Revisiting the Limits of Judicial Review

An Order of Judicial Review

A person who is aggrieved by the decision (or lack thereof) of a public body may petition the High Court for an order of judicial review. An order of judicial review may direct the public body to refrain from certain conduct, to perform a duty, or may quash a decision that the public body has made; at common law these were known as prohibition, mandamus, and certiorari in that precise order. It is relevant that the decision or inaction originates from a public body rather than a private one [1] because the Court should not be an arena where people come to fight afresh having lost elsewhere. [2]

The purpose of judicial review is to ensure the public body acts within the law, it is not a tool with which the Courts should now assume authority over every sphere of human affairs in the country. Judicial review does not empower the Courts to set themselves as the ultimate authority over things that people should do for themselves, or to impose their own preferences in spheres they should rightly keep out of. A knowledge of law does not equate to omniscience, knowledge is widely dispersed[3] and therefore the Courts cannot properly assume jurisdiction on every single arena because they may impose their own ignorance on the people through judicial authority.[4]

Under Article 165(6) of the Constitution, the High Court has supervisory[5] jurisdiction over subordinate courts and any entity exercising judicial or quasi-judicial functions but not over the Court of Appeal or the Supreme Court. Supervisory jurisdiction allows the High Court to call for the record of any proceedings before any such entity and make any appropriate orders to ensure fair administration of justice. There is no private entity that exercises judicial or quasi-judicial functions, hence there cannot be judicial review against private entities because the High Court has no supervisory jurisdiction over them. Even by logic, a private entity cannot “violate” the rights and fundamental freedoms in the Bill of Rights as to warrant a petition for redress of such rights. The relationship between a private entity and a natural person, say in employment, is governed by contract. Any violations of the contract allow the aggrieved party to seek redress via a civil claim. Private relationships allow the party to define their engagement as they wish, whether it be by contract or mutually understood patterns of conduct – this is an expression of personal liberty and freedom of association. Only the government is in the unique position of violating the rights of the public because we have ceded some of our authority to it and that allows it to run contrary to our expectations. Let us imagine that a private corporation has tried to interfere with the freedom of speech of its clients. The wonderful thing that would happen in such a case is that the clients would take their money to its competitors who are not doing the same thing. The existence of competition in the marketplace allows us to avoid those who interfere with our rights and freedoms and to choose those who are limiting their role in our lives to the provision of the goods and services that we seek. Therefore, a private corporation selling goods and services for profit would not successfully “violate” people’s rights without suffering the consequences through the power of competition.

In comparison, there is no competing government to which we can go if our present government infringes our rights. Theoretically, we can always go to another country if the present one does not do, we can always move to another county if we are dissatisfied with the one we are in, but these are remote choices. What we are left with is the Constitution, and it tells us that if the government infringes our rights, we can petition the High Court for redress. The Constitution recognises that the government is occupied by fallible flesh and blood human beings and though they may appear perfect at the time of assuming office, they may afterwards become quite different and opposed to the very things we entrusted to them.

Nevertheless, the Courts have held that the Bill of Rights is to be applied both “vertically” and “horizontally” – to mean between the State and the citizen, and between private persons, respectively.[6] If we apply the Constitution to purely private arrangements instead of allowing the parties to pursue their claims according to their private contracts, we encourage people to turn the Courts into places where fights that have been lost elsewhere are reopened. And by this, we clog the Courts with unnecessary cases, and we inspire the Courts to insert their hands into places that they should keep out of. This is the basis upon which the “horizontal” application of the Bill of Rights is untenable. The Constitution did not come to put an end to the freedom of people to freely arrange their private relations as they prefer. To impose the Bill of Rights into private relations when the parties wish to associate themselves using a different code is to interfere with personal liberty. It is improper to recast purely private disputes as constitutional matters.

A company will therefore not get very far by interfering with the right and freedoms of its customers. The argument that is usually made in support of “horizontal” application of constitutional rights is that a company or an association whose terms of entry touch on free exercise of a specific constitutional right are violating the Constitution, for example, “a club member shall be of the Christian religion upon admission”. It does not make good sense to argue as such because a person wishing to join such a club is accepting the terms of association. A person cannot claim their free exercise of religion has been violated when they voluntarily joined an organisation whose terms of association specify the religion that would be the basis of interactions. It is arrogance to join an association whose terms you do not agree with just so you can make it a matter of complaint. You should choose a different organisation that fits your preferences rather than expect an organisation to be recast in your own image.

The nature of judicial review

Judicial review is a creature of the common law.[7] At common law, an order of judicial review would take the form of writs of certiorari, prohibition, and mandamus, and would be governed by the Law Reform Act (Cap. 26).[8] Upon the promulgation of the Constitution, judicial review at common law as per the Law Reform Act was not abolished but was left to remain as a further option.

The Fair Administrative Action Act, 2015 was enacted to give effect to Article 47 of the Constitution which requires fair administrative action – the subject of judicial review.[9] Under common law, one would require the leave of the Court[10] as per the Law Reform Act before beginning judicial review proceedings but now the Constitution has removed the necessity of such leave by allowing people to petition the High Court for an order of judicial review under the Constitution.

In other words, a person may pursue judicial review proceedings by seeking leave as per the Law Reform Act, or they may petition the Court for judicial review under the Fair Administrative Action Act, 2015, Article 23, 47, and 165(6) of the Constitution. [11]

The purpose of judicial review is to ensure the public body acts within the law. When the Court issues orders for judicial review, it is not correcting the errors of the public body like a superior Court would that of an inferior Court. Judicial review is not an ordinary appeal,[12] it is an examination of the procedure and basis upon which the decision in question was made and a determination as to whether the decision is improper or not. The public body is exercising delegated authority from the people and therefore it has to act within the law. A Court of judicial review is not being invited to substitute its judicial reasoning for that of the public body, the Court is being asked to analyse the impugned decision and make a determination concerning the legality, reasonableness,[13] and procedural propriety thereof. [14]

The people have given the public body the authority to act within a certain arena and it is not given to the Court to usurp that power and make the decision. For example, if the public body is empowered to regulate the safety of cars, the Court cannot descend into such an arena and determine how the regulation should be conducted. The Court should only consider whether the regulatory decision has complied with the law, followed the proper procedure, or is reasonable. The Court will be usurping power not belonging to it if it goes beyond these parameters. [15]

As to the difference between the judicial review under the Constitution as compared to the Law Reform Act (and logically the Civil Procedure Rules), the Supreme Court recently held as follows in Praxedes Saisi & 7 others v Director of Public Prosecutions & 2 others, (Petition 39 & 40 of 2019 (Consolidated)) [2023] KESC 6 (KLR) (Civ) (27 January 2023):

"when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action taken (…)"

The flaw in the above reasoning is that it will inspire litigants to frame their grievances as constitutional questions just to reopen issues they disagree with, or to try to fight battles they have lost elsewhere. The reasoning of the Supreme Court will encourage future litigants to bend their complaints as constitutional questions even when there are none, and it invites the Courts to technically “sit on appeal” against public decisions just because the litigant has claimed a constitutional issue is involved. This is not to say that judges have no intellectual capacity to sift the wheat from the chaff, the simple point is that the Courts are going to have to contend with an influx of unnecessary and misplaced constitutional questions. Furthermore, the reasoning of the Supreme Court has opened the door for the Courts to usurp powers not granted to them by allowing them to delve into “merit review” on issues beyond their remit on the pretext that “a constitutional question has been raised here”.

Bodies amenable to judicial review

The Supreme Court has held that "the framers of the Constitution when codifying judicial review to a constitutional right, the intention was to elevate the right to fair administrative action as a constitutional imperative not just for state bodies, but for any person, body or authority.” [16] There is no good basis upon which to depart from the principles of the common law only for the reason that judicial review has been placed in the Constitution. In fact, there is nothing in the Constitution that requires us to ignore the principles of common law in favour of extending judicial review towards issues that should properly be dealt with under private law.

Under Article 165(6) of the Constitution, the High Court has supervisory jurisdiction over public bodies exercising judicial or quasi-judicial authority. This automatically places a private body, such as a company, outside the scope of judicial review. Judicial review is a tool to correct the decisions of public bodies because the source of their power and nature of their functions is public law. A body whose power is derived from contract cannot be subject to judicial review, for example, an employer-employee situation is not one amenable to judicial review. [17] The persons affected thereby should pursue a claim under contract rather than judicial review.

Judicial review is a tool of public law rather than private law. For instance, one cannot pursue judicial review against an arbitral tribunal when its authority arises from a private contract. In the same vein, judicial review will not issue against an organisation whose authority emanates from the consent of the parties, for example, a religious organisation such as a church,[18] or a voluntary association such as a club. [19]

Even though a private body may be performing a service to the public, its actions cannot be subject to judicial review because the public has other options it can exploit if dissatisfied with the said body. For example, a water services company that requires its customers to declare their political affiliations – something incompatible with the sale of water services – would suddenly find itself without customers if the latter are sufficiently angered by such actions. The public may protest, boycott, or move to another service provider.

The reality of this shows that the Court should not be involved by way of judicial review because the public has its own ways of resolving the problem, and the unwise water services company has the freedom to make choices, even if they are the wrong ones. In the same way, judicial review is not available against the decisions of a private disciplinary tribunal in an employer-employee situation, this being a purely private arrangement where either party may pursue a civil claim if dissatisfied.[20] Judicial review is meant to limit the abuse of power by public authorities (or their failure to act at all),[21] it is not meant to curtail the liberty of the people in arranging their private engagements. If there is another remedy in law, parties should pursue the same rather than seek an order of judicial review.

However, the Courts have held that a private body may be subject to judicial review for performing public functions that were previously within the remit of the local authority – for example, running a farmer’s market. [22] The performance of a previously public function does not convert the private body into a public one, it is the function that is converted from public to private. Therefore, it is improper to subject private bodies to judicial review for performing functions that were previously public. Each entity under which a person chooses to do business has its own features and advantages (for example, limited liability), and this is what attracts them to it. The choice of the nature of corporation is meaningless if it is going to be treated as a government entity.

A private company that has performed a previously public function should be amenable to civil claims not judicial review; it makes no sense to take away the features that make their legal form attractive to those who wish to utilise them as such. If a private company would be treated as if it were a local authority, there would be no reason to incorporate it, at least for this purpose. This is important because, at times, the government realises that it is better off avoiding certain activities and leaving them to private enterprise. It is improper for the Courts to subject the private companies that have assumed responsibility for the privatized activities to judicial review the said activities having ceased being public in nature. It would appear that the Court is implicitly but inaccurately saying: “once public, always public”. A public function may become private depending on the limits the public itself has placed on the government. And such conversion from public to private also changes the legal redress that the public will have against the entity assuming the function.

The error in subjecting a private body performing a privatized function to judicial review appears to arise from the physical fallacy [23] – that things that appear the same have the same character. Here, the public function is treated the same way whether performed by a public body or a private one. Though the running of a farmer’s market may be a public function when performed by a local authority, it changes to becoming a private service from which the private body hopes to make a profit. And if the private body fails to perform it properly, a competing private corporation may take over the service. The function has no inherent character that is unchangeable; the hands that perform it change its character even if at face value the said function may seem to be no different.

If a band of robbers dressed in suits met in a building resembling Parliament, and went through the whole procedure of passing a law and declared that the latter would now bind every person in the nation, it is doubtful whether this “law” would be treated in the same way as our other laws. The physical equivalence of procedure of passing the purported statute does not convert their meaningless piece into law. However, when we treat a private body as public when performing a privatized function, it is similar to saying that the band of robbers’ piece of paper counts as legislation just because everything had the physical appearance of what our duly elected legislators do, where they meet, and what they say when passing a statute. Two things may appear physically the same but quite different in their value and character. A private body performing a previously public function does not become a public body – it is the performed function that changes.

There is no judicial review against hypothetical questions [24] - it would be improper to analyse the presence of illegality, irrationality or procedural impropriety in a situation that has not occurred. Judicial review challenges actual decisions made or failures to act but not incomplete or potential decisions that have not materialised. [25]

Grounds for judicial review

Illegality

A decision is illegal if the public body did not have the power to make it under the law, or having such power, it made a decision that goes beyond the limits of the law – it has acted “ultra vires” (that is, “outside the powers”). [26] In both cases, the public body has acted unlawfully. [27] It then falls to the Court to determine the appropriate order of judicial review to be issued against the body to remedy the illegality. A public body should only act within the limits of the law by doing only what the law allows while private citizens can do whatever the law does not prohibit.

For inferior Courts and tribunals, their decisions are illegal if they determine disputes which are outside their jurisdiction. Still, if they determine disputes that are within their jurisdiction by considering irrelevant factors, the decisions are still amenable to judicial review. What counts as an irrelevant factor depends on the elements of the cause of action or the complaint the tribunal is required to resolve. However, it is possible for a public body to consider the relevant factors and yet come to the wrong decision. It used to be that if they have the jurisdiction to make the right decision, they have the decision to make the wrong one,[28] but this may partly inspire them to make the wrong decision confident that they have a valid defence in judicial review proceedings. Nevertheless, the “jurisdiction to make the wrong decision” is now at an end because no public body is given the power to commit errors and claim that that is within their remit.[29]

A common form of illegality is when a public body refuses to act yet it is the responsibility to do so under the law as in the case where a tribunal or inferior court refuses to determine a matter that falls within their jurisdiction. [30] A refusal to determine a matter can take various forms, including the promise to deal with the matter but taking inordinately long to fulfill that promise. Such inordinate delay is similar to refusing to act within the law altogether. [31] In the same vein, the public body may give reasons why it should not handle the matter despite the provisions of the law and this, too, is a refusal to fulfill their responsibilities and is amenable to judicial review.

The Court of judicial review should not engage in hypothetical inquiries. When a public body makes an illegal decision, it is improper to consider whether the impugned decision would still be the same had the error not been made – this is hypothetical and no one can know with any certainty what decision the public body would have reached if it would have properly directed itself. This is a consideration involving factors of an alternate, conjured up world. In various cases, the Courts have nevertheless used such a method of analysis by considering what the public body would have decided [32] – whether the decision would still have been the same had it properly directed itself and considered the appropriate factors. The proper question is what decision has actually been taken and whether it is within the law, it is implausible to decide the case based on the hypothetical scenario.

Irrationality

An irrational decision is one which is manifestly bad in itself judging by the reasons given for it, or to use a legal term of art, the decision suffers from “Wednesbury unreasonableness” [33].

One of the ideals of good government is that it should be limited in scope. By extension, the administrative bodies created under the government should also have limited authority defined by law. We can then further extend it to say that because the public body acts within a limited scope, we expect reasons to be given for decisions and actions taken in that area. Because of the potential of infringing the civil liberties, the administrative bodies have a duty to give reasons for the decisions they make, and any decision that is unsupported by good reasons is usually presumed to be irrational. Though it is expected that administrative decisions ought to be supported with articulated reasons, this can inspire an administrative body to avoid making decisions at all, to prefer decisions that are technically supported by reasons while avoiding more beneficial options whose basis could not be articulated. The duty to give reasons, it is argued, is to allow Courts to detect any errors of law [34] and thus issue appropriate judicial review remedies but such a duty can have counterproductive effects. The officials of the public body can avoid making decisions for fear of failure to articulate.

What counts as good reason for these purposes is subjective, and this can allow aby person to challenge any reasons given as wrong, or to argue that the reasons given show the administrative body to have considered irrelevant factors.[35] There is nothing stopping the body from giving well sounding reasons as the support for a decision that they could not otherwise justify. The duty to give reasons does not then guarantee that a body will consider its decisions or actions and articulate the reasons thereof. [36]

A body required to approve life-saving drugs may avoid approving a drug for fear that it cannot justify the remote side effects that would arise from it. The body may well be acting within the law by approving such a drug but its reasons for doing so may be logical but unpalatable to the public: there is no guarantee that anything is perfect in life, there are no perfect drugs or solutions, we simply have trade-offs between how much of the disease we would like to tolerate with or without the drug. Communicating this as part of the approval process may not please the public because the press may find one isolated case and publicize it so widely that it leads to the loss of the jobs of the officials who approved the drug. The duty to give reasons is a well sounding metric as a legal test used to determine the legality of a decision within judicial review proceedings, but the officials of the administrative body fear the possibility of the court of public opinion more than Courts of law. At least in the Courts of law they may be reprimanded for making a bad decision and perhaps save their jobs, but the prospect of being burnt at the stake in modern terms is more terrifying and the latter usually precedes the legal proceedings and the former proceeds at a faster speed.

Rather than bind public bodies to articulate reasons for their decisions, it may be more effective to bind them to act within the law even though they do not give reasons. When the decision is impugned, the question would be whether the public acted within the law rather than whether the reasons given coincide with the decision. It is better to ascertain the limits of their authority rather than to investigate the purported reasons provided, and it may incentivize them to act without the fear that they would be unable to articulate their reasoning. Failure to articulate does not automatically mean that the decision in question is bad or arbitrary,[37] for example, in a case where the basis of the decision is so obvious that no reasons should be given, it has been rightly held that an inference of illegality should not be automatic thereon. [38]

Judicial and quasi-judicial bodies and inferior Courts should, however, give reasons for their decisions because the judicial process involves analysis and articulation of facts and law in rendering a decision. They are not in the same place as administrative bodies whose decisions and actions do not contain processes similar to those applicable to judicial decisions. An administrative body approving drugs is not in the same place as an inferior Court deciding a case, the latter has elements of the cause of action while the former may involve scientific knowledge and testing – the two processes are different from each other and the duty of articulating reasons should not be applicable to them in the same respects.

Conclusion

The insertion of judicial review into the Constitution does not allow the Courts to change the nature of judicial review, or to expand its scope beyond its original limits. There is nothing in the Constitution that allows the Courts to do so. It is not justifiable for the Courts to cite the decisions of foreign Courts as justification for this unnecessary modification. That amounts to judicial reasoning (or unreasoning) by imitation – a thing our Constitution does not allow.

The principles of the common law which have led to the growth and crystallization of judicial review are not to be lightly thrown away just because a new Constitution has come along: “Remove not the ancient landmark, which thy fathers have set.” [39]

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Endnotes

[1] See Article 165(6), Constitution of Kenya, 2010.

[2] See Thomas Sowell, Knowledge and Decisions, Basic Books, 1980.

[3] F.A. Hayek, The Use of Knowledge in Society, The American Economic Review, Vol. XXXV, No. 4 (September 1945); F.A. Hayek, The Pretence of Knowledge, Nobel Memorial Lecture, December 11, 1974. See also Thomas Sowell, Knowledge and Decisions, Basic Books, 1980.

[4] See Thomas Sowell, Knowledge and Decisions, Basic Books, 1980.

[5] As to the nature of supervisory jurisdiction in judicial review see R v Secretary of State for the Home Department, ex p Launder [1997] 3 All ER 961 at 978, [1997] 1 WLR 839 at 857, HL, per Lord Hope of Craighead: “The function of the court in the exercise of its supervisory jurisdiction is that of review. This is not an appeal against the Secretary of State's decision on the facts.” See also R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696 at 765, sub nom Brind v Secretary of State for the Home Department [1991] 1 All ER 720 at 737, HL, per Lord Lowry: “judicial review of administrative action is a supervisory and not an appellate jurisdiction”; the court “is satisfying itself as to whether the decision-maker has acted within the bounds of his discretion.”

[6] Mike Rubia & another v Moses Mwangi & 2 others [2014] eKLR; Law Society of Kenya v Betty Sungura Nyabuto & 2 Others (2012) eKLR; B.A. & another v The Standard Group Ltd (2012) eKLR.

[7] As to common law as a source of law see Judicature Act (Cap. 8).

[8] These prerogative writs were converted to prerogative orders, see Fair Administrative Action Act ,2015. Any reference to these old writs is to be read as references to the corresponding orders listed in the Fair Administrative Action Act, 2015.

[9] See Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 408, [1984] 3 All ER 935 at 949, HL, per Lord Diplock: “Judicial review … provides the means by which judicial control of administrative action is exercised.”

[10] Section 9, Law Reform Act (Cap. 26).

[11] See National Social Security Limited v Sokomanja Limited (2021) eKLR.

[12] Chief Constable of the North Wales Police v Evans [1982] 3 All ER 141 at 154, [1982] 1 WLR 1155 at 1174, HL, per Lord Brightman: “Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made”. See also Lonrho plc v Secretary of State for Trade and Industry [1989] 2 All ER 609 at 617, [1989] 1 WLR 525 at 535, HL, per Lord Keith of Kinkel; R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696, sub nom Brind v Secretary of State for the Home Department [1991] 1 All ER 720, HL.

[13] As to Wednesbury unreasonableness see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223, [1947] 2 All ER 680, CA.

[14] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410, [1984] 3 All ER 935 at 950-951, HL, per Lord Diplock; Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240 at 249, [1986] 1 All ER 199 at 203, HL, per Lord Scarman.

[15] Chief Constable of the North Wales Police v Evans [1982] 3 All ER 141 at 154, [1982] 1 WLR 1155 at 1173, HL, per Lord Brightman; Lonrho plc v Secretary of State for Trade and Industry [1989] 2 All ER 609 at 617, [1989] 1 WLR 525 at 535, HL, per Lord Keith of Kinkel; R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696 at 757-758, sub nom Brind v Secretary of State for the Home Department [1991] 1 All ER 720 at 731, HL, per Lord Ackner. See also Ridge v Baldwin [1964] AC 40 at 96, [1963] 2 All ER 66 at 91, HL, per Lord Evershed. See also Re Amin [1983] 2 AC 818 at 829, [1983] 2 All ER 864 at 868, HL, Lord Fraser of Tullybelton: “Judicial review is concerned not with the merits of a decision but with the manner in which the decision was made…Judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing an administrative decision without substituting its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer.”

[16] Praxedes Saisi & 7 others v Director of Public Prosecutions & 2 others, (Petition 39 & 40 of 2019 (Consolidated)) [2023] KESC 6 (KLR) (Civ) (27 January 2023) (Judgment).

[17] See R v British Broadcasting Corpn, ex p Lavelle [1983] 1 All ER 241 at 249, [1983] 1 WLR 23 at 31, 249 per Woolf J: “An application for judicial review has not and should not be extended to a pure employment situation.” See also Law v National Greyhound Racing Club Ltd [1983] 3 All ER 300, [1983] 1 WLR 1302, CA.

[18] See R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, ex p Wachmann [1993] 2 All ER 249, [1992] 1 WLR 1036; R v Imam of Bury Park Jame Masjid Luton, ex p Sulaiman Ali [1994] COD 142, (1994) Times, 20 May, CA; R v London Beth Din (Court of the Chief Rabbi), ex p Bloom [1998] COD 131.

[19] See Hamlet v General Municipal Boilermakers and Allied Trades Union [1987] 1 All ER 631 at 634, [1987] 1 WLR 449 at 452-453 per Harman J; IRC v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 639, [1981] 2 All ER 93 at 103, HL, per Lord Diplock; R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 2 All ER 853, [1993] 1 WLR 909, CA.

[20] See R v Lord Chancellor's Department, ex p Nangle [1992] 1 All ER 897, [1991] ICR 743, DC.

[21] See Fair Administrative Action Act, 2015.

[22] R (on the application of Beer (t/a Hammer Trout Farm) v Hampshire Farmers Market Ltd [2003] EWCA Civ 1056, [2004] 1 WLR.

[23] As to the physical fallacy see Thomas Sowell, Knowledge and Decisions, Basic Books, 1980.

[24] R (on the application of Rusbridger) v A-G [2003] UKHL 38, [2004] 1 AC 357, [2003] 3 All ER 784; Wynne v Secretary of State for the Home Department [1993] 1 All ER 574, sub nom R v Secretary of State for the Home Department, ex p Wynne [1993] 1 WLR 115, HL.

[25] See R v Association of Futures Brokers and Dealers Ltd, ex p Mordens Ltd (1990) 3 Admin LR 254; Gee v General Medical Council [1987] 2 All ER 193, [1987] 1 WLR 564, HL; Futures Brokers and Dealers Ltd, ex p Mordens Ltd (1990) 3 Admin LR 254.

[26] R v Lord President of the Privy Council, ex p Page [1993] AC 682 at 701, HL, per Lord Browne-Wilkinson.

[27] See Anisminic Ltd v Foreign Compensation Commission[1969] 2 AC 147 at 171, [1969] 1 All ER 208 at 214, HL, per Lord Reid.

[28] R v Governor of Brixton Prison, ex p Armah [1968] AC 192 at 234, HL, per Lord Reid. See also R v Northumberland Compensation Appeal Tribunal, ex p Shaw [1952] 1 KB 338, [1952] 1 All ER 122, CA.

[29] See Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 174, [1969] 1 All ER 208 at 216, HL, per Lord Reid; In re Racal Communications Ltd [1981] AC 374 at 383, [1980] 2 All ER 634 at 638, HL, per Lord Diplock.

[30] Re Harrington [1984] AC 743, sub nom Harrington v Roots [1984] 2 All ER 474.

[31] R v Central Professional Committee for Opticians, ex p Brown [1949] 2 All ER 519 at 522, DC; R v Secretary of State for the Home Department, ex p Phansopkar [1976] QB 606, [1975] 3 All ER 497, CA; R v Rent Officer for Camden, ex p Ebiri [1981] 1 All ER 950, [1981] 1 WLR 881, DC.

[32] See Kalra v Secretary of State for the Environment (1995) 72 P & CR 423, [1996] 1 PLR 37, CA; R v Vale of Glamorgan Borough Council and Associated British Ports, ex p James [1996] Env LR 102 at 115-116 per Popplewell J; R v Wolverhampton Coroner, ex p McCurbin [1990] 2 All ER 759 at 767, [1990] 1 WLR 719 at 730, CA, per Woolf LJ.

[33] Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223 at 229, [1947] 2 All ER 680

at 682-683, CA, per Lord Greene MR.

[34] In re Racal Communications Ltd [1981] AC 374 at 383, [1980] 2 All ER 634 at 638, HL, per Lord Diplock).

[35] See Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1065, [1976] 3 All ER 665 at 695-696, HL, per Lord Diplock.

[36]As to the problem of articulation see Thomas Sowell, Knowledge and Decisions, Basic Books, 1980.

[37] See Thomas Sowell, Knowledge and Decisions, Basic Books, 1980.

[38] R v IRC, ex p TC Coombs & Co [1991] 2 AC 283 at 300, 302, sub nom TC Coombs & Co (a firm) v IRC [1991] 3 All ER 623 at 636-637, HL, per Lord Lowry.

[39] Proverbs 22:28