The Nature of Judicial Review

Public functionaries, like citizens, are liable to be sued for torts, breaches of contract, breaches of trust, and so on. Most public functions are also subject to administrative law and judicial review. Both of these forms of judicial control are basically retrospective — they are concerned primarily with cure (dispute resolution), not prevention (dispute avoidance). This is not to say that judicial enforcement of administrative law may not make a contribution to dispute avoidance — i.e. to securing future compliance with administrative law. However, it seems likely that if administrative law is to impose effective constraints on the exercise of public powers, most public functionaries must be prepared to comply with its demands most of the time regardless of the possibility that enforcement action may be taken if they do not comply. From this perspective, the most significant contribution courts make to controlling the performance of public functions is not enforcing rules and principles of administrative law but making them. So far as administrative law is concerned, courts are much more important as law-makers than as law-enforcers. Good training of public functionaries, sound management techniques, and careful in-house monitoring of performance are likely to be much more effective than judicial review in ensuring that public functionaries act lawfully. Legal control of the performance of public functions by the courts takes two main forms: the formal and the informal.

Formal reviews are those which are required by law to be carried out. In some cases, as with Child Benefit Appeals or Disability Benefit Appeals, statutory review was a preliminary stage which all appeals had to go through before the decision could reach a tribunal. In other cases, such as review of decisions relating to the Social Fund, there is no tribunal process available at all — all appeals go through the review process.

Informal reviews are those that are not required by law but which officials nonetheless carry out as part of their routine administrative procedures. In the case of social security appeals, for example, any appeal by a social security claimant against a decision of the Benefits Agency triggers an internal official review to check whether the decision appealed against is or is not correct. There is evidence that more cases are revised in favour of claimants at this stage than at the appeal stage.

In a general sense, ‘judicial review” refers to judicial control of public decision-making in accordance with rules and principles of administrative law. The mechanism for seeking judicial review in this sense is by making a ‘claim for judicial review' (CJR). In Rule 54.1 of the Civil Procedure Rules (CPR) the claim for judicial review is defined as 'a claim to review the lawfulness of

(i) an enactment; or

(ii) a decision, action or failure to act in relation to the exercise of a public function'.

The reference to 'an enactment' establishes the CJR as the mechanism for challenging primary legislation on the grounds of inconsistency with EC law or incompatibility with a Convention right (under the HRA). CPR Part 54 contains a (but not the only) procedure for making a CJR. It is called 'the judicial review procedure' (JRP). Most judicial review claims are made by judicial review procedure, and these claims are made to the Administrative Court, which is part of the High Court.

The court's power of judicial review is sometimes referred to as its 'supervisory jurisdiction'. This jurisdiction is 'inherent'; that is to say, it was not conferred on the courts by statute but was invented by the judges themselves. Supervisory jurisdiction is to be contrasted with 'appellate jurisdiction'. The common law (i.e. the courts) never developed mechanisms for appeals as we understand them today, and all appellate powers are statutory in origin.

What are the main differences between appeal and review? The first relates to the power of the court: in appeal proceedings the court may substitute its decision on the matters in issue for that of the body appealed from. For example, if an appeal court thinks that the victim of a motor accident has been awarded too small a sum of damages for injuries inflicted by the defendant's negligence, it can increase the award. In review proceedings, on the other hand, the court's basic power is to 'quash' the challenged decision, that is, to hold it to be invalid. If any of the matters in issue have to be decided again, this must be done by the original deciding authority and not by the supervising court. If the authority was under a duty to make a decision on the matters in issue between the parties, this duty will revive when the decision is quashed, and it will then be for the authority to make a fresh decision. It is also open to the court, in appropriate cases, to issue an order requiring the authority to go through the decision-making process again.

Another course open to the Administrative Court when it quashes the decision of a governmental body is to remit the matter to the agency with a direction to reconsider it in accordance with the findings of the Administrative Court. The difference between this and the two previous outcomes is that under this procedure, the agency does not have to go through the whole decision-making process again. For example, it might be that all the relevant facts have already been ascertained and the findings of the Administrative Court concern only their legal significance. In that situation, a complete reconsideration of the case, including the taking of evidence and the finding of facts, would be a waste of time and money, and so the court can remit the case and direct the authority to reconsider the facts in the light of the law as laid down by the Administrative Court. This procedure is different from an appeal in only a very formal sense. On the other hand, remission would not be appropriate where, for example, the authority is found to have been biased. Then a complete rehearing before a differently constituted body would be needed in order for justice to be seen to be done. The distinction between appeal and review is even harder to discern in cases in which the Administrative Court (under CPR Rule 54.19(3) can itself remake the quashed decision 'if it considers that there is no purpose to be served by remission and the relevant statute allows it'. But it is not clear under what circumstances this power could appropriately be exercised.

The second main distinction between appeal and review relates to the 'subject matter' of the court's jurisdiction. This distinction can be put briefly by saying that an appellate court has power to decide whether the decision under appeal was 'right or wrong', while a court exercising supervisory jurisdiction only has power to decide whether or not the decision under review was 'legal' (or 'lawful', as it is put in CPR Rule 54.1). If the decision is illegal it can be quashed; otherwise the court cannot intervene, even if it thinks the decision to be wrong in some respect. Conversely, if a decision is illegal—for instance, because the decision-maker did not follow proper procedures—it may be quashed even if the court thinks that the decision was right as a matter of law and fact. Discussion of the notion of illegality is made tricky by the fact that a number of different terms are used to convey the idea of illegality. The question of whether a decision was 'legal or not' is sometimes put in terms of whether it was made 'within or without jurisdiction' or whether it is intra virei or ultra vires (i.e. literally, 'within or beyond power'). intra vires' and ''ultra vires' are widely used as synonyms for 'legal' and 'illegal' respectively. The concept of jurisdiction is much more difficult, and its use is perhaps best avoided since acting without jurisdiction is just one example of acting illegally.

Appeals to courts constitute an important alternative to judicial review as a form of judicial control of public decision-making. Very many statutes make provision for appeals from decisions of public functionaries. Commonly, such appeals are limited to 'points of law', but they may extend further—to issues of fact, for instance. Also, the concept of 'error of law' has been given a very wide meaning that includes, for instance, making perverse or irrational findings of fact and ignoring relevant considerations (both of which are 'grounds' of judicial review). Indeed, it has been said that the powers of the county court under s. 204 of the Housing Act 1996 (creating a right of appeal on a point of law) are in substance the same as those of the Administrative Court in judicial review proceedings. It has also been said that there is normally little practical difference between a 'full appeal' (in which the court can reconsider the whole case from scratch) and an appeal on a point of law. These points, added to the fact that an appeal court may (as under s. 204 of the Housing Act) have power to quash—as well as to 'confirm or vary'—the decision under appeal, might lead us to the conclusion that the most important difference between appeal and review lies not in the power of the court or the subject matter of the jurisdiction, but more prosaically in the court's identity: claims for judicial review are the business of the Administrative Court whereas appeals will go to some other court such as the county court. Because all rights of appeal are statutory, creation of a right of appeal provides a means by which the legislature can restrict the availability of judicial review: if there is a right of appeal, a claimant will normally be required to exercise it rather than making a claim for judicial review. In this way, the resources and expertise of the Administrative Court can be reserved for cases in which they are most appropriate and needed.