ABSTRACT
Introduction With the procedural aspects of judicial review proceedings in mind, attention can now be turned to the grounds on which judicial review may be sought. Two principal classes of action may be pursued: those which allege that there has been a breach of statutory requirements, and those alleging that a decision has been reached in an unreasonable manner or in disregard of the rules of natural justice. These broad headings have traditionally been divided into a number of subheadings. In Council of Civil Service Unions v Minister of State for Civil Service (1985) (the GCHQ case), the House of Lords took the opportunity to offer a rationalisation of the grounds for judicial review and ruled that the bases for judicial review could be subsumed under three principal heads, namely illegality, irrationality and procedural impropriety. 1 It was accepted that further grounds for review such as ‘proportionality’ might emerge. Lord Diplock elucidated the concepts:
The Traditional Doctrine of Ultra Vires Ultra vires refers to action which is outside – or in excess of – powers of decision-making bodies. While judges continue to use the term ultra vires , it is nowadays too limited a term to
encompass the whole ambit of judicial review. It may be preferable, therefore, to regard judicial review as the control of discretion and the regulation of the decision-making process by the courts. By way of example, in R v Hull University Visitor ex parte Page (1993), Lord Browne-Wilkinson adopted the traditional language of ultra vires :
In R v Richmond upon Thames Council ex parte McCarthy and Stone Ltd (1992), the local planning authority implemented a scheme of charging £25.00 for informal consultation between corporation offi cers and property developers. The House of Lords held that the imposition of the charge was unlawful. Such a charge was neither incidental to the planning function of the local authority, nor could a charge be levied on the public without statutory authority. The council had misconstrued its powers and, accordingly, acted ultra vires . Further, in Hazell v Hammersmith and Fulham Council (1992), the council attempted to increase its revenue through fi nancial investments which, for success, were dependent upon the fl uctuation in interest rates. The House of Lords ruled that the council had no power to enter into ‘interest rate swaps’ which were purely speculative in nature. Such speculation was inconsistent with the statutory borrowing powers conferred on local authorities and neither conducive to nor incidental to the exercise of those powers. 3
More recently, in A v HM Treasury (2010), the Supreme Court ruled that Orders in Council were ultra vires and unlawful. The United Kingdom, as a member of the United Nations, was required to give effect to decisions of the UN Security Council. Security Council Resolutions were made to combat terrorism, in part by freezing fi nancial assets and other economic resources of terrorists. The United Nations Act 1946, section 1, provided that in order to give effect to Security Council Resolutions, ‘His Majesty may by Order in Council make such provision as appears to Him necessary or expedient for enabling those measures to be effectively applied . . .’. Unlike other forms of delegated legislation which are subjected to parliamentary proceedings, the Orders in Council came into effect following their laying before Parliament. The effect of this was to leave the content of the Orders entirely in the hands of the executive. Two Orders in Council were made, each of which laid down conditions which had to be satisfi ed before the Treasury could ‘designate’ a person and freeze his or her fi nancial assets or economic resources. One condition was that the Treasury ‘have reasonable grounds for suspicion that the person is or may be’ involved in terrorism.
