August 19, 2022

Principle of Judicial Review

Meaning of Judicial Review

As has been stated by Lord Brightman in Chief Constable of the North Wales Police v. Evans, “judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made”.

In other words, judicial review is concerned with reviewing not the merits of the decision but the decision-making process itself.

Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (AC at p. 408) has enunciated three heads of grounds upon which administrative action is subject to control by judicial review, viz.,

  • illegality,
  • irrationality and
  • procedural impropriety.

He has also stated there that the three grounds evolved till then did not rule out that “further developments on a case by case basis may not in course of time add further grounds” and has added that “principle of proportionality” which is recognised in the administrative law by several members of European Economic Community may be a possible ground for judicial review for adoption in the future.

Lord Diplock has explained the three heads of grounds-

  • By “illegality” he means that the decision-maker must understand correctly the law that regulates its decision- making power and must give effect to it, and whether he has or has not, is a justiciable question.
  • By “irrationality” he means unreasonableness. A decision may be so outrageous or in 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, and it is for the judges to decide whether a decision falls in the said category.
  • By “procedural impropriety” he means not only failure to observe the basic rules of natural justice or failure to act with procedural fairness, but also failure to observe procedural rules that are expressly laid down in the legislative instrument by which the tribunal’s jurisdiction is conferred even where such failure does not involve any denial of natural justice.

Where the decision is one which does not alter rights or obligations enforceable in private law, but only deprives a person of legitimate expectations, “procedural impropriety” will normally provide the only ground on which the decision is open to judicial review.

It was observed by Donaldson, L.J. in R. v. Crown Court at Carlisle, ex p Marcus-Moore that judicial review was capable of being extended to meet changing circumstances, but not to the extent that it became something different from review by developing an appellate nature. The purpose of the remedy of judicial review is to ensure that the individual is given fair treatment to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in issue.

In R v. Panel on Take-overs and Mergers, ex p Guinness plc15 (LR at p. 842) he referred to the judicial review jurisdiction as being supervisory or as ‘longstep’ jurisdiction. He observed that unless that restriction on the power of the court is observed, the court will under the guise of preventing the abuse of power be itself guilty of usurping power. That is so whether or not there is a right of appeal against the decision on the merits.

The duty of the court is to confine itself to the question of legality. Its concern is with whether a decision-making authority exceeded its powers, committed an error of law, committed a breach of the rules of natural justice, reached a decision which no reasonable tribunal could have reached or abused its powers.

Lord Roskil in Council of Civil Service Unions v. Minister for the Civil Service, opined that the phrase “principles of natural justice” “be better replaced by speaking of a duty to act fairly. … It is not for the courts to determine whether a particular policy or particular decisions taken in fulfillment of that policy are fair. They are only concerned with the manner in which those decisions have been taken and the extent of the duty to act fairly will vary greatly from case to case. … Many features will come into play including the nature of the decision and the relationship of those involved on either side before the decision was taken”.

In Puhlhofer v. Hillingdon London Borough Council[1] Lord Brightman stated: “Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.”

In Leech V. Dy. Governor of Parkhurst Prisonl[2] Lord Oliver stated:

“… the susceptibility of a decision to the supervision of the courts must depend, in the ultimate analysis, on the nature and consequences of the decision and not on the personality or individual circumstances of the person called upon to make the decision.”

Reference

S.R. Bommai vs Union Of India; 1994 AIR 1918


[1] (AC p. 518: All ER p. 474)

[2] (AC p. 583: All ER p. 512)