Availability of Judicial Review Case Summary - Miguel PDF

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Availability of Judicial Review SummaryMain Issue: Whether the claimant can apply for judicial reviewFactors to consider; Whether the claimant is a proper claimant? Whether the defendant/ decision is subject to judicial review Whether the subject matter of the judicial review application is justicia...

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Availability of Judicial Review Summary Main Issue: Whether the claimant can apply for judicial review Factors to consider; 1. 2. 3. 4.

Whether the claimant is a proper claimant? Whether the defendant/ decision is subject to judicial review Whether the subject matter of the judicial review application is justiciable Whether there is an applicable ouster clause

The power of judicial review may be defined as the jurisdiction of the superior courts to review laws, decisions, acts and omissions of public authorities endowed with coercive powers, in order to ensure that they act within their give powers (intra vires). The courts are very vigilant in protecting their processes from abuse by ensuring that a person challenging a decision of a public authority has some relationship to the decision made in order to challenge that decision. 1. Claimants (a) Capacity and Standing Section 5 of the Judicial Review Act (JRA) of Trinidad and Tobago (and Section 6 of the AJA) (2) The Court may, on an application for judicial review, grant relief in accordance with this Act— (a) to a person whose interests are adversely affected by a decision; or (b) to a person or a group of persons if the Court is satisfied that the application is justifiable in the public interest in the circumstances of the case. Section 6 of the JRA (1) No application for judicial review shall be made unless leave of the Court has been obtained in accordance with rules of the court (2) The Court shall not grant such leave unless is consider that the applicant has a sufficient interest (locus standi) in the matter to which the application relates. Section 7 of the JRA (1) Notwithstanding section 6, where the court is satisfied that an application for judicial review is justifiable in the public interest, it may, in accordance with this section, grant leave to apply for judicial review of a decision to an applicant whether or not he has a sufficient interest in the matter to which the decision relates.

Graham v COP: An applicant must demonstrate that he had the necessary standing to apply for judicial review; that an applicant had standing if he could show that he had a sufficient interest in the matter to which the application related or was adversely affected by the respondent’s decision. -

Incorporated Bodies

Trinidad and Tobago Civil Rights Association v AG of TT: The applicants were an unincorporated body and an individual, who had intended to promote the public interest by bringing public interest litigation, arguing that the 2005 Bill was unconstitutional. (pg 51 of Ventose) -

Unincorporated Bodies

Fontenoy Football Club v Grenada Football Association: The parties, being unincorporated, non-statutory, domestic bodies, could only sue and be sued through representatives. Sykes v Minister of National Security and Justice: The applicant was not recognised as having any legal existence apart from the members; its object was akin to that of a trade union, but was not recognised as such. The underlying principle was that the applicant, in judicial review proceedings must be legally cognizable. It could not be the law that any group of persons might assume a name and then seek redress against a legal entity, unless some statute game them that rights. -

Corporations

AG v Antigua Times Ltd: There is nothing in the context of the Constitution to exclude artificial persons in so far as they were capable of enjoying fundamental rights and freedoms protected by the Constitution; ‘any person’ in section 15 included a body corporate. -

Merits of the Case

Historically locus standi was a threshold issue that was determined before the substantive issues were considered. Recent cases suggest that the substantive issues should be considered before locus standi is considered. AG of Saint Lucia v. Francois: The approach to locus standi provided that Re Blake and Re Spencer was followed and locus standi was determined after the court determined whether the substantive issues have any merit, and therefore if the application is unmeritorious it is unnecessary to consider whether the applicant has locus standi. (b) Standing – the Sufficient Interest requirement R (ex p Bulger) v Lord Chief Justice: The members of a victim's family had no standing to bring judicial review proceedings challenging a decision by the Lord Chief Justice on the appropriate

tariff of a juvenile detainee. Although the threshold for standing in judicial review had generally been set at a low level; that was because of the importance in public law that someone should be able to call decision makers to account, lest the rule of law break down and private rights be denied by public bodies. In criminal proceedings the traditional and invariable parties, namely the Crown and the defendant, were both able to challenge those judicial decisions which were susceptible to judicial review. It followed that in such cases there was no need for a third party to seek to intervene to uphold the rule of law. Nor would such intervention generally be desirable. Frank v AG of Antigua: The locus standi of a person who applies for judicial review is determined by reference to whether the applicant has a sufficient interest in the matter to which the applicant relates. Graham v COP: An applicant has standing if he could show that he had a sufficient interest in the matter to which the application relates, or that he was adversely affected by the respondent’s decision. -

Assessing Claimant’s Interest

National Federation and Equal Opportunities Commission v Secretary of State for Employment: Having regard to the duty of the Commission under the Statute, the Equal Opportunities Commission has locus standi to bring matter for judicial review where legislation was in breach of Community law. To work towards the elimination of discrimination, it had had a sufficient interest in the proceedings give it the necessary locus standi to bring them. R v Secretary of State for Foreign Affairs, ex p World Development Movement: A pressure group has standing to challenge the government’s decision to give financial aid to developing countries for “economic purposes. Since standing went to jurisdiction it was not to be treated as a preliminary issue but was to be taken in the legal and factual context of the whole case; that the merits of the challenge were an important, if not dominant, factor when considering standing and that significant factors pointing to the conclusion that the applicants had sufficient interest, the importance of vindicating the rule of law, the importance of the issue raised, the likely absence of any other responsible challenger, the nature of the breach of duty against which relief was sought and the prominent role of the applicants in giving advice, guidance and assistance regarding aid. Payne v AG (1982): As there was an allegation of a contravention of the Constitution, and the respondent as an elected Member of the House of Assembly satisfied the 'relevant interest' required of a person seeking a declaration . Mitchel J adopted a very liberal view of standing applicant had standing as an elected Member of the House of Assembly to seek a declaration concerning an alleged violation of the Constitution. When should locus standi be determined? Re Blake (1994):

The Court canvassed the merits of an application that challenged the

appointment of a Prime Minister after inconclusive general elections. It found that the application was unmeritorious. The Court therefore decided that it was unnecessary to consider whether the applicant had locus standi, either by way of sufficient interest or relevant interest, in the subject matter of the application Francois v AG of Saint Lucia: Locus standi is a threshold issue that is determined before the substantive issues in the case, with this approach the court determined that the application was unmeritorious and therefore decided that it was unnecessary to consider whether the applicant had locus standi. An applicant for a declaration can have no locus standi in an unmeritorious claim. On the other hand, in a meritorious case, it must be necessary to canvass the issues and the facts in order to determine whether there is sufficient nexus between an applicant and the subject matter of the claim to give him or her locus standi. (c) Interested Parties and Interveners Section 14 of the JRA (1) Any person who has an interest in a decision which is the subject of an application for judicial review may apply to the Court to be made a party to the proceedings Alleyne v Singh: A person may have an interest in a decision, or ‘directly interested’ or adversely affected to enter a proceeding for judicial review. In stating 5 principles, the court held that in ‘directly interested’ connoted that the third party was directly affected simply by the decision, and that the primary objective of intervention was for the purpose of assisting the court in its determination of issues. 2. Defendants and Decisions Subject to Judicial Review Section 5 of the JRA (1) An application for judicial review of a decision of an inferior Court, tribunal, public body, public authority or a person acting in the exercise of a public duty or function in accordance with any law shall be made to the Court in accordance with this Act and in such manner as may be prescribed by Rules of Court. Ex Parte Datafin: Once the activities of a body were of a public law character the body is susceptible to judicial review. In determining this public law element, the source of the power is not the only consideration, and the court will consider other relevant circumstances such as the nature of the function and the subject matter of the claim. (a) Range of Authorities Subject to Judicial Review Thomas v AG of TT: The argument was never made that the Police Service Commission was not subject to judicial review, and quite rightly so in light of the coercive powers that these bodies have to appoint, discipline and remove public officers from office. Thus, they fall

squarely within public law and are amendable to judicial review. Where the school is a public school, the issue is not whether the school is a public authority but whether it has acted unlawfully in that capacity. Page v Hull University Visitor [1993]: A case concerning a University’s decision to dismiss a lecturer, judicial review was not available to challenge the decision of the University because the court held that the university is an eleemosynary charitable foundation. However, the court further noted that the court had no jurisdiction to review the decision made by the University, provided the decision was made intra vires and in accordance with the rules of natural justice. Accordingly, this decision leaves open the door for judicial review of a University decision which is ultra vires. (a) Ministers of Government All Trinidad Sugar and General Workers Trade Union v the Minister of Planning: The court quoted the CCSU case for the view that the decision or action must have been made by a public authority or body empowers to perform public functions and its decision made in its public law capacity affecting public law rights, obligations and expectations. The court was of the opinion that the Minister of Planning was accountable to Parliament, and that he acts in a public law capacity when he performs functions or gives directions to the company. (b) Permanent Secretaries Hector v AG of Antigua and Barbuda: The decision of the Permanent Secretary is susceptible to judicial review. The test to be applied is to determine the nature and purpose of its functions, as well as the course of its power. It must be determined whether the entity concerned dealt with matters that redound to the benefit of the public or are concerned with matters, merely commercial in nature. (i) Cabinet Williams Construction Ltd v AG of Barbados: The court held that Cabinet is subject to JR, concerning the award of the Government contract for road construction. When the Cabinet exercises a specific statutory function which, had it been conferred on a Minister instead of the Cabinet, would unquestionably have been subject to judicial review, their lordships can see no reason in principle why the Cabinet's exercise of the function should not be subject to judicial review to the same extent and on the same grounds as the Minister's would have been. Re Galbaransingh: A committee appointed by Cabinet is reviewable on the basis that that committee was performing a public duty and that the committee was appointed to achieve a benefit for the public. HMB Holdings Ltd v Cabinet of Antigua and Barbuda:

A hurricane struck and it was

decided that it was in the public interest that it should acquire the hotel compulsorily so that the hotel business could be regenerated. The Board claimed that although Cabinet’s decision as to what is a public purpose is not justiciable, this did not mean that the decision was immune from judicial review. -

Are prerogative powers now subject to JR?

In CCSUs v Minister for the Civil Service [1985]: Lord Scarman: The controlling factor in considering whether a particular exercise of prerogative power was subject to review was 'not its source but its subject matter.’ (ii) The Prerogative of Mercy Lewis v AG of Barbados: The applicants were each convicted of murder and sentenced to death. After exhausting domestic remedies they petitioned to the human rights bodies. The merits of the decision of the Governor General, on the exercise of the prerogative of mercy were not reviewable by the courts. The court took a half-way house approach – the exercise of the prerogative powers is NOT subject to JR, but the procedure followed in processing the petition were open to review; so by indirect means the effect of the ouster clause was rendered ineffective. Joseph and Boyce: The CCJ held that the exercise of the prerogative of mercy by the Barbados PC was subject to judicial review. (iii) The discretion of the Director of Public Prosecutions Tappin v Lucas: As long as the DPP proceeds within his legal powers and acts intra vires, the court will be powerless to interfere. Sharma v Brown-Antoine: The appellant, the Chief Justice, was alleged to have attempted to influence the course of a trial. The appellant denied the allegations and maintained that a decision by the DDP to authorize his prosecution for attempting to pervert the course of justice and the conduct of the police in seeking to arrest him and search his premises were all influenced by political pressure. The court held that although a decision to prosecute was in principle susceptible to judicial review on the ground of interference with a prosecutor's independent judgment, such relief would in practice be granted extremely rarely; that in considering whether to grant leave for judicial review, the court had to be satisfied not only that the claim had a realistic prospect of success. The DDP to prosecute was subject to JR where there were allegations of political interference. (b) Judicial Review of Public Functions (i) What is a Public Function? Ex p Datafin Plc [1987]:

The supervisory jurisdiction of the High Court was adaptable and

could be extended to any body which performed or operated as an integral part of a system which performed public law duties, which was supported by public law sanctions and which was under an obligation to act judicially, but whose source of power was not simply the consent of those over whom it exercised that power. No single factor is determinative of jurisdiction; the source of the power, the nature of the duty performed and the consequences of the body’s decisions all have to be considered. A body whose (i) source of power is not solely the consent of those over whom it exercises that power, (ii) which performs public law duties, and (iii) which is supported by public law sanctions can be susceptible to judicial review. Ex p Aegon Life Insurance Limited [1994]: This was an application by an insurance company for judicial review of 23 decisions of the insurance ombudsman in which he made awards against the applicant company. The source of the IOB's power over members was solely contractual and it exercised no government functions. Even if it could be said that it had become woven into a governmental system, its decisions were of an arbitrative nature in private law and not, save very remotely, supported by any public law function. Therefore the IOB was not a body susceptible to judicial review. YL v Birmingham City Council [2007]: The claimant was an 84-year-old suffering from Alzheimer's disease and in respect of whom the first defendant had a duty to make arrangements for providing residential accommodation. The company subsequently sought to terminate the contract for her care and remove her from the home. The Court held that the actual provision of such care and accommodation by the private company was not an inherently public function Private care home was not exercising “functions of a public nature” in providing care and accommodation and therefore not subject to JR. (ii) Application of Legal Rules Ex p The Aga Khan [1993]: The Jockey Club was not in its origin, its history, its constitution or its membership a public body, and its powers were in no sense governmental. Furthermore, the powers which the Jockey Club exercised over those who agreed to be bound by the Rules derived from the agreement of the parties and gave rise to private rights on which effective action for private-law remedies could be based. In those circumstances the disciplinary committee's decision to disqualify the applicant's horse was not susceptible to judicial review Griffith v BCA (1989) (overruled by BCA v Pierce): BCA v Pierce (1999): The BCA has never had sole control over cricket in Barbados, and it was a domestic body and the nature of the function under challenge not being public or governmental; indeed, the BCA's very Act of incorporation had and has built-in restrictions on its powers and authority, It follows that the BCA is not amenable to judicial review. (c) Justiciability

In what circumstances would the court refuse to hear a matter on the basis that to do so would take it beyond it institutional capacity? (i)

Questions of National Security

CCSU v Minister for the Civil Service [1984]: The Minister for the Civil Service gave an instruction for the immediate variation of the terms and conditions of service of the staff with the effect that they would no longer be permitted to belong to national trade unions. There had been no consultation with the trade unions or with the staff prior to the issuing of that instruction. The Court held that executive action was not immune from judicial review merely because it was carried out in pursuance of a power derived from a common law, or prerogative, rather than a statutory source, and a minister acting under a prerogative power might, depending on its subject matter, be under the same duty to act fairly as in the case of action under a statutory power. The applicants would, apart from considerations of national security, have had a legitimate expectation. Held: Staff no longer to be permitted to belong to national trade was subject to review by courts. However, the Minister was justified on the ground of national security which outweighed the applicants’ legitimate expectation. Lord Roskill: Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of Ministers as well as others are not, I think, susceptible to judicial review because their nature and subject matter are such as not to be amendable to the judicial process. The courts are not the place wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner or Parliament dissolved on one date rather than another. (ii)

Political Questions

Re Blake (1994): First, if the decision of the GG to appoint a PM was made subject to JR, the results w...