Judicial review is a procedure in English administrative law by which the courts supervise the exercise of public power on the application of an individual. A person who feels that an exercise of such power by a government authority, such as a minister, the local council or a statutory tribunal, is unlawful, perhaps because it has violated his or her rights, may apply to the Administrative Court (a division of the High Court) for judicial review of the decision and have it set aside (quashed) and possibly obtain damages. A court may also make mandatory orders or injunctions to compel the authority to do its duty or to stop it from acting illegally.
Unlike the United States and some other jurisdictions, the English doctrine of parliamentary supremacy means that the law does not know judicial review of primary legislation (laws passed by the Parliament of the United Kingdom), except in a few cases where primary legislation is contrary to the law of the European Union or the European Convention on Human Rights. A person wronged by an Act of Parliament therefore cannot apply for judicial review except in these cases.
The English constitutional theory as expounded by A.V. Dicey does not recognise a separate system of administrative courts that would review the decisions of public bodies (as in France, Germany and many other European countries). Instead, it is considered that the government should be subject to the jurisdiction of ordinary Common Law courts.
At the same time, the doctrine of Parliamentary sovereignty does not allow for the judicial review of primary legislation (Acts of Parliament). This limits judicial review in English law to the decisions of public bodies and secondary (delegated) legislation, against which ordinary common law remedies as well as special "prerogative orders" are available in certain circumstances.
The constitutional theory of judicial review has long been dominated by the doctrine of ultra vires, under which a decision of a public authority can only be set aside if it exceeds the powers granted to it by Parliament. The role of the courts was seen as enforcing the "will of Parliament" in accordance with the doctrine of Parliamentary sovereignty. However, the doctrine has been widely interpreted to include errors of law[1] and of fact and the courts have also declared the decisions taken under the Royal Prerogative to be amenable to judicial review.[2] Therefore it seems that today the constitutional position of judicial review is dictated by the need to prevent the abuse of power by the executive as well as to protect individual rights.
Under the Civil Procedure Rules a claim (application) for judicial review will only be admissible if permission (leave) for judicial review is obtained from the High Court, which has supervisory jurisdiction over public authorities and tribunals. Permission may be refused if one of the following conditions is not satisfied:
However, the Court will not necessarily refuse permission if one of the above conditions is in doubt. It may, in its discretion, examine all the circumstances of the case and see if the substantive grounds for judicial review are serious enough.[5] Delay or lack of sufficient interest can also lead to the court refusing to grant a remedy after it had considered the case on the merits.[6]
The decision complained of must have been taken by a public body, i.e. a body established by statute or otherwise exercising a public function. In R v Panel for Takeovers and Mergers Ex p Datafin [1987] 1 QB 815, the Court of Appeal held that a privately established panel was amenable to judicial review because it in fact operated as an integral part of a governmental framework for regulating Mergers and Takeover, while those affected had no choice but to submit to its jurisdiction.
Sometimes the legislator may want to exclude the powers of the court to review administrative decision, making them 'final', 'binding' and not apellable. However, the courts have consistently held that none but the clearest words can exclude judicial review.[7] When the Government wanted to introduce a new Asylum and Immigration Act containing such clear words, members of the judiciary protested to the extent of saying that they will not accept even such an exclusion.[8] The Government withdrew the proposal.
The courts however do uphold time limits on applications for judicial review.[9]
The House of Lords held in O'Reilly v Mackman [1983] 2 AC 237 that where public law rights were at stake, the claimants could only proceed by way of judicial review. They could not originate their action under the general civil law procedure, because that would be avoiding the procedural safeguards afforded to public authorities by the judicial review procedure, such as the requirement of sufficient interest, timely submission and permission for judicial review. However, a defendant may still raise public law issues as a defence in civil proceedings. So for example, a tenant of the public authority could allege illegality of its decision to raise the rents when the authority sued him for failing to pay under the tenancy contracts. He was not required to commence a separate judicial review process (Wandsworth London Borough Council v Winder (1985)). If an issue is a mix of private law rights, such as the right to get paid under a contract, and public law issues of the competence of the public authority to take the impugned decision, the courts are also inclined to allow the claimant to proceed using ordinary civil procedure, at least where it can be demonstrated that the public interest of protecting authorities against frivolous or late claims has not been breached (Roy v Kensington and Chelsea and Westminster Family Practitioner Committee (1992), Trustees of the Dennis Rye Pension Fund v Sheffield City Council (1997)).
In ''Council of Civil Service Unions v Minister for the Civil Service'' [1985] AC 374, Lord Diplock summarised the grounds for reversing an administrative decision by way of judicial review as follows:
The first two grounds are known as substantive grounds of judicial review because they relate to the substance of the disputed decision. Procedural impropriety is a procedural ground because it is aimed at the decision-making procedure rather than the content of the decision itself. The three grounds are mere indications: the same set of facts may give rise to two or all three grounds for judicial review.
In Lord Diplock's words, this ground means that the decision maker "must understand correctly the law that regulates his decision-making power and must give effect to it."
A decision may be illegal for many different reasons. There are no hard and fast rules for their classification, but the most common examples of cases where the courts hold administrative decisions to be unlawful are the following:
If the law empowers a particular authority, e.g. a minister, to take certain decisions, the Minister cannot subdelegate this power to another authority, e.g. an executive officer or a committee. This differs from a routine job not involving much discretion being done by civil servants in the Minister's name, which is not considered delegation.[10]
The court will quash a decision where the authority has misunderstood a legal term or incorrectly evaluated a fact that is essential for deciding whether or not it has certain powers. So, in R v Secretary of State Ex Parte Khawaja [1984] AC 74, the House of Lords held that the question whether the applicants were "illegal immigrants" was a question of fact that had to be positively proved by the Home Secretary before he could use the power to expel them. The power depended on them being "illegal immigrants" and any error in relation to that fact took the Home Secretary outside his jurisdiction to expel them. However, where a term to be evaluated by the authority so broad and vague that reasonable people may reasonably disagree about its meaning, it is generally for the authority to evaluate its meaning. For example, in R v Hillingdon Borough Council ex Parte Pulhofer [1986] AC 484, the local authority had to provide homeless persons with accommodation. The applicants were a married couple, who lived with her two children in one room and applied to the local authority for aid. The local authority refused aid because it considered that the Pulhofers were not homeless and the House of Lords upheld this decision because whether the applicants had accommodation was a question of fact for the authority to determine.
A good example of this is the case of R v Secretary of State for Foreign Affairs Ex p The World Development Movement. Section 1 of the Overseas Development and Co-operation Act 1980 empowered the Secretary of State for Foreign Affairs to assign funds for development aid of economically-sound projects. The Secretary assigned the funds for a project to construct a power station on the Pergau River in Malaysia (see Pergau Dam) which was considered as uneconomic and not sound. The House of Lords held that this was not the purpose envisaged by the enabling statute and the Minister therefore exceeded his powers. A similar principle exists in many continental legal systems and is known by the French name of détournement du pouvoir.
This ground is closely connected to illegality as a result of powers being used for the wrong purpose. For example Wheeler v Leicester City Council, where the City Council banned a rugby club from using its ground because three of the club's members went on a tour in South Africa at the time of apartheid. In R v Somerset County Council Ex parte Fewings the local authority decided to ban stag hunting on the grounds of it being immoral. In Padfield v Ministry of Agriculture, Fisheries and Food, the Minister refused to mount an inquiry into a certain matter because he was afraid of bad publicity. In R v ILEA Ex parte Westminster City Council [1948] 1 KB 223, the London Education Authority used its powers to inform the public for the purpose of convincing the public of its political point of view. In all these cases, the authorities have based their decisions on considerations, which were not relevant to their decision making power and have acted unreasonably (this may also be qualified as having used their powers for an improper purpose).
Note that the improper purpose or the irrelevant consideration must be such as to materially influence the decision. Where the improper purpose is not of such material influence, the authority may be held to be acting within its lawful discretion. So R v Broadcasting Complaints Commission Ex parte Owen [1985] QB 1153, where the Broadcasting authority refused to consider a complaint that a political party has been given too little broadcasting time mainly for good reasons, but also with some irrelevant considerations, which however were not of material influence on the decision.
An authority will be acting unreasonably where it refuses to hear applications or makes certain decisions without taking individual circumstances into account by reference to a certain policy. When an authority is given discretion, it cannot bind itself as to the way in which this discretion will be exercised either by internal policies or obligations to others. Even though an authority may establish internal guidelines, it should be prepared to make exceptions on the basis of every individual case.[11]
Under Lord Diplock's classification, a decision is irrational if it is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it." This standard is also known as Wednesbury unreasonableness, after the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, where it was first imposed.
Unlike illegality and procedural impropriety, the courts under this head look at the merits of the decision, rather than at the procedure by which it was arrived at or the legal basis on which it was founded. The question to ask is whether the decision "makes sense". In many circumstances listed under "illegality", the decision may also be considered irrational.
Proportionality is a requirement that a decision is proportionate to the aim that it seeks to achieve. E.g. an order to forbid a protest march on the grounds of public safety should not be made if there is an alternative way of protecting public safety, e.g. by assigning an alternative route for the march. Proportionality exists as a ground for setting aside administrative decisions in most continental legal systems and is recognised in England in cases where issues of EC law and ECHR rights are involved. However, it is not as yet a separate ground of judicial review, although Lord Diplock has alluded to the possibility of it being recognised as such in the future. At present, lack of proportionality may be used as an argument for a decision being irrational.[12]
A decision suffers from procedural impropriety if in the process of its making the procedures prescribed by statute have not been followed or if the 'rules of natural justice' have not been adhered to.
An Act of Parliament may subject the making of a certain decision to a procedure, such as the holding of a public hearing or inquiry,[13] or a consultation with an external adviser.[14] Some decisions may be subject to approval by a higher body. Courts distinguish between "mandatory" requirements and "directory" requirements. A breach of mandatory procedural requirements will lead to a decision being set aside for procedural impropriety.
The rules of natural justice require that the decision maker approaches the decision making process with 'fairness'. What is fair in relation to a particular case may differ. As pointed out by Lord Steyn in Lloyd v McMahon [1987] AC 625 "the rules of natural justice are not engraved on tablets of stone." Below are some examples of what the rules of natural justice require:
The first basic rule of natural justice is that nobody may be a judge in his own case. Any person that makes a judicial decision - and this includes e.g. a decision of a public authority on a request for a license - must not have any personal interest in the outcome of the decision. If such interest is present, the decision maker must be disqualified even if no actual bias can be shown, i.e. it is not demonstrated that the interest has influenced the decision.[15] The test as to whether the decision should be set aside is whether "a fair-minded and informed observer would conclude that there was a real possibility [of bias]".[16]
Whether or not a person was given a fair hearing of his case will depend on the circumstances and the type of the decision to be made. The minimum requirement is that the person gets the chance to present his case. If the applicant has certain legitimate expectations, for example to have his licence renewed, the rules of natural justice may also require that he is given an oral hearing and that his request may not be rejected without giving reasons. [17] Where the decision is judicial in nature, for example a dismissal of an official in punishment for improper conduct, the rules of natural justice require a hearing and the person question must know the case against him and be able to examine and object to the evidence.
Unlike many other legal systems, English administrative law does not recognise a general duty to give reasons for a decision of a public authority.[18] A duty to give reasons may be imposed by statute. Where it is not, Common Law may imply such a duty and the courts do so particularly with regard to judicial and quasi-judicial decisions.[19]
The remedies traditionally available in judicial review are the so called prerogative orders, formerly prerogative writs: certiorari, mandamus and prohibition. Certiorari quashes unlawful decisions; mandamus forces a public body to exercise its legal powers when it refuses to do so; prohibition orders the defendant to cease a course of action. In the language of the new Civil Procedure Rules, these orders are now known respectively as the quashing order, the mandatory order and the prohibiting order. A claimant for judicial review may also seek an injunction, a declaration and/or damages.[20]
Injunctions and prohibiting orders are similar, the former generally being used to forbid an action, and the latter a decision. A declaration 'declares' the law on a particular subject and when used to declare a decision void it is effectively equivalent to a quashing order. It is usually used to declare a statute or a regulation incompatible with a higher norm of law, such as EC law or the European Convention of Human Rights, via the mechanism of a 'declaration of incompatibility' [21]
The prerogative orders, declarations, injunctions and damages are discretionary remedies.[22]
Judicial review in the United States refers to the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the constitution itself.
At the federal level, there is no power of judicial review explicitly established in the United States Constitution, but the doctrine has been inferred from the structure of that document.[1] At the time of the 1787 Constitutional Convention, five of the thirteen States included some form of judicial review or judicial veto in their state Constitutions. Delegates at 1787's Constitutional Convention, including South Carolina's Charles Pinckney, spoke out against the doctrine of judicial review. The Constitution states in Article III:
"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish....The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority....In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."
Since the 1803 legal case Marbury v. Madison, the Supreme Court, especially John Marshall, the Chief Justice at the time, has understood that it has a power of judicial review, in order to apply the Constitution to particular cases.[2] This does not mean, however, that the judiciary is the only branch of government that decides the meaning of the text of the Constitution. Article VI requires all public officials in the other branches of government to be bound "by oath or affirmation, to support this Constitution," and the officials of the other branches of government have almost always complied with the Court's interpretations, even when disagreeing with them, on the premise that the Court's interpretations of the Constitution have been in good faith.
The procedure for judicial review of federal administrative regulation in the United States is set forth by the Administrative Procedure Act although the courts have ruled such as in Bivens v. Six Unknown Named Agents that a person may bring a case on the grounds of implied cause of action when no statutory procedure exists.
Although the power to strike down laws is not specifically listed in the Constitution, it has been deemed an implied power, derived from Article III quoted above, and from Article VI which declares that the Constitution is the supreme law of the land "and the Judges of every state shall be bound thereby." No state or federal law is allowed to violate the U.S. Constitution.
The foremost authority for deciding the constitutionality of federal or state law under the Constitution of the United States in cases which come before it is the Supreme Court of the United States, as decided in the 1803 case of Marbury v. Madison. In Marbury the Supreme Court struck down a portion of the Judiciary Act of 1789 which had purported to change the Court's original jurisdiction from what the Constitution described. Although the Court continues to review the constitutionality of statutes in cases which come before it, Congress and the states retain power to influence what cases come before the Court. For example, the Constitution (at Article III, Section 2) gives Congress power to make exceptions to the Supreme Court's appellate jurisdiction, and additionally states may choose to exercise sovereign immunity from lawsuits.
The ultimate court for deciding the constitutionality of state law under state constitutions is normally the highest state appellate court, whose judgments are final in the absence of a federal question. This court is usually called a state supreme court, but sometimes is known as a court of appeals. Even before Marbury, the doctrine of judicial review was specifically enshrined in some state constitutions, and by 1803 it had been employed in both state courts and federal courts in actions dealing with state statutes.
In the federal system, courts may only decide actual cases or controversies; it is not possible to request the federal courts to review a law without at least one party having legal standing to engage in a lawsuit. This principle means that courts sometimes do not exercise their power of review, even when a law is seemingly unconstitutional, for want of jurisdiction. In some state courts, such as the Massachusetts Supreme Judicial Court, legislation may be referred in certain circumstances by the legislature or by the executive for an advisory ruling on its constitutionality prior to its enactment (or enforcement).
The U.S. Supreme Court seeks to avoid reviewing the Constitutionality of an act where the case before it could be decided on other grounds. Justice Brandeis framed it thus (citations omitted):[3]
After the Court exercised its power of judicial review in the 1803 case of Marbury v. Madison, it avoided striking down a federal statute during the subsequent fifty years, and would not do so again until the 1856 case of Dred Scott v. Sandford.[4]
Although judicial review has now become an established part of constitutional law in the United States, there are some who disagree with the doctrine, or believe that it is unconstitutional. This is generally based on two grounds. First, the power of constitutional review is not specifically delegated to the Supreme Court anywhere in the Constitution. Along with this, the Tenth Amendment explicitly states that any power that is not delegated by the Constitution is reserved to the states, or people. Secondly, it is the states alone that have the power to create this set of laws for the federal government follow, logically it is the states alone that have the power to interpret the meaning of these laws. Allowing the federal government to conduct judicial review allows them to interpret their own restrictions as they see fit, with no consent to the originating power.
Although the Constitution does not explicitly authorize judicial review, it also does not explicitly prevent it, as did the Virginia Constitution of 1776. That Virginia Constitution said: "All power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised."[5]
The extent of judicial review in the United States was discussed at the Constitutional Convention, and the Virginia Plan suggested a "council of revision" which would have included the Supreme Court, and which would have been empowered to examine proposed new laws and could accept or reject them regardless of constitutionality. However, under that proposed system, Congress could pass a bill over the council's veto. The "council of revision" proposed in the Virginia Plan was ultimately rejected in the Constitutional Convention, for fear that the Supreme Court would abuse its power, and the proposed "council of revision" morphed into the Presidential veto. Thus, the courts were only empowered to strike down statutes for unconstitutionality. James Madison, the author of the Virginia plan, suggested narrowing the courts' power of judicial review even further:
Robert Yates, a delegate to the Constitutional Convention from New York, predicted during the ratification process how the courts would use the power of judicial review:
Both proponents of judicial review, as well as its opponents note that any government based on a written constitution requires some mechanism to prevent laws from being passed that violate that constitution. Otherwise, the document would be meaningless, and the legislature, with the power to enact any laws whatsoever, would be the supreme arm of government (the British doctrine of parliamentary sovereignty). The two sides differ only in which mechanism should hold that power, either the states or the federal government. This concept was laid out by Alexander Hamilton in Federalist No. 78:
In 1820, Thomas Jefferson expressed his deep reservations about the doctrine of judicial review:
In 1861, Abraham Lincoln touched upon the same subject, during his first inaugural address:
Lincoln was alluding here to the case of Dred Scott v. Sandford, in which the Court had struck down a federal statute for the first time since Marbury v. Madison.[4]
In the United States, unconstitutionality is the only ground for a federal court to strike down a federal statute. Justice Washington, speaking for the Marshall Court, put it this way in an 1829 case:
If a state statute conflicts with a valid federal statute, then courts may strike down the state statute as a violation of the Supremacy Clause. But a federal court may not strike down a statute absent a violation of federal law or of the federal Constitution.
Moreover, a suspicion or possibility of unconstitutionality is not enough for American courts to strike down a statute. Alexander Hamilton explained in Federalist 78 that the standard of review should be "irreconcilable variance" with the Constitution. Antifederalists agreed that courts would be unable to strike down federal statutes absent a conflict with the Constitution. For example, Robert Yates, writing under the pseudonym "Brutus", asserted that "the courts of the general government [will] be under obligation to observe the laws made by the general legislature not repugnant to the constitution." [6]
These principles—that federal statutes can only be struck down for unconstitutionality and that the unconstitutionality must be clear—were very common views at the time of the framing of the Constitution. For example, George Mason explained during the constitutonal convention that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course." [7]
For centuries, the courts were relatively deferential to Congress. Justice Washington put it this way, in an 1827 case: "It is but a decent respect to the wisdom, integrity, and patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond a reasonable doubt."[8]
Although judges usually adhered to this principle that a statute could only be deemed unconstitutional in case of a clear contradiction until the twentieth century, this presumption of constitutionality weakened somewhat during the twentieth century, as exemplified by the Supreme Court’s famous footnote four. Nevertheless, the federal courts have not departed from the principle that courts may only strike down statutes for unconstitutionality.
Of course, the practical implication of this principle is that a court cannot strike down a statute, even if it recognizes that the statute is obviously poorly drafted, irrational, or arises from legislators' corrupt motives, unless the flaw in the statute rises to the level of a clear constitutional violation. In 2008, Justice John Paul Stevens reaffirmed this point in a concurring opinion: "[A]s I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: 'The Constitution does not prohibit legislatures from enacting stupid laws.'"[9]
The Supreme Court has historically acknowledged that its jurisdiction is defined by Congress, and thus that Congress has the power to make some legislative or executive actions unreviewable. This is known as jurisdiction stripping.