18. Procedural Impropriety

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. A public authority must have the legal power to act; if that power is conferred by statute, it may also specify the procedure that must be used prior to an action or a decision being taken. This is what is known as a ‘statutory procedure’, because it is specified in a statute. The statute may, for example, require the authority to give notice of its intention to take action in a certain way, to consult interested groups, or to tell individuals that they have the right to appeal from an adverse decision. If the authority does not comply, then this is a breach of the statutory procedure and may be reviewed as a procedural impropriety. This chapter discusses the judicial review of procedural impropriety. It covers the rules of natural justice; the right to be heard; legitimate expectation; the detailed requirements of natural justice; the rule against bias; and Article 6 of the European Convention on Human Rights.

13. Justice in the Modern Administrative State

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the role of a range of accountability methods to scrutinize the executive’s use of power. This includes the work of the Parliamentary Commissioner for Administration, who is now also known as the Parliamentary Ombudsman, the role of tribunals in contrast to courts, of public inquiries and of alternative dispute resolution mechanisms too. It also examines the limitations of each of these methods, and how they may complement each other to provide different forms of scrutiny.

4. The Rule of Law

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter explains the meaning and significance of the rule of law, briefly tracing the history of the rule of law and considering the main similarities and differences between various theories of the rule of law. It then assesses the impact of recent legal reforms on the operations of the rule of law in the UK. These reforms include the introduction of antisocial behaviour orders; the extension of detention without trial; and the Constitutional Reform Act 2005, which reinforces the importance of the independence of the judiciary and puts measures in place to attempt to strengthen the separation of the courts from the other arms of the state. Finally, the chapter discusses judicial interpretation of the rule of law through a selection of cases that have examined the legality, irrationality, or procedural impropriety of the actions of the executive or public bodies, and whether their actions conform to the Human Rights Act 1998.

17. Irrationality and Proportionality

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter, which discusses the circumstances for judicial review of a public authority’s decision on the grounds that it is irrational, first explains the history of irrationality and ‘Wednesbury unreasonableness’, to provide some background to the topic and to chart its development. It then considers cases in which the courts have discussed different versions of the irrationality test, discusses the difference between irrationality and proportionality, and examines the development of proportionality and its use in judicial review cases. The chapter distinguishes between proportionality and merits review, and discusses the use of judicial deference by the courts. Proportionality, and not irrationality, is the test used to determine whether a public authority has acted unlawfully when its decision is challenged by judicial review under section 6 of the Human Rights Act 1998. The irrationality test is used in non Human Rights Act judicial review cases but the courts have also used the proportionality test in cases involving common law rights. The chapter concludes by considering the discussion in the case law and the scholarship as to whether the irrationality test should be replaced by the test of proportionality across both types of case: traditional judicial review cases and those involving a human rights issue.

16. Illegality

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter examines ‘illegality’ as a ground for judicial review. Central to judicial review is the idea of ultra vires, which is the principle that public authorities have to act within their legal powers, and that if they act or fail to act consistently with their legal powers, they will be acting unlawfully. Case law on the exercise of discretionary powers by public authorities is discussed. The issue of jurisdiction is also considered, in particular, the distinction between errors of law and errors of fact.

15. The Parties to a Judicial Review: Who Can Make a Claim for Judicial Review and Against Whom Can a Claim for Judicial Review be Made?

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the bodies subject to judicial review and who can make claims for judicial review. An action for judicial review can be brought only against a body exercising a public function. If public authorities are carrying out a private function, they are not subject to judicial review unless there is a public law element. Private bodies are, generally, not subject to judicial review unless it can be shown that they are carrying out a public function, such as administering a statutory scheme. If the judicial review concerns human rights, then the claim must be brought against a public authority. The Human Rights Act 1998 creates two kinds of public authorities: core public authorities and functional public authorities. Core public authorities are public authorities, such as government departments and the police force. Functional public authorities have private and public functions, but only their public functions are subject to the Act. The rules of standing in judicial review cases determine whether individuals or groups are permitted to challenge a decision of a public body. An individual or organization may bring a claim for judicial review only with the permission of the courts, which means that standing restricts the people and organizations that may bring a judicial review claim.

14. The Role of the Courts, Judicial Review, and Human Rights

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. The court is tasked with checking the legality of government action, which is mainly done through the process known as judicial review. Judicial review is a special form of court process that calls the executive to account for its exercise of power. This chapter discusses the history of judicial review; the grounds of review; the judicial review of delegated legislation; judicial review and the constitution; the difference between judicial review and appeal; the role of the courts and the Human Rights Act 1998; the judicial review procedure; and the extent to which judicial review can act as a check on executive power.

10. Devolution and Parliamentary Supremacy

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. Devolution can be defined as the conferral of powers by a central governing institution on a regional or national governing body, without the central institution having to concede legislative supremacy. Such devolved powers can be administrative, executive, or legislative in nature. The process of devolving such powers to three of the UK’s four nations—England, Scotland, Wales, and Northern Ireland—was initiated by the passing of the Devolution Acts of 1998. This chapter begins by tracing the history of devolution, and then discusses the ways that power can be devolved, and the roles and powers of the Scottish Parliament, Welsh Assembly, and the Northern Ireland Assembly. It addresses the question of whether there should there be an English Parliament, and finally, examines the effects of devolution on parliamentary supremacy as well as the effects the UK’s exit from the EU may have on the devolution settlement too.

9. Parliamentary Supremacy and Human Rights

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter examines the legislative supremacy of the UK Parliament and its impact on human rights protection (and vice versa), discussing the history of the European Convention on Human Rights (ECHR) in a UK context and the ECHR’s legal standing. It considers the Human Rights Act 1998 (HRA 1998) and its operation in the UK. The chapter addresses how the ECHR and the HRA 1998 affect parliamentary supremacy, and how the human rights context differs from the EU context as regards parliamentary supremacy. Finally, it analyses whether parliamentary supremacy provides adequate protection of human rights.

20. Judicial Review: Putting it all Together in Problem Answers

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter ties together the loose strands of judicial review to provide a checklist of issues that must be considered in order to diagnose a judicial review problem and to provide a legal opinion for clients. The following questions are addressed: What are judicial review problem questions designed to test? How does one approach a judicial review problem question? How does one approach whether the body may be judicially reviewed? How does one approach whether the client has standing or may intervene in an action? How does one approach whether the other preconditions are met? How does one approach the grounds for review? How does one deal with issues of remedy? How does one provide a final assessment to the client?