Chapter 7 Guidance on answering the critical questions

1. Administrative authorities always ought to make the best possible decision. So why isn’t judicial review generally available on the ground that an authority did not make the best possible decision?

• First of all, think about what the word ‘reasonableness’ means, and its flexibility.  It is true on the one hand that it is not reasonable to do the wrong thing. On the other hand, even when a decision is quite wrong, people often say that it was reasonable, as a way of saying that you can see some strength in the reasoning that led to it.  So might it be going too far to say it is never reasonable to do the wrong thing?
• Secondly, remember that reasonableness is not a general ground for review by the courts.  A public authority should never use its power unreasonably, but a court will not interfere unless it can find a kind of reasonableness it can identify without taking over the public authority’s job. Whether the conduct was right or wrong, the judges cannot interfere unless the conduct discloses a kind of unreasonableness the judges can identify with no breach of comity. 
• Thirdly, remember that the courts show deference to original decision-makers, to differing extents depending on the context.  Showing deference means going along with the original decision-maker’s answer to a question, even if the judge would have answered it differently i.e. even if the judge thinks the answer was ‘wrong’. 
• Given all these limitations, would it be a good idea to have judicial review for a failure to make the best decision?

2. Does the difference between inherent discretions and discretions conferred expressly by statute make any difference to judicial review?

• No! Except that a statute conferring a discretionary power may define its scope, or impose special procedural requirements on its exercise.

3. Are there any unfettered discretionary powers?

• Yes and no! All public powers are subject to the duties of responsible government, but not all are controlled by law. There are executive powers that are not controlled by judicial review; one extremely important example is the government’s power to put bills before the Houses of Parliament. It would be a breach of parliamentary privilege and of the Bill of Rights 1689, Article 9, for a court even to consider the question whether it was reasonable to put a bill before Parliament.
• What about administrative powers? The dissenters in Ridge v Baldwin thought that the police authority had unfettered discretions (Ridge v Baldwin [1964] AC 40, Lord Evershed (94).
• In Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, Lord Upjohn dismissed the idea that the minister had an ‘unfettered discretion’, and said that it would not even help him if the word ‘unfettered’ had been used in the statute (1060).
• Until the 1980s, barristers were still arguing that the courts ought to decline to give judicial review of whole areas of administrative decision-making, such as the regulation of prisons. Counsel for a prison governor argued unsuccessfully in Leech v Deputy Governor of Parkhurst Prison [1988] AC 533 (566), that if the court claimed jurisdiction to review prison governors’ decisions, ‘the tentacles of the law’ would invade prison administration; in R v Parkhurst Prison, ex p Hague [1992] 1 AC 58, the House of Lords ‘faced that prospect without undue alarm’ Lord Bridge (155). Leech and Hague made it clear for the first time that prison discipline decisions are subject to the ordinary forms of control of discretionary powers. A major theme of the 20th century judicial adventure (see 2.6) was the move from treating whole areas of decision-making as out of bounds, to asking, in particular cases, whether the judges should defer on particular issues.
• Perhaps the last time a senior judge spoke of an unfettered administrative discretion was in Re Findlay [1985] 1 AC 318, when Lord Scarman said that statute conferred ‘unfettered discretion’ on the Home Secretary to decide whether to release a prisoner on parole. But he only meant that the minister could change his policy. The discretion was unfettered ‘provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute’ (338).
• Today it is very rare for a barrister to stand up and say that an administrative power is unfettered. It has been rare since the 1960s: for an unsuccessful attempt in 1961, see Commissioners of Customs and Excise v Cure & Deeley Ltd [1962] 1 QB 340 (360). In the 21st century, there are no administrative powers that are not subject to judicial review. Even a public authority’s power to use land is limited by reference to the purposes for which the land is held (whereas a private landowner really does have an unfettered discretion to use his or her land in any way not specifically prohibited by law: see R v Somerset County Council ex p Fewings [1995] 1 WLR 1037). Yet there certainly are discretionary powers that virtually unreviewable: those are the powers whose proper exercise always depends on considerations that are non-justiciable.

4. Are there any unreviewable administrative decisions?

Consider the following sorts of decision. None of them is completely unreviewable.

• A minister’s decision how to respond to an ombudsman’s report (see 13.7.1 concerning Bradley v Work and Pensions Secretary [2007] EWHC 242)
  • Think about the Parliamentary Commissioner for Administration.  Consider s 7(4) Parliamentary Commissioner Act 1967: ‘The conduct of an investigation under this Act shall not affect ... any power or duty of [the department]....to take any further action with respect to any matters subject to the investigation...’. 
  • Consider also s 10(3) (the power of the Ombudsman to lay a special report before each House of Parliament if she feels that there has been injustice caused by maladministration, and the department culpable does not intend to remedy it).
  • What if the minister explicitly states that he has no intention of even reading the Ombudsman’s report?  Might the courts be more willing to proceed with judicial review?
• A police investigation into an allegation of crime
  • Consider R (on the application of C) v Chief Constable [2006] EWHC 2352.  Does this case stand for the proposition that a continuing police investigation into an allegation of crime is generally not amenable to judicial review?
  • In what exceptional circumstances might judicial review be possible? Consider paragraphs [32] and [33] of R (C): ‘(relief) will only be appropriate, if at all, in the most exceptional cases...against that unpromising background I have considered whether the refusal of the police formally to close their investigation of the claimant is so inexplicable as to require to be characterised as irrational’ (Underhill J). 
• A prosecution decision whether to prosecute
  • Consider R v Director of Public Prosecutions ex p Kebilene [2000] 2 AC 326, and consider what the ratio of that case was said to be in R (Rusbridger) v Attorney General [2003] UKHL 38: ‘absent "dishonesty or mala fides or an exceptional circumstance" decisions by the Director of Public Prosecutions to consent to a prosecution are not amenable to judicial review.’ (Lord Steyn, [18])
  • Think about where the prosecution decides not to prosecute.  Ought judicial review be available, since (unlike in the Kebilene scenario), there is to be no further legal process in which the aggrieved party can air his grievances?  Consider R v Director of Public Prosecutions ex parte Manning (2001) QB 330. 
• But some kinds of governmental decisions have never been challenged in the courts, and perhaps they never will be. What about the Prime Minister’s power to recommend the appointment of a particular person to a position as a Cabinet minister? Is that something that the courts ought not to review? Or would even a decision of that kind be reviewable, not on its merits, but on the ground that a Prime Minister had taken a bribe to make the decision?

5. Can you reconcile judicial control of discretionary power with the principle that judges are only to strike down an action that the public authority had no power to take?

• We can at least say that Lord Greene’s speech in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 is compatible with that principle: if a decision has failed to conform to the Wednesbury principles (that is, if the decision maker failed to address the relevant considerations in good faith, or if was it a conclusion that no reasonable public authority could have come to) then, you might say, it wasn’t a genuine exercise of discretion, but the mere arbitrary act of a public official who has gone beyond his or her discretion, and therefore beyond his or her discretionary power.
• As early as Slattery v Naylor (1888) 13 App Cas 446, Lord Hobhouse suggested that ‘the question whether a byelaw is reasonable is only one branch of the question whether it is ultra vires [i.e., outside the body’s powers]’ (452). But of course, Lord Hobhouse (like the judges in Kruse v Johnson [1898] 2 QB 91 and Wednesbury) would only find that a byelaw was unreasonable in the sense that makes it ultra vires, if it was an extreme example of capriciousness or oppression. The idea is that an abuse of power, in that extreme sense, is not a genuine use of the power at all.

6. What is the relationship between the law of due process (Chapter 4) and the law of control of discretionary powers?

• Consider the discretionary decision-making powers of public authorities.  Does the law of due process have a role in controlling the exercise of these powers, by requiring fair decision-making procedures? 
• Think also about the discretionary power public authorities have over their own procedures.  Is this power controlled by the law of due process? Consider Begum v Tower Hamlets LBC [2003] UKHL 5.  Runa Begum’s Article 6(1) ECHR complaint was aimed at the process the Housing Authority used in deciding whether she had unreasonably refused the accommodation offered to her. 
• So could it be said the law of due process is part of the law of control of discretionary powers?
• An interesting point to note is that the law of due process does not require courts to defer to other public authorities in deciding on procedures.  However, it is only process that is ‘due’ (i.e. proportionate) that will be required by the courts.   

7. When a court questions the validity of a regulation approved in both houses of Parliament, why isn’t it contrary to Article 9 of the Bill of Rights (‘“Freedom of Speech”…the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament)?

• Could you argue that questioning the validity of the regulation does not bring into question something that Parliament did; it brings into question something the government did?
• What Parliament did was to not reject a regulation.  Parliament made this decision not to reject the regulation on grounds of its political acceptability; and the courts do not bring that into question.
• What the courts do is question the legal validity of a regulation made by the Government. 
• This reflects the reasoning in R v Environment Secretary, ex p Greater London Council, cited in R (Javed) v Home Secretary [2001] EWCA Civ 789 [47]. There, Mustill LJ said that the role of Parliament was to be interpreted as an additional safeguard, with different purposes from the safeguard of judicial review on Wednesbury principles.
• Consider also paragraphs [33], [37] and [58] of R (Javed).  Lord Phillips MR distinguishes between the function 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. 
• Remember that Parliament is always free to pass an Act of Parliament of exactly the same content of the impugned regulation.  In this scenario, the courts would be powerless.
• Remember also that the fact a regulation has been approved by Parliament can (depending on the context) lead judges to be reluctant to interfere with the regulation (this may have influenced the refusal of judicial review in R v Environment Secretary, ex p Hammersmith and Fulham LBC [1991] 1 AC 521 (Lord Bridge 597))

And two additional questions:

‘It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first’ (Mayor of Westminster v London and North Western Railway Company [1905] AC 426, 430 (Lord Macnaghten)).

            Does that mean there is (or was in 1905) a general rule that courts should strike down unreasonable exercises of statutory powers?

• When Lord Macnaghten said that a public body must act reasonably, did he mean that a court must strike down the decisions of the public body when the judges consider them to be unreasonable?
• What do you suppose he meant by ‘unreasonable’?

How would R v Home Secretary, ex parte Brind [1991] 1 AC 696 be decided today?

• Ex parte Brind concerned directives made by the Home Secretary that required broadcasters not to broadcast words spoken by persons representing proscribed terrorism organisations (including the IRA).  The directives were limited in that:
  • They did not apply to Parliamentary proceedings
  • They did not apply to electoral campaign coverage
  • They only referred to statements directly made by such persons and did not prevent a voice-over of the words spoken.
• The applicants were broadcasters who sought a declaration that the Home Secretary’s decision to issue the directions was unlawful.  They argued:
  • The directives were outside the Home Secretary’s powers as they contravened Article 10 ECHR (freedom of expression)
  • The directives were disproportionate to the aim pursued
  • The directives were Wednesbury unreasonable.
• The applicants in ex p Brind lost out because the House of Lords refused to apply the Convention requirements, or the doctrine of proportionality, before the Convention was given effect to in English law.  The court also found that it was impossible to say the Home Secretary acted unreasonably or exceeded the limits of his discretion in imposing the restrictions.
• Today, what would be the applicants’ main argument? Would they be likely to focus on the alleged Article 10 infringement (now that the Human Rights Act 1998 has given certain legal effects to particular Convention rights in domestic law) in order to escape the limits of traditional judicial review under the Wednesbury approach?
• If so, would the applicants succeed on the Article 10 argument? Consider Brind v United Kingdom (18714/91) (1994) 18 EHRR CD76.  This was a case before the European Commission of Human Rights, which prior to November 1998 used to carry out a preliminary examination of cases before they reached the European Court of Human Rights (see the Historical Background of the European Court of Human Rights on the Court’s website).
• The applicants were able to air their Convention grievances before the Commission in Brind v UK, something they were unable to do before the English Courts, and yet they still lost out.  Why?
• The Commission accepted that there was an interference with the freedom of expression enshrined in Article 10 caused by the directives, but found this interference to be justified by Article 10(2).  The Commission found the directives to be prescribed by law, targeted at a legitimate aim (combating terrorism) and ‘necessary’ i.e. proportionate.
• Can you think of reasons why the Commission found the interference with the freedom of expression to be proportionate? Consider the following:
  • The limited extent of the restrictions: they have no impact on the words that can be spoken or images that can be shown, and have very little impact on the information made available to the public. 
  • The ‘margin of appreciation’ recognized to states in combating terrorism.
• Given this finding of the Commission, how would the case be decided today by the English Courts?