Judicial Review of Discretion

Judicial review of administrative discretion:

Principles of judicial review:

Every administrative decision by Executive is subject to Judicial Review. There is no such thing as absolute discretion. However Judicial Review is not an appeal. The earliest reported case in this regard is Associated Provincial Pictures (also called Wednesbury’s case) which laid down the law relating to scope of Judicial Review. It is more concerned with the decision making process rather than the merits of decision. Following extract clinches the issue:

 It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.” Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation [1926] Ch. 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another………

The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have 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. In such a case, again, I think the court can interfere. 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 the powers which Parliament has confided in them.(By Lord Greene)

[Source: Associated Provincial Pictures ]

Public Interest Litigation (PIL) in United Kingdom.

Public Interest Litigation travels to United Kingdom.

Public Interest Litigation is a creation of Supreme Court of India which in 1970’s taking notice of various wrongs, especially the matters of illegal detention of prisoners in prisons in all over India. Later the Public Interest Litigation expanded to all other aspects of administration as well which hitherto-before were the matters in the exclusive domains of executive of Indian Government. It appears the erstwhile colonial masters could not resist the temptation of Public Interest Litigation, as well.

Public Interest Litigation, is a relaxation of rule of Locus Standi where by,
the absence of personal interest by the petitioner is over looked by Court.

It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped. The Attorney General, although he occasionally applies for prerogative orders against public authorities that do not form part of central government, in practice never does so against government departments. It is not, in my view, a sufficient “answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge.

[Source: R v Inland Revenue Commissioners, ex parte National Federation of Self Employed and Small Businesses Ltd [1982] AC 617 (by Lord Diplock at 644E G,)]

“The first stage test, which is applied upon the application for leave, will lead to a refusal if the applicant has no interest whatsoever and is, in truth, no more than a meddlesome busybody. If, however, the application appears to be otherwise arguable and there is no other discretionary bar, such as dilatoriness on the part of the applicant, the applicant may expect to get leave to apply, leaving the test of interest or standing to be re applied as a matter of discretion on the hearing of the substantive application. At this second stage, the strength of the applicant’s interest is one of the factors to be weighed in the balance.”

[Source: (Sir John Donaldson in R v Monopolies and Mergers Commission, ex parte Argyll Group Plc [1986] 1 WLR 763. At 773H) which was followed in R v Secretary of State for Foreign and Commonwealth Affairs, (1995) 1 WLR 386]

Judicial review of judgement of Tribunal; Scope of.

Finality assigned to the decision of Tribunal:

Judicial review of error of law committed by a tribunal:

Visitor of a university acting as a judge has exclusive jurisdiction and that his decision is final in all matters within his jurisdiction. The common law courts have through three centuries consistently resisted all attempts to appeal decisions of the visitor. The courts have however been prepared to confine the visitor to his proper role as a judge of the internal
affairs of the foundation by the use of the writs of prohibition and mandamus.

Can Courts judicially review such decision?

per Lord Browne (Lord Kieth concurring) (Majority decision): The court has no jurisdiction to review the decision of a visitor made within his jurisdiction.
per Lord Grriffith: It is in my opinion important to keep the purpose of judicial review clearly in mind. The purpose is to ensure that those bodies that are susceptible to judicial review have carried out their public duties in the way it was intended they should. In the case of bodies other than courts, in so far as they are required to apply the law they are required to apply the law correctly. If they apply the law incorrectly they have not performed their duty
correctly and judicial review is available to correct their error of law so that they may make their decision upon a proper understanding of the law.

In the case of inferior courts, that is courts, of a lower status than the High  Court, such as the Justices of the Peace, it was recognised that their learning and understanding of the law might sometimes be imperfect and require correction by the High Court and so the rule evolved that certiorari was available to correct an error of law of an inferior court. At first it was confined to an error on the face of the record but it is now available to correct any error of law made by an inferior court. But despite this general rule Parliament can if it wishes confine a decision on a question of law to a particular inferior court and provide that the decision shall be final so that it is not to be challenged either by appeal or by judicial review.

 per Lord Slynn (Lord Mustill, concurring) (Minority view): With deference to the contrary view of the majority of your Lordships, in my opinion if certiorari can go to a particular tribunal it is available on all the grounds which have been judicially recognised. I can see no reasons in principle for limiting the availability of certiorari to a patent excess of power (as where
a Visitor has decided something which was not within his remit) and excluding review on other grounds recognised by the law. If it is accepted, as I believe it should be accepted, that certiorari goes not only for such an excess or abuse of power but also for a breach of the rules of natural justice there is even less reason in principle for excluding other established grounds. If therefore certiorari is generally available for error of law not involving abuse of power (as on the basis of Lord Diplock’s speeches I consider that it is so available) then it should be available also in respect of a decision of a Visitor. 
I am not persuaded that the jurisdiction of the Visitor involves such exceptional considerations that this principle should be departed from and that some grounds be accepted and others held not to be available for the purposes of judicial review.
[Source: Regina v. Lord President of the Privy Council  ex. p. ]

Abuse of power is not mere error of law.

Error of law is not abuse of power:

Abuse of power by subordinate Tribunal:

What is abuse of power? Inability to apply law properly? Exercise of power in excess of what was intended? Exercise of power for a collateral purpose? These question however have to wait till decided in appropriate case. Presently the view of Lord Griffiths is that mere error of law is not abuse of power. In his own words:

The common law has ever since the decision in Philips v.Bury (1694) Holt K.B. 715 recognised that the visitor acting as a judge has exclusive jurisdiction and that his decision is final in all matters within his jurisdiction. The common law courts have through three centuries consistently resisted all attempts to appeal decisions of the visitor. The courts have however been prepared to confine the visitor to his proper role as a judge of the internal affairs of the foundation by the use of the writs of prohibition and mandamus. When I said in Thomas v. University of Bradford [1987] A.C. 795:

“I have myself no doubt in the light of the modern development of administrative law, the High Court would have power, upon an application for judicial review, to quash a decision of the visitor which amounted to an abuse of his powers”

I used the words “an abuse of his powers” advisedly. I do not regard a judge who makes what an Appellate Court later regards as a mistake of law as abusing his powers. In such a case the judge is not abusing his powers; he is exercising them to the best of his ability albeit some other court thinks he was mistaken. I used the phrase “abuse of his powers” to connote some form of misbehaviour that was wholly incompatible with the judicial role that the judge was expected to perform. I did not intend it to include a mere error of law.
[Source: Regina v. Lord President of the Privy Council ex. p. Page (per Griffiths J.)]