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Judicial Review What is judicial review? In a mechanism in which the court reviews, if the decisions, acts or omission by the public bodies while exercising public function were lawful and breached a citizens rights. Mechanism to assess the decisions and ensure the accountability of executive power ...

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Judicial Review

What is judicial review? In a mechanism in which the court reviews, if the decisions, acts or omission by the public bodies while exercising public function were lawful and breached a citizens rights. Mechanism to assess the decisions and ensure the accountability of executive power within the constitution. Allows the courts to rule on the legality of how the powers of the executive are exercised. Its is not a way of making an appeal. It is a challenge to the process by which the decision was made rather than the decision, not whether decision was correct but whether powers given to body were used correctly. Which decisions are susceptible to judicial review? 1. Made by public body DATAFIN (1987)  Panel was a public body (which was established to regulate the takeover and merger of companies) – Datafin’s JR to a panel decision was allowed b/c of importance of decisions of Panel. 

When there is a dispute whether a D is a public body, courts consider the following: o It’s source of power o o o

Has to be more than just from those who exercise its powers Has to perform public duties Supported by public law sanctions

R V D ISCIPLINARY COMMITTEE OF THE JOCKEY CLUB (1993)  horse disqualified from race by committee for failing drug test – no JR because it wasn’t a public body   

Courts looked at the origin, history, constitution and membership Courts took a purposive approach, i.e. if the Jockey Club didn’t exist, would the government substitute their performance? This was affirmed in MULLINS

Key distinction between these two cases was the membership. Horseracing is arguably a niche area, which does not affect the wider public body.

WACHHMAN: the jurisdiction of the chief rabbi did not come under the preview of JR. this is because for a decision to come under the purview of JR it has to have a governmental interest; in this case the interest was spiritual or religiously motivated. Abuse of process Where claimant seeks to gain unfair advantage by depriving a public body of the judicial protection given to it by the judicial review procedure. O’Reilly Facts: • A prisoner was charged with disciplinary offences while in prison • A claim was bought in private law asserting a public law right • At the time, solicitors advised bringing claims with private actions as they were far more likely to succeed than judicial review claims The claimant had abused the process of the court by bringing a claim under private law. Judgement said there was a general rule that it would be against public policy to seek redress against ordinary legislation where the defendant would normally have remedies under judicial review in a public law action. Against public policy: Public law right cannot be asserted against public body using private law claims. JR exits for a reason to ensure that the public bodies are protected. It is abuse of power and process of the court to go around and use ordinary legislative procedure to seek redress for a matter that involves public law.

If you get it wrong and go through civil law procedure instead of JR against the public body, then you risk the entire case to be struck out. However, these stringent rules have been made more relaxed and flexible in the later cases. Rye v Sheffield CC If there is uncertainty over whether it is a public or private law issue, claimant must bring a judicial review case first (to avoid abusing process). Courts will consider whether judicial review is available, i.e. whether or not it is a public body. Difficulty here is that there are a number of cases which fit into this ‘grey area’ between public and private bodies. This wastes time and costs money, lots of unnecessary judicial review cases. Also gives courts a lot of discretionary power. o

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Courts must not get tied up in public law/private law judicial review or other arguments when remedies and results provided by both jurisdictions are similar. The guidelines set down involved: ‘not only considering the technical questions of the distinctions between public and private rights and bodies but also looking at the practical consequences of the choice of procedure which has been made. If the choice has no significant disadvantage for the parties, the public or the court, then it should not normally be regarded as constituting an abuse.’ No harm will be done to either.

Clark v University of Lincolnshire Is the university a public body even though it is acting like a private one? Was Clark abusing power? Dispute over a breach of contract. Courts held that it is not necessarily an abuse to elect to sue in contract where the public law element is not dominant and where the contractual relationship happens to contain a public law dimension. Making civil law procedure more flexable. But this doesn’t mean that the purpose of JR is over: Trim v North Dorset BC  purposely invaded planning notice for many years and he was trying to get an application for lawful use and the authority was saying no. The court said there is a need to go through the JR and you should have done it many years ago and you cannot go though the civil law procedure and you cannot go outside it and invade the process he should have tried t get the conditions lifted within the time limit.

Both planning cases, abuse of process to go outside JR to evade 2. Decision made under delegated powers Only decisions made under secondary legislation is amenable to JR (not primary e.g. Acts) 3. Must be within the rules of JR Action for JR is commenced in HC – must satisfy, e.g. existence of a case and claimant has locus standi- key case (rose theatre trust) 

31(3) OF THE SENIOR COURTS ACT 1981 (AS AMENDED BY CIVIL P ROCEDURE ACT 1997) lays out the rules of standing: o No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.  R V INLAND R EV : individual members of the Federation (which was bringing case) did not have a ‘sufficient interest’ to justify JR. in this case there is no direct financial or legal interest that the applicant has. It is none of their business about how the company is paying the tax it is a private matter.  The court identified five considerations which militated towards the court's decision that the applicants had a sufficient interest to challenge the lawfulness of this expenditure: i) The importance of vindicating the rule of law;

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ii) iii) iv) v)

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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 with regard to aid. GREENPEACE : although GP wasn’t directly affected by policy, it was an internationally recognised organisation with access to resources and expertise (better equipped to bring an action) – satisfied the test in R v Inland Revenue – quite an exceptional case

Grounds Set out in GCHQ case (CCSU V MINISTER FOR C IVIL SERVICE ) 

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Gov decided that workers at the secret Gov Communications Headquarters shouldn’t be allowed to join a trade union. Gov altered by exercising prerogative power, the terms of their employment of workers to prohibit union membership. Gov exercising prerogative power can be judicially reviewed but not when it regards national security Lords Fraser, Scarman and Diplock all believed that the issue of national security was outside the remit of the courts, with Lord Diplock writing that "it is par excellence a non-justiciable question.”

Three grounds: illegality, irrationality and procedural impropriety. 1)

Illegality Ultra Vires Body which has made decision has acted against the law (they have acted outside their authority). Doctrine of Ultra Vires (beyond their powers) contrasted with intra vires.

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A lot of this is statutory based- When a public body’s conduct is challenged as being ultra vires, the Courts focus on the statutory framework from which the body draws its authority i. AG V F ULHAM C ORP: Corporation had a statutory obligation to provide washhouses for the poor. Authority sought to open a commercial laundry for this purpose. Purpose of the power was to provide washing facilities for very poorest people. It was ultra vires because this would result in charging for the facilities which were meant for the poor. (Judgment considers express or implied authority to conduct act in question). ii. R V RICHMOND UPON T HAMES LBC (M CCARTHY & S TONE ): Council was required to consider planning applications but also introduced a system of informal consultations for which they charged £25. The consultations were helpful but had no power to levy charge. Express words or necessary implication can confer authority.

Relevant and irrelevant considerations i. R V T ALBOT P ORT COUNCIL : councillor granted tenancy ahead of waiting list. Said it was justified because she had to live with the borough she represented – needed a house to carry out her work. Held that her work was an irrelevant consideration. Should be based on need and waiting list. ii. R V HOME S ECRETARY, EX P V ENABLES a.

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Home Secretary took into account irrelevant factors (eg public petitions demanding life imprisonment) and ignored relevant factors (the convicts’ progress and development while in prison) b. He also took into account irrelevant matters into consideration, like what the public thinks is not important. c. He also failed into account factors that were relevant. Irrelevant considerations cannot be taken into account. Though taking them into account will not necessarily void a decision if they made no difference to the ultimate decision. Relevant considerations may be taken into account, but do not have to be taken into account unless the statute ‘expressly or impliedly identifies considerations require to be taken into account by the authority as a matter of legal obligation’ Generally, it is ultimately for the Courts to decide what is (ir) relevant, but it is for the decision-maker to determine the weight to attach to relevant considerations

Unauthorised delegation of powers  BARNARD V NATIONAL D OCK LABOUR BOARD :

1. National board entitled to delegate disciplinary functions to local boards. Local board unlawfully subdelegated this power to the port manager

2. Delegation of power to discipline its members to port managers by National Board. Delegation ultra 3.

vires. General rule: if Parliament has delegated power and discretion to you, you cannot delegate it further (sub-delegation – the delegate cannot sub delegate) without statutory authorisation.  Delegatus non potest delegare

4. Fettering discretion i. Authority will be acting unreasonably where it refuses to hear applications or makes certain decisions without taking individual circumstances into account by reference to a certain policy. When an authority is given discretion, it cannot bind itself as to the way in which this discretion will be exercised either by internal policies or obligations to others. Even though an authority may establish internal guidelines, it should be prepared to make exceptions on the basis of every individual case. This has changed in modern times, with the new coalition government providing an overrulement. ii. Entails considering whether an administrative body actually exercised the power it has, or whether because of some policy it has adopted, it has in effect failed to exercise its powers as required. In general terms the courts accept that it is legitimate for public authorities to formulate policies that are ‘legally relevant of [their] powers, consistent with the purpose of the enabling legislation, and not arbitrary, capricious or unjust.’ (Ewing) Ultra Vires Essay Plan Introduction The ultra vires doctrine cannot be used to question the validity of an act of Parliament, but it serves to control those who exceed the powers which an Act has given. In the GCHQ case (1984) Lord Diplock established that a decision could be challenged on the ground of “illegality” which is essentially the same as ultra vires. Generally, illegality/ultra vires is to do with the substantive issues in making the decision, rather than the actual outcome. Examples (See above FULHAM and M CCARTHY & STONE ). When the decision maker who has been expressly granted powers acts outside of the scope of that authority, as in JONES (1981) where statute explicitly stated no fees could be charged in schools for educative purposes. The school charged for music lessons and this was held as ultra vires. However, an authority may apply its powers in a way which is reasonably incidental or consequential upon those expressly conferred. If however, as in HAZELL V HAMMERSMITH AND F ULHAM COUNCIL (1992), the council carried out prospective transactions with public money in an attempt to raise capital. the power exercised isn’t reasonably incidental, it will be found ultra vires, as the powers exercised by the council were not ancillary to the councils permitted functions. Practice However, statute does not always expressly limit the exercise of power, in which case limitations are implied by the courts to give effect to the presumed parliamentary intention. RELEVANT/IRRELEVANT CONSIDERATIONS: (see R V P ORT T ALBOT above). In exercising a discretion, a decision-maker must have regard to relevant matters and disregard irrelevant matters. A power is not lawfully exercised if the decision maker takes into account irrelevant factors, or doesn’t consider relevant ones. Note: Room for analysis here – not taking relevant factors into account is a negative obligation but ultra vires generally is a positive doctrine. In r v home secretary ex parte VENABLES the Minister considered public petitions to prevent release of a prisoner (1998), which was held an irrelevant consideration and didn’t take into consideration the revelant facts like the convicts progress and development while in prison. DELEGATION OF POWERS: (see BARNARD V N ATIONAL DOCK L ABOUR B OARD above) FETTERING DISCRETION: However, even if a decision is based on relevant considerations, a decision-maker must ensure that such considerations have not fettered his discretion in the future. Essentially, a power must be exercised taking into account the merits of the case, and not simply apply fixed rigid policies. Moreover, it is unlawful to exercise a power for improper purposes. When Parliament confers a power, it does so intending that the power be used for a particular

purpose. If it is exercised for an improper purpose it will be deemed unlawful. Thus, in CONGREVE V H OME O FFICE (1976) it was held threatening to revoke a license unless a fee was paid was deemed an improper use of power (the minister didn’t have the power to revoke licence). Similarly, the behaviour of the council in WHEELER V LEICESTER CC (1985) was deemed improper and consequently ultra vires. Conclusion Overall, the ultra vires principle is a significant feature of administrative law and judicial review, and it is of course desirable that decisions which are based on substantively “bad” issues are reconsidered. Moreover, even when statute has intended to remove the process of review through “ouster” or “limitation” clauses, this has not prevented courts finding decisions ultra vires. For example, in ANISMINIC (1968) the court held that despite a finality clause, the states jurisdiction was conditional upon its proper exercise of power, and in making an error of law, the tribunal had exceeded its jurisdiction and was found ultra vires. (If there is time, talk about other grounds for Judicial Review, e.g. irrationality and procedural impropriety)

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Irrationality Often described as unreasonableness (WEDNESBURY ) ASSOCIATED PROVINCIAL PICTURE HOUSES LTD . V W EDNESBURY C ORP: authority had power to licence cinema to open on Sundays subject to whatever conditions – condition: no person under 15 years should be admitted on a Sunday. Lord Greene: “if decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can intervene” – if a reasonable authority could have come to that decision it is reasonable. Broad category. R V SEC OF S TATE (B RIND): Gov introduced a ban on the TV transmission of any speech by IRA or Sinn Fein. Not unreasonable. HALL V S HOREHAM BY SEA UDC: Hall was granted planning permission to develop land but if they construct a road for neighbours and general public. Unreasonable condition – passed on the public burden. Reasonableness Essay Plan Introduction Essentially, a court may set aside a decision for unreasonableness when the authority has come to a conclusion “so unreasonable that no reasonable authority could ever have come to it.” The scope of WEDNESBURY (1948) was reasserted in the GCHQ CASE (1985) by Lord Diplock , where it was established to be more of less the same principle as that of “irrationality.” An irrational decision was one which defied logic and no sensible person would have reached.

Requirements High threshold of proof must be overcome, i.e. no reasonable person could have reached the same decision. As argued by Lord Ackner in BRIND (1991) , a high threshold is necessary as judicial review is supervisory and not appellate and challenging a decision as irrational can be challenging the merits of the decision. Consequently, such decisions will only be struck down if they are totally unreasonable, for example, as in BACKHOUSE V L AMBETH LBC (1972). Case facts: The council was ordered to provide an overall increased value of rent to its properties It applied all of the increases to one building, which was unoccupied; making rooms £18,000/week (previously £17/week), rather than increasing everyone’s rent by 55p/week. However, on the other hand it might be said that the threshold is both too high and too varied, as the standard of reasonableness varies with the subject matter of an Act or decision. For example, in SMITH (1996) (this case was about homosexuals serving in the army) it was /the held the greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant a court should be in holding a decision to be irrational. Conversely, the court will be more willing to quash a decision that interferes with fundamental rights if there is no substantial objective justification for the interference, as in DALY (2001). Anxious scrutiny" review refers to a more stringent level of scrutiny that is applied when the subject matter of a decision by a public authority relates to human rights. The term originates from the judgment of Lord Bridge of Harwich in R. v. Secretary of State for the Home

Department, ex parte Bugdaycay (this was an immigration case: if he is sent back to Kenya then Kenya will send him to Uganda and prosecute him, and this is enough evidence that the decision to deport him back to Kenya is unreasonable. The bar is much lower ) Criticism

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Wednesbury unreasonableness has three flaws: o Inadequate and intellectually dishonest (371); o Unrealistic in that it can only catch absurdity (372); o Tautological, in that it is defined circularly (ibid)

Lord Greene’s definition of ‘unreasonableness’ is arguably paradoxical… In DALY , Lord Cooke called it “an unfortunate retrogressive decision in English administrative law” and there are those who want to replace it with a test of proportionality, as applied in ECHR jurisprudence.

The day will come when it will be more widely recognised that ASSOCIATED PROVINCIAL P ICTURE H OUSES L TD V WEDNESBURY CORPORATION [1948] 1 KB 223 was an unfortunately retrogressive decision in English administrative law, insofar as i...