Judicial Review
The area of law in which this question is concerned is judicial review. Judicial review can be defined as ‘… the means by which the Courts control the exercise of Governmental powers.’ The Courts will look at the way in which a decision was made, not the decision itself, to find out if any powers have been abused.
Judicial review is an application to the Courts to assess an action or decision made by a public body on a point of public law. A particular decision may be found to be in breach of natural justice or have been made ultra vires, that is, beyond the scope of the powers. The case of O’Reilly v Mackman shows the general rule that when claiming against a public body, judicial review should be used. Lord Diplock described this as an ‘exclusivity principle’.
The use of this principle has been criticised by academics due to the strictness of it, and has been referred to as a ‘serious setback in administrative law’ . The courts have since tried to use a broader approach in relation to the use of judicial review. In Roy v Kensington and Chelsea and Westminster FPC , the House of Lords held that judicial review does not have to be used where a private law right involves addressing a public law matter. This decision was supported in Mercury Communications Ltd v DG of Telecommunications . This illustrates the Courts taking a more flexible approach to that used in O’Reilly and focuses more on stopping an abuse of power than strictly distinguishing between the routes available in public and private law.
Another exception is the use of collateral challenge. This allows judicial review to be used in a civil or criminal case as a defence, and it often involves a particular decision being made ultra vires. This can be seen in Wandsworth LBC v Winder and in the later case of Boddington v British Transport Police .
A public body normally derives its powers from the common law or Statute, but it has been found that many public bodies don’t relate in any way to the
Judicial review is an application to the Courts to assess an action or decision made by a public body on a point of public law. A particular decision may be found to be in breach of natural justice or have been made ultra vires, that is, beyond the scope of the powers. The case of O’Reilly v Mackman shows the general rule that when claiming against a public body, judicial review should be used. Lord Diplock described this as an ‘exclusivity principle’.
The use of this principle has been criticised by academics due to the strictness of it, and has been referred to as a ‘serious setback in administrative law’ . The courts have since tried to use a broader approach in relation to the use of judicial review. In Roy v Kensington and Chelsea and Westminster FPC , the House of Lords held that judicial review does not have to be used where a private law right involves addressing a public law matter. This decision was supported in Mercury Communications Ltd v DG of Telecommunications . This illustrates the Courts taking a more flexible approach to that used in O’Reilly and focuses more on stopping an abuse of power than strictly distinguishing between the routes available in public and private law.
Another exception is the use of collateral challenge. This allows judicial review to be used in a civil or criminal case as a defence, and it often involves a particular decision being made ultra vires. This can be seen in Wandsworth LBC v Winder and in the later case of Boddington v British Transport Police .
A public body normally derives its powers from the common law or Statute, but it has been found that many public bodies don’t relate in any way to the
Bibliography: O’Reilly v Mackman (1983) 2 AC 237 Roy v Kensington and Chelsea and Westminster FPC (1992) 1 All ER 705 Mercury Communications Ltd v DG of Telecommunications (1993) 2 ALL ER 853 Wandsworth LBC v Winder (1984) 3 All ER 83 Boddington v British Transport Police (1999) 2 AC 143 R v City Panel on Takeovers and Mergers ex parte Datafin (1987) QB 815 R v Disciplinary Committee of the Jockey Club ex parte Aga Khan (1996) 1 All ER 575 R v HM Inspectorate of Pollution, ex parte Greenpeace (No.2) (1994) All ER 329 CCSU v Minister for Civil Service (1985) AC 374 Attorney General v Fulham Corporation (1921) 1 Ch 440 Tesco Stores Ltd v Secretary of State for the Environment (1995) Roberts v Hopwood (1925) AC 578 Vine v National Dock Board (1957) AC 488 Carltona v Commissioner of Works (1943) 2 All ER 560 Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1947) 1 KB 223 R V Secretary of State for Home Department ex parte Daly (2001) 2 AC 532 Hall and Co v Shoreham-by-Sea UDC (1964) 1 All ER 1 R v Secretary of State for Home Department ex parte Brind (1991) 1 AC 696 Lee v Department of Education and Science (1967) LGR 211 Agriculture, Horticultural and Forestry Training Board v Aylesbury Mushroom Company (1972) 1 WLR 190 McInness v Onslow Fane (1978) 1 WLR 1520 R v Bow Street Metropolitan and Stipendiary Magistrate ex parte Pinochet Ugarte (2000) 1 AC 61 Cooper v Wandsworth Board of Works (1863) 14 CBNS 180 Porter v Magill (2001) UKHL 67 Acts Barnet, H., Constitutional & Administrative Law., Routledge- Cavendish., 6th edition,2006 Parpworth, N., Constitutional & Administrative Law., Oxford University Press., 5th edition, 2008 Taylor, C., Constitutional & Aministrative Law., Pearson Education Limited., 2009 Electronic sources www.lexisnexis.com (last accessed 19/02/2009)