Abuse of Power

• Roncarelli v Duplessis [1959] SCR 121:  The Supreme Court of Canada found that the Prime Minister of Québec was liable in damages to Roncarelli for losses arising out of the cancellation of Roncarelli’s liquor licence by the Liquor Commission.   The Prime Minister had ordered the Commission to cancel Roncarelli’s licence because he provided bail money for Jehovah’s Witnesses arrested by the government.  Although there was no limit in the legislation on the grounds on which the power to cancel a permit was to be used, the cancellation in point went beyond the scope of the discretion conferred.  The judgment of Rand J makes some interesting remarks about the control of discretionary power.
• Slattery v Naylor (1888) 13 App Cas 446: A byelaw prohibited the burial of bodies in cemeteries within 100 yards of any public building or dwelling.  This byelaw was challenged by the appellant, who contended (inter alia) that the byelaw was unreasonable.  The Privy Council dismissed the appeal.   Lord Hobhouse suggested that ‘a merely fantastic and capricious bye-law, such as reasonable men could not make in good faith’ (453) may be set aside as unreasonable.  Otherwise, even though the judges may consider that the byelaw ought to have been framed in different terms, it was not invalid because unreasonable.
• Kruse v Johnson [1898] 2 QB 91:  A county council byelaw prohibited singing in any public place within 50 yards of any dwelling-house, after being requested to stop by the inhabitants or a police officer.  The appellant sought to quash this byelaw on the grounds of unreasonableness.  The Court upheld the validity of the byelaw.  Lord Russell indicated that there may be cases in which the court ought to rule a byelaw as invalid because unreasonable, but ‘unreasonable’ has a narrow meaning for this purpose.  A byelaw is not unreasonable just because judges think it goes further than is prudent or because it does not have some desirable qualification.  The question of reasonableness (in the broad sense) is one which must be decided by the representative body entrusted with the power to make byelaws, knowing the locality and the needs of its inhabitants.
• Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223: A local authority had the power to allow a licensed cinema to open on Sundays, subject to such conditions as it thought fit to impose.  The local authority granted such an authorisation, subject to the condition that children under 15 not be admitted.  The Court of Appeal found that the local authority had not acted unlawfully.  The Court cannot interfere as an appellate authority to override the local authority’s decision; but only as a judicial authority to see whether the local authority has contravened the law by acting in excess of power.  The grounds on which such interference can be based include where the authority misdirects itself in law, fails to take into account relevant considerations or takes into account irrelevant considerations, acts in bad faith, or takes a decision that no reasonable body could have come to.  This last ground requires something overwhelming; it is not simply whether the court considers the decision to be unreasonable.
• R v Home Secretary ex p Khawaja [1984] AC 74: This case concerned two persons being detained as ‘illegal entrants’, following their acquisition of permission to enter the UK through alleged fraud or deception.  One of the issues before the Houses of Lords was the standard of judicial review in such cases.  The House of Lords held that the court could substitute its view for the decision of the immigration officer as to whether a person was an ‘illegal entrant’.  The court’s duty is to decide whether there was sufficient evidence to justify the immigration officer’s belief.  They were not limited to asking whether a reasonable immigration officer could have reached that conclusion i.e. whether there was some evidence on which immigration officer could have based his decision.  This is an example of a type of case in which the Wednesbury standard of review does not apply, given the different context in point, namely the detention of an alleged illegal immigrant.
• R (Bancoult) v Foreign Secretary [2001] QB 1067:  The Commissioner for the British Indian Ocean Territory made an ordinance in 1971 providing that the whole existing civilian population of the Chagos Islands was to be removed, and would not be permitted to return (the main island was to be used as a US military base).  The Commissioner made this ordinance under an Order in Council (made under the prerogative) that gave him the power to make laws for the peace, order and good government of the territory.  The ordinance was quashed in judicial review.  Having decided (inter alia) that the court had jurisdiction to consider the issue, the High Court found that the ordinance constituted a Wednesbury unreasonable use of the Commissioner’s power.  Except in exceptional circumstances, removal of an entire civilian population was not conducive to a territory’s peace, order and good government.
• R (Bancoult No 2) v Foreign Secretary [2007] EWCA Civ 498:  Following Bancoult No 1, the Foreign Secretary indicated a new immigration ordinance would be drawn up allowing islanders to return to all but the principal island.  However, the policy was changed on the ground that resettlement was not feasible, and orders were drawn up and approved under the royal prerogative that stated no person had the right to abode in the territory. The Court of Appeal held that the orders were an abuse of power, because they permanently excluded an entire population from their homeland for reasons unconnected with the population’s well being.  The court also found the Foreign Secretary impermissibly frustrated the legitimate expectation of the Chagos Islanders that they would be vouchsafed a right of return. But a divided House of Lords overturned the decision in R (Bancoult) v Foreign Secretary (No 2) [2008] UKHL 61, holding 3-2 that the Foreign Secretary had based the decision on relevant considerations such as the feasibility of resettlement after the islands had been depopulated for years, and the expense. The majority’s conclusion was that although the exercise of prerogative was reviewable, the decision to prevent resettlement was not an abuse of power. It was also decided by the same majority that the islanders did not have a legitimate expectation of resettlement because the Government’s statements in 2000 did not amount to a clear and unambiguous promise. 

Massive Deference and Non-Justiciability

Foreign Affairs and National Security

• Council of Civil Service Unions v Minister for the Civil Service (‘GCHQ’) [1985] AC 374: The Prime Minister banned trade union membership for workers at GCHQ (Government Communications Headquarters), without consulting the trade union first.  The House of Lords held that the trade union had a legitimate expectation that they would be consulted.  However, the Lords refused to find that the Prime Minister acted unfairly.  The Prime Minister indicated that the decision to ban union membership without consultation was taken on national security grounds, and the judges held this issue was non-justiciable.  This case clearly confirms the existence of judicial review of the prerogative, and was the occasion of Lord Diplock’s attempt to explain the grounds of judicial review in terms of ‘illegality’, ‘irrationality’ and ‘procedural impropriety’ (410) (pg 17 of linked document).
• R (Abbasi) v Foreign Secretary and Home Secretary [2002] EWCA Civ 1598: The Court of Appeal affirmed that Foreign Office conduct in the exercise of its prerogative power to protect British citizens abroad was in principle reviewable, so long as the subject-matter was justiciable.  However, even though the judges found the detention of British subject Abbasi in Guantánamo Bay to be arbitrary, the Court refused to declare that the Foreign Secretary was under a duty to take steps to pressure the US government to release him.  This was because the proper exercise of the power to make representations to another country involved considerations that were not justiciable.  This case confirms that judicial review of governmental action applies regardless of the source of the power impugned (statute, common law or prerogative power), but that judges cannot interfere with the exercise of a discretionary power if they would need to decide a non-justiciable issue in order to apply the grounds of review.
• R v Prime Minister ex p Campaign for Nuclear Disarmament (CND) [2002] EWHC 2712:  The CND asked the court to declare that the Prime Minister would be acting contrary to international law if he sent troops to Iraq without a United Nations Security Council Resolution specifically authorising it.  The Court refused to make such a declaration, because the international law issue was non-justiciable.  It is not the role of English judges to make a declaration of their opinion on a point of international law where this is not necessary for the determination of a dispute under English law.  Furthermore, considering the international law issue would be contrary to the national interest.
• R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60: the Serious Fraud Office (SFO) was investigating allegations that British Aerospace had paid huge bribes to Saudi Arabian officials while negotiating a sale of aircraft. The Saudi government demanded that the investigation be halted, threatening to cancel the aircraft deal, and to withdraw from cooperating with Britain in ant-terrorist measures. After considering the views of the British Ambassador to Saudi Arabia, the Prime Minister, the Foreign Secretary, the Defence Secretary, and the company itself, the Director of the SFO stopped the investigation. The Divisional Court held that the decision was a capitulation to threats, and was incompatible with the rule of law and therefore unlawful. The House of Lords overruled that decision. The Law Lords held that the Director of the SFO had a very broad (but not unfettered) discretionary power, that the possibility of a danger to British lives and national security (if the Saudis were to stop cooperating in opposing terrorism) was a relevant consideration in the exercise of his discretion, and that it was lawful for the Director of the SFO to defer to the Government on the nature of the risk.

Money

• R v Environment Secretary, ex p Hammersmith and Fulham LBC [1991] 1 AC 521: The Environment Secretary had the power to ‘designate’ local authorities that set excessive budgets, starting the process by which the community charges that local authorities could impose would be capped.  A number of local authorities sought judicial review of the decision to designate, on various grounds, all of which were rejected.  As regards abuse of power, Lord Bridge indicated there could be no grounds for challenge short of bad faith, improper motive or manifest absurdity (see, similarly, R v Environment Secretary, ex p Nottinghamshire County Council [1986] AC 240).  In addition, the fact the rate-capping decisions could only take effect with House of Commons approval seemed to make the House of Lords reluctant to interfere.  This case is an example of massive deference by the judiciary, where the Wednesbury approach is unsuitable due to the context.
• R v East Sussex County Council, Ex p Tandy [1998] AC 714:  The Local Education Authority (LEA) had a statutory duty to provide ‘suitable education’ for children who by reason of illness would not otherwise have received it.  Beth Tandy was one such child, and was provided with home tuition accordingly.  The LEA decided to cut the hours of teaching Beth received from five to three in order to save money.  The House of Lords quashed this decision, on the ground that the LEA had taken into account an irrelevant consideration (the availability of financial resources).  ‘Suitable education’ within the statute indicated a standard to be determined purely by educational considerations.  Lord Browne-Wilkinson indicated that to permit the LEA to avoid performing a statutory duty on the grounds that it prefers to spend the money in other ways would be to downgrade a statutory duty to a statutory power. (See, similarly, R (Conville) v Richmond upon Thames LBC [2006] EWCA Civ 718).
• R v Cambridge Health Authority, ex p B [1995] 1 WLR 898 (CA):  Cambridge Health Authority decided not to fund potentially life-saving treatment for a young girl.  The girl’s father sought judicial review of this decision.  The Court of Appeal found that the Health Authority had acted lawfully in its refusal.  One of the considerations the authority was entitled to take into account was its budget.  Difficult judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients, and the court defers to the Health Authority on those judgments.  This case can be distinguished from ex p Tandy, as in that case, the LEA had a duty to abide by a standard that does not depend on resources.  Here, the Health Authority has a wide discretion to distribute resources among competing needs, none of which it has a duty to meet.

Planning

• First Secretary of State v Hammersmatch Properties Ltd [2005] EWCA Civ 1360:  Planning permission was sought, and refused, to change the designated ‘use’ of part of a building to allow a redevelopment.  Judicial review was sought of the planning inspector’s decision.  The judge quashed the decision, as he could see no good reason why planning permission should not be granted.  The Court of Appeal overturned this decision, holding that the judge had entered into the planning merits, and thereby exceeded his powers.  Planning judgments were for the planning authorities and not the courts, and although the judges may have different opinions to that of the planning inspector, his decision revealed no legal error.  Facts were found and a legitimate planning judgement applied to them in the context of the relevant planning policies.  There was a clear justification for the inspector’s conclusion.  

Decisions approved in Parliament

• R (Javed) v Home Secretary [2001] EWCA Civ 789:  The Home Secretary certified in an order that there was in general no serious risk of persecution in Pakistan.  This designation allowed claims of asylum seekers from Pakistan to be dealt with on a fast track.  A number of affected asylum seekers challenged this designation, on the ground that there was a risk of persecution of women and Ahmadis in Pakistan.  The Court of Appeal considered, first, to what extent it was open to the court to review the validity of this order, having regard to the fact it was approved by Parliament in the affirmative resolution procedure.  Lord Phillips MR distinguished the functions of Parliament (legislation) and the functions of the court (determining the legality of subordinate legislation).  Requiring subordinate legislation to be approved by each House does not transfer to Parliament the role of determining legality.  The Court then went on to consider that the order was one no reasonable Home Secretary could have made, even having regard to the considerable margin of appreciation due to the Home Secretary.    

Acts of the Scottish Parliament

• AXA General Insurance v HM Advocate[2011] UKSC 46: insurance companies sought judicial review of an Act of the Scottish Parliament on the ground that it was irrational. The Scottish Parliament has a ‘plenary’ [147] power to legislate (subject to compatibility with the European Convention on Human Rights), and yet the Justices were not prepared to say that judicial review was not available on common law grounds. They were not prepared to decide the purposes for which the Scottish Parliament’s purposes are to be used (Lord Reed [147]), and judicial review is not available on the ground of ‘irrationality’ (Lord Hope [52], Lord Reed [154]). Lord Reed applied the principle of legality, and concluded that ‘Parliament cannot be taken to have intended to establish a body which was free to abrogate fundamental rights or to violate the rule of law’ [153].

Legal processes

• R v DPP ex p Kebilene [1999] 3 WLR 972: Prior to the coming into force of the Human Rights Act 1998, the Director of Public Prosecutions (DPP) consented to the prosecution of the applicants under a provision that the trial judge ruled to be incompatible with the presumption of innocence (Article 6(2) ECHR).  The applicants sought judicial review of the DPP’s decision.  The House of Lords rejected an argument that the applicants had a legitimate expectation that they would not be prosecuted for an offence incompatible with Article 6(2).  Furthermore, absent dishonesty, bad faith or an exceptional circumstance, the courts would refuse to entertain a judicial review application where the complaint could be raised within the criminal trial and appeal process.  This case stands as authority for the proposition that absent the exceptional circumstances indicated, a decision of the DPP to consent to a criminal prosecution is not amenable to judicial review.
• R v DPP ex p Manning (2001) QB 330: Manning was killed while in custody.  A coroner’s jury found his death to be an unlawful killing.  The Director of Public Prosecutions decided not to prosecute the prison officers involved, as it was thought there was no realistic prospect of a conviction.  The Court quashed this decision, on the grounds of a failure to take into account relevant considerations, applying a higher test than that in the Code for Crown Prosecutors, and failing to give adequate reasons.  Lord Bingham explained that the power to review the decision not to prosecute is to be used sparingly. However the standard of review should not be set too high, as judicial review is a citizen’s only form of redress against a decision not to prosecute [23].  The Court emphasised that its decision meant the DPP had to reconsider the matter, but did not decide whether or not a prosecution should follow [42].
• R (Pretty) v DPP [2002] 1 AC 800: Diane Pretty, who suffered from a terminal illness, asked the Director of Public Prosecutions to undertake not to prosecute her husband if he assisted her to kill herself, and the DPP refused.  She sought judicial review of that refusal, relying on various Convention rights.  The House of Lords dismissed her appeal.  First, her suggested interpretation of the Convention rights was incorrect.   Secondly, the DPP had no power to undertake not to prosecute a crime that had yet to be committed.  The executive had no power to dispense with laws or their execution without Parliamentary consent.  The DPP’s discretion whether or not to consent to prosecution arises only in the circumstances of a specific offence i.e. on the basis of past events. 

Decisions based on impressions

• Higham v University of Plymouth [2005] EWHC 1492: A professional behaviour committee of a medical school decided that a student was not fit to practise, and ought to be expelled.  The school’s vice-chancellor upheld the decision.  The student sought judicial review of that decision, on various grounds.  The court dismissed the claim for judicial review, and indicated that in this sort of decision, a large degree of deference ought to be shown to the school.  The staff (unlike the court) are academically and medically qualified, and they had the advantage of seeing and hearing the witnesses and the student [28]-[29].  

Policy in general

• R v Ministry of Defence ex p Walker [2000] 1 WLR 806: The Ministry of Defence set up a criminal injuries compensation scheme for servicemen who were victims of crimes of violence abroad.  The criteria of the scheme excluded injuries caused in war zones.  Walker challenged the Ministry’s decision not to pay him compensation under the scheme after he was injured in Bosnia, on the basis of incorrect interpretation of the scheme, Wednesbury unreasonableness and frustration of a legitimate expectation.  The House of Lords rejected Walker’s appeal.  As regards ‘irrationality’, the Lords rejected Walker’s contention that the situation in Bosnia could not be rationally distinguished from Northern Ireland (where the scheme applied).  The House of Lords deferred to the Government, because Walker was challenging a decision about how to spend money, and because of the Military’s expertise and responsibility in assessing the conditions of troops abroad.