Table of Contents

TABLE OF CONTENTS TABLE OF CONTENTS A. THE NATURE OF JUDICIAL REVIEW: Keys to understanding what the Court is doing P1 A constitutional guarantee. Judicial review is the rule of law in action: a fundamental and inalienable constitutional protection. P2 Supervisory jurisdiction. Judicial review is a well-established supervisory role by the Court over public bodies. P3 Impact. A successful claim does not necessarily guarantee a favourable ultimate outcome, nor a wider knock-on effect. P4 Materiality. A claim may fail if lacking substance, as where non-material, non-prejudicial, futile, academic or premature. P5 Targets. A wide range of measures, acts, decisions, policies and omissions can be the subject of a judicial review challenge. P6 Power sources. Public bodies' powers and duties can arise under or by reference to EU and domestic legislation, common law or prerogative, policy guidance or international law. P7 Constitutional fundamentals. Core common law principles can constitute fundamentals of the UK's unwritten constitution. P8 EU law. Domestic statutes, rules and decisions must be compatible with applicable EU legislation and legal principle. P9 The HRA. Domestic legislation must be read, and public authorities must act, compatibly with HRA:ECHR rights. P10 Cooperation & candour. The Court will expect from all parties cooperative behaviour and candid disclosure. P11 Precedent & authority. Judicial precedent can bind or guide the court; academic and comparative analysis may be persuasive. P12 Reviewing primary legislation. Courts have restricted functions of assessing legal compatibility of Acts of Parliament. P13 Restraint. Courts adopt a primary self-restraint, preserving for public bodies a latitude for judgment and discretion. P14 Balancing. Judicial review principles are a careful evolving equilibrium serving the dual imperatives of vigilance and restraint. P15 The forbidden method. Judges will not intervene as if matters for the public body's judgment were for the Court's judgment. P16 Hard-edged questions. There are certain matters which the Court considers afresh for itself, imposing its own judgment. P17 Evidence and fact. Judicial review is generally conducted on written evidence and regarded as an unsuitable forum for resolving factual disputes, though this can be appropriate and necessary. P18 Costs. Generally, the loser must pay the winner's costs P19 Making the claim. Where pre-claim correspondence fails, claims are to be made and acknowledged in the prescribed way. P20 Interim remedies. The Court can make orders securing a particular state of affairs pending fi nal resolution of the claim. P21 Permission. The claimant must obtain permission for judicial review, by prompt and candid papers disclosing an arguable case. P22 Substantive hearing. At the hearing the Court decides whether there are grounds for intervening and whether to grant a remedy. P23 Appeal. An appeal lies from the Administrative Court's decisions (except the grant of permission). P24 Remedies. The Court has discretionary power to quash, mandate, prevent and clarify. P25 Monetary remedies. Judicial review embraces damages, debt and restitution, HRA "just satisfaction" and EU reparation; but a broader financial response to aladministration awaits development. B. PARAMETERS OF JUDICIAL REVIEW: Further dominant themes shaping the law and practice P26 Delay. Claims must be prompt (3 months in an EU case); undue delay can be fatal to permission or (if prejudicial) a remedy. P27 Public/private. Judicial review is the (normally non-exclusive) application of "public law" principles to "public" functions. P28 Ouster. Head-on statutory exclusion of judicial review is theoretically possible but constitutionally dubious. P29 Interpretation. Discerning the true meaning of legislative and other relevant sources is vital to effective judicial review. P30 Function. It is essential to understand the role and responsibilities of the decision-maker under review. P31 Context. Context being everything, the Court will always respond to the nature and circumstances of the individual case. P32 Modified review. Matters may involve part-availability of judicial review; or restricted or enhanced grounds. P33 Flux. Judicial review is dynamic: new faiths emerge, old ones decay; the general trend being towards empowering the Court. P34 Reviewability/non-reviewability. Judicial review applies to the exercise of "public" functions, with few forbidden areas. P35 Principle of legality. Public power may not be exercised to abrogate fundamental common law values, at least unless abrogation is required or empowered by clear primary legislation. P36 Alternative remedy. Judicial review is a last resort and generally inappropriate where suitable alternative safeguards exist. P37 Proportionality template. Proportionality requires State-proven appropriateness and necessity to achieve a legitimate aim. P38 Standing. The claimant must have a sufficient interest in the subject-matter, and be a victim if relying directly on the HRA. P39 Discretion/duty. Judicial review supervises discretionary powers entrusted to, and duties imposed on, public bodies. P40 Inalienability. Public bodies' basic powers and duties are to be respected, preserved and not compromised. P41 Legitimate expectation. Promises or practices may raise expectations incapable of unfair or unreasonable dishonour. P42 Onus. It is for the judicial review claimant to establish grounds for intervention, but on many issues the public body bears the onus. P43 Severance. A measure may be partially upheld if, shorn of vitiated parts, the substantial purpose and effect remain intact. P44 Nullity. In principle, any material public law wrong will vitiate the impugned act of the public body so that it is a "nullity". C. GROUNDS FOR JUDICIAL REVIEW: Public law wrongs justifying the Court's intervention P45 Classifying grounds. Inapt for rigid categorisation, grounds fit broadly within unlawfulness, unreasonableness and unfairness. P46 Ultra vires. A body must not exceed received powers or breach duties, from higher authority, as properly interpreted. P47 Jurisdictional error. A body must understand the scope and limits of its jurisdiction. P48 Error of law. A body must not make a material error of law. P49 Error of fact. A body must not make errors of precedent fact, fundamental factual errors or findings unsupported by evidence. P50 Abdication/fetter. A body must not surrender its function, as by: (a) acting under dictation; (b) improperly delegating its powers; or (c) operating an inflexible policy. P51 Insufficient inquiry. A body must sufficiently acquaint itself with relevant information, fairly presented and properly addressed. P52 Bad faith/improper motive. A body must not act in bad faith or have an improper object or purpose. P53 Frustrating the legislative purpose. A body must act so as to promote the purpose for which the power was conferred. P54 Substantive unfairness. A body must not act conspicuously unfairly, nor so unfairly as to abuse its power, nor in unjustified breach of a legitimate expectation. P55 Inconsistency. A body should ensure equal treatment, certainty of approach and no legally relevant unjustified departures. P56 Relevancy/irrelevancy. A body must have regard to all, but to only, legally relevant considerations. P57 Unreasonableness. A body must not act unreasonably. P58 Proportionality. Certain contexts require a body's response to be appropriate and necessary to achieve a legitimate aim. P59 HRA-violation. A body must not act incompatibly with Convention rights protected by the HRA. P60 Procedural unfairness. A body must adopt a fair procedure, giving those affected a fair and informed say. P61 Bias. A body must not have a direct interest in the outcome of a decision, or show actual bias or a real possibility of bias. P62 Reasons. Public Bodies are often required to give reasons, and always required to make the reasons they do give adequate. P63 External wrongs. Judicial review may occasionally lie against a blameless body, for a third party wrong or external injustice. D. MATERIALS: Key sources of rules and procedure 64.1 Senior Courts Act 1981, ss.31& 31A 64.2 Civil Procedure Rules Part 54 64.3 CPR Part 54 Practice Directions 54A & 54D 64.4 Administrative Court Office Notes for Guidance 64.5 Judicial Review Pre-Action Protocol 64.6 Judicial Review Urgent Cases Procedure 64.7 Human Rights Act 1998 64.8 Form N461 64.9 Form N462 64.1 Form N463 64.1 List of articles

About the Author

Michael Fordham KC is a Barrister and a member of Blackstone Chambers specialising in public law and human rights. He was Human Rights Lawyer of the Year 2005, Public Law Junior of the Year in 2005, winner of the Bar Pro Bono Award 2006 and Human Rights and Public Law Silk of the Year 2008. He is the joint editor of Judicial Review and a college lecturer in law at Hertford College, Oxford.

Reviews

This book has gone from strength to strength. As Lord Woolf, the former Master of the Rolls notes in his Foreword to the present edition, it continues to be an 'essential aid' to anyone engaged in public law litigation. The long list of decisions in which the book has been referred to – reproduced at the beginning of the volume – speaks volumes for its popularity.
*Journal of the Commonwealth Lawyers Association, Volume 22. No 3*