www.newlawjournal.co.
uk | 12 April 2019 Judicial review PROCEDURE & PRACTICE
Challenging the balance
of power (Pt 3)
In his final update, Simon Parsons considers the development
of proportionality as a ground for judicial review
IN BRIEF
ff Has proportionality as a ground for judicial
review overtaken irrationality?
ff Judicial review remedies.
T
he two previous articles in this
series covered the judicial review
process in relation to executive
action and the possible grounds
to challenge the public law decisions
taken by public bodies (see NLJ 8 March
2019, p18 and NLJ 15 March 2019, p17).
The focus here is on the development of
proportionality as a ground for judicial
review and whether it has overtaken
irrationality.
Proportionality
In Council of the Civil Service Union v Minister
for the Civil Service [1985] AC 374 (the
GCHQ case) the House of Lords held that a
public body’s decision may only be quashed
if it abused its power (illegality), or if it
failed to observe the basic rules of natural
justice or it failed to act with procedural
fairness (procedural impropriety), or if the
public body’s decision was so irrational or
perverse that no reasonable body could have
made it (Wednesbury unreasonableness or
irrationality). These are the common law
principles (or grounds) of judicial review of
administrative action. The leading judgment
in the GCHQ case was given by Lord Diplock
and he acknowledged that there might be, in
the future, additional grounds to the three
he identified. The ground that has developed
since 1985 is proportionality which is the
appropriate standard of review for human
rights and EU law. But the question is
whether proportionality has now developed
as a common law ground for judicial review
where there is not any EU or human rights
aspect.
Following the incorporation of the
European Convention on Human Rights
(ECHR) into domestic law, proportionality
is applied domestically in human rights
cases as the House of Lords held in R v
Secretary of State for the Home Department
ex parte Daly [2001] UKHL 26 that for
all cases raising a human rights issue,
proportionality was the appropriate
standard of review. Proportionality works
on the assumption that administrative
action ought not to go beyond what is
necessary to achieve its desired result (in
everyday terms, that you should not use a
sledgehammer to crack a nut) and is often
understood to bring the courts much closer
to reviewing the merits of a decision. It is
not a question as to whether the objective is
wrong but whether the decision or course
of action is a disproportionate means to
achieve that objective.
But note judicial deference which
means that there are some choices of
the executive or Parliament which the
courts will accept as within a range of
proportionate outcomes, ie that on some
issues a court cannot distinguish on
proportionality grounds between a number
13
© iStockphoto/BellPhotography423
of different options made available to a
public authority. A public authority’s use of
discretionary powers should not result in
decisions which cause a higher degree of
interference with the rights of individuals
than is required to achieve the desired
result. A and Others v Secretary of State
for the Home Department [2004] UKHL 56
(the Belmarsh case) is an example of the
proportionality ground.
Proportionality vs Wednesbury
unreasonableness
Is proportionality overtaking Wednesbury
unreasonableness as a common law ground
of judicial review? There is obiter dictum
in Association of British Civilian Internees–
Far East Region v Secretary of State for
Defence [2003] EWCA Civ 473 which
suggests the strictness of the Wednesbury
test has been relaxed in recent years and
is moving closer to proportionality and
in some cases, it is difficult to see any
daylight between the two grounds. Using a
sledgehammer to crack a nut is irrational.
The test appears to be withering away
with time as in Pham v Home Secretary
[2015] UKSC 19 the Supreme Court held,
obiter, that the principle of legality (a
principle of statutory interpretation or
construction which enables the courts to
presume that Parliament does not intend
to legislate against fundamental common
law freedoms) operates as a means for a
proportionality review in cases that lack any
EU or ECHR aspect. It is arguable that Pham
represents the emergence of proportionality
as a new common law ground of judicial
review overtaking the Wednesbury
test. But the Wednesbury test operates as
an important safeguard against judicial
overreach. In contrast proportionality
allows for a more intrusive review closer to
the merits of a decision which is only limited
by judicial deference.
14 PROCEDURE & PRACTICE Judicial review
Remedies
Required remedies should be pleaded for at
the permission stage. They are discretionary
so even if the claimant succeeds in their
judicial review they are not entitled to the
remedies as of right. The court has discretion
over all remedies and can even award
remedies not pleaded for. The remedies
which the court may grant following a
successful judicial review are as follows.
ffFirst, a quashing order, by which the
court sets aside a decision found to be
unlawful.
ffSecond, a prohibiting order, by which
the court prohibits a public body from
performing an act found be unlawful.
ffThird, a mandatory order, by which the
court orders a public body to perform a
statutory duty.
ffFourth, a declaration, by which the court
declares that a decision is or will be
unlawful.
An algorithm for judicial review of executive action
Note the pre-action protocol.
1. Is it a public body? The answer should be
‘yes’ to be susceptible to judicial review.
2. Is it a public law decision involving the
exercise of governmental or executive
power?
ff If yes => O’Reilly v Mackman = you may
use only Civil Procedure Rules 1998,
Part 54 to challenge (exclusivity rule)
unless vindicating pre-existing private-
law rights (Roy); or collateral challenge
(esp as a defence) (Wandsworth); or the
parties agree to another procedure.
ff If no => Use civil (private) law action, e.g.
sue for trespass, negligence, breach of
contract.
3. Under Part 54 the claimant must obtain
the court’s permission to apply for judicial
review (permission stage). The purpose
of this stage is to filter out claims that are
unworthy of consideration.
ff Is the claim ‘meritorious’? The claimant
must have (at least) an arguable case.
ff Non-justiciability & ouster clauses =
eg, national security, policy = consider
Anisminic.
ff Time limits = ‘promptly’/three months
= consider R v Dairy Produce Quotas
Tribunal ex p Caswell.
ff Alternative remedy = eg, appeal—the
claimant must have exhausted all their
alternative remedies (the cardinal
principle).
ff Standing (locus standi) = ‘sufficient
interest’= Fleet St Casuals (greater
wrongdoing, lesser interest),
ff if pressure group = ex p.
Greenpeace; ex p. World
Development Movement
(associational standing) but note
Rose Theatre.
4. What are the possible grounds for the
challenge? (Substantive hearing stage).
ffFifth, an injunction which usually is an
instruction not to do something but it
can be positive.
ffLastly damages, by which (in limited
circumstances) the court can award
monetary compensation.
A quashing, prohibiting, or mandatory
order can only be sought in judicial review
proceedings. In practice the most common
order is the quashing order by itself, even
though the claimant has, for example,
also requested a prohibiting order. This is
because Parliament has given the decision
to the public body and not the court so that
decision will have to be remitted back to
that body with instruction to make a fresh
decision in accordance with the judgment
of the court. It offends the principle of
separation of powers for the court to decide
the merits of the decision.
However, ‘where the court considers that
In Council of Civil Service Unions v Minister
for the Civil Service [1985] AC 374 HL (the
GCHQ case) Lord Diplock identified three
grounds of judicial review as:  case) is that the Administrative Court is able
ff Illegality -where a public body abuses its
power. (Substantive ultra vires).
ff Irrationality -unreasonableness- a
decision that defies logic- a decision
that no sensible person who had
applied his mind to the subject matter
could have arrived at. It requires
something overwhelming. The standard
has to be this high to avoid the danger of
the court deciding on the merits of the
decision. (Substantive ultra vires).
ff Procedural impropriety-this
encompasses failure to observe
procedural rules set down in an Act of
Parliament (procedural ultra vires) or
failure to observe the rules of natural
justice.
The first two grounds are known as the
substantive grounds for judicial review
because they relate to the substance or
legality of the disputed decision. Procedural
impropriety is aimed at the decision-making
process rather than the substance or legality
of the decision itself. To these must be added
proportionality which is the appropriate
standard of review for human rights and EU
law. There is also the doctrine of legitimate
expectation. Note that the grounds overlap.
5. What remedies may be available & suitable?
Mandatory order (mandamus), prohibiting
order (prohibition), quashing order
(certiorari); declaration, injunction;
damages.
NB (i) Remedies are to be specified by
the claimant at the permission stage, but
the court can award other remedies at its
discretion; and (ii) note the substitutionary
remedy.
12 April 2019 | www.newlawjournal.co.uk
there is no purpose to be served in remitting
the matter to the decision-maker it may,
subject to any statutory provision, take
the decision itself’ CPR 54.19 (3). This is
known as the substitutionary remedy and
it allows the court to consider the merits of
a decision. However, the remedy may not
be used where a statute declares it cannot.
Also, the remedy can only apply to decisions
of inferior courts and tribunals where the
court or tribunal has made an error of law
or, where there is no error but there is only
one decision which the court or tribunal
can make. The result is that this remedy is a
means for the court to save time rather than
a general power to substitute its discretion
for that of a public body.
Conclusion
Judicial review is used to scrutinise the
decisions of public bodies to ensure that
they are acting lawfully. Judicial review has
a long history. Consider Entick v Carrington
(1765) 19 State Tr 1029, 1065 where it was
held that the executive cannot lawfully
assume powers which are not known to the
courts. The big shift in judicial policy since
the 1960s (and certainly since the GCHQ
to look at not only whether a public body
has the power to make a decision but also
whether or not it has abused that power.
The purpose is to protect the citizen from
the abuse of discretionary powers thus up
holding the rule of law.
Traditionally these principles of English
public law do not permit the Administrative
Court to make findings of fact on matters
within the province of the public body or
substitute its discretion for that of the public
body. Judicial review looks at legality, not
merits—it cannot provide the applicant
with a substitute decision. But the question
is whether the judicial review is moving
towards to considering the merits of a
decision. This seems to be the direction of
travel not only with proportionality but
also with other new grounds for judicial
review (consider the doctrine of legitimate
expectation see UPG v Att-Gen of Trinidad &
Tobago [2016] UKPC 17).
Finally, some senior members of the
judiciary are now recognising that judicial
review can be used to challenge the
substantive validity of legislation itself,
which in their view is contrary to the
rule of law. The legislative Supremacy of
Parliament is not absolute. The question is
whether these changes are a good thing,
or could they lead to a breakdown of the
separation of powers and a challenge to
notions of democracy? NLJ
Simon Parsons, formerly Associate Professor
of Law at Solent University.