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Judicial Review Final Review Final Rev (Summer Exams review is one method of holding the government (public bodies performing public functions) accountable and protect individuals from their decisions and actions. It is the process of taking a government to court in front of a judge to contest again...

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Judicial Review Final Notes Judicial Review Final Rev (Summer Exams 18)

Judicial review is one method of holding the government (public bodies/private bodies performing public functions) accountable and protect individuals from their decisions and actions. It is the process of taking a body of government to court in front of a judge to contest against a decision or action made against either an individual or class.

Although, the courts will only look at the legal issues of the decision rather than the actual decision itself. In essence, the courts will not declare a decision to be right or wrong, but rather whether the decision was made in a legally correct fashion.

Jurisprudence is complex and does not lend itself easy to classification. However in the GCHQ case, Lord Diplock had simplified and classified the grounds to administrative action being subject to judicial review into three categories; illegality, procedural impropriety and abuse of discretion. Lord Diplock proceeds to add that further grounds may be added as the case law develops.

1) Does a lawful power exist? 2) Where the correct procedures used? 3) Has the discretion given to the PA been exercised properly?

(Remember that on the appeal/review distinction, absent human rights concerns, courts are not supposed to intervene on the merits of the issue.)

A - Illegality - Does the public body have the power to take the decision? (Illegality for short hand) - 8 cases

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“The decision maker must understand correctly the law that regulated his decision-making power and must give effect to it” Lord Diplock - GCHQ

Cases where decision-makers have misunderstood or misinterpreted the legal rules that govern the public body’s powers

-Error of Law 1) Laker Airways v Dept of Trade [1977] -The government had adopted a policy through the correct procedure where no other airline could do long haul flights but BA without BA’s consent and directed the Civil Aviation Authority accordingly. However, under the Civil Aviation Act 1971, the government was only allowed to provide guidance and assistance to reaching a decision but nothing direct in that nature. That action was considered by the courts to be ultra vires. 2) R (National Aids Trust) v National Health Service [NHS England] (2016) -The NHS had stated that they did not have the power to commission or fund a HIV preventive drug and it should instead by funded by local authorities. However, the national aids trust had referred to the statute and on the contrary claimed the NHS had all the powers necessary to commission the drug. The case ended up being heard in the High Courts and Court of Appeal both time finding for the National Aids Trust. 3) R (The Public Law Project) v Lord Chancellor [2016] -The government had wanted to cut costs and decided to limit the availability of legal aid by making applicants go through a residency test. This was done by the Lord Chancellor, who was equipped with Henry the 8th powers which he could repeal primary legislation with secondary legislation. However, under the Legal Aid, Sentencing and Punishment Act 2012, this was seen to be ultra vires as he had the powers to issue regulations to the service involved but no to reduce the class of individuals who were entitled to receive the service. 4) R (Unison) v Lord Chancellor [2017] -Claimants were able to bring employment cases to the employment appeal tribunals without paying fees until the enactment of the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013. The government’s primary aim for this act was to shift the financial burden of the ser2

vices from the general tax payers to the users of the service. It’s secondary aim was to encourage earlier settlement. Unison had brought a claim on the grounds of illegality and the supreme court found for the claimants stating the fee order was unlawful as it effectively prevents access to justice under domestic law.

-Are all errors of law reviewable? 5) Anisminic v FCC [1969] -Due to the Suez Canal being nationalised by the Egyptian government, mining companies were forced to move out of the Suez Canal and the Egyptian government had sold the mining properties to TEDO whom then sold it Anisminic. The Egyptian government had also handed the British government had a sum of money as compensation. Under the foreign compensation act 1950, the tribunal had disallowed Anisminc to receive compensation claiming it was a successor to a Egyptian national company and to receive compensation, the company must have been a British National. There was a separate issue on the whether the courts had the jurisdiction to intervene on this error of law made by the tribunal. The House of Lords had declared that the ouster clause set out in the act that prevented the courts from intervening was a invalid and the tribunal had also misinterpreted the statute in relation to the successor of the title of a company allowing Anismininc to receive their share of the compensation. Jurisdiction is done away with - The courts are allowed to intervene on all legal errors. 6) R v Hull University Visitor ex p. Page [1993] -A university academic was dismissed from his teaching position from university. The contract Page had with the university was that he would either be dismissed with 3 months notice or with good reason. The court made clear this was a question of construction of contractual documents and had no relevance in the court of public law. This was not strictly a legal matter but rather a legal one. 7) R (Cart) v Upper Tribunal [2012] -The Tribunals Courts and Enforcement Act 2007 had introduced a new unified dual layered tribunal system, consisting of a lower and upper tribunal. Cart had been unfairly treated in relation to child maintenance payments and unsuccessfully appealed to the lower tribunal. Wishing to make a second appeal to the upper tribunal, it was rejected. He had taken the 3

rejection of the upper tribunal to judicial review and it was found against him that the upper tribunal could only be placed under JR in the grossly improbable event that the upper tribunal were to embark on a case that was frankly beyond the four corners of its statutory limits. The upper tribunal would not be placed under JR where it was acting within the field ascribed to it, the courts perpetrate a legal mistake. - Law LJ Supreme Court. Courts don’t want to undermine appeal structures.

-Error of Fact - The fact/law distinction - the courts dont want to intervene on factual issues - not a fact finding facility 8) E v Secretary of State for the Home Department [2004] -An error of fact can be judicially reviewed, but it has to meet 4 cumulative decision 1) Mistake as to an existing fact - (not a prediction) 4) Must be uncontentious fact - (it’s settled, both parties agree on the fact) 5) The mistake of the fact cannot be the applicants fault 6) Mistake must have played a material part (not necessarily decisive) in the tribunals reasoning

It is time to accept that a mistake of fact gives rise to unfairness is a separate head of challenge in an appeal on a point of law.

B - Has the public body adhered to the proper procedure? (“procedural impropriety”) “Procedure impropriety” ground refers to “failure to observe basic rules of natural justice, failure to act with procedural fairness towards the person who will be affected by the decision and also failure to observe procedural

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rules expressly laid down in the legislation even where such failure does not involve any denial of natural justice.” - Lord Diplock - GCHQ

i) Consultation - 11 cases -There are no requirements to consult before introducing primary legislation or, if consultation takes place, any duty to respond to comments or take them into account. HOWEVER, statute may specify that certain people must be consulted or it may give the public body discretion to consult, for example, “interested parties”.

1) Agriculture Training Board v Aylesbury Mushrooms [1972]

- The Secretary of State proposed new regulations for the training of agriculture workers. A letter was sent inviting the representatives of the mushroom growing industry but had failed to been received. The regulations was still made anyways and the mushroom growers argued that it will not be bound to the the regulation as they were not consulted. It was held that the defendants could not be bound to the regulation as they were not consulted. A letter or simple notice would not suffice to be considered as consultation and the secretary of state should not have proceeded with the regulation without consulting the industry first. 2) R v Liverpool Corp. ex p. Liverpool Taxi Fleet [1972]

- The local council had increased the number of hackney cabs in the city. At a public meeting, the chairman had given a public undertaking that there would not be an increase in the number of taxis until the proposed legislation had passed parliament. It was held that on account of this public representation, the appellants were justifiably aggrieved. Lord Denning; even in the absence of this public undertaking, the applicants have the right to be consulted. They must act fairly, it would be duty to consult and hear the taxicab’s owners association before making a decision adverse to their interest. 3) GCHQ [1985]

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- Margret Thatcher led government ruled that any employee of the Government Communications Headquarters would be prohibited from joining any trade union. In previous amendments to employment contracts in GCHQ, consultation would be performed. However not in this instance. The High Court held that since there was no consultation, the decision to bar employees from joining a trade union was deemed invalid. In the Court of Appeal - it was held that judicial review could not be used to challenge prerogative powers and the determination of national security issues is an executive function and would be inappropriate for the courts to intervene. The House of Lords held - prerogative powers can be placed under JR. However, there are certain circumstances as such, where the power involved concerns national security. There is also a public law right to legitimate expectation which a past practice can give rise to - however - not when national security is a primary consideration.

The claimant’s argument will be stronger if the impact of past practice is pressing or focused; (Past practice) - common law requirement (statute might not say it but it’ll be enforced by common law) 4) R (on the application of Bhatt Murphy) v Independent Assessor [2008]

- The claimants were appealing the decision made to amend the scheme of compensation for victims of miscarriages of justice. Law LJ emphasised the special nature of the promise or practice was necessary to give rise to a legitimate expectation. 5) Harrow Community Support v Secretary of State for Defence [2012] -The government had placed an anti-aircraft missile on the roof of the Harrow Tower Block, and with the reason of national security, this was considered to be lawful even with the Art 8 of the ECHR. 6) R (on the application of the Plantagenet Alliance) v Secretary of State for Justice [2014] -The University of Leicester were authorised to initiate the recovery of the King Richard the III’s remains which was found in a council carpark. How-

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ever, decedents of King Richard the III would have wanted him to be buried in York instead and claimed that the respondents failed to consult respectively. The court set out the principles in common law: 1) There is no general duty to consult at common law. The government of the country would grind to a halt if every decisionmaker were required to consult everyone who might be affected by the decision made. 2) There are four circumstances where there would be a duty to consult: a. Statutory requirement b. Promise to consult c. Established practice of consultation d. In exceptional circumstances - a failure to consult would lead to conspicuous unfairness.* Absent to these factors there would be no duty to consult. - R (Chesire East Borough Council) v Secretary of State for Environment, Food and Rural Areas [2011] 3) The common law will be slow to require a public body to engage in consultation where there has been no assurance, either of consultation (procedural expectation) or as to the continuance of a policy to consult (substantive expectation) What is required to make consultation meaningful? 7) Lee v Department for Education for Science [1968] - a sufficient amount of time must be given for a consultation - 12 weeks. (3-4 days is not enough)

The view of the public must take be taken into account - there is no requirement to explain against an argument or amend its views. 8) R v Brent London Borough ex p. Gunning [1985] -The Gunning Principle a. Consultation must take place the proposal is still at a formative stage;

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e. Sufficient reasons must be put forward for the proposal to allow for intelligent consideration and response f.

Adequate time must be given for consideration and response

g. The product of consultation must be conscientiously taken into account. 9) R (Moseley) v Haringey LBC [2014] - a requirement to consult depends on the context - Didnt want to be locked into a framework - Involved council tax to be done locally instead of centrally. Haringey didnt give any options or alternative options and this is what we’re going to do and tell us what you think about it - for the courts to consider; do public bodies have to present alternative options during the consultation? which the courts say yes - yes you have to show the options and how you can implement the themes in other ways. 10) R (Rusal) v London Metal Exchange [2014] - The courts said you don’t have to give alternatives because there are companies involved - companies are expected to know the alternatives and different possibilities where as in Mosely, it was disadvantaged people - haven’t got the time to know the different possibilities and depend on the circumstances. 11) R v Secretary of State for the Environment, ex. p. AMA - Failure to consult over housing benefit - you’ve changed the housing benefit regulation was a new regulation soon coming anyway - it was unlawful but it wouldn’t have made a difference.

The public authority is still able to take the same decision - however, they are required to take the decision in a procedurally fair manner.

ii) Natural Justice and the right to a fair hearing - 6 cases Audi alteram partem - to hear the other side Nemo judex in causa sua - no one may be a judge in their own case Article 6 ECHR includes the right to a fair trial 1) Cooper v Wandsworth Board of Works

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- The C had built a house without seeking the permission of the local authority and so the local authority proceeded to demolish the property without hearing the side of the C. The courts found for the C and should have given the C a chance to put forward his case. Byles J: “Although there are no positive words requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature.” 2) Ridge v Baldwin

- A chief constable was caught up in the middle of corruption. Although he was not found guilty of corruption, the judges and some critical orbiter and thus instigating his employers to dismiss the chief constable. The former chief constable then takes the Brighton Watch Committee to judicial review, however they argue that the rules of natural justice could not be applied to administrative issues under the Donoughmore Committee. The courts found for the C stating that rules of natural justice could be applied in administrative issues overturning the principle in the Donoughmore Committee. 3) Re HK

- A man returns from Pakistan with a 16 year old whom is not allowed into the country because the immigration officer does not believe that he is under 16 years of age. This decision was taken to court under judicial review and the courts found for the C; ruling that the fact of whether this decision was a judicial decision or not is irrelevant - if someone’s rights have been affected, it has violated the rules of natural justice. The courts start using a different language; drifting into the realm of fairness and duty to act fairly which is a lot broader than natural justice. 4) R v Secretary of State for the Home Department ex parte Doody and others

- The Secretary of State decides whether people sentenced to life should be released after serving their minimum sentence; however he had not provided reasons for his decision to refuse release to Doody and others. The courts held that what fairness requires in any particular case is ‘essentially an intuitive judgement’, changes over time, and the requirements are flexible and closely conditioned by the legal and administrative context.

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Lord Mustiill proceeded to establish 6 elements of fairness in judicial review decisions: i.

An assumption when an act confers power, the power will be exercised fairly

ii. The standard of fairness is subject to change dependent to context and time iii. The principle of fairness is not identical in every situation. Completely dependent of the context of the decision iv. An essential feature of context is the statute that the power derives from, with regard to its language and the shape of the legal and administrative system within which the decision is taken. v. Fairness will require a person who made be adversely affected to have an opportunity to make representations on his behalf either before the decision is taken with a view to producing a favourable result - or after it is taken with a view to procuring its modification or both. vi. In the interest of fairness, it will be very often that the applicant will require that he is informed of the gist of the case which he has to answer.

5) R (L) v West London Mental Health Trust

- A patient attempts to seriously injure someone in the mental facility he was housed in and a panel comes together quickly to decide to send him to a high security facility without the patient’s solicitor, any form of representation, any information, or any way of procedure. The metal facility argued that the presence of the patients solicitors would not make a difference as this was a panel to discuss a medical situation. The courts found against the mental facility stating that a procedure must be put in place. 6) R (Bourgass) v Secretary of State for Justice - A decision was made to lock a number of prisoners in solitary for 72 hours and a second decision was made to keep them in solitary. The courts allowed the first instance of solitary - this shows the courts taking the public body’s considerations into account however. the second instance of solitary required procedural fairness.

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What is the content of a fair hearing?

“There are no words which are of universal application to every kind of inquiry and every kind of domestic tribunal - the requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter which is being dealt with and so forth.” - Tucker LJ, Russell v Duke of Norfolk [1949].

Individual affected must be given notice of the charge. (i.e. information of the case against her/him) The rule of law requires that a constitutional state must accord to individuals the right to know of a description before their rights can be adversely affected. Lord Steyn: “As Kafka describes, a state where the rights of the individuals are overridden by hole in the corner decisions or knocks on doors in the early hours. That is not out system. I accept, of course, that there must be exceptions to this approach, notably in the criminal field, e.g. arrests and search warrants, where notification is not possible. But it is difficult to vi...