Challenging the Scope of Judicial Review in Administrative Law

‘Traditionally, it was said that the courts powers of judicial review allowed them to examine only the legality of administrative decisions, while the merits of such decisions could be assessed only where there was a statutory right of appeal. However in recent years, particularly as a result of the incorporation of the European Convention on Human rights, the courts have begun to examine the substance of administrative decision much more closely’

Judicial review is explained and defined in the case of R v HM the Queen in Council ex parte Vijayatunga, where the Court ruled that ‘it is the exercise of the court’s inherent power at common law to determine whether the action is lawful or not; in a word to uphold the rule of law.

’ Courts examine and review administrative decisions. Wade and Forsythe describe administrative or public law as one that sees to it that the extensive powers of government are not abused to prejudice citizen.

Generally courts’ powers of review are limited to those enumerated under Rule 52 of the Civil Procedure Rules.

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This refers to cases brought before them on appeal. It is the court’s function in these cases to determine whether the decision arrived at is “right” or “wrong. ” The court has the right “to affirm, set aside or vary any order or judgment made or given by the lower court” The court in these cases determines the merits of the case and may supplant the decision with its findings.

Thus, in the case of Adan v Newham Borough Council where the Court explained that judicial review does concern itself with the ‘merits’ of the case but whether government in discharging its functions and exercising its powers acted unlawfully.

The Court is not to supplant or substitute its own judgment in the decision but it is to ascertain whether the government body in arriving at such decision did so according to legislation. Thus, the issue is more of the manner or the process by which the decision is reached and not whether the decision is “right or wrong. Anent the issue of whether the decision made is ‘right or correct’ and is concerned with the ‘merits’ of the case, this is properly covered by the right of appeal.

In the same case, the Court also enunciated the principle that considering that courts in appealed cases, only have the supervisory jurisdiction, “it cannot substitute its own views of the primary facts for the view reasonably adopted by the body to whom the fact finding power has been entrusted. Traditionally, courts intervene only in cases where the power used is not allowed by law (ultra vires), or when the body acted in an irrational or unreasonable manner. The court then can only intervene in these cases. In the landmark case, Associated Provincial Picture Houses Ltd. V Wednesbury Corp. (1948) the Court clearly explained that judicial review seeks to assess if the Parliament entrusted executive discretion is in contravention of the legislation granting such discretion and whether limits of such discretion as defined by the parameters in the law has been violated.

The exercise of executive discretion must be within the bounds of the legislation granting it otherwise, the act or decision shall be deemed as ultra vires act. The case enumerated the grounds for judicial review as ‘bad faith, dishonesty—those of course stand by themselves, unreasonableness, attention to those extraneous circumstances, disregard to public policy and things like that have all been referred to, according to the facts of individual cases, as being matters which are relevant to the question. ’

In a relatively recent case of Council of Civil Service Union v Minister for the Civil Service the grounds for judicial review had been laid down. The three grounds are illegality, irrationality, and procedural impropriety. The grounds for judicial review are not limited to the enumeration made in the case considering that those are not exhaustive and exclusive. There is illegality when there is ultra vires i. e. when the body acts outside of its granted authority or against higher authority or when it fails to follow the legal procedure.

There is also illegality when the body further delegates its authority to another. There is this principle of law that the power delegated by law to a body can no longer be further delegated. Another case of illegality is when the body fails to consider or disregards the consideration of a material fact or issue in arriving at a decision. There is irrationality ‘when a decision is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had his mind to the question to be decided could have arrived at.

This means that in order to arrive at the decision one has to apply the rules of logic and reason. There is procedural impropriety when the parties are deprived of their opportunity to be heard or when there is bias or when no consultation is conducted properly as required by the Code of Practice on Written Consultations whenever there is a change in policy. Moreover, there is also procedural impropriety when the tribunal fails to give reasons upon which the decision rests so that the losing or winning party would know he has lost or won.

Another instance of procedural impropriety is based on the doctrine of legitimate expectation. This occurs when the one who having the authority to make the decision, by his clear conduct or words promised a benefit to a recipient who relied on it. Before the enactment of the Human Rights Act in 1998, the courts make statutory interpretations of domestic laws in the light of the rights and duties contained in Conventions in cases of contradictions and inconsistencies.

For instance, in the case of Taylor v Co-operative Retail Services, where the court ruled that Taylor cannot be granted compensation for his dismissal on account of his failure to join a union considering that under the domestic laws, specifically Acts of 1974 and 1976 such dismissal is allowed albeit in contravention of the European Convention of Human Rights. Thus, the dismissed employee may recover compensation from the ECHR. The Human Rights Act 1998 implements and gives more force to the provisions of the Convention.

The enactment and passage of the Human Rights Act paved the way for those injured by the unlawful acts of public authorities to raise them before the domestic courts for judicial review. Thus, judicial review entailed more circumspect examination of the substance of the case. Section 6 (1) of the Human Rights Act 1998 declares as unlawful any act of a public official which is inconsistent with the Convention right. In effect this allows judicial review and rulings from the court that specific provisions of domestic laws are incompatible with the Convention.

It is believed that the impact generated by this new development may change the results of the traditional grounds for judicial review. The introduction of the concept of “proportionality” which allows restriction of a right accorded by the Convention provided it is proportionate to the purpose it seeks to achieve. This proportionality test is deemed fulfilled if the three elements are present, namely 1) that the aim or purpose must be important; 2) the measures must have a rational connection with the objective, therefore it must be fair, rational and logical; and 3) the means employed must be proportional to the legitimate purpose.

The Human Rights Act 1998 also authorises the court to inquire into facts and examine whether the decisions employ the least degree of restrictions. By reason of the Human Rights Act implementation, a perception has arisen that the sphere of judicial review has been enlarged thereby leading to judicial activism. In effect, the judiciary in its exercise of judicial review is re-writing legislation which Parliament has enacted to overturn its effects. Moreover, there has been a marked increase in the number of cases for judicial review which mostly involve asylum and immigration cases.

Contrary to popular perception, the Human Rights Act did not frustrate the Government’s policies against terrorism, crime and immigration. In fact, there are spheres and areas in which the judiciary will defer making judicial opinions to give way to the opinion of the executive and the legislative as one of “discretionary area of judgement. ” Most often matters of national security, criminal justice and economic policies are given respect by the courts and in these cases, courts applied their discretionary area of judgement.