11.

Judicial review: access to review and remedies

Public Law (3rd edn)

John Stanton and Craig Prescott

p. 421 11. Judicial review: access to review and remedies

John Stanton, Senior Lecturer in Law at The City Law School, City, University of London, and Craig
Prescott, Lecturer in Law, Bangor University

https://doi.org/10.1093/he/9780192857460.003.0011
Published in print: 02 June 2022
Published online: September 2022

Abstract
This chapter provides an introduction to judicial review and its various features and requirements. It starts by exploring the
meaning and purpose of judicial review, explaining the particular functions of the courts and the jurisdiction that justifies their
scrutiny of administrative matters. It then sets out the legal basis for judicial review and the process through which
applications proceed, which while rooted in statute, has developed incrementally through both case law and the 1998 Woolf
Reforms. The chapter considers issues relating to access to review, exploring the legal requirements that must be fulfilled
before an application for judicial review can be entertained by the Administrative Court. This includes a discussion of standing,
which determines who can bring a claim, and consideration of the issues relating to the public law/private law divide, which
concerns against whom a claim can be brought and the matter upon which that claim can be founded.

Keywords: judicial review, access to review, courts, standing, exclusivity, public bodies, remedies

Problem scenario

The (fictitious) Local Education Act 2025 empowers local authorities to decide which pupils are
admitted to their local state schools and what the rules are relating to progression through and
graduation from those schools. The basis for the reform rests on a policy that was introduced to
encourage greater local influence on education. Its aim was to enable local authorities to know local
children better and to be in a better position to decide on the appropriate educational system.

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 11. Judicial review: access to review and remedies

One particular local authority, however, sees the power as a means through which it can guarantee
the quality of pupils admitted to and progressing through local state schools in order to improve
the educational reputation of its area. It decides to introduce policies across all of its five state
primary schools to require pupils to pass exams before entry at the age of five and again at the end
of each year in order to progress. Those pupils who fail to achieve entry to or progression at the
schools are encouraged to seek education in the next town. The introduction of this policy attracts
widespread criticism and outrage, with many individuals and groups considering legal action
against the local authority.

The following individuals and groups are amongst those wondering whether or not they satisfy the
legal requirements for a judicial review application:

Primary School Teachers Together—the well-established union of primary school teachers of

which the majority (80 per cent) of the local state school staff are members.

The editor of the local newspaper, who has been inundated with letters of complaint.

Parents for Education—a group of local parents, whose children attend state schools in the
area and who have joined forces with the aim of campaigning against this policy.

The priest at one of the local churches (associated with one of the schools) who, whilst on
sabbatical at the time the policy is published, learns of it upon his return six months later.

The head teachers of the two private primary schools in the area who are concerned that the
new policy will take the best pupils away from them.

p. 422 11.1 Introduction

Judicial review of administrative action falls within the broader area of administrative law, which is chiefly
concerned with the administration of the state, setting out laws policing and regulating the appropriate
use of executive and administrative power. Administrative law plays a vital role in the UK Constitution by
ensuring that government authority is exercised lawfully and legitimately, protecting the public from any
potential abuses of power. In pursuit of this objective, judicial review seeks to provide a mechanism of legal
accountability, affording those adversely affected by illegal, unreasonable, or procedurally unfair exercises
of administrative authority the opportunity to seek a remedy in a court of law. It is the purpose of this
chapter to introduce judicial review and its various features and requirements. This lays the foundation for
subsequent chapters to explore the substantive and procedural grounds upon which applications for
judicial review can be brought before the courts.

The chapter starts by exploring the meaning and purpose of judicial review, explaining the particular
function that the courts fulfil and the jurisdiction that justifies their scrutiny of administrative matters. It
then sets out the legal basis for judicial review and the process through which applications proceed, which,
while rooted in statute, has developed incrementally through both case law and the 1998 Woolf Reforms.

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 11. Judicial review: access to review and remedies

The chapter then goes on to consider issues relating to access to review, exploring the legal requirements
that must be fulfilled before an application for judicial review can be entertained by the Administrative
1
Court. This includes discussion of standing, which determines who can bring a claim, and consideration of
the issues relating to the public law/private law divide, which concerns against whom a claim can be
brought and the matter upon which that claim can be founded. The chapter then concludes by setting out
the potential remedies that can be awarded by the Administrative Court at the conclusion of a judicial
review application.

The objectives for this chapter are:

to define judicial review and to explain the role and jurisdiction of the courts with regards to judicial
review applications;

to set out the legal basis for judicial review and to explain the process through which applications
proceed, as set out in the Civil Procedure Rules;

to explore the requirement of standing and to discuss the manner in which the courts have applied
the test;

to consider the public law/private law divide, the exclusivity principle, and the way in which the
courts define a public body for the purposes of judicial review;

to set out the remedies available in judicial review cases and to explain the way in which they work.

11.2 Defining judicial review

Judicial review of administrative action refers to the means and process through which the Administrative
Court can review and scrutinize decisions and actions of public bodies, having the power to provide

p. 423 remedies where challenges reveal that such actions or ↵ decisions have been taken illegally,
unreasonably, or without due regard to the necessary procedures. As Cane notes:

A CJR [claim for judicial review] is ‘a claim to review the lawfulness of (i) an enactment; or (ii) a
decision, action or failure to act in relation to the exercise of a public function’. JRP [the judicial
review procedure] must be used for making a CJR in which a quashing, prohibiting or mandatory
2
order is sought.

There are elements of judicial review that rest on a deep historical foundation. The remedies, for instance,
‘date from medieval times’, whilst the rules of natural justice on which the procedural grounds for review
3
are partly based ‘had already become established by the sixteenth century’. Modern judicial review,
though, as a form of action, has developed primarily over the course of the past fifty years, with anything
that might previously have resembled the procedure before this time being described as ‘“superficial” and
4
little more than “perfunctory”’. Since the 1960s, a long line of cases and reforms have come to shape both
the processes that should be followed in seeking judicial review and the grounds on which such an
application can be pursued. Indeed, Tomkins emphasizes the extent to which Lord Reid was instrumental
in leading this legal transformation and explains that:

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 11. Judicial review: access to review and remedies

First, the law of procedural fairness was reformed; then substantive review and aspects of the
relationship between the law and the Crown were reformulated and strengthened. Finally, the
arcane but important area of jurisdictional review was revisited … Lord Reid[’s] … mission was to
sweep away what he saw as the unnecessary, and out-moded restrictions and technicalities of the
past, and to replace them not with a detailed series of rules, but rather with wide-ranging judicial
discretion so that the law could be further developed and clarified on a case-by-case basis in the
future. Thus, a significant characteristic of modern judicial review law is that it possesses a
remarkable degree of judicial discretion … The advantage of discretion is that it can facilitate
valuable flexibility in the law …

By 1984 the courts had developed the law of judicial review to such a point that Lord Diplock was
able to synthesize it, giving it a new and authoritative framework for analysis. In his seminal
judgment in the GCHQ case … Lord Diplock stated that there were three ‘heads’ or ‘grounds’ of
5
judicial review, which he labelled ‘illegality’, ‘irrationality’, and ‘procedural impropriety’.

This statement demonstrates both the rapidity of the development of judicial review during the 1960s and
how it subsequently became a valuable judicial tool for scrutiny of the executive. The grounds on which
such scrutiny takes place—illegality, irrationality, and procedural impropriety—are our focus in the
subsequent three chapters. With the evolution of this new form of action, however, concerning the
potential examination of governmental matters, the courts were required to fulfil a unique role, as the next
section now explores.

p. 424 11.2.1 The role of the court in judicial review

In providing this mechanism for executive scrutiny, wider constitutional issues mean that judicial review
affords the higher courts a significant role, different from their conventional appellate functions.
Ordinarily, higher courts exercise what is termed their ‘appellate jurisdiction’ in hearing appeals. This
involves consideration of a specific provision and judgment in respect of the merits (or demerits) of a
6
particular legal issue. By contrast, in judicial review cases, courts exercise their ‘supervisory jurisdiction’;
that is, they supervise the procedure, but are not able to judge the substantive merits of that issue or make
a judgment on the basis of those merits.

Limiting the court in judicial review cases to this supervisory jurisdiction shows respect for the separation
of powers. It was discussed, in 2.7, that consideration of this principle in the UK Constitution leads to the
identification of a system of checks and balances. Different from constitutions where there is a clear
demarcation between institutional roles and functions, a system of checks and balances involves a degree
of overlap between the various bodies of the state, this being accepted as necessary to provide a means
through which the institutions can be subjected to scrutiny, or ‘checked’, by one another. Judicial review is
an example of such an overlap—the Administrative Court having the power to scrutinize and check the
actions and decisions of the executive and other public bodies. To ensure that they do not go too far,
however, and adjudicate on the merits of potentially political matters in respect of which they might lack

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 11. Judicial review: access to review and remedies

expertise, knowledge, and jurisdiction, courts are restricted to a supervisory role—considering merely the
legality, reasonableness, and fairness of administrative procedures. The practical effect of this role is, as
Syrett explains, that:

[C]ourts in judicial review cases are not empowered to substitute their view of what is the ‘correct’
outcome for that of the original decision-maker, as is normally possible on appeal. Rather, the
court generally remits … the decision to the decision-maker, with its judgment forming an
explanation of the manner in which the first decision was unlawful. It is therefore quite possible
for the decision-maker to reach the same conclusion again … provided that it does so in
7
accordance with the standards of lawfulness set out by the court.

We can see that the supervisory jurisdiction enables the Administrative Court to scrutinize and review the
acts and decisions of the executive without compromising the separation of powers and making decisions
as to the merits of potentially political and policy-related matters.

Another way in which the Administrative Court is prevented from erring too far into political or policy-
related matters is through the principle of justiciability, which applies in respect of the Court’s power to
review the government’s use of the prerogative powers. Historically, the courts were somewhat reluctant
to permit review of the prerogative powers, a reticence that stems from the formal placement of these
8
powers in the hands of the Crown; the monarch being immune from challenge in the courts. In fact, until
‘the 1984 House of Lords case of Council of Civil Service Unions v Minister for the Civil Service … it was thought
9
that the courts would not review how the prerogative powers were exercised, only whether they existed’.

p. 425 Signifying a change to this approach, Lord Diplock ↵ explained in that case that ‘I see no reason why
simply because a decision making power is derived from the common law and not from a statutory source
10
it should for that reason only be immune from judicial review’. With this increased reviewability of the
prerogative, though, the courts also acknowledged that certain prerogative powers existed in respect of
political or policy-related matters; matters that it felt fell outside the constitutional remit of the courts. It
is for this reason that the notion of justiciability came more clearly to be elucidated. As 6.5.3 has already
explained, ‘there are prerogative powers, which “because of their subject matter are such as not to be
11
amenable to the judicial [review] process”’. Where a matter is not amenable on these terms, we say that it
is non-justiciable. There are numerous examples of what the courts regard as non-justiciable, including a
12
decision to prevent GCHQ employees from joining trade unions to protect national security, the
13
ratification of treaties, and the Home Secretary’s advice to the monarch in relation to exercise of the
14
prerogative of mercy. In more recent years, though, the courts have taken an increasingly liberal
approach to what is amenable to judicial review in the context of the prerogative powers and justiciability.
15
In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2), for instance, the House of
Lords held that Orders in Council (that is, subordinate legislation enacted by the government under the
16 17
prerogative) were reviewable, whilst in the case of R (Miller) v Prime Minister, the Supreme Court held
that the Prime Minister’s prorogation of Parliament under the prerogative could be reviewed by the courts.
These two (and other) cases demonstrate how the courts’ willingness to review exercise of the prerogative
has broadened in recent years. Providing further explanation, the Supreme Court stated in Miller that:

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 11. Judicial review: access to review and remedies

[A]lthough the courts cannot decide political questions, the fact a legal dispute concerns the
conduct of politicians, or arises from a matter of political controversy, has never been a sufficient
reason for the courts to refuse to consider it … almost all important decisions made by the
executive have a political hue to them. Nevertheless, the courts have exercised a supervisory
jurisdiction over the decisions of the executive for centuries. Many if not most of the
18
constitutional cases in our legal history have been concerned with politics in that sense.

The notion of the supervisory jurisdiction, therefore, alongside questions of justiciability, serve to clarify
the courts’ role in respect of judicial review. Having now explained both the origins of judicial review and
the judicial role to which this has given rise, though, it is necessary now to examine the broader purpose of
judicial review.

11.2.2 The purpose of judicial review

Judicial review provides an avenue of legal accountability. It is a means through which the Administrative
Court can scrutinize and supervise the acts and decisions of the executive, calling them to account in

p. 426 respect of challenges to the legality, reasonableness, and ↵ procedural propriety of those acts and
decisions. Oliver notes that accountability entails ‘being liable to be required to give an account or
explanation of actions and, where appropriate, to suffer the consequences, take the blame or undertake to
put matters right if it should appear that errors have been made’, with legal accountability equating with
19
accountability to the courts on the foundation of a duty to obey the law.

One way in which judicial review represents this duty to obey the law relates to the ultra vires principle. A
Latin term meaning ‘outside one’s powers’, ultra vires—in the context of judicial review—provides a basis
on which the courts can assess the extent to which public bodies have gone beyond the scope of their
legislative powers. In this way, the courts can uphold the word of the sovereign Parliament and ensure
accountability to the written word of the law through the judicial review process. There are, however,
issues surrounding the continued suitability of ultra vires as a basis for judicial review. These are based on
arguments claiming that ultra vires provides an artificial foundation insofar as it does not take account of
wider factors that go beyond mere obedience to the law or the fact that public authorities’ powers are
increasingly drawn from non-statutory foundations. Consequently, it is necessary to consider a broader
and somewhat more significant basis for judicial review—the rule of law.

The rule of law can be defined in a number of different ways, as Chapter 3 explained. The theories broadly
relate to the Aristotelian principle concerning the supremacy of law, discussed and developed in 3.2, which
posits that executive power should be exercised on the basis of appropriate legal authority, rather than the
arbitrary whims of individuals, and in line with certain procedural characteristics or substantive
objectives. On this basis, judicial review can be justified by the rule of law insofar as it seeks to ensure that
public bodies operate lawfully, reasonably, and properly, thereby protecting citizens from arbitrary abuses
of authority. It also encourages those in power to accord with broader ideas at the heart of the law itself,
such as the procedural characteristics that are relevant to formal conceptions of the rule of law, or any
moral content that is ensured by substantive conceptions. As Oliver states:

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The legal accountability of public bodies is an important aspect of the rule of law. The duty to obey
the law, enforceable by action in the courts at the instigation of those affected by the actions of
public bodies, imposes an obligation on a public body to explain and justify its action in legal
20
terms if … subjected to judicial review, and to make amends if found to have transgressed.

The relevance of the rule of law to judicial review is widely supported. Raz, for instance, in explaining the
21
formal conception of the rule of law, notes that ‘[t]he courts should have review powers over the
implementation of the other principles [of the rule of law]. This includes review of both subordinate and
22
parliamentary legislation and of administrative action … to ensure conformity to the rule of law’. The
review of primary legislation is restrained by parliamentary sovereignty, but the courts’ ability to

p. 427 scrutinize subordinate ↵ legislation and administrative action is represented by the judicial review
process and goes right to the heart of the rule of law principle. The importance of judicial review, as a
means of protecting and upholding the rule of law, is also reflected in the case of Anisminic Ltd v Foreign
23
Compensation Commission and others, in which the House of Lords was called upon to examine statutory
provisions attempting to oust the courts’ powers of review.

Case in depth: Anisminic Ltd v Foreign Compensation Commission

and others [1969] 2 AC 147

Anisminic was an English company, which owned property in Egypt that was seized by Egyptian
authorities amidst the Suez Crisis in October 1956. A year later, this property was sold to the
Economic Development Organization.

In February 1959, pursuant to an agreement between the UK Government and the Government of
the United Arab Republic, substantial money was paid to the UK as settlement for the seizure of the
British property. Pursuant to the Foreign Compensation Act 1950 and other secondary legislation,
the Foreign Compensation Commission was set up to oversee and distribute this money in respect
of various claims for properties that had also been taken over. In September 1959, Anisminic made
a claim to the Commission for compensation; however, this was provisionally refused on the
grounds that the Commission felt that Anisminic had failed to establish an appropriate claim.

As a result, Anisminic brought an action against the Foreign Compensation Commission, seeking a
declaration that the provisional refusal of their claim was wrong in law and that they were, in fact,
entitled to receive compensation. In defence of this, the Commission argued that, pursuant to
section 4(4) of the Foreign Compensation Act 1950, the court had no jurisdiction to entertain the
proceedings brought by Anisminic since, under that section, the courts’ ability to review the
determinations of the Commission was ousted. The House of Lords rejected this argument,
however, and held that it was capable of considering the legality of the Commission’s refusal.

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 11. Judicial review: access to review and remedies

The key point of law in this case relates to the manner in which the courts dealt with the attempted
exclusion of judicial review. Section 4(4) of the Foreign Compensation Act 1950 provided that ‘[t]he
determination by the [Foreign Compensation] Commission of any application made to them under this Act
24
shall not be called in question in any court of law’. The Commission contended that this could only have
one clear meaning and that this was that proceedings considering the validity of Commission
determinations are prohibited by statute. The Law Lords considered, at length, the meaning of the term
‘determination’ in the statute and found that:

The provisions of section 4 (4) of the Act do not … operate to debar any inquiry that may be
necessary to decide whether the commission has acted within its authority or jurisdiction. The
provisions do operate to debar contentions that the commission while acting within its
25
jurisdiction has come to wrong or erroneous conclusions.

p. 428 ↵ It is the effect of this judgment, however, that is most pertinent to considerations of the courts’ role
in judicial review. In Anisminic, if the exclusion clause in section 4(4) were to have been upheld on the basis
of its strict legal meaning then it would have served to make administrative decisions made on this basis
immune from judicial review. Curtailing the full scope of judicial review in this way could then have set a
dangerous precedent whereby further legislative provisions might have empowered other administrative
bodies to make decisions and take action free from the accountability afforded by the Administrative Court.
By rejecting arguments suggesting that section 4(4) completely excluded the scope of judicial review, the
House of Lords in Anisminic resisted an attempt by Parliament to disarm the judiciary of the important role
26
that they play through judicial review. Wade and Forsyth stress that this judgment represents a ‘judicial
insistence … that administrative agencies and tribunals must at all costs be prevented from being sole
judges of the validity of their own acts. If this were allowed, to quote Denning LJ …“the rule of law would be
27
at an end”’.

Clauses purporting to oust the scope of judicial review came before the courts again in the 2019 case of R
28
(Privacy International) v Investigatory Powers Tribunal and others.

Case in depth: R (Privacy International) v Investigatory Powers Tri­

bunal and others [2019] UKSC 22

In this case, Privacy International sought judicial review of a decision taken by the Investigatory
Powers Tribunal concerning the issuing of thematic warrants under the Regulation of Investigatory
Powers Act 2000. The High Court, however, held that judicial review of the tribunal was not
possible since it was prohibited under section 67(8) of the 2000 Act. This states:

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 11. Judicial review: access to review and remedies

Except to such extent as the Secretary of State may by order otherwise provide,
determinations, awards and other decisions of the Tribunal (including decisions as to
whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned
in any court.

The High Court’s decision was upheld in the Court of Appeal but later overturned in the Supreme
Court where, by a majority of 4–3, Privacy International won.

In allowing the appeal, the Supreme Court drew from Anisminic in finding that:

the exclusion [in section 67(8)] applies, not to all determinations, awards or other decisions … but
only to those which are ‘legally valid’. Thus, if the Investigatory Powers Tribunal’s decision …
were found to have been reached on an erroneous interpretation … those words [in section 67(8)]
29
would not save it from intervention by the courts.

In other words, determinations, awards, and decisions of the Tribunal are potentially only exempt from
judicial examination where they are not otherwise legally questionable and where there is no other reason
to call upon the supervisory jurisdiction of the Administrative Court.

p. 429 ↵ The Court went on to consider more generally, though, whether Parliament could ‘by statute “oust”
30
the supervisory jurisdiction of the High Court’. Lord Carnwath explained that ‘it is ultimately for the
courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review.
This proposition … [is] a natural application of the constitutional principle of the rule of law … and an
31
essential counterpart to the power of Parliament to make law’. He went on to make clear that it was not
necessarily the case that Parliament could not oust the scope of judicial review but rather that ‘[t]he
question in any case is … “what scope of judicial review … is required to maintain the rule of law”; it being
32
“a matter for the courts to determine what that scrutiny should be”’. The Supreme Court made clear in
Privacy International, therefore, the importance of judicial review in respect of the rule of law and the
courts’ role in protecting this, even in the face of an ostensible attempt by the sovereign legislature to oust
the scope of judicial review.

The judicial review process, then, involves so much more than merely ‘ascertaining and enforcing the
33
literal meaning of the words which Parliament uses’. More broadly, it provides the courts with a platform
on which values consistent with the rule of law can be protected and ensured. As Elliott notes, ‘the exercise
of the judicial review jurisdiction occurs within a constitutional setting that leads the courts to impute to
Parliament an intention to legislate consistently with the rule of law. As a long line of authorities attests,
34
the rule of law strongly favours citizens’ access to the courts.’

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 11. Judicial review: access to review and remedies

Pause for reflection

Section 3.4 explored different conceptions and explanations of the rule of law, offered by a number
of theorists and commentators. Above and beyond those already mentioned, can you think of
further ways in which judicial review of administrative action upholds the rule of law? Is there an
argument to suggest that the role of the courts in entertaining judicial review applications is an
affront to certain aspects of the rule of law?

The important role that the courts fulfil in respect of judicial review has a firm constitutional justification
and is rooted in the need both to ensure accountability to the written word of the law and, more
importantly, to protect values at the heart of the rule of law, even if this means going against the literal
interpretations of primary legislation. The next section now sets out the legal basis for judicial review and
explains the procedure that must be followed in pursuing an application to the Administrative Court.

p. 430 11.3 Legal basis and process

11.3.1 Senior Courts Act 1981

Though judicial review has largely developed through case law, the legal basis is now rooted in legislation
35
and contained within section 31 of the Senior Courts Act 1981. This sets out the possible remedies that can
be awarded in the event of a successful application, as well as the requirements that must be satisfied in
36
the course of bringing a judicial review claim. Both of these areas are discussed later in the chapter. In
terms of the procedure that must be followed in bringing an application for judicial review, however, this is
now contained in the Civil Procedure Rules, which were introduced in the late 1990s to replace the Order 53
Procedure.

Counterpoint: Restricting judicial review: the ‘makes no difference’ prin­

ciple

Since the 1960s, judicial review has been in a state of flux, with cases and frequent reforms
constantly changing the way in which the procedures and remedies operate. Of particular
significance, however, are proposals set out by the 2010–15 Coalition Government. Whilst some of
these proposals were later abandoned—most notably those relating to standing—one aspect that
ultimately made it through to enactment was the ‘makes no difference principle’. Introduced as an
amendment to the 1981 Act by virtue of section 84(1) of the Criminal Justice and Courts Act 2015,
this provides that relief for a judicial review case should be refused and no remedy awarded if it is
highly likely that the outcome for the applicant would not have been substantially different if the

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 11. Judicial review: access to review and remedies

conduct complained of had not happened in the first place. This requirement emphasizes that
judicial review is not a substantive appeal but merely an exercise of the court’s supervisory
jurisdiction.

Mark Elliott offers interesting discussion of this particular aspect of the recent reforms, explaining
that:

Nothing in the Bill suggests that unlawful administrative actions that cannot be
successfully challenged due to the ‘makes no difference’ principle (either because leave
will be denied or relief withheld) will be rendered lawful. The effect of the proposal is not to
alter the legal status of the unlawful measure, but merely to shield it from judicial
37
review.

Since the general trend throughout the recent reform of judicial review has been to simplify the
process and make it more accessible to those seeking redress for allegedly unlawful executive acts
and decisions, it seems somewhat at odds with the very purpose of the principle that such acts and
decisions should be protected from the judicial review procedure.

p. 431 11.3.2 Order 53 and the Civil Procedure Rules

Prior to 1977, there was no standard procedure for judicial review, with different processes available
38
depending on the particular remedy being sought by the aggrieved party. This meant that there was no
one clearly accessible route for the review of administrative acts and decisions or the consequent remedies.
The possible avenues were confusing and not conducive to the easy pursuit of administrative justice. All
this changed in 1977, however, following the publication of the Law Commission’s report on Remedies in
39
Administrative Law in 1976. As a result of the recommendations made in that report, Order 53 of the Rules
40
of the Supreme Court was introduced, with other changes later coming in the form of the Senior Courts
Act 1981, as we have discussed. Order 53 provided a ‘procedure for making applications for judicial review
41
… regardless of the remedy sought’, simplifying the process and offering a clearer route for those wishing
to challenge administrative acts and decisions. In time, and as a result of Lord Woolf’s reforms during the
late 1990s, however, the Civil Procedure Rules came to amend further the procedure for judicial review,
with rule 54 contained therein replacing the Order 53 Procedure.

Pursuant to rule 54, and the Civil Procedure Rules generally, there are a number of requirements that must
be fulfilled in adhering to the judicial review procedure. This includes the pre-action protocol, on the basis
of which alternative forms of resolving the dispute must be considered, pursued, and raised for
42
discussion. Failing this and in the event that resort to the judicial review procedure is unavoidable, the
party seeking to bring the application for judicial review must fill in a claim form and serve it upon the
43
defendant authority. It is here that the first key requirement for judicial review is encountered. Unlike in
44
private law, where parties have a number of years in which to consider and instigate proceedings, in
judicial review the claim form must be submitted within three months and without undue delay, though

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 11. Judicial review: access to review and remedies

45
this can be subject to alteration at the discretion of the court. The rationale underlying the three-month
limit in judicial review cases is so that public functions and the operation of public bodies are not unduly
46
p. 432 delayed and held up, pending a judicial review application, ↵ and also to ensure that public bodies are
not constantly in court defending their acts and decisions. Adding further explanation, Cane notes that:

The chief functions of the relatively short time-limit under CPR part 54 are to prevent public
programmes from being unduly held up by litigation challenging their legality; and to prevent
steps already taken in implementation of challenged decisions having to be reversed long after the
47
decision was acted upon.

Pause for reflection

Despite the rationale underpinning the three-month time limit, to what extent do you think it
could serve unfairly to restrict those seeking to bring an application for judicial review?

Provided the three-month time limit is honoured and following service of the claim form, though, the
defendant authority has twenty-one days in which to file an Acknowledgement of Service, given to the
48
claimant as indication that they are willing to engage with the judicial review application. Once these
requirements have been satisfied, the parties then proceed to the permission stage. This is the point at
which the Administrative Court will consider whether or not the application for judicial review should be
49
allowed to proceed. This invariably involves consideration of whether or not the claimant has, at first
50
glance, an arguable case, a relative chance of success, and the necessary standing to proceed with the
case. The need for this permission stage is explained by Lord Diplock:

Its purpose is to prevent the time of the court being wasted by busybodies with misguided or
trivial complaints of administrative error, and to remove the uncertainty in which public officers
and authorities might be left as to whether they could safely proceed with administrative action
51
while proceedings for judicial review of it were actually pending even though misconceived.

Once that permission is granted by the court, the parties can then proceed to the full hearing or substantive
stage in the Administrative Court. It is here that the case is finally decided and, if done so in favour of the
claimant, remedies can be awarded at the discretion of the court, as will be discussed in the following
sections. The full judicial review procedure is summarized in diagrammatic form in Figure 11.1.

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Figure 11.1 Judicial review procedure

The Civil Procedure Rules set out a clear procedure that must be followed in making an application for
judicial review. This process, however, also includes a number of further requirements that must be
satisfied and that are worthy of further identification and discussion. These are: standing, or locus standi;
issues relating to the public law/private law divide; and the need for a judicial review application to be
brought only against a public authority. The chapter now addresses each of these in turn, starting with
standing.

p. 433 11.4 Standing

Standing, or locus standi, is one of the most significant requirements for judicial review. This serves to
restrict access to judicial review to those who can be said to have a genuine claim and who have been
directly affected by the administrative act or decision at issue. The legal requirement for standing is
contained within section 31(3) of the 1981 Act, which states that:

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(3) No application for judicial review shall be made unless the leave of the High Court has been
obtained in accordance with rules of court; and the court shall not grant leave to make such
an application unless it considers that the applicant has a sufficient interest in the matter
to which the application relates.

This is known as the sufficient interest test and it provides the basis on which those eligible to bring an
application for judicial review can be assessed and determined. This section of the chapter will explore
many examples of how the courts have interpreted this test over the years. A fairly conventional
52
application, however, is demonstrated by the case of R v General Council of the Bar, ex p Percival. Here, a
Queen’s Counsel was reported to the General Council of the Bar by the head of their barristers’ chambers

p. 434 on the grounds that they had behaved dishonestly and had brought the profession into ↵ disrepute
through ignoring the appropriate etiquette in respect of chambers’ finances. The Professional Conduct
Committee of the General Council of the Bar, whose duty it was to bring the case before a disciplinary
hearing, decided not to charge the barrister with professional misconduct, opting instead for the lesser
charge of breach of proper professional standards. As a consequence, the head of the chambers applied for
judicial review of the decision on the basis that—in their view—the more serious charge should have been
pressed. The court found that the applicant had sufficient standing to bring the application, stating:

Unless the disappointed complainant is regarded as having sufficient locus standi to challenge the
decision it is difficult to see who else could be expected to do it. We are fortified in our view by the
fact that the applicant here was head of the chambers, his interest being the greater in order to
ensure that any lapse from proper professional conduct or the observance of proper professional
standards by a member of his chambers for whom he was responsible should be properly
investigated and referred to a disciplinary tribunal if necessary. If that does not amount to a
sufficient interest for present purposes we should find it difficult to envisage what circumstances
53
possibly could.

Despite this seemingly conventional application, however, the sufficient interest test is undoubtedly a
particularly broad test, in part due to its vague nature and the fact that the legislation provides no further
guidance as regards what it means to have a ‘sufficient interest’. As a result of this, the question of
standing is one always to be considered by the courts in each case. As Schiemann notes, writing extra-
judicially, ‘[i]t is clear from the wording of that subsection that … the court must apply its mind to the
54
question of standing’ and he goes on to cite Woolf LJ who states that ‘the question of locus standi goes to
55
the jurisdiction of the court’. Because of this, it is the case law, and the various judgments made over the
years, that have given rise to the rules of standing that are now applied in parallel with the statutory test
and that provide further indication of what standing means and what can be regarded as a ‘sufficient
interest’. As Lord Diplock notes, emphasizing the important role that the courts have played in this area:

The rules as to ‘standing’ for the purpose of applying for prerogative orders, like most of English
public law, are not to be found in any statute. They were made by judges, by judges they can be
changed; and so they have been over the years to meet the need to preserve the integrity of the
56
rule of law despite changes in the social structure.

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These words of Lord Diplock formed part of his judgment in the case of Inland Revenue Commissioners v
57
National Federation of Self-Employed and Small Businesses Ltd, which came just a year after the Senior
Courts Act 1981 and in which the House of Lords discussed in detail the sufficient interest test and the way
in which it should be employed by the courts.

p. 435 Case in depth: Inland Revenue Commissioners v National Federation

of Self-Employed and Small Businesses Ltd [1982] AC 617

A number of casual workers, who were on occasion employed by some of the newspapers on Fleet
Street, had given false names and addresses in submitting their details so that, when collecting
their pay, they could not be traced by the Inland Revenue to pay their taxes. On learning about the
fraudulent activities, Inland Revenue discussed the issue with employers and the workers’ unions
and agreed a special arrangement on the basis of which, provided correct names and details were
given and future taxes paid correctly, the workers would not be ordered to pay the taxes due
(estimated to be £1m a year). The National Federation of Self-Employed and Small Businesses Ltd,
however, challenged this on the grounds that it differed from the attitude usually adopted by the
Inland Revenue in respect of tax evasions and on the contention that the Inland Revenue had no
power to grant such an amnesty. The National Federation applied for judicial review, seeking a
declaration to the effect that the Inland Revenue had acted unlawfully and the imposition of a
mandatory order, requiring the taxes to be assessed and collected. The Divisional Court, though
granting initial leave to proceed, later held that the National Federation had no standing for judicial
review, a finding that was overturned on appeal. The Court of Appeal felt that the federation was
representing a body of taxpayers who could claim a genuine grievance in this case, thereby giving
them standing. On further appeal, however, the House of Lords overturned the Court of Appeal’s
judgment. They held that, as just a body of taxpayers, the National Federation had no sufficient
interest and, in addition, they had failed to demonstrate that the actions of the Inland Revenue
were in any way ultra vires or unlawful.

The judgment in the IRC case is notable for two reasons: first, due to the manner in which it demonstrates
and provides further guidance on the operation of the ‘sufficient interest’ test; and secondly, due to its
consideration of the issue relating to group standing. While the second of these is dealt with in 11.4.2, it is
necessary here to explore notable comments made in the House of Lords with regards to application of the
‘sufficient interest’ test. One particular factor that the court discussed was the point in judicial review
proceedings at which the test should be considered. On this, it was held that the question of standing
should be considered twice—at the permission or threshold stage and, later, at the substantive hearing. As
Lord Wilberforce explained:

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There may be simple cases in which it can be seen at the earliest stage that the person applying for
judicial review has no interest at all, or no sufficient interest to support the application: then it
would be quite correct at the threshold to refuse him leave to apply. The right to do so is an
important safeguard against the courts being flooded and public bodies harassed by irresponsible
applications. But in other cases this will not be so. In these it will be necessary to consider the
powers or the duties in law of those against whom the relief is asked, the position of the applicant
58
in relation to those powers or duties, and to the breach of those said to have been committed.

This approach was also endorsed by Lord Scarman, who described the necessity for sufficiency of interest

p. 436 to be assessed in this way as ‘one legal principle, which is implicit in the ↵ case law and accurately
59
reflected in the rule of court’. It is Lord Diplock, however, who gives the greatest weight to this view. He
states that:

The whole purpose of requiring that leave should first be obtained to make the application for
judicial review would be defeated if the court were to go into the matter in any depth at that stage.
If, on a quick perusal of the material then available, the court thinks that it discloses what might
on further consideration turn out to be an arguable case in favour of granting to the applicant the
relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that
relief. The discretion that the court is exercising at this stage is not the same as that which it is
called upon to exercise when all the evidence is in and the matter has been fully argued at the
60
hearing of the application.

The reasons underlying this two-pronged approach are stated throughout their lordships’ judgments. The
courts address the question of standing at the preliminary stage ‘to prevent abuse by busybodies, cranks,
61
and other mischief-makers’, and to provide a ‘safeguard against the courts being flooded and public
62
bodies harassed by irresponsible applications’. Standing is then considered at the substantive stage to
place a more significant emphasis on the individual facts and merits of each particular case. This emphasis
on merits, considered alongside the question of standing, is notable. Since judicial review invariably
concerns acts and decisions of public bodies, potentially involving important policy issues, it is only right
that a particularly meritorious claim should be more likely to be heard. Fusing the question of standing at
the substantive stage with this issue of merits ensures that all relevant factors are considered in deciding
whether or not an application for judicial review should proceed. It also often means, though, that the
courts sometimes adopt an apparently liberal approach to standing, seeming to find a sufficient interest in
cases where the personal interest is not particularly convincing but the merits of the issue strong, as
demonstrated in a number of cases that we will go on to discuss.

The judgment in the IRC case was significant in further explaining the manner in which the sufficient
interest should be applied. In the years that followed, however, a number of further cases came before the
courts, testing the requirements of standing and further exploring its application, as this next section will
now consider.

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11.4.1 Approach to standing

Since the seminal judgment in the IRC case, the courts have adopted a liberal approach to the question of
standing. This observation is not novel. In R (on the application of Bulger) v Secretary of State for the Home
63
Department, Rose LJ emphasized that:

It is true … that the threshold for standing in judicial review has generally been set by the courts at
a low level. This … is because of the importance in public law that someone should be able to call
decision makers to account, lest the rule of law break down and private rights be denied by public
64
bodies.

p. 437 ↵ This liberal approach is widely noted and has been attributed to the reforms and the manner in which
65
they broadened out the restrictive approach that had previously prevailed. Indeed, in the case of R v HM
66
Treasury, ex p Smedley, Slade LJ observed that:

The speeches of their Lordships in [the IRC case] well illustrate that there was been what Lord
Roskill described … as a ‘change in policy’, which has in recent years greatly relaxed the rules as to
locus standi. Lord Diplock referred … to a ‘virtual abandonment’ of the former restrictive rules as
to the locus standi of persons seeking prerogative orders against authorities exercising
67
governmental powers.

With these words in mind, the liberal approach is evident from consideration of a number of cases. The
first of these is the case of Smedley itself. Here, an individual challenged a draft Order in Council which set
out an undertaking on the basis of which a payment would be made to the European Community to finance
a budget. The individual was deemed to have standing simply by virtue of the fact that he was a British
taxpayer. Slade LJ noted that ‘I do not feel much doubt that Mr. Smedley, if only in his capacity as a
68
taxpayer, has sufficient locus standi to raise this question by way of an application for judicial review’.
Bearing in mind that it is the purpose of standing to limit judicial review to those who have been directly
affected by a particular decision or action and who have a genuine claim, the decision in Smedley seems
particularly broad. It is a case, though, that demonstrates the manner in which applicants in especially
meritorious cases are more likely to be granted standing. Though a taxpayer arguably no different from
any other, the matter at issue in Smedley’s case was sufficiently important that the courts felt it
appropriate to allow the application to proceed.

69
Another case that demonstrates the courts’ liberal approach to standing is R v Felixstowe JJ, ex p Leigh.
Here, a journalist sought an application for judicial review in respect of the refusal by judges in a trial of
alleged gross indecency to reveal their identity, action they took for security reasons. Though he was
deemed not to have sufficient interest to order the names to be revealed, the journalist was held to have
standing to seek a declaration that the judges were not entitled to withhold their names. Watkins LJ stated
in the case that:

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The application for the declaration seems to me to be brought either by the applicant himself, or
possibly by the press through him, as guardian of the public interest in the maintenance and
preservation of open justice in magistrates’ courts, a matter of vital concern in the administration
of justice. In the context of the unlawful use of power without jurisdiction, which I take the policy
of the Felixstowe justices and their clerk to be, I feel that a ‘public-spirited citizen’ … would have a
sufficient interest in the matter of the declaration sought by this applicant. I would so regard him
70
at the very least as such a person.

p. 438 ↵ One of the most significant examples of the courts’ liberal approach to standing, however, is R v
71
Secretary of State for Foreign Affairs ex p Rees-Mogg.

Case in depth: R v Secretary of State for Foreign Affairs ex p Rees-

Mogg [1994] QB 552

The editor of the Times newspaper, Lord Rees-Mogg, who was also a member of the House of Lords
with an interest in constitutional affairs, applied for judicial review in respect of the government’s
decision to ratify the Protocol on Social Policy, as part of the Treaty on European Union (‘the
Maastricht Treaty’). The grounds were that it allegedly breached section 6 of the European
Parliamentary Elections Act 1978 (prohibiting the ratification of any treaty agreement or protocol
increasing the powers of the European Parliament without parliamentary approval) and also
because it purportedly and unlawfully transferred royal prerogative powers (relating to the making
of foreign policy) to the EU, without parliamentary approval.

The application was dismissed, however, on the basis that the Protocol was automatically a part of
the Treaty and that, pursuant to section 1(2) of the European Communities (Amendment) Act 1993,
all Titles, Protocols, and Declarations of the Treaty had also been ratified without breach of the
1978 Act. In addition, the court found that this was an issue relating to exercise of the prerogative
power and that, involving as it did matters unrelated to domestic law, the court did not have the
jurisdiction to consider judicial review on this point.

Though the case was dismissed, it is notable that Lord Rees-Mogg was deemed to have a sufficient interest
to bring the application for judicial review simply by virtue of his interest in constitutional affairs. As Lloyd
LJ noted, ‘[t]here is no dispute as to the applicant’s locus standi … we accept without question that Lord
72
Rees-Mogg brings the proceedings because of his sincere concern for constitutional issues’. This
provides another example of the courts adopting a particularly liberal approach to standing. Indeed, it
seems somewhat tenuous to base the satisfaction of the standing criteria on merely a concern for
constitutional matters. When we consider, however, the importance of the issue and the extent to which
ratification of European treaties impacts on the public as a whole, we see that the merits of the case are
notable, therefore making a stronger case for standing to be granted. On a connected point, also on the
Court’s mind in deeming Lord Rees-Mogg to have standing was the reality that ‘if Lord Rees-Mogg did not

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73
have standing then no one did’, circumstances that would have prevented the Court from potentially
reviewing this particularly meritorious issue. That this is a valid consideration is evident from the more
74
recent case of R (DSD and NBV and others) v The Parole Board and others. Here, amid a judicial review of the
Parole Board’s decision to permit release of an individual convicted in 2009 of various sexual offences, the
Mayor of London—as one of the applicants—was deemed not to have standing. The reasons given were
that his interest in the case was ‘very general in scope, and … [did] not relate in any respect, even
75
indirectly, to the workings of the Parole Board’. Of particular interest, though, the court also
acknowledged that the Mayor was ‘in no different position from any other politician or … member of the
76
p. 439 ↵ public’. Drawing from the decision in Rees-Mogg, the Court distinguished the liberal approach
77
adopted in that case by noting that there ‘are … obviously better-placed challengers’, the standing of the
other applicants not being questioned.

Counterpoint: The reasons for a liberal approach to standing

The rationale for this consistently liberal approach is provided, albeit before any of these examples
were heard, by Lord Diplock. In the IRC case he stated that:

It would, in my view, be a grave lacuna in our system of public law if a pressure group, like
the [National Federation of Self-Employed and Small Business], or even a single public-
spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing
the matter to the attention of the court to vindicate the rule of law and get the unlawful
78
conduct stopped.

A liberal, more open system offers greater accountability and protection for the rule of law,
ensuring that those bringing an application for judicial review are not prevented by overly technical
79
rules of standing from bringing their case to the Administrative Court. Indeed, writing extra-
judicially, Schiemann emphasizes the importance of having ‘administrators who act according to
law and who can be brought to account if they do not’, noting that judicial review is perhaps the
80
only way to get the courts to act. The ability for an administrator to be sued subject to an ‘open-
81
system’ of standing would encourage that administrator to act more carefully in line with the law.

Though the courts have tended to adopt this liberal approach to standing, however, the
comparative benefits of a liberal approach against a stricter, more closed system is an oft-
82
considered debate. A closed system, for instance, saves unnecessary cost and delay, and ensures
the ability of administrators to be able to work free from the distractions and worries of potential
83
claims. Coming back to Schiemann’s example, the ‘possibility of being sued can [also] cause an
administrator to concentrate less on the quality of his decision and more on making it “judge
84
proof”’. It is through balancing these two competing issues that the courts have developed a
case-by-case approach to the standing test.

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Do you think it more important to have an open test that encourages greater accountability and
protection for the rule of law or a stricter test that saves resources and affords greater protection
for public authorities?

With these justifications and examples in mind, it is clear to see how and why the courts, since 1981, have
been minded to adopt a liberal approach to standing. Though in DSD and NBV the question of the Mayor of
London’s standing is distinguished from the liberal approach in Rees-Mogg, the reality that there were
other applicants better placed to bring the claim influenced this finding. One thing that all of these cases
have in common, however, is that they all involve an individual party seeking to apply for judicial review. A

p. 440 different ↵ line of cases that involve groups of individuals, or cases brought by pressure groups on
behalf of individuals, has raised its own issues, as this next section now explores.

Discussing the problem

Have another look at the problem scenario. In view of the rules of standing discussed in this
section, do you think (a) the newspaper editor, (b) the priest, or (c) the two private school head
teachers would have standing to challenge the local council’s policy?

(a) Newspaper editor

With regards to the newspaper editor, we are guided by the case of ex p Rees-Mogg in which the
editor of The Times was held to have sufficient standing to challenge the government’s ratification
of the Protocol on Social Policy by virtue of his interest in constitutional matters. Such a liberal
approach to standing would suggest that, in the problem scenario, the editor of the local newspaper
might similarly be granted standing on the basis of an arguable interest in the local area, fuelled by
the numerous letters of complaint that have been received. In addition, and borrowing Watkins LJ’s
words from ex p Leigh, it could also be argued that the newspaper editor is acting as the ‘guardian of
85
the public interest’, thereby strengthening the meritorious nature of the case.

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(b) Priest
On the question of standing, the priest cannot be said to be directly affected by the council’s policy,
at least to the same degree as the pupils, parents, and teachers. This said, given the courts’ liberal
approach to standing, it is perhaps not inconceivable that they might theoretically find a sufficient
interest on the basis of the priest’s association with one of the schools, through his church.
Regardless of this, however, the court would be unlikely to grant leave for the priest’s application
on the basis that he has exceeded the strict three-month time limit in which judicial review
proceedings must be brought. Due to his absence, on sabbatical, for six months, he has been unable
to make a start at an earlier point. Despite the court’s ability to exercise a degree of discretion on
this point, they would be unlikely to permit the priest’s application to proceed for these reasons.

(c) Private school head teachers

Despite the reasons underpinning their proposed application for judicial review, the private school
teachers would be unlikely to be granted standing. In the IRC case, the National Federation of Self-
Employed and Small Businesses Ltd was not granted standing on the basis that they were just a
body of taxpayers and had no legitimate interest in the way in which the Inland Revenue dealt with
the casual Fleet Street workers. In a similar vein, here, it could be argued that the private school
head teachers have no legitimate interest in the way in which the local council deals with state
schools under its charge. Private schools are private entities, falling outside the authority of the
council, so they would struggle to show themselves to be directly affected by the policy in question.

p. 441 11.4.2 Group standing

The issue raised by these ‘group cases’ concerns the question of whether collective action, involving a
number of people or representation by pressure groups acting on behalf of a number of individuals, can
increase the likelihood of a sufficient interest being accepted.

This matter was first considered in the IRC case. In examining whether the National Federation of Self-
Employed and Small Businesses had standing to challenge the Inland Revenue’s treatment of the casual
workers, the House of Lords found that:

One taxpayer has no sufficient interest in asking the court to investigate the tax affairs of another
taxpayer or to complain that the latter has been under assessed or over-assessed. And this
principle applies equally to groups of taxpayers: an aggregate of individuals each of whom has no
86
interest cannot of itself have an interest.

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This judgment is consistent with the view that issues of standing are linked to merits and it shows that this
remains the case even where a greater number of individuals is involved. The courts will always consider
the sufficient test and, based on the IRC judgment, an increase in numbers will not necessarily increase the
chances of that test being satisfied. This is a view that was upheld eight years later in the case of R v
87
Secretary of State for the Home Department, ex p Rose Theatre Trust.

Case in depth: R v Secretary of State for the Home Department, ex p

Rose Theatre Trust [1990] 1 QB 504

During the course of redevelopment on the banks of the Thames in London, the remains of the
historical Rose Theatre were discovered. The Rose Theatre Trust Company was set up with the aim
of preserving and protecting these remains and making them accessible to members of the public.
To this end, it applied to the Secretary of State for the Environment to have the site listed in the
Schedule of Monuments. Though the Secretary of State accepted that the theatre’s remains were of
national importance, he refused to list the site as a monument on the basis that, inter alia, there
was a need to balance the desirability of preservation with the need for a city such as London to
thrive. The Trust Company applied for judicial review of the decision, though, claiming that the
Secretary of State had taken into account irrelevant considerations, failed to take account of
relevant considerations, misdirected himself in law, and acted unreasonably. On this basis, it
sought an order to quash the decision and to require a new one to be made, considering the Rose
Theatre site as a monument. The application was refused on two grounds. First, because the
Secretary of State had a broad discretion to list sites as monuments and had exercised this
appropriately. Secondly, because the matter was a governmental one, in respect of which members
of the public had insufficient interest and, therefore, no standing; something that was unchanged
by the mere fact that certain members of the public had set up a Trust Company as a vehicle for
their challenge.

p. 442 ↵ In entertaining the question of group standing in Rose Theatre, Schiemann J followed the judgment of
the House of Lords in the IRC case. He stated that ‘[s]ince, in my judgment, no individual has the standing
88
to move for judicial review it follows … that the company created by those individuals has no standing’.
Amidst the courts’ liberal approach to standing in cases involving individuals, the general view is that
there is no such thing as cumulative standing; that is, if a number of people come together—themselves
with no or little claim of standing—then the court cannot find that sufficient standing has been
established merely through their collective action. Groups of people will be assessed individually, not
collectively.

The judgment in Rose Theatre is often contrasted with one that came just a few years later, testing the rules
of group standing in a somewhat different manner. R v Secretary of State for the Home Department, ex p
89
Greenpeace (No 2) did not so much concern a group of individuals, but rather representation of a group by
Greenpeace, a well-established and respected charity, of which a number of the affected individuals in the
case were a member.
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Case in depth: R v Inspectorate of Pollution, ex p Greenpeace (No 2)

[1994] 2 CMLR 548

The Inspectorate of Pollution and the Minister of Agriculture, Fisheries and Food granted an
application, made by British Nuclear Fuels pursuant to the Radioactive Substances Act 1960, to
allow variations to existing authorizations to permit the company to discharge radioactive waste
from its power station at Sellafield, in Cumbria, as part of a testing procedure. Greenpeace sought
to challenge this variation through an application for judicial review on the grounds that a
completely new authorization was required and that insufficient justification was provided, as
necessary under Article 6 of Directive 80/836. Otton J, however, refused the application, finding
that the variations to existing authorizations were sufficient to cover the test and that appropriate
advanced justifications for the test were provided.

Though the application was refused in Greenpeace, the key point to consider again relates to the issue of
group standing. Arguments were made in the case to the effect that Greenpeace did not have a sufficient
interest or statutory right to bring the complaint and that, in light of the authority provided by Rose
Theatre and the IRC case, a group of individuals or body representing such individuals did not change this.
The court, however, disagreed. Otton J looked more to the nature of Greenpeace itself and found that its
status as a ‘responsible and respected body with a genuine concern for the environment’ meant that it had
90
an interest in the disposal of radioactive waste at Sellafield. In addition, and on the basis that the charity
represented some 2,500 members in the Cumbria area and that these were ‘inevitably concerned about … a
danger to their health and safety from any additional discharge of radioactive waste’, the issues presented
91
by the application were deemed ‘serious and worthy of determination’ by the court. Indeed, in the
circumstances, it was felt that if Greenpeace were to be denied standing, there might not be any other
possible or effective way in which these local, concerned individuals could challenge the Inspectorate’s
92
decision. Otton J rejected arguments that Greenpeace was a ‘“mere” or “meddlesome busybody”’,
stating that ‘I regard the applicants as eminently respectable and responsible and their genuine interest in
93
the issues raised is sufficient for them to be granted locus standi’.

p. 443 Discussing the problem

Have another look at the problem scenario set at the outset of this chapter. In light of the
judgments in both the Rose Theatre case and the Greenpeace case, consider whether or not Parents
for Education and Primary School Teachers Together would be granted standing in respect of the
council’s policy.

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(a) Parents for Education

Relevant to the circumstances surrounding any possible application for review brought by Parents
for Education is the decision in the Rose Theatre case. This parallel is drawn on the basis that, like the
campaigners challenging the decision of the Secretary of State not to list the Rose Theatre site on
the Schedule of Monuments, the group of local parents came together for the specific purpose of
challenging the council’s policy. Unlike the campaigners in Rose Theatre, however, there is perhaps
a stronger case to be made in favour of standing. It has already been noted that the campaigners in
that case were assessed individually, none of them having sufficient interest to bring an
application, a reality that was unchanged by the combined forces of the Trust bringing the case.
Parents for Education, however, is made up of local parents whose children attend local state schools
and who could therefore be held to have an interest in challenging the policy due to their children
being directly affected by its implementation. Despite the decision in Rose Theatre, standing could
potentially be granted to this group.

(b) Primary School Teachers Together

With regards to Primary School Teachers Together, we can look to the case of Greenpeace. The parallel
with this authority is founded on the fact that, just as Greenpeace was held to have standing due to
its long-standing and well-established reputation, and the fact that so many local residents were
members, the proposed application in the scenario is also brought by a well-established body
which represents a significant majority of teachers affected by the council’s policy. What is more,
the teachers will be affected by the implementation of this policy, meaning that the test for
standing applied by the courts can be more easily satisfied.

Greenpeace was a notable judgment and one that can be distinguished from the earlier Rose Theatre
94
decision on the basis that the circumstances in that case were different. For instance, ‘the interest group
[in Rose Theatre] had been formed for the exclusive purpose of saving the Rose Theatre site and no
95
individual member could show any personal interest in the outcome’. It therefore makes sense that since
no individual could show any personal interest in respect of the historic site, forming a group of those
individuals would do nothing to increase the possibility of any such interest. By contrast, however, given
that a number of people would have been affected by the disposal of radioactive waste in the Greenpeace
case, and were concerned about the possible effects of that disposal on their own lives, a group of such

p. 444 individuals served to increase the weight of that concern and ↵ give rise to a collective sufficient
interest. Greenpeace was then able to represent those individuals because, as a respected and experienced
charity, championing environmental issues and concerns, it was best placed to do so. Indeed, and bearing
in mind the discussion concerning the impact that merits has on the question of standing, the matter at
issue in Greenpeace, regarding as that did concerns for widespread health, may also have had an impact on
the decision to grant standing. In other words, in addition to Greenpeace’s representative standing, there
was an element of public interest in permitting the application to proceed.

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The Rose Theatre and Greenpeace cases provide an interesting insight into the issues that are considered
when assessing group standing, exemplifying both the case-by-case nature of the question and the
importance that is placed on the merits of each particular case. In Greenpeace, Otton J emphasized this
case-by-case nature of standing questions by stressing that the Greenpeace judgment did not set a
precedent that interest groups could always follow. He said: ‘it must not be assumed that Greenpeace (or
any other interest group) will automatically be afforded standing in any subsequent application for judicial
96
review … this will have to be a matter to be considered on a case by case basis.’

Nonetheless, just a year later, the courts were once again invited to consider the issue in R v Secretary of
97
State for Foreign and Commonwealth Affairs, ex p World Development Movement.

Case in depth: R v Secretary of State for Foreign and Commonwealth

Affairs, ex p World Development Movement [1995] 1 WLR 386

Pursuant to section 1(1) of the Overseas Development and Co-operation Act 1980, a British
consortium sought aid and trade provision in respect of a project to construct a hydro-electric
power station on the Pergau river in Malaysia. The UK Government engaged in negotiations with
the Malaysian Government with regards to the possibility of funding for the project. As part of this,
the Overseas Development Administration engaged in an appraisal mission, though it reported that
the project was uneconomic and that for the UK Government to involve itself in the project would
be an abuse of the aid programme and not a sound development project. Regardless, on the view
that it was important for the UK’s credibility, the Secretary of State for Foreign and Commonwealth
Affairs approved the necessary support and signed a financial agreement with the Malaysian
Government, thereby providing funding for the project. The World Development Movement, an
98
interest group ‘dedicated to improving the quantity and quality of British aid to other countries’,
sought an assurance from the Secretary of State that there would be no further funding, however,
this was not provided. As a result, the World Development Movement Ltd sought an application for
judicial review on grounds that the Secretary of State had acted unlawfully, and it was granted.

p. 445 ↵ One of the main issues considered by the court related to whether the World Development
Movement, as an interest group, had sufficient interest to bring the application. Rose LJ considered a
99
number of factors and a range of previous authorities and found no reason to deny standing. Indeed, in
view of the range of previous cases, some of which have been discussed, Rose LJ felt that:

The authorities referred to seem to me to indicate an increasingly liberal approach to standing on

the part of the courts during the last 12 years … if the Divisional Court in Ex p Rees-Mogg [1994]
Q.B. 552 … was able to accept that the applicant … had standing in the light of his ‘sincere concern
for constitutional issues,’ … it seems to me that the present applicants, with the national and
international expertise and interest in promoting and protecting aid to underdeveloped nations,
100
should have standing in the present application.

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Drawing from previously discussed case law, the Court of Appeal acknowledged and endorsed the liberal
approach that the courts have—over the years—adopted with regards to issues of standing, and they
contributed to it further by accepting that the World Development Movement, despite not having any
financial or personal interest in the matter, could have standing to challenge the government’s decision.
This not only represents a departure from the initially cautious approach that the courts took in Rose
Theatre with regards to group standing, but also serves as a further example of the importance with which
the courts continue to see the merits of a case being linked to the question of locus standi.

11.4.3 Concluding thoughts on standing

Questions of standing have been discussed at length over the years, with courts considering a range of
factors and issues in determining whether applicants should be deemed to have a sufficient interest to
make an application. Cases involving individuals, groups of individuals, and interest groups have all
presented differing issues. The overriding approach employed by the courts, however, appears to be a
liberal one. Judges have tended to go beyond simply asking whether or not the applicant has a ‘sufficient
interest’ in the matter at issue and, instead, have placed great emphasis on the merits of the case and the
importance of protecting the rule of law, of affording redress where alternative courses of action are not
101
possible, and of resolving key, important issues in addressing questions of standing. Alongside the
requirement of standing, however, questions regarding the public/private law divide are often presented to
the courts in entertaining judicial review applications, as the next section now discusses.

p. 446 11.5 The public/private law divide

Judicial review of administrative action is a public law action, founded on the prerogative remedies of
102 103
certiorari, mandamus, and prohibition, which, as Lord Denning explained in O’Reilly v Mackman, were
104
the special remedies available in public law to regulate the affairs of public authorities. These have been
built on by further legislation and provision over the years, with the Senior Courts Act 1981, the Order 53
procedure, and its successor, the Civil Procedure Rules, explaining and setting out further the public
nature of judicial review. The purpose of this public law procedure serves not only to protect those subject
to administrative decisions from arbitrary abuses of power, but also protects those in decision-making
positions from facing unnecessary, time-consuming, costly, and uncertain actions in the court. The
requirements, already discussed, relating to time-limits and standing, exist to ensure that applications for
judicial review have merit and are brought within reasonable time. Much of this has already been
explained. This public law action, however, can be clearly distinguished from procedures and remedies
available at private law, with actions there often being based, for example, on contractual or tortious
disputes and being subjected to different rules and procedures. This divide between public and private law,
though, has been the focus of much discussion over the years, with cases considering both the notion of
procedural exclusivity and the requirement that judicial review only stand against public authorities, as
this section will now explain.

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11.5.1 The exclusivity principle

Procedural exclusivity, or the exclusivity principle, is the idea that only matters relating to public law can
be dealt with by judicial review; issues of private law must be dealt with through the relevant, private law
105 106
procedures. The principle derives from Lord Diplock’s notable judgment in O’Reilly v Mackman.

Case in depth: O’Reilly v Mackman [1983] 2 AC 237

Following a riot at a prison in Hull, a number of prisoners were brought before the Board of
Visitors, where they were found guilty of disciplinary offences and ordered to lose remission of
sentence of 510 days. Amid complaints that the Board had breached rules of natural justice in
carrying out its inquiry and in handing out the sentence, a number of the prisoners made
applications for judicial review. While they were told by the Divisional Court that this was not
available to them, the Court of Appeal reversed this view, resulting in the quashing of some of the
107
decisions. Four prisoners, however, long after the time limit for judicial review had expired,
brought an ordinary action by writ, on the grounds that the Board had breached Prison Rules and
the rules of natural justice. The Court of Appeal and, subsequently, the House of Lords both
dismissed the proceedings on the basis that action through ordinary writ was not appropriate and
that, since the necessary remedies were available at judicial review, action should have been sought
through an application there instead.

p. 447 ↵ In the Court of Appeal, Lord Denning labelled it a ‘high constitutional principle’ that ‘judicial review
… should be the normal recourse in all cases of public law where a private person is challenging the conduct
108
of a public authority or a public body, or of anyone acting in the exercise of a public duty’. This is a view
that was endorsed by the House of Lords on appeal, with Lord Diplock giving the leading judgment and
commenting on the then recent reforms. He stated that:

Now that … all remedies for infringements of rights protected by public law can be obtained upon
an application for judicial review … it would in my view as a general rule be contrary to public
policy, and as such an abuse of process of the court, to permit a person seeking to establish that a
decision of a public authority infringed rights to which he was entitled to protection under public
law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53
109
for the protection of such authorities.

Though the idea of placing a clear divide between public and private law matters, with regards to judicial
review, was contrary to the 1977 reform’s desire to simplify and clarify the procedures and remedies for
judicial review, the House of Lords judgment in O’Reilly had the effect of limiting access to judicial review
to those parties affected by public law issues.

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Pause for reflection

Do you agree with the judgment in O’Reilly v Mackman that the prisoners’ case should be dismissed
purely on the grounds that it was sought using the wrong process? What are the broader
implications of dismissing applications on this basis?

In the years that followed, however, the House of Lords’ decision in O’Reilly, and Lord iplock’s judgment in
particular, came to be widely criticized. Wade and Forsyth, for instance, question ‘whether the logic of
O’Reilly v Mackman is as compelling as Lord Diplock maintained’, noting how it ‘has produced uncertainty
110
as to the boundary between public and private law’. They describe the case as a ‘setback for
administrative law’ and stress that the judgment ‘has caused many cases, which on their merits might
111
have succeeded, to fail merely because of choice of the wrong form of action’. In view of these
comments, it is hardly surprising that the courts came later to impose exceptions to the application of the
exclusivity principle. The two most prominent post-O’Reilly cases are Wandsworth London Borough Council
112 113
v Winder and Roy v Kensington and Chelsea and Westminster Family Practitioner Committee.

In Winder, Wandsworth Borough Council increased the rent of council property, giving due notice to the
tenant. When the tenant refused to pay the increased rate, however, the council brought private, civil law
proceedings for the outstanding amount, also seeking repossession of the property. In defence, the tenant
claimed that the decision to increase the rent was made ultra vires and was therefore void. Though the
council made attempts to strike out this defence, the Court of Appeal and, subsequently, the House of
Lords both upheld the view that the tenant should be allowed to pursue a public law action in defence in

p. 448 this way. ↵ Lord Fraser, in giving the leading judgment, accepted that the principle set out in O’Reilly,
and the basis for judicial review more widely, was to ensure good administration and speedy certainty,
thereby protecting authorities from unmeritorious or dilatory challenges and ensuring certainty for third
114
parties who may be indirectly affected by a particular decision. At the same time, however, he
emphasized the importance of ‘preserving the ordinary rights of private citizens to defend themselves
115
against unfounded claims’. Accepting that public law judicial review proceedings could be invoked as a
defence to a claim in private law meant that the scope of Lord Diplock’s judgment in O’Reilly had become
limited.

The exclusivity principle was considered again in the case of Roy. Here, a GP had some of his basic practice
allowance withheld by the Committee on the basis that they felt he had carried out an insufficient amount
of necessary work. As a result, the GP instigated private law proceedings in the High Court, issuing the
Committee with a writ. In their defence and as a counterclaim, the Committee sought to have the claim
struck out on the basis that, as a public law decision, it should be challenged by an application for judicial
review. The Court of Appeal, and later the House of Lords, held that since the issue involved a private law
right, on the basis of a contract that existed between the Committee and the GP, the proceedings could be
brought through ordinary action at private law, even if those proceedings also involved a challenge to a
public law decision. In both Winder and Roy the principle established in O’Reilly v Mackman came to be

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limited insofar as the court accepted that where a case involved both private and public law issues, either
action could be used. Indeed, as we see in Winder, public law actions can be used as a defence in relation to
an otherwise private law matter.

Since O’Reilly, the divide between public and private law has become much less of an issue. Indeed, this has
been observed by the courts themselves, with the Court of Appeal holding in Clark v University of
116
Lincolnshire and Humberside that ‘a claim against a public body for breach of contract should not be
117
struck out merely because an application for judicial review might have been more appropriate’. Since
the early 1980s and the case of O’Reilly, the exclusivity principle, in the strict form elucidated by Lord
Diplock, has come to be limited by the courts, essentially to the point that it is no longer seen as a relevant
requirement for judicial review.

11.5.2 Public authorities and public functions

Nowadays, the only instance in which the courts will consider the relevance of the public/private law divide
is in respect of the body against which an application for judicial review can be brought. Even in this
regard, there has been a gradual liberalization of the courts’ approach, as this section explains. The Civil
Procedure rules set out the procedural basis for this rule and state that ‘a “claim for judicial review” means
a claim to review the lawfulness of … a decision, action or failure to act in relation to the exercise of a public
118
function’. That said, historically, questions relating to whether or not a particular authority was ‘public’,
and therefore susceptible to judicial review looked to the source of that authority’s power, rather than to
119
p. 449 the functions which they exercised. Typically, a public authority ↵ was one that had been created
120
either by legislation or as a result of prerogative powers. In R v Criminal Injuries Compensation Board, ex p
121
Lain, for instance, the Compensation Board, created by royal prerogative, was deemed to be susceptible
122
to review; in Council of Civil Service Unions v Minister for the Civil Service, it was an Order in Council, passed
by the Prime Minister herself, that was the question of review. Nonetheless, this approach was
123
significantly expanded upon in the case of R v Panel on Takeovers and Mergers, ex p Datafin Plc and others.

Case in depth: R v Panel on Takeovers and Mergers, ex p Datafin Plc

and others [1987] QB 815

Datafin Plc and Prudential Bache Securities Inc were engaged in competition with Norton Opax Plc,
all bidding to take over McCorquodale Plc. It was argued, however, that Norton Opax was acting in
breach of the City Code on Take-overs and Mergers. As a result, Datafin and Prudential Bache
Securities (the applicants) complained to the Panel of Takeovers and Mergers, though the Panel
dismissed this complaint. Consequently, the applicants sought judicial review of the dismissal,
seeking an order to have it quashed and another order to require reconsideration of the complaint.
The Divisional Court refused leave for the application, however, on the grounds that the decision of
the Panel was not susceptible to judicial review, a decision that was later reversed by the Court of
Appeal.

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The Court of Appeal’s judgment was notable for its departure from previously accepted considerations of
the source of power in determining whether or not an authority could be regarded as ‘public’ for the
purposes of judicial review. As Falkner explains, it was argued in the case that ‘although the Panel did not
exercise statutory or prerogative powers, it should nevertheless be subject to judicial review because it was
124
essentially a public body carrying out public functions’. This was a view with which Sir John Donaldson
MR agreed, stating that:

[The Panel on Takeovers and Mergers] is without doubt performing a public duty and an
important one. This is clear from the expressed willingness of the Secretary of State for Trade and
Industry to limit legislation in the field of take-overs and mergers and to use the panel as the
centrepiece of his regulation of that market. The rights of citizens are indirectly affected by its
decisions … it has a duty to act judicially and it asserts that its raison d’être is to do equity between
one shareholder and another … Given that it is really unthinkable that … the panel should go on its
125
way cocooned from the attention of the courts in defence of the citizenry.

More broadly, though, Lloyd LJ placed this decision in the wider context of accepted tests in this area by
stating that:

I do not agree that the source of the power is the sole test whether a body is subject to judicial
review … Of course the source of the power will often, perhaps usually, be decisive. If the source of

p. 450 power is a statute, or subordinate legislation under a statute, then clearly ↵ the body in
question will be subject to judicial review. If, at the other end of the scale, the source of power is
contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to
judicial review … But in between these extremes there is an area in which it is helpful to look not
just at the source of the power but at the nature of the power. If the body in question is exercising
public law functions, or if the exercise of its functions have public law consequences, then that
may … be sufficient to bring the body within the reach of judicial review … The essential
distinction … is between a domestic or private tribunal on the one hand and a body of persons who
126
are under some public duty on the other.

On this foundation, Lloyd LJ went on to emphasize the manner in which the Panel had been created ‘under
127
authority of the government’ and that, as a result, it was fulfilling not merely a public role but also a
governmental one. Consequently, he was satisfied that the Panel could be regarded as a public authority for
the purposes of judicial review.

The Datafin case substantially broadened the accepted understandings of what could be regarded as a
public authority for the purpose of judicial review, inviting courts to look beyond the mere source of a
body’s power and to consider the nature of the powers that it exercises. The breadth of this judgment is
echoed by Sir Thomas Bingham, who noted that ‘[t]he effect of this decision was to extend judicial review
to a body whose birth and constitution owed nothing to any exercise of governmental power but which had
128
been woven into the fabric of public regulation in the field of take-overs and mergers’.

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The test set out in Datafin was subsequently applied in R v Chief Rabbi of the United Hebrew Congregations of
129
Great Britain and the Commonwealth, ex p Wachmann. This case concerned an application for judicial
review by an Orthodox rabbi in respect of a decision made by the applicant’s Chief Rabbi to declare him ‘no
longer religiously and morally fit to occupy his position as rabbi’, terminating his employment on those
130
grounds. In applying the test from Datafin, Brown J rejected arguments to the effect that the rabbi was
fulfilling a public function, stating that:

To attract the court’s supervisory jurisdiction there must be not merely a public but potentially a
governmental interest in the decision-making power in question … [the rabbi’s] functions are
essentially intimate, spiritual, and religious—functions which the government could not and
131
would not seek to discharge in his place were he to abdicate his regulatory responsibility.

The court in Wachmann distinguished the facts from Datafin, acknowledging that the role of the rabbi was
not established by any governmental authority and his functions were also sufficiently far removed from
any governmental interest for him to fall outside the scope of judicial review. Just six years after the
Datafin judgment, however, the courts were called upon again to consider the tests for determining
whether a body could be termed a public authority for the purposes of judicial review, in the case of R v
132
Disciplinary Committee of the Jockey Club, ex p Aga Khan.

Case in depth: R v Disciplinary Committee of the Jockey Club, ex p Aga

Khan [1993] 1 WLR 909

Following victory in a horse race at Epsom, the winning horse—owned by the Aga Khan—
underwent a routine test. This found that the horse’s urine contained traces of camphor, a
substance banned under the Jockey Club’s Rules of Racing. The Disciplinary Committee held that
the winning horse should be disqualified and its owners fined £200. Consequently, the Aga Khan
sought an application for judicial review of the decision to disqualify, with the aim of having the
Committee’s decision quashed and the win reinstated. Addressing the preliminary question with
regards to the Jockey Club’s susceptibility for review, the Divisional Court dismissed the
application, although it was later upheld in the Court of Appeal.

p. 451 ↵ Like the Panel on Takeovers and Mergers in Datafin, Bingham MR accepted the ‘contention that the
Jockey Club … regulates a significant national activity, exercising powers which affect the public and are
133
exercised in the interest of the public’. Indeed, he added that ‘I am willing to accept that if the Jockey
Club did not regulate this activity the government would probably be driven to create a public body to do
134
so’. In going on to distinguish the facts from Datafin, however, Bingham MR also noted that:

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the Jockey Club is not in its origin, its history, its constitution or (least of all) its membership a
public body … It has not been woven into any system of governmental control of horseracing,
perhaps because it has itself controlled horseracing so successfully that there has been no need for
any such governmental system and such does not therefore exist. This has the result that while
the Jockey Club’s powers may be described as, in many ways, public they are in no sense
135
governmental.

As a consequence, it was held by the Court of Appeal that the Jockey Club, though exercising public, though
not governmental, functions, could not be regarded as a public authority for the purposes of judicial
review. One of the most significant reasons underlying this was not so much the Jockey Club’s functions,
but rather the nature of its relationship with its members, which in this instance was based on a contract.
As Bingham explained:

[T]he powers which the Jockey Club exercises over those who (like the applicant) agree to be
bound by the Rules of Racing derive from the agreement of the parties and give rise to private
rights on which effective action for a declaration, an injunction and damages can be based without
resort to judicial review. It would in my opinion be contrary to sound and long-standing principle
136
to extend the remedy of judicial review to such a case.

In short, where there is a contract the courts will regard this as indicative of a private law relationship,
affecting only those party to that contract. Consequently, acts and decisions of parties to that contract will
be actionable only at private law and will not be susceptible to judicial review. This is a view that has been
137
endorsed more recently in R (Oxford Study Centre Ltd) v British Council, where the court rejected the
application for judicial review on the grounds that the body in question was not exercising a public
138
function and also because the source of the body’s power was contractual.

p. 452 ↵ We can see that the division between public and private law has provided much judicial discussion in
respect of the scope of judicial review. Though Lord Diplock’s judgment in O’Reilly v Mackman set out the
exclusivity principle and provided an initial explanation of how judicial review could be restricted in terms
of the public/private law divide, this came to be criticized and was limited in subsequent cases. Since then,
the courts have broadened out the instances where judicial review is available and have expanded the rules
relating to the definition of public authorities, looking predominantly to their functions and the
139
relationships they share with their respective members in determining their suitability for review.
Having explored the various requirements and procedures for judicial review throughout this chapter, it is
necessary finally to consider the remedies that can be awarded upon a successful application for judicial
review.

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Discussing the problem

Have a look at the problem scenario at the beginning of this chapter. Assuming the relevant
parties have standing to bring an application for judicial review, are they bringing proceedings
against a public authority?

Yes. As Chapter 9 has already explored and explained, local councils are a branch of the government
so can be classed as a public authority for the purposes of judicial review.

11.6 Remedies

When an application for judicial review is brought, it will be the main aim of the applicant to seek the
award of an appropriate remedy. These are designed to impose upon a public authority an order to the
effect that illegal or improper decisions are struck down, and/or to ensure that future decisions are made
legally and properly. The central role that remedies play in the judicial review procedure is reflected in
section 31(1) of the Senior Courts Act 1981. This provides that judicial review consists of:

(1) An application to the High Court for one or more of the following forms of relief, namely—

(a) a mandatory, prohibiting or quashing order;

(b) a declaration or injunction under subsection (2); or

(c) an injunction under section 30 restraining a person not entitled to do so from acting
in an office to which that section applies.

As this section shows, there are a number of potential remedies available, though they are awarded entirely
at the discretion of the court in each case. The available remedies can be divided into two categories—
prerogative remedies and ordinary remedies—which were, prior to Order 53 of the Rules of the Supreme
Court, originally available under entirely different procedures. Reforms brought in in the late 1970s,

p. 453 however, and discussed earlier in ↵ this chapter, now mean that all these remedies are available under
the same judicial review procedure, as section 31 explains.

The prerogative remedies are only available at public law and have, for centuries, formed the basis of
actions against public authorities. There are three of them—quashing orders, mandatory orders, and
prohibition orders. Quashing orders, if awarded, serve retrospectively to strike out the particular decision
or action in respect of which an application for judicial review has been brought. In addition, as Craig
observes, ‘where there are grounds for quashing the decision the court can remit the case to the original
decision-maker with a direction to reconsider the matter and reach a decision in accord with the judgment
140
of the court’. Prohibition orders serve prospectively to prohibit potentially unlawful action, meaning
that they serve to prevent a public authority from acting in a particular way in the future. Finally,
mandatory orders are imposed to demand that a public authority act in a particular way.

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 11. Judicial review: access to review and remedies

Pause for reflection

Can you think of situations in which more than one of these prerogative remedies might be
awarded simultaneously to quash a public authority’s decision and require it to re-make a decision
lawfully and legitimately?

Ordinary remedies, which can be sought at private law as well, include injunctions, declarations, and
damages. Injunctions serve simply to prevent a public authority from taking a particular course of action
or require them to abide by stipulations of the court, while a declaration serves to ‘state the rights or legal
141
position of the parties as they stand, without changing them in any way’. Both injunctions and
declarations can be awarded by the court where it is ‘just and convenient’ to do so, in view of the nature of
142
the matter, the nature of the parties, and the circumstances of the case. Finally, and as at private law,
damages for judicial review can compensate the aggrieved applicant for any loss that they might have
endured as a result of the erroneous decision. Pursuant to section 31(4)(b) of the 1981 Act, however, they
can only be awarded where ‘the court is satisfied that such an award would have been made if the claim had
been made in an action begun by the applicant at the time of making the application’.

Discussing the problem

What, if any, remedies do you think should be awarded in respect of the local council’s decision in
the problem scenario?

Leaving aside the question of whether any application for judicial review would succeed on these
facts—a consideration that can only be entertained once the various grounds for review (discussed

p. 454 in Chapters 12 to 14) have been explored—there are two remedies potentially of interest ↵ to the
scenario set out at the start of the chapter. First are quashing orders. Each of the parties seeking to
bring an application for judicial review does so to challenge and change the policy as it stands. They
would want for a case to be made in favour of striking out—or quashing—the council’s policy.
Secondly, though of perhaps less importance, a court might grant a mandatory order, requiring the
council to review the statutory power granted under the 2025 Act and to set out another policy.

It is clear that the remedies play a valuable role in judicial review, providing a number of potential
outcomes for applicants who successfully challenge the decisions and actions of public authorities, subject
of course to the discretion of the Administrative Court.

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 11. Judicial review: access to review and remedies

11.7 Summary

This chapter has provided an in-depth introduction to judicial review of administrative action and
explained, in detail, its fundamental aspects and requirements. It has defined judicial review and provided
an insight into the way in which it has developed since the 1960s, with various reforms and judgments
being pivotal to the form of action as we know it today. Section 31 of the Senior Courts Act 1981 provides the
legal basis for review, while the Civil Procedure Rules, replacing Order 53 of the Rules of the Supreme
Court, set out the procedure that is to be followed in bringing an application for judicial review. Alongside
these various provisions, there are a number of other requirements that must be fulfilled. The principle of
standing ensures that only those with a ‘sufficient interest’ in the matter at issue are able to proceed with
an application, a test which the courts have explored and applied in an increasingly liberal and varying
manner. In addition, the requirement that judicial review be brought only against a public authority helps
to guide applicants towards the most appropriate form of action, a requirement that—since Datafin—the
courts have again interpreted broadly. Provided these various requirements are met and procedures
followed, however, then it is at the discretion of the court to award either ordinary or prerogative
remedies. The next three chapters now proceed on the foundation provided by this exploration of judicial
review and cover the substantive and procedural grounds on which an application can be made. These have
developed through case law over many years, though were identified by Lord Diplock in Council of Civil
Service Unions v Minister for the Civil Serviceas illegality, irrationality, and procedural impropriety. Before we
move on to these grounds, however, we must first identify the potential for reform in this area. In July
2020, an Independent Review of Administrative Law was established ‘to examine trends in Judicial Review
143
and to deliberate on any recommendations for reform’. The Review’s report was published in March
2021, a period of consultation then starting in respect of its proposals. The Review proposed, for example,

p. 455 procedural changes, including removal of ‘the requirement for a claim to be issued ↵ “promptly”, but
retaining the 3-month time limit’, and ‘providing for an extra step in the procedure of a Reply, to be filed
144
within seven days of receipt of the Acknowledgement of Service’. Following publication of the Review,
the Government pledged an intention to proceed with the introduction of these proposals in the near
future, also setting out further possible reforms, including introducing legislation to ‘clarify the effect of
statutory ouster clauses’; to ‘introduce remedies which are of prospective effect only’; and to set out ‘the
145
principles which lead to a decision being a nullity by operation of law’. Indeed, the Judicial Review and
Courts Bill 2021–2022 is, at the time of writing, progressing through Parliament. This brings in some of
the proposed changes to remedies, making provision for suspended quashing orders.

It is not the first time that possible reform of judicial review has been considered and explored. These
proposals are notable, though, for the subtle yet important changes that they recommend to the system of
administrative law. With the Government’s stated intention to give effect to some of these proposals, and
the Judicial Review and Courts Bill already progressing through Parliament, the nature of judicial review in
the UK could soon be subject to alteration. We now move on to look at the grounds for review.

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 11. Judicial review: access to review and remedies

Quick test questions

1. What was the significance of the judgment in Anisminic Ltd v Foreign Compensation Commission and others?

2. Explain the judicial review procedure.

3. What is the time limit within which an application for judicial review must be made and how strictly is this
applied?

4. What is the ‘sufficient interest’ test and where is it contained?

5. What did the House of Lords say in IRC v National Federation of Self-Employed and Small Businesses Ltd with
regard to the way in which the ‘sufficient interest’ test should be applied?

6. Why was Greenpeace granted standing in R v Inspectorate of Pollution, ex p Greenpeace (No 2)?

7. What tests do the courts employ to determine whether a body is a public authority for the purpose of judicial
review?

8. What are the three prerogative remedies and what do they do?

p. 456 Further reading

Nature and purpose of judicial review

Peter Cane, ‘Private Rights and Public Procedure’ [1992] Public Law 193

* Paul Craig, ‘Ultra Vires and the Foundations of Judicial Review’ (1998) 57 Cambridge Law Journal 63

Mark Elliott, ‘The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative
Law’ (1999) 58(1) Cambridge Law Journal 129

Mark Elliott, The Constitutional Foundations of Judicial Review (Hart Publishing, 2001)

* Christopher Forsyth, ‘Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and
Judicial Review’ (1996) 55(1) Cambridge Law Journal 122

Standing
* Peter Cane, ‘Standing, Legality and the Limits of Public Law’ [1981] Public Law 322

* Peter Cane, ‘Standing up for the Public’ [1995] Public Law 276

* Konrad Schiemann, ‘Locus Standi’ [1990] Public Law 342

The public/private law divide

Robert Falkner, ‘Judicial Review of the Take-Over Panel and Self-Regulatory Organisations’ (1987) 2(2) Journal of
International Banking Law 103

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11. Judicial review: access to review and remedies

Jonathan Morgan, ‘A Mare’s Nest? The Jockey Club and Judicial Review of Sports Governing Bodies’ (2012) 12(2) Legal
Information Management 102

* Dawn Oliver, ‘Public Law Procedures and Remedies—Do We Need Them?’ [2002] Public Law 91

Online resources

This chapter is accompanied by a selection of online resources to help you with this topic, including:

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Notes
1
The Administrative Court is the division of the High Court that deals with judicial review cases.
2
Peter Cane, Administrative Law (5th edn, OUP 2011) 249, citing the Civil Procedure Rules, r 54.1(2)(a).
3
Adam Tomkins, Public Law (OUP 2003) 171.
4
Ibid 171, citing Stanley A de Smith, Judicial Review of Administrative Action (3rd edn, Stevens & Sons 1973) 28.
5
Adam Tomkins, Public Law (OUP 2003) 171–2, citing Ridge v Baldwin [1964] AC 40; Padfield v Minister of Agriculture,
Fisheries and Food [1968] AC 997; Conway v Rimmer [1968] AC 910; Anisminic v Foreign Compensation Commission
[1969] 2 AC 147; and Council of Civil Service Unions v Minister for the Civil Service[1985] AC 374 at 410.
6
Keith Syrett, The Foundations of Public Law: Principles and Problems of Power in the British Constitution (2nd edn,
Palgrave Macmillan 2014) 186.
7
Ibid 186–7.
8
See 3.3.2.
9
Gail Bartlett and Michael Everett, ‘The Royal Prerogative’ (House of Commons Library Briefing Paper 03861, 17
August 2017) 7. For further explanation of the GCHQ case in this area, see 6.5.3.
10
[1985] AC 374, 410. Also see 6.5.3.

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11. Judicial review: access to review and remedies

11
6.5.3, citing Council for the Civil Service Unions v Minister of State for the Civil Service [1985] AC 374, 418 (hereinafter
‘GCHQ’).
12
See, for example: GCHQ.
13
See, for example: Blackburn v Attorney-General [1971] 1 WLR 1037 and R v Secretary of State for Foreign and
Commonwealth Affairs, ex p Rees-Mogg [1994] QB 552.
14
Hanratty v Lord Butler [1971] 115 SJ 386.
15
[2008] UKHL 61.
16
See, for further discussion, 6.5.3.
17
[2019] UKSC 41.
18
[2019] UKSC 41 [31].
19
Dawn Oliver, Constitutional Reform in the UK (OUP 2003) 48 and 51, citing Geoffrey Marshall, Ministerial Responsibility
(OUP 1989); Dawn Oliver and Gavin Drewry, Public Service Reforms: Issues of Accountability and Public Law (Pinter
1996); Diana Woodhouse, In Pursuit of Good Administration (OUP Clarendon Press 1997).
20
Dawn Oliver, Constitutional Reform in the UK (OUP 2003) 51.
21
See 3.4.1.
22
Joseph Raz, ‘The Rule of Law and its Virtue’ (1977) 93 Law Quarterly Review 195, 201.
23
[1969] 2 AC 147. This case is also discussed in 12.4.2.
24
This section was later repealed by the Statute Law (Repeals) Act 1989.
25
[1969] 2 AC 147, 181.
26
See HWR Wade and CF Forsyth, Administrative Law (10th edn, OUP 2009) 614–15.
27
Ibid 616, citing Denning LJ in R v Medical Appeal Tribunal ex p Gilmore [1957] 1 QB 574, 586.
28
[2019] UKSC 22.
29
[2019] UKSC 22 [107].
30
[2019] UKSC 22 [113].
31
[2019] UKSC 22 [131]–[132].
32
[2019] UKSC 22 [132], citing R (Cart) v Upper Tribunal (Public Law Project intervening) [2012] 1 AC 663 [133] and [102].
33
Mark Elliott, ‘The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative
Law’ (1999) 58(1) Cambridge Law Journal 129, 151, citing Paul P Craig, ‘Ultra Vires and the Foundations of Judicial
Review’ [1998] 57(1) Cambridge Law Journal 63.
34
Mark Elliott, ‘The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative
Law’ (1999) 58(1) Cambridge Law Journal 129, 151, citing Raymond v Honey [1982] 1 All ER 756; R v Secretary of State for
the Home Department, ex p Leech [1994] QB 198; R v Lord Chancellor, ex p Witham [1998] QB 575.
35
This was enacted as the Supreme Court Act 1981, though it was renamed by the Constitutional Reform Act 2005 to
avoid confusion with the UK Supreme Court, created by the 2005 Act.

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36
See 11.4 and 11.6.
37
Mark Elliott, ‘Judicial Review Reform (Again)’ (Public Law for Everyone, 6 February 2014), http://
publiclawforeveryone.com/2014/02/06/judicial-review-reform-again-2/ <http://publiclawforeveryone.com/
2014/02/06/judicial-review-reform-again-2/>.
38
See Peter Cane, Administrative Law (5th edn, OUP 2011) 250–1.
39
Law Commission, Remedies in Administrative Law (Law Com No 73, 1976).
40
The Rules of the Supreme Court set out the various civil procedures that should be followed. They were later
superseded by the Civil Procedure Rules.
41
Peter Cane, Administrative Law (5th edn, OUP 2011) 250.
42
Ministry of Justice, Pre-Action Protocol for Judicial Review, http://www.justice.gov.uk/courts/procedure-rules/civil/
protocol/prot_jrv <http://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_jrv>.
43
Civil Procedure Rules, rr 54.6 and 54.7.
44
The corresponding time limits at private law are significantly longer (procedures in tort and contract, for example,
are subject to a six-year time limit, pursuant to the Limitation Act 1980).
45
See Civil Procedure Rules, r 54.5. The time limit for judicial review has recently been the subject of reform. In July
2013, the government introduced an amendment to the Civil Procedure Rules to the effect that the time limit for
judicial review should be reduced to six weeks in respect of certain planning cases and to thirty days in respect of
certain procurement cases. The intention with this change was to bring the requirements for judicial review in line
with time limits for statutory appeals (see Ministry of Justice, Judicial Review: Proposals for further reform (Cm 8703,
2013) 5).
46
See Peter Cane, Administrative Law (5th edn, OUP 2011) 253.
47
See further Peter Cane, Administrative Law (5th edn, OUP 2011) 252.
48
Ibid 253–4.
49
Civil Procedure Rules, r 54.8.
50
Civil Procedure Rules, r 54.10.
51
Inland Revenue Commissioners v National Federation of Self Employed and Small Businesses Ltd [1982] AC 617, 642–3.
52
[1990] 1 QB 212.
53
Ibid 231.
54
Konrad Schiemann, ‘Locus Standi’ (1990) Public Law 342, 345.
55
R v Secretary of State for Social Services, ex p Child Poverty Action Group [1989] 1 All ER 1047, 1055, cited in ibid 346.
56
IRC v National Federation of Self Employed and Small Businesses Ltd [1982] AC 617, 639. Hereinafter ‘the IRC case’.
57
Ibid.
58
Ibid 630.
59
Ibid 653.

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60
Ibid 643–4.
61
Ibid 653.
62
Ibid 630.
63
[2001] EWHC Admin 119 [21].
64
Ibid [20], citing HWR Wade and CF Forsyth, Administrative Law (10th edn, OUP 2009) 667–88. This case involved a
challenge, by the victim’s father, of the fixing of the tariff term to be served by James Bulger’s murderers. In the case
there was no standing because it related to criminal proceedings in which only the Crown and the defendant were
‘proper parties’ [21].
65
See, further, Paul Craig, Administrative Law (5th edn, Sweet and Maxwell 2012) Ch 25.
66
[1985] QB 657.
67
Ibid 669, citing Lord Roskill in IRC [1982] AC 617, 656 [G]–[H]; and Lord Diplock, 640 [C].
68
Ibid 669. Though this was a view with which Sir John Donaldson MR, who gave the leading judgment in this case, did
not agree. He noted that it is worth mentioning the ‘submission by Mr Laws [on behalf of the Treasury] that Mr
Smedley has no sufficient interest within the meaning of RSC, Ord 53, r 3(7). Woolf J [at first instance] did not find it
necessary to decide this point and neither do I, although I agree with the judge that I should be extremely surprised to
find myself obliged to uphold that submission’ (667).
69
[1987] QB 582.
70
Ibid 598, citing Lord Denning MR’s citation from HWR Wade, Administrative Law (4th edn, OUP 1978) 608, in the IRC
case [1980] QB 407, 422.
71
[1994] QB 552.
72
Ibid 561–2.
73
[2018] EWHC 694 (Admin) [110].
74
[2018] EWHC 694 (Admin).
75
[2018] EWHC 694 (Admin) [109].
76
[2018] EWHC 694 (Admin) [109].
77
[2018] EWHC 694 (Admin) [110].
78
[1982] AC 617, 644, cited in Konrad Schiemann, ‘Locus Standi’ (1990) Public Law 342, 346.
79
Schiemann, ‘Locus Standi’ (1990) Public Law 346, citing Lord Diplock in IRC case [1982] AC 617, 644.
80
Ibid 346.
81
Ibid.
82
See, for example, ibid 346, citing Lord Diplock in the IRC case [1982] AC 617 at 644.
83
Ibid 348.
84
Ibid.
85
[1987] QB 582, 598.
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86
[1982] AC 617, 618, as per Lord Wilberforce, Lord Fraser, and Lord Roskill.
87
[1990] 1 QB 504.
88
Ibid 522.
89
[1994] 2 CMLR 548.
90
Ibid [81].
91
Ibid.
92
Ibid [82].
93
Ibid [83].
94
Ibid [86].
95
Ibid.
96
Ibid [85].
97
[1995] 1 WLR 386.
98
Ibid at 386.
99
Ibid 395. Such factors, with appropriate authority, included: ‘the importance of vindicating the rule of law’ (See:
Lord Diplock in the IRC case); ‘the importance of the issue raised, as in R v Secretary of State for Social Services, ex p
Child Poverty Action Group [1990] 2 QB 540’; ‘the likely absence of any other responsible challenger, as in Ex p Child
Poverty Action Group and Ex p Greenpeace Ltd. (No. 2) [1994] 4 All ER 329’; and the prominent role of the applicants in
giving advice and guidance (See Ex p Child Poverty Action Group).
100
[1995] 1 WLR 386, 395–6.
101
In judicial review claims brought under the Human Rights Act 1998, the test for standing is different. Pursuant to s
7(1), you must be the victim of an unlawful act to bring proceedings.
102
These are quashing orders, mandatory orders, and prohibition orders, discussed in 11.6.
103
[1983] 2 AC 237.
104
Ibid 255.
105
Private law typically refers to proceedings between private parties, such as contract law or tort law.
106
[1983] 2 AC 237.
107
See R v Board of Visitors of Hull Prison, ex p St Germain [1979] QB 425.
108
[1983] 2 AC 237, 256.
109
Ibid 285.
110
HWR Wade and CF Forsyth, Administrative Law (10th edn, OUP 2009) 567 and 569.
111
Ibid 567.
112
[1985] AC 461.
113
[1992] 1 AC 624.

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114
See [1985] AC 461, 508–9.
115
Ibid 509.
116
[2000] 1 WLR 1988.
117
Ibid 1988.
118
Civil Procedure Rules, r 54.1(2)(a)(ii).
119
Section 6.5.3, for instance, discusses the line of cases that established that power derived from the royal
prerogative was equally reviewable as power derived from statute, subject to further questions of justiciability.
120
As the case of AXA Insurance v Lord Advocate [2011] UKSC 46, demonstrates, discussed in 9.4.1, the devolved
institutions are susceptible to judicial review, albeit only with regards to the scope of their statutory powers.
121
[1967] 2 QB 864.
122
[1985] AC 374.
123
[1987] QB 815.
124
Robert Falkner, ‘Judicial Review of the Take-over Panel and Self-regulatory Organisations’ (1987) 2(2) Journal of
International Banking Law 103, 106.
125
[1987] QB 815, 838–9.
126
Ibid 847, citing R v National Joint Council for the Craft of Dental Technicians (Disputes Committee), ex p Neate [1953]
1 QB 704.
127
Ibid 849, citing Diplock LJ in R v Criminal Injuries Compensation Board, ex p Lain.
128
R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909, 921.
129
[1992] 1 WLR 1036.
130
Ibid 1036.
131
Ibid 1041.
132
[1993] 1 WLR 909.
133
Ibid 923.
134
Ibid.
135
Ibid.
136
Ibid.
137
[2001] EWHC (Admin) 207.
138
Ibid and see further HWR Wade and CF Forsyth, Administrative Law (10th edn, OUP 2009) 547.
139
Since the enactment of the Human Rights Act 1998, judicial review now has a further dimension. Under ss 6 and 7 of
that Act, public authorities can be challenged in light of a duty to act compatibly with the ECHR. This is discussed
further in 15.5.6.
140
Paul Craig, Administrative Law (5th edn, Sweet and Maxwell 2012) 811, citing s 31(5) of the Senior Courts Act 1981.

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141
HWR Wade and CF Forsyth, Administrative Law (10th edn, OUP 2009) 480.
142
Section 31(2) of the Senior Courts Act 1981.
143
Ministry of Justice, ‘Judicial Review Reform’ (GOV.UK, 18 March 2021) <https://www.gov.uk/government/
consultations/judicial-review-reform <https://www.gov.uk/government/consultations/judicial-review-reform>>
accessed 15 October 2021.
144
Ministry of Justice, ‘Judicial Review Reform: The Government Response to the Independent Review of
Administrative Law’ (CP 408, 2021), 11.
145
Ministry of Justice, ‘Judicial Review Reform: The Government Response to the Independent Review of
Administrative Law’ (CP 408, 2021), 11–12.

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