The second ground is irrationality. This ground is often used interchangeably with Wednesbury Unreasonableness, after Associated Provincial Picture Houses Ltd v. Wednesbury Corp (1948) in which such unreasonableness was defined by Lord Greene as a decision “so unreasonable that no reasonable authority would have come to it”. This can be a tricky area for the judiciary because most would agree that it is not their place to judge the merits of a decision, which is what they appear to be doing in considering its reasonableness. However, while this is a problem theoretically, in practice the test has been successful on the whole. There is a sliding scale of scrutiny which the courts use in deliberating unreasonableness: Non-Justicable, ordinary Wednesbury, Super Wednesbury and Anxious Scrutiny. Non-justicable cases tend to involve the executive (e.g. national security) and the judiciary is much less likely to intervene. On the other hand, anxious scrutiny is likely to be found in a case involving human rights where the judges will be very likely to find a decision unreasonable. A judicial remedy ordered on grounds of unresonableness is most likely to be made where a decision is either perverse, illogical or disproportionate. Going back to our primary question it certainly seems as though the courts give more weight to controlling power than redressing grievances. If a citizen has been caused harm by a seemingly unreasonable government decision, but that decision regards national security, then the judiciary is most unlikely to use the redress function to justify an intervention. As for the normative and expository element, generally it seems clear that so long as authorities act honestly and reasonably then no decision of theirs would be deemed irrational. So this role is upheld in irrationality although I feel the primary purpose for judicial review on grounds of irrationality is to keep the powers of government within legal bounds. Judicial intervention due to the substance of a decision merely in order to promote good governance does not seem to give the action sufficient justification.
The last ground in Lord Diplock’s formulation is procedural impropriety. When an authority fails to follow a mandatory procedure (as happened in Bradbury v Enfield LBC (1967)) their decision will be invalid. Also, one who is affected by a decision has a right to a fair hearing – decision-makers must allow for a party to make representations in order to act fairly (Ridge v Baldwin (1964)) and they must also act impartially. Furthermore, reasons for a decision have to be given to the person affected. Failure to do so is likely to result in the decision being invalid (R v Secretary of State for the Home Department, ex parte Doody (1993)). This ground seems to give a little more weight to redressing wronged citizens. While the requirements to give reasons for a decision and to allow a fair hearing do help to keep an authority in check, I think the amjor concern here is fairness to the citizen. If these procedures are not followed then it is more likely that a citizen will be ill-treated, in which case the primary purpose of judicial review seemsto be the redress function.
Article 6 of the European Convention of Human Rights has provided an additional grounds for reivew by providing a right to an independent and impartial tribunal. It is unlawful for a public authority to act against the provisions of the ECHR (s.6 Human Rights Act 1998) and so where a party can point to a breach of an article by an authority in making their decision (usually article 6) they may have grounds for judicial review. As for the purpose being served, it would make sense logically that if the judiciary were primarily concerned with redressing citizens in the first place then requirements such as an independent and impartial tribunal (which is distinguished from a simple ‘fair hearing’) would have been in place prior to the enforcement of the HRA 1998. It is unsurprising to conclude that a piece of human rights legislation focuses primarily on the interests of the individual, although valuable elements of the control and normative functions are still present even if only as a side effect. Principles of good governance are still being encouraged albeit due to legislation which seeks to provide remedies for the individual.
An important factor in the discussion of what primary purpose judicial review serves is its remedies. By looking at what courts do when they find a legal error in a decision, one can make an educated guess as to what the judges are attempting to achieve. Firstly there are the prerogative orders whereby a decision may be quashed, an authority compelled to act or an authority prohibited from making a decision. Also available are injunctions which may be granted permanently or temporarily. Judges may make declarations as well, though these are not remedies as such and simply state the position of the law. That said, a declaration can be effective as the parties will know exactly what they legall can and cannot do. The notable gap in this list of remedies is damages, which at first seems odd as it is a remedy that is available in other reviews of executive action (such as that Parliamentary Ombudsman). The remedies seem very much geared towards the control of government and encouraging good principles of practice. Of course, that is not to say that citizens cannot be redressed through these remedies. Often the available remedies will be sufficient, but if damage has already been done then compensation might be the desired remedy. I believe this to be a strong indication that judicial review concerns itself more with controlling government power than redressing grievences.
Finally it would be of use to consider what might be the future for judicial review. Lord Diplock hinted in the CCSU case that judicial review could adopt in future a ‘pinciple of proportionality’ which is used in other jurisdictions of the European Union. Whether this would replace the current grounds for review or simply supplement them remains to be seen, but in any case such a feature in judicial review is bound to change it significantly. It would probably increase the extent to which judicial review serves to public redress grievances by focusing less on the dry procedural grounds of review and onto a more substantive role. As for encouraging principles of good practice, the introduction of a proportionality principle may cloud the percieved boundaries of ‘good governance’, at least initially as there would be little precedent. However, even if proportionality was introduced the primary purpose of judicial review would remain to be the prevention of governmental abuse. In fact, a proportionality test would increase the amount of control the judiciary exerted over the government which could lead to a radical constitutional shift.
Having looked at the grounds under which judicial review arises, the remedies which are available and what may lie ahead for the judicial review procedure, a conclusion can now be drawn. The emergining pattern which seemed to arise during this analysis is that the primary purpose of judicial review is indeed to control the exercise of governmental power and protect citizens from abuse. The normative and expository function of judicial review features in all areas but it tends to come as a beneficial side effect rather than as a purpose. Furthermore whilst the judges recognise that it is important to give citizens routes to appeal decisions and be remedied, this seems to be secondary to purpose of keeping the government under law.
Word Count: 1,727 (without footnotes), 1,738 (with)
Bibliography
Bradley & Ewing ‘Constitutional and Administrative Law’ 13th Edn
Civil Liberties and Human Rights (3th ed.) Helen Fenwick
R v Environment Secretary Ex p Hammersmith Council [1991] AC 521