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ADMINISTRATIVE LAW NOTES

JUDICIAL REVIEW Judicial review is the process by which a court reviews a decision, act or failure to act by a public body or other official decision maker. It is only available where other effective remedies have been exhausted and where there is a recognised ground of challenge.

● Judicial review is different to judicial appeal. ● Judicial: ○ Might say look the GOV action/decision advice is unlawful ○ They didn't have the power to do it ○ We don't think it was lawful ○ Take it to court and challenge the manner in which a decision was made. The court will say yes or no ○ Supervisory jurisdiction - fully expounded in CASE: moss empires v assessor for Glasgow. ○ The court can decide whether the decision was made lawfully not whether the decision was on merits. ○ Same conclusion can still be made it is the way in which the decision was made. Manner in which the decision was made. As long as it does so in a lawful way and following the correct process. ○ ○ Court can’t intervention. Just because a wrong decision has been made or one that the court would not have made. Question of law to be judicially reviewed. ○ If the court agrees - quashed and then the decision will be made again. ○ Court generally remits the decision to the decision maker with its judgment forming an explanation of the manner in which the first decision was unlawful. Not replacing or changing the decisions. ○ judicial review remains primarily concerned with the process or legality of official decision making, rather than the substance of the decisions themselves ○ ● Appeal:

In a court context, a decision is brought i.e. breach of contract, you appeal, and the COS says it does breach a contract. ○ You can then appeal to a court and say the earlier court got the law wrong it did to constitute a breach and I don't want to provide damage. ○ The appeal court will either overturn or agree. Allows a court to substitute a decision of the earlier court with their own - that decision got it wrong this is ours. ○ The higher court decision is the one that is followed. ○ Replacing the decision ○ Appellate jurisdiction ● Common law power of the Court of Session to review or supervise acts or omission of administrative bodies. ○

Judicial review is the process by which a person with ‘sufficient interest’ may challenge the lawfulness – on grounds including illegality, procedural impropriety, or irrationality – of a decision made by a public body (England and Wales) or to someone to whom a power has been delegated or entrusted (Scotland). Judicial Review ordinarily a remedy of last resort; all other possibilities must be exhausted first. Not something people are expected to use at first instance exhaust any possible remedies beforehand. Parties are encouraged to solve the issue without going to court.

● Can be controversial ● One way of understanding, it forms part of checks and balances. Courts can resolve disputes but also ensure government is acting in accordance with the law. Most of the law as stipulated by parliament. ○ Don’t think the government is acting lawfully by proroguing parliament so we go to court to determine so. ● The role of the Courts generally is to adjudicate and settle legal disputes ● This extends to legal disputes arising across every field of law ● Within this, judges have an important role to play under the UK Constitution ● No power of constitutional review (i.e. cannot decide whether an Act of Parliament is constitutional and valid). This is the default position. Acts of parliament can now be reviewed by the courts to check that comply with convention rights. ● But, long standing power of judicial review of executive decisions and actions (i.e. determining the lawfulness of Government decisions and actions)

Ultra Vires Theory ● What is the point of JR - to check that the government is acting within its powers and not beyond them?

● Ultra vires (beyond the powers) ● Intra vires (within the powers) ● Where a decision-maker acts outside of what they are authorised to do by legislation, then the court can declare the act to be ultra vires and thus unlawful. They have to act within the confines of the law. A rule of law legality argument. ● When courts review executive decision, therefore, they are enforcing the limits placed on them by statute, thus upholding the doctrine of parliamentary sovereignty ● Courts are upholding the will of parliament and the limits parliament have placed on the power of government in the exercise of their powers ● When we talk about law in the Ultra Vires, The principal source of law = parliamentary statute, a lot of government power is passed in statute. Parliament passed laws which empower the government ● Artificial construction argument = 3 principles grounds of review. When you look at an act of parliament it tends not to state the administrative law standards. Are the courts upholding parliamentary sov? or are they review executive power based on standards they have created not parliament. ● JR was developed heavily on case law.

Common Law Theory ● We can't justify it be virtue of parliament but virtue of common law. Modified Ultra Vires Theory ● ‘[W]hen Parliament enacts legislation which (typically) confers wide discretionary power and which makes no explicit reference to the controls which should regulate the exercise of the power, the courts are constitutionally entitled – and constitutionally right – to assume that it was Parliament’s intention to legislate in conformity with the rule of law principle. This means that Parliament is properly to be regarded as having conferred upon the decision-maker only such power as is consistent with that principle’. ● Parliament gives them this power with the assumption that they will be used with the rules applied to the constitution. Bringing an Action ● Can only go to certain courts ● A court action for judicial review in Scotland can only be raised in the Outer House of the Court of Session in Edinburgh. It can be appealed to the Inner House of the Court of Session and thereafter to the UK Supreme Court. ● If the judicial review case relates to EU law a national court may also refer it to the Court of Justice of the European Union (CJEU) in Luxembourg for a preliminary ruling. ● Prior to 1977 no single standards process for bringing JR. Different ways depending on what remedy you wanted, not a single track.

● Prior to 2014, there was no time limit nor was there a permission stage – there were rules on standing however

SCOPE AND STANDING The rules on ‘standing’ determine who may bring an action for judicial review. The previous law on standing in Scotland was widely criticised and was changed by the UK Supreme Court in 2012.

 Locus standi - you have to prove that you are entitled to bring the action. ● Preliminary decision made by the court during the permission stage England and Wales = sufficient interest ● Senior court act 1981 s31 - cant have JR unless you satisfy the test ● Sufficient interest is a broad test developed by the courts in each subsequent case law; one must be satisfied in each case. ● CASE: Inland Revenue ○ SI is a preliminary test and in JR terms you may need to look at the test twice, 1st as a preliminary matter and 2nd at substantive hearing. ● Been interpreted broadly - not difficult to satisfy ○ CASE: BULGER: the threshold for standing in judicial review has generally been set by the courts at a low level. This … is because of the importance in public law that someone should be able to call decision makers to account, lest the rule of law breaks down and private rights be denied by public bodies’. ● Satisfying SI is not difficult because you are an individual against a very powerful body, you have to allow/give people the chance Scotland = title and interest (old law), sufficient interest (new law) ● Had to establish a title to sue and sufficient interest to sue ● Title to sue = for a long time a petitioner applying for JR had to establish that they were a party to a legal relationship which conferred rights on them that the decision maker had infringed. Legal rights had been inhibited. ● CASE: Scottish Old People Welfare Council ○ Age concern Scotland challenged guidance issued on state benefit relating to severe weather conditions ○ Age concern Scotland a voluntary association made up of members of the public ○ They were challenging a circular on benefits issued to people. Wanted to challenge the law of the guidance

○ Title to sue? Yes - if you have a statute that confers rights to the public generally, the rights as members of the public have rights. The legal rights that the government were interfering with ○ Interest to sue? No. ■ They represented the elderly in society. Had sufficient interest because a successful action would relieve it of some of the burden in its own work of seeking to help the elderly. ■ Did not direct but indirect benefit. ■ Judge ruled that this was too remote an interest and so the petitioner did not have sufficient interest to sue. ■ An individual benefit claimant, by contrast, would have satisfied the requirements both title and interest to sue. Old person would of had to bring the case for there to have been both. ■ Claimants did not directly benefit from a favorable decision ○ Whether a ores sure group has sufficient interest in the pursuance of the right s of ram member of the public = doubtful ● Case: Glasgow Rape Crisis ○ Person convicted of rape was allowed to come to Glasgow to do a boxing match ○ The decision made by the home secretary was made by the immigration rules under immigration act 1971 ○ Did the pressure group satisfy a right? ○ Legislation did not create general duties to the public as a whole; provisions related only to those seeking entry into the UK ○ Pressure group therefore lacked title to sue, despite having an interest in the matter ○ Imigration act did not confer rights on the public, only confers rights on individuals seeking to enter into the country. People in the group were not part of this. No legal duty being interfered with. Even if you satisfy one (either title to sue or interest to sue) you won't necessarily pass Interest to sue ● ● ● ●

Basically SI. Whether or not someone has SI depends on the circumstances. You must have SSI for a hearing to take place. The general rule Petitioner will generally lack interest to sue if seeking to gain a remedy that will only benefit others and not the petitioner directly. ● A petitioner must be directly affected by the measure being challenged in order to have ‘sufficient interest’ to sue. Can’t bring an action for other people.

The standing rules were too restrictive and required reform CASE: AXA General Insurance v Lord Advocate [2011] UKSC 46

● English Law’s single test of ‘sufficient interest’ adopted by the UK Supreme Court for public law actions (e.g. a challenge to an Act of the Scottish Parliament) ● The court decided that when it came to public law actions in Scotland they would apply sufficient interest not interest/title to sue. ● A single test of SI is what would be applied ● Insurance companies challenged the validity of the Damages Scotland Act 2009 Scottish Civil Courts Review (2009) ● Advocated adoption of English Law’s single test of ‘sufficient interest’ in general – drop requirement of a title to sue altogether ● Review came out and they had dropped title to sue. Courts Reform (Scotland) Act 2014 Section 89: ● Amends Court of Session Act 1988 by inserting four new provisions (ss 27A-D) ● Section 27A – 3 month time limit on applications ● Section 27B – requirement for permission; applicant must ‘demonstrate a sufficient interest in the subject matter of the application.’ ● Phased implementation of 2014 Act. ● New judicial review procedures became effective on 22nd September 2015 Scope ● This is an area where the difference between Scots and English law can be made ● English law recognise a distinction between public and private law rights ○ Exclusivity principle: only matters relating to public law should be dealt with by judicial review – has been qualified by subsequent case law ○ Judicial review not only applies to public bodies but also to those bodies exercising a public function (R v Panel on Takeovers and Mergers, ex p Datafin Plc and others [1987] QB 815) ○ Relationship of membership also relevant – a contract would be indicative of a private relationship which is governed by private law. JR will not be appropriate. ○ The test is not strictly of is this a public body? Is this a public function of nature? ○ If you review a particular body, the relationship between the body and the members is important. ● Scotland it is possible to review the decisions of private bodies using JR. ○ CASE: West v SOS for Scotland Facts: A prison officer challenged refusal by a minister to pay removal expenses on transfer of post

Employer was the Scottish Prison Service (the government) Question: Decision amenable to judicial review? Held: No – this concerned contractual rights (such as between employer and employee) – an ordinary question of private law not amenable to judicial review i.e. contractual terms of West’s employment. Not a JR problem But, Court of Session (Inner House) expanded the test upon the nature and limits of judicial review jurisdiction in Scotland The tripartite test was in turn developed. Jurisdiction does not depend upon a distinction between ‘public’ and ‘private’ law ● In Scotland review is not confined to the statutory powers of administrative bodies supervisory jurisdiction may also extend to the actions and omissions of bodies which are private (Church) Tripartite Test as set out in the case: West Tripartite Test (involves three people/bodies): JR is available if you can satisfy this 1) Person taking the decision being challenged (decision-maker). Who is exercising the decision? 2) Person or body granting power to the decision-maker to decide or act. Under what authority 3) Person seeking review (petitioner, affected party) who is affected by the decision. Judicial review will be available where these three persons/bodies are identifiable and linked Purpose of Judicial Review: is available, not to provide machinery for an appeal, but to ensure that the decision maker does not exceed or abuse his powers or fail to perform the duty which has been delegated or entrusted to him. It is not competent for the court to review the act or decision on its merits, nor may it substitute its own opinion for that of the person or body to whom the matter has been delegated or entrusted. Case example of where a non government body has been subject to review: Crockett v Tantallon Golf Club Facts: Crockett (a member of the Tantallon Golf Club) was eventually expelled from the club by members voting in a general meeting (101 to 1). Crockett then challenged the decision (as well as the decisions of the Council preceding the vote). He was challenged the expulsion from the club. Question: Were the decisions unlawful i.e. contrary to Club Rules? The expulsion did not follow the rules.

Held: No – petition therefore refused. No breach of the rules. There was a dispute as to the application of West. There is a tripartite relationship under which the members of the council are entrusted by the members of the club as a whole with a decision-making power in respect of any member whose conduct is in issue.

Grounds of Review The grounds of judicial review have been divided into three main categories: 1. The decision maker acted unlawfully (‘illegality’) 2. The decision was made using an unfair procedure (‘ procedural impropriety’) 3. The decision was so unreasonable as to be irrational (‘irrationality’ or ‘unreasonableness’) The grounds were set out in the case: Council of civil service union’s v minister for civil service and set by Lord Diplock Illegality Public bodies can only generally do what the law allows them to do. All actions and decisions of decision-maker must fall within scope of power conferred upon the decision-maker.

Almost all the powers and duties which public bodies possess are statutory, conferred by acts of parliament or statutory instruments  The limits of public powers and the extent of public duties are those which statute imposes or grants  Illegality is central principle of admin law and can be state quite simply: a person or body acting under statutory powers can only do those things which statue permits.  If a public body exercises towers without statutory authorization = illegal or ultra vires (beyond the powers).  Case: McColl v Strathclyde RC o Council had acted ultra vires in attempting to add fluoride to the public water supply. o The statutory powers of the council of this area came from the Water (Scotland) ACT 1990 which allowed local authorities to provide “wholesome” water supply o Since the fluoride was to be added to improve dental health not for wholesomeness = illegal  decision-maker must understand correctly the law that regulates his decisionmaker power and must give effect to it.

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In a very basic sense, you have to comply with the law as it is written. Act within the scope of the authority you have been given

Types of Illegality: 1. Acting without legal authority  Depends on the facts  Case: AG V Fulham Corporation – – – – – –

Facts: Under Washhouses Acts 1846-1878, local authorities had power to establish baths, washhouses, bathing spaces etc Local authority = many bodies of government people could interact with Have them power to build certain things Question: Was it lawful to establish a local authority-operated laundry? Could they open a launderette? Held: No Laundrette = different to a wash house ‘[T]he matters turns on this, whether or not the Council has, either expressly or impliedly, power to conduct the operation ... In my judgment, neither expressly nor impliedly ... has it that power.’

2. Errors of law and fact  Applying the facts wrong  Error of law = decision maker misinterprets applicable law  Common for decision makers to interpret the law wrong.  Scottish courts make a distinction between error: o jurisdictional errors - where decision-maker makes a mistake as to the scope of their decision-making powers, thus causing them to exceed their powers. Mistake relates to the scope of decisionmaking power itself = out with powers o non-jurisdictional errors - errors not relating to scope of decisionmaker’s powers = mistakes of any other kind  England, it is a ground of challenge that an administrative body has made an error of law. Any error of law decision dependent upon is subject to review by the courts.  Error of fact = misinterpretation of dispute. Courts will only intervene where findings of fact reached on no evidence r contrary to evidence. 3. Failing to exercise a discretion  You have the discretion to do something  A delegate cannot be bound by the views of others o CASE: Lavender & Son Ltd v Ministry of Housing and Local Government [1970] 1 WLR 1231

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Facts: Lavender wanted permission to develop agricultural land. Permission denied. Appeal to Minister of Housing denied based on policy of agreeing with Minister of Agriculture Question: Abdication lawful? Held: No - okay to have a policy, but not a veto Discretion must actually be exercised Discretion must have a purpose and legitimacy. RULE: A delegate is not allowed to delegate o CASE: Barnard v National Dock Labour Board [1953] 2 QB 18 Facts: Dock Workers regulation gave power to suspend workers to local boards. Port Manager suspended workers, no oversight by local board Question: Was the delegation lawful? Held: No Powers may only be used for the purposes for which they were (expressly or impliedly) given General Rule: A decision-maker may have a policy, but it must remain willing to decide each case on its merits o CASE: British Oxygen Co Ltd v Minister of Technology [1971] AC 610

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Facts: minister able to give grant for investments in equipment. Policy of only giving grants for items costing more than £25. British Oxygen spend £...