Grounds of Judicial Review

Two principal actions may be followed in this. They are;

1. Those which claim that there has been a breach of statutory requirements
2. Those claiming that a decision has been reached in an unreasonable manner or in
disregard of the rules of natural justice
In Council of Civil Service Unions v Minister of State for Civil Service (1985) (the GCHQ case),
the House of Lords 3 principal heads of judicial review.
1. illegality,
2. irrationality and
3. procedural impropriety
It was accepted that further grounds for review, such as ‘proportionality’ might emerge.
(Each of the heads will be explained in details as separate topics)

Traditional Ultra Vires

Ultra vires refers to action which is outside – or in excess of – powers of decision making bodies.
The term ultra vires, is too narrow or limited a term to encompass the whole ambit of judicial
review.
In R v Hull University Visitor ex parte Page (1993) If the decision maker exercises his
powers outside the jurisdiction conferred, in a manner which is procedurally irregular or
is Wednesbury unreasonable, he is acting ultra vires his powers and therefore unlawfully.
[R v Richmond upon Thames Council ex parte McCarthy and Stone Ltd (1992) and Hazell
vHammersmith and Fulham Council (1992) illustrates this rule, so we will leave these case.]
In EN (Serbia) v Secretary of State for the Home Department; KC (South Africa) v
Same (2009) the court has held that if the statutory power is misunderstood again it is ultra vires.

Difficulties with the traditional Ultra Vires doctrine

The ultra vires principle is consistent with the doctrine of parliamentary sovereignty and, to some
extent, with the concept of the rule of law. The judges cling to the ultra vires doctrine as a means
of protecting their constitutional position.
Judicial Review is as good as a law but it is secondary to a legislation. Hence by an Act of
Parliament, a judicial decision can be overruled. However, the judges does not have the power to
invalidate an Act of Parliament.
The judges are cautious about reviewing the exercise of prerogative powers and limit their role in
relation to parliamentary privileges to ruling on the existence and scope of privilege, to maintain
a sufficient separation of power.
However, the doctrine of ultra vires cannot explain sufficiently the judges’ power to rule, as they
do, on certain aspects of decision making. Therefore; the concept of ultra vires is today regarded
as an inadequate rationale for judicial review.
There are now three principal lines of thought regarding the constitutional foundations of judicial
review.
 The first holds to the ultra vires doctrine.
 The second, and competing, approach focuses on the common law and the principles
developed by the judges.
 A third approach seeks a middle way through the conflicting claims of the ultra
vires proponents and the common law advocates.