British administrative law is part of UK constitutional law that is designed through judicial review to hold executive power and public bodies accountable under the law. A person can apply to the High Court to challenge a public body's decision if they have a "sufficient interest",Senior Courts Act 1981 s 31(3) within three months of the grounds of the cause of action becoming known.Civil Procedure Rules rule 54.5 claims can be made up to 'three months after the grounds to make the claim first arose', but the period can be shorter if legislation says so. By contrast, claims against public bodies in tort or contract are usually limited by the Limitation Act 1980 to a period of 6 years.Limitation Act 1980 ss 2 and 5. But under s 11, the period is three years for personal injury or death, under s 11A ten years for defective products, and under s 15 twelve years to recover land.
Almost any public body, or private bodies exercising public functions,R (Datafin) v Panel on Takeovers and Mergers QB 815 can be the target of judicial review, including a government department, a local council, any Minister, the Prime Minister, or any other body that is created by law. The only public body whose decisions cannot be reviewed is Parliament, when it passes an Act.
Otherwise, a claimant can argue that a public body's decision was unlawful in five main types of case:Different books and cases categorise the grounds to review administrative discretion differently, as do different fields of law such as directors' duties in UK company law, unfair dismissal in UK labour law or implied terms in English contract law. Lord Diplock in the GCHQ case said the grounds were "illegality", "irrationality" and "procedural impropriety". A Le Sueur, M Sunkin and J Murkens, Public Law Text, Cases, and Materials (3rd edn 2016) ch 16 follows this. It is often, however, unclear how a procedural requirement of the law can be separated from substance, and it was thought that "irrationality" is too restrictive. AW Bradley, KD Ewing and CJS Knight, Constitutional and Administrative Law (2014) ch 24 now suggests substantive grounds, legitimate expectations and procedural grounds. In R (Baker) v Devon CC 1 All ER 73, 88, Sir Robin Cooke said 'The administrator must act fairly, reasonably and according to law. That is the essence and the rest is mainly machinery.' M Elliott and R Thomas, Public Law (3rd edn 2017) ch 12 generally follows this. Another categorisation of Lord Bingham, Rule of Law (2010) was 'Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purposes for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.' Contrast the Companies Act 2006 ss 171-177, codifying directors' duties. (1) it exceeded the lawful power of the body, used its power for an improper purpose, or acted unreasonably,Ridge v Baldwin AC 40 (following law). Padfield v Minister of Agriculture AC 997 (improper purpose), R v Home Secretary ex p Venables and Thompson AC 407 (irrelevant consideration). (2) it violated a legitimate expectation,Associated Provincial Picture Houses v Wednesbury Corporation 1 KB 223 (unreasonableness loosely defined); Council of Civil Service Unions v Minister for the Civil Service AC 374 (legitimate expectation rejected). R v North and East Devon Health Authority, ex p Coughlan QB 213 (legitimate expectation upheld) (3) failed to exercise relevant and independent judgement,R (Corner House Research) v Director of the Serious Fraud Office UKHL 60 (independent judgement) (4) exhibited bias or a conflict of interest, or failed to give a fair hearing,Porter v Magill UKHL 67 (bias). R v Bow Street Stipendiary Magistrate, ex p Pinochet (No 2) 1 AC 119 (possibility of a conflict of interest). and (5) violated a human right.Human Rights Act 1998 ss 3-6
As a remedy, a claimant can ask for the public body's decisions to be declared void and quashed (or certiorari), or it could ask for an order to make the body do something (or mandamus), or prevent the body from acting unlawfully (or prohibition). A court may also declare the parties' rights and duties, give an injunction, or compensation could also be payable in tort or contract.Senior Courts Act 1981 s 31(1)
History
R v Glamorganshire Inhabitants (1700) 1 Ld Raym 580, review of rates levied by county justices to pay for bridge repairs Local authorities Poor Law guardians, public health boards, School Boards Indian Councils Act 1909 Board of Education v Rice AC 179 Local Government Board v Arlidge AC 120 Moss Empires Ltd v Glasgow Assessor 1917 SC (HL) (1927) Cmd 2842 Ridge v Baldwin AC 40, 72, Lord Reid, "We do not have a developed system of administrative law – perhaps because until fairly recently we did not need it". Re Racal Communications Ltd AC 374, 382, Lord Diplock, the creation of "a rational and comprehensive system of administrative law" was "the greatest achievement of the English courts" in his judicial career. R. v. North and East Devon Health Authority , held that a disabled woman told by a health authority she would have a "home for life" in a facility had a substantive legitimate expectation the authority would not shut it down. Sir Robin Cooke, quoted in R (Baker) v Devon CC 1 All ER 73, 88, an "administrator must act fairly, reasonably and according to the law. That is the essence and the rest is mainly machinery."
Delegated legislation
Statutory Instrument Henry VIII clause
Substantive judicial review
Applications for judicial review are generally divided into claims about the 'substance' of a public body's decision, and claims about the 'procedure' of a decision, although the two overlap, and there is not yet a codified set of grounds as is found in other countries or in other fields of law.In Germany, see the Administrative Procedure Act 1976, Verwaltungsverfahrensgesetz 1976, or in UK company law see the Companies Act 2006 ss 170-177 and 260-263. First, a claimant may allege that a public body's decision was outside the 'letter and spirit of the law': that an act was ultra vires or did not follow the 'proper purpose' for which the public body's powers were conferred. For example, in R (McCarthy and Stone Ltd) v Richmond Council the House of Lords held that Richmond Council had no statutory power to charge residents a £25 fee to consult its planning officers, because deciding planning permission was a statutory duty, and no charge can be levied by a public body without clear statutory authority. 2 AC 48
Similarly, in Hazell v Hammersmith and Fulham LBC the House of Lords held that the council acted beyond its powers in the Local Government Act 1972 by entering interest rate swaps transactions, a functional equivalent of borrowing money, which was limited by statute.Hazell v Hammersmith and Fulham LBC 2 AC 1 The courts particularly guard against the executive's attempt to overreach its power. In Ahmed v HM Treasury the Supreme Court held that the United Nations Act 1946 section 1 did not confer on the Prime Minister the right to pass two orders that froze or seized funds of people designed by the UN Security Council as suspected terrorists without any possibility for review. The Act could not have left the definition of what was 'necessary' or 'expedient' to the uncontrolled judgement of the Prime Minister, which affected the rights of citizens without the clear authority of Parliament. UKSC 2
A public body may also act unlawfully by misinterpreting its own powers. In Anisminic Ltd v Foreign Compensation Commission the House of Lords held that the Foreign Compensation Commission, a body to compensate British persons who lost property when Gamal Abdel Nasser nationalised the Suez Canal during the Suez crisis of 1956, made an error of law by interpreting its powers narrowly. The FCC thought an Order in Council about its powers, which excluded claims by anyone whose 'successor in title' was not a British company, applied to Anisminic Ltd, whose assets were acquired by an Egyptian company after 1956. But the House of Lords held that the Egyptian company was not Anisminic Ltd's 'successor' in title, that the FCC had therefore taken an irrelevant factor into account (its own error of law) in denying a claim, and that the decision had to be a nullity. It was also not possible for an ouster clause in the Act, saying nothing should question the FCC's decisions, to prevent judicial review. 2 AC 147
Determining the legality of a public body's action also extends to the purpose and therefore the policy objectives behind the legislation. In Padfield v Minister of Agriculture milk producers successfully argued that the Minister for Agriculture had wrongly exercised his power in the Agricultural Marketing Act 1958 section 19 by not raising subsidies for milk when transport costs changed. The country was divided into eleven milk regions, with different milk prices based on estimates of how much it cost to transport milk. The House of Lords held the Minister was wrong to refuse an investigation into milk price disparities because this frustrated a central policy of the Act: to ensure fair milk subsidies were paid, taking into account costs of production. AC 997, upholding Lord Denning MR's dissent in the Court of Appeal.
If public bodies take into account factors outside those necessary for exercising their judgement, a decision will also be quashed. So in R v Home Secretary ex parte Venables and Thompson the House of Lords held that the Home Secretary Michael Howard unlawfully took into account the irrelevant consideration of a petition organised by The Sun newspaper to not allow two men release from prison. Instead he should have taken into account the prisoners' progress during detention. AC 407
In the best known case, Associated Provincial Picture Houses v Wednesbury Corporation, a cinema claimed that the council's requirement that it stop admitting children aged under 15 on Sundays after a local poll was unreasonable. The Court of Appeal in 1948 held that this was not an unreasonable, irrational or absurd condition and therefore lawful. 1 KB 223 Lord Greene MR said that the different grounds of judicial review, including an error of law, regarding only relevant considerations, and absurd decisions, all 'run into one another', but that as a general concept a decision would only be unlawful if 'no sensible person could ever dream that it lay within the powers of the authority'.Contrast in company law Re Smith and Fawcett Ltd Ch 304, per Lord Greene MR