Grounds FOR JR - problem question PDF

Preview

Summary

BIRMINGHAM LAW SCHOOLPUBLIC LAW MODULEGUIDANCE FOR SEMINAR7[GROUNDS FOR JUDICIAL REVIEW]Public LawSeminar 7GROUNDS FOR JUDICIAL REVIEW IIABUSE OF POWERThe problem scenarioThe [fictional] Inner City Regeneration Act provides for the establishment of the Inner City Regeneration Fund, to be administere...

Description

BIRMINGHAM LAW SCHOOL PUBLIC LAW MODULE

GUIDANCE FOR SEMINAR 7 [GROUNDS FOR JUDICIAL REVIEW]

1

Public Law Seminar 7 GROUNDS FOR JUDICIAL REVIEW II

ABUSE OF POWER

The problem scenario The [fictional] Inner City Regeneration Act provides for the establishment of the Inner City Regeneration Fund, to be administered by a new body called the Authority for Regeneration of Inner Cities [ARIC]. Section 1 of the Act provides that in considering applications for grants ARIC should seek “to promote initiatives designed to address problems presented to inner cities by homeless persons”. The Act does not provide any mechanism for appealing against ARIC’s decisions. ARIC refused an application for a grant made by Rummidge Society for the Homeless [RSFH] to replace the heating system in their shelter for homeless persons, located just off Old Street in Rummidge Inner City. In their application the Society had indicated that without this financial assistance the shelter would probably have to close. This would mean that there would be no overnight accommodation for homeless persons in the Inner City, which could cause problems for the police and others. Explaining its decision to refuse grant support, ARIC stated that its approach was to seek to dissuade homeless persons from establishing themselves in inner city areas in the first place and to minimise their impact on the enjoyment of inner cities by others. Advise the Rummidge Society for the Homeless as to the grounds they may have for challenging this decision by way of judicial review and the likelihood of the success of any such challenge.

Guidance The problem set out above can be approached from the perspective that it raises (1) improper purposes issues; (2) Relevant/irrelevant considerations issues; and (3) Wednesbury unreasonableness issues.

2

As regards improper purposes and relevant/irrelevant considerations, these grounds often overlap in the sense that it is often possible to frame an argument in respect of the same factual issues in the problem either in terms of improper purpose or relevant/irrelevant considerations. Whatever way one approaches it, however, students are advised to deal with each ground as a distinct entity. That is to say if they raise the issue of exercising a power for an improper purpose, they should deal with it in full, arriving at a conclusion, before moving on to dealing with it in terms of relevant/irrelevant considerations. They should not jump between one and the other, and back again. However, having said that, as noted on the lecture handout, it is sensible to connect some manifestations of wednesbury unreasonableness with relevant considerations grounds e.g. if the student is discussing some issue concerning the weight attached to consids, they should deal with wednesbury there in that context….which might include discussing the high threshold which is required to meet the wednesbury standard [in principle at least!] as well, perhaps, if relevant, issues associated with intensity of review. As for the individual grounds of review which might arise here, whilst not meant in any sense to be definitive, below I set out some pointers in an attempt to assist you.

Improper purposes 1. The core issue raised by the problem under this head is whether ARIC is pursuing an improper purpose by seeking to dissuade homeless persons from establishing themselves in inner city areas. 2. In the first place this involves considering whether the express statutory provision which enjoins them to promote initiatives designed to address problems presented to inner cities by homeless persons would cover/authorise an approach which sought to banish homeless people from the inner city altogether. 3. It is important to point specifically to the improper purpose which might arguably be being pursued, and students should also expressly refer to the statutory provision whose interpretation would form the focus of the dispute here.

3

4. In the instance case the scenario has been set up so that the answer to this question is far from obvious. This is not, for instance, a straight forward situation like Sydney v Campell or ex part Ealing LBC, cases where it was pretty obvious that the purpose motivating the decision maker’s action/decision was not covered by the relevant statutory provisions. Here there is very real room for debate as to whether the impugned purpose might be permitted by the statutory provision. On one reading, the statute directs ARIC to achieve certain ends, and leaves the means by which it achieves those ends up to its judgement [subject of course to wednesbury]. The situation is analogous to the tricky scenarios presented in Fewings and Wheeler, where it seems likely that there will be considerable scope for judicial disagreement about the matter. On the other hand, there certainly is scope to argue that the pursuit of the purpose of dissuading homeless persons from the inner city, means that in the instance case, ARIC is pursuing a purpose which is clearly contrary to the policy and objects of the Act, a la Padfield, since it means that for the time being at least, the people currently using the shelter will be thrown out into the street, something which in the instance case is likely to increase, rather than decrease problems presented by homeless persons to Rummidge inner city. 5. At any rate, some discussion of these difficult interpretation issues is worthwhile, and the general learning points for students are that (i) they must engage with them at some level; (ii) they should consider different perspectives/views on the provision; and (iii) they should always expect the provision not be straight forward and to be capable of being looked at in a number of different ways. 6. Leaving aside questions of interpretation, the next issue which might be raised for discussion arises from the point which Lord Bingham made in fewings about whether the decision maker had connected their motivation with the statutory purpose. He ruled, that even if in the abstract the purpose which motivated the decision maker was capable of being encompassed by express or implied statutory purposes, this is not of itself sufficient. Rather the decision maker must make the connection in the instance case. Thus, where in that case the council prohibited deer hunting, and the relevant statutory provision required that the land be managed for the benefit of the area, Lord Bingham noted that there was a categorical difference between saying “I strongly disapprove of X” and saying “it is for the benefit of

4

the area that X should be prohibited.”” By analogy then, there is some room here to discuss the possibility of arguing that ARIC were motivated by their desire to remove homeless people from the city, as distinct from connecting that desire with their obligation to address obligations presented to inner cities by homeless persons. 7. Moving on, the final set of issues which are open for discussion under this head, concerns mixed purposes. For instance, it is possible that ARIC may argue that even if seeking to exclude get rid of homeless people from the inner city is an improper purpose, they are nonetheless also pursuing the proper purpose by doing so, since their exclusion will necessarily address the problems presented by homeless persons to inner cities. It is important that students identify the lawful and unlawful purposes in the instance case, for the purposes of discussion. 8.. The legal issue then is how one deals with such situations, and more specifically what are the relevant tests, and how these might affect the outcome here. Students will be expected to discuss and apply the “true and dominant purpose test” as indicated in the Westminister City Council case – as well as the more exacting test – “has the unlawful purpose substantially influenced the actor’s conduct”, as illustrated in ex part shell . Considerations

1. The starting point for dealing with issues for discussion under this head is that students must explain which irrelevant considerations ARIC may have had regard to and/or which relevant considerations ARIC may have failed to have had regard, such as to render the decision unlawful. As with purposes above, they must particularise the matters by pointing to specific aspects of the scenario. 2. As for irrelevant considerations, this is where there is a clear overlap between the purposes points, except that here the point being raised would be that having regard to their desire to exclude homeless persons from the inner city involves having regard to an irrelevant consideration. So this just brings one back to discussion of section 1 of the fictional statute and/or the objects and purposes of the act more generally. 3. It is possible within this context that it might be argued that their desire to exclude homeless people from the inner

5

city might be regarded as a discretionary relevant consideration – which would have to be explained using case law examples such as luby v Newcastle under lyme corp. Students would be expected to point out that as far as such discretionary considerations are concerned, it remains possible that having regard to them in the current situation might nonetheless be considered unlawful on the grounds of wednesbury unreasonableness, which might be discussed later on. 4. As for relevant considerations to which regard should have been had, but may have been ignored, here the prime candidate seems to be the arguments by RSFH that without financial assistance the shelter would probably have to close. This would mean that there would be no overnight accommodation for homeless persons in the Inner City, which could cause problems for the police and others. Once again to some extent this is a reprise of the purposes point. 5. However a more sophisticated answer would be able to setup this point as a discussion concerning the weight to be attached to considerations, and as the Tesco case indicates this is a matter for the decision maker. Thus, ARIC may argue that they have had regard to this matter, but decided that it should not influence their decision bearing in mind their desire to dissuade homeless persons from coming into the inner city at all. In the Tesco stores case the court said that a decision maker may rationally decide that a particular consideration should not affect the outcome of a decision, and that this was perfectly lawful, so long as the decision not to let it do so was rational. 5. This might therefore be an appropriate point to discuss whether it was wednesbury unreasonable in the instance case not to let it do so, given the problems which closing down the shelter may well cause. 6. Indeed even if their desire to dissuade homeless persons from being in the inner city is regarded as a relevant/discretionary relevant consideration, it is possible to argue here that the approach taken to the relative importance of that consideration in the current context, to the exclusion of the consideration of the impact which the closure of the shelter might have, involves a manifestly disproportionate balancing of relevant considerations in a manner similar to the rafferty case such as render the decision wednesbury unreasonable. Once again this would require students to properly consider the high threshold which the wednesbury test involves and whether in the

6

instance case, any arguments might be made concerning intensity of review, such as might perhaps have an effect on the outcome. 7. There are in fact a range of different ways in which the above points may be argued or configured; however the basic points to note are a. There are a range of arguments concerning whether their desire to exclude homeless people from the city should be regarded as an irrelevant/relevant/discretionary relevant consideration. b. There are a range of points concerning the fact that the impact of closure seems likely to be considered to be a relevant consideration, bearing in mind what section 1 of the Act says. c. There are a range of points about the interrelationship of these considerations even if they are both in one way or another considered to be relevant considerations. d. Most notably in that context, there is the question of the weight attached to one consideration as distinct from the other – which is subject to a general rule – and then the exception. e. As regards the exception, this raises the wednesbury unreasonableness ground – which in turn will require the student properly to explore the limitations of this ground of review from the claimant’s point of view. Wednesbury unreasonableness in the strong sense We have already mentioned wednesbury a number of times above. The instances referred to above are sometimes referred to as Wednesbury unreasonableness in the “weak sense” – since they focus on irrationality in terms of inputs into a decision, as distinct from the decision itself. Nonetheless it might be possible simply to argue that this decision is irrational in the strong sense because it is illogical/perverse since it will just cause more problems in the inner city, rather than fewer problems. It is hard to see how this argument can be usefully advanced beyond that, other than returning to questions of considerations and/or statutory purposes. For that reason, it is better to link wednesbury arguments to manifestations of other grounds of review, rather than using it in the strong freestanding sense.

7

8...