Judicial Review PDF

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Summary

Judicial Review Grounds for review Illegality decision is made the wrong person (unlawful Error of law or error of fact decision maker went beyond their power: ultra vires relevant considerations or taking irrelevant considerations into account discretion Irrationality Proportionality Procedural imp...

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Judicial Review Grounds for review • Illegality -The decision is made by the wrong person (unlawful sub-delegation) -Jurisdiction: Error of law or error of fact -The decision maker went beyond their power: ultra vires -Ignoring relevant considerations or taking irrelevant considerations into account -Fettering discretion

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Irrationality Proportionality

• Procedural impropriety - Statutory procedures -Breach of natural justice i) The rule against bias ii) The right to a fair hearing iii) Duty to give reasons • Legitimate expectations

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Illegality &irrationality

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Procedural Fairness and Legitimate Expectations

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Rights-based Judicial Review

Illegality & Irrationality

Sovereignty revisited •Parliament is sovereign in the sense that it is the primary ‘law-giver.’ •But does Parliament decide applications for housing benefit, whether treatment is to be funded

under the NHS, or whether or how to provide public amenities? •Parliament conveys legal powers to a nominated person – the executive – who makes the decision. •One of the basic functions of the courts is to ensure that that the executive decision-maker abides by the law conveyed by Parliament. •But do the courts do more than this? What is their remit? •Consider the GCHQ case – the courts asserted a right to review the prerogative. This has nothing to do with Parliament as the prerogative can be exercised without parliamentary approval. •Remember also the case of Evans (’black spider memos’). Didn’t the Supreme Court give effect to the rule of law over and above parliamentary intent? •In Evans the government wanted to veto the decision of the court, to preserve the confidentiality of the letters. Parliament had given the government that power, yet it was rendered practically useless. R (Evans) v Attorney General [2015] UKSC 21 •Lord Neuberger (majority), at [52]: •‘it is a basic principle that a decision of a court is binding between the parties, and cannot be ignored or set aside by anyone, including (indeed it may fairly be said, least of all) the executive. Secondly, it is also fundamental to the rule of law that decisions and actions of the executive are, subject to necessary well established exceptions (such as declarations of war), and jealously scrutinised statutory exceptions, reviewable by the court at the suit of an interested citizen.’ Ultra vires theorists v common law theorists •What is the constitutional justification for the court’s control of the executive? •The ultra vires theorists (e.g. Wade, Elliott) argue that the proper basis for judicial review is to uphold parliamentary intent •The common law theorists (e.g. Oliver, Allan) argue that judicial review upholds the rule of law

Ridge v Baldwin [1964] AC 40 •Although Ridge was acquitted, the trial judge (in sentencing other officers who were convicted of offences) said Ridge lacked ‘professional and moral leadership’ and envisaged a future under different police leadership. •The Watch Committee, a day later, dismissed Ridge on the grounds that he had been negligent in office - citing the judge’s remarks. •Ridge brings a claim against the Watch Committee; held: •The dismissal was unlawful – null and void – as Ridge had been denied natural justice (the right to an oral hearing). •Lord Reid, at 78: •‘The question in the present case is not whether Parliament substituted a different safeguard for that afforded by natural justice, but whether in the Act of 1882 it excluded the safeguard of natural justice and put nothing in its place.’

Natural justice? •Lord Reid presents the legal issue not as a common law safeguard against parliamentary intent (to give the Watch Committee discretion to dismiss), but a common law safeguard which Parliament had not taken away. •Can we say that parliamentary intent is upheld on an assumption that Parliament does not legislate contrary to natural justice or the rule of law?

Padfield v Minister of Agriculture [1968] AC 997 •All milk produced in England & Wales had to be sold to the Milk Marketing Board. •Prices paid to milk producers were fixed – although there was a differential across 11 regions. •The south-east England region received the highest price for milk, but had argued that the differential should be increased in line with increases in the cost of fuel. •The Minister, who had a statutory power to review the workings of the Milk Marketing Board, declined to investigate the matter.

•Padfield, a farmer, sought judicial review of the decision of the minister to refuse to investigate. •Held: the minister cannot ignore a discretion conveyed to him and must consider exercising his statutory duty of investigation.

•Lord Reid (at 1031-1032): •‘The Act imposes on the Minister a responsibility whenever there is a relevant and substantial complaint that the board are acting in a manner inconsistent with the public interest… If he does not do that he is rendering nugatory a safeguard provided by the Act and depriving complainers of a remedy which I am satisfied that Parliament intended them to have.’

Upholding parliamentary Intent •Parliament presumably had its reasons when empowering the Minister to investigate. •We can therefore say that the purpose of the Act was to offer a safeguard of the public interest. •The Minister could not resile from his obligation to assess the public interest by refusing to investigate. •Of course, the Minister would be entitled to investigate the matter and conclude that no action was necessary (which is what happened)… See: Hansard HC Deb 31 March 1969 vol 781 cc46-47W

Anisminic v Foreign Compensation Commission [1969] 2 AC 147 •After the Suez Crisis of 1956, a compensation fund was established to make payments to companies who lost property as a result of the conflict and/or seizure of property. •The relevant Act of Parliament said that ‘the determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.’ •Anisminic (a company) was refused compensation. They sought judicial review of that decision. •Two issues arose: •Did the ‘ouster clause’ preclude judicial review? •If not, could the court interfere with the Commission’s ‘jurisdiction’ (to decide claims for compensation)? •The House of Lords said the ‘ouster clause’ did not preclude judicial review because an unlawful determination would not be a determination at all. •And the court would be entitled to interfere where the determination is made in error of law (the Commission had misconstrued the statute).

Frustrating the Parliament’s intent •Anisminic seems to challenge Parliament’s intent. How is this possible? •Separation of powers – had Parliament exceeded its remit in precluding the function of the courts in judicial review? •How do we reconcile Anisminic – and also Evans – with parliamentary sovereignty? Both seem to uphold constitutional principles other than parliamentary sovereignty, providing good precedents for our ‘common law theorists.’

‘Bi-polar sovereignty’

•The ’Crown in Parliament’ – an executive accountable to Parliament •The ‘Crown in its Courts’ – an executive accountable to the courts •See CJS Knight (reading list) • •The court’s role in holding the executive to account might swing between two ‘poles’ or ‘sovereignties’ – the need to uphold Parliament’s intent, and the need to assume a function that facilitates a constitution more broadly conceived (natural justice, rule of law, separation of powers).

Judicial Review Concept -key cases

•Ridge – a statutory power to appoint or dismiss a police constable does not replace common law principles of natural justice. •Padfield – a statutory power to assess the public interest is a statutory obligation (enforced by the courts) to investigate substantial and legitimate complaints. •Anisminic – a statutory exclusion preventing the courts from calling into question a decision of a statutory body does not, as a matter of law, preclude judicial review if the decision is made upon an erroneous understanding of the law.

R v Somerset CC, ex parte Fewings [1995] 1 WLR 1037 S.120 of the Local Government Act allows councils to acquire and maintain land for ‘the benefit, improvement or development of their area.’ The council decided to ban deer hunting on the land because hunting is unnecessarily cruel.

•In judicial review proceedings, the council’s decision to ban hunting was quashed. •This was because the council failed to take into account what would be for the ‘benefit, improvement or development of their area’ and were motivated instead by ethical or moral considerations relating to hunting. Sir Thomas Bingham MR: ‘To the famous question asked by the owner of the vineyard (‘Is it not lawful for me to do what I will with mine own?’ Matthew, 20:15) the modern answer would be clear: Yes, subject to such regulatory and other constraints the law imposes…’ ‘But if the same question were posed by a local authority the answer would be different. It would be: No, it is not lawful for you to do anything save what the law expressly or impliedly authorises. You enjoy no unfettered discretions. There are legal limits to every power you have.’ (at 1042).

Illegality as a ground for judicial review •The assumption in Fewings is that executive bodies are not free to act as they like. They are only free to act within the powers conferred to them. •This ‘going beyond powers’ (ultra vires) might be present if: •Legally irrelevant factors informed the decision, to the cost of legally relevant factors – Fewings •The decision-maker got the law wrong – Anisminic •The decision-maker did not give effect to Parliament’s intent - Padfield •Next week we will look at the pursuit of improper motives (also illegality), and decisions that are grossly unreasonable (irrationality). Illegality Lord Diplock in GCHQ (at 410): ‘By ‘illegality’ as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.’

4 Approaches to illegality Jurisdictional excess: has the public body acted outside its jurisdiction? Anisminic Legal irrelevance: has the public body taken into account irrelevant considerations? Fewings Improper motive: has the public body frustrated the legally defined purpose? WDM Error of law: has the public body got the law wrong? Anisminic, compare: Puhlhofer R v Foreign Secretary, ex parte World Development Movement [1995], aka WDM: •Acting under powers conferred by the Overseas Development and Cooperation Act 1980, the Foreign Secretary sought to provide £195m in aid to the Malaysian Government to support the building of a hydroelectric dam.

•By any sensible economic assessment (including an official assessment carried out by an auditor), the dam was a “bad buy,” because electricity generation by the dam would be so expensive it would actually lead to increased energy costs for Malaysians.

The World Development Movement challenged the decision to award aid to the dam-building project on the grounds that the money could be better spent elsewhere. The insistence of the UK Government’s support of the project was no doubt linked to developing diplomatic relations with Malaysia (who were, at the time, also entering into arms contracts with UK firms). -The claim succeeded. The court sought to uphold the purpose of the Act—which was to provide aid to the world’s poor (see Padfield on a similar point). •The grant of international aid requires the consideration of political, economic and diplomatic matters. •The Administrative Court recognised that these matters are for the Foreign Secretary to take into account as he sees fit—but the court could not tolerate such a ‘bad buy’ that runs counter to the statutory purpose of the 1980 Act to provide aid for the world’s poor. R v Hillingdon LBC, ex parte Puhlhofer [1986] AC 484 •A family of four were living in one room of a guest house where only breakfast was provided, with no cooking or laundry facilities. •The family applied for accommodation from the local authority under the Housing (Homeless Persons) Act 1977. •The local authority refused to provide it as they did not consider the family to be ‘homeless’ under the terms of the Act, as they were currently in accommodation. •In judicial review proceedings, the family were successful and were granted relief to the effect that the local authority were under a duty to provide accommodation appropriate to the needs of the family. •However, on appeal to the CA (and affirmed by HL), the appeal was allowed.

•Whether the family were enjoying ‘accommodation’ under the terms of the Act was a question of fact—and Parliament, in enacting the 1977 Act, entrusted the local authority with that determination of fact. •It was not open to the Administrative Court to substitute its assessment as to the facts for those of the local authority. R (A) v Croydon LBC [2009] UKSC 8

•Two claimants from Afghanistan and Libya sought asylum in the UK. •Both asserted that they were under the age of 18, but did not have the necessary paperwork to prove it. •The local authorities (Croydon and Lambeth) deemed them to be 18 years or over, thus relinquishing them of certain statutory responsibilities to provide accommodation under the Children Act 1989. •A doctor assessed the claimants to be 15 and 17 years old—but both local authorities refused to accept this and relied instead on their own assessment as to their age. •In judicial review proceedings, the Administrative Court rejected the claim on the preliminary issue of whether the court was entitled to review the authorities’ determination of fact (the age of the claimants). •On appeal to the CA, the decision of the Administrative Court was affirmed. •On appeal to the HL, the claimants’ appeal was allowed. •Although the determination of the claimants’ ages were questions of fact, they were facts precedent to the local authorities’ jurisdiction and were therefore ultimately subject to scrutiny by the Administrative Court in judicial review. How can we distinguish this case from Puhlhofer? •In R (A), the determination of fact was also a jurisdictional question—it went to the very question of whether the Children Act applied. •It was also a determination which could be subject to objective determination by expert opinion. •In these cases, the Administrative Court may ultimately correct an error of fact made by the public body.

Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 ‘Once [the ultra vires] question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, the have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere.’ (Lord Greene MR at 234).

•The local authority for Wednesbury had the statutory power to licence cinemas including for the showing of films on a Sunday ‘subject to such conditions as the authority think fit to impose.’ •The local authority granted a licence to the claimant to show films on a Sunday but required that no child under the age of 15 can be admitted on a Sunday—with or without an adult.

Irrationality in the GCHQ case Lord Diplock’s definition (at 410): ‘By irrationality I mean what can by now be succinctly referred to as “Wednesbury unreasonableness.” It applies to a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’

R v Secretary of State for the Environment, ex parte Nottinghamshire County Council [1986] AC 240 •The Minister produced a report on local authority funding, which was approved by the House of Commons in a vote (not an Act of Parliament). •The report was implemented, allowing for central government contributions to local authorities to be determined with reference to the financial prudence of the local authority in the previous financial years.

The judicial review of the report ultimately failed: ‘I can understand that there may well arise a justiciable issue… but I cannot accept that it is constitutionally appropriate, save in very exceptional circumstances, for the courts to intervene on the ground of ‘unreasonableness’ to quash guidance framed by the Secretary of State and by necessary implication approved by the House of Commons.’ –per Lord Scarman at 247.

Deference •Government policy—particularly where it has been subject to parliamentary scrutiny—will rarely give rise to interference by the courts. •This deference is ‘due deference’ because Parliament is the constitutionally appropriate body to scrutinise central government policy. •In Wednesbury contexts this is sometimes referred to as ‘super-Wednesbury’ review or ‘light touch’ review.

R (Daly) v Secretary of State for the Home Department [2001] UKHL 26 •The claimant was a prisoner who kept confidential and legally privileged correspondence in his prison cell. •Prison regulations required that prisoners be absent whenever routine searches of prison cells were conducted by prison officers. •The claimant objected on the ground that this would compromise the privilege of his correspondence and make such eletters available for the prison officers to see. •The High Court refused ‘leave’ or ‘permission’ to hear the case in judicial review. •The Court of Appeal (on appeal against the refusal) gave permission to hear the case in full, heard the case itself, but dismissed the application. •On appeal to the House of Lords, the claimant won.

•This is substantive Wednesbury review (not merely illegality review understood as ultra vires etc.), because the Secretary of State clearly has the discretion to create prison rules such as these. •The ‘substance’ of the decision was under scrutiny. It was deemed unlawful on two grounds: •it was, on common law principles (irrationality) flawed; •it was a disproportionate exercise of discretion on Human Rights Act grounds. •On the first ground (which concerns us now), can we say that the Secretary of State acted irrationally in the Wednesbury sense? •The court said that the common law right to confidentiality of legally privileged correspondences meant that the court would ‘anxiously scrutinise’ the decision.

Anxious Scruntiny •A common law protected ‘constitutional right’ needs to be engaged. •Where it is, the court will insist that the public body provides justifications for the infringement of that right. •How different is this to ‘standard’ Wednesbury review? •Significantly. The court turns to D and requests a justification – such a culture is (outside of HRA contexts) largely unknown to public law. If D cannot provide adequate justifications for the infringement of the common law protected right, the decision is unlawful on Wednesbury grounds.

Irrationality

‘Super-Wednesbury’ (bordering on deference) Does the context in which decisions have been made induce ‘due deference’ to the decisionmaker? Ex parte Notts CC ‘Standard Wednesbury’ Has the public body acted so unreasonably that no public body acting reasonably could have come to that decision? Wednesbury, Bradley ‘Anxious Scrutiny Wednesbury’ Are common law constitutional rights engaged? If yes, does D have justifications for infringing upon that right? Daly

Procedural Fairness and Legitimate Expectations Procedure •Public bodies may have to follow certain procedures when making decisions or determinations. •These procedural requirements may be required by: •statute; •the common law; •Article 6 ECHR