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Using feedback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
Chapter 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
Chapter 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Chapter 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
Chapter 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
Chapter 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Chapter 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
page 158 University of London
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Adminstrative law Feedback to activities page 159
Chapter 2
Activity 2.1
a. It is often argued that judicial review and the principles of administrative law
are the way in which the substantive content of the rule of law is manifested in
practice. Insofar as the rule of law might be said to have substantive content,
much of this content can be said to be found in the principle of legality and the
underlying principles of judicial review. The rule of law is important to judicial
review because the core of the rule of law principle is that, as Endicott states on
p.21 of his book:
a. ‘The life of the community is governed by clear, open, stable, prospective,

general standards’ – we can see that the principles of judicial review support
some of these standards, in the sense that rules are expected to be available to
the public, should not have retroactive effect and should be stable and certain.
b. Government officials should adhere to the standards. These standards are set
out for government officials in publications like ‘The judge over your shoulder
– a guide to good decision-making’ published by the Government Legal Service.
c. Judicial review is the predominant mechanism through which the courts

regulate the conduct of the other main institutions of state.
It is important to note that there is some debate over what functions of the
executive need to be controlled by law for the rule of law to be satisfied. Given the
nature of the separation of powers in England and Wales, it is not necessary for all
acts of the executive to be subject to detailed judicial control. Some decisions of
the executive may not be suitable for judicial control for a variety of reasons.
b. Administrative law delivers several important legal accountability mechanisms –

the different methods of control available in judicial review discussed throughout
the module deliver a range of techniques to control the activity of government. For
example, the system of tribunals (where available) and courts using the range of
different techniques available in order to determine the legality of administrative
action.
It is important to emphasise that although judicial review is the predominant

mechanism used to deliver legal accountability of the executive, legal accountability
is just one method through which accountability of administrative action is secured.
In addition to legal accountability, Parliament delivers a number of important
political accountability mechanisms (Select Committees, questions in the House,
various aspects of ministerial responsibility, etc.). There are also other accountability
mechanisms, including the use of audit, ombudsmen, internal complaints processes
and so on. Accountability is a multifaceted concept and we will focus mainly on the
legal aspects of accountability in this administrative law module.
Activity 2.2
Administrative law tries to redress grievances in a number of different ways. It
encourages the adoption of internal complaints mechanisms, leading to informal
resolution of complaints, has a system of tribunals to deal with appeals and grievances
in the areas where there are a very large number of public decisions and tribunals and
inquiries are also important in some circumstances in order to deliver accountability.
Judicial review is a critical component, as it is through judicial review that the courts
ensure that administrative action is compliant with the principle of legality and allows
the principle of legality to be developed.
Activity 2.3
a. The major competing theories put forward to explain and justify the activity of the
courts in judicial review are the ultra vires and common law theories. The ultra vires
theory has as its basis the idea that Parliament authorises judicial review, either
expressly or impliedly whereas the common law theory has as its basis the idea
that judicial review has its basis in common law and the inherent jurisdiction of
the High Court. Both theories draw upon evidence from history and constitutional
theory and both have influential academic and judicial backers.
b. Although there is some debate over this, there is little doubt that in terms of
constitutional orthodoxy, the ultra vires theory is more attractive. It expressly
acknowledges the sovereignty of Parliament and thus reflects the theory of the
constitution supported by Dicey. The ultra vires theory also supports an orthodox
vision of the rule of law, which acknowledges the sovereignty of Parliament.
c. We could say that the main respective descriptive strengths and weaknesses of the
ultra vires and common law theories are as follows:
Ultra vires theory Common law theory
The ultra vires theory is constitutionally Judicial review began before the modern
orthodox and reflects the sovereignty of conception of Parliamentary sovereignty
Parliament. through the review of the exercise of the
royal prerogative.
The ultra vires theory reflects what is The common law theory describes the
acknowledged by the courts –Parliament reality of judicial review – the grounds of
is sovereign. judicial review and the remedies offered
have been fashioned by the common
law, rather than provided by Parliament.
The ultra vires theory does not offer
an adequate explanation for why the
courts engage in judicial review of non-
statutory powers or why the grounds
of judicial review have constantly
developed.
Parliament can regulate judicial review Judicial review is generally

– Parliament can potentially use ouster acknowledged in the case law as a
clauses to preclude judicial review or process that arises from the inherent
limit it (although N.B. Anisminic v F.C.C. jurisdiction of the High Court.
[1969] 1 All ER 208 (HL)). In addition,
Parliament has regulated the process
for bringing a claim for judicial review
through statutory rules on standing,
time limits, etc.
Radical changes in judicial review, such Other than the Human Rights Act 1998,
as the incorporation of the European there is no legislation that sets out the
Convention on Human Rights have grounds for judicial review, nor precisely
required Parliamentary action. The what bodies are subject to review. These
courts proved reluctant to draw upon issues are all dealt with by the common
the rights in the Convention to decide law.
judicial review cases prior to the Human
Rights Act 1998.
It is evident from the above that neither of the theories offers a perfect descriptive
account of the origins of judicial review or the justifications for judicial review.
As noted above, the major attraction of the ultra vires theory is that it reflects the
orthodox view of the constitution and supports the sovereignty of Parliament,
whereas taken to its logical conclusion, if the origins of and justification for judicial
review lie in the common law then it can be argued that judicial review only
accepts that Parliament is sovereign while the courts are willing to acquiesce.
d. The ultra vires theory has been modified in a number of ways. The main
modifications are that the proponents of the ultra vires theory accept that (other
than in the case of the Human Rights Act 1998) there is no express statutory basis
for judicial review. As such, they argue that Parliament’s intention for judicial
review is implicit – in essence, Parliament does not seek to prevent judicial review
or remove it by passing legislation in order to do that and, furthermore, that
Parliament has a general intent when it grants powers to the executive that these
will be exercised in accordance with the rule of law. As judicial review is the main
method through which the substantive content of the rule of law is brought to
bear on the exercise of public power, Parliament thus impliedly authorises judicial
review.
The common law theory has also been modified, particularly by those who adhere
to a ‘weak’ common law theory. These authors accept that a ‘strong’ view of
the role of common law in judicial review appears to threaten the sovereignty
of Parliament, so the ‘weak’ common law theorists seek to emphasise that a
fundamental common law rule is that Parliament is sovereign.
Extension activity
Read Allan, T.R.S. ‘The constitutional foundations of judicial review: conceptual
conundrum or interpretive inquiry?’
a. The main criticism that Allan deploys to the debate between the common law
and ultra vires theorists is simply that neither theory offers a perfect descriptive
account of judicial review and neither offers a perfect justificatory (normative)
account of judicial review either. He points out that the competing theories
agree on more points than they disagree upon and thus suggests that the debate
between the theorists is now developed to such a degree that it is difficult for
either of the competing camps to enhance their position any further. As such, Allan
believes that the debate between the two camps is futile.
b. In the conclusion to his article, Allan states:
Avowals of loyalty to unqualified parliamentary sovereignty are as fully open to

the charge of empty formalism as the doctrine ultra vires, serving only to conceal
the legal and political substance of judicial review. Both doctrines may provide a
convenient conceptual tool to exhibit the ‘constitutional logic’ of administrative
law, if only in cases concerned with the exercise of statutory power. But neither
offers enlightenment as an account of the legitimacy of judicial intervention in any
particular instance; and each doctrine is actually misleading if intended to signify
unqualified judicial subservience to any and every legislative purpose, however
doubtful its constitutional propriety. If the ultra vires doctrine is empty because the
relevant legislative intent is supplied by judicial construction, reflecting common
law principle, so is the doctrine of absolute sovereignty, whose application is equally
dependent on legal analysis, sensitive to claims of constitutional right and reasonable
expectation. The repudiation of ultra vires – if it is to have any serious claim on our
attention involves not only the sacrifice of the conceptual clarity it arguably confers,
at least within a limited compass of administrative action, but an admission of the
fundamental status of the rule of law. It is in the detailed elaboration of that abstract
ideal, and its connection to our constitutional practice, that legal theory can best
contribute to our knowledge of administrative law. (at p.125).
In essence here, his argument is that much of the debate might be better focused
on defining the nature of the rule of law in our constitution, rather than looking for
a descriptive or normative basis for judicial review in the common law or ultra vires
theories, because both of them draw heavily upon the rule of law concept.
Chapter 3
Activity 3.1
a. As you will probably have seen from your studies in Public law and in some of
the readings that you might have undertaken as a result of Chapters 2 and 3 of
the Administrative law guide, many public functions have been privatised, or
private bodies have an important role in the delivery of public services. In such
circumstances, it is important that the purview of administrative law extends
to the activities of such private bodies and offers redress to those who have
been impacted by the activities of such private bodies where they are genuinely
exercising functions that would ordinarily be exercised by the state. There have
been two core challenges for the law – the first is in determining what can truly be
considered to be a ‘quasi-public function’, even if exercised by a public authority

and the second has been, in the context of the Human Rights Act 1998, drawing
distinctions between the public and the private in terms of service delivery. The
former question has been addressed in cases such as R v Panel of Takeovers and
Mergers, ex parte Datafin [1987] QB 815, where the court held that the regulation of
share markets would need to be undertaken by the state if not carried out by the
stock exchange and R v Football Association, ex parte Football League [1993] 2 All ER
833, which found that, while there was a great deal of public interest in football
as a sport, the FA was not created by government and if the FA did not exist then
the government would not be likely to intervene in the regulation of the sport,
so it could not be said that the Football Association was exercising ‘quasi-public
functions’ and thus would be amenable to judicial review.
The second issue, that of drawing a distinction between functions for which a
public authority is responsible and is exercising ‘public’ powers and functions that
are private is challenging on a number of levels and will be returned to in Section
6.1 and Activity 6.1 of the module guide and also in Section 7.3. It is important to
link these two issues together – in a case like R v East Berkshire Health Authority, ex
parte Walsh it was held that there could not be a claim for judicial review as the
dispute between Walsh and the Health Authority was a contractual one, governed
by the contract of employment. As such, this matter was a private matter and
should be resolved through the usual channel for contractual disputes between
employee and employer (the employment tribunal) and not through the courts. As
such, there can be circumstances where public authorities cannot face an action
through judicial review because, even though prima facie the dispute relates to a
public authority and the exercise of its public functions (so in the case of Walsh,
the provision of healthcare), the relationship between the parties is still one that
is private and governed by private law. Similarly, disputes between suppliers of
goods and services to public authorities, even if these are provided to permit the
authority to discharge its public functions, will ordinarily be matters for resolution
in private law actions for breach of contract, rather than in actions for judicial
review. If these distinctions are not entirely clear to you at this stage, you should
not be too concerned because you will address them in greater detail and revise
this material in Chapter 7.
b. It is difficult to be absolutely precise about the characteristics that a body needs

to have in order to render it amenable to judicial review. It is clear from cases
such as R v Football Association, ex parte Football League [1993] 2 All ER 833 and R v
Disciplinary Committee of the Jockey Club, ex parte Aga Kahn [1993] 1 WLR 909 that
it is not sufficient for a claimant to argue that the public might be interested in
the activity that is regulated by a particular body. In both of the above cases the
courts held that there was undoubtedly significant public interest in football
and horse racing but it was not possible to argue that, in the absence of the
private sporting bodies to regulate the sports, the government would step in and
introduce a public regulator to carry out the same functions. The essence of the
test for whether or not a private body (i.e. a body created by contract or company
law, rather than by legislation or prerogative) is amenable to judicial review is the
‘quasi-public function’ test. The quote from the Datafin case on p.25 of the module
guide illustrates the circumstances in which the courts might find that a particular
body is exercising a ‘quasi-public function’ and is thus subject to judicial review.
The decision of the Court of Appeal in R v Press Complaints Commission, ex parte
Stewart-Brady [1996] EWCA 986 is a further example where the courts have held
that a private body (in this case the now defunct Press Complaints Commission – a
self-regulator created by the newspaper industry) was subject to judicial review
because it exercised an important function in the public domain, which would
otherwise probably have been exercised by a public regulator. The reality is that
there are relatively few cases where the courts have been willing to say that purely
private bodies are exercising quasi-public functions and are thus subject to judicial
review. In most circumstances, as with the Football League and Jockey Club cases
above, the courts have held that the proper remedy for disputes between those
involved in sports, or where there are religious disputes such as that in R v Chief
Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth,
ex parte Wachmann [1992] 1 WLR 1036, the correct course of redress is through the
appeals or grievance processes contained in the rules of the regulatory bodies
concerned, or through bringing an action in private law to vindicate whatever
contractual rights the parties might have.
c. The test in order to determine whether or not a body is caught by s.6(3)(b) of the
Human Rights Act 1998 is a functional one. The question of whether the body is
public (i.e. created by statute or created by a public body that obtained the powers
to do so by statute) is a relevant factor but it is not the only issue that the courts
will consider. For example, in R (on the application of Beer) v Hampshire Farmer’s
Markets Association [2003] EWCA Civ 1036 the Court of Appeal held that a private
company created by a local authority and supported by public funds was caught
by s.6(3)(b) of the Human Rights Act 1998, despite the fact that the company was a
private body. Another case that supports this view is R (on the application of Weaver)
v London & Quadrant Housing Trust [2009] EWCA Civ 587 where the Court of Appeal
held that a housing trust, which was considered to be a hybrid public authority (so
some of its functions were public and were drawn from statute, while others were
private) was caught by s.6(3)(b) of the Human Rights Act 1998 when it terminated
a social housing tenancy. At para [35] of his judgment, Elias LJ offered a very helpful
summary of the authorities on the application of the HRA 1998 to quasi-public
bodies:
In my judgment, the following principles can be gleaned from these cases.
(1) The purpose of section 6 of the 1998 Act is to identify those bodies which are carrying
out functions which will engage the responsibility of the United Kingdom before the
European Court of Human Rights. As Lord Nicholls put it in the Aston Cantlow case [2004]
1 AC 546 , para 6: ‘The purpose is that those bodies for whose acts the state is answerable
before the European Court of Human Rights shall in future be subject to a domestic law
obligation not to act incompatibly with Convention rights.’ Lord Rodger, at para 160, Lord
Hope, at para 52, Lord Hobhouse, at para 87, and Lord Scott, at para 129, were to the same
effect. (Unfortunately, as Lord Mance pointed out in YL’s case [2008] AC 95 after analysing
the Strasbourg jurisprudence, the case law from the European Court of Human Rights
provides no clear guidance for gleaning how that test should be applied in a case such as
this, where there is no formal delegation of public powers.)
(2) In conformity with that purpose, a public body is one whose nature is, in a broad sense,
governmental. However, it does not follow that all bodies exercising such functions are
necessarily public bodies; many functions of a kind historically performed by government
are also exercised by private bodies, and increasingly so with the growth of privatisation:
see Lord Nicholls in the Aston Cantlow case, at paras 7–8. Moreover, this is only a guide
since the phrase used in the Act is public function and not governmental function.
(3) In determining whether a body is a public authority, the courts should adopt what
Lord Mance in YL’s case described, at para 91, as a ‘factor-based approach’. This requires
the court to have regard to all the features or factors which may cast light on whether the
particular function under consideration is a public function or not, and weigh them in the
round. There is, as Lord Nicholls put it in the Aston Cantlow case, at para 12, ‘no single test
of universal application’. Lord Bingham in YL’s case [2008] AC 95 observed, at para 5, that ‘A
number of factors may be relevant, but none is likely to be determinative on its own and
the weight of different factors will vary from case to case’.
(4) In applying this test, a broad or generous application of section 6(3)(b) should be
adopted: per Lord Nicholls in the Aston Cantlow case, at para 11, cited by Lord Bingham in
YL’s case, at para 4, and by Lord Mance, at para 91.
(5) In the Aston Cantlow case [2004] 1 AC 546 Lord Nicholls said, at para 12, that the
factors to be taken into account: ‘include the extent to which in carrying out the
relevant function the body is publicly funded, or is exercising statutory powers, or is
taking the place of central government or local authorities, or is providing a public
service.’ Some of these factors were the subject of more detailed analysis in YL’s case. I
shall briefly deal with them.
(6) As to public funding, it was pointed out that it is misleading to say that a body is
publicly subsidised merely because it enters into a commercial contract with a public
body: YL’s case [2008] AC 95 , per Lord Scott, at para 27 and Lord Neuberger, at para 141.
As Lord Mance observed, at para 105:
‘Public funding takes various forms. The injection of capital or subsidy into an
organisation in return for undertaking a non-commercial role or activity of general
public interest may be one thing; payment for services under a contractual
arrangement with a company aiming to profit commercially thereby is potentially
quite another.’
To similar effect, Lord Neuberger opined, at para 165, that
‘It seems to me much easier to invoke public funding to support the notion that
service is a function of ‘a public nature’ where the funding effectively subsidises, in
whole or in part, the cost of the service as a whole, rather than consisting of paying for
the provision of that service to a specific person.’
(7) As to the second matter, the exercise of statutory powers, or the conferment of
special powers, may be a factor supporting the conclusion that the body is exercising
public functions, but it depends why they have been conferred. If it is for private,
religious or purely commercial purposes, it will not support the conclusion that the
functions are of a public nature: see Lord Mance in YL’s case, at para 101. However,
Lord Neuberger thought, at para 167, that the ‘existence of a relatively wide-ranging
and intrusive set of statutory powers … is a very powerful factor in favour of the
function falling within section 6(3)(b)‘ and he added, at para 167, that it will often be
determinative.
(8) The third factor, where a body is to some extent taking the place of central
government or local authorities, chimes with Lord Nicholls’s observation that
generally a public function will be governmental in nature. This was a theme running
through the Aston Cantlow speeches, as Lord Neuberger pointed out in YL’s case,
at para 159. That principle will be easy to apply where their powers are formally
delegated to the body concerned.
(9) The fourth factor is whether the body is providing a public service. This should
not be confused with performing functions which are in the public interest or for the
public benefit. As Lord Mance pointed out in YL’s case, at para 105, the self-interested
endeavour of individuals generally works to the benefit of society, but that is plainly
not enough to constitute such activities public functions. Furthermore, as Lord
Neuberger observed, at para 135, many private bodies, such as private schools, private
hospitals, private landlords and food retailers, provide goods or services which it is
in the public interest to provide. This does not render them public bodies, nor their
functions public functions. Usually the public service will be of a governmental nature.
As you will see from the paragraphs above, in determining whether a body is
caught by s.6(3)(b), the courts will consider various factors. These are summarised
very succinctly in point 5 of the excerpt from the judgment of Elias LJ in Weaver that
is set out above.
d. it is vitally important to ensure that some private bodies that are exercising public
functions are subject to the Human Rights Act 1998 because in the modern state
such private bodies are often delivering public services. A refusal or withdrawal of
these services has the potential to have a severe impact on the Convention rights
of the individuals concerned. One such example is that of R (on the application of
Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587, where it was held
that the termination of a social housing tenancy has the potential to have a severe
impact on the right to private and family life protected by Article 8 ECHR. Another
pressing example is offered by the situation in YL v Birmingham City Council [2007]
UKHL 27, where the House of Lords decided that a private care home that was
seeking to evict one of its residents was not subject to the Human Rights Act 1998,
even though the place in the care home was paid for by a local authority in the
discharge of its statutory duty. This clearly had the potential to have a significant
impact on the Convention rights of care home residents, so Parliament brought in
s.145 of the Health and Social Care Act 2008 (now replaced by s.73 of the Care Act
2014), which makes it clear that, where a place in a care home is purchased by a
public authority in the discharge of its statutory duties, the care home is subject to
the Human Rights Act 1998 as it is to be treated as a body caught by s.6(3)(b) of the
1998 Act.
Chapter 4
Activity 4.1
a. Discretion is a power to decide on the part of a decision-maker. Discretion gives a
decision-maker freedom of choice in relation to the issue where discretion exists. It
is also important to note that discretion often gives a decision-maker a choice not
to act, as well as a choice over what form of action to take. It might be helpful to
consider the two following visions of discretion in public administration:
A public officer has discretion whenever the effective limits on his power leave him
free to make a choice among possible courses of action or inaction.
(Davis, K.C. Discretionary justice: a preliminary inquiry (University of Illinois Press, 1971)
p.4.)
[D]iscretion… is most at home in referring to powers delegated within a system of

authority to an official or set of officials, where they have some scope for settling
the reasons and standards according to which that power is to be exercised, and for
applying them in the making of specific decisions. This process of settling the reasons
and standards must be taken to include not just the more obvious cases of creating
standards where none are given, but also individualizing and interpreting loose
standards, and assessing the relative importance of conflicting standards. (Galligan, D.
J. Discretionary powers: a legal study of official discretion (Clarendon Press, 1990) pp.21
and 22.)
The important thing to understand here is that discretion is a complex and multi-
layered concept. Discretion can be broad, allowing not only for the making of
decisions or the application of rules in individual cases but also for the creation
of rules and standards by a decision-maker. It is also important to understand
that discretion might be exercised in circumstances of questionable legality, as
sometimes public officials might choose to ignore wrongdoing, or avoid applying
rules in circumstances where their official legal powers do not permit this. You will
find it immensely helpful to read Chapter 1 of K.C. Davis’ book. Even given its age, it
is an illuminating study of the challenges of administrative discretion.
b. There is the potential for a number of problems to arise when discretion is granted
to those involved in public administration:
u There is potential for powers to be misused and for arbitrary decisions to be

made. The extent to which this is possible in part turns on the controls that
are placed on discretion. As we noted above and as we will see throughout
our study of administrative law, the law imposes standards on the exercise
of discretion granted to a public authority. In particular, the law requires that
public powers are exercised in the public interest (rather than for private
interests), that discretion is exercised responsibly and fairly and that decisions
taken are reasonable. Much of what you will study in Chapters 8 – 11 of the
module guide deals with the legal standards that are imposed on those
exercising discretionary power. In addition to these legal controls arising from
judicial review, it is also important to understand that additional controls
on the use of discretionary power, or standards for its exercise come from
ombudsmen (discussed in Chapter 12), in some circumstances from tribunals
and inquiries (see Chapter 13) and from private law and particularly the law of
negligence (as discussed in Chapter 14). In addition to these legal controls, it is
also possible for internal checks and controls to be imposed on the exercise of
discretion. The most common approach to such internal checks and controls is
through rule making. You will consider this in greater detail in Activity 4.2.
u There is potential for discretion to create situations where the principle

of legal certainty is placed at risk. Discretion can bring many benefits to
public decision-making as it allows rapid and flexible responses to particular
problems and challenges. However, changes in approach to a particular
issue can lead to significant, negative impacts for those who were in some
way reliant on previous policies or approaches. The doctrine of legitimate
expectation has developed to address the issue of legal certainty in the
exercise of discretionary power. It is considered in greater detail in Section 10.1
of the module guide.
u Depending on the breadth of discretion granted to a decision-maker, some

might argue that there is a potential for discretion to thwart the intention
of the legislature in granting the power, as discretion may allow a departure
from the objectives of legislation in some circumstances. There are ways in
which the legislator can seek to limit the potential for this to occur – see the
discussion in the feedback to Activity 4.2(c) for some examples.
Activity 4.2
a. Legislation is generally used to confer discretionary power on decision-makers
(although some discretionary power also exists as a result of prerogative power).
In general, primary legislation confers relatively broad discretion on Secretaries
of State and other relevant decision-makers and then secondary legislation is
often used to ‘flesh out’ rules on the way in which the discretionary power should
be exercised. There are some excellent examples of the way in which primary
legislation might confer discretionary powers at pp.243 and 244 of Endicott’s book,
so it will no doubt be helpful for you to consider these.
b. Rules might be important in a system of administrative law where there is

discretionary power because rule making can confine discretion – i.e. it can guide
the implementation of a general policy created by a Secretary of State or senior
civil servant by junior members of staff. Rules might also be used to ‘structure’
discretion, determining the factors to be taken account of when a decision is being
taken and ranking their relative importance and so on.
c. As noted above in (b), rules can constrain the exercise of discretion by public
authorities through confining and structuring the exercise of discretion – rules
might require certain issues and circumstances to be taken into account and
prohibit the consideration of certain issues, or the favourable exercise of a
discretionary power in certain circumstances. Rules can be a means through which
the exercise of discretion might be controlled, while still endeavouring to maintain
the benefits that discretion can bring to public administration. It is important to
emphasise that rules are not a panacea – overly complex systems of rules might be
difficult to understand and might not be obeyed and, furthermore, rules are not
good at dealing with ‘polycentric’ issues – i.e. those issues where there are a large
number of competing considerations and where there is not a ‘correct’ answer.
d. The main benefit that discretion brings to the system of public administration is
that it allows for ‘individualised justice’. To return to K.C. Davis:
Even where rules can be written, discretion is often better. Rules without discretion
cannot fully take into account the need for tailoring results to the unique facts and
circumstances of particular cases. The justification for discretion is often the need for
individualized justice. (Davis, p.17.)
If you consider the activities of the modern state and the need to take decisions in
relation to issues as diverse as immigration and asylum, welfare benefits, support
for those with disabilities and the granting of licences to undertake a wide variety
of tasks from broadcasting to scientific research, it is impossible to create detailed
legislation or rules to address all of these issues. Discretion is a necessary feature of
our system of public administration. As lawyers, our concern ought not to be with
the existence of discretion but it ought to be on how we can effectively control
the exercise of discretion and ensure that those who have discretionary power are
accountable for its exercise.
e. Policies are important in our system of public administration because they offer
some guidance on the approach that might be adopted by a public authority in the
exercise of its powers. Jowell (‘The legal control of administrative discretion’ Public
Law 1973 178 at 201) considers policies to be a broad statement of the objectives
that a public authority has in a particular area. The policy itself gives an indication
of the objectives of the authority, but the policy is then often implemented
through rule making. Good examples can be found at pp.204 and 205 of Harlow
and Rawlings.
f. Adjudication might be described as a process of fact finding, followed by

application of the relevant law to the facts. It is clear that courts and tribunals
are both engaged in adjudication but it is not true to say that public authorities
and individual decision-makers do not engage in adjudication. Many areas where
public authorities enjoy discretion (granting of licences, determination of claims
for benefits, immigration and asylum to name but a few) involve adjudication, as
decision-makers need to determine the circumstances of the claimant and then
apply the policies and rules that have been created in order to decide the issue
before them. As such, the policies and rules created by public authorities are
important because they are used in adjudication and have a significant impact on
the determination of individual cases. The control of making of rules and policies is
thus an important issue.
Activity 4.3
a. Consultation is important for the following reasons:
i. It is a way of allowing democratic participation in the formulation of

government policies and rules. It is a means through which the public can seek
to influence the decisions of public authorities.
ii. It has the potential to improve policy making – if those with an interest in a
particular area, or with particular knowledge of an issue where policy is being
made have the opportunity to have some input into policy making then it may
well be that the policies or rules will be better because of the insight that has
been provided.
iii. Consultation may enhance public confidence in the decision-making processes

of public authorities. The potential to be involved may make the public feel
that decision-making is imbued with a sense of fairness.
b. Consultation may bring disadvantages. In particular:
i. Consultation is not costless – public authorities will face some financial cost
from publicising a consultation process, collating the responses, feeding
them into the policy-making process and (perhaps) issuing a response to the
consultation. In addition, consultation processes increase the amount of time
taken to make decisions, which may also prove costly (although there may
be corresponding benefits from the potential for the rules or policies to be
improved by the consultation process).
ii. There is the potential that consultation may encourage litigation by those who
are involved in the consultation process. Sometimes, such litigation may not
be particularly well-founded but the public authority will still face the costs
and delays brought about by such legal action.
c. The main legal requirements in relation to consultation are as follows:
i. Where a public authority is given discretion over who to consult (so, for
example, legislation states that ‘interested parties’ must be consulted before
a particular decision is taken) then the decision over who should be consulted
needs to be taken in a reasonable manner. See Agricultural Industry Training
Board v Aylesbury Mushrooms [1972] 1 All ER 280.
ii. The consultation must be undertaken in accordance with the ‘Gunning criteria’,
drawn from the decision of Hodgson J in R v Brent LBC, ex parte Gunning (1985)
84 LGR 168, viz.:
First, that consultation must be at time when proposals are still at a formative
stage. Second, that the proposer must give sufficient reasons for any proposal to
permit of intelligent consideration and response. Third…that adequate time must
be given for consideration and response and, finally, fourth, that the product of
consultation must be conscientiously taken into account in finalising any statutory
proposals.
In order to exemplify what the law requires, it might be helpful to think about the
following:
1. Consultation must take place at a time where the proposals are at a formative
stage.
• This means that the public authority must undertake consultation at the
outset of a decision-making process. Contrast this with R v Wandsworth
LBC, ex parte Beckwith (No.2) The Times, 5 June 1995, where the public
authority began the consultation at a time when the decision was close to
being made. The court held that this was unlawful.
2. Those being consulted must have sufficient information available to permit an

informed response.
• It is impossible to be precise about exactly what information is required,

but in general it will be important that public authorities provide not
only an indication of the policy that they intend to adopt, but also the
evidence on which the proposed approach is based. See e.g. R (Edwards) v
Environment Agency [2008] UKHL 22 (consultation should disclose scientific
data supporting proposed policy) and should also disclose the potential
alternatives to any proposed policy (R (Moseley) v Haringey LBC [2014]
UKSC 56).
3. Consultees must be given a reasonable amount of time to respond.
• The case law does not give definitive time periods but a period of days is
not usually adequate. In Lee v Secretary of State for Education and Science
(1968) 66 LGR 211 the court held that a consultation period of five days over
a school closure was not adequate, arguing that a period of four weeks
would be more suitable. Similarly in R v Birmingham City Council, ex parte
Dredger (1993) 91 LGR 552, detailed proposals over changes to a market
were put forward by the council and a period of two days was given for
consultation. The court held this to be unlawful.
4. The responses to the consultation must be properly considered.
• Note that this does not mean that the authority must change its proposals
in light of the consultation but it must genuinely take account of the
product of the consultation in reaching a final decision.
Chapter 5
Activity 5.1
Please refer back to Activity 2.2 and the feedback provided there.
Activity 5.2
1. There are a number of ways in which you can conceive of the importance and
impact of judicial review within the legal system. These can be tied back to the
broad purposes of administrative law, covered in Chapter 2 of the module guide.
At the broadest level, one might argue that judicial review has two important
impacts – it ensures accountability for the exercise of public power by controlling

unlawful actions and it also provides an important mechanism for the structuring
or guiding of future exercises of public power by setting down rules and
principles. As you have already seen, these rules and principles might guide future
practice for the consultation of the public before executive decisions are taken and,
as you will see from your later studies, they also guide the approach to rationality
and proportionality of decision-making, procedural fairness and a range of other
issues. A more expansive approach to this analysis is offered by Feldman, D. ‘Judicial
review: a way of controlling government?’ (1988) 66 Public Administration 21 when he
suggests that judicial review has three important impacts – it directs the exercise of
public power by ensuring the government remains within the scope of its powers
by issuing judicial review remedies, it limits the exercise of public power by setting
out rules and principles in relation to its operation (one might also argue that this
also serves to facilitate the exercise of public power to some extent) and it also
structures the exercise of public power by setting out objectives (such as rationality,
proportionality and procedural fairness). Harlow and Rawlings have subsequently
added to Feldman’s analysis by suggesting that judicial review also plays an
important role in allowing individuals to vindicate their rights, such as those granted
by the Human Rights Act 1998 and those provided by the common law.
2. One of the evident challenges that we face as lawyers is that we do not have a great
deal of evidence on the impact of judicial review. This problem arises for a number
of reasons but one of these is that it is very difficult to design or carry out research
that effectively measures the impact of judicial review on the culture and practice
in public authorities. As Harlow and Rawlings note (Chapter 16, Part 4(b)), it is often
much easier for us to measure ‘formal’ reactions to judicial review, such as changes
of policy or legislative measures to address or even reverse a judicial review
decision. Examples are offered in Harlow and Rawlings’ work and include statutory
reversals of the impact of judicial review decisions in respect of child benefits, or
the modification of statutory schemes in order to render them compliant with
judicial review decision. As noted above, it is more challenging to identify the
impact of judicial review decisions on government culture, although one might
argue that there is increased awareness among ministers and civil servants of the
impact of legal controls on the activities of government, both through publications
such as The judge over your shoulder and also the training scheme that was
introduced for civil servants to raise awareness of the requirements of the Human
Rights Act 1998 and the European Convention on Human Rights and Fundamental
Freedoms after the Human Rights Act 1998 was enacted. It is perhaps telling that
Harlow and Rawlings finish Chapter 16 with the following statement:
Far from the classical model of legal ‘control’, the short history of Convention rights
conveniently illustrates the need for a more holistic view of administrative law tools
and techniques. While the courts’ role of ‘vindicating’ is pivotal, their contribution to
good governance is largely dependent on the exertions of others (including now the
Commission for Equality and Human Rights) in fostering ‘radiating effects’. Students of
law and administration should take the message to heart.
In essence, we might conclude that the ‘cultural impact’ of judicial review relies
not so much on the decisions of the court themselves, but on the ability of public
authorities to transmit the principles that they develop and for those who are
engaged in the making and implementation of government policy to understand
these principles. To some extent, this may depend on the resources available to
public bodies.
3. The report by Bondy, Platt and Sunkin identifies a number of potential impacts
of judicial review claims. Some are tangible and others are intangible, with some
considered to be positive and others negative. Claimants and public authorities
might both be affected by these tangible and intangible impacts.
Claimants
Tangible benefits Intangible consequences
Success in securing the continuation of a Increased sense of confidence in the
public service or benefit. decisions made by public authorities and
the justice system surrounding them.
Success in preventing public authorities Increased sense of empowerment
from taking unlawful action. (even in many cases where claims were
successful).
Success in requiring public authorities to Stress and frustration (particularly where
take decisions where none had previously unsuccessful).
been taken.
Might be successful in recovering the Sometimes caused a lack of confidence
costs of claim in cases where claims are in the legal system (primarily where
successful. claimants are unsuccessful).
For public authorities, the most common consequences were the imposition of
cost and the possible delays imposed on their decision-making by judicial review
claims, although a number of public authorities that took part in the study also
acknowledged that judicial review claims often clarified the law.
One thing that is notable from the findings of the study is that claimants were
much more likely to feel that the process had benefited them if they were
recipients of civil legal aid, rather than if the claims were self-funded, which
perhaps serves to underline the significant impact that the costs of claim might
bring.
Activity 5.3
1. The main arguments in favour of the ‘voidness’ of all ultra vires administrative law
decisions and the main arguments in favour of a more limited approach are as
follows:
A ‘blanket’ approach to the holding of all A limited approach to holding ultra

ultra vires decisions and actions to be void vires decisions and actions to be void
Corrects all errors of law made by public Can bring significant consequences
authorities and delivers certainty in the for innocent third parties, particularly
remedy to be granted. in areas such as planning and
environmental law (hence why we have
strict time limits, etc.)
Follows the general logic of the ultra vires Is only strictly necessary from a
theory by declaring all unlawful acts void. constitutional perspective if we adhere
to the ultra vires theory as the basis for
judicial review.
Through the quashing of a decision, allows Brings significant challenges of
public authorities to make a new decision, ‘process danger’ – some decisions
on a lawful basis, following the decision and will be declared void due to minor
guidance of the court in the concrete case. procedural errors, despite the fact
that the substantive decision was
sound. See e.g. R (Corbett) v Restormel
Borough Council [2001] EWCA Civ 330 and
Walton v Scottish Ministers [2012] UKSC
44, where the courts acknowledged
these difficulties and refused to
grant a remedy accordingly. Similarly,
Parliament has now acted to introduce
‘makes no difference’ provisions into
the Senior Courts Act 1981 – see the
feedback to Activity 6.7 for more on this.
There is no doubt that, in judicial review cases, the primary remedy in most
circumstances where there is an unlawful decision is to quash the decision and
declare it void ab initio. The public authority must then generally retake the
decision. The theory underlying this is that an ultra vires decision is one that lacks a
legal basis, so was void at the time it was taken. The challenge here is that although
this is the theory, the practice is somewhat less certain because the courts have
sometimes declined to grant remedies because of the significant costs that might
be imposed when certain decisions are quashed as a result of minor procedural
errors or have sometimes decided that decisions are not void ab initio but only
from the time that the court decides the judicial review case or from some other
period.
2. Adams argues that the current basic position in administrative law as to the effect
of an unlawful decision does not reflect reality. As Adams argues:
…the view that an act which is public law unlawful is for that reason invalid and
without legal effect – [will be described as] the standard theory of administrative
unlawfulness. In what follows I suggest that it ought to be rejected. (p.290)
Adams’ reasons for making this argument rotate around a number of factors. The
first is that it is difficult to say, in any coherent way that decisions are void ab initio
if they continue to have legal effect unless and until the court declares them to be
unlawful (see p.297). For decisions that are not challenged, even though they may
have been unlawful, they retain legal effect because no court has declared them to
be unlawful. This point is perhaps emphasised by unlawful decisions that cannot
be challenged due to procedural bars such as time limits or ouster clauses – in
these circumstances the ‘standard theory’ would hold that the decision was void at
the time it was made because it was unlawful, yet the decision would continue to
have legal effect because it cannot be challenged before the court and so cannot
be declared unlawful.
Adams then goes on to propose an alternative way of looking at the issue of

unlawfulness. The key tenor of this is that:
Instead of saying that unlawfulness entails invalidity we can say that unlawfulness
implies a duty on the part of the court to invalidate unlawful administrative action.
As such, invalidity can be considered the law’s response to the fact of unlawfulness;
anything less would indeed involve a derogation from the court’s basic duty to
uphold the law. Such a response on the part of the court is conditional upon the right
issue being raised by the right person within the right timeframe. In this way the
requirements of standing and judicial review procedure form conditions on the duty
to invalidate unlawful decisions. (p.302)
This argument might have some value as it would go some way to explaining and
perhaps even guiding the court’s discretion over the granting of remedies and
the response to issues raised in cases like Ahmed and Others v HM Treasury [2010]
UKSC 5, [2010] 2 AC 534. However, one might argue that Adams’ argument is not as
radical as he seeks to suggest, as if the judges adopt his theory, this will really just
reflect the current practice of the courts in cases such as Walton v Scottish Ministers
[2012] UKSC 44 in any case.
Chapter 6
Activity 6.1
1. There might be a range of reasons for imposing strict procedural requirements and
a specific judicial process for the resolution of disputes between public authorities
and private individuals where the dispute concerns the exercise of public law
powers. The precise purpose of these rules might be subject to debate but it is
primarily thought that the specific ‘public law process’ imposes upon the parties
a process that is more suited to the resolution of disputes about the exercise
of public powers and which, compared to the ordinary private law procedure,
seeks to create a procedure that might offer a faster and cheaper way to resolve
disputes. This might be important in public law cases because there is often a
need for more rapid resolution to disputes given their subject matter. Another
reason for adopting and enforcing the strict procedural divide between public
law and private law cases is that the public law process also imposes a variety
of requirements, such as time limits, the requirement to bring a claim promptly
and the requirement to demonstrate standing to bring a claim. All of these are
designed, to some extent, to limit the number of challenges that might be made
against the decisions of public authorities and also to balance the interests of
claimants with the broader public interest in the certainty and efficiency of public
administration.
Advantages of Part 54 procedure Disadvantages of Part 54 procedure

Has the potential to speed up claims Can lead to disadvantages for claimants
(because the usual practice is not to (as in the case of O’Reilly v Mackman [1983]
permit many of the adversarial aspects 2 AC 387) because they do not have access
of litigation, such as the calling and to cross-examination, disclosure, etc.
cross-examination of witnesses, extensive so, where there are disputes of fact, this
disputes over disclosure of documents, might place claimants at a disadvantage.
etc.) This might also reduce the costs of
claims.
The Part 54 procedure requires Rigid adherence to the Part 54 procedure
adherence to procedural requirements might make some disputes more
designed to protect the efficiency of complex to resolve. For example, if
public administration and the interests of the House of Lords had insisted on Roy
third parties, such as time limits (which abiding by the strict rules on procedural
are primarily in place to foster certainty exclusivity in Roy v Kensington and Chelsea
for public authorities and recipients of Family Practitioner Committee [1992] 1 AC
decisions). 624 then R would have been required to
bring a judicial review claim to determine
the legality of the Council’s decision
followed (potentially) by proceedings
for breach of contract (although, if R was
successful, the court might have been
able to grant a remedy under s.31(4) of
the Senior Courts Act 1981). At the very
least, R would have had to recommence
his claim through the judicial review
procedure.
The judicial review procedure, through its A rigid application of the rules on the
pre-action protocol and the requirement judicial review procedure, such as in
that all other forms of grievance redress Cocks v Thanet District Council [1983] 2 AC
are pursued prior to the bringing of 286 may have unintended consequences,
proceedings may have the effect of such as removing the potential to use
reducing the number of disputes that simple and low cost claims, such as
need resolution by the court. proceedings in the County Court to
resolve disputes between individuals and
public authorities.
2. After a rigid start from the courts in cases such as O’Reilly v Mackman [1983] 2 AC 387
and Cocks v Thanet District Council [1983] 2 AC 286, we can see that the courts have
generally adopted a more flexible approach to the rules on procedural exclusivity.
Rather than insisting on a rigid adherence to the rules, over time there has been
more focus on the substance of the case and whether or not the claimant’s
bringing of proceedings can be considered to be an abuse of process. In order
to determine whether or not the claim is an abuse of process, it is necessary to
examine the subject matter of the case and to consider whether it is reasonable for
the claimant to have brought the claim outside of the judicial review procedure.
Cases such as Wandsworth LBC v Winder (No.1) [1985] A.C. 461 demonstrate some
softening of the strict position, as in this case Winder was permitted to defend
the council’s claim for unpaid rent on the basis that the council’s demand was
unlawful. This case is sometimes seen as being a reversal of Cocks, although this
claim is rather too strong because the position in Winder might more accurately
be reflected as one where Winder was bringing a collateral challenge to a claim
brought by the Council, whereas in Cocks, Cocks was the one who brought
proceedings, hence the finding in Cocks that the claim could not proceed because
it was not brought using the judicial review procedure.
Roy v Kensington and Chelsea Family Practitioner Committee [1992] 1 AC 624 and
Mercury Telecommunications Ltd v Director General of Telecommunications [1996]
1 WLR 48 are both cases which demonstrate a softening of the rigid position
in O’Reilly v Mackman. In both cases, the facts gave rise to significant public law
elements, alongside contractual disputes and where in order to determine the
contractual issues, there was a need to determine the questions relating to legality.
In both cases, the House of Lords found that despite the fact that the claims had
been brought in private law, rather than via the public law procedure, this was
legitimate given the issues raised in the cases and could not be said to be an abuse
of process. A similar approach was taken in Trustees of the Dennis Rye Pension Fund
v Sheffield City Council [1998] 1 WLR 840. In each of these cases, the key question
that the court asked in order to allow whether or not the case should be permitted
to proceed was whether the proceedings could be said to constitute an abuse of
process. Where the subject matter of the case is mixed and contains public law and
private law elements, it may well be legitimate for claimants to proceed in private
law, rather than through the judicial review process.
A case that serves to illustrate circumstances where a claim brought through

private law was dismissed as an abuse of process is British Steel plc v Customs and
Excise Commissioners (No.1) [1996] 1 All ER 1002. In this case the claimant sought to
bring proceedings in restitution to claim back tax it argued that it had overpaid as
a result of the Inland Revenue’s unlawful interpretation of a statutory provision.
In this case, the Court of Appeal held that the proceedings were an abuse of
process because the case turned solely on the question of the legality of the Inland
Revenue’s interpretation of the relevant statute, so it should have been brought
through the judicial review procedure.
3. A collateral challenge is a challenge brought by an individual in defence to

proceedings brought by a public authority. The essential argument in such a
challenge is that the authority concerned had no power to bring the proceedings
that have been brought. This most commonly arises in criminal proceedings,
where the common law has long held that it should be possible for a defendant
to challenge the legal basis of any proceedings brought against him. This issue has
most recently been examined in Boddington v British Transport Police [1999] 2 AC 143,
which is a case concerning the imposition of a fine for smoking on a train. When
the police proceeded against Boddington in order to recover a fine, Boddington
brought a collateral challenge, arguing that the fine had been imposed without
an appropriate legal basis. The reason why collateral challenges are permitted
(seemingly in contrast to the normal requirements to bring judicial review
proceedings) are explained by Lord Irvine of Lairg LC in Boddington as follows:
…where subordinate legislation (e.g. statutory instruments or byelaws) is

promulgated which is of a general character in the sense that it is directed to the
world at large, the first time an individual may be affected by that legislation is when
he is charged with an offence under it: so also where a general provision is brought
into effect by an administrative act, as in this case. (at 162)
The general approach is that the court must decide whether an individual is
permitted to have recourse to collateral challenge by interpretation of the statute
that gives the public authority the power to impose the penalty but subject to the
general presumption above.
A good example of circumstances where an individual was not permitted to have

recourse to collateral challenge is the decision of the House of Lords in R v Wicks
[1998] AC 92, where the claimant sought to bring a collateral challenge against
criminal proceedings brought against him for failure to comply with a planning
enforcement notice under the Town and Country Planning Act 1992. The House
of Lords held that Wicks was unable to bring a collateral challenge because the
statutory provided an elaborate machinery of statutory appeals and, furthermore,
Wicks had the opportunity to challenge the council’s decision not to grant him
planning permission through judicial review at an earlier stage.
It may also be possible for individuals to bring collateral challenges against
private law proceedings (in addition to proceedings in criminal law) in some
circumstances, as illustrated by the case of Wandsworth LBC v Winder (No.1) [1985]
AC 461.
Activity 6.2
1. Cane seeks to illustrate that it is important to draw a distinction between claims
brought by individuals to protect their own personal interests (described in his
article as ‘personal standing’) and then claims brought by individuals or groups
who are seeking not to protect personal interests (or not solely their personal
interests) but are instead seeking to protect the interests of others, or the ‘public
interest’. These kinds of claims are described by Cane as ‘representative standing’.
When we consider the law of standing, we should be clear that the rules pose little
challenge for those who are bringing claims based on personal standing – for the
purposes of s.31(3) of the Senior Courts Act 1981, provided that the claimant can
demonstrate that a decision has affected them personally, then it will generally
be held that the claimant has standing. However, things are more complex is
representative standing or public interest cases. Cane seeks to divide these cases
into three different types, with analysis in the article being focused on the first two.
Classification of standing Explanation

‘“Associational standing” It is common for interest groups to bring claims for
most commonly involves judicial review. These interest groups rely on the idea
an unincorporated group that they are groups that represent the interests of their
or a corporation claiming members, or local communities in which they operate,
on behalf of (the interests or groups that they claim to represent in judicial review
of) identifiable individuals proceedings.
who are its members
In order for an association to be successful in
or whom it claims to
demonstrating that it has standing to bring a claim,
represent.’ (Cane, p.276)
it needs to demonstrate that its members have an
interest in the matter that is subject to challenge. The
group failed to do this in R v Secretary of State for the
Environment, ex parte Rose Theatre Trust Co. (No.2) [1990]
1 QB 504 but were successful in R v Secretary of State for
Social Services, ex parte Child Poverty Action Group [1989] 1
All ER 1047.
It is important to note that there might be some
debate over whether certain claimants have been
granted standing because of their ‘associational’ status,
or because of the public interest that they claim to
represent. Cases such as R v Inspectorate of Pollution, ex
parte Greenpeace Ltd (No.2) [1994] 4 All ER 329 and R v
Secretary of State for Foreign and Commonwealth Affairs,
ex parte World Development Movement [1995] 1 All ER 611
are examples of this. In the Greenpeace case, there is a
greater possibility that the claim was permitted because
the claim represented the interests of local residents,
although the court also acknowledged the broader
public interest in the claim. In World Development
Movement, one might argue that there is a much
stronger argument that this was a claim brought in
the public interest, given that the community that was
primarily affected by the development was not based in
the UK.
‘“Public interest In the past, many cases of ‘public interest standing’

standing”involves an were brought by statutory bodies that were expressly
individual, corporation empowered to bring such claims by statute, or where
or group purporting to such claims related to their statutory functions. See
represent “the public e.g. R v Secretary of State for Employment, ex parte Equal
interest” rather than the Opportunities Commission [1995] 1 AC 1.
interests of any identified
Similar uncertainty as to the precise categorisation
or identifiable individuals.’
of the cases can also be identified in this area, as R v
(Cane, p. 276)
Inspectorate of Pollution, ex parte Greenpeace Ltd (No.2)
[1994] 4 All ER 329 and R v Secretary of State for Foreign
and Commonwealth Affairs, ex parte World Development
Movement [1995] 1 All ER 611 could also be considered to
be ‘public interest’ cases, due to the broader interests
represented in the claim.
One could also consider R v HM Treasury, ex parte Smedley
[1985] 1 All ER 589 as an example of a ‘public interest’
claim (although one might also argue it could be a
representative claim) in the sense that it was brought on
behalf of all taxpayers.
‘“Surrogate standing” ‘Surrogate standing’ cases arise primarily where
involves one individual claims are brought on behalf of claimants who would
as nominal applicant otherwise be unable to bring claims because they are
representing the interests minors, or because they lack mental capacity to bring
of another individual, claims. Such an example is to be found in R v Secretary
who is the real applicant. of State for Education and Employment, ex parte Begbie
‘(Cane, p. 276) [2000] 1 WLR 1115, where the claim was brought by the
mother of the child affected by the decision.
2. In R v Inland Revenue Commissioners, ex parte National Federation of Self Employed

and Small Businesses Ltd [1982] AC 617, Lord Scarman set out his view of the purpose
of the need for permission to bring a judicial review claim and the standing
requirement in particular, when he said:
The one legal principle, which is implicit in the case law and accurately reflected in
the rule of court, is that in determining the sufficiency of an applicant’s interest it is
necessary to consider the matter to which the application relates. It is wrong in law, as
I understand the cases, for the court to attempt an assessment of the sufficiency of an
applicant’s interest without regard to the matter of his complaint. If he fails to show,
when he applies for leave, a prima facie case, or reasonable grounds for believing that
there has been a failure of public duty, the court would be in error if it granted leave.
The curb represented by the need for an applicant to show, when he seeks leave to
apply, that he has such a case is an essential protection against abuse of legal process.
It enables the court to prevent abuse by busybodies, cranks, and other mischief-
makers. I do not see any further purpose served by the requirement for leave. [at 653]
As such, one might argue that the key objective of the standing regime is to ‘ration’
the availability of judicial review and filter out claims brought by those who are not
adequately qualified to bring them. Parliament has not set out clearly the precise
nature of the ‘sufficient interest’ test in s.31(3) of the Senior Courts Act 1981. It might
be argued that the National Federation of Self Employed and Small Businesses case
took a relatively rigorous and narrow approach to the requirements for ‘sufficient
interest’. Over time, one might argue (as noted in the table of feedback to point 1 of
this exercise, above) that the courts have become more liberal in their approach to
standing. As such, it might be possible to argue that the courts have now become
excessively liberal in their approach to standing, reducing the effectiveness of
the filter. Cases such as R (on the application of Edwards) v Environment Agency
[2004] EWHC 736 (Admin) is often cited as an example of a very liberal approach to
standing in judicial review cases.
Extension activity
The government’s 2013 paper on the reform of judicial review considered a number
of options for the reform of the ‘sufficient interest’ test. The main alternatives are the
approach under EU Law (‘the direct and individual concern test’), the approach under
s.7 of the Human Rights Act 1998 (essentially adopting the ‘victim’ test from Article 34
ECHR) and then the possible adoption of the more narrow ‘person aggrieved’ test from
planning law. Each of these tests is narrower than the current interpretation of the
‘sufficient interest’ test.
Some authors, such as McGarry, argue in favour of the current liberal test for standing.
If there is to be effective judicial protection, then access to the court is important.
As we noted in Chapter 5, English law operates on the basis of the ultra vires theory,
which assumes that unlawful acts are void. If this is the case, then there is an inherent
logic in having a liberal system of standing, as the primary objective of the system is to
correct unlawful action. However, in cases involving the protection of individual rights,
particularly those under the Human Rights Act 1998, there is an argument that claims
should be restricted to those who have suffered an infringement of their rights. This is
why the Human Rights Act 1998 departs from the ‘sufficient interest’ test and requires
instead that the claimant can demonstrate that they are a ‘victim’ (generally, that they
have suffered an infringement of their Convention rights) for the purposes of Article 34
ECHR.
Activity 6.3
1. The reasons for the imposition of time limits (which are generally strict) in relation
to claims for judicial review and also for the imposition of the ‘promptness’
requirement in s.31(6) of the Senior Courts Act 1981 is that there is a need to
protect legal certainty and the public interest in good administration. Both public
authorities and the recipients of decisions need legal certainty and if challenges
are permitted after a lengthy period then this will probably lead to significant
challenges for public authorities and the implementation of government policy.
The potential detriment to good administration caused by permitting cases to
proceed outside of the time limit is considered by Lord Goff in Caswell v Dairy
Produce Quota Tribunal for England and Wales [1990] 2 AC 738, when he said:
I do not consider that it would be wise to attempt to formulate any precise definition
or description of what constitutes detriment to good administration. This is because
applications for judicial review may occur in many different situations, and the need
for finality may be greater in one context than in another. But it is of importance to
observe that section 31(6) recognises that there is an interest in good administration
independently of hardship, or prejudice to the rights of third parties, and that the
harm suffered by the applicant by reason of the decision which has been impugned
is a matter which can be taken into account by the court when deciding whether
or not to exercise its discretion under section 31(6) to refuse the relief sought by
the applicant. In asking the question whether the grant of such relief would be
detrimental to good administration, the court is at that stage looking at the interest in
good administration independently of matters such as these. In the present context,
that interest lies essentially in a regular flow of consistent decisions, made and
published with reasonable dispatch; in citizens knowing where they stand, and how
they can order their affairs in the light of the relevant decision. Matters of particular
importance, apart from the length of time itself, will be the extent of the effect of the
relevant decision, and the impact which would be felt if it were to be re-opened.
2. The courts have generally proven unwilling to extend the time limit for bringing
of claims unless the claimant can demonstrate that there is no prejudice to public
authorities or third parties as a result. The reason why the claimant failed to bring
the claim in time is also relevant. In R v Criminal Injuries Compensation Board, ex
parte A [1999] 2 AC 330, the House of Lords extended the time limit by almost a year
in circumstances where the claimant had been the victim of a sexual assault and
so had been unable to bring a claim against the refusal of compensation due to her
injuries. It was also relevant that, in this case, there was no significant detriment to
the public authority or to third parties if the claim was permitted to proceed.
Activity 6.4
1. Hickman argues that the major barriers facing claimants who bring judicial review
proceedings against public authorities are as follows:
u Judicial review proceedings are treated in the same way as all other civil
proceedings, so the general principle is that of ‘loser pays’. The principle is that
the unsuccessful party must pay not only their own costs but the costs of the
successful party.
u Costs of judicial review proceedings are often high. As Hickman suggests:
The amount of adverse costs claimed by successful defendants varies widely. For
a very simple two-hour judicial review against a government department the
costs of losing at trial would probably be in the region of £8–12,000. This is the
cheapest end of the spectrum, as a claim against central government Counsel will
be acting on Attorney General’s Panel rates (well below commercial rates) and
all solicitors work will be done in house. A moderately complex claim lasting a
day and not brought against a central government department – say, a regulatory
body – using external solicitors would be expected to cost in excess of £40,000
(plus VAT) and potentially over £100,000. For a substantial two day judicial review
the cost range is probably between £80,000 and £200,000. But these are all fairly
loose estimates, and the inability to predict costs with certainty is an additional
problem. The potential for interested parties to seek their costs adds to this
mêlée. Whilst the default position is that interested parties cannot recover their
costs, they sometimes do so and very often ask for them. Since they are often
private companies affected by a decision the risk of having to pay their costs will
very often deter a claim from being brought.
u There has been a substantial reduction in the availability of civil legal aid for
judicial review claims, following the Legal Aid, Sentencing and Punishment of
Offenders Act 2012.
u Cost Capping Orders are available only in cases brought in the public interest
and seldom have the effect of substantially reducing the risks to claimants in
the bringing of judicial review proceedings.
2. Recent research undertaken by the Ravi Low-Beer and Joe Tomlinson for the Public
Law Project in Financial barriers to accessing judicial review: an initial assessment
demonstrates that it is difficult to reach any firm conclusions on the impact of
costs on the volume of judicial review claims, not least because there is little
consistent data available. However, it is evident that the changes brought about
by LASPO led to a significant reduction in the number of judicial review claims
supported by Civil Legal Aid (pp.19–22) and that there has been a substantial
increase in court fees for judicial review claims over the period 2001–2016.
Furthermore, the evidence suggests that CCOs are not a particularly effective
way of protecting claimants from costs claims, as the criteria for their award are
restrictive and their scope is limited.
The current approach to costs is that in Rule 42.2(a) of the Civil Procedure Rules
– i.e. the general approach is that the losing party pays both their own costs
and those of the winning party. In judicial review cases, this might often mean
that individuals take a significant financial risk when they bring judicial review
proceeding against a public authority and this has the potential to serve as a
deterrent. Over time, there have been a number of proposals for the reform of the
approach to costs in judicial review proceedings and these are covered superbly at
pp.40–48 of the Public Law Project report. Options include the possibility that each
party bears its own costs, with no potential to bear the costs of the other party (an
approach adopted in the USA); a one-way costs shifting approach, where in judicial
review claims an unsuccessful claimant would never be required to pay the public
authority’s costs but a public authority would always have to pay the costs of a
successful claimant; a qualified one-way costs shifting system, where the public
authority would not normally be able to claim costs from the claimant but may
be able to do so if certain conditions are satisfied; or some method of fixed costs,
where each party’s liability for costs to the other party is limited based on the
nature of the claim and the stage at which the claim is determined.
The recommendations of Jackson LJ in 2017 were that the system in England and
Wales should move towards either a qualified one-way costs shifting system, or a
fixed costs system based on the regime applicable to environmental cases under the
Aarhus Convention. At the moment, neither of these options has been embraced
by the government and the ‘loser pays’ principle prevails. This, combined with the
reduction in Civil Legal Aid and the evidence that costs in judicial review claims are
high serve to limit access to justice in judicial review cases.
Activity 6.5
1. The remedies available in judicial review proceedings are as follows:
Remedy Description and case law

Quashing order The quashing order (which used to be called certiorari), is an
order of the court that quashes an unlawful decision of a public
authority.
Many successful cases result in a quashing order being granted.
Examples include Ridge v Baldwin [1964] AC 40.
Prohibiting order The prohibiting order may be sought to prevent a public
authority, which is proposing to act in an unlawful way, from
taking such unlawful action.
The prohibiting order was granted to prevent the Council from
acting in breach of its promise in R v Liverpool Corporation, ex
parte Taxi Fleet [1972] 2 QB 299.
Mandatory order A mandatory order (was called mandamus) orders a public
authority to exercise its powers in a lawful manner. As such, it
is requested when a public authority is refusing to exercise its
powers.
A mandatory order was famously granted in Padfield v Minister of
Agriculture, Fisheries and Food [1968] AC 997.
Declaration The declaration is not a remedy as such because it has no
immediate legal effect. The declaration is used primarily as a
means for resolving disputes, as a declaration states the court’s
view of what the law is on a particular issue. Declarations might
be granted on an interim or a final basis.
A declaration that the Prison Rules were unlawful was granted
in R v Secretary of State for the Home Department, ex parte Simms
[1999] 3 All ER 400.
2. Parliament brought in the ‘makes no difference’ provisions from a desire to avoid

cases where decisions that are good in substance are quashed or otherwise
rendered unlawful. The relevant cases and provisions are set out in Section 6.7 of
the module guide.
Chapter 7
Activity 7.1
1. The basic concept of ‘jurisdictional error’ is relatively simple to define. The term
‘jurisdiction’ can be equated with ‘vires’ or ‘power’, so when we ask whether
a public body has jurisdiction to decide something, we are essentially asking
whether the public authority is acting intra vires (within powers) or ultra vires
(beyond powers). As such, ‘jurisdictional error’ is an error as to the power enjoyed
by the public authority. Such errors can take the form of errors of law, which are
the errors that judicial review has tended to focus on, or errors of fact, which have
traditionally seen less control through judicial review. However, some errors of fact
have always been subject to control by judicial review (often known as errors of
‘jurisdictional’ or ‘precedent’ fact), whereas other errors of fact are controlled only
on a more limited basis.
2. An error made ‘going to’ the jurisdiction is an error made by a public authority
as to the scope of its power. In essence, the public authority misinterprets the
legislation granting it power, or seeks to rely on the prerogative as a source of
power when the prerogative does not support the action. When we talk of an error
‘going to the jurisdiction’ we are essentially saying that the public authority was
not granted the power to make the decision that it made by the source of power
(most commonly legislation but sometimes the prerogative) and thus its action is
ultra vires and unlawful.
An error made ‘within’ jurisdiction is different in the sense that the question is
not whether the public body had the formal power to take the decision (as it
will be accepted that the body did have that power) but in the course of making
its decision it has done something to render its decision unlawful. This could
be a breach of the requirements of procedural justice, irrationality, a lack of
proportionality or any of the other grounds of review that we examine in the
module guide. The distinction between the two concepts is further highlighted by
the diagrammatic depictions in the material in the module guide.
3. An ‘error on the face of the record’ was a concept that has been used for some
hundreds of years to control inferior courts and tribunals (i.e. those below the level
of the High Court) – the concept was largely forgotten in the early 20th century but
was rediscovered by Lord Denning in R v Northumberland Appeal Tribunal, ex parte
Shaw [1952] 1 K.B. 338, where he said:
Until about 100 years ago, certiorari was regularly used to correct errors of law on the
face of the record. It is only within the last century that it has fallen into disuse, and
that is only because there has, until recently, been little occasion for its exercise. Now,
with the advent of many new tribunals, and the plain need for supervision over them,
recourse must once again be had to this well-tried means of control. I will endeavour
to show how the writ of certiorari was used in former times, so that we can take
advantage of the experience of the past to help us in the problems of the present.
(Per Lord Denning at 348.)
He then went on to say:
It will have been seen that throughout all the cases there is one governing rule:
Certiorari is only available to quash a decision for error of law if the error appears on
the face of the record. What, then, is the record? It has been said to consist of all those
documents which are kept by the tribunal for a permanent memorial and testimony
of their proceedings… Following these cases, I think the record must contain at
least the document which initiates the proceedings; the pleadings, if any; and the
adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to
incorporate them. If the tribunal does state its reasons, and those reasons are wrong in
law, certiorari lies to quash the decision. (Per Lord Denning at 351–353.)
At the time the case was decided, it was celebrated as an important rediscovery
of a method appropriate for controlling errors made within jurisdiction. However,
we must be cautious when considering the effectiveness of the controls offered by
the ‘error on the face of the record’ concept because, as Lord Denning notes, the
‘record’ is a narrow and limited concept and, furthermore, the number of public
bodies that are required by law to keep records of their decisions were few in
number at the time. As such, the ‘error on the face of the record’ concept, while an
important rediscovery that fostered the development of other controls, is a limited
mechanism for controlling errors made within jurisdiction as it can only apply to
decision-makers required to keep records of decisions, such as magistrates’ courts
and most tribunals. In the modern context, the ‘error on the face of the record’ has
primarily fallen into disuse.
Activity 7.2
1. There are many interpretations of what the decision in Anisminic was all about and
its impact. You can read an excellent exposition of the various debates about the
intention of the House of Lords in Endicott, 9.1.2–9.1.4. Despite these theoretical
arguments, it is plain that the current position in terms of the subsequent
interpretation of the Anisminic decision is clear. It is helpful to begin with a quote
from Re Racal Communications Ltd [1980] 2 All ER 634:
The break-through made by Anisminic was that, as respects administrative tribunals

and authorities, the old distinction between errors of law that went to jurisdiction
and errors of law that did not, was for practical purposes abolished. Any error of
law that could be shown to have been made by them in the course of reaching their
decision on matters of fact or of administrative policy would result in their having
asked themselves the wrong question with the result that the decision they reached
would be a nullity. (Per Lord Diplock at 383.)
We could then consider Lord Diplock in O’ Reilly v Mackman [1983] 2 AC 237:
[Anisminic] liberated English public law from the fetters that the courts had
theretofore imposed upon themselves so far as determinations of inferior courts
and statutory tribunals were concerned, by drawing esoteric distinctions between
errors of law committed by such tribunals that went to their jurisdiction, and errors
of law committed by them within their jurisdiction. The breakthrough that the
Anisminic case made was the recognition by the majority of this House that if a
tribunal whose jurisdiction was limited by statute or subordinate legislation mistook
the law applicable to the facts as it had found them, it must have asked itself the
wrong question, i.e., one into which it was not empowered to inquire and so had no
jurisdiction to determine. Its purported ’determination’ not being a ‘determination’
within the meaning of the empowering legislation, was accordingly a nullity. (Per Lord
Diplock at 278.)
A further statement illustrating the common view of the practical impact of

Anisminic can be found in Page v Hull University Visitor [1993] All ER 97 (HL).
In my judgment the decision in Anisminic Ltd v Foreign Compensation Commission

rendered obsolete the distinction between errors of law on the face of the record and
other errors of law by extending the doctrine of ultra vires. (Per Lord Browne-Wilkinson
[1993] 1 All ER 97 at 107.)
The central impact of the Anisminic decision is that, because the decision is
accepted to have removed the distinction between errors ‘going to’ and ‘within’
jurisdiction, as a result it opens up many more decisions of public authorities to
judicial scrutiny. As such, it expanded the scope of decisions that would be subject
to judicial review.
Activity 7.3
1. After the decision in Anisminic, there have been a number of cases that have
considered the precise scope of the impact of that case on the operation of ouster
clauses. Litigation surrounding ouster clauses has been relatively limited since
Anisminic until relatively recent decisions. It is plain that ouster clauses inserted
into legislation may still continue to have some impact, although the courts
are often suspicious of such provisions and tend to interpret them narrowly. In
particular, we can identify a number of circumstances where ouster clauses might
remain effective:
a. (Rare) cases where the ouster clause seeks to prevent judicial review of
decisions taken under special jurisdictions, such as the ‘domestic law of the
University’ in Page v Hull University Visitor [1993] All ER 97 (HL).
b. The courts will allow the clear will of Parliament to oust jurisdiction of the
courts in judicial review, particularly in cases where there might be satisfactory
alternative methods to deliver effective judicial protection. Examples of this
might include A v B (Investigatory Powers Tribunal: Jurisdiction) [2009] UKSC 12.
In R (on the application of Privacy International) v Investigatory Powers Tribunal
[2019] UKSC 22 the Supreme Court held that any ouster of judicial review
jurisdiction would have to be in clear and explicit words and so thus held that
s.67(8) of the Regulation of Investigatory Powers Act 2000 did not entirely
exclude the judicial review jurisdiction of the High Court. In this case, Lord
Carnwath JSC said:
However, whether that is a likely interpretation of Parliament’s intentions,

or indeed whether or not the parenthesis is redundant, is in my view beside
the point. Judicial review can only be excluded by ‘the most clear and explicit
words’ (Cart [2011] QB 120, para 31). If Parliament has failed to make its intention
sufficiently clear, it is not for us to stretch the words used beyond their natural
meaning. It may well be that the promoters of the 1985 Act thought that
their formula would be enough to provide comprehensive protection from
jurisdictional review of any kind. (If so, as Lord Wilson JSC observes, they would
have gained support from the distinguished author of the notes to the 1985
Current Law statutes.) But one is entitled to ask why they did not use more
explicit wording. With O’Reilly v Mackman [1983] 2 AC 237 in mind, the natural
focus of attention would have been, not on potential challenges to the tribunal’s
own decisions ‘as to’ jurisdiction, but on jurisdictional or legal challenges to its
substantive decisions generally. A more explicit formula might perhaps have
anticipated the extreme wording of the bill presented in 2003 (para 101 above),
excluding challenges to any determination or “purported” determination as ‘a
nullity by reason of lack of jurisdiction, error of law, or any other matter’. The
reason for not adopting that course may simply be that, as in 2003, it might not
have been expected to survive Parliamentary scrutiny.
c. The courts accept that there are situations of ‘partial ouster’ that have
application. Rules on time limits, limitations on who might bring claims in
relation to specific issues and other such matters have effect. Cases such as R
v Secretary of State for the Environment, ex parte Ostler [1977] QB 122 (shortened
time limits in planning cases) is an example of this.
2. Distinctions might be drawn between ‘full’ ouster of the judicial review jurisdiction
of the High Court on one hand and situations of ‘partial’ ouster’. In general, there
has been a greater suspicion of ‘full’ ouster clauses, which seek to prevent judicial
review of administrative decisions in all circumstances and ‘partial’ ouster clauses,
which seek only to restrict the terms upon which remedies can be granted, the
time limit in which claims might be brought, etc.
In general, ‘full’ ouster clauses are included in legislation in order to prevent

judicial review of administrative decisions. As the quote from Lord Carnwath in
the previous answer suggests, the courts are generally suspicious of these because
they may prevent effective judicial protection being offered to individuals who are
affected by administrative decisions that might offend the principles of fairness.
However, one might argue that in some circumstances wide or ‘full’ ouster clauses
could have some value if they reserve any appeals or decisions to be determined
by specialist tribunals, such as in the circumstances in A v B (Investigatory Powers
Tribunal: Jurisdiction) [2009] UKSC 12.
‘Partial’ ouster clauses, such as those that are often found in planning legislation
to impose shorter time limits than are usual to bring a claim, or to restrict the
scope of claimants who might bring a claim, might serve a useful purpose in the
system of administrative justice. We might also consider the test for standing in
s.31(3) of the Senior Courts Act 1981 and other general provisions on delay, ‘makes
no difference’, etc. as forms of ‘partial’ ouster. We might see these provisions as
important because they aid legal certainty (as explained in Chapter 6) and support
efficient administrative decision-making.
3. We might be concerned about the implications of ouster clauses on the rule of law
because, if judicial review is ousted, it is not possible for individuals to seek the
protection of the courts where arbitrary or unfair decisions, that would otherwise
be declared unlawful, are made. As noted above, these concerns are greatest
where the ouster clause seeks to completely remove the jurisdiction of the High
Court in judicial review. More limited ‘partial’ ouster clauses are of less concern,
as they seek only to restrict and not to exclude judicial review. This perhaps also
explains the difference in judicial approach towards the two types of clause. The
courts require clear words in legislation before Parliament’s intent to deliver a ‘full’
ouster of judicial review will be acknowledged, whereas they are generally willing
to accept ‘partial’ ouster with little scrutiny.
Activity 7.4
1. The concept of ‘jurisdictional fact’, which might also be described as the ‘collateral
fact doctrine’ In essence, the ‘jurisdictional fact’ doctrine provides that the finding
of certain facts which then establish the jurisdiction of a public body will be subject
to review as ‘errors going to the jurisdiction’, whereas other errors in relation to
the facts would, at most, be errors made within jurisdiction, or might be ignored
as errors that do not affect the legality of the decision. In Craig’s book (para.16-002)
he notes that
“…recent approaches…largely ignore any distinction between scope and truth/detail

[in the finding of fact]. Judicial intervention is based on error of law as the organising
principle. While this approach avoids the difficulties of the earlier theories it is not
unproblematic. Thus, there are issues of classification to be resolved, such as the
obvious division between law and fact.
Until relatively recently, the courts were reluctant to hold that material errors in
the finding of fact (other than where such findings of fact established jurisdiction)
were unlawful, so the distinction between fact and law was important in many
judicial review cases.
A good example of the question of what could constitute a ‘jurisdictional fact’ and
then other issues that are subject to discretionary decisions that might be the
decision in R (A) v Croydon LBC [2009] UKSC 8; [2009] 1 WLR 2557:
The 1989 Act draws a clear and sensible distinction between different kinds of
question. The question whether a child is “in need” requires a number of different
value judgments. What would be a reasonable standard of health or development
for this particular child? How likely is he to achieve it? What services might bring that
standard up to a reasonable level? What amounts to a significant impairment of health
or development? How likely is that? What services might avoid it? Questions like
this are sometimes decided by the courts in the course of care or other proceedings
under the Act. Courts are quite used to deciding them upon the evidence for the
purpose of deciding what order, if any, to make. But where the issue is not, what
order should the court make, but what service should the local authority provide, it
is entirely reasonable to assume that Parliament intended such evaluative questions
to be determined by the public authority, subject to the control of the courts on the
ordinary principles of judicial review. (Per Baroness Hale at [26].)
But the question whether a person is a ‘child’ is a different kind of question. There
is a right or a wrong answer. It may be difficult to determine what that answer is.
The decision-makers may have to do their best on the basis of less than perfect or
conclusive evidence. But that is true of many questions of fact which regularly come
before the courts. That does not prevent them from being questions for the courts
rather than for other kinds of decision-makers. (Per Baroness Hale at [27].)
In this case, Baroness Hale seems to be clear that the question of whether an
individual is a ‘child’ for the purposes of the Act is one of jurisdictional fact.
However, the question of whether a child is ‘in need’, is a more contextual decision
and is to be seen as an error made within jurisdiction, controlled by normal
principles of judicial review.
Other cases that you could consider in understanding what is a ‘jurisdictional fact’
and the ‘law/fact distinction’ are Moyna v Secretary of State for Work and Pensions
[2003] 1 WLR 1929 (where a question of the ‘ability to prepare a cooked meal’
was deemed to be one where the courts would leave decision-makers broad
discretion) and R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC
19; [2013] 2 AC 48 (where a similar approach was taken to whether the claimant
was the victim of a ‘crime of violence’.)
2. As you will see from the material above, the question of what is fact and what is law
is not a simple one to distinguish for the purpose of ‘jurisdictional fact’. However,
we can see from a case like Moyna that it is more likely that questions of clear
statutory definition, such as the question of whether a person is a ‘child’ is likely
to be treated as a question of ‘jurisdictional fact’, whereas broader questions of
context, such s whether a child is ‘in need’, whether a claimant is able to cook a
meal, or whether an individual is a victim of a ‘crime of violence’ are likely to be
reviewed only under the general principles of judicial review.
3. The development of the concept of ‘material error of fact’ is a relatively recent one
and was expounded by Carnwath LJ (as he was then) in E v Secretary of State for the
Home Department [2004] EWCA Civ 49; [2004] QB 1044. In the case, Lord Carnwath
said:
In our view, the time has now come to accept that a mistake of fact giving rise to
unfairness is a separate head of challenge in an appeal on a point of law, at least
in those statutory contexts where the parties share an interest in co-operating to
achieve the correct result. Asylum law is undoubtedly such an area. Without seeking
to lay down a precise code, the ordinary requirements for a finding of unfairness are…
First, there must have been a mistake as to an existing fact, including a mistake as
to the availability of evidence on a particular matter. Secondly, the fact or evidence
must have been ‘established’, in the sense that it was uncontentious and objectively
verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible
for the mistake. Fourthly, the mistake must have played a material (not necessarily
decisive) part in the tribunal’s reasoning. (Per Carnwath LJ at [66].)
As such, ‘material error of fact’ requires four things:
a. A mistake as to existing fact or the availability of evidence on a particular matter.
b. The fact or evidence must have been established without dispute.
c. The claimant must not have been responsible for the mistake.
d. The mistake must have played a material part in the decision-maker’s

reasoning.
Activity 7.5
1. At its simplest level, the question of ‘justiciability’ might be best defined as a
question of whether a particular issue is appropriate for determination by the
courts through the judicial process. As such, issues that are deemed to be ‘non-
justiciable’ are deemed by the courts to be unsuitable for judicial determination.
2. Endicott identifies a number of issues that the courts have considered to be non-
justiciable, including:
a. Foreign affairs and national security, such as in CCSU v Minister for the Civil
Service [1985] AC 374 or A v Secretary of State for the Home Department [2004]
UKHL 56.
b. Terrorism, such as in A v Secretary of State for the Home Department [2004] UKHL
56.
c. Issues relating to money or funding, as in R v Secretary of State for the

Environment, ex parte Hammersmith and Fulham London Borough Council [1991] 1
AC 521 and R (On the Application of Pfizer Ltd) v Secretary of State for Health [2002]
EWCA Civ 1566.
d. Planning decisions, such as in First Secretary of State v Hammersmatch Properties

Ltd [2005] EWCA Civ 1360.
e. Decisions approved by Parliament, as in R v Secretary of State for the

Environment, ex parte Hammersmith and Fulham London Borough Council [1991] 1
AC 521.
f. Endicott also outlines other specific situations, such as where there are Acts of
devolved Parliaments, legal processes and circumstances where the primary
decision-maker, based on evidence placed before them, are empowered to
make decisions. You can read about these contexts in greater detail in paras
7.3.5–7.3.8 of Endicott’s book.
One message that is important to take from Endicott’s chapter is that deference
tends to arise around certain issues. This is important, as courts choose to adopt
the approach to deference around these issues for the policy reasons to be
considered below.
3. The policy reasons for deference are set out in the Guide. It is helpful to repeat the
relevant table here:
Constitutional Institutional
Separation of powers – the need to Institutional capacity – the courts may
acknowledge that certain matters are lack the necessary expertise and thus
matters for the executive, delegated to be in a worse position to consider the
them by Parliament and thus it may not issues than the primary decision-maker.
be legitimate for the courts to intervene. This may often be the case in respect of
questions in relation to technical issues,
such as the regulation of medicines.
Parliamentary sovereignty – the courts Polycentric questions – the courts will
may be reluctant to review a decision be less willing to consider issues relating
that has somehow been endorsed by to polycentric questions (questions
Parliament, due to the desire not to with many ‘correct’ answers, or no truly
offend the principle of parliamentary correct answer) such as the amount of
sovereignty. resources to allocate to health when
contrasted with the amount of resources
to allocate to education, as these are
political questions, not ideally resolved in
the judicial sphere.
Chapter 8
Activity 8.1
1. If we consider the issue raised in Battcharge’s case, the ultimate question is one
of the legal authority of the Secretary of State to ban the product at issue. Section
1 of the Airport Security Act 2017 permits the prohibition of products that could
constitute a ‘dangerous weapon’. One argument would simply be that, on a
reasonable interpretation of the Act (as in the case of ‘jurisdictional fact’ set out
above), a product of the weight and size of the battery pack does not constitute
a ‘dangerous weapon’. One might rely on cases such as R (on the application of The
Public Law Project) v Lord Chancellor [2016] UKSC 39 on the broad point of statutory
interpretation. The cases of R (A) v Croydon LBC [2009] UKSC 8 and Moyna v Secretary
of State for Work and Pensions [2003] 1 WLR 1929 could then add more sophistication
to the analysis. We might argue that because the question of whether the product
is a ‘dangerous weapon’ is one that must be answered in the affirmative before
the power to ban can be exercised, then this is a question of jurisdictional fact
that is to be determined by the courts in order to establish jurisdiction. Others
might argue that the determination of what is a ‘dangerous weapon’ should be
subject to control by the courts only if the Secretary of State’s interpretation is
contrary to the general principles of judicial review. On balance, one might argue
that in the circumstances, the question of what is a ‘dangerous weapon’ is one of
jurisdictional fact and might be determined accordingly.
2. The situation for Klipperz Ltd is one where the Secretary of State is adhering to a
published policy without consideration of the specific case before it. The argument
here would be that the Secretary of State is unlawfully fettering his discretion in
light of the decisions in British Oxygen Co. Ltd v Board of Trade [1971] AC 610 and
North West Lancashire Health Authority v A, D and G [1999] EWCA Civ 2022. Of course,
it may be quite possible for the Secretary of State to argue that regardless of the
published policy, the product made by Klipperz Ltd is still dangerous and so should
be prohibited.
3. This is a simple issue – nothing in the Airport Security Act 2017 suggests that the
Secretary of State has the power to impose charges, hence any effort to impose a
charge will be deemed ultra vires. Cases such as Congreve v Home Office [1976] QB
629 support the famous constitutional principle that there can be no taxation or
charge without the express approval of Parliament.
4. In Iqbal’s case, there could be two arguments. First, one could argue that by the civil
servant taking the decision, rather than the Secretary of State, there is an unlawful
delegation of power. However, this argument is unlikely to succeed because the
case of Carltona v Commissioner of Works [1943] 2 All ER 560 would suggest that such
delegation is likely to be legitimate. This is not a case like R (King) v Secretary of State
for Justice [2015] UKSC 54, where it might be argued that the proper construction of
the statute requires a personal decision by the Secretary of State.
The substantive decision could be challenged as it might be argued that the fact
of Iqbal’s political activities is an irrelevant factor, relying on cases such as R v
Secretary of State for the Home Department, ex parte Venables [1998] AC 407. It could
also be possible to argue that the Secretary of State’s decision is Wednesbury
unreasonable, relying on Associated Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223.
5. In Hillshire Airport’s case, two core arguments might arise. The first one is that the
Secretary of State is using power for an improper purpose as in Padfield v Minister
of Agriculture, Fisheries and Food [1968] AC 997 or Wheeler v Leicester City Council
[1985] AC 1054 as the real motive for the use of the power might be argued to be
to prevent the noise from affecting her property. It might also be possible that the
decision might be argued to be Wednesbury unreasonable.
Activity 8.2
1. In the case of the Recycling Association, the claimant would need to rely on
the argument that the Secretary of State has breached the duty imposed by
the statute. However, the claim would be unlikely to succeed as the duty is not
absolute and the decision in R (on the application of Friends of the Earth) v Secretary
of State for Business, Enterprise and Regulatory Reform [2008] EWHC 2518 (Admin)
would suggest that if there are inadequate resources to fulfil the duty then the
Secretary of State has discretion to use the resources in order to fulfil the duty as
appropriate.
2. In the case of Fast Plas, there may be an argument that the refusal to provide
funding is unlawful due to the failure to consider a relevant factor (the scientific
papers) as in R (T) v Enfield London Borough Council [2004] EWHC 2297 (Admin).
3. In the case of Plastibead, it might be possible to argue that the Secretary of State
has taken account of an irrelevant factor (the public pressure) in R v Secretary of
State for the Home Department, ex parte Venables [1998] AC 407.
Chapter 9
Activity 9.1
1. The ‘substantive’ test of Wednesbury unreasonableness is most readily explained by
a quote from the case itself, where Lord Greene said:
Once that question [whether any of the ‘umbrella’ principles have been
breached] is answered in favour of the local authority, it may still be possible
to say that, although the local authority kept within the four corners of the
matters which they ought to consider, they have nevertheless come to a
conclusion so unreasonable that no reasonable authority could ever have
come to it. (Per Lord Greene [1948] 1 KB 223 at 234.)
This is then echoed by Lord Diplock in the CCSU case, where he said:
By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury

unreasonableness’. It applies to a decision which is so outrageous in its 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. Whether a decision falls
within this category is a question that judges by their training and experience should
be well equipped to answer, or else there would be something badly wrong with our
judicial system…
It is plain that the intention in the Wednesbury case is for the test to catch only
a small number of arbitrary and plainly bad decisions. Over time, as we will see,
one might argue that the Wednesbury test has developed in complexity. While we
might applaud that fact for the perspective of judicial control of administrative
action, it might be argued that the subsequent developments of the Wednesbury
test have stretched the contours and intentions of the original test.
2. The basic constitutional rationale for the approach to rationality in the Wednesbury
case is to be found in the judgment of Lord Greene:
The power of the court to interfere in each case is not as an appellate authority
to override a decision of the local authority, but as a judicial authority, which
is concerned, and concerned only, to see whether the local authority have
contravened the law by acting in excess of powers which Parliament has confided
in them. (Per Lord Greene MR)
In essence, the courts take the view that discretionary power has been granted to
decision-makers by Parliament in statute. The proper role of the courts is then to
ensure that such discretionary powers are used in a lawful manner. As we noted in
our earlier examination of judicial review theory, both the common law theory and
the ultra vires theory of judicial review assume that Parliament intends to legislate
in conformity with the rule of law and that any powers granted by legislation are
intended to be used in conformity with the rule of law. A lack of arbitrariness is
seen to be a requirement of the rule of law and the Wednesbury test might be seen
as a mechanism to protect individuals from the arbitrary decision-making of public
authorities.
Activity 9.2
1. We might argue that, over time, the Wednesbury test has developed and has
become context sensitive. There is a reduced level of review available where
issues are determined by the courts to be non-justiciable, or better determined by
administrative decision-makers and an enhanced level of judicial scrutiny where
individual rights are at stake. The approach of Laws LJ in R (Mahmood) v Home
Secretary [2001] 1 WLR 840:
...the intensity of review in a public law case will depend on the subject matter in
hand; and so in particular any interference with by the action of a public body with a
fundamental right will require a substantial objective justification. (At [18].)
He then went on to say that the modern Wednesbury test might be seen as:
...what may be called a sliding scale of review; the graver the impact of the
decision in question upon the individual affected by it, the more substantial
the justification that will be required. (At [19].)
2. It is important to try to understand the development of the Wednesbury test in the

context of time and also on the basis of the subject matter of the cases.
Nature of the cases Judicial decisions

The original approach Associated Provincial Picture Houses Ltd v Wednesbury Corporation
[1948] 1 KB 223.
Chertsey UDC v Mixnam’s Properties [1965] AC 735.
CCSU v Minister for the Civil Service [1985] AC 374.
The above all exemplify the original approach to Wednesbury,
holding that the irrationality test applies in only a very limited
number of cases, to decisions that are patently unreasonable.
The approach to R v Secretary of State for the Home Department, ex parte Brind
individual rights: [1991] 1 AC 696.
(MORE INTENSIVE This case rejected the adoption of any significantly different
review) standard of review where individual rights were at stake
(certainly rejecting the proportionality test), although noted
that where Convention Rights were affected by a decision, the
decision-maker must be in a position to offer some justification
for that decision.
R v Secretary of State for the Home Department, ex parte Leech
[1993] 4 All ER 539 (CA).
R v Ministry of Defence ex parte Smith [1996] QB 517.
R v Secretary of State for the Home Department, ex parte Simms
[1999] 3 All ER 400.
R v Secretary of State for the Home Department, ex parte Daly
[2001] UKHL 26.
R (Mahmood) v Secretary of State for the Home Department [2001]
1 WLR 840.
The above cases demonstrate the development of a more
intensive approach to cases where individual rights are
impacted by administrative decisions. You can find detailed
quotes from these cases, explaining the approach, in the
module guide in Section 9.2.2, so they are not repeated here.
Subsequent cases involving individual rights have then
affirmed the context-sensitive approach to judicial review, with
a more intensive form of review where individual rights are at
stake. Despite this, it is clear from the decisions in ABCIFER and
Keyu, that the Wednesbury test has not been overruled.
Kennedy v Information Commissioner [2014] UKSC 20.
Pham v Secretary of State for the Home Department [2015] UKSC
19.
Keyu v Secretary of State for Foreign and Commonwealth Affairs
[2015] UKSC 69, esp. Lord Neuberger at [131]–[133].
Youssef v Secretary of State for Foreign and Commonwealth Affairs
[2016] UKSC 3, esp. Lord Carnwath at [55]–[57].
The approach in cases ‘Polycentric questions’ and allocative decisions

where justiciability is
R v Secretary of State for the Environment, ex parte Hammersmith
under question:
and Fulham London Borough Council [1991] 1 AC 521 (‘capping’ of
(LESS INTENSIVE review) level of local taxation, where approved by parliament).
R v Cambridge DHA, ex parte B (No.1) [1995] 2 All ER 129 (CA)
(refusal to fund expensive medical treatment with a limited
chance of success for young child with rare form of cancer).
R (on the application of Pfizer Ltd) v Secretary of State for Health
[2002] EWCA Civ 1566 (refusal to make Viagra available to NHS
patients).
Decisions of expert bodies
R v Independent Television Commission, ex parte TSW Broadcasting

Ltd [1996] EMLR 291 (decision over a licence for a television
broadcaster).
R v Medicines Control Agency, ex parte Pharma Nord (UK) Ltd
[1998] EWCA Civ 891 (decision of whether or not to issue a
licence to a pharmaceutical product and judgments over safety
and efficacy).
National security
R v Ministry of Defence ex parte Smith [1996] QB 517 (discharge

of military personnel from army on grounds of their sexuality).
Note, however, the dicta of Simon Brown LJ:
To my mind only the rarest cases will today be ruled
strictly beyond the court’s purview – only cases involving
national security properly so called and where in addition
the courts really do lack the expertise or material to form
a judgment on the point at issue [at 539].
A v Secretary of State for the Home Department [2004] UKHL
56 (detention without trial or access to a court for foreign
nationals suspected of links to terrorism). In this case, see Lord
Walker of Gestingthorpe:
Safeguarding national security is…the area of policy
in which the courts are most reluctant to question or
interfere with the judgment of the executive or (a fortiori)
the enacted will of the legislature.
…a portentous but non-specific appeal to national
security can be used as a cloak for arbitrary and
oppressive action on the part of government. Whether or
not patriotism is the last refuge of the scoundrel, national
security can be the last refuge of the tyrant [at [192]–[193]].
Separation of powers/comity
R v Secretary of State for the Environment, ex parte Hammersmith

and Fulham London Borough Council [1991] 1 AC 521 (‘capping’ of
level of local taxation, where approved by parliament).
Secretary of State for the Home Department v Rehman [2001]
UKHL 47 (deportation case where the secretary of state had
determined that the claimant posed a terrorist threat).
Activity 9.3
1. The current approach to the Wednesbury test is that it is a context-sensitive
test, with greater intensity of review in cases involving individual rights and less
intensity of review in cases where the courts feel that the issues at hand are less
suitable for judicial resolution, or are non-justiciable.
The uncertainties in the law are numerous. One particular challenge is where
exactly any case falls on the ‘sliding scale’ of intensity. Le Sueur, among others, has
argued that many cases do not fall within a ‘bright line’, being only about individual
rights, or only about broader issues of policy. As such, the precise approach to
rationality in any given case is uncertain and at the discretion of the court deciding
the case.
Furthermore, one might argue that there is remaining uncertainty about the
future of the Wednesbury test, given the dicta that suggest that, at some point in
the future, the Supreme Court will need to consider the future of Wednesbury. See,
for example, the dicta of Dyson LJ in R (on the application of the Association of British
Civilian Internees – Far Eastern Region) v Secretary of State for Defence [2003] EWCA Civ
473, [2003] QB 1397:
...[W]e have difficulty in seeing what justification there now is for retaining the
Wednesbury test. But we consider that it is not for this court to perform its burial
rites. The continuing existence of the Wednesbury test has been acknowledged by the
House of Lords on more than one occasion. (At [34]–[35].)
See also Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015]
UKSC 69:
The appellants raise the argument that the time has come to reconsider the basis
on which the courts review decisions of the executive, and in particular that the
traditional Wednesbury rationality basis for challenging executive decisions should
be replaced by a more structured and principled challenge based on proportionality.
The possibility of such a change was judicially canvassed for the first time in this
jurisdiction by Lord Diplock in Council of Civil Service Unions v Minister for the Civil
Service [1985] AC 374, 410E, and it has been mentioned by various judges in a number
of subsequent cases – often with some enthusiasm, for instance by Lord Slynn in R
(Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the
Regions [2001] UKHL 23, [2003] 2 AC 295, para 51. In other words, the appellants contend
that the four-stage test identified by Lord Sumption and Lord Reed in Bank Mellat v HM
Treasury (No.2) [2013] UKSC 39, [2014] AC 700, paras 20 and 74 should now be applied in
place of rationality in all domestic judicial review cases.
It would not be appropriate for a five-Justice panel of this court to accept, or

indeed to reject, this argument, which potentially has implications which are
profound in constitutional terms and very wide in applicable scope. Accordingly,
if a proportionality challenge to the refusal to hold an inquiry would succeed, then
it would be necessary to have this appeal (or at any rate this aspect of this appeal)
re-argued before a panel of nine Justices. However, in my opinion, such a course is
unnecessary because I consider that the appellants’ third line of appeal would fail
even if it was and could be based on proportionality.
The move from rationality to proportionality, as urged by the appellants, would appear
to have potentially profound and far-reaching consequences, because it would involve
the court considering the merits of the decision at issue: in particular, it would require
the courts to consider the balance which the decision-maker has struck between
competing interests (often a public interest against a private interest) and the weight
to be accorded to each such interest – see R (Daly) v Secretary of State for the Home
Department [2001] UKHL 26, [2001] 2 AC 532, para 27, per Lord Steyn. However, it is
important to emphasise that it is no part of the appellants’ case that the court would
thereby displace the relevant member of the executive as the primary decision-maker
– as to which see per Lord Sumption and Lord Reed in Bank Mellat (No.2) at paras 21 and
71 respectively. (Per Lord Carnwath at [131]–[133].)
2. Goodwin’s article puts forward three core points in favour of retaining the
Wednesbury test. They are:
a. The ‘separation of powers’ argument – the idea that the traditional Wednesbury
test respected the separation of powers between courts and the executive but
more intense standards of review might erode the separation of powers.
b. The ‘absence of warrant of statute’ argument. Here, Goodwin argues that the
intense standard of review under the Human Rights Act 1998 and cases involving
EU Law is justified because such review is authorised by statute, yet in the case of
ordinary judicial review cases, there is no such statutory authorisation.
c. The ‘bifurcation argument’ – Goodwin argues that there is a normative case for
adopting a more intensive standard of review in individual rights cases than
in cases not involving individual rights. Goodwin explains this at p.465 of his
article when he says that:
The approach advocated here is one of bifurcation. Proportionality should apply

to decisions where fundamental rights are infringed. In all other cases variable
Wednesbury should be applied. In this regard, the position proffered here varies
slightly from Taggart’s analysis, who advocates the application of classical ‘narrow’
Wednesbury to non-rights cases.
It is important to note that some scholars (Craig, Hunt among others) criticise
a bifurcated approach, considering it to be too limiting of the development of
judicial review.
3. It is plain that there is some legal uncertainty as a result of the approach taken to
the variable intensity of review. Goodwin’s article, referred to above, along with
other commentators, such as Le Sueur, endeavour to illustrate the challenges. It
would be particularly instructive for you to read Le Sueur, A. ‘The rise and ruin of
unreasonableness?’ (2005) Judicial Review 32. In that article, he argues:
[Wednesbury] unreasonableness as a ground of review is a straightforward concept,

based on sound constitutional principles and a useful longstop to deal with a residual
category of patently bad decisions. It makes abundantly clear that the courts are to
make a secondary decision, with the primary decision about the merits of the matter
being left to public authorities.
He then moves on to make the following points about the uncertainty of the
approach to variable intensity of review:
…ensuing years… have heaped too much onto the unreasonableness test – we have
attempted to make it too sophisticated, and we have used it to carry out tasks it was
never intended to deal with… Wednesbury unreasonableness is in danger of imploding
under the weight of expectations.
Even in relation to domestic law judicial review, too much seems to be required of the
unreasonableness ground. Without developing a particularly robust set of grounds to
guide it, the apparatus for variable intensity – light-touch review, ordinary Wednesbury,
anxious scrutiny – seems less than clear in practice.
Activity 9.4
1. The major elements of a proportionality test are as follows:
a. There is a necessity test, through which the court must consider whether
government action or regulation that restricts the rights of an individual is
necessary or not.
b. There is a suitability test, which considers whether, even where measures

taken are suitable, they are also necessary.
c. There is the proportionality stricto sensu test, which asks whether, even if
the measure is necessary and suitable, on the facts of the case before it the
government action still has a disproportionate impact on the rights of the
individual.
2. Lord Mance explains the similarities and differences of the Wednesbury and
proportionality tests in Kennedy v Information Commissioner [2014] UKSC 20; [2015]
A.C. 455 at [54].
54. More recently, the same process was carried further by emphasising that the
remedy of judicial review is in appropriate cases apt to cover issues of fact as well
as law—see the cases referred to in para 38 above. As Professor Paul Craig has shown
(see e.g. ‘The nature of reasonableness’ (2013) 66 CLP 131), both reasonableness review
and proportionality involve considerations of weight and balance, with the intensity
of the scrutiny and the weight to be given to any primary decision-maker’s view
depending on the context. The advantage of the terminology of proportionality is
that it introduces an element of structure into the exercise, by directing attention to
factors such as suitability or appropriateness, necessity and the balance or imbalance
of benefits and disadvantages. There seems no reason why such factors should not be
relevant in judicial review even outside the scope of Convention and EU law. Whatever
the context, the court deploying them must be aware that they overlap potentially
and that the intensity with which they are applied is heavily dependent on the
context. In the context of fundamental rights, it is a truism that the scrutiny is likely
to be more intense than where other interests are involved. But that proportionality
itself is not always equated with intense scrutiny was clearly identified by Lord
Bingham of Cornhill CJ in R v Secretary of State for Health, ex p. Eastside Cheese Co. [1999]
3 CMLR 123 , paras 41–49, which Laws and Arden LJJ and Lord Neuberger of Abbotsbury
MR cited and discussed at paras 21, 133 and 196-200 in R (Sinclair Collis Ltd) v Secretary
of State for Health [2012] QB 394, a case in which the general considerations governing
proportionality were treated as relevantly identical under EU and Convention law:
paras 54, 147, 192–194. As Lord Bingham explained, at para 47, proportionality review
may itself be limited in context to examining whether the exercise of a power involved
some manifest error or a clear excess of the bounds of discretion – a point taken up
and amplified in the Sinclair Collis case, at paras 126–134 and 203 by Arden LJ and 509 by
Lord Neuberger MR; see also Edward and Lane on European Union law (2013), para 2.32.
55. Speaking generally, it may be true (as Laws J said in a passage also quoted by Lord
Bingham from R v Ministry of Agriculture, Fisheries and Food, ex p. First City Trading
Ltd [1997] 1 CMLR 250, 278–279) that ‘Wednesbury and European review are two
different models – one looser, one tighter – of the same juridical concept, which
is the imposition of compulsory standards on decision-makers so as to secure the
repudiation of arbitrary power’. But the right approach is now surely to recognise, as
de Smith’s judicial review, 7th ed (2013), para 11-028 suggests, that it is inappropriate
to treat all cases of judicial review together under a general but vague principle of
reasonableness, and preferable to look for the underlying tenet or principle which
indicates the basis on which the court should approach any administrative law
challenge in a particular situation. Among the categories of situation identified
in de Smith are those where a common law right or constitutional principle is in
issue. In the present case, the issue concerns the principles of accountability and
transparency, which are contained in the Charities Act and reinforced by common law
considerations and which have particular relevance in relation to a report by which
the Charity Commission makes to explain to the public its conduct and the outcome
of an inquiry undertaken in the public interest.
3. Leigh argues that the approach to proportionality under the Human Rights
Act 1998 could allow the adoption of three different approaches – the radical
approach, the conservative approach or the moderate approach. These are
explained by Leigh at pp.265–266 of his article:
One reading is that the courts should become concerned with the merits and effects
of the decision, rather than the process by which it was reached. This flies in the
face of the traditional judicial reluctance to do so and can be described as a radical
approach. It signals a major constitutional shift, in the direction of substantive review
and leading to abandonment of judicial deference to the executive, which could only
then be maintained so far as the Convention permitted limitations to rights under the
proportionality doctrine. Critics may argue that this violates the separation of powers
and trespasses on areas of expertise or competence of the executive. Moreover, even if
correct, to treat human rights cases as a species of illegality raises a fresh set of
questions about the function of the courts in the face of the varied nature of
Convention rights and the mixed issues of law, fact and policy raised by qualified rights
(Articles 8–11), especially.
Alternatively, the conservative approach sees review under section 6 as a continuation

of the existing approaches to judicial review: there must be due deference to the
executive acting within the law. This approach was asserted by Schiemann LJ in a
deportation case in holding that the HRA did not allow the court to substitute its view
for that of the executive. In immigration cases concerning the right to family life the
judiciary should recognise an area of judgment where they would defer to the opinion
of the elected body or person whose decision was said to be incompatible.
A third possibility is a moderate approach – that there is both change and continuity
in the standard of review. The HRA provides a direction of travel but stops short of
the destination of the radical approach. In an article in this journal before the first
decisions were delivered, Professor Jeffrey Jowell argued that while the HRA would
not bring about merits review as such, it nevertheless (together with common law
decisions on fundamental rights) pointed towards the development of ‘constitutional
review’, by which he meant that judges would need to justify their decisions in
terms of the necessary qualities of a democratic society. Similarly, in a recent article
Mark Elliott argues that an emerging test of proportionality (which he identifies as
the relevant standard under the HRA) will overlap and complement, but not wholly
supplant, Wednesbury.
Activity 9.5
1. Leigh explains the distinction between qualified and unqualified rights in the
Convention in the way that the distinction is commonly understood. The ‘qualified’
rights in the Convention are those such as Articles 8–11 ECHR, where there are in
Articles 8(2), 9(2), 10(2) and 11(2), specific qualifications and balances on the rights
conferred in the first paragraph of each of those Articles. In contrast, Articles
2–7 ECHR are to be seen as ‘unqualified’ rights as there is no qualification in the
Convention. As such, it is not appropriate to use the proportionality test in relation
to these rights as there is no balance to be struck – any state interference with the
rights in Articles 2–7 ECHR is a contravention of those rights and should be dealt
with accordingly. This is explained by Leigh at p.287 of his article, when he states:
To argue that ‘in law context is everything’ is not an argument for proportionality
(or any other single variable test), despite its obvious appeal as being able to
accommodate a variable approach to review of human rights questions. On the
contrary, it is an argument against the elusive and fruitless search for an over-arching
standard to fit several different situations. In particular, we must distinguish:
(1) Where a public authority allegedly acts contrary to a person’s unqualified

Convention right. Here Article 13 permits no deference to the Executive, nor does
the HRA, unless the action in question is required by primary legislation. It is
appropriate to describe the form of primary review as constitutionally mandated
‘merits review’ in these cases.
(2) Where a public authority allegedly acts contrary to a person’s qualified

Convention right. Here the Convention permits deference to the Executive
within the proportionality test, but in translating this for domestic use a margin
of appreciation is inappropriate. There has, nevertheless, been a shift from
secondary to primary review with the enactment of the HRA.
Failure to make this distinction is likely to end in diluting the protection which
unqualified rights should enjoy under the HRA.
The tradition of judicial deference to the legislature and the executive in administrative
law will not be shaken off easily, even after the HRA. Deference is understandable in the
case of Parliament – and supportable from the wording of the HRA, especially sections
3 and 4. Where the Executive is concerned, however, it is much harder to support or
ground in the statutory language. The approach advocated here does not – in Lord
Hoffmann’s expression – inaugurate ‘the rule of lawyers’: many Convention rights are
qualified and respect for representative democracy, if not deference, re-enters by giving
proportionality its proper role (but no more) under the Convention jurisprudence.
2. The decision of the House of Lords in Huang v Secretary of State for the Home
Department [2007] UKHL 11 advocates that in cases involving Convention rights, the
reviewing authority (tribunal or court) may have to take an approach that is closer
to ‘merits review’ than in other circumstances. In so doing, the Committee said:
14. Much argument was directed on the hearing of these appeals, and much authority
cited, on the appellate immigration authority’s proper approach to its task, due
deference, discretionary areas of judgment, the margin of appreciation, democratic
accountability, relative institutional competence, a distinction drawn by the Court of
Appeal between decisions based on policy and decisions not so based, and so on. We
think, with respect, that there has been a tendency, both in the arguments addressed
to the courts and in the judgments of the courts, to complicate and mystify what
is not, in principle, a hard task to define, however difficult the task is, in practice, to
perform. In describing it, we continue to assume that the applicant does not qualify
for leave to enter or remain under the Rules, and that reliance is placed on the family
life component of Art.8.
15. The first task of the appellate immigration authority is to establish the relevant
facts. These may well have changed since the original decision was made. In any event,
particularly where the applicant has not been interviewed, the authority will be much
better placed to investigate the facts, test the evidence, assess the *684 sincerity of
the applicant’s evidence and the genuineness of his or her concerns and evaluate the
nature and strength of the family bond in the particular case. It is important that the
facts are explored, and summarised in the decision, with care, since they will always be
important and often decisive.
16. The authority will wish to consider and weigh all that tells in favour of the refusal
of leave which is challenged, with particular reference to justification under Art.8(2) .
There will, in almost any case, be certain general considerations to bear in mind: the
general administrative desirability of applying known rules if a system of immigration
control is to be workable, predictable, consistent and fair as between one applicant
and another; the damage to good administration and effective control if a system
is perceived by applicants internationally to be unduly porous, unpredictable
or perfunctory; the need to discourage non-nationals admitted to the country
temporarily from believing that they can commit serious crimes and yet be allowed
to remain; the need to discourage fraud, deception and deliberate breaches of the
law; and so on. In some cases much more particular reasons will be relied on to justify
refusal, as in Samaroo v Secretary of State for the Home Department [2001] EWCA Civ
1139; [2002] INLR 55 where attention was paid to the Secretary of State’s judgment
that deportation was a valuable deterrent to actual or prospective drug traffickers,
or R (on the application of Farrakhan) v Secretary of State for the Home Department
[2002] EWCA Civ 606; [2002] QB 1391, an Art.10 case, in which note was taken of the
Home Secretary’s judgment that the applicant posed a threat to community relations
between Muslims and Jews and a potential threat to public order for that reason.
The giving of weight to factors such as these is not, in our opinion, aptly described as
deference: it is performance of the ordinary judicial task of weighing up the competing
considerations on each side and according appropriate weight to the judgment of
a person with responsibility for a given subject matter and access to special sources
of knowledge and advice. That is how any rational judicial decision-maker is likely
to proceed. It is to be noted that both Samaroo and Farrakhan (cases on which the
Secretary of State seeks to place especial reliance as examples of the court attaching
very considerable weight to decisions of his taken in an immigration context) were
not merely challenges by way of judicial review rather than appeals but cases where
Parliament had specifically excluded any right of appeal.
3. It is possible to understand the steps that Lord Reed advocates only by considering
the steps that he outlines in his judgment. See Bank Mellat v HM Treasury [2013]
UKSC 39:
70. As I have mentioned, proportionality is also a concept applied by the European

Court of Human Rights. As the court has often stated, inherent in the whole of
the Convention is a search for a fair balance between the demands of the general
interest of the community and the requirements of the protection of the individual’s
fundamental rights: see e.g. Sporrong & Lönnroth v Sweden (1982) 5 EHRR 35, para 69.
The court has described its approach to striking such a balance in different ways
in different contexts, and in practice often approaches the matter in a relatively
broad-brush way. In cases concerned with A1P1, for example, the court has often
asked whether the person concerned had to bear an individual and excessive
burden: see e.g. James v United Kingdom (1986) 8 EHRR 123, para. 50. The intensity
of review varies considerably according to the right in issue and the context in
which the question arises. Unsurprisingly, given that it is an international court,
its approach to proportionality does not correspond precisely to the various
approaches adopted in contracting states.
71. An assessment of proportionality inevitably involves a value judgment at

the stage at which a balance has to be struck between the importance of the
objective pursued and the value of the right intruded upon. The principle does not
however entitle the courts simply to substitute their own assessment for that of
the decision-maker. As I have noted, the intensity of review under EU law and the
Convention varies according to the nature of the right at stake and the context in
which the interference occurs. Those are not however the only relevant factors.
One important factor in relation to the Convention is that the Strasbourg court
recognises that it may be less well placed than a national court to decide whether
an appropriate balance has been struck in the particular national context. For that
reason, in the Convention case law the principle of proportionality is indissolubly
linked to the concept of the margin of appreciation. That concept does not apply
in the same way at the national level, where the degree of restraint practised
by courts in applying the principle of proportionality, and the extent to which
they will respect the judgment of the primary decision-maker, will depend on
the context, and will in part reflect national traditions and institutional culture.
For these reasons, the approach adopted to proportionality at the national level
cannot simply mirror that of the Strasbourg court.
72. The approach to proportionality adopted in our domestic case law under the
Human Rights Act 1998 has not generally mirrored that of the Strasbourg court. In
accordance with the analytical approach to legal reasoning characteristic of the
common law, a more clearly structured approach has generally been adopted,
derived from case law under Commonwealth constitutions and Bills of Rights,
including in particular the Canadian Charter of Fundamental Rights and Freedoms
of 1982. The three-limb test set out by Lord Clyde in de Freitas v Permanent
Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80
has been influential:
whether: (i) the legislative objective is sufficiently important to justify limiting

a fundamental right; (ii) the measures designed to meet the legislative
objective are rationally connected to it; and (iii) the means used to impair the
right or freedom are no more than is necessary to accomplish the objective.
de Freitas was a Privy Council case concerned with fundamental rights under
the constitution of Antigua and Barbuda, and the dictum drew on South African,
Canadian and Zimbabwean authority. The three criteria have however an affinity
to those formulated by the Strasbourg court in cases concerned with the
requirement under Articles 8–11 that an interference with the protected right
should be necessary in a democratic society (e.g. Jersild v Denmark (1994) 19 EHRR
1, para. 31), provided the third limb of the test is understood as permitting the
primary decision-maker an area within which its judgment will be respected.
73. The de Freitas formulation has been applied by the House of Lords and the
Supreme Court as a test of proportionality in a number of cases under the Human
Rights Act . It was however observed in Huang v Secretary of State for the Home
Department [2007] 2 AC 167, para. 19 that the formulation was derived from the
judgment of Dickson CJ in R v Oakes [1986] 1 SCR 103, and that a further element
mentioned in that judgment was the need to balance the interests of society
with those of individuals and groups. That, it was said, was an aspect which should
never be overlooked or discounted. That this aspect constituted a fourth criterion
was noted by Lord Wilson JSC, with whom Lord Phillips of Worth Matravers PSC
and Lord Clarke of Stone-cum-Ebony JSC agreed, in R (Aguilar Quila) v Secretary of
State for the Home Department [2012] 1 AC 621, para. 45.
74. The judgment of Dickson CJ in Oakes provides the clearest and most influential
judicial analysis of proportionality within the common law tradition of legal
reasoning. Its attraction as a heuristic tool is that, by breaking down an assessment
of proportionality into distinct elements, it can clarify different aspects of such an
assessment, and make value judgments more explicit. The approach adopted in
Oakes can be summarised by saying that it is necessary to determine (1) whether
the objective of the measure is sufficiently important to justify the limitation of a
protected right, (2) whether the measure is rationally connected to the objective,
(3) whether a less intrusive measure could have been used without unacceptably
compromising the achievement of the objective, and (4) whether, balancing the
severity of the measure’s effects on the rights of the persons to whom it applies
against the importance of the objective, to the extent that the measure will
contribute to its achievement, the former outweighs the latter. The first three of
these are the criteria listed by Lord Clyde in de Freitas, and the fourth reflects the
additional observation made in Huang . I have formulated the fourth criterion in
greater detail than Lord Sumption JSC, but there is no difference of substance. In
essence, the question at step four is whether the impact of the rights infringement is
disproportionate to the likely benefit of the impugned measure.
75. In relation to the third of these criteria, Dickson CJ made clear in R v Edwards Books
and Art Ltd [1986] 2 SCR 713, 781–782 that the limitation of the protected right must be
one that ‘it was reasonable for the legislature to impose’, and that the courts were
‘not called on to substitute judicial opinions for legislative ones as to the place at
which to draw a precise line’. This approach is unavoidable, if there is to be any real
prospect of a limitation on rights being justified: as Blackmun J once observed, a judge
would be unimaginative indeed if he could not come up with something a little less
drastic or a little less restrictive in almost any situation, and thereby enable himself
to vote to strike legislation down (Illinois State Board of Elections v Socialist Workers
Party (1979) 440 US 173 , 188–189); especially, one might add, if he is unaware of the
relevant practicalities and indifferent to considerations of cost. To allow the legislature
a margin of appreciation is also essential if a federal system such as that of Canada,
or a devolved system such as that of the United Kingdom, is to work, since a strict
application of a ‘least restrictive means’ test would allow only one legislative response
to an objective that involved limiting a protected right.
76. In relation to the fourth criterion, there is a meaningful distinction to be drawn (as
was explained by McLachlin CJ in Alberta v Hutterian Brethren of Wilson Colony [2009] 2
SCR 567, para. 76) between the question whether a particular objective is in principle
sufficiently important to justify limiting a particular right (step one), and the question
whether, having determined that no less drastic means of achieving the objective
are available, the impact of the rights infringement is disproportionate to the likely
benefits of the impugned measure (step four).
Lord Reed’s judgment is important as it seeks to explain how the proportionality

concept in the European Convention on Human Rights (which is necessarily an
international Convention, interpreted by the Strasbourg Court and applicable to
states parties, might then be implemented in domestic law and, in particular, in a
common law system. In doing this, he explains how the approach in the European
Convention might somehow be reconciled with the common law approaches
drawn from Commonwealth jurisdictions.
4. You can choose which cases to draw upon – some ideas, along with summaries
of the facts and their importance can be found in Section 9.6.2 of the module
guide. The key, as outlined in the material above, is to gain an understanding of
the approach of the court to the proportionality test in Human Rights Act cases,
particularly where there is a balance to be struck between competing rights, or
between individual rights and the public interest.
Activity 9.6
1. It is perhaps helpful here simply to offer paras [33]–[38] of Lord Reed’s judgment,
where he explains succinctly the different circumstances where proportionality
review can arise under EU law. It is plain that domestic courts tend to deal only
with the latter two (i.e. cannot review measures of the EU legislature):
33. Proportionality as a general principle of EU law involves a consideration of two

questions: first, whether the measure in question is suitable or appropriate to achieve
the objective pursued; and secondly, whether the measure is necessary to achieve
that objective, or whether it could be attained by a less onerous method. There
is some debate as to whether there is a third question, sometimes referred to as
proportionality stricto sensu: namely, whether the burden imposed by the measure
is disproportionate to the benefits secured. In practice, the court usually omits this
question from its formulation of the proportionality principle. Where the question has
been argued, however, the court has often included it in its formulation and addressed
it separately, as in R v Minister for Agriculture, Fisheries and Food, ex p. Fedesa (Case
C-331/88) [1990] ECR I-4023 .
34. Apart from the questions which need to be addressed, the other critical aspect
of the principle of proportionality is the intensity with which it is applied. In that
regard, the court has been influenced by a wide range of factors, and the intensity
with which the principle has been applied has varied accordingly. It is possible to
distinguish certain broad categories of case. It is however important to avoid an
excessively schematic approach, since the jurisprudence indicates that the principle of
proportionality is flexible in its application. The court’s case law applying the principle
in one context cannot necessarily be treated as a reliable guide to how the principle
will be applied in another context: it is necessary to examine how in practice the court
has applied the principle in the particular context in question.
35. Subject to that caveat, however, it may be helpful to describe the court’s general
approach in relation to three types of case: the review of EU measures, the review of
national measures relying on derogations from general EU rights, and the review of
national measures implementing EU law.
36. As a generalisation, proportionality as a ground of review of EU measures

is concerned with the balancing of private interests adversely affected by such
measures against the public interests which the measures are intended to promote.
Proportionality functions in that context as a check on the exercise of public power
of a kind traditionally found in public law. The court’s application of the principle in
that context is influenced by the nature and limits of its legitimate function under the
separation of powers established by the Treaties. In the nature of things, cases in which
measures adopted by the EU legislator or administration in the public interest are held
by the EU judicature to be disproportionate interferences with private interests are
likely to be relatively infrequent.
37. Proportionality as a ground of review of national measures, on the other hand, has
been applied most frequently to measures interfering with the fundamental freedoms
guaranteed by the EU Treaties. Although private interests may be engaged, the court
is there concerned first and foremost with the question whether a member state
can justify an interference with a freedom guaranteed in the interests of promoting
the integration of the internal market, and the related social values, which lie at the
heart of the EU project. In circumstances of that kind, the principle of proportionality
generally functions as a means of preventing disguised discrimination and
unnecessary barriers to market integration. In that context, the court, seeing itself as
the guardian of the Treaties and of the uniform application of EU law, generally applies
the principle more strictly. Where, however, a national measure does not threaten
the integration of the internal market, for example because the subject matter
lies within an area of national rather than EU competence, a less strict approach is
generally adopted. That also tends to be the case in contexts where an unregulated
economic activity would be harmful to consumers, particularly where national
regulatory measures are influenced by national traditions and culture. An example is
the regulation of gambling, discussed in Gibraltar Betting and Gaming Association Ltd v
Secretary of State for Culture, Media and Sport [2015] 1 CMLR 28.
38. Where member states adopt measures implementing EU legislation, they are
generally contributing towards the integration of the internal market, rather than
seeking to limit it in their national interests. In general, therefore, proportionality
functions in that context as a conventional public law principle. On the other hand,
where member states rely on reservations or derogations in EU legislation in order to
introduce measures restricting fundamental freedoms, proportionality is generally
applied more strictly, subject to the qualifications which we have mentioned.
Chapter 10
Activity 10.1
1. The core balance that needs to be struck in all legitimate expectation cases is
the benefits of allowing the public body to exercise its discretion and change its
decision, or fail to deliver on a promise made to the claimant, compared with the
disadvantage caused to the claimant. We argued in Activity 4.1 that discretion
brings with it many advantages that serve the public interest. However, the
exercise of discretion, failure to fulfil a promise or rapid changes in policy can
have the potential to cause great disadvantage and unfairness to individuals or
groups who have relied on promises, practices or policy statements that have been
adopted by public authorities.
2. The justifications for enforcing legitimate expectations have varied over time.
The early case law around legitimate expectation (and particularly substantive
legitimate expectation) found justification or inspiration from the private law
principle of estoppel. However, the modern case law on legitimate expectation
has departed from this following the decision of the House of Lords in R (on the
application of Reprotech (Pebsham) Ltd) v East Sussex CC [2002] UKHL 8, where
Lord Hoffmann cast doubt on the appropriateness of the public law concept of
legitimate expectation drawing significant inspiration from private law principles.
The more recent case law on legitimate expectations in public law tends to focus
on the concept of fairness and its link to the principle of legality as a justification
for enforcement. As Sedley J said in R v Ministry of Agriculture, Fisheries and Food, ex
parte Hamble [1995] 2 All ER 714:
…the real question is one of fairness in public administration. It is difficult to see why
it is any less unfair to frustrate a legitimate expectation that something will or will not
be done by the decision-maker than it is to frustrate a legitimate expectation that the
applicant will be listened to before the decision-maker decides to take a particular
step. (at 724.)
It might also be useful to consider the view of Laws LJ in Niazi [2008] EWCA Civ 755,
where he suggests that the law on legitimate expectation is in place to address
unfairness that might otherwise arise, particularly in cases of changes of policy:
28. Legitimate expectation of either kind may (not must) arise in circumstances
where a public decision-maker changes, or proposes to change, an existing policy
or practice. The doctrine will apply in circumstances where the change or proposed
change of policy or practice is held to be unfair or an abuse of power: see for example
Ex p. Coughlan paragraphs 67 ff. Ex p. Begbie [2000] 1 WLR 1115, 1129F—H. The court
is generally the first, not the last, judge of what is unfair or abusive; its role is not
confined to a back-stop review of the primary decision-maker’s stance or perception:
see in particular Ex p. Guinness plc [1990] 1 QB 146. Unfairness and abuse of power
march together: see (in addition to Coughlan and Begbie) Preston [1985] AC 835, Ex
p. Unilever [1996] STC 681 , 695 and Rashid [2005] INRL 550 paragraph 34. But these
are ills expressed in very general terms; and it is notorious (and obvious) that the
ascertainment of what is or is not fair depends on the circumstances of the case.
Activity 10.2
1. A procedural legitimate expectation is a legitimate expectation to a process or
procedure in advance of a substantive decision being taken, not to the substance
of the decision itself. This is perhaps best explained in the context of the famous
case of R v Liverpool Corporation, ex parte Taxi Fleet [1972] 2 QB 299. In this case,
Liverpool Corporation promised that no additional taxi licences would be issued
without consultation with the current holders of taxi licences. The Corporation
then proceeded to issue the without consultation. In the case, the Taxi Fleet
claimed a procedural legitimate expectation – they were not asking the court
to prevent the Council from issuing additional licences, only asking the court to
prevent the issuing of further licences until the promised consultation had taken
place.
A list of relevant cases and the reasons for the upholding of a procedural legitimate
expectation can be found in Section 10.1.1 of the module guide. In essence, the
courts have generally proven willing to enforce promises to allow consultation,
procedure or process prior to a decision being taken in circumstances where
a legitimate expectation has been created through promise, practice or policy
statement.
2. The courts are more willing to uphold procedural legitimate expectations than
they are willing to uphold substantive legitimate expectations because the cost
of doing so is invariably lower. In the case of a procedural legitimate expectation,
although there may be a cost in terms of time and some financial cost to a
public authority that has to run the promised procedure, such costs are likely
to be relatively limited. A substantive legitimate expectation, however, has the
potential to impose substantial costs on a public authority, as the promise is to the
substance. So, for example, in the case of R v North and East Devon Health Authority,
ex parte Coughlan [2000] 3 All ER 850 (CA) the promise at issue here was not one as
to procedure – the Health Authority had made a promise to Mrs Coughlan that she
could remain in a particular property for life if she agreed to move into it and then
sought to resile from that promise. Mrs Coughlan was seeking the substance of
the promise here – she wanted the court to find that it was unlawful for the Health
Authority to seek to close the property in which she was living and require her to
move again. In this case, the Court of Appeal upheld the substantive legitimate
expectation, thus limiting the freedom of action of the Authority and imposing
substantial costs upon it. The restriction of the authority’s discretion and the
imposition of additional costs may be two factors that deter court from upholding
substantive legitimate expectations in some cases.
Activity 10.3
1. The case law is explained in some detail in Section 10.1.3 of the module guide,
so will not be repeated in great detail here. For the purposes of general
categorisation, it is generally said that a legitimate expectation can be created via
one of the ‘3 Ps’ – promises, practices or policy statements. Perhaps because the
earlier case law justified the upholding of legitimate expectations by reference
to the private law principle of estoppel, the earlier case law tended to be more
focused on promises, although the recent case law has explored the extent to
which administrative practices (such as the adoption of a special tax regime in R v
Inland Revenue Commissioners, ex parte Unilever [1996] STC 681) or policy statements
(such as a policy on the transfer of fishing licences in R v Ministry of Agriculture,
Fisheries and Food, ex parte Hamble [1995] 2 All ER 714) can give rise to a legitimate
expectation. There is now a clear line of case law (outlined in Section 10.1.3 of the
module guide) supporting the idea that promises, practices and policy statements
can all give rise to a legitimate expectation.
2. In general, the courts have been most willing to uphold a clear and unambiguous
promise made by a public official with authority to do so to an individual or a small
group of individuals. Administrative practices and policy statements can also give
rise to an enforceable legitimate expectation but, particularly where substantive
legitimate expectations are at issue, courts are often more unwilling to grant
legitimate expectations based on administrative practice or policy statements
because of the larger sizes of the groups that could potentially rely upon such
practices and statements and the considerable impact that public bodies could
face if such substantive legitimate expectations are upheld.
Activity 10.4
1. Those who express great concern about the impact of substantive legitimate
expectation on the freedom of action of public authorities are likely to be
overstating the case. We can see that the judicial approach to these issues
considers group size, any overriding public policy reason for permitting departure
from the legitimate expectation and the impact of any transitional measures in
determining whether a legitimate expectation should be upheld. Furthermore, in
many cases, where a substantive legitimate expectation is upheld, this does not
mean that the public authority is bound to a particular course of action forever – in
many cases, the public authority will be able to change its policy provided that it
takes steps to give notice to individuals that might be affected and to take steps to
ameliorate particular issues of unfairness.
2. Group size is relevant because in cases of substantive legitimate expectation, the

size of the group that might seek to rely on the legitimate expectation will have
a significant impact on the costs that a public authority might face if a legitimate
expectation is upheld. The judgment of Laws LJ in Niazi [2008] EWCA Civ 755 (para.
[45]) explains why the size of the group seeking to enforce the expectation is likely
to be relevant:
…Though in theory there may be no limit to the number of beneficiaries of a promise

for the purpose of such an expectation, in reality it is likely to be small, if the court is to
make the expectation good. There are two reasons for this, and they march together.
First, it is difficult to imagine a case in which government will be held legally bound by
a representation or undertaking made generally or to a diverse class. As Lord Woolf MR
said in Ex p. Coughlan (paragraph 71):
May it be … that, when a promise is made to a category of individuals who have

the same interest it is more likely to be considered to have binding effect than a
promise which is made generally or to a diverse class, when the interests of those
to whom the promise is made may differ or, indeed, may be in conflict?
The second reason is that the broader the class claiming the expectation’s benefit, the
more likely it is that a supervening public interest will be held to justify the change of
position complained of. In Ex p. Begbie I said this (1130G—1131B):
In some cases a change of tack by a public authority, though unfair from the
applicant’s stance, may involve questions of general policy affecting the public at
large or a significant section of it (including interests not represented before the
court); here the judges may well be in no position to adjudicate save at most on
a bare Wednesbury basis, without themselves donning the garb of policy-maker,
which they cannot wear … In other cases the act or omission complained of may
take place on a much smaller stage, with far fewer players … The case’s facts may
be discrete and limited, having no implications for an innominate class of persons.
There may be no wide-ranging issues of general policy, or none with multi-layered
effects, upon whose merits the court is asked to embark. The court may be able to
envisage clearly and with sufficient certainty what the full consequences will be of
any order it makes.
3. The courts will be willing to allow a decision-maker to depart from a legitimate

expectation that has been created where there is an ‘overriding public interest’.
Such public interest might be found in a range of circumstances. Examples include:
a. In R v Ministry of Agriculture, Fisheries and Food, ex parte Hamble [1995] 2 All ER

714 it was held that there was an overriding public interest allowing departure
from the published policy on transfer of fishing licenses as subsequent
academic research had shown that larger fishing boats (which were generally
the beneficiaries of the policy) caused greater environmental damage than
smaller fishing boats.
b. In In the matter of an application by Geraldine Finucane for Judicial Review

(Northern Ireland) [2019] UKSC 7 Lord Kerr held that a change of political
circumstances could give rise to an overriding public interest. In particular, at
[76] he said:
Where political issues overtake a promise or undertaking given by government,

and where contemporary considerations impel a different course, provided
a bona fide decision is taken on genuine policy grounds not to adhere to the
original undertaking, it will be difficult for a person who holds a legitimate
expectation to enforce compliance with it.
4. Transitional arrangements are measures that are put in place when a public
authority is seeking to change a policy (such as the transitional arrangements put
in place for school pupils affected by the change in the financial support in R v
Secretary of State for Education and Skills, ex parte Heather Charis Begbie [1999]
EWCA Civ 210 or the transitional measures put in place for those most significantly
affected by funding changes for legal advice in Niazi [2008] EWCA Civ 755) in order
to reduce the impact of the policy change on those who might be most heavily
affected by it. The words of Sedley LJ in Niazi at [70] serve to explain the importance
of transitional measures in making a frustration of a legitimate expectation that
the court might otherwise consider unfair to be found fair:
… More typically, however, it will not be the making of a policy change but the
terms on which it is done which are capable of frustrating a legitimate substantive
expectation. That is why, as happened in Hamble Fisheries and has happened here,
government has for many years routinely made transitional provision to cushion those
who would otherwise be unfairly affected by a change of policy. Such provision may
take the simple form of giving prior warning that the change is coming. Where that is
not possible, it commonly takes the form of transitional provisions for the temporary
continuation of certain of the benefits of the policy. The transitional provisions made
here must seem parsimonious and largely arbitrary to the firms affected by them, and
few would dispute that government could have acted more handsomely; but they do
as much as I consider could be legitimately expected to cushion the financial impact
of a perfectly permissible policy change.
Activity 10.5
1. Ultra vires representations can arise in two circumstances. First, is the situation
where a promise is made that the public authority simply did not have the power
to make, such as in Rootkin v Kent County Council [1981] 1 WLR 1186, where the
council could not provide the financial assistance that had been promised as it
did not have the power to do so. Alternatively, there might be other cases where
although the public authority might have the power to fulfil the promise, the
official who made the promise may not have had the authority to make it. An
example of this situation is the decision in Western Fish Products v Penwith District
Council [1981] 2 All ER 204. The courts are very clear about the position in relation to
ultra vires representations – such representations can never be enforced because,
if they were, it would be open to any public authority to expand its powers by
making unlawful promises.
The courts’ policy on ultra vires representations can be very unfair on individuals
who may not have known that the public authority was acting unlawfully, or
that the official concerned had no power to bind the authority but, in English
law, it is not possible for individuals who are negatively affected by an ultra vires
representation to seek any alternative remedy such as compensation.
2. Steele considered the law on substantive legitimate expectation at a relatively

early stage, so some of his concerns, such as the uncertainty about whether or
not detrimental reliance is required (the modern case law would suggest that this
is not always the case) and the circumstances when a public authority can resile
from a legitimate expectation have been fleshed out in greater detail by the cases.
However, Steele’s point about the lack of compensation for those who are affected
by a departure from a legitimate expectation or those who are impacted by an
ultra vires promise still holds true. Would it be an improvement to the current
law if the courts could grant compensation as a remedy to those who have been
treated unfairly as a result of the departure from a legitimate expectation? This
might be better than reliance on a public law remedy to address the unfairness in
some circumstances.
Bell’s article argues that the general view of the legitimate expectation doctrine
as a ‘power constraining’ doctrine is mistaken and that it is more appropriate to
see the doctrine as one that is ‘right conferring’ – i.e. that by creating a legitimate
expectation a public authority confers a legal right on those in whom the
expectation is created to enforce that right. Whether or not Bell is correct, this
article offers an interesting alternative perspective on the usual approach to the
doctrine, where it is seen as another tool in the armoury of the courts to control
abuse of power by public authorities.
Activity 10.6
1. Equality might find its way into judicial review proceedings in three ways. First,
there are some common law cases that demonstrate that equality of treatment
might be part of the principle of legality. Secondly, there are some cases drawn
from Article 14 ECHR that bring issues of quality into domestic judicial review
cases. Finally, there are some cases under the ‘public sector equality duty’ in the
Equality Act 2010, which bring issues of equality into judicial review proceedings.
The relevant cases are set out and explained in Sections 10.2.1–10.2.3 of the module
guide, so will not be repeated here.
2. The main limitation on equality as a ground of review is that of finance – many

appeals to equality under the Human Rights Act 1998 are tied to qualified
Convention rights, so if the public authority can demonstrate that limited state
resources are a cause of the perceived inequality this will often be a successful
argument. See, for example, R (JS) v Secretary of State for Work and Pensions [2015]
UKSC 16. Similar arguments are often deployed in respect of cases surrounding
the ‘public sector equality duty’. It should also be noted that the requirement to
consider the impact of any policy changes on equality under the ‘public sector
equality duty’ is primarily a procedural device and the substantive impact of the
‘public sector equality duty’ is often relatively limited. See, for example, R (on the
application of Bailey) v Brent LBC [2011] EWCA Civ 1586.
Chapter 11
Activity 11.1
1. As explained in Section 11.1 of the module guide, we can identify a number of
justifications for the law on procedural fairness. As outlined in the table in Section
11.1.1 of the module guide, such justifications can be both instrumental and non-
instrumental. Instrumental justifications are based on the value of procedural
fairness to the system of administrative law and administrative justice, whereas
the non-instrumental justifications are based more fundamentally in the concept
of fairness. The instrumental justifications suggest that the law on procedural
fairness improves the quality of public decision-making (because individuals have
the opportunity to participate in the process, provide additional information and
also to press decision-makers to act in accordance with relevant rules) and might
also facilitate judicial review because, if decision-makers have gathered relevant
information and given reasons for their decisions based on the evidence before
them, it should be easier for the courts to determine (for example) whether the
decision-maker has acted rationally or proportionately. A further instrumental
justification lies in the fact that individuals are more likely to be able to determine
whether or not to challenge a decision if they have participated in the decision-
making process, are aware of the information provided to the public authority and
know of the reasons for the decision.
The non-instrumental justification is based more squarely on the concept of
fairness. In essence, the argument is that it is a necessity of fairness that individuals
know the reasons why decisions are taken. This argument is adopted particularly in
the case of Doody v Home Secretary [1994] 1 A.C. 531, where the House of Lords noted
that in a case where the claimant’s liberty was affected, it was a requirement of
fairness that he knew the reasons for his extended detention.
2. The potential disadvantages of imposing rules of procedural fairness lie in what

Endicott describes as process cost and process danger. Process cost refers to
the cost in time and money of following the requirements of fair procedure. This
can be onerous in some circumstances, as where oral hearings are required, or
where detailed reasons must be given, this can extend the amount of time to
make a decision, even though there might be benefits from such procedures in
terms of improved decision-making. The concept of process danger describes a
number of possible undesirable consequences of strong adherence to procedural
requirements. One problem might be that if there are very onerous procedural
requirements, this might impair the ability of public authorities to carry out their
tasks effectively. Furthermore, process danger can arise when a substantively
good decision is rendered unlawful by a minor procedural error. The courts
might sometimes ameliorate these disadvantages by reference to the ‘makes no
difference’ provisions in s.31(3) of the Senior Courts Act 1981 or in cases like Walton v
Scottish Ministers [2012] UKSC 44.
3. Section 11.1.3 of the module guide sets out a model put forward by Loughlin
regarding judicial approaches to procedural fairness. You can read the detail
of it there but the way the courts have dealt with the challenges is primarily
by adopting what Loughlin characterises as an ‘activist informalist approach’,
essentially fitting the procedure to the circumstances of the case, rather than
applying rigid and identical rules in each case.
Activity 11.2
1. It is important for individuals to know the broad substance of the allegations
against them for a variety of reasons but the main reason is that, without such
knowledge of the allegations made against them, it is impossible for them to make
effective representations in relation to their case. This position has been reflected
in a number of judgements, including:
It follows, I think, that the board have a duty to act fairly. They must give the applicant
an opportunity of satisfying them of the matters specified in the subsection. They
must let him know what their impressions are so that he can disabuse them. But
I do not think that they need quote chapter and verse against him as if they were
dismissing him from an office… (Per Lord Denning MR in R v Gaming Board of Great
Britain, ex parte Benaim and Khaida [1970] 2 QB 417 at 430.)
A prisoner’s right to make representations is largely valueless unless he knows the

substance of the case being advanced in sufficient detail to enable him to respond. He
must therefore normally be informed of the substance of the matters on the basis of
which the authority of the Secretary of State is sought. (Per Lord Reed in R (Bourgass) v
Secretary of State for Justice [2015] UKSC 54 at [100].)
2. The difficulty with disclosing all of the evidence and allegations in some cases, or at
least the sources of some of this evidence, is that such disclosure could be contrary
to the public interest. It may be that individuals will be unwilling to provide
information to public authorities in the future, or may jeopardise national security
or the safety of witnesses. If we refer back to the two previous cases, we can see
these sentiments expressed by the courts:
That board was set up by Parliament to cope with disreputable gaming clubs and to
bring them under control. By bitter experience it was learned that these clubs had a
close connection with organised crime, often violent crime, with protection rackets
and with strong-arm methods. If the Gaming Board were bound to disclose their
sources of information, no one would ‘tell’ on those clubs, for fear of reprisals. Likewise
with the details of the information. If the board were bound to disclose every detail,
that might itself give the informer away and put him in peril. But, without disclosing
every detail, I should have thought that the board ought in every case to be able to
give to the applicant sufficient indication of the objections raised against him such
as to enable him to answer them. (Per Lord Denning MR in R v Gaming Board of Great
Britain, ex parte Benaim and Khaida [1970] 2 QB 417 at 431.)
It has to be recognised, however, that authority under rule 45(2) will often be sought
on the basis of information which cannot be disclosed in full without placing at
significant risk the safety of others or jeopardising prison security. Considerations of
that kind were relevant in both of the present cases. There may also be cases where
other overriding interests may be placed at risk. In such circumstances, fairness does
not require the disclosure of information which could compromise the safety of
an informant, the integrity of prison security or other overriding interests. It will be
sufficient to inform the prisoner in more or less general terms of the gist of the reasons
for seeking the authority of the Secretary of State. (Per Lord Reed in R (Bourgass) v
Secretary of State for Justice [2015] UKSC 54 at [103].)
3. Lord Neuberger argues that the Bank ought to have been given the opportunity to
know that the Direction suspending its assets would be made, along with some of the
reasons that justified the Direction being made. In particular, at [181]– 183] he said:
181. On the face of it at least, this was a paradigm case for the giving of prior notice.
(i) The Direction was targeted at just two entities, one of which was the Bank; (ii) the
consequences of giving the Direction and the making of the Order would clearly be
drastic so far as the Bank was concerned; (iii) there was no need for secrecy or great
haste in giving the Direction; (iv) the Direction would come into effect virtually at
once; (v) the reasons for the Direction and Order were all based on the Bank’s dealings
and ownership, so there could have been little doubt but that the Bank would have
had relevant things to say about the proposed direction. On this last point, the Bank’s
knowledge of its customers’ activities, the Bank’s ability to deal with the problem of
unknowingly assisting the programme, and the ownership of the Bank are all points on
which the Bank would have made strong and relevant representations if it had been
given the chance to do so.
182. Despite this, Bank Mellat was given no notice of the Treasury’s intention to give
the Direction against it or to put the Order before Parliament, and therefore it had
no opportunity to put its case as to why such a direction should not be made. The
Treasury raised a number of arguments as to why it was entitled not to give notice to
the Bank of its intention to give the Direction. Some of those arguments were based
on provisions of the 2008 Act; others were based on impracticality.
183. I have no hesitation in rejecting the arguments based on impracticality,

namely that (i) notice would have given the Bank the opportunity to re-arrange
its relationships, (ii) notice would have been ineffective or difficult because of the
Treasury’s reliance on secret material, (iii) notice would have to have been given to
all those who dealt with the Bank, which would not have been realistic. As to those
arguments, I have nothing to add to what Lord Sumption says at paras 31–32.
Activity 11.3
1. When determining whether an oral hearing will be required, or whether written
procedures will be adequate, the courts consider whether or not written processes
will be adequate to serve the objectives of procedural justice. The matters that
impact upon the question of whether an oral hearing would be necessary include
the seriousness of the matter at hand and the question of whether holding an oral
hearing might have any intrinsic value (as in R (on the application of Smith) v Parole
Board [2005] UKHL 1). Factors that might suggest that a written process might be
adequate include where an oral hearing has been offered and declined and a detailed
written process has taken place instead (Lloyd v McMahon [1987] 1 AC 625) or where
the penalty faced by an individual might be quite small and a detailed and structured
written process is available (R (on the application of Thompson) v Law Society [2004]
EWCA Civ 167). The courts always have to be mindful that the process cost of oral
hearings tends to be far greater than that of written hearings, which is why, prior to
the decision in Smith, the Parole Board was reluctant to hold oral hearings.
2. The advantages of an oral hearing in some cases is perhaps best explained by the
speech of Lord Bingham in Smith. At [30]–[31] and [35] he said:
30. In considering what procedural fairness in the present context requires, account
must first be taken of the interests at stake. On one side is the safety of the public,
with which the Parole Board cannot gamble: R v Parole Board, ex p. Watson , above,
at 916–917. On the other is the prisoner’s freedom. This is a conditional, and to that
extent precarious, freedom. In Weeks v United Kingdom (1987) 10 EHRR 293 , para 40,
the European Court recognised the freedom enjoyed by a discretionary life sentence
prisoner on licence as ‘more circumscribed in law and more precarious than the
freedom enjoyed by the ordinary citizen’ but as, nonetheless, a state of liberty for the
purposes of Article 5 of the Convention. The value of freedom to the prisoner, even
when conditional, was acknowledged by the Supreme Court of the United States in
Morrissey v Brewer 408 US 471 (1972) para 12, and by Dickson J, dissenting (although
not on this point), in the Supreme Court of Canada in Howarth v National Parole Board
(1974) 50 DLR (3d) 349 , 358. It is noteworthy that a short-term prisoner who has served
half his sentence and a long-term prisoner who has reached his non-parole date have a
statutory right to be free: a conditional right, but nonetheless a right, breach of which
gives an enforceable right to redress (see R v Governor of Brockhill Prison, ex p. Evans
(No.2) [2001] 2 AC 19).
31. While an oral hearing is most obviously necessary to achieve a just decision in a
case where facts are in issue which may affect the outcome, there are other cases in
which an oral hearing may well contribute to achieving a just decision. The possibility
of a detainee being heard either in person or, where necessary, through some form of
representation has been recognised by the European Court as, in some instances, a
fundamental procedural guarantee in matters of deprivation of liberty: De Wilde, Ooms
and Versyp v Belgium (No.1) (1971) 1 EHRR 373 , para 76; Winterwerp v The Netherlands
(1979) 2 EHRR 387 , para 60; Sanchez-Reisse v Switzerland (1986) 9 EHRR 71 , para 51;
Waite v United Kingdom (Appn No 53236/99, 10 December 2002 ), para 59. Although
ruling in a very different legal context, the Supreme Court of the United States, in a
judgment delivered by Brennan J in Goldberg v Kelly 397 US 254 , 269 (1970) helpfully
described the value of an oral hearing:
Moreover, written submissions do not afford the flexibility of oral presentations;

they do not permit the recipient to mold his argument to the issues the
decisionmaker appears to regard as important. Particularly where credibility and
veracity are at issue, as they must be in many termination proceedings, written
submissions are a wholly unsatisfactory basis for decision. The second-hand
presentation to the decisionmaker by the caseworker has its own deficiencies;
since the caseworker usually gathers the facts upon which the charge of
ineligibility rests, the presentation of the recipient’s side of the controversy
cannot safely be left to him. Therefore, a recipient must be allowed to state his
position orally. Informal procedures will suffice; in this context, due process does
not require a particular order of proof or mode of offering evidence…
35. The common law duty of procedural fairness does not, in my opinion, require the
Board to hold an oral hearing in every case where a determinate sentence prisoner
resists recall, if he does not decline the offer of such a hearing. But I do not think the
duty is as constricted as has hitherto been held and assumed. Even if important facts
are not in dispute, they may be open to explanation or mitigation, or may lose some
of their significance in the light of other new facts. While the Board’s task certainly is
to assess risk, it may well be greatly assisted in discharging it (one way or the other)
by exposure to the prisoner or the questioning of those who have dealt with him. It
may often be very difficult to address effective representations without knowing the
points which are troubling the decision-maker. The prisoner should have the benefit of
a procedure which fairly reflects, on the facts of his particular case, the importance of
what is at stake for him, as for society.
3. As noted above in point 1, the main reason why the courts are reluctant to impose
a right to an oral hearing is that the process cost is often markedly higher than a
written process.
4. Article 6 ECHR has had some impact in the area of oral hearings, although the
impact is perhaps not as profound as in some other areas of procedural justice. It is
clear from cases such as Smith and Osborn that the jurisprudence of the European
Court of Human Rights on Article 6 ECHR influenced the outcome of the cases and
encouraged an expansive approach to oral hearings.
Activity 11.4
1. The courts are reluctant to impose a requirement for legal representation in
respect of all administrative proceedings because of the process cost that this
would bring. This sentiment on the part of the courts is reflected by the dicta set
out below:
Mr Sparrow does not seek to add a right to legal representation before a domestic
tribunal as a fourth ground. But he says that an opportunity to state one’s case means
a fair opportunity, and that now and again a case may raise legal problems of such
complexity and difficulty that no layman could be expected to put his case intelligibly
and no lay tribunal could hope to understand and adjudicate correctly upon the
points raised without the assistance of counsel. The present case, he contends, is
such a one. No doubt it is true that questions of construction such as will arise on this
appeal are more likely to be answered correctly by a court of law with the assistance
of counsel on both sides than by a lay tribunal however conscientious and fair minded
after hearing the points put to them by laymen like Mr Jacques and Mr Holmes.
On the other hand, the rule against legal representation applies to both parties to this
dispute, in that the local association who appear in the role of prosecutors cannot
appear by counsel or solicitor, and the case will be heard by men no doubt of fairness
and integrity and with a great fund of common sense and experience of football and
the rules in question.
The rule enables a decision to be given speedily without either party to the dispute
being at risk of having to pay a heavy bill for costs, and there is always the right
of either party to challenge a decision in the courts if the lay tribunal go wrong in
law (e.g., in adopting a mistaken view on the construction of the rules). Further, if a
decision of a local association appears to have been reached contrary to the true legal
Construction of the rules, and difficult questions of law arise, a club can go direct to
the courts instead of appealing to the FA. (Per Fenton Atkinson LJ at 608–609.)
Before your Lordships’ House, the submissions on behalf of the appellants were as
follows. The basic submission was that a convicted prisoner retains all his civil rights,
except those which are taken away from him expressly or by necessary implication;
and that an ordinary citizen charged with a criminal offence is entitled to legal
representation before the tribunal which hears the charge against him. It was however
accepted that, on an inquiry by the governor of a prison, a prisoner has no right to legal
representation; such a right, it was submitted, applied only to hearings before boards
of visitors, when the prisoner is charged with a criminal offence or the equivalent of
a criminal offence…Everything must depend on the circumstances of the particular
case, as is amply demonstrated by the circumstances so carefully listed by Webster
J in R v Secretary of State for the Home Department, ex parte Tarrant [1985] QB 251 as
matters which boards of visitors should take into account. But it is easy to envisage
circumstances in which the rules of natural justice do not call for representation, even
though the disciplinary charge relates to a matter which constitutes in law a crime, as
may well happen in the case of a simple assault where no question of law arises, and
where the prisoner charged is capable of presenting his own case. To hold otherwise
would result in wholly unnecessary delays in many cases, to the detriment of all
concerned including the prisoner charged, and to wholly unnecessary waste of
time and money, contrary to the public interest. Indeed, to hold otherwise would
not only cause injustice to prisoners; it would also lead to an adventitious distinction
being drawn between disciplinary offences which happen also to be crimes and those
which happen not to be so, for the punishments liable to be imposed do not depend
upon any such distinction. (Per Lord Goff in R v Board of Visitors of the Maze Prison, ex
parte Hone and McCartan [1988] AC 379 (HL) at 390.)
2. Legal representation will now be required in all cases where a person faces criminal
proceedings that could lead to loss of liberty or other such punishment following
Ezeh v UK (2002) 12 BHRC 589 and (2003) 15 BHRC 145, accepted by the decision of
the House of Lords in R (on the application of Greenfield) v Secretary of State for the
Home Department [2005] UKHL 15. Similarly, legal representation might be required
where there are legal complexities that might not be understood by individuals
and on which they may need advice, or where cross-examination of witnesses may
be required. (for example, R v Army Board of the Defence Council, ex parte Anderson
[1992] 1 QB 169 (CA).
3. We can see that the impact of Article 6 ECHR in the field of legal representation
in administrative decision-making has been significant. As explained in the
chronology of cases set out in Section 11.2.4 of the module guide (and particularly
in the highlighted box) and culminating in Ezeh v UK (2002) 12 BHRC 589 and (2003)
15 BHRC 145, accepted by the decision of the House of Lords in R (on the application
of Greenfield) v Secretary of State for the Home Department [2005] UKHL 15, there has
been a considerable expansion in the circumstances where prisoners will require
legal representation, even when facing disciplinary proceedings in prison.
However, we should not take this to mean that there has been a widespread
expansion in the requirements for legal representation. The decision of the House
of Lords in R (G) v Governors of X School [2011] UKSC 30 illustrates the limits of Article
6 ECHR in the context of administrative decision-making. In this case, G was a
schoolteacher who was accused of conducting an inappropriate relationship with
a student. G was denied legal representation in a disciplinary hearing before the
school, which led to his dismissal and a report to the Independent Safeguarding
Authority (ISA), which had the power to prevent G from working as a teacher
again. G had legal representation before the ISA, but argued that as the findings of
fact made by the school informed the disciplinary proceedings before the ISA, he
should have had legal representation at all stages of the process. The majority in
the House of Lords held that this was not the case, as the disciplinary proceedings
in the school did not affect G’s ‘civil rights and obligations’ as defined by Article 6
ECHR and thus did not apply and G had no right to insist on legal representation
in the proceedings before the school. This case is useful because it illustrates the
limits of Article 6 ECHR in the context of administrative law – the wording of Article
6 ECHR (set out in Section 11.3 of the mdoule guide) does not specifically mention
administrative proceedings, so can apply only to administrative proceedings if
they can be characterised as criminal proceedings (as in the prison discipline cases
and similar) or affecting the civil rights and obligations of an individual (as in the
proceedings before the ISA in G).
Activity 11.5
1. The expectations of the law in relation to the cross-examination of witnesses in
administrative proceedings is limited. It has largely been restricted to two main
instances:
a. Cases such as Bushell v Secretary of State for the Environment [1980] 2 All ER 608
(HL) have found that if experts are giving controversial and untested evidence
in proceedings such as planning inquiries, the expert witnesses can be
cross-examined.
b. In R (on the application of Wilkinson) v Responsible Medical Officer of Broadmoor

Hospital [2001] EWCA Civ 1545 it was held that the doctors responsible for
approving the claimant’s detention in hospital could be subject to cross-
examination. The reason here is fairly plain – an impact on the liberty of an
individual is a serious issue and both the common law and Article 6 ECHR
would thus require cross-examination in cases such as these.
2. As with the approach to legal representation and oral hearings, set out above, the
reason why courts are generally restrictive in their approach to cross-examination
in administrative proceedings is that the process cost of permitting such processes
is high. This cost might be amplified in the case of cross-examination because quite
often, if cross-examination is permitted then legal representation may be required,
adding considerable additional formality and cost to the proceedings.
3. The impact of Article 6 ECHR on this area has been more muted than in relation to
oral hearings or legal representation, although from cases like R (on the application
of Wilkinson) v Responsible Medical Officer of Broadmoor Hospital [2001] EWCA Civ 1545
we can see that the courts’ approach has been affected by the requirements of
Article 6 ECHR to some extent.
Activity 11.6
1. The duty to give reasons shares all of the same advantages and disadvantages that
you should have considered when looking at Activity 11.1 – if reasons are given then
this is likely to serve the same instrumental and non-instrumental purposes but
might also create issues of process cost and process danger as a result. As such, it
might be helpful to revisit the material that you looked at for Activity 11.1 here.
2. It is difficult to categorise precisely when a duty to give reasons will be imposed.

In Doody v Home Secretary [1994] 1 AC 531, Lord Mustill said ‘I accept without
hesitation, and mention it only to avoid misunderstanding, that the law does not
at present recognise a general duty to give reasons for an administrative decision.’
This position as regards a general duty seems to be unchanged, although it is
important to note the judgment of Lord Carnwath in Dover District Council v CPRE
Kent [2017] UKSC 79, where he makes a link to the concept of fairness in relation to
the duty to give reasons:
Although planning law is a creature of statute, the proper interpretation of the

statute is underpinned by general principles, properly referred to as derived from the
common law. Doody itself involved such an application of the common law principle
of ‘fairness’ in a statutory context, in which the giving of reasons was seen as essential
to allow effective supervision by the courts. Fairness provided the link between the
common law duty to give reasons for an administrative decision, and the right of the
individual affected to bring proceedings to challenge the legality of that decision. (Per
Lord Carnwath at [54].)
As such, the courts are likely to be influenced by the demands of fairness when
determining whether a duty to give reasons might be imposed. This is particularly
important when considering the second point that Lord Carnwath makes in the
excerpt above – a duty to give reasons is often important because it allows an
individual who is subject to or affected by a decision to challenge that decision.
As we can see from cases like R (on the application of Farrakhan) v Secretary of State
for the Home Department [2002] EWCA Civ 606, [2002] QB 1391, the giving of reasons
might also facilitate judicial review.
In R v Ministry of Defence, ex parte Murray [1998] COD 134 (transcript available in

LexisLibrary), Hooper J summarised some of the authorities to draw out some of
the principles underlying the decision of whether to impose a duty to give reasons
and said:
…Miss Montgomery relied on three cases all concerned with a failure or refusal to give
reasons: R v Civil Service Appeal Board, ex p. Cunningham [1991] 4 All ER 310, [1992] ICR
816 (CA); R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531,
[1993] 3 All ER 92 (HL) and R v Higher Education Funding Council, ex p. Institute of Dental
Surgery [1994] 1 All ER 651, [1994] 1 WLR 242 (Div Ct). In the latter case the two earlier
decisions are analysed at some length by Sedley J giving the judgment of the Court.
The principles to be deduced from those cases may be stated in the following way:
the law does not at present recognise a general duty to give reasons (Doody, at 564 E);
when a statute has conferred on any body the power to make decisions affecting
individuals, the court will not only require the procedure prescribed by statute
to be followed, but will readily imply so much and no more to be introduced by
way of additional procedural standards as will ensure the attainment of fairness
(Cunningham, per Donaldson LJ at 318 quoting Lloyd v McMahon [1987] 1 AC 625,
[1987] 2 WLR 821 at 702–703 of the former report and Doody, at 564F);
in the absence of a requirement to give reasons, the person seeking to argue that
reasons should have been given must show that the procedure adopted of not
giving reasons is unfair (Doody 561A);
there is ’a perceptible trend towards an insistence on greater openness or

transparency in the making of administrative decisions’ (Doody, 561E);
in deciding whether fairness requires a tribunal to give reasons regard will be had
not only to the first instance hearing but also to the availability and nature of any
appellate remedy or remedy by way of judicial review:
the absence of any right to appeal may be a factor in deciding that reasons should
be given (Cunningham, 322j);
if it is ‘important that there should be an effective means of detecting the kind of

error [by way of judicial review] which would entitle the court to intervene’ then
the reasoning may have to be disclosed (Doody, 565 H and also Cunningham, 323a);
the fact that a tribunal is carrying out a judicial function is a consideration in

favour of a requirement to give reasons (Cunningham, 323a) and particularly
where personal liberty is concerned (Institute of Dental Surgery, 263A);
if the giving of a decision without reasons ‘s insufficient to achieve justice’ then

reasons should be required (Cunningham, 323a) as also ‘where the decision
appears aberrant’ (Institute of Dental Surgery, 263A, cited with approval in R v
Mayor, Commonalty and Citizens of the City of London, ex parte Matson (1996) 8
Admin LR 49 at 62);
in favour of requiring reasons are the following factors: ‘the giving of reasons
may among other things concentrate the decision-maker’s mind on the right
questions; demonstrate to the recipient that this is so; show that the issues
have been conscientiously addressed and how the result has been reached; or
alternatively alert the recipient to a justiciable flaw in the process’ (Institute of
Dental Surgery, 256H, cited with approval in ex parte Matson at 71)…
The above is a helpful summary of the principles that courts might apply when
determining whether or not to impose a duty to give reasons.
3. The courts will be reluctant to impose a duty to give reasons where the process
cost of doing so is very high, or where there is a substantial danger to the public
interest or national security.
Cases which illustrate the point might include R (on the application of the Asha
Foundation) v Millennium Commission [2003] EWCA Civ 88, where a body that
received a very large number of applications for funding to be determined in a
very short period was not required to give reasons. In R v Secretary of State for Home
Department, ex parte Adams [1995] 3 CMLR 476 the court held that reasons were not
required for a decision involving the prohibition of the claimant from entering the
United Kingdom due to national security concerns.
We can also return to the judgment of Hooper J in Murray, outlined above, where
he said:
in favour of not requiring reasons are the following factors: ‘it may place an undue
burden on decision-makers; demand an appearance of unanimity where there is
diversity; call for articulation of sometimes inexpressible value judgments; and offer
an invitation to the captious to comb the reasons for previously unsuspected grounds
of challenge’ (Institute of Dental Surgery, 257A);
although fairness may favour a requirement for reasons, there may be considerations
of public interest which would outweigh the advantages of requiring reasons (see
Cunningham, 323b);
the giving of reasons will not be required if the procedures of the particular decision-
maker would be frustrated by a requirement to give reasons, even short reasons
(Cunningham, 323b).
4. Once a duty to give reasons is established, the next question that we must consider
is whether the reasons given are adequate. The question of whether reasons are
adequate is not always easy to determine. In the case of T, the Court of Appeal held
that the Immigration Appeal Tribunal’s response to a request for an extension of
time which simply stated that the claim was ‘out of time’ was not adequate. In his
judgment, Sedley LJ said:
20. But even if it is assumed that this was such a case, the IAT did not give such a
response. They simply repeated to Mr Tofik’s solicitors what the solicitors had already
told the IAT, namely that the application was out of time. The very least they should
have said was that no ground for enlarging time had been advanced.
21. Had the IAT’s letter said this, however, it would have been open to challenge, for in
my judgment the solicitors’ letter did advance brief but perfectly intelligible grounds.
They were that there had been two unexcused slips in the solicitors’ office (failing
to note the appeal deadline and using an out-of-date address for the applicant), and
that the applicant should not be penalised for them. The admission was made with
candour. If the application was to be rejected, the IAT’s letter should have said either
that these facts were not accepted, and why; or that they did not in the IAT’s view
amount to special circumstances within the rule (whether because they were routine
errors or because the client must live with his lawyers’ mistakes); or that, accepting
that there were special circumstances, it was not just to extend the time limit. More
than one of these possibilities, it should be observed, raises difficult questions of law.
22. So whatever reason is given for the refusal of an application for an extension of time,
it cannot simply be ‘out of time’. Such a response would be in place only where a late
application for leave to appeal contained no application at all for an extension of time.
It might also be helpful to consider the word of Lord Reed in Chief Constable, Lothian
and Borders Police v Lothian and Borders Police Board [2005] SLT 315 at [70]:
First, the stringency with which the court requires a statutory duty to give reasons to
be complied with will depend on the court’s view of the intention of the particular
statute, which it will infer from the language of the statute and the context… In
that regard, one relevant question will be whether the purpose of the duty is solely
to provide information about the reasons for the decision, or whether it has other
purposes, such as to affect the decision-making process, or to maintain public
confidence in that process. Secondly, where there is a statutory duty to provide
reasons as part of the notification of the decision to the parties, the court will normally
interpret the legislation as having made the provision of adequate reasons with the
decision a condition of the validity of the decision… In effect, in such a case a just and
legitimate decision cannot be given without the provision of adequate reasons.
5. Elliott’s article argues that although the duty to give reasons has developed
considerably over time, it still lags behind the other elements of the law on
procedural fairness. He argues that the law should adopt a general duty to give
reasons, with a context sensitive approach to the requirements (as in the case of oral
hearings, legal representation, etc. outlined above). He argues that the courts could
address risks of process cost and process danger by using their discretion to withhold
remedies where they believe that the failure to comply with the duty has not
affected the substantive lawfulness of the decision. Elliott’s article is relatively brief
and repays consideration, so do try to read it if you get the opportunity to do so.
Activity 11.7
1. The rule against bias – nemo judex in causa sua – has, at its heart, the idea that
no person who is making a decision should be partial as to its outcome. The
requirement of absolute impartiality is likely to be impossible, as all decision-
makers are likely to have views or implicit biases that might influence their
decisions. This is true of judges, administrative decision-makers and all of us when
we make decisions in our personal lives. If you would like to read a jurisprudential
perspective on this, see Lucy, W. ‘The possibility of impartiality’ (2005) 25 Oxford
Journal of Legal Studies 3. As Lucy suggests, it is difficult for adjudicators to be seen
as being entirely impartial in a number of senses but it is important that there is
impartiality in certain senses. In particular, one might argue that there should be
impartiality in the procedure of decision-making (subject to possible arguments
about process cost and danger) and the attitude of the decision-maker ought to
be open to different outcomes. Furthermore, it is fairly plain that decision-makers
ought not to have a direct personal interest in the outcome of the decision to be
made, as this is almost certain to provide a significant influence on the decision to
be made.
2. The courts have been strict about the prohibition of decision-makers having
personal interests in the outcome of a case because of the heavy influence that
such personal interests could have on the decision-maker and also because there
is a need to ensure that the public have confidence in adjudication and decision-
making, so it is important that the process appears to be fair and impartial, even
where it might be the case that the outcome of a decision has not been affected by
bias.
If we consider the case law, this is made apparent in a number of cases. See, for
example, the speech of Lord Hutton in R v Bow Street Stipendiary Magistrates, ex
parte Pinochet Ugarte (No.2) [2000] 1 AC 119 (HL) at 443–444:
In relation to the allegation made by Senator Pinochet, not that Lord Hoffmann was
biased in fact, but that there was a real danger of bias or a reasonable apprehension
or suspicion of bias because of Lord Hoffmann’s links with Amnesty International, I am
also in agreement with the reasoning and conclusion of Lord Browne-Wilkinson, and I
wish to add some observations on this issue.
In the middle of the last century the Lord Chancellor, Lord Cottenham, had an interest
as a shareholder in a canal company to the amount of several thousand pounds. The
company filed a bill in equity seeking an injunction against the defendant who was
unaware of Lord Cottenham’s shareholding in the company. The injunction and the
ancillary order sought were granted by the Vice Chancellor and were subsequently
affirmed by Lord Cottenham. The defendant subsequently discovered the interest of
Lord Cottenham in the company and brought a motion to discharge the order made
by him, and the matter ultimately came on for hearing before this House in Dimes
v Proprietors of Grand Junction Canal, 3 HL Cas 759. The House ruled that the decree
of the Lord Chancellor should be set aside, not because in coming to his decision
Lord Cottenham was influenced by his interest in the company but because of the
importance of avoiding the appearance of the judge labouring under the influence of
an interest. Lord Campbell said, at pp.793–794:
No one can suppose that Lord Cottenham could be, in the remotest degree,
influenced by the interest that he had in this concern; but, my Lords, it is of the
last importance that the maxim that no man is to be a judge in his own cause
should be held sacred. And that is not to be confined to a cause in which he is
a party, but applies to a cause in which he has an interest. Since I have had the
honour to be Chief Justice of the Court of Queen’s Bench, we have again and
again set aside proceedings in inferior tribunals because an individual, who had
an interest in a cause, took a part in the decision. And it will have a most salutary
influence on these tribunals when it is known that this High Court of last resort, in
a case in which the Lord Chancellor of England had an interest, considered that his
decree was on that account a decree not according to law, and was set aside. This
will be a lesson to all inferior tribunals to take care not only that in their decrees
they are not influenced by their personal interest, but to avoid the appearance of
labouring under such an influence.
In his judgment in Reg. v Gough [1993] AC 646, 659 my noble and learned friend,
Lord Goff of Chieveley, made reference to the great importance of confidence in the
integrity of the administration of justice, and he said:
In any event, there is an overriding public interest that there should be confidence
in the integrity of the administration of justice, which is always associated with
the statement of Lord Hewart CJ in Rex v Sussex Justices, ex parte McCarthy [1924] 1
KB 256, 259, that it is ‘of fundamental importance that justice should not only be
done, but should manifestly and undoubtedly be seen to be done’.
Then referring to the Dimes case, he said, at p.661:
... I wish to draw attention to the fact that there are certain cases in which it has
been considered that the circumstances are such that they must inevitably shake
public confidence in the integrity of the administration of justice if the decision
is to be allowed to stand. Such cases attract the full force of Lord Hewart CJ’s
requirement that justice must not only be done but must manifestly be seen
to be done. These cases arise where a person sitting in a judicial capacity has a
pecuniary interest in the outcome of the proceedings. In such a case, as Blackburn
J said in Reg. v Rand (1866) L.R. 1 QB 230, 232: ‘any direct pecuniary interest,
however small, in the subject of inquiry, does disqualify a person from acting as a
judge in the matter’. The principle is expressed in the maxim that nobody may be
judge in his own cause (nemo judex in sua causa). Perhaps the most famous case
in which the principle was applied is Dimes v Proprietors of Grand Junction Canal
(1852) 3 HL Cas 759 , in which decrees affirmed by Lord Cottenham LC in favour of
a canal company in which he was a substantial shareholder were set aside by this
House, which then proceeded to consider the matter on its merits, and in fact
itself affirmed the decrees. Lord Campbell said, at p.793: ‘No one can suppose that
Lord Cottenham could be, in the remotest degree, influenced by the interest that
he had in this concern; but, my Lords, it is of the last importance that the maxim
that no man is to be a judge in his own cause should be held sacred’. In such a
case, therefore, not only is it irrelevant that there was in fact no bias on the part
of the tribunal, but there is no question of investigating, from an objective point
of view, whether there was any real likelihood of bias, or any reasonable suspicion
of bias, on the facts of the particular case. The nature of the interest is such that
public confidence in the administration of justice requires that the decision
should not stand.
Later in his judgment Lord Goff said, at p.664f, agreeing with the view of Lord
Woolf, at p.673f, that the only special category of case where there should be
disqualification of a judge without the necessity to inquire whether there was
any real likelihood of bias was where the judge has a direct pecuniary interest
in the outcome of the proceedings. However I am of opinion that there
could be cases where the interest of the judge in the subject matter of the
proceedings arising from his strong commitment to some cause or belief or
his association with a person or body involved in the proceedings could shake
public confidence in the administration of justice as much as a shareholding
(which might be small) in a public company involved in the litigation. I find
persuasive the observations of Lord Widgery CJ in Reg. v Altrincham Justices, ex
parte N. Pennington [1975] Q.B. 549, 552:
There is no better known rule of natural justice than the one that a man shall not
be a judge in his own cause. In its simplest form this means that a man shall not
judge an issue in which he has a direct pecuniary interest, but the rule has been
extended far beyond such crude examples and now covers cases in which the
judge has such an interest in the parties or the matters in dispute as to make it
difficult for him to approach the trial with the impartiality and detachment which
the judicial function requires. Accordingly, application may be made to set aside
a judgment on the so-called ground of bias without showing any direct pecuniary
or proprietary interest in the judicial officer concerned.
A similar view was expressed by Deane J in Webb v The Queen, 181 CLR 41, 74:
The area covered by the doctrine of disqualification by reason of the appearance

of bias encompasses at least four distinct, though sometimes overlapping, main
categories of case. The first is disqualification by interest, that is to say, cases
where some direct or indirect interest in the proceedings, whether pecuniary
or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or
prejudgment... The third category is disqualification by association. It will often
overlap the first and consists of cases where the apprehension of prejudgment or
other bias results from some direct or indirect relationship, experience or contact
with a person or persons interested in, or otherwise involved in, the proceedings.
The key here, then, is even in a case such as Pinochet, where there was no
allegation that Lord Hoffmann was biased in fact, but at the same time, in the
context of the facts of the case there was an appearance of bias. Furthermore,
one of the important functions served by the rule against bias is that it
maintains public confidence in the system of the administration of justice.
Although this example is drawn from the realm of judicial decision-making, the
same concerns extend to the realm of administrative decision-making.
3. The courts have considered a number of types or categories of institutional bias.

These are explained in Section 11.5.2 of the module guide but might be summarised
as follows:
a. There are cases, such as R (on the application of Brooke) v The Parole Board [2008]
EWCA Civ 29 that illustrate that in some circumstances, public bodies may not
be sufficiently independent because they are too closely tied to a particular
government department. In the case of Brooke, the Parole Board (the body in
the UK which decides on early release from prison or recall of prisoners who
have been released early) was determined not to be adequately independent
from the Home Office, which provided all of its funding, shared staff and
had a significant role on setting policy. From this, we can see that a lack of
independence in funding and staffing could give rise to institutional bias.
b. Cases such as R (on the application of Al-Hasan) v Secretary of State for the Home
Department [2005] UKHL 13 and Begum (Runa) v Tower Hamlets LBC [2003] UKHL
5, [2003] 2 WLR 788 demonstrate that decision-making structures can lead
to bias. In the Al-Hasan case, a prison disciplinary process led to a prisoner
being punished by the Governor of the prison. The process permitted an
appeal to the Deputy Governor, who was present at the original disciplinary
hearing where the Governor had imposed the penalty. It was held that in the
circumstances, the Deputy Governor was not sufficiently independent and
impartial to be compatible with the requirements of Article 6 ECHR. This might
be contrasted with Begum, where the House of Lords held that, even insofar as
it might be argued that an appeal to the manager of the individual who made
a decision in relation to the provision of council housing was a breach of the
rule against bias, the fact that an appeal could be made to the County Court on
specific grounds was enough to address any possible issues of bias.
c. In R (on the application of Lewis) v Redcar and Cleveland BC [2008] EWCA Civ 746
and R (Persimmon Homes) v Vale of Glamorgan Council [2010] EWHC 535 it was
held that it was lawful for councillors who had expressed a view on planning
applications that had been made to the council were not prevented by the
rule against bias from participating in the decision of the council’s planning
committee and making a decision on the application. In R (Persimmon Homes) v
Vale of Glamorgan Council [2010] EWHC 535, at [116]–[117], Beatson J said:
116. The starting point in assessing Mr Davies’ submissions is to recognise that, although
in some cases predetermination and the appearance of bias have been treated together
(see National Assembly of Wales v Condron [2006] EWCA Civ 1573; R (Lewis) v Redcar
and Cleveland BC [2008] EWCA Civ 746, [2009] 1 WLR 83) they are distinct concepts.
Predetermination is the surrender by a decision-maker of its judgment by having a closed
mind and failing to apply it to the task. In a case of apparent bias, the decision-maker
may have in fact applied its mind quite properly to the matter but a reasonable observer
would consider that there was a real danger of bias on its part. Bias is concerned with
appearances whereas predetermination is concerned with what has in fact happened.
117. As Wade and Forsyth observe (Administrative law 10th ed. p.390) ‘the significance
of the conceptual distinction between predetermination and the apprehension of bias
lies in the fact that administrative decision-makers, unlike judicial decision-makers,
will often, quite rightly, be influenced, formally or informally, in their decision by
policy considerations’. It was because of this that in R (Lewis) v Redcar and Cleveland BC
Longmore LJ stated (at [109]) that ‘the test of apparent bias relating to predetermination
is an extremely difficult test to satisfy” and Pill LJ stated (at [71]), albeit with reference to
the position of councillors rather than officers, that “the importance of appearances is…
generally more limited in this context than in a judicial context’.
4. It has been held in a number of cases such as Alconbury [2001] UKHL 23 and Begum
(Runa) v Tower Hamlets LBC [2003] UKHL 5, [2003] 2 WLR 788 that, even where
there might be a possible breach of the rule against bias, there may also be
circumstances where, if an appeal to an independent and impartial tribunal is
available, or it is possible to make a claim for judicial review, then these processes
might serve a suitable corrective to any possible bias. In Alconbury, the corrective
was judicial review, whereas in Begum, it was appeal (on grounds defined in
statute) to the County Court.
Activity 11.8
1. The current test for bias is found in Porter v Magill [2001] UKHL 67 in the speech of
Lord Hope at [103], when he said:
103. I respectfully suggest that your Lordships should now approve the modest
adjustment of the test in R v Gough… It expresses in clear and simple language a test
which is in harmony with the objective test which the Strasbourg court applies when
it is considering whether the circumstances give rise to a reasonable apprehension
of bias. It removes any possible conflict with the test which is now applied in most
Commonwealth countries and in Scotland. I would however delete from it the
reference to ‘a real danger’. Those words no longer serve a useful purpose here,
and they are not used in the jurisprudence of the Strasbourg court. The question is
whether the fair-minded and informed observer, having considered the facts, would
conclude that there was a real possibility that the tribunal was biased.
This has developed from the test in R v Gough [1993] AC 646, through the process
outlined in Figure 11.3 of the module guide.
2. Atrill’s main point is that the test in Porter v Magill [2001] UKHL 67 and, in particular,
its creation of the ‘fair minded and informed observer’ test creates an abstract
person who is difficult for a court to create and apply consistently. In particular (see
p.283), the way in which the test has subsequently been developed encourages the
court to create a hypothetical individual who is specialist and has great knowledge
of administrative systems, rather than constructing the hypothetical individual
as a layperson. By imputing such knowledge of administrative systems to the
hypothetical individual concerned, it is likely that such knowledge would make the
hypothetical individual less inclined to believe that decisions might be biased. This
approach is, according to Atrill (p.283) ‘inherently conservative’.
Activity 11.9
1. In Helow v Advocate General for Scotland [2008] UKHL 62, Lord Hope defined the
‘fair-minded and informed observer’ in the paragraphs outlined in Section 11.5.4 of
the module guide. Many feel that the test is excessively complex due to the range
of imputed characteristics ascribed to the ‘fair-minded and informed observer’, as
this results in a test that is ever more difficult for courts to conceptualise and apply
in a certain and consistent manner.
2. One might argue that this complexity exacerbates the problems that were
identified by Atrill in his article discussed in point 2 of Activity 11.8.
Chapter 12
Activity 12.1
1. In table in Section 12.1 of the module guide, the jurisdiction of the ombudsmen is
outlined in some detail. It is important to revise this material, with particular focus
on the need for a referral from the MP for the PCA, compared to a direct method
of access for the LGO, the fact that both ombudsmen are not able to consider
complaints from those with access to alternative remedies unless it would be
unreasonable to expect them to do so and that in the case of the PCA, it is only
possible for the PCA to consider complaints relating to those bodies listed in
Schedule 2 of the 1967 Act. The PCA is barred from investigating matters covered in
Schedule 3 of the Act and the LGO cannot investigate matters to which Schedule 5
of the Act applies. The legal detail of this is explained in the table in Section 12.1 of
the module guide.
2. The limitations contained in the relevant Schedules are as follows:
Limitations in Schedule 3 PCA Act 1967 Limitations in Schedule 5 LGA 1974

Matters relating to international relations. The commencement or conduct of civil
or criminal proceedings before any court
of law.
Action taken outside the UK territory on Action taken by local authorities in
behalf of the government (other than connection with the investigation or
consular functions). prevention of crime.
Action taken in relation to the UK’s Contractual or commercial transactions
dominions. of local authorities, other than
transactions in relation to land.
Action taken under the Extradition Act Personnel matters of any kind.
2003.
Actions relating to the investigation of Matters in relation to education and
crime. support of schools.
The commencement or conduct of civil Action in relation to the provision or
or criminal proceedings before courts in management of social housing.
the UK, or action before any international
courts.
Action taken by court or tribunal officials Schedule 5A also adds an exclusion
under judicial authority. of any matter that can be the subject
of a complaint to the Health Service
Ombudsman.
Exercises of the prerogative of mercy, or
the decision of the Secretary of State to
make references to relevant courts.
Action taken on behalf of the Secretary
of State in relation to the National Health
Service.
Actions taken in matters relating to
contractual or commercial transactions of
government departments or authorities,
other than in cases of compulsory
purchase.
Disciplinary or employment matters in
relation to public servants.
The grant of honours, awards or privileges
by the Crown.
Actions taken outside the court system
under judicial authority.
The question of whether or not all of these exclusions are satisfactory is an open
one but the reality is that the reason why many of these issues are excluded is
either because of the need to protect the public interest in matters that are of
‘high’ public policy (such as the exclusion of the investigation of international
relations), or there are matters that might be open to appeal or redress through
other routes (such as personnel or employment matters, which might be the
subject of action in employment law via the Employment Tribunals, or matters in
relation to education and the support of schools, which might be subject of action
before the First Tier Tribunal in some cases.
The most controversial exclusion is perhaps that of contractual or commercial

matters, as there are few accountability mechanisms available in this area
and government decisions in relation to contractual and commercial matters,
including public procurement, might have a substantial impact on individuals. It
might therefore be argued that the broad exclusion of contractual and commercial
matters is excessive.
3. The ‘MP filter’ was introduced as a temporary measure as a result of
recommendations in the Whyatt Report. The intention was to allow MPs to serve
as a ‘filter’ for cases, thus protecting the PCA from an excessive case load and it
was also believed that the ‘MP filter’ would have value as it would make MPs aware
of the concerns and issues facing their constituents and would permit MPs to use
their influence to address grievances, rather than referring them to the PCA, thus
adding further potential for the redress of the grievance. Over time, the number of
complaints referred to the PCA have grown considerably and the efficacy of the MP
filter has been questioned by some.
The possible disadvantages of the ‘MP filter’ include the fact that there might be
as many different approaches to referral as there are MPs, so that 650 different
approaches might be taken to referral, or alternatively if MPs fear inconsistency,
they might just refer all complaints that they receive. It is also argued that the ‘MP
filter’ slows down the complaints process, as it is necessary for MPs to consider
the complaint and make a referral before the PCA can then start to address the
complaint.
4. Neither the PCA nor the LGO have an ‘own initiative’ power of investigation.
This might be considered to be a major weakness. The reason for this is that it is
possible that the PCA or LGO might receive a large number of individual complaints
on a particular issue, or might see a pattern of complaints over a number of
years. This could suggest a systemic problem, that is then worthy of a broader,
general consideration of maladministration in a particular area. However, the
lack of ‘own initiative’ investigation means that this is not ordinarily possible.
Those who believe that the ombudsmen should not have an ‘own initiative’
power of investigation generally argue that the proper role of the ombudsman
in the UK system is to deal with individual complaints and provide redress of
grievance. However some, such as Harlow and Rawlings, might suggest that this
is to ignore the possible ‘fire watching’ function of the ombudsman – in essence,
ombudsmen could be very important to the improvement of the system of
public administration but this is achievable only if they have powers such as ‘own
initiative’ investigation.
Activity 12.2
1. The concept of maladministration is not an easy one to define. The first definition
that one might offer is set out in the ‘Crossman Catalogue’, which is quoted in
Section 12.1.1 of the module guide. This was, since it was drawn from a response
to a question in the Parliamentary debates during a passage of the PCA Act 1967
through Parliament, a starting point.
A later effort to define maladministration can be found in the Public Administration

Select Committee annual report of the Parliamentary Commissioner for
Administration 1993–1994 (HC 1993–1994), where Sir William Reid, at p.290, sought
to define the concept as:
…rudeness; an unwillingness to treat an individual as a person with rights; a refusal

to answer reasonable questions; neglecting to inform an individual on request of
his or her rights or entitlement; knowingly giving advice which is misleading or
inadequate; ignoring valid advice or overruling considerations which would produce
an uncomfortable result for the person overruling; offering no redress or manifestly
disproportionate redress; showing bias whether because of colour, sex, or any other
grounds; an omission to notify those who thereby lost a right of appeal; a refusal to
inform adequately of the right of appeal; faulty procedures; the failure to monitor
compliance with adequate procedures; cavalier disregard of guidance which was
intended to be followed in the interest of the equitable treatment of those who use a
service; partiality; and failure to mitigate the effects of rigid adherence to the letter of
the law where that produces manifestly inequitable treatment.
We might also say that the Principles of good administration, Principles of good
complaint handling and Principles for remedy all offer some insight into what the
maladministration concept has grown to be in the modern context, as failures to
comply with these principles are likely to be considered to be maladministration.
2. The reason why the maladministration concept is not defined in legislation is
because any attempt at legislative definition is likely to limit the concept and
prevent it from developing in light of changes in administrative practice and
what the ombudsmen learn about maladministration in the course of their
investigations. As such, the concept has always been left open, with definitions
flowing from the ombudsmen themselves.
3. The Principles of good administration and allied documents serve a number of

purposes. As noted above, in part they help us (and public authorities) to define
the maladministration concept. The Principles are also important because
they offer some guidance to public authorities on how they might improve
their administrative practices – they are a repository of good practice. Finally,
the Principles might serve as an element of the ‘fire watching’ function of the
ombudsman. It may not be possible to carry out ‘own initiative’ investigations but,
if learning from systemic failures is included in the Principles, then it may be that
public authorities are encouraged to address some of the issues indirectly.
Activity 12.3
1. The ombudsmen are not able to offer legally enforceable remedies. The ‘remedies’
are political in nature – in cases where the ombudsmen carry out investigations
they produce reports and the reports may contain recommendations, both as
to remedies for individual complainants and more generally in relation to future
administrative practice. If the recommendations in the report are not followed by
public authorities then the remedies are political, in the sense that the PCA can
make a special report to Parliament under s.10 of the PCA Act 1967 and the LGO’s
reports must be considered by the full council and if recommendations are not
followed, must be publicised in accordance with the provisions of ss.30 and 31 of
the LGA 1974. Greater legal detail on this issue is explained in Section 12.1.2 of the
module guide.
2. Some argue that ombudsmen cannot be effective if they cannot require public
bodies to comply with their recommendations. However, if the recommendations
of the ombudsmen are given the force of law, the distinction between the
courts and their work in judicial review, appeals to tribunals (where available)
and the ombudsmen becomes increasingly blurred. In providing for a more
informal approach, with recommendations that do not have the force of law, the
ombudsmen provide an alternative means of grievance redress based on a broad
concept of maladministration. If the recommendations had the force of law, it
is likely that the processes, recommendations and maladministration concept
would all need to be more closely defined. This might benefit some complainants
who would achieve an enforceable remedy but might undermine many of the
broader objectives of the ombudsman system outlined above. It is also important
to note that there is a very high compliance rate with the recommendations of the
ombudsmen. It is difficult to gain systematic data on the compliance rate in the
case of the LGO but the PCA has made use of the special report system only very
rarely, with seven made since 1967. Compliance in such systems is not based upon
legal enforceability or the possible threat of the use of political sanction but is
reliant upon the authority of the ombudsman’s role and the respect for the office.
3. The role of the courts in the possible enforcement of the recommendations of

the ombudsmen is an indirect one. The four most important cases on this issue
are considered in Section 12.1.2 of the module guide. The first thing to note is that
the judicial review cases relating to failure to follow the recommendations of
the ombudsmen are all claims arguing that it is unreasonable (in the Wednesbury
sense) or otherwise unlawful for a public authority to refuse to follow the
ombudsman’s recommendations. We can see that in R (Elias) v Secretary of State
for Defence [2006] EWCA Civ 1293 the Court of Appeal held that the existence of
a report finding maladministration may be relevant evidence in judicial review
proceedings where the claimant is arguing that there was unlawful discrimination
but this is not conclusive. The subsequent cases of R (Bradley) v Secretary of State
for Work and Pensions [2008] EWCA Civ 36 and R (EMAG) v HM Treasury [2009] EWHC
2495 (Admin) both find that a refusal to follow the recommendations of the
ombudsman might be challenged in judicial review but it is not per se unlawful for
a public authority to refuse to follow recommendations of the PCA. In Bradley, the
Court of Appeal found that the authority’s refusal to follow the recommendations
was subject to rationality review on Wednesbury grounds.
In the case of the LCA, the courts have been more willing to engage in rigorous
judicial review in R (Gallagher) v Basildon District Council [2010] EWHC 2824 (Admin).
In this case, the court held that it was unlawful for a local authority to refuse to
follow recommendations of the LGO as it could not demonstrate any good reasons
for its refusal.
Activity 12.4
1. It is difficult to determine the precise effectiveness of judicial control of the
ombudsmen because there are relatively few claims for judicial review to consider.
However, it is important to note that the courts have generally proven unwilling to
review errors made by the ombudsmen ‘within jurisdiction’, such as decisions over
the nature of recommendations and the scope of any redress (see R v Parliamentary
Commissioner for Administration, ex parte Dyer [1994] 1 All ER 375), the process of
carrying out the investigation or finding evidence, or the exercise of the discretion
over whether to investigate a complaint (see Re Fletcher’s Application [1970] 2 All
ER 527). This is perhaps unsurprising, as the ombudsmen are expert bodies and
specialists in relation to their work, so the courts are likely to be reluctant to
interfere in the exercise of powers granted to them in statute.
2. The circumstances in which the courts will certainly control the ombudsmen are
those where the error is ‘going to’ the jurisdiction. The case of R v Commissioner for
Local Administration, ex parte Croydon London Borough Council [1989] 1 All ER 1033 is a
good example. Here, the court quashed a report and recommendations of the LGO
because the claimants had access to a legal remedy and it was not unreasonable
to expect them to pursue this. In R v Commissioner for Local Administration, ex
parte Eastleigh Borough Council [1988] 3 WLR 113 the Court of Appeal held that
recommendations could be quashed where the report was unable to demonstrate
a factual basis for the findings. In R v Parliamentary Commissioner for Administration,
ex parte Balchin (No.1 and No.2) [1998] 1 PLR 1 and [2000] 2 LGR 87 respectively,
the court held that the PCA had acted unlawfully by delivering a report and
recommendations without taking account of all relevant factors.
Activity 12.5
1. A number of reforms have been suggested, the most important are as follows:
a. Some argue that the recommendations of the ombudsmen should have the
force of law. Arguments against this are outlined in point 2 of the answer to
Activity 12.2.
b. Some argue that it would be better if the ombudsmen were integrated into
a coherent whole (described by the government’s proposals in advance of
the Public Service Ombudsman Bill as a ‘one stop shop’. This would have the
advantage of allowing members of the public to contact a single ombudsman
service, with no potential for any confusion over whether the PCA or LGO has
jurisdiction in relation to a particular matter.
c. Some have argued that the ombudsmen should have the ability to launch an
‘own initiative’ investigation.
d. Some have argued that some of the restrictions on the matters that can be
investigated (particularly the restrictions on investigation of contractual
and commercial matters, outlined above in point 2 of Activity 12.1) should be
reduced or removed.
e. It is often argued that the ‘MP filter’ should be removed for the PCA.
2. It is a matter for your discretion which of the matters you think are most
important. You could try and prioritise the issues outlined in the previous answer,
or you may have some additional reforms of your own.
3. The Draft Public Service Ombudsman Bill, which has never been put through the
legislative process, suggests a number of important reforms, including bringing the
different ombudsmen together into a single office and removing the ‘MP filter’ for
the PCA. However, one might argue that the proposed reforms are unsatisfactory in
some senses because there is still no ‘own initiative’ investigation, the restrictions
on the matters that can be investigated and the exclusion of jurisdiction where
alternative remedies are available are still in place and there is no endeavour to
make remedies enforceable. One might argue that rather than being a radical
reform, the Draft Public Service Ombudsman Bill is an incremental change.
Chapter 13
Activity 13.1
1. Tribunals are an important part of the framework of administrative justice in the
United Kingdom. If we think about the approach to redress of grievance as a whole,
they hear many more cases than the courts hear in judicial review and thus, in
terms of volume of decisions, play a very important role. The tribunal system, when
considering the volume of cases heard, is also a cheaper way of delivering justice
in these cases – proceedings are less formal, legal representation is not always
required and the cases are generally heard and disposed of rapidly.
a. There is a large number of tribunals in existence. Many of these have now been
pulled together into the tribunal structure created by the Tribunals, Courts
and Enforcement Act 2007 but some remain outside that structure. You do not
need to know the precise technical detail of jurisdiction but it is perhaps fair
to say that tribunals enjoy jurisdiction to hear appeals in the areas of public
administration that are likely to create the largest number of grievances. For
the First-tierTribunals, the areas of jurisdiction are found in the structure chart
on the UK Judiciary website.
b. The volume of cases received in 2018/2019 by the First-tier Tribunals was

around 306,000. In contrast, 3,000–4,000 judicial review cases are lodged
annually and a fair proportion of these cases will be filtered out due to lack
of standing or other procedural bars. As such, the tribunals hear a far larger
number of cases than the courts hear in judicial review, although the functions
of the two systems are different. Tribunals generally hear appeals against
administrative decisions, whereas the courts hear claims of judicial review,
examining the legality of administrative decisions.
c. Tribunals serve a vital purpose in the system of administrative justice. They

provide a crucial means of providing an independent means of appeal from
administrative decisions in a number of areas that have significant impact
on the lives of individuals, such as educational support, social security,
immigration and asylum and information rights.
2. Tribunals are similar to courts in the sense that they engage in adjudication
in legal disputes. After the Tribunals, Courts and Enforcement Act 2007 (TCEA
2007), the First-tier Tribunals are also similar to courts in the sense that they
have an independent, established judiciary. Tribunals and courts can offer legally
enforceable remedies. The major differences between tribunals and courts is
that tribunals have an approach that is more inquisitorial, whereas courts are
more adversarial. Tribunals have judges that are experts in the field of decision-
making where they operate, whereas judges serving in judicial review cases will
have a more generalist knowledge. Tribunals may also have lay members, who sit
alongside the judges, whereas this is not the case in judicial review.
The major difference between tribunals and the courts in judicial review is that
tribunals are designed to hear administrative appeals, so can examine both the
merits and the legality of the decision, whereas the courts in judicial review are to
consider only the legality of the decision.
3. The Tribunals, Courts and Enforcement Act 2007 is important because it created the
new tribunal structure of the First-tier Tribunals (FTT) and the Upper Tribunal (UT)
as an appeal body from the FTT. It also placed the tribunal judiciary on a statutory
footing, securing their independence (previously, tribunal judges had often
been civil servants from inside government departments). The TCEA 2007 is also
important as it creates a clear path for appeals, with the structure generally being
that the UT hears all appeals from the FTT and, furthermore, the UT also enjoys
a limited judicial review jurisdiction by virtue of ss.15–21 of the Act. The judicial
review jurisdiction is limited to matters transferred to it by Statutory Instrument
(most notably immigration and asylum judicial review cases) or cases transferred
to it by the High Court. This clear path for appeals also assists the system as a whole
to deal with cases rapidly.
Activity 13.2
1. The Upper Tribunal was created as a specialist appellate body to deal with
appeals and some judicial review claims arising from the FTTs. It is also granted an
additional judicial review jurisdiction alongside to the judicial review in relation
to certain matters coming from the FTTs – s.19 of the TCEA creates the potential for
matters to be transferred from the High Court to the UT in appropriate cases.
2. Lord Carnwath’s major points are:
u The Upper Tribunal has powers that are at least as extensive as the
Administrative Court within its jurisdiction.
u He notes that specialism of the judges is an important feature of the Upper

Tribunal –
The legislature has thus recognised the advantages, particularly in relation

to complex welfare or regulatory schemes, of supervision by judges who are
specialists in the particular law and practice under review. (p.57).
u He notes that –
…it is possible to consider how the Upper Tribunal might develop a role which
goes beyond the traditional limits of judicial review, as practised by the courts.
Even if the jurisdiction of the Upper Tribunal is limited to appeals on points of
law, there is scope for it to develop a more extensive supervisory role, which
may cross the traditional boundaries between law and fact as understood in the
courts. (p.58).
u He argues that the UT has a vital role in providing guidance to the FTTs – “
Guidance may be required not only on issues of law, but also on general issues of
principle or practice as to the application of the law to typical factual situations
within the jurisdiction. There is a long history of an expansive approach being
taken by specialist appellate tribunals to the provision of such practical
guidance. (p. 61).
u On guidance, he suggests that –
It is their [the UT’s] role to provide guidance on issues of fact or law relevant to
the exercise of the specialist jurisdiction. In doing so they are able to draw on the
practical experience of their fellow tribunal judges and expert members. (p. 67).
3. Laurie argues that an assessment of the position in relation to the Upper Tribunal in
2012 would suggest that some of Lord Canwath’s hopes for the Upper Tribunal set
out in his article above have not been met. In particular, she notes that the courts,
whether in judicial review or permission to appeal cases (in the Court of Appeal),
have often ignored the specialism of the UT and have been willing to review or
permit appeal from decisions that appear to relate to its specialist knowledge
(pp.296–299). She also notes that the courts have been willing to engage in judicial
review of the UT’s decisions on a relatively regular basis (pp.299–303).
Her final conclusion is as follows:
It has been contended that while judicial endorsements of the principle of respecting
decisions of expert tribunals abound, in practice the higher appellate courts have
maintained significant room for manoeuvre in their oversight of these bodies. The
attraction and legitimacy of allowing the Upper Tribunal to develop a distinctive role
and jurisprudence has been identified as its potential to articulate more fully the
competing values associated with the concept of administrative justice. In particular, it
has been argued that it could make a significant contribution to the development of a
coherent jurisprudence in relation to the application of a proportionality test, not least
given the apparent reluctance of the higher appellate courts to perform this important
function. Significant challenges face the Upper Tribunal, particularly the retention and
further development of expertise in its multi-jurisdictional remit. Indeed, it has been
questioned whether it is even possible to speak of a single tribunal justice given the
significant disparities between the different areas within its control. (p.309).
Activity 13.3
1. Inquiries might have multiple functions. Public inquiries might be used to
investigate matters of national interest, such as major health crises, killings or
unlawful action by state authorities or to investigate accidents or other incidents.
Coroners have the power to open inquests where the death of an individual or
individuals is accidental or unexplained and this is a form of inquiry that is also
open to the public. The final form of inquiry that is regularly undertaken in the UK
is a planning inquiry, which can be local or national, depending on the scale of the
project being considered. Examples of significant public inquiries include:
u The Scott inquiry – a large public inquiry into the ‘Arms to Iraq’ scandal, where
it was alleged that the British government had permitted arms to be exported
to Iraq at a time when this was not permitted by UK law or international
agreements (see Endicott, 13.13).
u The Leveson inquiry – an inquiry into ‘phone hacking’ by British newspapers,

which uncovered considerable evidence of invasions of privacy by various
newspapers and recommended reforms to the regulation of the press (see
Endicott, 13.13).
u The Savile inquiry – an inquiry into the actions of the British Army and
intelligence services in relation to ‘Bloody Sunday’, which was a terrorist
incident in Northern Ireland.
u The public planning inquiry into the building of Terminal 5 at Heathrow Airport.
This took eight years and led to considerable criticism of the UK’s system of
planning inquiries. It might be seen as a good example of process cost and
process danger in practice!
2. The procedure for ordering a public inquiry under the Inquiries Act 2005 is
criticised because it is argued (see for example the article by Requa referred to in
Section 13.2 of the module guide) that the power to set the structure and terms
of reference for the inquiry, the appointment of the members of the inquiry panel
and to suspend or end the inquiry is heavily controlled by the Minister setting up
the inquiry. The resulting inquiry may, it is then argued, run the risk of becoming
heavily influenced by the government. Furthermore, the Minister setting up the
inquiry has considerable potential to redact the report and has substantial control
over the budget available for running the inquiry. This has the potential to lead to a
perceived lack of independence. For more on this, see the introduction to Requa’s
article at pp.404–405.
3. Beatson argues that serving judges should only be used to chair inquiries in
certain circumstances. He argues that there might be a number of reasons why it is
appropriate to use judges:
u It might be appropriate to use judges where the judges have appropriate skills
– in particular, where inquiries need to evaluate a lot of evidence, or to test
evidence, then judges may have the best set of skills to do this effectively.
u Judges might give inquiries appropriate independence and impartiality
(although N.B. the concerns about inquiries under the Inquiries Act 2005 noted
above).
u Judges might add authority to an inquiry report, drawn from respect for them
and their office.
u Judges might bring ‘closure’ to a controversy or issue by virtue of their skills,

authority and ability to produce a strong report.
Beatson noted, however, that there are risks to using judges to chair public
inquiries and safeguards ought to be put into place. At p.252 of his article, he
argues:
If the Government nevertheless proposes that a judge be used there should be some
check that this is appropriate in the circumstances of the particular inquiry. While
the initiative will naturally lie with Government, perhaps with the participation of
the legislature, it should not be for government alone to choose the judge who is
to chair the inquiry or to determine its terms of reference. The Head of the Judiciary
should either, as happens in Israel, appoint the judge who is to serve, or there should
be a requirement that the Head of the Judiciary and the relevant Government
Minister concur in the appointment. While the terms of reference are primarily for
Government, there should also be a real opportunity for the Head of the Judiciary and
the individual judge to have some input into the terms of reference.
4. In his article, Lord Thomas suggests the following reforms:
u Lord Thomas does not believe that judges should never be used to chair public
inquiries, but notes, at p. 234: “
…where an inquiry is concerned with ‘alleged failures of government or the

political system’, [s]omeone other than a judge might be better placed to carry
it out. I agree that where an inquiry is required into a matter of social or political
policy (and I emphasise the word policy) or a political issue, it may well be more
apt for a skilled lawyer and/or politician to conduct the inquiry.
u He argues that it would be appropriate for an ‘Inquiries Unit’ to be set up to

support the running of public inquiries.
u He argues that there ought to be strict time limits applied to inquiries, other
than in exceptional circumstances. This is driven by a substantial history of
inquiries running for long periods of time.
u He argues that there ought to be a stronger control over evidence and

disclosure of documents, etc. in inquiries. History suggests that inquiries
have often been very open to hearing evidence and gathering documentary
evidence but the net effect of this has been to add to the cost of inquiries and
the time taken to complete them.
u There ought to be greater control over cost, as some inquiries have cost a great
deal of money. Lord Thomas gives the example of the Savile inquiry, which cost
£192 million and went on for 12 years.
u There should be closer control over the terms of reference of an inquiry, in

order to add focus. This should then have the advantage of reducing the cost
and time taken.
Chapter 14
Activity 14.1
1. As noted in Section 14.1 of the module guide, with the quote from the Crown
Proceedings Act 1947, s.2(1), public authorities do not enjoy and special immunity
from actions in contract, tort or restitution. They can be liable like any other
individual.
2. The main ways in which public authorities might face liability is best explained by
Lord Browne-Wilkinson in X v Bedfordshire County Council [1995] 2 AC 633 at 730–731:
The question is whether, if Parliament has imposed a statutory duty on an authority to

carry out a particular function, a plaintiff who has suffered damage in consequence of
the authority’s performance or non-performance of that function has a right of action
in damages against the authority. It is important to distinguish such actions to recover
damages, based on a private law cause of action, from actions in public law to enforce
the due performance of statutory duties, now brought by way of judicial review. The
breach of a public law right by itself gives rise to no claim for damages. A claim for
damages must be based on a private law cause of action. The distinction is important
because a number of earlier cases (particularly in the field of education) were
concerned with the enforcement by declaration and injunction of what would now be
called public law duties. They were relied on in argument as authorities supporting the
plaintiffs’ claim for damages in this case: I will consider them in a little more detail later.
Private law claims for damages can be classified into four different categories, viz.: (A)
actions for breach of statutory duty simpliciter (i.e. irrespective of carelessness); (B)
actions based solely on the careless performance of a statutory duty in the absence
of any other common law right of action; (C) actions based on a common law duty of
care arising either from the imposition of the statutory duty or from the performance
of it; (D) misfeasance in public office, i.e. the failure to exercise, or the exercise of,
statutory powers either with the intention to injure the plaintiff or in the knowledge
that the conduct is unlawful.
3. There is no automatic availability of damages in cases where public authorities can

be shown to have acted unlawfully. This is reinforced by s.31(4) of the Senior Courts
Act 1981, which provides:
4. On an application for judicial review the High Court may award to the applicant
damages, restitution or the recovery of a sum due if–
a. the application includes a claim for such an award arising from any matter to
which the application relates; and
b. the court is satisfied that such an award would have been made if the claim
had been made in an action begun by the applicant at the time of making
the application.
As such, a court can only grant damages in judicial review cases if the claimant can
demonstrate that they would have been successful in receiving these in a private
law action. Unlawful action alone is not sufficient to give rise to liability – it is
necessary to demonstrate either that unlawful action is also tortious, or that the
unlawful action is a breach of a Convention right that gives rise to Human Rights
Act damages. This point is reiterated by Lord Wilson JSC in Lee-Hirons v Secretary of
State for Justice [2016] UKSC 46 at [42]–[43]:
42. As a result of the conceded breaches, the claimant suffered no pecuniary loss. But
in his evidence, unchallenged by the Minister, he says that in the months following
his recall to hospital he suffered great distress. Nevertheless, as one would expect, he
attributes his distress to the recall itself. He does not identify the failure for 12 days to
have provided him with the reasons for it as an additional cause of it and, although
one may infer that to some extent it increased his level of frustration and anxiety,
the time-span of only 12 days precludes any inference that it caused significant non-
pecuniary injury.
43. The claimant is not entitled to damages for the breach of his right at common
law to receive an adequate explanation for his recall within the time identified
by published policy. The breach does not amount to a tort and there is nothing to
suggest that damages would have been available to the claimant in any ordinary
action which he might have brought against the Minister in that respect; see
section 31(4)(b) of the Senior Courts Act 1981.
Activity 14.2
1. The courts have been reluctant to take an expansive approach to the tort of breach
of statutory duty in respect of public authorities because, if breach of statutory
duty was all that was required in the vast majority of cases to give rise to liability,
this would likely result in an enormous increase in successful claims. This would
have a number of important impacts that you will consider in Activity 14.3.
2. In order to demonstrate that a public authority should be liable for breach of

statutory duty, it is necessary to demonstrate that Parliament intended breach
of a particular statutory provision or rule to give rise to a claim in damages. In R
v Deputy Prisoner of Parkhurst Prison ex parte Hague [1991] 3 All ER 733 (HL), Lord
Jauncey of Tulichettle said:
My Lords, I take from these authorities that it must always be a matter for
consideration whether the legislature intended that private law rights of action
should be conferred upon individuals in respect of breaches of the relevant statutory
provision. The fact that a particular provision was intended to protect certain
individuals is not of itself sufficient to confer private law rights of action upon them,
something more is required to show that the legislature intended such conferment.
3. The existence of any alternative means of redress, or the creation of some kind of
alternative scheme to permit a claim for damages or compensation will probably
extinguish the possibility of a claim for breach of statutory duty. See R v Deputy
Prisoner of Parkhurst Prison ex parte Hague [1991] 3 All ER 733 (HL).
Activity 14.3
1. The main potential benefits of imposing liability on public authorities in tort are
summarised in the table in Section 14.3 of the module guide, so they will not be
reproduced here.
2. The main potential disadvantages of imposing liability on public authorities in tort

are summarized in the table in Section 14.3 of the module guide, so they will not be
reproduced here.
3. It is regularly the case that judges consider the policy implications of imposing a
duty of care on public authorities. A good example of such explicit consideration
can be found in , where Lord Browne Wilkison said in X v Bedfordshire County Council
[1995] 2 AC 633 (at 749–751):
Is it, then, just and reasonable to superimpose a common law duty of care on the local
authority in relation to the performance of its statutory duties to protect children? In
my judgment it is not. Sir Thomas Bingham MR took the view, with which I agree, that
the public policy consideration which has first claim on the loyalty of the law is that
wrongs should be remedied and that very potent counter considerations are required
to override that policy ante, p.663C–D. However, in my judgment there are such
considerations in this case.
First, in my judgment a common law duty of care would cut across the whole statutory
system set up for the protection of children at risk. As a result of the ministerial
directions contained in ‘Working together’ the protection of such children is not the
exclusive territory of the local authority’s social services. The system is inter-disciplinary,
involving the participation of the police, educational bodies, doctors and others. At
all stages the system involves joint discussions, joint recommendations and joint
decisions. The key organisation is the Child Protection Conference, a multi-disciplinary
body which decides whether to place the child on the Child Protection Register. This
procedure by way of joint action takes place, not merely because it is good practice, but
because it is required by guidance having statutory force binding on the local authority.
The guidance is extremely detailed and extensive: the current edition of ‘Working
together’ runs to 126 pages. To introduce into such a system a common law duty of
care enforceable against only one of the participant bodies would be manifestly unfair.
To impose such liability on the participant bodies would lead to almost impossible
problems of disentangling as between the respective bodies the liability, both primary
and by way of contribution, of each for reaching a decision found to be negligent.
Second, the task of the local authority and its servants in dealing with children at risk is
extraordinarily delicate. Legislation requires the local authority to have regard not only
to the physical wellbeing of the child but also to the advantages of not disrupting the
child’s family environment: see, for example, section 17 of the Act of 1989. In one of the
child abuse cases, the local authority is blamed for removing the child precipitately:
in the other, for failing to remove the children from their mother. As the Report of the
Inquiry into Child Abuse in Cleveland 1987 (Cm. 412) said, at p.244:
It is a delicate and difficult line to tread between taking action too soon and not
taking it soon enough. Social services whilst putting the needs of the child first
must respect the rights of the parents; they also must work if possible with the
parents for the benefit of the children. These parents themselves are often in need
of help. Inevitably a degree of conflict develops between those objectives.
Next, if a liability in damages were to be imposed, it might well be that local authorities
would adopt a more cautious and defensive approach to their duties. For example,
as the Cleveland Report makes clear, on occasions the speedy decision to remove
the child is sometimes vital. If the authority is to be made liable in damages for a
negligent decision to remove a child (such negligence lying in the failure properly first
to investigate the allegations) there would be a substantial temptation to postpone
making such a decision until further inquiries have been made in the hope of getting
more concrete facts. Not only would the child in fact being abused be prejudiced by
such delay: the increased workload inherent in making such investigations would
reduce the time available to deal with other cases and other children.
The relationship between the social worker and the child’s parents is frequently one
of conflict, the parent wishing to retain care of the child, the social worker having
to consider whether to remove it. This is fertile ground in which to breed ill feeling
and litigation, often hopeless, the cost of which both in terms of money and human
resources will be diverted from the performance of the social service for which they
were provided. The spectre of vexatious and costly litigation is often urged as a reason
for not imposing a legal duty. But the circumstances surrounding cases of child abuse
make the risk a very high one which cannot be ignored.
Activity 14.4
1. A recent summary of the circumstances in which a duty of care will be imposed
on public authorities is offered by Lord Reed in Poole Borough Council v GN [2019]
UKSC 25 when Lord Reed said (at [65]):
It follows (1) that public authorities may owe a duty of care in circumstances where
the principles applicable to private individuals would impose such a duty, unless such
a duty would be inconsistent with, and is therefore excluded by, the legislation from
which their powers or duties are derived; (2) that public authorities do not owe a duty
of care at common law merely because they have statutory powers or duties, even if, by
exercising their statutory functions, they could prevent a person from suffering harm;
and (3) that public authorities can come under a common law duty to protect from
harm in circumstances where the principles applicable to private individuals or bodies
would impose such a duty, as for example where the authority has created the source
of danger or has assumed a responsibility to protect the claimant from harm, unless
the imposition of such a duty would be inconsistent with the relevant legislation.
The construction of the statutes is important, because it may be that the particular
way in which a statute is constructed will prevent a duty of care, or restrict the
claimants who might bring a claim. A useful example of this might be drawn from
the speech of Lord Scott in Jain v Trent Strategic Health Authority [2009] UKHL 4 at
[20], where he said:
My Lords, I am of the opinion, in agreement with the majority in the Court of Appeal,
and substantially for the reasons they have given, that an authority making an
application to a magistrate under section 30 for the cancellation of the registration
of a nursing home, or, for that matter, under section 11 for the cancellation of the
registration of a residential care home, does not owe a common law duty of care to
the proprietors of the home. In making the application the authority is exercising a
statutory power. The purpose of the power is the protection of the residents in the
home in question. It might be fair and reasonable to conclude that the authority
did owe a common law duty of care to the residents of a nursing home or a
care home if conditions at the home warranting the exercise of the authority’s
statutory powers had come to the authority’s attention but nothing had been
done. But to conclude that an authority exercising, or deciding whether to
exercise, its statutory powers owed a duty of care also to the proprietors of the
home seems to me much more difficult.
2. The main weakness of the policy/operational dichotomy, which was often used
as a tool to determine when liability could flow is that the distinction that can
be drawn between policy and operation is not clear. The case that created the
idea, Home Office v Dorset Yacht Club [1970] AC 728 (explained in Section 14.4 of the
module guide) is a good example of a clear operational error, so it is possible then
to apply this test with some clarity. However, in many cases, it will be far less easy
to draw a distinction between what is operational and policy decisions. Cases such
as X v Bedfordshire County Council [1995] 2 AC 633 and Stovin v Wise and Norfolk CC
[1996] 3 All ER 801 (HL) (also explained in Section 14.4 of the module guide) are
examples of cases where the distinction between policy and operation is far less
clear-cut because, in order to make policy decisions, the authorities concerned
needed to make observations and undertake various operational processes. In
Stovin v Wise and Norfolk CC [1996] AC 923 (HL) at 951–952, Lord Nicholls sought to
illustrate the problems when he said:
There are at least two reasons why the distinction is inadequate. The first is that,
as Lord Wilberforce himself pointed out, the distinction is often elusive. This is
particularly true of powers to provide public benefits which involve the expenditure
of money. Practically every decision about the provision of such benefits, no matter
how trivial it may seem, affects the budget of the public authority in either timing or
amount. The East Suffolk case, about which Lord Wilberforce said in the Anns case [1978]
AC 728, 757, that the activities of the board, though ‘operational,’ were ‘well within a
discretionary area, so that the plaintiff’s task in contending for a duty of care was a
difficult one’ is a very good example. But another reason is that even if the distinction
is clear cut, leaving no element of discretion in the sense that it would be irrational (in
the public law meaning of that word) for the public authority not to exercise its power,
it does not follow that the law should superimpose a common law duty of care. This
can be seen if one looks at cases in which a public authority has been under a statutory
or common law duty to provide a service or other benefit for the public or a section
of the public. In such cases there is no discretion but the courts have nevertheless not
been willing to hold that a member of the public who has suffered loss because the
service was not provided to him should necessarily have a cause of action, either for
breach of statutory duty or for negligence at common law.
3. The decision of the House of Lords in Barrett v Enfield LBC [1999] 3 All ER 193 (HL)
was significant as it decided that the ‘blanket immunities’ from the imposition of
a duty of care such as those offered to the police in investigative functions after
Hill v Chief Constable of West Yorkshire [1989] 3 All ER 449 were no longer good law
and instead, the ‘fair just and reasonable’ test in Caparo v Dickman [1990] 2 AC 605
should be used to determine whether or not a duty of care should be imposed.
As explained by reference to the cases in Section 14.4.3 of the module guide, the
decision has made little difference in practice as the courts seldom seek to extend
the imposition of the duty of care.
4. Justiciability is a relevant concept in cases involving the negligence liability

of public authorities. One might argue that the imposition of a duty of care
and finding that a public authority has acted in breach of that duty may be no
less of an intrusion into the exercise of discretionary power than rationality or
proportionality review in judicial review cases. In X v Bedfordshire County Council
[1995] 2 AC 633 at 738, Lord Browne-Wilkinson said:
Where Parliament has conferred a statutory discretion on a public authority, it is

for that authority, not for the courts, to exercise the discretion: nothing which the
authority does within the ambit of the discretion can be actionable at common law.
If the decision complained of falls outside the statutory discretion, it can (but not
necessarily will) give rise to common law liability. However, if the factors relevant to
the exercise of the discretion include matters of policy, the court cannot adjudicate on
such policy matters and therefore cannot reach the conclusion that the decision was
outside the ambit of the statutory discretion. Therefore a common law duty of care in
relation to the taking of decisions involving policy matters cannot exist.
5. The concept of the duty of care when applied to the statutory powers and duties of
public authorities is somewhat uncertain. The question of whether or not it is the
most appropriate tool to determine the liability of public authorities is very much
open to question. There are considerable uncertainties as to when a duty of care
will be imposed and to whom the duty will be owed.
Activity 14.5
1. Lord Bingham argued in JD v East Berkshire Community Health NHS Trust [2005] UKHL
23 at [49] that:
It would seem clear that the appellants’ claim would not be summarily dismissed
in France, where recovery depends on showing gross fault: see Markesinis, Auby,
Coester-Waltjen and Deakin Tortious liability of statutory bodies (1999), pp.15–20;
Fairgrieve, ‘Child welfare and state liability in France’, in Child abuse tort claims against
public bodies: a comparative law view, ed Fairgrieve and Green (2004), pp.179–197,
Fairgrieve,’Beyond Illegality: liability for fault in English and French law’, in State
liability in tort (2003),Chap 4. Nor would they be summarily dismissed in Germany
where, it is said, some of the policy considerations which influenced the House in X
v Bedfordshire County Council were considered by those who framed §839 of the BGB
and were rejected many years ago: see Tortious liability of statutory bodies , 58–71;
Martina Künnecke, ‘National report on Germany’, in Fairgrieve and Green, pp.199–207.
Yet in neither of those countries have the courts been flooded with claims. If, as
some respected academic authorities suggested, Barrett v Enfield London Borough
Council [2001] 2 AC 550 shifted the emphasis of the English courts from consideration
of duty to consideration of breach (see Craig and Fairgrieve ‘Barrett, Negligence and
Discretionary Powers’ [1999] PL 626, Fairgrieve, State liability in tort (2003), p.84, para
2.1.2.7), I would for my part regard that shift as welcome, since the concept of duty
has proved itself a somewhat blunt instrument for dividing claims which ought
reasonably to lead to recovery from claims which ought not. But I should make it
plain that if breach rather than duty were to be the touchstone of recovery, no breach
could be proved without showing a very clear departure from ordinary standards of
skill and care. It should be no easier to succeed here than in France or Germany.
The need for reform of the duty of care principle, as put forward by advocates of
reform, is that the duty of care is not imposed consistently and with certainty in
the various cases.
2. The reason why the courts and the legislature have generally been unwilling to
reform the law on liability of public authorities is that there is a degree of fear that
any change might expand the scope of liability of public authorities, thus bringing
out some of the possible disadvantages of imposing liability that you considered in
Activity 14.3. In his speech in JD v East Berkshire Community Health NHS Trust [2005]
UKHL 23, Lord Nicholls said at [92]–[94]:
A wider approach has also been canvassed. The suggestion has been made that, in
effect, the common law should jettison the concept of duty of care as a universal
prerequisite to liability in negligence. Instead the standard of care should be
“modulated” to accommodate the complexities arising in fields such as social workers
dealing with children at risk of abuse: Tort Liability of public authorities in comparative
perspective, ed Fairgrieve, Andenas and Bell (2002), p.485. The contours of liability
should be traced in other ways.
93. For some years it has been all too evident that identifying the parameters of an
expanding law of negligence is proving difficult, especially in fields involving the
discharge of statutory functions by public authorities. So this radical suggestion is
not without attraction. This approach would be analogous to that adopted when
considering breaches of human rights under the European Convention. Sometimes
in human rights cases the identity of the defendant, whether the state in claims
under the Convention or a public authority in claims under the Human Rights Act
1998, makes it appropriate for an international or domestic court to look backwards
over everything which happened. In deciding whether overall the end result was
acceptable the court makes a value judgment based on more flexible notions than the
common law standard of reasonableness and does so freed from the legal rigidity of a
duty of care.
94. This approach, as I say, is not without attraction. It is peculiarly appropriate in

the field of human rights. But I have reservations about attempts to transplant this
approach wholesale into the domestic law of negligence in cases where, as here, no
claim is made for breach of a Convention right. Apart from anything else, such an
attempt would be likely to lead to a lengthy and unnecessary period of uncertainty
in an important area of the law. It would lead to uncertainty because there are types
of cases where a person’s acts or omissions do not render him liable in negligence for
another’s loss even though this loss may be foreseeable. My noble and learned friend,
Lord Rodger of Earlsferry, has given some examples. Abandonment of the concept of a
duty of care in English law, unless replaced by a control mechanism which recognises
this limitation, is unlikely to clarify the law. That control mechanism has yet to be
identified. And introducing this protracted period of uncertainty is unnecessary,
because claims may now be brought directly against public authorities in respect of
breaches of Convention rights.
3. The possible routes that might be open to those who wish to reform the law on
liability are either through a legislative route, such as that proposed by the Law
Commission, or through the judicial adoption of an alternative, most likely the
‘sufficiently serious’ test.
Activity 14.6
1. The decision in Three Rivers District Council v Bank of England (No.3) [2003] 2 AC 1
decided that there were two possible routes to liability in the tort of misfeasance
in public office. These are:
a. The ‘targeted malice’ test, where there is a use of power for an improper
purpose to cause harm (requiring deliberate volition).
b. Situations where an official knows s/he has no power to do the act, or is

reckless as to whether s/he has the power and is aware that the act will
injure, or will likely injure, claimant (this liability can arise even in cases of
recklessness).
2. It is difficult for claimants to succeed in a claim for misfeasance in public

office other than in cases where there is deliberate ‘targeted malice’ (which is
uncommon), as it remains exceptionally difficult to demonstrate that a public
official acted with knowledge of, or a reckless indifference to, a lack of power.
Activity 14.7
1. In order for a claimant to be able to bring a claim for Human Rights Act damages,
it is necessary to demonstrate that there has been a breach of the claimant’s
Convention rights and that this breach would then give rise to compensation
under the principle of ‘just satisfaction’ developed by the European Court of
Human Rights. Lord Bingham outlined the basic rules in R v Secretary of State for the
Home Department ex parte Greenfield [2005] UKHL 14 at [6]:
It is evident that under Article 41 there are three preconditions to an award of just
satisfaction: (1) that the court should have found a violation; (2) that the domestic
law of the member state should allow only partial reparation to be made; and (3)
that it should be necessary to afford just satisfaction to the injured party. There are
also preconditions to an award of damages by a domestic court under section 8: (1)
that a finding of unlawfulness or prospective unlawfulness should be made based on
breach or prospective breach by a public authority of a Convention right; (2) that the
court should have power to award damages, or order the payment of compensation,
in civil proceedings; (3) that the court should be satisfied, taking account of all the
circumstances of the particular case, that an award of damages is necessary to afford
just satisfaction to the person in whose favour it is made; and (4) that the court should
consider an award of damages to be just and appropriate. It would seem to be clear
that a domestic court may not award damages unless satisfied that it is necessary to
do so, but if satisfied that it is necessary to do so it is hard to see how the court could
consider it other than just and appropriate to do so. In deciding whether to award
damages, and if so how much, the court is not strictly bound by the principles applied
by the European court in awarding compensation under article 41 of the Convention,
but it must take those principles into account. It is, therefore, to Strasbourg that British
courts must look for guidance on the award of damages.
2. The principles for the award of damages under the Human Rights Act 1998 were
further considered by Lord Bingham in Greenfield. In essence, the expectation is
that rather than following the domestic approach to the award of damages, there
should be alignment with the approach of the European Court of Human Rights.
This is explained in Lord Bingham’s speech at [18]–[19]:
18. It was submitted for the appellant that courts in England and Wales, when
exercising their power to award damages under section 8 of the 1998 Act, should
apply domestic scales of damages. It was also suggested, in reliance on an article by
Sir Robert Carnwath (‘ECHR Remedies from a common law perspective’ (2000) 49 ICLQ
517, 524), that the European court had relied on English scales when calculating the
sum of damages payable to Mr Perks. It appears that that may have been so. Counsel
also relied on the decisions of Sullivan J in R (Bernard) v Enfield London Borough Council
[2003] HRLR 111 , para 45, Stanley Burnton J in R (KB) v South London and South and West
Region Mental Health Review Tribunal [2004] QB 936 , paras 47 and 53 and the Court of
Appeal in Anufrijeva v Southwark London Borough Council [2004] QB 1124 , paras 73 and
74, to suggest that awards under section 8 should not be on the low side as compared
with tortious awards, that English courts should be free to depart from the scale of
damages awarded by the European court and that English awards by appropriate
courts or bodies should provide the appropriate comparator. In calculating awards for
anxiety and frustration, counsel suggested, the scales of damages awarded by English
courts and tribunals in discrimination cases provided an appropriate comparison.
19. None of the three English cases cited involved a violation of Article 6, and to that
extent they have only a limited bearing on the present problem. But there are in my
opinion broader reasons why this approach should not be followed. First, the 1998
Act is not a tort statute. Its objects are different and broader. Even in a case where a
finding of violation is not judged to afford the applicant just satisfaction, such a finding
will be an important part of his remedy and an important vindication of the right he
has asserted. Damages need not ordinarily be awarded to encourage high standards
of compliance by member states, since they are already bound in international law to
perform their duties under the Convention in good faith, although it may be different
if there is felt to be a need to encourage compliance by individual officials or classes
of official. Secondly, the purpose of incorporating the Convention in domestic law
through the 1998 Act was not to give victims better remedies at home than they
could recover in Strasbourg but to give them the same remedies without the delay
and expense of resort to Strasbourg. This intention was clearly expressed in the White
Paper Rights Brought Home: The Human Rights Bill (1997) (Cm 3782), para 2.6:
The Bill provides that, in considering an award of damages on Convention

grounds, the courts are to take into account the principles applied by the
European court of Human Rights in awarding compensation, so that people will
be able to receive compensation from a domestic court equivalent to what they
would have received in Strasbourg.
Thirdly, section 8(4) requires a domestic court to take into account the principles
applied by the European court under article 41 not only in determining whether to
award damages but also in determining the amount of an award. There could be no
clearer indication that courts in this country should look to Strasbourg and not to
domestic precedents. The appellant contended that the levels of Strasbourg awards
are not ‘principles’ applied by the court, but this is a legalistic distinction which is
contradicted by the White Paper and the language of section 8 and has no place in a
decision on the quantum of an award, to which principle has little application. The
court routinely describes its awards as equitable, which I take to mean that they are
not precisely calculated but are judged by the court to be fair in the individual case.
Judges in England and Wales must also make a similar judgment in the case before
them. They are not inflexibly bound by Strasbourg awards in what may be different
cases. But they should not aim to be significantly more or less generous than the court
might be expected to be, in a case where it was willing to make an award at all.
Chapter 15
You should note that these activities are not designed to get you to do a great deal
of additional work – instead, the aim is to ask you to reflect on work that you have
already done and to place it in context. As such, most of the activities in Chapter 15
simply require reflection on activities that you have already completed.
Activity 15.1
1. It will be helpful to reflect on the work you did and the feedback for Activities 9.5
and 9.6 here. There is clear evidence that the European law has influenced the
development and approach to the proportionality test, both in cases of Convention
rights and EU law.
2. Reflecting back on your responses to Activities 9.3, 9.5 and 9.6 and the judgment
of Lord Mance in Kennedy, along with the other case law that you might have
considered, it is evident that the European case law, and particularly the case law
under the European Convention on Human Rights has influenced the development
of the Wednesbury and proportionality tests in English law.
Activity 15.2
The feedback on Activity 9.5 outlines Lord Reed’s reference to Commonwealth law
in his consideration of the proportionality test. The reason why the Commonwealth
cases are referred to is because, as Lord Reed notes, an examination of the approach
under the European Convention on Human Rights is not always helpful at a national
level, as it is a supranational court. The reference to Commonwealth cases is helpful as
they demonstrate how the common law method might embrace the proportionality
principle.
Activity 15.3
A significant thread running throughout all of the activities in Chapter 11 was the
influence of Article 6 ECHR. It was demonstrated that the impact of Article 6 has been
particularly significant in each of the areas listed in the bullet points. It would be
helpful for you to reconsider the case law that was explained in the feedback outlined
above.
Activity 15.4
Reflect on the material that you considered in relation to Activities 10.1–10.4 in order
to answer this question. The material in Activity 10.1 is probably the most relevant. It
is plain that the fairness principle underlying legitimate expectation in European Law
has had considerable influence on the modern approach to legitimate expectation in
English law.
Activity 15.5
Consider the material in Activity 14.5 – Lord Bingham was clearly in some hope that the
influence of European law would come to bear on the approach to negligence liability
in English Law but this was ultimately not the case. However, if there is to be a path to
reform for the law on negligence liability, it seems likely that the seriousness of breach
approach adopted in European law is one of the most likely routes to reform.
Activity 15.6
An examination of the Court of Appeal and House of Lords decision in Three
Rivers District Council v Bank of England (No.3) [2003] 2 AC 1 both offer considerable
consideration of the Commonwealth jurisprudence. The Commonwealth
jurisprudence is clearly important to the outcome, as it demonstrates the fact that the
tests adopted can be implemented in practice.

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Feedback to activities

a. ‘The life of the community is governed by clear, open, stable, prospective,

c. Judicial review is the predominant mechanism through which the courts

b. Administrative law delivers several important legal accountability mechanisms –

It is important to emphasise that although judicial review is the predominant

Ultra vires theory Common law theory

Parliament can regulate judicial review Judicial review is generally

b. In the conclusion to his article, Allan states:

Avowals of loyalty to unqualified parliamentary sovereignty are as fully open to

considered to be a ‘quasi-public function’, even if exercised by a public authority

b. It is difficult to be absolutely precise about the characteristics that a body needs

In my judgment, the following principles can be gleaned from these cases.

To similar effect, Lord Neuberger opined, at para 165, that

[D]iscretion… is most at home in referring to powers delegated within a system of

u There is potential for powers to be misused and for arbitrary decisions to be

u There is potential for discretion to create situations where the principle

u Depending on the breadth of discretion granted to a decision-maker, some

b. Rules might be important in a system of administrative law where there is

f. Adjudication might be described as a process of fact finding, followed by

i. It is a way of allowing democratic participation in the formulation of

iii. Consultation may enhance public confidence in the decision-making processes

b. Consultation may bring disadvantages. In particular:

c. The main legal requirements in relation to consultation are as follows:

2. Those being consulted must have sufficient information available to permit an

• It is impossible to be precise about exactly what information is required,

3. Consultees must be given a reasonable amount of time to respond.

4. The responses to the consultation must be properly considered.

impacts – it ensures accountability for the exercise of public power by controlling

A ‘blanket’ approach to the holding of all A limited approach to holding ultra

Adams then goes on to propose an alternative way of looking at the issue of

Advantages of Part 54 procedure Disadvantages of Part 54 procedure

A case that serves to illustrate circumstances where a claim brought through

3. A collateral challenge is a challenge brought by an individual in defence to

…where subordinate legislation (e.g. statutory instruments or byelaws) is

A good example of circumstances where an individual was not permitted to have

Classification of standing Explanation

‘“Public interest In the past, many cases of ‘public interest standing’

2. In R v Inland Revenue Commissioners, ex parte National Federation of Self Employed

u Costs of judicial review proceedings are often high. As Hickman suggests:

Remedy Description and case law

2. Parliament brought in the ‘makes no difference’ provisions from a desire to avoid

He then went on to say:

The break-through made by Anisminic was that, as respects administrative tribunals

We could then consider Lord Diplock in O’ Reilly v Mackman [1983] 2 AC 237:

A further statement illustrating the common view of the practical impact of

In my judgment the decision in Anisminic Ltd v Foreign Compensation Commission

However, whether that is a likely interpretation of Parliament’s intentions,

In general, ‘full’ ouster clauses are included in legislation in order to prevent

“…recent approaches…largely ignore any distinction between scope and truth/detail

As such, ‘material error of fact’ requires four things:

a. A mistake as to existing fact or the availability of evidence on a particular matter.

b. The fact or evidence must have been established without dispute.

d. The mistake must have played a material part in the decision-maker’s

c. Issues relating to money or funding, as in R v Secretary of State for the

d. Planning decisions, such as in First Secretary of State v Hammersmatch Properties

e. Decisions approved by Parliament, as in R v Secretary of State for the

By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury

2. It is important to try to understand the development of the Wednesbury test in the