Substantive review versus procedural review
Substantive Review vs Procedural Review
In administrative law and constitutional law, judicial review is a key mechanism through which courts oversee the actions of public bodies and government authorities. This oversight is usually categorized into two primary types:
Substantive Review – Concerns the content or outcome of a decision.
Procedural Review – Focuses on the process by which the decision was made.
Let’s explore these two in detail with more than four to five landmark cases that clarify the principles.
🔹 1. Substantive Review
Definition:
Substantive review involves assessing whether the decision itself is lawful, reasonable, proportionate, or within the scope of the legal authority conferred upon the decision-maker.
It addresses "What was decided?" rather than "How was it decided?"
📌 Leading Case Laws on Substantive Review:
✅ 1. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Key Principle: Introduced the concept of Wednesbury unreasonableness.
Facts: A cinema was granted a license to open on Sundays with the condition that no children under 15 were admitted. The cinema challenged the reasonableness of this condition.
Held: The court will not interfere unless the decision was so unreasonable that no reasonable authority could have ever come to it.
Importance: This case is the cornerstone of substantive review, particularly in unreasonableness and irrationality.
✅ 2. Council of Civil Service Unions v Minister for the Civil Service (GCHQ case) [1985] AC 374
Key Principle: Established three grounds of judicial review:
Illegality
Irrationality (Wednesbury)
Procedural impropriety
Facts: The government barred GCHQ workers from joining a union citing national security. The union argued this was unfair.
Held: The court accepted that judicial review could extend to substantive irrationality, but due to national security concerns, it refused intervention.
Importance: Cemented irrationality as a distinct ground of substantive review, especially for executive actions.
✅ 3. R (Daly) v Secretary of State for the Home Department [2001] UKHL 26
Key Principle: Applied proportionality as a test, particularly where fundamental rights are involved.
Facts: Daly, a prisoner, challenged a policy that allowed prison officers to search legally privileged correspondence in his absence.
Held: The court found the policy disproportionate and therefore unlawful.
Importance: Recognized the role of substantive proportionality review, especially under the Human Rights Act 1998.
✅ 4. R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696
Key Principle: Reinforced the Wednesbury standard, refusing to apply proportionality in a pre-Human Rights Act context.
Facts: The BBC was barred from broadcasting direct speech of certain individuals associated with terrorism. The policy was challenged on the grounds of freedom of expression.
Held: The court held the restriction to be within the powers of the Home Secretary.
Importance: Shows limits of substantive review in the absence of explicit rights protections.
✅ 5. Bank Mellat v HM Treasury (No. 2) [2013] UKSC 39
Key Principle: Deepened the role of proportionality in reviewing executive decisions.
Facts: Bank Mellat, an Iranian bank, challenged sanctions imposed by the UK government alleging indirect involvement in nuclear proliferation.
Held: The Supreme Court held that the sanctions were disproportionate and unjustified.
Importance: Advanced the proportionality test as central to substantive judicial review, especially in economic and national security matters.
🔹 2. Procedural Review
Definition:
Procedural review assesses whether correct procedures were followed in the making of the decision.
It asks "Was the process fair, lawful, and in accordance with rules of natural justice?"
📌 Leading Case Laws on Procedural Review:
✅ 1. Ridge v Baldwin [1964] AC 40
Key Principle: Re-established the importance of natural justice in administrative decisions.
Facts: Chief Constable Ridge was dismissed without being given a chance to defend himself.
Held: The House of Lords held that failure to follow proper procedure (no fair hearing) rendered the decision void.
Importance: Landmark case for procedural fairness and the right to a fair hearing.
✅ 2. R v Home Secretary, ex parte Doody [1994] 1 AC 531
Key Principle: Introduced the requirement to give reasons for decisions affecting rights.
Facts: Prisoners sentenced to life imprisonment challenged the lack of reasons for their continued detention.
Held: The court held that the prisoners had the right to be informed of the reasons to make effective representations.
Importance: Strengthens procedural justice by requiring transparency in decision-making.
✅ 3. Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180
Key Principle: Old but foundational case on the audi alteram partem rule (right to be heard).
Facts: A man built a house without prior notice and it was demolished by the local authority without hearing him.
Held: The court ruled the action unlawful due to lack of fair hearing.
Importance: Early recognition of procedural fairness in administrative law.
✅ 4. R (Osborn) v Parole Board [2013] UKSC 61
Key Principle: Emphasized the role of oral hearings as part of procedural fairness.
Facts: Prisoners were denied oral hearings before the Parole Board.
Held: The Supreme Court found this breached procedural fairness.
Importance: Reaffirmed courts' willingness to enforce natural justice even in quasi-judicial settings.
✅ 5. R v Secretary of State for the Home Department, ex parte Al Fayed [1997] 1 All ER 228
Key Principle: Reinforced the requirement for procedural fairness in refusal of citizenship.
Facts: Al Fayed brothers were denied British citizenship and challenged the lack of reasons and fair hearing.
Held: The court held that while the decision itself was a prerogative power, some procedural fairness was still required.
Importance: Shows how procedural review can be demanded even in politically sensitive decisions.
🔸 Comparison Chart
| Criteria | Substantive Review | Procedural Review |
|---|---|---|
| Focus | Content or outcome of decision | Method/process of decision-making |
| Key Issues | Legality, reasonableness, proportionality | Fair hearing, notice, bias, reasons |
| Main Test | Wednesbury unreasonableness, proportionality | Natural justice (audi alteram partem & nemo judex in causa sua) |
| Remedies | Quashing order, declaration, damages | Reconsideration, nullification |
| Case Examples | Wednesbury, Daly, Bank Mellat | Ridge v Baldwin, Doody, Osborn |
🔚 Conclusion
Both substantive and procedural reviews are essential tools in judicial review. Procedural review ensures fairness in the process, while substantive review checks the rationality and legality of the decision itself. Over time, courts have increasingly moved from formalism (procedure) to also incorporating rights-based reasoning (substance), especially in the context of human rights and proportionality.
RELATED Blog
0 comments