14. The grounds for judicial review

This chapter considers the grounds on which public decisions may be challenged before the courts. It begins with an overview of two cases—Associated Provincial Picture Houses Ltd v Wednesbury Corpn (1948) and Council of Civil Service Unions v Minister for the Civil Service (1985). The importance of these two cases is their distillation of the general principles. The discussion then covers the different grounds for judicial review: illegality, relevant/irrelevant considerations, fiduciary duty, fettering of a discretion, improper purpose, bad faith, irrationality, proportionality, procedural impropriety, natural justice, legitimate expectations, the right to a fair hearing, reasons, and the rule against bias. It is noted that principles often overlap, so that a challenge to a public law decision may be based on different principles.

13. The nature of judicial review

Judicial review is a procedure whereby the courts determine the lawfulness of the exercise of executive power. It is concerned with the legality of the decision-making process as opposed to the merits of the actual decision. Thus it is supervisory rather than appellate. Emphasis is also placed on the fact that the jurisdiction exists to control the exercise of power by public bodies. This chapter discusses the supervisory jurisdiction of the courts, procedural reform, the rule in O’Reilly v Mackman, the public law/private law distinction, collateral challenge, and exclusion of judicial review. The procedure for making a claim for judicial review under the Civil Procedural Rules (CPR) 54 is outlined.

6. The European Union

The aims of this chapter are threefold. It first briefly considers the events that have led to the creation of the European Community (EC) and the European Union (EU). Secondly, it introduces the reader to the principal institutions of the Union: the European Council; the Council of Ministers; the European Commission; the European Parliament; and the Court of Justice of the EU and General Court. The nature and functions of each of these bodies is considered. Thirdly, the chapter indicates, where appropriate, the nature of the institutional reforms which have occurred following the ratification of the Lisbon Treaty by the member states.

5. Parliament

This chapter is concerned with the two chambers of Parliament, which, together with the Queen, collectively form Parliament: these are the House of Commons (HC) and the House of Lords (HL). The composition of both Houses is considered in this chapter, and attention is given to the officers of the House of Commons; the life of Parliament; House of Commons sittings; and the committee system. The electoral franchise is discussed and attention is focused on the important issues of electoral reform and the reform of the House of Lords. The chapter concludes by considering what is meant by the term ‘parliamentary privilege’.

19. Police powers

The Police and Criminal Evidence Act 1984 (PACE) confers many powers upon the police. This chapter discusses the codes of practice of PACE, police powers of stop and search, the power to arrest members of the public, and the powers to enter property. Whether or not a particular power is exercised will be a matter for the discretion for an individual officer. The exercise of this discretion and the extent to which this is subject to review by the courts will be examined. Finally, the chapter looks at two offences which may be committed against the police: assaulting an officer and wilful obstruction of an officer.

18. Freedom of expression

This chapter focuses on some of the laws relating to freedom of expression in the UK. Freedom of expression is widely considered to be a necessary feature in any democratic state. The chapter considers the extent to which restrictions are placed on the freedom of expression in the UK in two particular contexts. It considers laws for the control of obscenity and indecency, the publication of obscene matter, the test of obscenity, defences, powers of search and seizure, and the possession of pornographic images. The discussion also considers that part of the law of contempt of court which relates to restricting the ability of the media to report court proceedings. This chapter is confined to the law relating to obscenity and indecency and contempt of court on the basis that they share the important characteristic of being regulated by both statute and the common law.

17. Freedoms and liberties in the United Kingdom

This chapter is concerned with how freedoms and liberties might be protected in the UK. It begins with an attempt to distinguish between human rights and civil liberties, whilst recognizing that this is by no means a straightforward task. It then covers political and social or economic rights, the traditional means of protecting civil liberties in the UK, the European Convention on Human Rights, the incorporation of the Convention into English law, and judicial deference/discretionary areas of judgment. The Human Rights Act 1998 is reviewed from a protection of rights perspective. Finally, the question of a Bill of Rights for the UK is considered.

15. Judicial review remedies

This chapter discusses the different kinds of remedy which a court has the power to grant were it to exercise its discretion in favour of the claimant for judicial review. It should be noted that the remedies are at the discretion of the court. They include: a quashing order (formerly certiorari); a prohibiting order (formerly prohibition); a mandatory order (formerly mandamus); declaration; injunction; interim declaration; and substitutionary remedy. Damages, however, are excluded from the list of remedies. Although CPR 54.3(2) of the Civil Procedure Rules provides that a claim for judicial review may include a claim for damages, it further provides that the claim may not seek damages alone.

12. The royal prerogative

This chapter begins by discussing the origins and meaning of the term ‘royal prerogative’. It identifies some examples of prerogative powers and considers how certain personal or reserve powers of the monarch might be exercised in practice. The chapter also explores the relationship between prerogative power and statutes, and focuses on how the courts have dealt with the prerogative. The chapter also discusses the adaptation of prerogative powers, the relationship between the prerogative and the courts, and the courts’ recent willingness to review the exercise of certain prerogative powers. The chapter concludes by looking at several ways in which the prerogative could be reformed.

11. Judge-made law

This chapter considers a further source of the UK constitution: the law that is made by the judicial branch of government as a result of the cases heard by the courts. Today it is widely accepted that judge-made law is a reality. It takes two main forms: the development of the common law; or the interpretation of statutes. The two main approaches of the courts to interpretation of Acts of Parliament—the literal approach and the purposive approach—are discussed. In addition, the interpretative obligation imposed on the courts by s 3 of the Human Rights Act 1998 is also reviewed.