss Coughlan. Whether the decision
could nevertheless be justi¬ed by an overriding public interest was to be deter-
mined, not by the health authority, but by the court, which was not persuaded
691 The courts: judicial review and liability


that any such overriding consideration had been established. The court con-
cluded that the decision to close Mardon House constituted unfairness amount-
ing to an abuse of power. In addition, the court agreed with the judge in the
court below that the decision was a breach of Miss Coughlan™s right to respect
for her home under Article 8 of the European Convention on Human Rights
(not yet, at that time, given domestic legal e¬ect by the Human Rights Act
1998). (For comment on this case see Craig and Schønberg [2000] PL 684 and
Roberts (2001) 64 MLR 112.)
Coughlan illustrates that the courts will occasionally give substantive pro-
tection to a legitimate expectation even where the authority has not acted
Wednesbury unreasonably. It also illustrates, however, that the courts will do
this only exceptionally. The exceptional circumstances which were held to
justify this result in Coughlan were the extraordinary importance of what had
been promised, the fact that the promise was limited to a small number of indi-
viduals, and the fact that there would be no consequences other than ¬nancial
consequences for the authority in holding them to their promise.


3 Scope and limits of judicial review
(a) Scope of judicial review
Judicial review is available only against certain persons or bodies. English law
and Scots law di¬er markedly from one another in how they delimit the scope
of judicial review. In English law judicial review is available only against persons
or bodies performing public functions. Scots law has set itself against a
public/private distinction in this regard. In Scots law a decision will be judicially
reviewable if it can be said that there is a ˜tri-partite relationship™ between
(1) the source of the decision-making power, (2) the decision-maker and (3) the
person or persons a¬ected by the decision (see West v Secretary of State
for Scotland 1992 SC 385). Judicially reviewable bodies in English law
clearly include ministers and their departments, local authorities and non-
departmental public bodies. In addition the English courts, led by the Court of
Appeal™s decision in R v Panel on Take-overs and Mergers, ex p Data¬n plc [1987]
QB 815, have extended the judicial review jurisdiction to certain ˜self-
regulating™ organisations constituted in the private sector but with some form
of ˜governmental™ function. Although not set up by the government or
themselves entrusted with statutory powers, bodies such as these carry out their
regulatory functions in each case as an integral part of a system of governmen-
tal control supported by statutory powers and sanctions. That said, however,
not all ˜regulatory™ bodies are subject to judicial review under this approach:
English courts have declined to review the exercise of regulatory responsibilities
by the Chief Rabbi, the managers of an independent school, the Football
Association, the Jockey Club and the Insurance Ombudsman Bureau, the
functions performed by these bodies being based on agreement or voluntary
692 British Government and the Constitution


submission or not having a su¬ciently ˜governmental™ character. In some
of these cases (and, perhaps, in all of them), Scots law would include these
bodies within the scope of judicial review. A golf club, for example, was recently
held by the Court of Session to be judicially reviewable, whereas this outcome
would be unlikely in English law: see Crocket v Tantallon Golf Club 2005 SLT 663
and cf R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993]
1 WLR 909.
The matter is complicated by the fact that, in both English and Scots
law, not every act of a potentially judicially reviewable body falls within the
judicial review jurisdiction, for these bodies may take action on the plain of
private law, for instance in engaging employees or making commercial
contracts. The ordinary remedies of private law must then be pursued. (See
eg, R v BBC, ex p Lavelle [1983] 1 WLR 23 and Blair v Lochaber District Council
1995 SLT 407.)
A di¬erent sort of restriction on the scope of judicial review relates to the
subject matter of decisions that may be reviewed. Here, the courts in England
and Scotland take the same general approach. The subject matter of a discre-
tionary power may be of a kind that severely limits the scope of judicial review,
as when the decision depends essentially on political judgement, for instance,
in a matter of national economic policy (R v Secretary of State for the
Environment, ex p Hammersmith and Fulham London Borough Council [1991]
1 AC 521), or on the requirements of national security (Secretary of State for the
Home Department v Rehman [2001] UKHL 47, [2003] 1 AC 153, on which see
chapter 11), or if the decision concerns the allocation of limited ¬nancial
resources (R v Cambridge Health Authority, ex p B [1995] 1 WLR 898, but cf
R (Rogers) v Swindon NHS Primary Care Trust [2006] EWCA Civ 392, [2006]
1 WLR 2649, on which see Syrett [2006] PL 664).


(b) Standing
Only those who have su¬cient standing in law “ locus standi “ can bring pro-
ceedings for judicial review. Again, this is a matter that is dealt with di¬erently
in English and Scots law, with the English law of standing being considerably
more generous than Scots law. We will consider English law ¬rst. Lord Denning
said in R v Paddington Valuation O¬cer, ex p Peachey Property Corpn [1966]
1 QB 380, 401: ˜The court would not listen . . . to a mere busybody who was
interfering in things which did not concern him. But it will listen to anyone
whose interests are a¬ected by what has been done™. The Senior Courts Act
1981, section 31(3), provides that the court shall not grant permission to bring
a claim for judicial review ˜unless it considers that the [claimant] has a su¬cient
interest in the matter to which the [claim] relates™.
The su¬ciency of the claimant™s interest is not considered in isolation:
account is taken of the nature of the duty imposed on the public authority and
the subject matter of the claim. In IRC v National Federation of Self Employed
693 The courts: judicial review and liability


and Small Businesses (the ˜Fleet Street Casuals™ case) [1982] AC 617, 630, Lord
Wilberforce said:

There may be simple cases in which it can be seen at the earliest stage that the person apply-
ing for judicial review has no interest at all, or no sufficient interest to support the applica-
tion: then it would be quite correct at the threshold to refuse him leave to apply. The right
to do so is an important safeguard against the courts being flooded and public bodies
harassed by irresponsible applications. But in other cases this will not be so. In these it will
be necessary to consider the powers or the duties in law of those against whom the relief
is asked, the position of the applicant in relation to those powers or duties, and to the breach
of those said to have been committed. In other words, the question of sufficient interest
cannot, in such cases, be considered in the abstract, or as an isolated point: it must be taken
together with the legal and factual context. The rule requires sufficient interest in the matter
to which the application relates.

If the claimant is not a mere busybody and appears to have an arguable case, the
court will generally grant permission to proceed with the claim for judicial
review without a full examination of the claimant™s standing, leaving this to be
resolved when the substance of the case is unfolded at the subsequent hearing
of the claim.
The interest of the claimant in the matter ˜need not be any recognisable legal
interest and need not involve any assertion of any infringement of the rights of
the [claimant]™ (Hobhouse LJ in Cr©dit Suisse v Allerdale Borough Council [1997]
QB 306, 356). Lord Fraser said in the Fleet Street Casuals case (above) that the
claimant must have a ˜reasonable concern™ with the matter to which the claim
relates. The case itself establishes that a taxpayer will not normally have such a
reasonable concern or su¬cient interest in the dealings of the Inland Revenue
with other taxpayers. On the other hand, in R v Her Majesty™s Treasury, ex p
Smedley [1985] QB 657, where the question in issue was the legality of certain
payments to be made by the Treasury to the European Community, the Court
of Appeal was of the opinion that since this question was a serious and urgent
one, the claimant did have standing to raise it, ˜if only in his capacity as a tax-
payer™. In R v Secretary of State for Foreign A¬airs, ex p Rees-Mogg [1994] QB 552
there was (surprisingly, perhaps?) no dispute as to the claimant™s standing to
challenge the Government™s proposed rati¬cation of the Treaty on European
Union, and the Divisional Court considered the claim on its merits although
the claimant was (rather like Mr Smedley) only a citizen with ˜a sincere concern
for constitutional issues™. In Broadmoor Special Hospital Authority v Robinson
[2000] QB 775, 787 Lord Woolf MR said: ˜“Su¬cient interest” has been
approached by the courts in a generous manner so that almost invariably if an
applicant can establish a case which deserves to succeed, standing will not con-
stitute a bar to the grant of a remedy™. (Cf R (Bulger) v Secretary of State for the
Home Department [2001] 3 All ER 449: standing may still be denied on grounds
of principle.)
694 British Government and the Constitution


The courts may be disposed to take a liberal view of standing to enable
matters of public importance to be raised (see R v Felixstowe Justices, ex p Leigh
[1987] QB 582; R v Secretary of State for Employment, ex p Equal Opportunities
Commission [1995] 1 AC 1), and an ˜increasingly liberal approach™ to standing
was noted by the Divisional Court in R v Secretary of State for Foreign A¬airs,
ex p World Development Movement Ltd [1995] 1 WLR 386, in holding that the
claimants, a non-partisan pressure group which campaigned to increase the
amount and quality of British aid to developing countries, had a su¬cient
interest to challenge the minister™s decision to provide ¬nancial support for the
construction of the Pergau Dam in Malaysia from the aid budget although, as
Dawn Oliver has noted, the decision ˜did not adversely a¬ect the interests of
any individuals™ (Common Values and the Public-Private Divide (1999), p 32).
Other pressure groups such as the Child Poverty Action Group, Greenpeace,
the Joint Council for the Welfare of Immigrants and Help the Aged have also
succeeded in establishing their standing to bring proceedings for judicial
review in ˜public interest challenges™ on behalf of their clients or as promoters
of public causes. While standing was denied to the pressure group in R v
Secretary of State for the Environment, ex p Rose Theatre Trust Co [1990] 1 QB
504, the case is out of line with the developing trend of the case law and in any
event had the distinguishing feature that the group in question had been
formed ad hoc, for the speci¬c purpose of saving the Rose Theatre. (For a crit-
ical assessment of these developments see Harlow, ˜Public law and popular
justice™ (2002) 65 MLR 1.)
It is to be noted that if a legal challenge relates to the violation of
a ˜Convention right™ under the Human Rights Act 1998, a claimant must show
that he or she is a ˜victim™ of the alleged violation (s 7(1)). This is a more strin-
gent obligation than satisfying the ˜su¬cient interest™ test in judicial review.
Like the victim test under the Human Rights Act, the test for standing to peti-
tion for judicial review in Scots law is harder to pass than the su¬cient interest
test in English law. In Scots law a petitioner must have both ˜title™ and ˜interest™.
˜Title™ means that the petitioner must be a party ˜to some legal relation which
gives him some right which the person against whom he raises the action either
infringes or denies™ (D & J Nicol v Trustees of the Harbour of Dundee 1915 SC
(HL) 7). ˜Interest™ has been interpreted relatively narrowly and, in particular,
has been interpreted against special interest groups seeking what might be
termed ˜representative standing™: see eg, Scottish Old People™s Welfare Council,
Petitioners 1987 SLT 179 (ruling that Scottish Age Concern did not have stand-
ing to seek judicial review of the legality of administrative guidance concerning
the payment of cold weather allowances to elderly people). See also Rape Crisis
Centre v Secretary of State for the Home Department 2000 SC 527 (ruling that the
petitioners lacked title to seek judicial review of the minister™s decision to admit

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