Essai de droit administratif anglais

Grounds for judicial review

The rule of law contains a very simple yet crucial idea, no one is above the law.

It is undeniable that public authorities are given an important range of powers, that can be in a great number of situations discreditionary. Judges, legal authorities, government bodies, however honorable and respectable entities, they have one thing in common. They are, or are composed by people, individuals, and as individuals, they are bound to occasionally make mistakes or be compromised. That is why, like in most democracies, there is a legal process that allows other individuals to challenge the legality in which those powers may have been used, Judicial Review.

Applications for judicial review on need to the administrative Court of the Queen's bench division of the High Court.

Judicial review ensures that the public bodies that have the most power, do not abuse it,  and for those who do to be adequately sanctioned. To a certain extent to edition review puts everyone under the Authority of the law and protects people from unlawful and unfair practices of power.

The ground of “illegality” is concerned with the control and limitation of power, jurisdiction and discretion. In fact, it is a way to target the different situations in which a body abuses either its power when acting outside its competence and jurisdiction, or the extent of discretion, within its power and limitations. That is a simple definition of what the ultra vires concept is.  There are different ways a body can « act outside its power or jurisdiction » -

A body can act ultra vires by using the range of discretionary power but has been given to it in order to exert its governmental functions.

A good example is the delegation of power to subordinates without any authority to do so,  or even surrendering or abdicating discretion, which means giving an unauthorised body its own power. If challenged, it could result in a control of discretion.

In the same way, If its discretion is influenced by an external party, therefore acting under dictation or affected by improper pressure or simply used for an improper purpose

If a body takes any decision or action for which it has legal authority but in relation to the wrong subject matter,  there is a ground for “error of jurisdictional fact” which also shows a form of illegality of the act or the decision.

In the hypothesis that the body bases his decision on an erroneous or inadequate basis of fact, it could act as a breach of constitution, going against the Right to a  fair trial,  and is considered as illegal. That is the no-evidence rule.

Similarly if a body applies a false or mistaken legal rule or statute, It can be challenged for error of law. The bodies that were talking about are to make their decisions  for the right goal.  It is natural that if they use their power for an improper purpose they can be challenged for that, still in the scope of illegality. Another form of possibly illegal decision or act is that which is made on the basis of irrelevant considerations or on the contrary, failing to take into account relevant considerations.

        Even simpler than acting illegally inside the limits of its own power,   the body can take a decision or action which is beyond limits given  to its  power.  that is by taking any  decision or action it has no power to,  or even feeling to take a decision or action which it was legally obliged to do. In fact it can be defined by the challenge of the natural limits that the body in question has.

 In all events, it is clear that this ground of illegality is quite the complete one. It includes a very wide range of possibilities in which one can apply for Judicial Review, and so prove that the decision in question is illegal.

Assuming that a decision-maker acts within its rightful powers and uses discretion according to law, the validity of the decision may still be challenged on the grounds of “procedural impropriety” .The concept specified by this second ground is as simple as it seems, it concerns situations where the wrong procedural requirements  or legitimate expectations have been followed.  This includes the failing to apply a legitimate expectation or a mandatory or or even directory procedural requirement (non compliance). Such a decision can be referred to as procedurally Ultra vires.

Furthermore, the rule of O'Reilly vs McMackman, Specifying the abuse of process regardless to the merits of the claim can be associated with procedural impropriety .In fact, should any technical defect, even little technical mistakes invalidate the decision ? That's good to be in a way excessive and unfair therefore challenging the rule of law.

The third ground for judicial review is “reasonableness” - or also called the Wednesbury unreasonableness. The term “unreasonableness” describes basically things that “must not be done”.

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