Scope of Judicial Review

Statutory powers

‘Public law’ element

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.

Justiciability of exercise of statutory power

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.

Prerogative powers

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

Possibility of Review

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

Limits

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.

However, courts have subtlety moved away from the power-based approach in GCHQ to an issue-based approach. The question is not whether the power is justiciable but if the issues which arise by virtue of the exercise of the power are justiciable. This is exemplified by the following cases.

• 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...

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