Judicial review

A means whereby a judge reviews the lawfulness of a decision or action made by a public body.

Judicial reviews enable a challenge to be made to the way in which a decision has been reached.  The challenge focusses upon the procedures and reasoning upon which the decision is based.  If any such decision is found wanting then the decision may be ruled ultra vires meaning that it is void and not effective.  The court cannot change the decision for its own and therefore the scope of judicial review is restricted in that sense.

In the event that a decision is declared ultra vires and of no effect may mean that a new decision must be made or if the challenge is to delegated legislation (challenge cannot be made to Acts of Parliament) the delegated legislation itself is pronouced ultra vires and void.

The ability to be able to bring a challenge in this way is seen as a curb on excessive power and a valuable weapon in the judiciary's armoury.

There are two main heads upon which administrative actions is subject to control by judicial review: unreasonableness and procedural ultra vires. 

Examples of decisions which may be made the subject of judicial review might include:

  • decisions about immigration;
  • local authority decisions about welfare benefits;
  • descisions regarding special educational needs;

There are two forms of ultra vires - procedural ultra vires and unreasonableness ultra vires.  

The case of Strickland v Hayes Borough Council 1986 is an illustration of how regulations may be deemed ultra vires on the basis of their unreasonableness.  The local authority had introduced a bylaw prohibiting the singing or reciting of obscene songs or use of obscene language.  This was held to be unreasonable and therefore ultra vires, on the basis that the bylaw was too widely drafted because it covered acts carried out on private property as well as public land.

If the correct procedure is not followed then this may result in the courts declaring the delegated legislation as being ultra vires and void.  A case which serves as a good illustration of this point is the case of Aylesbury Mushrooms 1972.  In this case the appropriate government Minister failed to observe the prescribed procedure for introducing regulations.  The procedure allowed for consultations with appropriate organisations but this procedure was not followed.  In particular the Minister failed to consult the Mushroom Growers' Association and  therefore proposals requiring the establishment of a training board were held to be ultra vires and ineffective. 

 

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