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Broadbent: Public Law Directions

Chapter 12

1. On what grounds might a court declare a decision of a public body unlawful?

The principles of administrative law derive from the common law but have to be read in the light of the particular statutory provision in question.  Where, for example, a statutory provision deals with issues such as whether the person should have a hearing, or what factors should or should not be taken into account, this will be followed insofar as it overrides the requirements of the common law. In the absence of such provisions, however, the court reads into the particular statutory provision the requirements of the common law in the form of the principles of administrative law. These may be classified in a number of ways (see e.g. Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374) but they include the requirement to ensure that the law is interpreted correctly, that it is used for the correct purpose, that relevant considerations have been taken into account and that irrelevant maters have not been taken into account, that any procedural requirements have been observed and that generally the decision maker has acted reasonably. The Human Rights Act has added the requirement that courts must uphold the Convention rights and also take account of decisions of the European Court of Human Rights.

2. How do the courts apply those requirements in individual cases?

This is difficult to answer in the abstract, for ultimately it depends on the judge(s) hearing the case, who have considerable scope as to how they decide the case. This is because the principles of administrative law are very flexible both in their content and in the way in which they might be applied in any given case. The judges also, given the nature of the principles of statutory interpretation, have scope as to how to interpret the statutory provision in question. It therefore becomes very difficult to predict in advance which way a court is going to decide and on what basis, not least because there is not always agreement amongst the judges as to how to approach this task other than in a very general sense.

3. Are the courts consistent in the determination of cases of judicial review?

A glance at the cases will reveal that there will inevitably be inconsistency in the way in which individual judges approach the application of the principles of law to particular statutory provisions or to uses of the royal prerogative. The number of majority decisions in the higher courts indicates that the results in case of judicial review are not inevitable and depend on the view individual judges take of the merits of any claim. The wide variety of statutory provisions etc and the way in which they are used means that there are always differences between individual cases in the way that they are argued before the courts. In the end, judicial review is an art rather than a science, though we should expect consistency in cases which are the same in all material particulars.

4. What is the impact of the Human Rights Act on judicial review?

There are several ways in which the Human Rights Act impacts on judicial review. The courts have their own duty to uphold the Convention rights under s.6, which includes, for example, not only securing a fair trial under Art 6 but also upholding other individual rights that may be in issue, such as the right to individual liberty under Art 5. The courts are also able to use concepts such as proportionality to extend the scope of judicial review. This has enabled the courts to take a more subtle approach than the more blunt Wednesbury principles.