Grounds of Judicial Review
Needless to say those courts do not have an unlimited power to supervise the activities of administrative agencies. The principle of separation of powers dictates the various organs of the government to act within the scope of their respective sphere of powers and refrain from interfering on matters that are exclusively entrusted to others. So, judicial review does not authorize the court an outright power to interfere on administrative matters. The rational behind the need for the determination of the justifiable grounds of judicial review is, thus, to delineate the boundary where judicial review may be available to challenge administrative decisions.
As was clearly stated in the foregoing sub-section, the purpose of judicial review is to test the lawfulness of government’s decisions. Worth discussing point for this sub-section is, therefore, related to the determination of the grounds that may render an administrative decision unlawful/illegal. In order to delineate the boundaries in which judicial review may be called into operation, different jurisdictions crafted their own standards or criteria that may render administrative decisions unlawful or illegal. Australia can be taken as a good example in this regard. In Australia, an administrative decision is said to be unlawful if it breaks one of the criteria that are defined in section 5 of the Administrative Decision (Judicial Review) Act 1977 (‘AD (JR) Act’). The grounds of judicial review as outlined in section 5 of the AD (JR) include the following:
- A breach of the rules of natural justice;
- A failure to observe the procedures that were required by law to be observed in connection with the making of the decision;
- The person who purported to make the decision did not have jurisdiction to make the decision;
- The decision was not authorized by the enactment in pursuance of which it was purported to be made and
- The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. An exercise of power may be improper if the relevant conduct involves:
- · Taking an irrelevant consideration into account in the exercise of a power;
- · Failing to take a relevant consideration into account in the exercise of a power;
- · An exercise of a power for a purpose other than a purpose for which the power is conferred;
- · An exercise of a discretionary power in bad faith;
- · An exercise of a personal discretionary power at the direction or behest of another person;
- · An exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
- · An exercise of a power that is so unreasonable that no reasonable person could have so exercise the power;
- · An exercise of a power in such a way that the result of the exercise of the power is uncertain; and
- · Any other exercise of power in a way that constitutes abuse of the power;
- An error of law;
- The decision was induced or affected by fraud;
- There was no evidence or other material to justify the making of the decision, but only if:
- · The person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or
- · The person who made the decision based on the decision on the existence of a particular fact, and that fact did not exist and
- The decision was otherwise contrary to law.
- The grounds of judicial review incorporated under the Australian Administrative Decision (Judicial Review), as listed above, have predominantly common law origin. But some of them are refined and reformed in a manner that fits the Australian situation. It does not mean, however, that these criteria are not used in the continental law world as grounds for reviewing administrative decisions. In France, for example, many of these criteria are receiving blessing as bases for reviewing administrative decisions by administrative tribunals. Having this general information in mind, it seems important to proceed with the details under the subsequent sub-sections.
Simple (Narrow) Ultra Vires
The simple proposition that a public authority may not act out side its powers (ultra vires) might fitly be called the central principle of administrative law. The juristic basis of judicial review is the doctrine of ultra vires (Wade & Forsyth, p.35). In its reviewing capacity the court is essentially looking at whether a decision- making body has acted ‘ultra vires’or ‘intra vires’. The term ‘ultra vires’ means ‘without power’, while ‘intra vires’ means ‘within power.’ If a decision-making body acts ultra vires the reviewing court has the discretion to intervene (Cumper, p.291.), From the opinions of the authorities cited above, one can infer that the term ultra vires in administrative law context refers to decisions passed by administrative authorities without having the requisite power or in excess of the limits of the power conferred upon them. An administrative decision may be rendered ultra vires due to substantive or procedural issues affecting the decision.
Substantive Ultra Vires
The term substantive ultra vires refers to the substantive defects of the decision as contrasted to the procedural irregularities. In the strictest sense of the term, an administrative decision is said to be ultra vires in terms of substance where the decision maker exceeds the power duly entrusted to him/her in the public interests or where the subject matter of the decision falls outside the jurisdictional limit of the decision-maker. This goes in line with the principle that says each power has its own legal limits. Thus, where the decision maker passes decisions on matters falling outside the boundary of his statutory powers, there comes what we call substantive ultra vires in the narrow sense of the term. The underlining principle behind substantive ultra vires is that every power entrusted in the public interest has its own limits. So, when the decision-maker renders a decision that exceeds the power conferred upon him, it can be attacked through the forum of judicial review.
Procedural Ultra Vires
Even if the decision-maker passes a decision within the scope of the statutory power conferred upon him, still the decision may be rendered ultra vire because of procedural irregularities affecting the decision. The phrase procedural ultra vires refers to a decision passed disregarding mandatory (formal) procedural requirements. Procedural requirements could be obligatory (need strict compliance) or directory (provide direction to the decision-maker to be followed in at the discretion of the decision-maker in appropriate cases). Where there is a statutory procedure that dictates a course of an administrative action to be taken based on the established mandatory formal requirements, non observance of these requirements rendered the decision procedurally refers to ultra vires.
Procedural illegalities, also known in the broader sense as procedural improprieties applly not only to non-observance of mandatory statutory procedural requirements, but also to situations where the decision-maker fails to observe the rules of natural justice or fail to act fairly. See section 4.2.1 of this material in order to appreciate the rules of natural justice and fair hearing.
As a general rule, errors of fact made by the primary decision-maker are not to be corrected by a court. They are accepted as errors within the jurisdiction of the administrative decision-maker, and as such he or she is entitled to make them. Factual issues are typically issues that go to the merits of a decision, not to its legality. Jurisdictional facts are different. Whether or not a decision-maker does or does not have jurisdiction to make, a decision is a question of law and open to judicial review. (McClellan, p.7) A decision-maker who erroneously interpreted the law as providing a power that did not exist was said to have made a ‘jurisdictional error of law’. An error of fact can also be challenged if the error is jurisdictional. A jurisdictional error of fact occurs where the existence of a particular state of affairs is a condition precedent to a decision-maker actually having jurisdiction, (Cumper, pp. 302-303)
As can be inferred from the above-cited opinions, jurisdictional error results where the decision maker assumes jurisdiction over a subject matter either due to the wrong interpretation of the law or the wrong appreciation of facts that are essential conditions precedent for assuming jurisdiction over a subject matter. Jurisdictional error of law arises when, due to the wrong interpretation of the law, the decision maker exercises a power over a subject matter that actually did not fall under his jurisdiction. But jurisdictional error of fact happens while the decision-maker assumes jurisdiction over a subject matter in the absence of a certain fact that is set as a condition precedent to assume such jurisdiction. In short, jurisdictional error is one of the species of ultra vires that may give rise to judicial review.
Error of Law
As was discussed somewhere else, judicial review is concerned with testing the legality of the administrative decisions. This means that courts are more expertise to review errors of law than errors of fact. Broadly speaking, errors of law can be classified into ‘errors going to jurisdiction’ (jurisdictional errors of law) and errors of law ‘within jurisdiction’. According to Cumper, prior to the case Anisminic Ltd v Foreign Compensation Commission  2 AC 14, there was an important distinction between errors of law ‘going to jurisdiction’ (jurisdictional errors of law) and errors of law ‘within jurisdiction’ (errors of law on the face of the record). As was stated in the preceding sub-section, jurisdictional error of law refers to a decision made without power (ultra vires) due to the wrong interpretation of the law. But an error of law ‘within the jurisdiction’ is the type of error made by a decision-maker who errs in law whilst exercising powers which have been conferred on him/her. This type of error will not automatically render the decision ultra vires. The courts have discretion to intervene if the error of law appeared on the record of the decision. However, in Anisminic Ltd v foreign compensation, the House of Lords decision renders the distinction unnecessary in most cases. Their lordship decided that errors of law could be treated as going to jurisdiction, even when there had been an error made in the process of exercising power conferred, rather than an error in deciding whether the power had actually existed.
According to Cumper, following the decision in Anisminic case, the distinction between errors of law on the face of the record and jurisdictional errors of law is probably rendered obsolete. However, the House of Lords in this case did leave open the possibility of a decision-maker making an error of law within jurisdiction. As mentioned above, judicial review may be available where a body is acting within its powers but has erred in law whilst doing so and that error appears on the record relating to the decision. Cumper cited an important case related to the error of law on the face of the record as follows:
In R v Northumberland Compensation Appeal Tribunal, ex parte shaw  1 KB 388, a statute provided that all hospital employees who had been made redundant should be paid compensation. The amount of compensation was to be calculated not merely on the basis of the length of service in a particular hospital, but it was also to include periods of employment in any other local government service. The amount of compensation awarded by the Appeal Tribunal in this case reflected only the period of employment in the hospital and ignored previous service in other local government departments. The basis of the calculation was included on the record of the tribunal’s decision. The decision was therefore quashed. (Id., pp.302-303)
Failure to Discharge Statutory Duty
The grounds of judicial review are not limited to ultra vires acts in the positive sense. An agency’s failure to discharge a statutory duty towards the designated beneficiaries can also give rise to judicial review. For example, in the area of pension and social security, where the concerned organ of the government persistently fails to provide the benefit to the statutorily designated beneficiaries, the latter can invoke judicial review seeking mandamus (compelling court order). That is, an authority’s forbearance to discharge a statutory duty towards the beneficiaries without any strong reason can give rise to judicial review. The remedy that may be granted by the reviewing court in this case will be discussed in the last chapter.
Abuse of Power (Broad Ultra Vires)
For the purpose of judicial review, an ultra vires act can be liberally construed to include not only those decisions of an authority that are rendered with no power, in excess of power, or contrary to mandatory statutory procedural requirements such as discussed above; but it may also include those administrative decisions, although fall within the wide discretionary power of the decision-maker, may be found to be defective on the grounds of manifest unreasonableness, disproportionality, irrationality and other grounds that shall be appreciated in the subsequent sub-sections in turn.
Although there are critics labeled against conferring discretionary powers to administrative agencies for fear that such agencies may abuse such unrestrained powers, still it remains the hallmark in the science of administration. As Cane pointed out, discretion is a feature not only of a policy decision but also of decisions on questions of fact and law, which often have no ‘right answer’ but more than one ‘reasonable answer’ from which the decision-maker must choose. Discretion, as to procedure to be followed in making a decision, can also have an important impact on the decision itself, (Cane, p.133). Drawing a sharp contrast between discretion and ‘duty’, Cane further noted on the ways discretionary powers may be limited as follows:
The essence of discretion is choice; the antithesis of discretion is duty. The idea of ‘decision-making’ implies an element of choice: duty does away with the need to make decisions. Duty removes discretion; but discretion may also be limited without being entirely removed, by standards or guidelines or criteria which the decision-maker is to take into account in exercising discretion. (Id. Pp.133-134)
The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold different opinions as to which is to be preferred, (Lor Diplock cited in Wade and Forsyth, 365.) As expounded by the 19th centaury jurist Dicey, discretionary power should be controlled: uncontrolled (absolute) discretion is an evil to be avoided in most contexts. But according to Cane, discretion has both advantages and disadvantages and the purpose of controlling discretion should be to preserve the advantages to the greatest degree consistent with minimizing the disadvantages. Discretion has the advantage of flexibility; it allows the merits of individual cases to be taken into account. Discretion is concerned with the spirit, not the letter of the law, and it may allow government policies to be more effectively implemented by giving administrators freedom to adapt their methods of working in the light of experience. It is useful, in new areas of government activity as it enables administrators, to deal with novel and, perhaps, unforeseen circumstances as they arise. On the other hand, discretion puts the citizen in much more at the mercy of the administrator, especially if the latter is not required to tell the citizen the reason why the discretion was exercised in the particular way it was. Discretion also opens the way for inconsistent decisions, and demands a much higher level of care and attention on the part of the administrator exercising it (Ibid. P.135)
Discretion may be structured by providing that it should be exercised ‘reasonably’ –this gives the decision-maker a degree of freedom because people may fairly disagree about what is reasonable, but it rules out certain results as unacceptable. (Id.) Despite the difficulties to demarcate the line between reasonable decision and its antithesis- unreasonable, there is a consensus in the common law world that when a decision-maker reaches a decision that no reasonable person would have made, it can be well taken as a ground for judicial review. In R v Greenwich London Borough Council, ex parte Cedar Holdings  RA 17 it was held that a decision is unreasonable if it is the kind of decision that is so outrageous that no right thinking person would support it.
In Wednesbury case, a case involving a decision to deny access to a movie theatre to youngsters on Sunday, presumably to preserve their moral health, in refusing to interfere with the decision, Lord Greene MR noted that there was considerable overlap between many of the grounds of review that fell within the rubric of “unreasonableness.” In words which have been repeated by countless judges on many occasions his Lordship said:
It is true that 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 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 power of the authority. Warrington LJ in Short v Poole Corporation  Ch 66 at 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 an extraneous matter. It is so unreasonable that it may be described as being done in bad faith; and, in fact, all these things run into one another. (Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223 p. 229)
This ground came to be known as Wednesbury unreasonableness. It is important to emphasis Lord Green’s words that state “something so absurd that no sensible person could ever dream that it lay within the power of the authority.” Lord Green stated further: “It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, is quite right; but to prove a case of that kind would require something overwhelming…” (Id. P.230)
In the effort to delineate the border between legality and merits, McClellan quoted the opinion of courts from different cases as follows:
Courts have repeatedly emphasized that the “unreasonableness” ground “must not be allowed to open the gate to judicial review of the merits of a decision or action taken within power.” Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 42.) The requirement of “something overwhelming” has by and large been taken seriously by judicial decision-makers, so that a decision cannot be interfered with unless it is so unreasonable that it is “obvious” that the decision-maker “is acting perversely,” (Puhlhofer v Hillingdon London Borough Council  AC 484 at 518.) or it is so unreasonable that the decision is one “for which no logical basis can be discerned” (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626.) or one that “amount[s] to an abuse of power.” (Attorney-General v Quin (1990) 170 CLR 1 at 36.)…
An authority has listed the following other types of cases where administrative decisions have been set aside for Wednesbury unreasonableness:
- Where a decision is devoid of plausible justification.
- Where a decision-maker has made an erroneous finding of fact on a point that is fundamentally important in the case.
- Where the decision-maker has failed to have regard to departmental policy or representation.
- Where the effect of the decision is unnecessarily harsh.
- When the decision-maker has failed to give genuine, proper or realistic consideration to a matter. (Beazley, “The Scope of Judicial Review”, cited in McClellan, Id.)
- Where there are demonstrable inconsistencies with other decisions.
- Where there is discrimination without a rational distinction.
Wade & Forsyth stated that in the law of a number of European countries there is a ‘principle proportionality’, which ordains that administrative measures must not be more drastic than it is necessary for attaining the desired result (Wade & Forsyth, p.366). According to these authorities, the principle of reasonableness and proportionality cover a great deal of common grounds. A sever penalty for a small offence may be challenged based on the principle of proportionality or reasonableness. They cited further Lord Hoffmann as follows: “it is not possible to see daylight between them.” Nevertheless a clear difference has emerged and has been corroborated by the House of Lords. Proportionality, requires the court the action taken was really needed as whether it was within the range of course of action that could reasonably be followed.
The concept of proportionality has its origin in the civil law of continental Europe. It takes whether:
(i) The legislative objective is sufficiently important to justify limiting a fundamental right;
(ii) The measures designed to meet the legislative objective are rationally connected to it; and
(iii) The means used to impair the right or freedom are no more than is necessary to accomplish the objective (de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69 at 80).
Proportionality was first adopted in England as an independent ground of judicial review in R v Home Secretary; Ex parte Daly  2 AC 532. It was accepted that while there was considerable overlapping between proportionality and the traditional grounds of judicial review (especially Wednesbury unreasonableness), the test of proportionality led to a “greater intensity of review” than the traditional grounds. What this means in practice is that consideration of the substantive merits of a decision plays a much greater role (McClellan, p.16.), As McClellan further quote from the case cited above, there are three significant differences between proportionality and the traditional grounds of review that may lead to different outcomes in some cases:
First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly…the intensity of the review…is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.
The adoption of proportionality as an independent ground of review is not without any problem. It may let courts interfere on the merits of an administrative decision which is not within the purview of judicial review. Appreciating this problem, McClellan writes:
The adoption in England of proportionality as an independent ground of review, and the shift towards examining the merits that this involves, represents a significant departure from the strict observance of the distinction between legality and merits that still prevail in Australi. Proportionality has been accepted by the High Court of Australia as a test of constitutional validity in relation to certain heads of power. However, it has not been endorsed as an independent test for the validity of subordinate legislation.)
Concerning the role of proportionality in the context of judicial review of administrative decisions in NSW [New South Wales], McClellan quoting the explanation made by Spigelman writes:
It can be accepted that a complete lack of proportion between the consequences of a decision and the conduct upon which it operates may manifest unreasonableness in [wednesbury] sense. However, the plaintiff also invoked “proportionality” as a new and separate ground of review.
Proportionality has not been adopted as a separate ground for review in the context of judicial review of administrative action, notwithstanding a considerable body of advocacy that it be adopted. The concept of proportionality is primarily more susceptible of permitting a court to trammel upon the merits of a decision than Wednesbury unreasonableness. This is not the occasion to take such a step in the development [of] administrative law, if it is to be taken at all. (Bruce v Cole and Ors (1998) 45 NSWLR 163 at 185)
As can be inferred from the above, proportionality can be invoked as an independent ground of judicial review in England, where as in Australia, it cannot be invoked as an independent ground of judicial review, but only within the spectrum of the classical Wednesbury unreasonableness. In short, the notion of proportionality has received increasing importance in recent years. This requires a certain proportion or balance between the administrative measure to be taken and the end to be achieved. In France, too, disproportionality of the administrative measure may be invoked as a ground for reviewing the decision by administrative courts.
The distinction between irrationality and unreasonableness is not as such clear; some authorities appear to use both as separate grounds of judicial review, whereas some use ‘unreasonableness’ as one of the typologies of ‘irrationality’. Cane, for example, write, “‘Irrationality’ is more often referred to as ‘unreasonableness’ So, for writers like are the expounding of what constitutes unreasonable decision is a manifestation of its irrationality and vice versa. However, which include, writers like Cumper provide a list of the species of irrationality:
- Failure to exercise discretion properly: where the decision-maker either did not exercise discretion sufficiently free from outside influences, or abused the discretion;
- Acting as though limited by external authorities: where the decision-maker fails to exercise any discretion at all, believing himself or herself to be bound by external rule;
- An authorized delegation
- Decision-maker applies policy without flexibility: where the decision-maker who is conferred with discretionary powers is expected to consider each case on its own facts and merits but renders a decision rigidly without considering whether the particular case has extenuating factors which would necessitate them making an exception;
- Abuse of discretion: where the decision-maker uses power for an improper purpose or frustrates the legislative purpose; makes a decision on the basis of irrelevant factors or fails to take account of relevant factors; reaches a decision that is unreasonable in itself; reaches a decision that is unreasonable itself;
- Uses of power for an improper purpose or to frustrate the legislative purpose;
- Forming decision on basis of irrelevancies or ignoring relevant factors;
- And unreasonableness.
Relevant and Irrelevant Considerations
As provided in the preceding sub-section, reaching at a decision on the basis of irrelevant considerations, or by disregarding relevant considerations, is one of the manifestations of irrationality. So, as stated in the case R v Secretary of State for Social Services, ex parte Wellcome Foundation Ltd  1 WLR 1166, it is a reviewable error either to take account of irrelevant considerations or to ignore relevant ones, provided that if the relevant matter has been considered or the irrelevant one is ignored, a different decision or rule might (but not necessarily would) have been made. According to Cane, many errors of law and fact involve ignoring relevant matters or taking in to account of irrelevant ones. Ignoring relevant considerations or taking account of irrelevant ones may make a decision, or rule unreasonable in accordance with statutory policy.
As Cooke J pointed out in the case Ashby v. Minister of Immigration  1 NZLR 222 at 224, considerations may be obligatory i.e. those which the Act expressly or impliedly requires the Minister to take into account and permissible considerations i.e. those which can properly be taken into account, but do not have to be (Cited in Wade & Forsyth, p.381.) Where the decision-maker fails to consider those obligatory considerations expressed or implied in the Act, the decision has to be invalidated. Whereas, in the case of permissive considerations, the decision-maker is not required to strictly abide to such considerations. Rather, the decision-maker is left at discretion to take the relevant considerations having regard to the particular circumstances of the case by ignoring those irrelevant ones from consideration. According to Cane, the number and scope of the considerations relevant to any particular decision or rule will depend very much on the nature of the decision or rule. Citing the opinions of different authorities he writes:
For example, licensing authorities are normally required to consider not only the interests of the applicant and of any objectors but also of the wider public. By contrast, for example, decisions about individual applications for social security benefits are usually to be made solely on the basis of considerations personal to the applicant. (D. Galligan, Discretionary Powers (1986), 188-195).) It should be noted, however, that the courts do not, under this ground of review, engage in ‘hard-look’ review (as it is called in the United States [Id. P 314-420]); they do not require decision-makers to show that they have considered all relevant available evidence and that the decision made is in the light of that evidence, a rational way of achieving desired policy goals. All that the courts do is to decide whether the particular consideration(s) specified by the complainant ought or ought not to have been taken into account. (Cannock Chase DC v Kelly  1 All ER 152.) In effect, under this head the courts only require the decision-maker to show that specified considerations were or were not adverted to. In technical terms, the burden of proof is on the applicant, but the respondent will have to provide a greater or less amount of evidence as to what factors were or were not considered and how they affected the decision. A mere catalogue of factors ignored or considered may not be enough: R v Lancashire CC, ex parte Huddleston  2 All ER 941.) Decision-makers are not required to conduct comprehensive pre-decision inquiries or to justify the decision made in the light of the relevant and available material. Some academics argue strongly that English courts should follow something like the hard-look approach, but judges are unlikely to do so for fear of being seen to be interfering unduly with the policy choices of decision-makers.
It is suffice to say that where the decision-maker fails to take relevant considerations into account but takes those irrelevant ones, there is high probability that the outcome of the decision may be affected by defects than not. So, the interference of the court to review such kind of decisions seems justifiable.
It is that administrators have a general duty to exercise their powers in good faith to achieve the purposes for which those powers are entrusted to them according to the interest of the public. Although it is difficult to discern the constituting elements of all decisions rendered in bad faith, one can safely say that it indicates lack of good faith on the part of the decision-maker. Contrasting bad faith with dishonesty, Wade & Forsyth states:
It is extremely rare for public authorities to be found guilty of intentional dishonesty: normally they are found to have erred, if at all, by ignorance or misunderstanding. Yet the courts constantly accuse them of bad faith merely because they have acted unreasonably or on improper grounds. Again and again it is laid down that powers must be exercised reasonably and in good faith. But in this context ‘in good faith’ means merely ‘for legitimate reasons’. Contrary to the natural sense of the words, they impute no moral obliquity (p. 416.)
In the Wednesbury case cited earlier, Lord Green MR, used the term ‘bad faith’ interchangeably with unreasonableness and extraneous considerations as follows:
It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology 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 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 LJ in Short v. Poole Corporation gave the example of the red-haired teacher, dismissed because she had red hairs. This is unreasonable in one sense. In another 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.
Appreciating the interconnection between the other grounds of judicial review such as unreasonableness, irrationality and the consideration of irrelevant matters or ignoring relevant matters, Wade and Forsyth say:
Bad faith scarcely has an independent existence as a distinct ground of invalidity. Any attempt to discuss it as such would merely lead back over the ground already surveyed. But a few examples will illustrate it in its customary conjunction with unreasonableness and improper purposes. If a local authority were to use its power to erect urinals in order to place one ‘in front of any gentleman’s house’, then ‘it would be impossible to hold that to be a bona fide exercise of the powers given by the statute’. If they wish to acquire land, their powers are ‘to be used bona fide for the statutory purpose and for none other’. If they refer numerous cases en masse to a rent tribunal without proper consideration, this is not ‘a valid and bona fide exercise of the powers’. If a liquor license is cancelled for political reasons, the minister who brought this about is guilty of ‘a departure from good faith’. Such instances could be multiplied indefinitely. Cases of misfeasance in public office, where the misfeasor knows that he is acting outside his powers, could be added to the collection.
The out come of a decision may be affected due to the existence of bad faith on the part of the decision-maker. The unreasonableness or irrationality of a decision may result from a decision that is induced by bad faith on the part of the decision maker. But the reverse may not be always true. That is, unreasonable decision may be passed in good faith due to the erroneous bona fide appreciation of matters. So, as the interrelation between unreasonableness and bad faith is not as such overlapping, the existence of the former may not help us to infer the existence of bad faith on the part of the decision-maker. As discussed earlier, where a decision is found manifestly unreasonable, judicial review can be invoked against such decision regardless of whether the decision is passed in good faith or its antithesis bad faith. But it is difficult to expect reasonable decision, where the decision is induced by bad faith or extraneous factors. Thus, it is possible to treat bad faith within the spectrum of the various grounds of judicial review discussed earlier.
Limitations on Judicial Review
The preceding sections have thoroughly discussed the grounds that give rise to judicial review. This section shall further appreciate some of the most important procedural and substantive constraints of judicial review. Issues related to the determination of the parties to a judicial review, the availability, timing and scope of judicial review and other preliminary hurdles, if any, are the main concerns of this section.
According to Cumper (Cumper PP.292-293.), in determining whether a particular issue is appropriate or not for judicial review, a court [in England] will often consider the following factors, by asking:
- § Is the decision in question a public law matter and thereby subject to judicial review?
- § Has the right to judicial review been expressly excluded, say in a statute?
- § Has the applicant sufficient interest in the issue (locus standi)?
- § Has the applicant sought permission for judicial review within 3 months of the actual reason for bringing the application?
- § Do specific grounds for judicial review exist?
- § But these are not the only questions that the court may ask in determining whether the decision complained of is appropriate for judicial review or not. The following questions must be added to the above questions:
- § Are internal avenues exhausted?
- § Is the decision in question ripe for judicial review?
Since many of these questions are appreciated in the previous chapters of this module, the discussion in the subsequent sub-sections will give due attention to some selected issues.
Is the decision in question a public law matter and thereby subject to judicial review? As you may recall from the discussion in the previous units, administrative law, as a branch of public law, concerns with the behavior of the various administrative organs of the government in their relation with citizens and the interrelation among themselves. In principle, only decisions of administrative bodies passed in their official capacity (decisions of governmental nature) can be subjected to judicial review. this means that for acts or decisions falling outside the purview of administrative law, the complainant cannot invoke judicial review.
Do specific grounds for judicial review exist? The grounds or conditions that justify judicial intervention/review are thoroughly discussed in the preceding section. The point that should be made clear here is that the reviewing court does not have unlimited power to test the decisions of administrative agencies. The power of the court is limited to test the legality of the decision complained of. So while the court determines to review the decision of an agency, it has to make sure that any of the specific grounds/conditions justifying judicial review as discussed earlier are met.
The other important point included in the above list, although it may necessarily be taken as a mandatory requirement by all jurisdictions, is related to seeking permission for judicial review. For example, in England, if an aggrieved person wants to invoke judicial review, s/he must first seek permission to apply for judicial review. Without securing permission upon application from the concerned court, within the statutory time limit of three months, an aggrieved person cannot invoke judicial review. The rational behind putting this procedural requirement is said to be the need to filter out those cases which are not amenable to judicial review. So, in determining whether a particular issue is suitable for judicial review, the court is expected to consider all the factors listed above.
As was provided in the above lists, in order to obtain leave/permission to bring an action for judicial review, the applicant must have sufficient interest in the matter to which the application relates. A worth discussing point here is related to the nature of the interest affected. What is a ‘sufficient interest’? In answering this question, Cane gave a frequently quoted remark as follows:
The guidance given in the Fleet Street Casuals case as to the meaning of the term ‘sufficient interest’ is very abstract. Can anything more concrete be said on this topic? In answering this question, we need to distinguish between personal interests and public interests. An applicant would obviously have a sufficient personal interest in a decision which adversely affected the applicant’s health or safety. A person would also have a sufficient interest in a decision which affected his or her property or financial well-being. For instance, neighbours have sufficient interest to challenge planning decisions in respect of neighbouring land. Producers and traders have standing to challenge the grant of a license or other benefit to a competitor, and a taxpayer might have standing to complain about the favourable treatment of a competitor by the revenue. The expenditure of time, energy and skill in caring for a particular species of wildlife or some feature of the natural environment could give a person a sufficient interest in a decision adversely affecting that species or feature. An aesthetic interest in the built environment may also generate a sufficient interest.
What about public interest? It seems clear that the public has a sufficient interest in the observance of basic constitutional principles such as ‘no taxation or expenditure without parliamentary approval’. The public also has an interest that governmental powers such as that to ratify treaties or to set up a non-statutory compensation scheme (Cane, pp. 57-58.)
An important case is Inland Revenue Commissioners v National Federation of Self-Employed and Small business Ltd  AC 617 – commonly known as Lords held that NFSSB did not have locus standi to challenge the Revenue’s decision the Fleet Street casuals case. The NFSSB was attempting to challenge the Revenue’s grant of a tax amnesty to Fleet Street casual workers on the grounds that it was illegal. The House of Lords held that NFSSB did not have locus standi to challenge the Revenue’s decision with regard to another group of taxpayers. According to Cumper, the House of Lords stated that the question of locus standi should be looked at in two stages:
- At the application for leave for judicial review; and
- At the hearing it self
At the first stage, only cases where the applicant clearly does not have sufficient interest would be rejected. At the second stage, however, a more detailed look at the applicant’s ‘standing’ should take place- it then becomes important to examine the merits of the case if the applicants have strong grounds for review, it is more likely that they will be deemed to have the necessary locus standi (Cumper, p. 297.)
In determining whether or not the applicant has sufficient interest (locus standi) for judicial review, the general opinion is that the legal and factual circumstances of each case need to be considered critically. However, Cane suggested the following guidelines need to be considered:
- Examining the case law: the question of sufficient interest is partly a question of legal principle –what do earlier cases say about standing? – and partly a question of fact to be decided in the light of circumstances of the case before the court. So it will often be impossible to be entirely sure, in advance of litigation, whether any particular applicant has a sufficient interest.
- Look at the relevant statute: the question of sufficient interest has to be judged in the light of the relevant statutory provisions – what do they say, or suggest about who is to be allowed to challenge decisions made under the statute.
- Consider the nature of the applicant’s complaint: having look at the substance of the complaint may patently show that the applicant has or does not have sufficient interest.
- The seriousness of the alleged wrong: whether the applicant’s interest is sufficient depends to some extent on the seriousness of the alleged illegality. Standing is a preliminary question, separate from that of the substance and merits of the applicant’s case: standing rules determine entitlement to raise and argue the issue of illegality, and it makes little sense to say that entitlement to argue the merits of the case depends on whether one has a good case on the merits. Only if the chance of failure at the end of the day approaches certainty should the likely outcome affect the question of access to the court.
- Courts dislike the possibility of there being a lacuna in the legal system – if there is a chance that an aggrieved person will not have an alternative means of challenging the decision in question, it increases the likelihood that the applicant will satisfy the locus standi requiremen. (Cane, pp. 49-50.).
- Concerning the function/purpose of standing rules, Cane further states:
- In general terms, it is to strict access to judicial review. But why restrict access? One suggested reason is to protect public bodies from vexatious litigants with no real interest in the outcome of the case but just a desire to make things difficult for the government…. Other reasons for restricting access have been suggested: to prevent the conduct of government business being unduly hampered and delayed by ‘excessive’ litigation; to reduce the risk that civil servants will behave in over-cautious and unhelpful ways in dealing with citizens for fear of being sued if things go wrong; to ration scarce judicial resources; to ensure that the argument on the merits is presented in the best possible way and by a person with a real interest in presenting it (but quality of presentation and personal interest do not always go together); to ensure that people do not meddle paternalistically in the affairs of other ( pp.59-60).
- Concerning the function/purpose of standing rules, Cane further states:
In short, the purpose of the standing requirements is simply to ‘filter out’ unmeritorious, frivolous or trivial applications, and thereby to save the court time (Cumper, p.298). The general requirement of standing dictates that in order to invoke judicial review, the complainant must show that the decision in question is one injurious to his/her interest. According to Brown & Bell, “this requirement creates no difficulty in proceedings against the administration for damages. It is rather in proceedings to annul an administrative act that the rules governing the plaintiff’s locus standi…have been worked out in considerable detail.
Then, who would be the applicants for judicial review? According to Cane, judicial review is available not only to citizens (individuals, corporations, trusts and so on) with grievances against government, but also to government bodies with a grievance against another government body. To be entitled to seek a remedy by way of judicial review an applicant must have sufficient standing (locus stander P. 420). Dwelling on this principle, the House of Lords in the Fleet Street casuals case cited above rejected the application of the National Federation of Self-Employed and Small Business Ltd that was attempting to challenge the Revenue’s grant of a tax amnesty to Fleet Street casual workers on the grounds that it was illegal. The principle dictates that only individuals or a group of individuals whose interest is substantially affected may invoke judicial review.
Concerning application for judicial review by pressure groups, there is no consistent practice among jurisdictions. Some countries allow action by pressure groups such as associations to invoke judicial review on behalf of their members. Even the case laws of England, shows us lack of inconsistency: some pressure groups are denied access to judicial review on the grounds of standing, but some others have been shown successfully appearing before the court of review representing others. Some countries like India also allow public interest litigation – where any individual is allowed to seek judicial review of an agency’s action on matters that affect the interest of the general public.
Coming back to the issue of standing in Ethiopia, the FDRE Constitution in Article 37 stipulates that:
“(1) Every one has the right to bring justiciable matters to, and to obtain a decision or judgment by, a court of law or any other competent body with judicial power.
(2) The decision or judgment referred to under sub-Article 1 of this Article may also be sought by:
(a) Any association representing the collective or individual interest of its members; or
(b) Any group or person who is a member of, or represents a group with similar interests.
As clearly stated in the above provisions of the constitution, any one whose interest is sufficiently at stake, any association on behalf of the collective interest of its members or on behalf of the individual interest of its members, any group of individuals with similar interests or any member of such identifiable group on such matters of common interest can apply for judicial review provided that the matter is justiciable and the avenue of judicial review is there. However, the provisions of the constitution stated above are not clear enough whether or not they give room for public interest litigation on matters that concern the general public. Of course, there appear under the constitution a departure from the rigid requirements of locus standi provided under our civil procedure code that restricts the right of standing only to those persons whose interest is directly and sufficiently at stake. But on matters related to environmental Pollution, the Environmental pollution Control Proclamation authorizes any one to institute a complaint before the concerned organ of the government without the need for showing locus standing.
The other limitation on the availability of judicial review is related to the justiciability of the decision in question. Broadly speaking, administrative controversies can be classified into justiciable and non-justiciable. “Justiciable controversy” as defined in Black’s Law Dictionary, “is a controversy in which a present and fixed claim of right is asserted against one who has an interest in contesting; rights must be declared upon existing state of facts and not upon state of facts that may or may not arise in future.”
The genesis of the doctrine of justiciability is traced back to the U.S.A. Constitution. Under Art III of the U.S.A. Constitution, matters not to be precluded as being ‘nonjusticiable’ need to pass the screening test of “case of controversy” doctrine. Courts require that litigation be presented in an adversary form and be capable of judicial determination with out leading to violation of the principle of separation of powers (Destaw Andarge, [Addis Ababa University Facilty of Law (unpublished)].) The justiciability of the controversy refers to the capability of the disputed state of fact to be resolved by the application or interpretation of existing laws. Courts are expected to entertain only issues that can be legitimately judicialized (justiciable issue) – issues that can be conclusively resolved through the application or interpretation of laws in force.
The classification of the disputed issues into justiciable and nonjusticiable has a far-reaching implication on the courts judicial power in general and reviewing power in particular. Only justiciable matters are said to be suitable or appropriate for judicial appreciation. As courts are experts in law, it is justifiable to make them the final arbiters of law. But on nonjusticiable controversies – controversies that are not capable of being resolved through the application or interpretation of existing laws, for example, political/ministerial decisions or purely administrative/managerial decisions are not suitable for judicial consideration. As was discussed somewhere else, the scope of judicial review is limited to testing the legality or illegality of the decision contested. The reviewing court does not concern with the merits of the decision. Courts are not expected to have better expertise on the merits of the decision than the concerned administrative agencies. Rather, the bureaucracies that are composed of experts from different walks of the profession are said to have better expertise on administrative matters. Extending judicial review to nonjusticiable controversies is not only inappropriate for the court’s business; it may also be against the principle of separation of powers. The principle of separation of state power dictates that each organ of the government shall refrain from interfering in the affairs of the others. This means, inter alia, that the judiciary should refrain from unduly interfering in matters that are exclusively entrusted to the other organs of the government. Particularly important to the discussion in hand is that the judiciary should not interfere in matters that are exclusively reserved to the administrative organ of the government such as political and purely administrative or ministerial issues. Hence, where an application seeking permission for judicial review is brought to the competent court, it is advisable to check whether the decision contested is justiciable or otherwise before hand.
Exhaustion and Ripeness
Judicial review is the last resort that can be invoked by a party aggrieved by the decision of an administrative body after exhausting all the avenues available in the concerned agency. Being the last resort, the party aggrieved must go first through the internal agency avenues. Thus, a party seeking judicial review will usually be required, as a condition precedent to challenge the validity of the administrative action, to exhaust all the remedies or avenues available in the administrative channels. The basic tenet behind this rule is that agencies must be given the opportunity to rectify their mistakes and resolve matters in light of their own policy objectives and priorities before judicial intervention. As was discussed earlier, depending upon their administrative organization, agencies may have their own internal grievance/complaint handling avenues. These agency avenues have to be exhausted before judicial review is sought. Where, for example, there is a statutory right to appeal against the decision in question before a body within/outside the agency or before a regular court, judicial review cannot be invoked. Normally, an aggrieved party may not invoke judicial review before looking for agency internal remedies. But the doctrine of exhaustion of internal remedies may be successfully raised as a defense at the hearing stage by the concerned agency. The agency raising defense must prove, of course, the existence of a suitable internal avenue that ought to have been used by the complainant. However, in case where there is an excessive delay on the part of the administrative agency or where there is a great possibility that the complainant will incur an irreparable injury awaiting agency review, the applicant may be dispensed from the requirement of exhaustion of internal remedy.
The doctrine of exhaustion of internal remedies, in addition to giving agencies the opportunity to rectify their mistakes in their own avenues in the light of their policies, also avoids premature intervention of the court on administrative matters and relieves the court from seized by over flooding administrative complaints.
The other important limitation on the availability of judicial review is ‘ripeness’. In order to invoke judicial review, the case complained of must be ‘ripe for review’. The requirement of ‘ripeness’ shares some common features with the doctrine of exhaustion of internal remedy. It requires the complainant to wait until the concerned agency has passed its final decision. Before the concerned agency passes its final decision over the subject matter, a party cannot invoke judicial review against a speculated or hypothetical future decision. Until the concerned agency gives its decision on the subject matter, as a rule, judicial review may not be invoked.
The requirements of finality and ripeness are designated to prevent premature court intervention in the administration process, before the administrative action has been finally considered, and before the legal disputes have been brought into focus. However, in some cases where the claim has urgent character that on delay itself may inflict irreparable injury, the controversy would be as ripe for judicial review consideration as it calls ever be. The question in such cases is whether administrative inaction is equivalent to denying relief’. So, where an agency excessively or unreasonably delays or withholds action/decision altogether, although no final decision has been made, judicial review can be invoked seeking appropriate remedy. In this case, the requirement of ripeness (finality) may not stand valid to preclude judicial review. In this regard, it deems important to cite as a closing remark the following note concerning the practice in French:
It [the requirement of prior decision or ripeness], cannot, however, be used as a device on the part of the administration to deny the victim justice; thus, the silence of the administration when faced with the question for compensation is, by special statutory provision, treated as an implied rejection of the request after the lapse of four months. (Brown & Bell, p.157).
As it has been already stated in the previous units of this module, judicial review (the supervisory power of the court) is treated, especially in the common law world as the inherent power of regular courts. Since courts are the ultimate arbiters of the law, it is argued that they have an inherent power to review any administrative decision where any of the grounds for review are there. The term ‘inherent’ in this context implies that the source of the reviewing power of the court is not statute; but it is inherent in the very fundamental principle of division of state power among the three organs of the government where by judicial power is ultimately vested in the regular courts.
Despite the fact that statutes are not the source of the supervisory power of courts, it is not uncommon to exclude this power of the court by statutes. There are occasions where a statute may exclude judicial review of agency decisions expressly, or impliedly.
While delegating rulemaking and/or judicial powers to an agency, the legislature may in the parent act expressly preclude the power of regular courts to review decisions of the agency passed in such capacity. That means although the source of the reviewing power of the court is not statute, such power can be excluded by incorporating a finality clause in a statute (the Parent Act). However, such exclusion has to be expressly stated if it is needed to have effect in limiting or eliminating the inherent power of the court. For example, where the Parent Act incorporates a provision stating that the findings or decisions of the agency on such and such matters ‘shall not be called into question’ or ‘shall be final’, what does this finality clause imply? Is the intention of the parliament here to exclude the right to appeal or to deny any access to court to challenge any decision made under the Act? Authorities suggest that unless otherwise the finality clause incorporated in an Act expressly and clearly excludes judicial review of a decision passed under the Act, it has to be interpreted restrictively to mean no appeal can be lodged against the decision. Cane, for example, stated: “judicial review is seen as a basic right of citizens which the legislature will be taken to have excluded only by the very clearest words. This attitude seems to be the result of viewing judicial review as chiefly designed to protect the rights of the individual from unlawful interference by government.” (p.81). There are similar arguments in case laws. In this regard it is important to reproduce the following landmark cases cited in Cumper’s work:
Some attempts at exclusion, however, will never oust the court’s jurisdiction. For example, in R v Medical Appeal Tribunal, ex parte Gilmore  1 QB 574, the Court of Appeal held that a clause stating that a decision of the Tribunal ‘shall be final’ would not exclude the court’s jurisdiction to review. Lord Denning stated that ‘the remedy by certiorari is never to be taken away by statute except by the most clear and explicit words’ and that the word ‘final’ only means “without appeal” and not without recourse to certiorari.” Similarly, in Anisminic Ltd v Foreign Compensation Commission  2 AC 147, the Court of Appeal held that a clause in a statute stating that a decision of the FCC ‘shall not be questioned in any court of law’ would not exclude the court’s jurisdiction to review where the decision-maker had made an error of law which affected his/her power to decide. In asserting the court’s right to retain the power of judicial review, Lord Wilberforce noted: “What would be the purpose of defining by statute the limit of a tribunal’s powers, if by means of a clause inserted in the instrument of definition, those limits could safely be passe.” (Cumper, pp. 295-296).
At this juncture, an important question may be raised: What will happen where there is no express statutory exclusion on judicial review? Concerning this issue, Cumper states the following remark:
On occasions where there has been no express attempt in a statute to exclude judicial review, the courts may decide that they have been impliedly excluded because an alternative remedy exists. However, the court will retain discretion to review, even where there is an alternative remedy available, if the case involves (inter alia) serious illegalities or to not intervene would lead to a serious delay or an unsatisfactory outcome for the applicant (P. 296).
However, the implied exclusion is indicated here has a provisional nature. As discussed in the preceding sub-section, until after the alternative remedies are exhausted by the complainant, in line with the principle of the doctrine of exhaustion of internal remedies, the court is required to refrain from prematurely interfering in administrative matters. For detail, refer to the discussion in the previous section.
Another important question may be raised here. What about in case the legality of the finality clause that prohibits judicial review is questionable? In the United States, no problem as the US Supreme Court has the power to interpret the Constitution; it can automatically invalidate the statute that incorporates such unconstitutional finality clause. But, the answer may be different in the United Kingdom. As was discussed somewhere else, the UK Parliament is sovereign. It can promulgate any law whatsoever. In this regard, the court cannot question the status of the law enacted by the Parliament. So, where in a statute the UK parliament incorporates a finality clause that expressly precludes the court to review administrative decision on a certain subject matter, the court will not do any thing even if the legality of such clause or the administrative decision passed under its cover is questionable. In this regard, it is important to see the French experience that is closely similar to that of the situation in Ethiopia. The French parliament is sovereign in the sense that statutes promulgated by the parliament cannot be subjected to judicial review (by administrative or civil court) for reasons of unconstitutionality. This is the exclusive power of the Constitutional council. Dwelling upon this constitutional theory, one can say that French courts, be it administrative or civil court, cannot bypass the “sufficiently categorical words of exclusion in a statute” that excludes the jurisdiction of administrative courts to review some administrative decisions. However, the paradox is noted as follows:
It is a striking fact, however, that there is no recorded instance of this [exclusion of jurisdiction] having occurred. Judicial review of administrative action has become so much part and parcel of the basic republican tradition which underlies all constitutions since 1875 that it is inconceivable in the present temper of French politics that any parliament would be willing, or any government would venture, to break with that tradition (Brown & Bell, p. 164).
Thus, as it can be inferred from the opinion cited above, French administrative courts have, from their rich experience, developed a sort of unwritten ‘general principle of law’ as a kind of basic legal framework into which the statute must somehow be fitted. Thus, the presumption in France is in favour of judicial review of administrative actions.
However, in Ethiopia, wherever there appears finality clause incorporated in a statute the constitutionality of which is questionable, or where an illegal administrative decision is passed under the cover of such finality clause be itself constitutional or unconstitutional, what can the court do? Obviously, where the constitutionality of the finality clause is a matter of interpretation, this is exclusively the power of the House of Federation. It has to be referred to the House. But, where the finality clause as a plain fact contravenes any fundamental principle of the constitution, or even if the finality clause is presumed as if it were constitutional, but the administrative decision passed under its cover as a plain fact contravenes any higher law, it seems that it is a matter of policy advisable for the court to challenge the decision. After all, the intention of the finality clause is not to galvanize illegal acts of the administration, but to achieve certain intended objectives. But where things go contrary to what was intended for, why should such clause be observed to shield the corrupt administrator’s act?