10 - The courts

Summary

Nature and foundations of judicial review

The decision of a minister, local authority or other public officer or body may be challenged in court by recourse to the machinery of judicial review. Judicial review is to be distinguished from appeal, which is sometimes available as a means of contesting an administrative decision. Judicial review is the exercise of an ancient and inherent supervisory jurisdiction of the court, by which excess or abuse of public power may be restrained or remedied. On the other hand, appeal to a court against an administrative act is possible only where provision for it is made by statute. Take, for instance, Quigly v Chief Land Registrar [1993] 1 WLR 1435. Quigly sought to appeal against an administrative decision of the Chief Land Registrar, but the court ruled that it had no jurisdiction to hear an appeal from such a decision. This ruling was upheld by the Court of Appeal. Hoffmann LJ remarked that ‘A right of appeal to the court is entirely a creature of statute’; there was no provision in the relevant legislation for a right to appeal against the decision in question. The judge continued: ‘This does not mean that the exercise of administrative powers by the registrar is altogether beyond judicial control. I should have thought that it would be subject to judicial review in the same way and on the same principles as any other public power.’ While some statutes provide for appeal to a court against the decision of a public authority (it might be, as in certain planning matters, from the decision of a minister), provision is more commonly made for appeals against administrative decisions to be heard by the first-tier tribunal (an example is under the Freedom of Information Act 2000: see above p 563).

The distinction between appeal and review was emphasised by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223, 234 (what he said in this passage with reference to a local authority may be taken as applying to any public authority whose decision is challenged in proceedings for judicial review):

The power of the court to interfere . . . is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.