Crown Court Practice

It should also be noted that it is now possible to raise an issue of vires as a defence, as was done in Wandsworth LBC v Winder [1985] AC 461 (Private law proceedings) and in Boddington v British Transport Police [1998] 2 All ER 203 (Criminal proceedings). Both cases represent an important extension of the ultra vires doctrine, rendering it more flexible than was previously possible. When enquiring as to the weaknesses of Judicial Review, it is possible to highlight a number of areas where such weaknesses have been rectified, as well as areas that still need rectification.

Returning to the topic of Standing, it can be said that following the introduction of the test of "sufficient interest", the courts have not taken a uniform approach to the test. For example, in the case of R v Secretary of State for the Environment ex parte Rose Theatre Company Ltd [1990] 1 All ER 754, it was decided that a company that had been formed to protect the site of the Globe Theatre, did not have sufficient standing.

However, in contrast, in R v Secretary of State for the Environment ex parte Greenpeace Ltd [1994] 4 All ER 352, it was decided that a similar group did have locus standi. The Law Commission raised this question of uncertainty in its 1994 report10, where it recommended a two-track approach, the first track being where an individual is adversely affected, the second being where it would be in the public interest for the review to be heard.

It would seem whilst these recommendations have not been implemented, the courts now take a more liberal approach to standing, such as in the Greenpeace case, and subsequently in R v Secretary of State for Foreign Affairs, ex parte World Development Movement [1995] 1 WLR 386. Another significant weakness is that there is no general duty to give reasons for a decision, despite the decision in Doody (below). This was noted by the Justice-All Souls report of 1977.

This is still very much a problem in Judicial Review, as without a local authority giving reasons for a decision, the possibility of the decision being challenged is severely limited. The courts have to some extent rectified the weakness, in cases such as R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531, where it was considered necessary for the Home Department to give reasons for its decision, as otherwise it would be contrary to the principle of fairness, as well as limiting the possibility of the applicant being able to challenge the decision.

Another weakness is that there is no right to damages from a successful action in Judicial Review. Despite there being a power conferred upon the court to award damages by Order 53 r. 7, although not separately from another remedy, this is in practice rarely used, considering the strict tests employed by court in X v Bedfordshire County Council [1995] 2 AC 513. The other possible way to claim damages against a public authority is to make a challenge in Private law, by alleging that the authority is in fact in breach of a private right conferred on the individual.

However it must be remembered that this is subject to the test of a duty of care, reasonable foreseeability and the court finding that decision was ultra vires. It is therefore unlikely that any applicant will succeed in such an action. Couple this with the financial outlay that is required for two separate actions, as well as considerations for the extra time required for such an action, it can hardly be said that the law in this area is in a satisfactory state.

Weaknesses also occur in the limitations of matters that are justiciable and those that are not. Traditionally the ultra vires doctrine has been concerned with the source of the power. Its scope has been enlarged by the introduction of "Wednesbury unreasonability"11, but the decision in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 significantly enlarged the areas which could be challenged by Judicial Review. Lord Scarman stated, "…

the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter. "12 The scope of decision makers that can be challenged through Judicial Review was further enlarged by the decision in R v Panel on Takeovers and Mergers, ex parte Datafin plc [1987] 2 WLR 699 which held that a despite the Panel on Takeovers and Mergers not being formed though legislation, it could still be challenged via Judicial Review, as there was a public element to its activities.

However the scope of Judicial Review in relation to whether a decision maker can be challenged is still limited, which represents a significant weakness that it has yet to shuffle off. Sir Harry Woolf argues that there is a case for Judicial Review to be extended as "… Powerful bodies, whether they are public bodies or not, because of their economic muscle may be in a position to take decisions which at the present time are not subject to scrutiny and which could be unfair or adversely affect the public interest.

"In conclusion it is possible to say that the 1977 reforms provided a much-needed revision of the structure of Judicial Review. Despite this Judicial Review still contains many weaknesses and certain artificialities, such as there being no duty to give reasons, harsh time limits imposed and the difficulty of obtaining damages against a Public Authority, to mention but a few.

With the increasing importance of Judicial Review in our society, it can be argued that it needs to progress more, and perhaps become more flexible, so that it can effectively keep decision makers in check. In my opinion, following the Human Rights Act 1998, the dimensions of Judicial Review will enlarge even more so by responding to the extra scope (especially in relation to Article 6 of the European Convention of Human Rights). However, how the Courts respond to the incorporation of the Convention into English law, only time will tell.


R. Gordon Q. C. , Judicial Review and Crown Court Practice, 1999, 1st edt, Sweet & Maxwell, London. Barnett, Constitutional & Administrative Law, 2000, 3rd edt, Cavendish Publishing, London. Mathew Holt, Revisiting the JUSTICE/All Souls Report, [2000] Judicial Review 56 Dawn Oliver, Is the Ultra Vires rule the basis of Judicial Review? [1987] Public Law 543 H Woolf, Public law-Private law: Why the divide? A personal view, [1986] Public Law 220, at 225