Introduction

Judicial review is a public law remedy, by which an individual can challenge the legality
of decisions, determinations, orders or even omissions of bodies or persons performing
public functions. A basic characteristic of judicial review is that it is discretionary, not
only is permission from the court needed to apply in the first place but the remedies
themselves are discretionary. Judicial review is the power of courts to invalidate actions
of legislators or executive which in the view of courts violates the constitution. Six
remedies may be sought in proceedings for judicial review. They are: certiorari,
prohibition, mandamus, declaration, injunction, and damages. The first three have their
origin in public law, the last three in private law. The court determines whether the
actions of both the executive and the legislature are in conformity with the constitution.
In Zambia, the judicial authority that carries out this function is the High Court. In
Zambia, the supremacy of the constitution is the principle which recognizes that all the
institutions of government derive their legitimacy from the constitution, and that any
action or decision by any public authority must be in conformity with the constitution.
The principles considered during judicial review proceedings were laid down by Lord
Diplock in the case Council of Civil Service Unions v. Minister of the Civil Service1, who
said, ‘judicial review has I think developed to a stage today when …one can conveniently
classify under three heads the grounds upon which administrative action is subject to
control by judicial review. And these are illegality, irrationality and procedural
impropriety.’ These are also referred to as grounds for obtaining judicial review and are
dealt with in turn below:
1) Illegality-illegality, according to Atkin,2 is a primary ground for judicial review
of administrative actions or decisions. It is constituted by a public body
consciously or unconsciously exceeding its express or implied statutory or de
facto powers, or misconstruing the extent of its duties. In Council of Civil Service
Unions v. Minister for Civil Service3, Lord Diplock described illegality as
occurring when a decision-maker fails to understand correctly the law that
regulates his decision-making power, or fails to give effect to it. Evidence of

1
[1985] A.C. 374, 410.
2
[1993] Issue, Artkin’s Court Forms, Volume 23, London: Butterworths & Co (Publishers) Ltd. p 383.
3
Ibid

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 dishonest conduct, bad faith, or merely innocent misconstruction of matters of
law, procedural irregularities contravening mandatory provisions, or
unreasonableness which thwarts the policy behind legislation, have all been
described as illegality in various cases, although they can also be brought within
other categories of grounds for review; the precise classification of the alleged
wrong is no longer important. Allegations of illegality are particularly common
in cases where the extent of statutory discretion is in issue. The court can not
determine the right way to exercise a discretionary power; it can only indicate the
parameters of such powers. The following are considered under the principle of
illegality as some grounds under which judicial review can be considered:
 Statutory construction-whether or not conduct exceeds its lawful scope depends
on construction of the statute or code delimiting the powers concerned or existing
case law. Conduct can be expressly or impliedly unlawful, or substantively or
procedurally unlawful. Other instances of illegality turning upon statutory
construction usually involve a mistake by the public body about the relevance of
considerations that it has either taken into account, or, alternatively, actions which
negate the assumed purpose of the legislation in question.
 Improper purposes-officials may act for motives unrelated in a legal sense to the
real purpose of their statutory powers. This may not be clear to the official
concerned until after the court has opined on the implied purpose behind the
provision in question or the extent of the powers incidental to or consequential
upon that which is expressly authorized. In the case of Roberts v. Hopwood4, the
court implied that the council was promoting socialist philanthropy and feminist
ambition in awarding its staff standard and equal salaries. It is not unusual for the
courts to use principles of constitutional law or administrative morality as
principles of statutory interpretation governing the determination of the legality of
conduct. In Chilufya v. Kitwe City Council5, the court held inter alia that the
council arrived at the decision because of political consideration which the court
deemed an improper consideration.

4
[1925] AC 578, HL.
5
[1967] ZR. 115.

2
  Matters of law-sometimes the jurisdiction of public officials to embark upon the
construction of words of apparent ambiguity and their application to an individual
or a situation. In such circumstances it must be decided whether the construction
question is one which parliament intended to be left to the decision-making body,
subject to an irrational conclusion being reached, or whether it is a matter of law
for the court. In Secretary of State for Education & Science v Tameside MBC6, the
Secretary of State’s default powers were triggered by his perception of
unreasonable conduct by local authorities, but the court construed “unreasonable”
as meaning the same as Wednesbury unreasonableness, not merely policies and
conduct with which the Secretary of State disagreed. In another case of R v.
Ealing LBC, ex p Lewis7, the Court of Appeal held that the identification of items
of expenditure capable of coming within the words “management of houses and
other property” was a matter of law for the court, and not the local authority.
 Ultra vires rule- according to O. Hood Phillips8, a Minister, a local authority and
any public body may only validly exercise powers within the limits conferred on
them by common law or statute. A decision may fall outside those powers and so
be ultra vires because the body concerned has attempted to deal with a matter
outside the range of the power conferred on it-substantive ultra vires-or because it
has failed, in reaching its decision, to follow a prescribed procedure-procedural
ultra vires. In Attorney-General v. Fulham Corporation9, for example it was held
that a local authority which had power under the Baths and Wash-Houses Acts
1846 to 1878 to establish baths, wash-houses and open bathing places was not
entitled to carry on the business of a laundry, and was acting ultra vires in
washing or partly washing customers’ clothes as distinct from providing facilities
for persons to wash their clothes. If a statute lays down a prescribed procedure for
the fulfillment of a statutory duty or exercise of a power, failure to comply with it
may render the action which follows ultra vires. Procedural obligations may be
mandatory or directory, or both, in the sense that they may be mandatory but
capable of substantial as opposed to absolute compliance. In Milne v. London
6
[1977] AC 1014, [1976] 2 All ER 665, HL.
7
[1992] 90 LGR 571, CA.
8
Ibid p699.
9
[1921] 1 Ch. 440.

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 Borough of Wandsworth10, it was held that the validity of objections against the
cessation of maintenance of a country school depended on ten local government
electors making an objection and that as a matter of law, two objections, neither
signed by ten electors, but together signed by fourteen separate electors, could not
be taken together to constitute a valid objection under the Education Act 1980 s
12 (3), (5) (15) Halsbury’s Statutes (4th Edn).
 Illegality by other miscellaneous means-Atkin11 says the fettering of discretion
of a public body by over-rigid adherence to a policy of familiar convention may
be regarded as unlawful if the body leaves no scope for reconsideration in an
exceptional case. The other side of this problem is that it may be unfair in general
sense for a public body not to adhere to a policy which it has made public or
abided by in the past, if an individual can identify what is known as a “legitimate
expectation”. In Attorney-General for Hong Kong v. Ng Yuen Shiu12, the applicant
had been an illegal immigrant for some years. He was eventually detained and an
order was made for his deportation. The Director of Immigration had given a
public undertaking that illegal immigrants such as Ng Yuen Shiu would not be
deported without first being interviewed. The assurance was also given that “each
case would be treated on its merits. Lord Fraser of Tullybelton, in the Privy
Council ruled that there was no general right in an alien to have a hearing in
accordance with the rules of natural justices. Nevertheless, a ‘legitimate
expectation’ had been created in the mind of the immigrant and, accordingly,
breach of the requirement of fairness justified the order for his removal from
Hong Kong to be quashed. Finally, estoppel may occasionally be used in public
body to adhere to a representation made within the express or implied scope of the
representor’s powers, so long as what is represented is not contrary to a statutory
duty.
2) Procedural impropriety-a public body will be open to challenge where it has
acted unfairly towards the applicant, by failing to observe basic rules of natural
justice, or by failing to act with procedural fairness. Even where the applicant has

10
[1992] 90 LGR 515, CA.
11
Ibid p386.
12
[1983] 2 AC 629.

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 not been denied natural justice, there may be a good challenge where the public
body has failed to observe procedural rules expressly laid down by statute or
delegated legislation. The general considerations are that public administration
should be orderly, open, carried out in good time, and fair. The following are
considered under the principle of procedural impropriety as some grounds
under which judicial review can be given:
 Statutory procedures-when considering statutory requirements, the courts will
be less concerned with distinctions such as that between “mandatory” and
“directory” requirements, and more with the desirability of achieving justice in a
particular case. Where the likelihood of prejudice is low, the court may treat an
apparently strict requirement as merely directory but where private rights are at
issue, provisions may treated as mandatory even where there has been no
prejudice. The court may not only require that the procedure prescribed by statute
be followed, but may also imply additional procedure safeguards so as to ensure
the attainment of fairness.
 Duty to consult-failure to perform a duty to consult, or failure to satisfy a
legitimate expectation, are popular grounds for application, particularly in cases
concerning grounds of citizens aggrieved by the actions of public bodies. Failure
to perform a statutory duty will amount to a procedural impropriety which,
subject to the court’s discretion will entitle an applicant to judicial review. In R v.
Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association13, the
Corporation had given undertakings to the Taxi drivers to the effect that their
licences would not be revoked without prior consultation. When the Corporation
acted in breach of this undertaking, the court ruled that it had a duty to comply
with its commitment to consultation. Where statute provides for a power to
consult such bodies as appear representative, then the discretion as to who is
reviewable on Wednesbury grounds which is tackled below. In Agriculture
Horticultural and forestry Industry Training Board v. Aylesbury Mushroom Ltd14,
the Minister purported to make an industrial training order under the Industrial
Training Act 1964 which required him, before making an order to “consult any
13
[1972] 2 QB 299.
14
[1972] 1 W.L.R. 190.

5
 organization,” appearing to him to be representative of substantial numbers of
employers engaged in the activities concerned…” Donaldson J. held that failure to
consult the body representing mushroom growers rendered the order in question
invalid as against mushroom growers.
 Natural justice-Bailey15, says in administrative law, “rules of natural justice”
have traditionally been regarded as compromising the rules of audi alteram
partem and nemo judex in causa sua. Respectively, these apply to require the
maker of the decision to give prior notice of the decision to persons affected by it,
and an opportunity for those persons to make representation and also to disqualify
the decision-maker from acting if he or she has a direct pecuniary or propriety
interest in the case.
 A man may not be judge in his own cause-in the case of Government
Board v. Arlidge,16 Lord Haldane, L.C. said, “When the duty of deciding
an appeal is imposed, those whose duty it is to decide it must act
judicially. They must deal with the question referred to them without bias,
and they must give to each of the parties the opportunity of adequately
presenting the case made.” The essence of a fair judicial decision is that it
shall have been made by an impartial judge or an impartial tribunal. The
rule against bias laid down in R v. Rand17, is that disqualification of a
judge from acting in a particular case can arise in two ways: (a) where he
has any direct pecuniary interest, however, small, in the subject matter of
inquiry thus a judge who is a shareholder in a company appearing before
him as a litigant must decline to hear the case, save by consent of all the
parties; (b) where, apart from direct pecuniary interest, there is a real
likelihood that the judge would have a bias in favour of one of the parties.
Where bias is alleged, the reviewing court does not decide whether the
decision was in fact biased, but whether in circumstances a reasonable
possibility of bias was established.

15
Bailey, S.H. [2005]. Cases, Materials & Commentary on Administrative Law. p651.
16
[1915] AC 120.
17
[1866] L.R. 1 Q.B. 230.

6
  Audi alteram partem-this is a right to a hearing. According to DE
Smith18 no position can be more clearly established than that a man cannot
incur the loss of liberty or property for an offence by a judicial proceeding
until he has had a fair opportunity of answering the case against him.
Garner19 says the effect of natural justice, to the effect that the “judge”
must hear both sides, must give each party a chance to state his case, and
that any person who will or may be affected by an administrative decision
has a right to his “day in court”. One of the earliest cases in which the
principle was expressly formulated is R v. Cambridge University20, where
the Court of King’s Bench declared a decision of the University of
Cambridge to be a nullity, because in depriving Dr. Bentley of his degrees
they had not first given him an opportunity of appearing before them and
stating his case. In Kang’ombe v. Attorney-General21, the applicant was a
teacher who was charged before the Teaching Service Commission for and
on behalf of the President and was cleared by the Commission. The then
Secretary General to Government Aaron Milner desirous to have the
applicant dismissed placed some materials containing allegations not
brought to the attention of the applicant so that he could exculpate himself.
The dismissal was declared null and void as the audi alteram partem rule
was violated. Therefore, before any decision is taken it is important that all
the parties to the case must be given chance to state their case.

 Legitimate expectation- a legitimate expectation will arise in the mind of

the complainant whenever he or she has been led to understand-by words
or actions of the decision-maker that certain procedures will be followed
in reaching a decision. In Attorney-General for Hong Kong v. Ng Yuen
Shiu22, Lord Fraser in the Privy Council ruled that there was no general
right in an alien to have a hearing in accordance the rules of natural
18
DE Smith, S.A. [1973]. Judicial Review of Administrative Action. P136.
19
Garner, J.F. [1979]. Administrative Law. P127.
20
[1723], Str. 557.
21
[1972] ZR 177 (HC).
22
Ibid

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 justice. Nevertheless, a ‘legitimate expectation’ had been created in the
mind of an immigrant and, accordingly, breach of the requirement of
fairness justified the order for his removal from Hong Kong to be quashed.
3) Irrationality and Unreasonableness- “irrationality” is the ground used in
judicial review proceedings for challenging the quality of a decision, by reference
to the reasoning behind it. In the case which gave its name to the concept,
Associated Provincial Picture Houses Ltd v. Wednesbury Corporation23, the
council had power to grant licences for Sunday entertainment subject to such
condition as it thought fit; it licenced a cinema subject to the condition that no
child under 15 be admitted. It was held that this exercise of the discretion was not
such that no other reasonable authority would have done the same. The master of
the Rolls cited various defects which might render a decision “unreasonable”. He
went on; however, to envisage the possibility of a decision being open to
challenge on the ground that it is unreasonable in the sense that, in the view of the
court, it was a decision which no reasonable body could reach.
 Irrationality v. “Unreasonableness”-the concept of Wednesbury
unreasonableness was reconsidered by the by the House of Lords in the GCHQ
case24 where it was renamed “irrationality”. Lord Diplock described irrationality
as applying: to a decision which is so outrageous in its defiance of logic or of
accepted standards that no sensible person who had applied his mind to the
question to be decided could have arrived at it”.
 Meaning of “unreasonableness”-the House of Lords pointed out in Re25, that
two reasonable men can perfectly well come to opposite conclusions about
something without either forfeiting a claim to reasonableness. But
“unreasonableness” in the administrative law sense has taken to mean that which
no other ordinary individual or body would do. Two meanings of reviewable
unreasonableness emerged from Lord Green MR’S judgment26: it is a synonym
for a range of other more specific criticisms, (such as acting for no reason, or
legally irrelevant reasons or acting in bad faith), and secondly, it can be a
23
[1948] 1 KB 223, [1947] 2 All ER 680, CA.
24
Ibid
25
[1971] AC 682, [1971] 2 All ER 49, HL.
26
[1948] 1 KB 223, [1947] 2 All ER 680, CA.

8
 description of a decision so extreme or absurd that it is “substantively”
unreasonable.
 Examination of reasoning by the courts-the legal relevancy of matters
considered by decision-making bodies must be extracted from express provisions
in the enabling statute, any overriding statutory provisions from other statutes,
general common law and the Convention of Human Rights in case of ambiguity.
The absence of reasons for a decision will not of itself support a contention of
irrationality, since there is no general duty to give reasons in administrative law.
However, in R v. Lancashire County Council, ex p Huddleston27, Lord Donaldson
MR observed that generally speaking public bodies should be ready at least to
assist the court, with a full explanation of why they have acted or decided in a
particular way. However, inferences may be drawn from their absence. The court
will intervene where the facts taken as a whole could not logically warrant the
conclusion of decision-maker; for instance if the evidence is overwhelmingly in
favour of the opposite conclusion.
 “No evidence” cases of irrationality-sometimes the court will be persuaded that
there was no evidence at all to support a finding of fact made by a decision maker.
In Sagnata Investments Ltd v. Norwich Corpn28, it was held that the lack of
evidence for an opinion about the effects of amusement arcades within a
community vitiated a policy. It could be said in relation to “no evidence” cases
that quashing a decision when no weight has been given to a consideration
necessarily forming part of the statutory purpose, is simply quashing for illegality.
Alternatively, it can be argued that if a decision is made and there was simply no
evidence to support it, then it has been made irrationally, below are examples:
Irrelevances-in Roberts v. Hopwood29, it was held that irrelevant philanthropic
concerns had entered into the council’s exercise of the statutory duty of setting a
wage for its workers, and that fiduciary duties and consideration of the costs of
living and comparability with other authorities had been ignored. In R v.
Derbyshire County Council, ex p Times Supplements Ltd30, it was held that
27
[1986] 2 All ER 941 CA.
28
[1971] 2 QB 614, [1971] 2 All ER 1441, CA.
29
[1925] AC 578, HL.
30
[1991] 3 Admin LR 241.

9
 political reasons and personal spite had impinged on the decision of to remove
education advertising from The Times in the wake of a separate libel action
between the parties. Therefore, it is important to note from the cases cited that the
courts will quash any decision that is arrived at in consideration of irrelevances.
 Mixed grounds for review-there are many instances in the cases where the court
has coupled a finding of unreasonableness with one of illegality, based upon
either irrelevancy or mistake of law. This should not bother since these “causes of
action” overlap in public law. In Congreve v. Home Office31, the threat of TV
licence revocation was used as means of deterring people from saving money by
buying a new licence before the old one expired. This was characterized as an
attempt to extract money which the executive was not empowered to demand; at
once unlawful and unreasonable in the Wednesbury sense.
 Pure unreasonableness- In Hall v. Shoreham on Sea UDC32, a planning
condition required construction of a road at a site owner’s expense, when he
would have got compensation for giving up the land, had alternative procedures
been followed, and the condition was held to be unreasonable. Similarly, in
Williams v. Giddy33, giving a retiree civil servant a gratuity of one penny per year
of service was held unreasonable. Therefore, the court will quash any cases which
manifest unreasonableness in arriving at the decisions.

Conclusion-Judicial review can be sort for when the decision of a tribunal is illegal,
irrationally or unreasonable and when the decision taken is arrived at due procedural
impropriety. The three are the principles considered when giving judicial review by the
courts. The court has discretion whether or not to give judicial review it is not a right.

BIBLIOGRAPHY
 Bailey, S.H. [2005]. Cases, Materials & Commentary on Administrative Law. (4th
ed). London: Sweet & Maxwell.

31
[1979] QB 629, [1976] 1 All ER 697, CA.
32
[1964] 1 All ER 1, [1964] 1 WLR 240, CA.
33
[1911] AC 381.

10
  Bradley, A.W. [1977]. E.C.S. Wade and Godfrey, Phillips Constitutional and
Administrative Law. (9th ed). Great Britain: Richard Clay (The Chaucer Press)
Ltd.
 Phillips, O.H., Jackson, P. & Leopold, P. [2001]. O. Hood Phillips and Jackson:
Constitutional and Administrative Law. (8th ed). London: Sweet & Maxwell.
 Garner, J.F. [1979]. Administrative Law. (5th ed). London: Butterworth.

 DE Smith, S.A. [1973]. Judicial Review of Administrative Action. (3rd ed).

London: Stevens & Sons Limited.
 ‘Atkin’s Court Forms’ (1993 Issue) (2nd ed) Volume 23: London: Butterworth’s &
Co. (Publishers) Ltd.

CASES REFERRED TO:

 Council for Civil Service Unions v. Minister of Civil Service [1985] AC 374, 410.
 Chilufya v. Kitwe City Council [1967] ZR. 115.
 Roberts v. Hopwood [1925] AC 578, HL.
 Secretary of State for Education & Science v. Tameside MBC [1977] AC, 1014,
[1976] 2 All ER 665.
 R v. Ealing LBC, ex p Lewis [1992] 90 LGR 571, CA.
 Attorney-General v. Fulham Corporation [1921] 1 Ch. 440.
 Milne v. London Borough of Wandsorth [1992] 90 LGR 515.
 Attorney-General for Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629
 R v. Liverpool Corporation ex p Liverpool Taxi Fleet Operation Association
[1972] 2 QB 299.
 Agriculture Horticulture and Forestry Industry Training Board v. Aylesbury
Mushroom Ltd [1972] 1 WLR 190.
 Government Board v. Arlidge [1915] AC 120.
 R v. Rand [1866] L.R. 1 QB 230.
 R v. Cambridge University [1723]. Str. 557.
 Kang’ombe v. Attorney-General [1972] ZR 177 (HC).
 Associated Provincial Picture Houses Ltd v. Wednesbury Corporations [1948] 1
KB 223, [1947] 2 All ER 680, CA.

11
 R v. Lancashire County Council, ex p Huddleston [1986] 2 All ER 941 CA.
 Sagnata Investments Ltd v. Norwich Corporation [1971] 2 QB 614, [1971] 2 All
ER 1441 CA.
 R v. Derbyshire County Council, ex p Times Supplements Ltd [1991] 3 Admin
LR 241.
 Congreve v. Home Office [1979] QB 629, [1976] 1 All ER 697 CA.
 Hall v. Shoreham on Sea UDC [1964] 1 All ER 1, [1964] 1 WLR 240N CA.
 Williams v. Giddy [1911] AC 381.

THE ZAMBIA OPEN UNIVERSITY

12
 SCHOOL OF LAW AND SOCIAL SCIENCES

NAME : AMON CHISENGA

STUDENT ID : 20812188

PROGRAM : LLB

COURSE : ADMINISTRATION LAW

YEAR : SECOND YEAR

SENESTER : SECOND

ASSIGNMENT NO : ONE

LECTURER : MR. MULENGA BESA

QUESTION: Name and describe the three basic principles which are considered
during judicial review proceedings.

DUE DATE : 28TH AUGUST, 2009.

THE ZAMBIAN OPEN UNIVERSITY AMON CHISENGA

P.O. BOX 31925 P.O. BOX 71583
LUSAKA. CELL: 0977511470 NDOLA.

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