#16708 - Scope Of Judicial Review Problem Question Notes - Administrative Law

Not all powers exercised under statute may be sufficiently ‘public’ to attract judicial review. There seem to be two approaches in the common law.

Firstly, R v Bolsover District Council, ex p Pepper [2001] BLGR 43: D, a local authority, refused to sell land to C. Held; this could not be subject to judicial review as this was a private law matter, in the absence of a specific public law element such as a failure to follow statutory procedural requirements.

Secondly, and which Bailey supports, R (Molinaro) v Kensington LBC [2001] EWHC 896 (Admin): The use of a statutory power is sufficient to render the matter a public law one, the only question is if a public law ground of challenge arises.

No blanket rule, depends on the nature of the power and the circumstances. This is evidenced in AXA General Insurance v HM Advocate [2011] UKSC 46. UKSC was asked to review the exercise of statutory powers by Scottish Parliament, a statutory entity was established and empowered by the Scotland Act 1998. Held: justiciable, but highly limited justiciability.

Lord Reed: The extent of the courts’ responsibility in relation to a particular exercise of power by a public authority necessarily depends upon the particular circumstances, including the nature of the public authority in question, the type of power being exercised, the process by which it is exercised, and the extent to which the powers of the authority have limits or purposes which the courts can identify and adjudicate upon. In the circumstances:

the conferred legislative powers were very broad, reflecting Parliament’s intent that the Scottish Parliament have plenary power;

the Scottish Parliament was democratically elected and best placed to determine what lay in Scotland’s best interests on questions of political or moral judgment;

if the courts illegitimately scrutinised the substantive rationality of legislative measures, this would be contrary to the separation of powers;

the Scottish Parliament was directly accountable to the electorate and this other form of accountability did not require the courts to adopt as intensive an approach to review.

However, the Scottish Parliament’s legislative competence was subject to implied statutory limits, as the UK Parliament, legislating for a liberal democracy founded on constitutional principles, would not have intended to empower the Scottish Parliament to act contrary to fundamental principles or basic common law rights.

Lord Hope: However, restraint does not mean abdication of duty. The rule of law enforced by the courts is the ultimate controlling factor on which the constitution is based, and legislation of an extreme kind, such as that purporting to abolish judicial review or to diminish the role of the courts in protecting the interests of the individual, would not be recognised as law.

Where statute overlaps with prerogative, such as where the prerogative has been regulated by statute, the latter is placed in abeyance, and the executive’s power to do the same act now derives from Parliament rather than the Crown: AG v De Keyser’s Royal Hotel

The Crown cannot act under the prerogative if to do so would be incompatible with statute: R v Home Secretary, ex p Northumbria Police Authority

Discretionary powers conferred by prerogative legislation are capable of being subject to judicial review: GCHQ. “There is no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review.” (Lord Diplock) “Judicial control of the prerogative is essential to the maintenance of the rule of law. The courts’ ability to protect individuals against abuse should not be curtailed by formal source-based considerations. Whether committed under statutory or prerogative authority, the act in question is the act of the executive.” (Lord Roskill)

Exercises of prerogative power are themselves capable of being subject to judicial review as well: R (Bancoult) v Foreign Secretary (No 2) [2008] UKHL 61

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL): The right of challenge is not unqualified. It depends upon the subject matter of the prerogative power which is exercised. Some cannot be properly made the subject of review: the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not susceptible to judicial review because their nature and subject matter are not amenable to the judicial process.

The classification is power-based, not issue-based. So long as the above-listed powers are at play, judicial review is not possible at all.

• R v Home Secretary, ex p Bentley [1994] QB 349

B’s brother was convicted of murder and sentenced to death. HS refused to reprieve him and he was therefore hanged. B campaigned for many years for a posthumous pardon, and HS reviewed the case in 1992 but refused to grant a pardon because the review had failed to establish B’s brother’s innocence. However, HS had considered only the possibility of an unconditional pardon, and failed to appreciate that other options, including a conditional pardon, signifying the retrospective and symbolic substitution of the court-imposed penalty with some lesser penalty.

Held; though there could be no formal remedy for the Minister’s failure to give sufficient consideration to a conditional pardon, the court was competent to examine the issues given that the central question related to the scope of HS’s prerogative powers. The issue was not rendered non-justiciable merely by the fact that it arose in relation to the prerogative of mercy.

• R (Barclay) v Justice Secretary [2014] UKSC 54

It was argued that the UK courts lacked jurisdiction to hear a judicial review challenge to an Order in Council by which Royal Assent was given, on the advice of the UK executive, to a statute passed by the legislative of Sark, a Channel Island and Crown Dependency (the giving of Royal Assent being necessary for the statute to become law).

Held; the court could not intervene in this case because the challenge had been made on human rights grounds and it was more appropriate for such challenges to be made in local courts on the basis of Sark’s dedicated human rights law once it was passed, rather than preemptively by UK courts less familiar with local conditions and prior to the statute becoming law.

However, the refusal to exercise review powers in this case did not entail the proposition that such Orders were non-justiciable in general. UK courts do have jurisdiction judicially to review an Order in Council which is made on the advice of the UK government acting in whole or in part in the interests of the UK; nevertheless there are circumstances in which that jurisdiction should not be exercised.

• R (Sandiford) v Foreign Secretary [2014] UKSC 44

A government decision not to pay the legal fees of a British national seeking to overturn their death sentence in Indonesia was challenged.

(Carnwath and Mance) There is no reason why a prerogative refusal to fund litigation should be immune from all judicial review. It does not raise any real issues of foreign policy. [The exercise of prerogative powers is never immune from challenge, and only if a particular review challenge necessarily required the court to enter into the substance of foreign policy matters would this militate against judicial intervention in that case.]

The movement is not universal.

• R v Jones [2006] UKHL 16

(Hoffmann) The making of war and peace and the disposition of the armed forces has always been regarded as a discretionary power of the Crown into the exercise of which the courts will not inquire.

• R (Abbasi) v Foreign Secretary [2002] EWCA Civ 1598

‘Forbidden areas’ include decisions affecting foreign policy.

• R (New London College) v Home Secretary [2013] UKSC 51

(Sumption) It has long been recognised that the Crown possesses some general administrative powers to carry on the ordinary business of government which are not exercises of the royal prerogative and do not require statutory authority, albeit that the extent of these powers and their exact juridical basis are controversial.

Statute may impliedly confer upon government ancillary or managerial powers reasonably incidental to express statutory powers and duties, these statutory powers being very similar in content and scope to third source powers.

• R (New London College) v Home Secretary [2013] UKSC 51

(Sumption) [While it is often said that the Crown enjoys all of the capacities and powers of a natural person subject only to particular constraints imposed by law], it is open to question whether the analogy with a natural person is really apt in the case of public or governmental action, as opposed to purely managerial acts of a kind that any natural person could do, such as making contracts, acquiring or disposing of property, hiring and firing staff and the like.

• Shrewsbury and Atcham Borough Council v...