Applying for judicial review

Judicial review has developed as a useful tool for persons or organisations aggrieved by a local or central government decisions. John Orton, county solicitor and deputy clerk at Avon County Council, looks at the applications procedure and asks why the increase in applications has occurred
Judicial review is the name given to those applications to the High Court for public law remedies of declaration and the prerogative writs. This consolidation of the previously separate procedures is enacted in s 31 of the Supreme Court Act 1981. The rules for making applications are contained in ord 53 of the High Court Rules.
Courts will give relief to applicants where decisions of public authorities are unlawful. The grounds upon which relief can be given can be broken down into the following broad categories:
(a) ultra vires;
(b) based on a misinterpretation of the law;
(c) made in a way that is procedurally incorrect;
(d) unreasonable either in the sense of the failure to take into account a material consideration, or irrationality; and
(e) contrary to the rules of natural justice.
Scope of action
The judicial review remedies lie against inferior courts, tribunals and public bodies. The basic definition was given by Lord Atkin: 'Wherever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.'
There has been a considerable development in recent years of the number of bodies whose decisions are judicially reviewable. The landmark case is R v Panel on Takeovers and Mergers, ex p Datafin [1987] 1 All ER 564 where it was decided that a body essentially dealing with private commercial interests on a self-regulatory basis was susceptible to judicial review. The legal distinction appears to fall somewhere between those bodies who are acting purely in a private matter and those bodies who have a public or semi-public duty.
Judicial review cases can be broadly categorised into those concerning:
(a) criminal procedural matters;
(b) cases involving local authorities;
(c) cases involving government departments including immigration cases;
(d) other cases involving inferior courts, tribunals, panels, etc.
A study of 12 months (July 1990 to July 1991) of The Times and Independent law reports has been made. Over the 12-month period some 94 cases were reported. Of these 29 were against local authorities, 29 were against the government including seven immigration cases, 20 involved criminal proceedings and 16 were cases involving other public or quasi-public bodies. This, of course, is only a small proportion of actual cases. The other 'public' bodies are illustrated in the annex.
Statistics
There has been an increase in the number of cases comparing 1968 (87) and 1977 (376) and 1988, 1989 and 1990 (1229, 1580 and 2129).
The judicial statistics for 1990 show that 2129 applications for leave to apply for judicial review were received of which 902 were allowed. In that year 536 applications were disposed of, 282 were allowed, 166 were dismissed and 88 were withdrawn. Of the 2129 applications, 569 were immigration cases, 620 criminal (this figure includes some 300 cases arising from the Manchester alcoholic swabs case) and 940 under the category 'other'.
The reasons for the increase may be as a result of a number of factors but any review of current cases immediately identifies those matters that are currently politically sensitive or contentious.
One result of the increase in numbers has been the delay in hearing cases. It now takes between 12 and 15 months for a non-urgent case to be listed. This is a matter of concern because the court's ability to make a just decision may be affected by the length of time the decision has stood before the hearing. Expedited cases are heard as urgency dictates but there can be delays here particularly if the long vacation intervenes. The normal period will be four to six weeks, although a case may wait two to three months.
An example of the ability of courts to deal with urgent cases is the challenge of the Secretary of State for the Environment by local authorities who had been chargecapped. The application was first lodged on 24 April and, following full hearings in the High Court (judgment 15 June) and Court of Appeal (judgment 3 July), the House of Lords disposed of the case on 17 July.
It is clear from the nature of cases dealt with by the courts that judicial review is now a common and popular action. It is another tool to be used, possibly as a last resort, when a person or organisation is aggrieved by a decision of central or local government or some other public body. It is used by those who are homeless and whom the local authority refuse to assist, by local people to stop school closures, by parents of children with special educational needs who need more than the local authority can or will provide, and by parents seeking to have their children admitt ed to a school of their choice. Judicial review is also used to seek to prevent schools opting out of local authority control, it is used by gypsies who are being evicted from unauthorised sites by local authorities, it is used by local authorities who have been charge-capped and by the government against local authorities who have been charge-capped.
Judicial review is not part of an administrative law laid down by Parliament. It is based on common law remedies and the case-law is developed by the courts. The principles are flexible. Some judges will seek to do justice in individual cases and may be influenced by the merits of a case, others will deliberately draw back from the merits and address the strict legal issues. It is this flexibility, and I would hesitate to call it lack of consistency, that encourages applicants to apply.
Advising the client
The number of cases in recent years makes it relatively easy to identify certain key matters a solicitor ought to look for when a client seeks his or her advice about bringing an action for judicial review. The categories given below are not exhaustive but cover the main points.
Exceeding statutory powers
In R v Manchester City Council, ex p King [1991] The Times, 3 April, the local authority used its power to charge a fee for issuing licences to street traders to generate revenue far in excess of the cost of administering the licence system -- a charge of £2000 was declared to be unlawful.
The ultra vires principle applies in other areas of the law. Local authority decisions can also be challenged by the district auditor on this ground although not by way of judicial review. This happened in the Hammersmith and Fulham interest swap case. In that case the parties to the transaction had not sought to challenge them. It required the auditor's intervention to invoke the court's jurisdiction
Misinterpreting the law
The case where the local authority has misinterpreted the law before coming to its decision is often a fruitful area for would-be litigants, given the large amount of legislation in recent years. This particularly affects local government where even the most experienced lawyer has difficulty in deciding what Parliament intended.
In R v Shadow Education Committee of the Council of the London Borough of Greenwich, ex p Governors of John Bull Primary School (1990) 88 LGR 589, the Court of Appeal decided that the effect of the Education Act 1980 was that a local education authority in making decisions about the admission of pupils to its schools could not favour children living within its area as against children living outside its area. This case has caused considerable unfairness and has given rise to two other High Court cases involving the London Boroughs of Bromley and Kingston-upon-Thames.
The Court of Appeal decision, however, has been followed by R v London Borough Transport Committee, ex p Freight Transport Association [1990] The Times, 4 October. The London Borough Transport Committee grants permits for lorries to travel on certain streets in greater London. It imposed as a condition that a certain type of silencer should be fitted to air brakes. The Court of Appeal quashed this condition as it exceeded the technical requirements laid down in Dir 71/320 (EEC). The House of Lords [1991] The Times, 25 July, overruled the Court of Appeal and found that the London Borough Transport Committee condition did not in fact contravene the EC Directive and was a valid condition.
Procedural mistakes
In R v Birmingham City Council, ex p Gray (1984) unr eported, a proposal to close a school was quashed because a decision affecting the proposal was made by the chairman of the education committee rather than by the committee itself. The interesting fact about this case is that it was the Birmingham City Council itself which sought to rely on this irregularity. The city council had changed its mind over the merits of the proposal. Although the court was reluctant to quash the order, it did so in favour of the governors of the school concerned.
Beware of relying too heavily on procedural mistakes. In R v Brent, ex p Gunning (1985) 84 LGR 168, Hodgson J said: 'It is quite vital in the exercise of the jurisdiction of this court to keep to the forefront of one's mind that it is only the most extreme examples of bad administration which can successfully attract judicial review of a decision otherwise lawfully arrived at. It follows that the court should not strain to find technical defects which will make the obligations imposed on local authorities unworkable.'
Proper consultation
The principle of whether the authority has carried out proper consultation before making the decision in a case where consultation might be expected has applied in relation to school closure cases.
The court quashed a decision of Brent London Borough Council to reorganise secondary education in the borough in R v Brent, ex p Gunning. One of the grounds for doing so was the failure of the council to consult properly. There was no statutory duty to consult, but the court implied a duty based on circular advice from the Department of Education and Science and the expectation of parents and others to be consulted. Hodgson J judicially endorsed Stephen Sedley's formulation of the principles of consultation. It must be at the formative stage; give sufficient information to allow intelligent response; allow adequate time for a response; and permit comments to be taken into consideration.
The rules on consultation apply not only where there is a statutory duty to consult but where there is a legitimate expectation that consultation will take place.
Unreasonable test
Asking whether the authority has failed to take something into account is the first head of the unreasonableness test, as stated in the landmark case of Association of Provincial Picture Houses Limited v Wednesbury Corporation [1948] KB 223 and the statement of Lord Green MR which most administrative lawyers know off by heart: 'I will summarise . . . the principle applicable. The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to have taken into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account . . . or come to a conclusion so unreasonable that no reasonable authority could ever have come to it.'
In R v Secretary of State for Education and Science, ex p Avon (No 1) (February 1990), the local education authority, following extensive consultaion over a two-year period, had made proposals to reorganise secondary education in Bath by closing one secondary school and creating a sixth-form college in its premises. The school applied for grant-maintained status. The decision of the Secretary of State for Education to allow the school to opt out of local authority control was quashed because the Secretary of State had failed to take into account 'the most important factor -- the consequences that rejection of the council's proposal would have in terms of disruption, delay and prolonged uncertainty for the majority of children and their parents in Bath'.
Wednesbury principle
Asking whether the decision is irrational or perverse is the second head of the Wednesbury principle. This ground is very difficult to sustain and will not apply even where a decision is wrong on the merits. The words of Lord Diplock in CCSU v Minister for Civil Service [1985] AC 374 are worth quoting: 'Wednesbury unreasonable applies to a decision which 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 to be decided could have arrived at it.'
The outcome of the Avon case was for the Secretary of State to make the same decision again, this time having taken into account every factor and a challenge on unreasonable grounds failed. In R v Secretary of State for Education and Science, ex p Avon (No 2) (May 1990) Nicholls LJ said: 'Given the nature of the subject matter on which the Secretary of State was concerned to reach a decision, and given also the importance to be attached to the various conflicting factors, I have great difficulty in seeing how the "irrationality" challenge could ever get off the ground in this case.'
Derbyshire Council Council decided (R v Derbyshire ex County Council, ex p Times Newspapers [1990] The Times, 19 July), after a highly critical item in the Sunday Times about the county council, to place all its advertisements for future posts in the Guardian and to remove them from The Times Educational Supplement. The High Court quashed the decision of the county council as having been made in bad faith and based on vindictiveness: 'It was thus an abuse of power and contrary to public good.'
Natural justice
If the authority in question is a court or tribunal, then ask whether they have acted in accordance with the rules of natural justice. In R v Army Board of the Defence Council, ex p Anderson [1990] The Times, 27 November, the court quashed a determination by the board on the grounds that there had been no proper hearing of the complaint of racial discrimination. The court took into account that the applicant, as a member of the armed forces, did not have the right to take his complaint to an industrial tribunal.
Discretion
In advising a client do not forget that the relief is discretionary in nature. Even if you have made out a case of misinterpretation of law, improper conduct or unreasonableness, the court can in its discretion refuse to grant a remedy.
In R v Birmingham City Council, ex p McKenna [1991] The Times, 16 May, the court ruled that a school appointment panel constituted under the Education (No 2) Act 1986 could only properly make an appointment if all members of the panel were present. It was not, however, prepared to quash the appointment of the head teacher concerned on this technicality alone.
Making an application
It is said of judicial review that its advantage over other alternative remedies lies in the ease with which applications can be made. The special features of the judicial review procedure are briefly outlined. An applicant must first of all obtain the leave of the High Court to proceed with the application. This is now dealt with by a judge considering a written application. If the case is urgent or if the applicant so requests, an oral hearing can be held. If leave to proceed is refused on the basis of the written documentation, an applicant can ask for an oral hearing. An appeal against refusal to grant leave can be heard by the Court of Appe al.
The paperwork is relatively straightforward and will include a statement of the details of the decision to be challenged, the relief sought and the grounds for doing so. An affidavit in support of the application must be lodged at this time. Form 86A is used.
If leave to apply is granted, the orginating summons is served on the respondent and other persons who will be affected by the decision. If there is urgency an application can be made for the case to be expedited. This can be done at the time of the application for leave or afterwards.
The respondent will file affidavits in response. At the hearing it is the usual practice for the affidavits to be relied upon as the evidence of the parties. Oral evidence is only given in exceptional circumstances where there is a dispute of fact or where one of the parties specifically requests to cross-examine a witness. Discovery of documents can also be ordered. This is also quite unusual.
Where the decision to be challenged may take effect before the hearing, an injunction may be applied for. Injunctions cannot, however, lie against the Crown. The courts, by a flexible approach, are able to grant a 'stay' against the Crown. The authority for this is R v Secretary of State, ex p Avon (No 2) (Court of Appeal -- May 1990). It is fair to say that this decision may not survive if the matter ever gets to the House of Lords. However, the courts normally manage to side-step the question by enabling the case in point to be dealt with urgently.
The main characteristics of the judicial review procedure are the need for leave to proceed, the giving of evidence by affidavit only and the absence of discovery as a routine. Judicial review hearings will normally be comparatively short and applications can be relatively inexpensive.
Legal uncertainties
There are a lot of judicial review cases. Is this because public authorities are acting consistently unlawfully -- or because the legislation is not clear enough?
When the law is uncertain, should there not be an easier way of obtaining definitive advice, eg a 'friendly' action for declaration? In the political context, local authorities are only likely to challenge the government, or each other, when they are of a different political complexion -- should the development of law depend on the fortuitous nature of case-law on this basis?