12.2 Judicial Review and Public Order
Key Takeaways
- Judicial review is a supervisory High Court jurisdiction over public-law decisions; the court does not retry the merits as if it were the decision-maker.
- A claim must be filed promptly and in any event not later than three months after the grounds first arose (CPR 54.5), unless a shorter statutory limit applies.
- Permission requires an arguable case and sufficient interest (Senior Courts Act 1981 s.31(3)); relief must be refused if it is highly likely that the outcome would not have been substantially different (s.31(2A)), absent exceptional public interest.
- The GCHQ grounds are illegality, irrationality and procedural impropriety; legitimate expectation is a further established public-law ground.
- Public processions generally need written notice to the police not less than 6 clear days beforehand (Public Order Act 1986 s.11); assemblies are controlled mainly by conditions (s.14) rather than a general advance-notice duty.
12.2 Judicial Review and Public Order
Exam focus: A competent newly qualified solicitor must know when a public-law challenge is available, how fast to issue, and which remedy actually helps the client. Independent OpenExamPrep coverage here tracks the SRA FLK1 judicial review list and Public Order Law (processions, assemblies, breach of the peace).
Nature, process and limits
Judicial review is the High Court's public-law supervision of bodies exercising public functions. Claims are issued in the Administrative Court (King's Bench Division) under CPR Part 54. The Pre-Action Protocol for Judicial Review expects a letter before claim in all but urgent cases. There is a permission (leave) filter: the claim must be arguable, brought by someone with standing, and in time. Even a winning claimant may be refused a remedy.
Limits matter as much as the grounds. Primary legislation is not quashed (the Human Rights Act 1998 uses interpretation and a declaration of incompatibility instead). Purely private contractual disputes belong in ordinary claims. Some high-policy prerogative areas remain non-justiciable, but Miller/Cherry [2019] UKSC 41 shows that labelling a decision political does not automatically put it beyond review. Statutory ouster clauses are construed narrowly (Anisminic; Privacy International).
Supervisory nature
Review is supervisory, not appellate. The court asks whether the decision was lawful, not whether the judge would have chosen the same outcome on the merits. A decision may be harsh and still lawful if the body had power, considered the right matters, ran a fair process and stayed within the range of reasonable responses. Conversely, a decision that looks sensible can fall for want of power or fairness. Exam traps often invite you to substitute your own policy preference. Do not.
Decisions that may be challenged
The target is a public-law decision or failure to decide: a ministerial refusal, a local authority licensing determination, a regulator's sanction, a Welsh Ministers' regulation that is ultra vires. Amenability follows function, not letterhead. R v Panel on Take-overs and Mergers, ex p Datafin plc [1987] QB 815 brought a private body into review because it performed a public function woven into a statutory regulatory system. A body may be reviewable for some functions and not others. If the only issue is a commercial contract with no public overlay, issue a Part 7 claim, not a Part 54 claim.
Standing and time limits
Standing. Senior Courts Act 1981 s.31(3) requires sufficient interest in the matter. Directly affected persons (a licence-holder, a person whose land is compulsory-purchased) are straightforward. Responsible public-interest claimants can have standing, but busybody claims fail. Do not confuse this with the narrower victim test under Human Rights Act 1998 s.7.
Time. CPR 54.5(1): the claim form must be filed promptly and in any event not later than 3 months after the grounds to make the claim first arose. Promptness can bite inside three months if delay is unjustified. The parties cannot extend time by agreement. Planning challenges and some other statutory reviews have shorter limits (often six weeks). If the client also has a Human Rights Act claim, s.7's one-year long-stop does not override the judicial review time limit when the procedure used is judicial review.
Grounds: illegality, irrationality, procedural impropriety, legitimate expectation
GCHQ organised the modern grounds. Use them as labels, then apply the cases underneath.
Illegality is error of law in the public-law sense: acting outside the statute (ultra vires), misunderstanding the legal test, taking account of irrelevant considerations or ignoring relevant ones, using a power for an improper purpose (Padfield v Minister of Agriculture [1968] AC 997), or fettering discretion by applying a policy as if it were an iron rule with no room for exceptions. After Anisminic, a material error of law generally goes to jurisdiction.
Irrationality is Wednesbury unreasonableness: a decision so unreasonable that no reasonable authority could have made it. It is a high threshold. Human rights and important liberty interests attract closer look, but on a pure common-law irrationality item do not treat the court as a merits appeal.
Procedural impropriety covers breach of a mandatory statutory procedure and common-law fairness: a fair hearing where the decision affects rights or legitimate interests, and the rule against bias. Apparent bias is judged by whether a fair-minded and informed observer would conclude there was a real possibility of bias (Porter v Magill [2001] UKHL 67). A duty to give reasons is not universal, but it arises where fairness or statute requires it.
Legitimate expectation arises from a promise, a representation or a settled practice. The expectation may be procedural (a hearing before a benefit is withdrawn) or substantive (the benefit itself). R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 is the usual illustration of a substantive expectation that could be enforced where frustrating it would be so unfair as to amount to an abuse of power. An expectation cannot require the authority to act unlawfully, and a pressing public interest may justify departure if the authority faces the expectation squarely.
| Ground | Working question | Typical failing example |
|---|---|---|
| Illegality | Did the body have power and apply the right legal test? | Licensing for an ulterior revenue purpose |
| Irrationality | Was the outcome outside the range of reasonable responses? | Refusing an application for a reason no reasonable authority could give |
| Procedural impropriety | Was the statutory process and fairness observed? | Decision-maker with a closed mind; no hearing where fairness required one |
| Legitimate expectation | Was a promise or practice frustrated unfairly? | Closing a facility after an unequivocal promise it would be kept open |
Remedies and the highly likely bar
The public-law remedies are a quashing order (sets the decision aside), a prohibiting order (stops a proposed unlawful act), a mandatory order (compels performance of a public duty), a declaration, and an injunction. Damages are not a routine judicial review remedy; they need a separate private-law or Human Rights Act basis. Senior Courts Act 1981 s.31(2A) requires the court to refuse relief if it appears highly likely that the outcome for the applicant would not have been substantially different, unless the court considers there is an exceptional public interest in granting relief. Always run that filter on permission and at the end of the argument.
Public order: processions, assemblies, breach of the peace
FLK1 lists three public-order topics. They sit with Articles 10 and 11 of the Convention, but start from the Public Order Act 1986 and the common law.
Processions (POA 1986 ss.11–13). A public procession is a procession in a public place. If it is intended to demonstrate support or opposition, publicise a cause or campaign, or mark or commemorate an event, written notice must be given unless it is not reasonably practicable to give any advance notice. Customary processions in the police area, and funeral processions organised by a funeral director in the ordinary course of business, are exempt (s.11(2)). The notice must state date, start time, route, and a name and address of an organiser. It must be delivered to a police station in the area where the procession will start. If not sent by recorded delivery in time, it must be delivered by hand not less than 6 clear days before the intended date, or as soon as reasonably practicable if that is not possible (s.11(5)–(6)). Organisers commit an offence if notice requirements are not met or if date, start time or route differ from the notice, subject to the statutory defences.
Section 12 lets a senior officer impose conditions (including route and timing) if the officer reasonably believes the procession may result in serious public disorder, serious damage to property, serious disruption to the life of the community, or intimidation, or (after later amendment) specified serious disruption or noise impacts. Section 13 is the prohibition route: if s.12 conditions will not suffice to prevent serious public disorder, the chief officer applies to the district council for an order prohibiting processions (or a class of them) for a period not exceeding 3 months; in London the Commissioner applies to the Secretary of State. Prohibition is exceptional. Conditions are the everyday tool.
Assemblies (ss.14–14A). A public assembly is an assembly of 2 or more persons in a public place wholly or partly open to the air (s.16 as amended by the Police, Crime, Sentencing and Courts Act 2022). There is no general s.11-style advance notice duty for assemblies. Section 14 allows conditions on place, maximum duration and maximum numbers (and, after later amendment, related timing and noise conditions) on similar serious-disorder, disruption, damage, intimidation or noise grounds. Section 14A allows prohibition of trespassory assemblies held on land without permission where the officer reasonably believes they may result in serious disruption to the life of the community or significant damage to land, buildings or monuments of historical, architectural, archaeological or scientific importance. Do not tell a client that a static rally is automatically unlawful for want of six days' notice; that is a procession rule.
Breach of the peace. This is common law, not a Public Order Act Part I offence. R v Howell [1982] QB 416: a breach of the peace occurs when harm is actually done or likely to be done to a person, or in their presence to their property, or a person is in fear of being so harmed through an assault, affray, riot, unlawful assembly or other disturbance. A constable may arrest without warrant to prevent an actual or reasonably apprehended breach. The power is preventive and must be used in good faith and proportionately. R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55 held that police could not turn back coaches miles from a protest on a vague fear of later disorder: the apprehended breach must be imminent. Using breach of the peace to shut down a peaceful, lawful assembly will also have to survive Articles 10 and 11.
| Tool | Typical target | Core statutory / common-law hook |
|---|---|---|
| Advance notice | Moving protest (procession) | POA 1986 s.11: 6 clear days, with listed exceptions |
| Conditions | Procession or assembly | ss.12 and 14 |
| Prohibition | Processions in a district, or trespassory assemblies | ss.13 and 14A |
| Arrest / preventive action | Harm or imminent harm | Common-law breach of the peace (Howell; Laporte) |
On a client file, sequence the advice: is it a procession or an assembly; was notice required; were conditions lawfully imposed; if police used breach of the peace, was harm imminent; then overlay Convention rights and, if a public-law decision is the target, judicial review time and standing.
A local authority refuses a street-trading licence. The trader issues a judicial review claim 11 weeks later without any explanation for waiting. The Pre-Action Protocol letter was sent in week 10. Which time analysis is correct?
On a judicial review of a regulator's penalty, the Administrative Court thinks the penalty is severe but that the regulator applied the correct statutory test after a fair hearing. The claimant asks the judge to replace the penalty with a warning. What is the correct approach?
A national campaign group with a track record of work on water quality seeks permission to challenge an Environment Agency discharge permit that will affect a river used by its members. The group is not the permit-holder. Which standing test applies?
A client wants to march through a city centre next Saturday to publicise a campaign. The route has not been used for a customary parade. Today is Monday. What is the best starting advice on Public Order Act 1986 notice?