Judicial review and ‘politics by another means’: Part 1


Judicial review and the Tory manifesto


That part of the Tory manifesto – at page 48 – which deals with aspects of constitutional reform is a muddled concoction of a few topics. One that has caused real concern amongst a number of people is what is said about judicial review (JR); though much of that may be influenced by the fact that what is meant by judicial review is not always well understood.


First, what the manifesto says only matters if the Tories have a workable majority after the election. This looks depressingly likely; so what does their manifest say on the subject of JR:


We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.


So judicial review (JR) is to remain available to protect ‘rights of individuals’; but, on this sentence – there is no more – of the Tory manifesto JR is (1) not to be ‘abused to conduct politics by another means;; nor (2) ‘to create needless delays’. The ‘needless delays’ question is a matter of the administrators – HM Courts and Tribunal Service on behalf of the government – to provide enough courts and judges to deal with the claims presented to the courts. In practice judicial review procedure is efficient and works quickly (eg that a claim must be made at the latest within three months of the decision at issue).


The main question turns on the issue of ‘politics by another means’. What does this mean? The fact is that the vast majority of JR has nothing to do with politics, beyond – occasionally – local politics or the determination of a civil servant decision-maker to press a particular point: maybe someone in the Home Office or the Police.


Judicial review: an overview


So what is JR, how does it work, what are politics in the context of High Court litigation and to what extent are particular cases ‘political’? These posts seek to answer these questions:


  • What is JR? This post will seek to answer this question is a very general way;
  • How does JR work in a handful of recent cases; and to what extent may these be treated a ‘political’; and
  • How does the ‘political’ aspect impact of mainstream JR process and how may this be affected by what the Tories propose?


Running through these three questions is what is identified by Hickinbottom LJ the Court of Appeal in Wilson & Ors , R v The Prime Minister [2019] EWCA Civ 304, [2019] WLR 4174 (4 March 2019):


[56] The Applicants clearly oppose the UK leaving the EU; and hold strong views to that effect. Others hold strong views in favour of leaving the EU. The subject matter raises passions on both sides. However, consideration of this claim must be focused exclusively on the question of whether the Respondent has acted in accordance with the law. The courts are not concerned at all with the merits of leaving or remaining in the EU… As Singh LJ and Carr J put it recently in R (Hoareau and Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin) at [326]: “Judicial review is not, and should not be regarded as, politics by another means.” As will be clear from this judgment, I consider those observations equally applicable to this case.


What is judicial review?


JR is a remedy which has been created by the judges over the centuries – that is to say, it is a common law remedy (and any statutory content is merely confirmation of the common law). The modern definition of JR is that it is a means by which the High Court reviews the lawfulness of (1) a rule or regulation or (2) a decision, an action or a failure to act by a public body (mostly civil servants; but also by local authorities etc).


By the JR process, the court can supervise what public bodies are required to do by statute; or to tell them to act where they have failed to do so. This role of the judges is reflected in the Wilson case (above): ‘Consideration of this claim must be focused exclusively on the question of whether the Respondent has acted in accordance with the law’ whatever may be the judges or anyone else’s view of the politics in the case.


The High Court can make orders – these are the most commonly used of the orders available – which tell a public body what to do (a mandatory order); to tell the body not to do something (a prohibitory order); or to override the order which is the subject of the complaint (a quashing order). Under Human Rights Act 1998 judicial review is not formally prescribed as the remedy by which a person challenges the lawfulness of an act under the 1998 legislation and European Convention 1950; but is the main way to challenge a public body under the 1998 Act.


A person makes a claim for JR where she or he asks the High Court for permission to proceed with a claim. No claim can proceed unless the court considers that the applicant ‘has a sufficient interest’ in the issue she or he seeks to bring before the court; and the court considers they have an arguable case.


Basis of challenge: powers


A challenge in judicial review turns on what are the powers (vires) of the public body; or the way in which the decision-maker, representing the authority, exercises – or fails to exercise – its powers. The question that a JR claim poses in simple terms is: does the body, or the decision-maker in its name, have the power vested in it to do what it has done; or, given that it has the power, and has exercised it irrationally (as defined below: ‘Wednesbury unreasonableness’)? Where it has the power, has it failed to exercise it as it should have done? In relation to social security legislation, in Part 2 the illegal way that the Department of Work and Pensions dealt with their legislation will be looked at in the case of RR v Secretary of State for Work and Pensions [2019] UKSC 52, [2019] 1 WLR 6430


In a House of Lords case, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, Lord Diplock sets out a categorisation of the grounds for judicial review (a categorisation that still holds good). Further, since 1999 the additional dimension of the Human Rights Act 1998 and Convention rights has a particular relevance to evaluation of the exercise of public powers. The categorisations identified by Lord Diplock are illegality, irrationality and procedural impropriety.


(1) Illegality – means a failure to act within the law. For example, when the decision-maker contemplates a decision he must understand the law on which it is based and must apply it correctly. Illegality includes if a decision-maker fails to take into account a statutorily relevant issue or takes into account an issue the decision-maker should not have considered. A decision-maker must approach every decision with an open mind and not necessarily according to prescribed formulae. Discretionary powers must be exercised ‘on each occasion in the light of the circumstances at the time’ (R (Venables) v Secretary of State for the Home Department [1998] AC 407).


(2) Irrationality (or unreasonableness) – did the local authority take into account matters that they should not have done; or did they fail to take into account matters that they should have considered. Even if they did not act in this way, did they nevertheless come to a conclusion ‘so unreasonable that no reasonable authority could have come to it’? Powers may not be used outside the ambit of a decision-maker’s authority: ‘Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely – that is to say, it can be validly used only in the right and proper way which Parliament … is presumed to have intended’: (R (Chetnick Developments Ltd) v Tower Hamlets LBC [1988] AC 858, Lord Bridge at 872). The scope for interference by the courts is narrow. Unless the decision-maker exercises his discretion in a way that is so unreasonable that no reasonable decision-maker could have so operated, and he has taken into account the correct questions, then his decision will not generally be said to have been irrational.


(3) Procedural impropriety – A decision-maker must act fairly, that is to say in accordance with the principles of natural justice. Common law concepts of natural justice have been extended by European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Art 6(1) (right to a fair trial). A right to a fair trial does not affect the actual rights that the courts are required to protect; but the Article protects or guarantees the procedures (including, for example, evidential rules) by which those rights are protected.


So next (in Part 2), to look at:


  • How does JR actually work in terms of politics, or not in a handful of recent cases; and to what extent such cases may be treated as ‘political’ (per the Tory manifesto); and
  • How does the ‘political’ aspect impact of mainstream JR process arise and how may this be affected by what the Tories propose?