Judicial Review: The Three Grounds
Classified by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (GCHQ case).
1. Illegality
The decision-maker must understand the law correctly and act within the powers granted.
- Ultra vires — acting outside statutory power.
- Errors of law on the face of the record are reviewable: Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 — a jurisdictional error of law makes a decision a nullity, even where an ouster clause exists.
- Fettering discretion (rigid policy, failure to consider individual circumstances).
- Improper purpose / taking irrelevant considerations into account.
2. Irrationality (Wednesbury Unreasonableness)
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223: a decision so unreasonable that no reasonable authority could ever have made it.
- The threshold is high — mere disagreement is not enough.
- Proportionality applies where Convention rights are engaged under the HRA 1998 and is a stricter standard; it requires balancing, not just checking absurdity.
3. Procedural Impropriety
Two sub-rules:
- Breach of statutory procedure: failure to follow required procedural steps.
- Natural justice / common law fairness:
- Nemo judex in causa sua — no bias: Porter v Magill [2001] UKHL 67 (real possibility of bias test).
- Audi alteram partem — right to a fair hearing: Ridge v Baldwin [1964] AC 40.
Permission Stage
Claimant must obtain permission under CPR Part 54 and must have sufficient interest (standing) under s.31(3) Senior Courts Act 1981. Claim must be brought promptly and in any event within 3 months of the date of the decision (CPR r.54.5).
Common Exam Traps
- Applying Wednesbury where a Convention right is engaged — use proportionality instead.
- Forgetting that judicial review is supervisory, not appellate — the court quashes and remits; it does not substitute its own decision (usually).
- Confusing the real possibility of bias test (Porter v Magill) with the old 'reasonable suspicion' formulation.
Exam tip: Always identify which ground applies first; the remedies question (quashing, mandatory, prohibiting order) flows from that analysis.