On the Nature of Judicial Review: Michalak v General Medical Council [2017] UKSC 71

Michalak v General Medical Council [2017] UKSC 71 is an interesting case, involving both a narrow point of statutory interpretation and broad issues about the nature of judicial review of administrative action.

The narrow point concerned s. 120(7) of the Equality Act. Where a complaint relating to discrimination by a qualifications body “may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal”, the Employment Tribunal does not have jurisdiction to hear it. The complaint must be routed through the procedure provided for by the other “enactment”.

Dr Michalak complained that the Council had discriminated against her by bringing fitness to practise proceedings against her and by failing to investigate complaints she had made against other doctors. The Council contested the jurisdiction of the Tribunal, ultimately on the basis that the application for judicial review came within the terms of s. 120(7).

Two interesting broad questions thus arose for the Supreme Court, in terms relevant to many other jurisdictions. First, is judicial review “an appeal or proceedings in the nature of an appeal”? Second, is judicial review available “by virtue of an enactment”?

On the first question, Lord Kerr drew the conventional distinction between an appeal and a judicial review:

…an appeal body or court may examine the basis on which the original decision was made, assess the merits of the conclusions of the body or court from which the appeal was taken and, if it disagrees with those conclusions, substitute its own. Judicial review, by contrast, is, par excellence, a proceeding in which the legality of or the procedure by which a decision was reached is challenged (at para. 20).

Even review for proportionality does not amount to “full merits review” (at para. 20, quoting his own speech in Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69; [2016] AC 1355):

Judicial review, even on the basis of proportionality, cannot partake of the nature of an appeal, in my view. A complaint of discrimination illustrates the point well. The task of any tribunal, charged with examining whether discrimination took place, must be to conduct an open-ended inquiry into that issue. Whether discrimination is in fact found to have occurred must depend on the judgment of the body conducting that inquiry. It cannot be answered by studying the reasons the alleged discriminator acted in the way that she or he did and deciding whether that lay within the range of reasonable responses which a person or body in the position of the alleged discriminator might have had. The latter approach is the classic judicial review investigation.

On a successful judicial review, the High Court merely either declares the decision to be unlawful or quashes it. It does not substitute its own decision for that of the decision-maker. In that sense, a claim for judicial review does not allow the decision of the GMC to be reversed. It would be anomalous for an appeal or proceedings in the nature of an appeal to operate under those constraints. An appeal in a discrimination case must confront directly the question whether discrimination has taken place, not whether the GMC had taken a decision which was legally open to it (at paras. 21-22, emphasis original).

There are two points here. Not only is a judicial review directed to a different type of question (was the decision “within the range of reasonable responses”?) than an appeal but it involves a much more limited set of remedial options. Confusion had arisen in the lower courts because these concepts had been conflated (see paras. 23-30). But Lord Kerr dispelled the confusion: “An appeal is different from a review of the legal entitlement to make a decision; it involves an examination of what decision should be taken in the dispute between the parties” (at para. 30, emphasis original).

For his part, Lord Mance entered three caveats about the distinction between an appeal and a judicial review: “(i) I would not circumscribe the development of judicial review or its ability to cater, in appropriate circumstances, for close examination of a claim on its merits…; (ii) judicial review may, in appropriate circumstances, lead the court to a conclusion that there exists only one possible outcome of a relevant legislative or executive decision-making process: see eg In re G (Adoption: Unmarried Couple) [2008] UKHL 38; [2009] AC 173, para 144; (iii) conventional appellate review is itself not infrequently circumscribed by considerations of respect for the original or first instance decision-maker…” (at para. 37).

On the second question, the Council argued that the application for judicial review is available “by virtue of an enactment” because it stands on the statutory basis provided by the Senior Courts Act 1981, s. 31 of which lays out the forms of relief in judicial review proceedings.

For Lord Kerr, this argument was based on a “misunderstanding” of the nature of judicial review, a procedure whose “origins lie in the common law” (at para. 32). The 1981 Act “did not establish judicial review as a procedure, but rather regulated it”; “The remedies remain the same as those under the prerogative writs. All that section 31 does is to require that applications for judicial review be brought by way of a new procedure under the rules of court” (at para. 33). All this would have been well-known to Parliament at the relevant times. Had it, “in 1981 or in 2010, intended to remove all decisions by qualification bodies whose decisions were susceptible to judicial review from the jurisdiction of the Employment Tribunal, one would surely expect that to be provided for expressly” (at para. 35).

In this context, he held, adopting the reasoning of Moore-Bick LJ:

“… the words ‘by virtue of an enactment’ in section 120(7) are directed to cases in which specific provision is made in legislation for an appeal, or proceedings in the nature of an appeal, in relation to decisions of a particular body, as, for example, in Khan v General Medical Council [1996] ICR 1032. They are not … intended to refer to the general right to seek judicial review merely because, since 1981, that happens to have been put on a statutory footing.”

To conclude, the concept of a “range” of reasonable or rational outcomes is evidently proving attractive to the UK Supreme Court (see also here). The judges are, as Lord Mance’s concurring speech suggests, carefully considering issues relating to the intensity of substantive review. That they can do so is due precisely to the flexible nature of judicial review which, as a common law doctrine, can adapt to changing circumstances.

This content has been updated on November 8, 2017 at 15:45.

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