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Public Law Lecture 24/10/17 – Week 6 2 hour lecture

Who can raise an action to judicial review?  Have to first show that you are the sort of person who has standing to raise an action for judicial review and that the body or decision being challenged falls within the scope of judicial review. First hour – scope of judicial review, who can be challenged Second hour – standing, who has the right to raise judicial review proceedings

Broadly speaking, the grounds of judicial review are applied in the same way in Scotland as in England. That is not the case with regards to standing, scope or remedies. You might be able to argue the same things but in Scotland and England, there will be different people who can argue them etc.

Scope of judicial review Position in England starts with civil procedure rules part 54. These say that judicial review in England and wales is available as a remedy against bodies exercising public functions. i.e. judicial review is a public law remedy, not available against private bodies. Starting point is to say that the English courts have tended to interpret what constitutes a public function quite narrowly. There are certain decisions which are clearly public functions e.g. decisions made by ministers. As the lines become blurred, the courts tend not to expand the scope of review very far e.g. in England and wales, decisions made by the governor of a private school does not fall within the scope of judicial review. On the surface, education – this would seem like a public function but it is exercised by a private body. The BBC has in certain cases been held to be out with the scope of judicial review, same with the football association. In those cases where there is a blurred line and it could be argued either way, the courts have on a case by case basis tended to construe narrowly.

Why It matters if judicial review is available or not was outlined in the case of O’Reilly v Mackman [1983] 2 AC 237 The starting point is that there are certain consequences to raising an action of judicial review to a normal civil action. Firstly, if you raise an action of judicial review against a public body in England and wales, you must do so within 3 months from the wrong being occurred whereas ordinary civil procedures have the limit of up to 6 years. Secondly, in judicial review proceedings, you need the permission of the court to proceed to the substantive proceedings. You have to show that your argument has a reasonable prospect of success i.e. not wasting the courts time (this could be done in writing and if this is rejected oral)

whereas in civil proceedings, you don’t need permission. This permission requires you to hire a lawyer to draft the written.  In the case, there was a prisoner who as a result of misbehaviour in the prison was deprived of his right to remission (to have his sentence reduced). In order to get around the time limit, they decided not to challenge this by way of judicial review but by way of ordinary civil procedure to get rid of the time limit. The court said no and said judicial review is the exclusive procedure by which decisions of public bodies Must be challenged. We have procedural exclusivity of judicial review. If you are the subject of ordinary civil proceedings or criminal proceedings, you can defend that action with the argument that what the public body did was unlawful but you cant raise an action or challenge on that basis but for judicial review. Significant implications  R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909 The opposite of O’Reilly v Mackman. Someone who had been subject to the disciplinary power of the jockey club, their horse had been disqualified from the race on the basis of drug abuse. They raise an action of judicial review saying this is an abuse of the disciplinary committee’s power and therefore unlawful. In line with the BBC cases, private school’s way of thinking, the court said the disciplinary committee of the jockey club does not exercise a public law function. If there is any remedy here then it is through the ordinary civil procedure, contract law. The nature of the state itself, what we traditionally understand to be public powers are exercised is radically changing. We now have central government departments which are hived up into agencies. Might have the contracting out of previously public functions to private bodies. The state might absolve itself from any responsibility to deliver policy by changing the role of the state from delivering policy to regulate policy e.g. setting the framework procedures and standards to be followed. If the courts in England and wales construe public functions narrowly, then one way of evading judicial review is to contract out the provision of services. Judicial review hasn’t quite caught up in England and wales yet with the changing nature of the state. R v Servite houses and wandsworth LBC ex p Goldsmith and Chatting (2001) 33 HLR 35 A local authority with a statutory duty to care for the elderly and vulnerable. They part funded that care which was nevertheless provided by private providers. The statutory duty takes the decision to place someone in the care of a private case. Similar to the Cocklane case, that person was promised that the private care home would be a home for life but when a decision was made to remove the person from the care home, they sought to challenge that on judicial review but the court said no, this fell out with the scope of judicial review. They said that whilst there are public law characteristics to this relationship, the legal relationship here is one of contract, it is a private law relationship between the person in care and the private provider. This makes it very easy for public bodies to get out of judicial review.

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Progress in the Datafin case R v Panel on Take-overs and Mergers ex p Datafin Plc [1987] QB 815

In this case, we had a challenge to a decision by the panel on takeovers and mergers. This panel is a no statutory body which exists to regulate takeovers and mergers in the city of London. Did this fall within the scope of judicial review. Contrary to everything said up until now, the courts said that the exercise of power by a nonpublic body could be challenged. They said that the function that they exercise, regardless of the nature of the body is a public law one. It is what they call a governmental function. If the panel didn’t exist, the government would have to create one. Datafin offers some way of arguing that bodies upon private providers… Most recent case in which the courts have tried to respond to this challenge Braganza v BP Shipping & Anor [2015] UKSC 17 - An individual who worked on an oil rig or ship who went missing, presumed dead. His widow sought compensation for this, available through the contract of employment which exists between the deceased and the employer. BP argued that that payment was only available in the event of involuntary death i.e. not suicide. Separate to this argument between the widow and BP, BP had set up an investigation which based on very little evidence, that this death was suicide, that the man had jumped from the rig rather than fallen. They said that relying on that investigation and its flimsy evidence, we hold that this was voluntary death. This is not an action for judicial review, this is contract law which normally means the court would have to look carefully at what the contract says but the court went further than that – lady hale recognised that contracts can create discretionary powers which are just as powerful as those created In public law, whose abuse is just as damaging. Secondly, she said it is not the case, contrary to the liberal understanding of contract law that contracts are always voluntary agreements entered into on a voluntary basis by both parties on equal terms. She is saying there can be contracts where there is a significant imbalance in power which favours one of the parties. Hale said that was in play here and the discretion on the part of BP to investigate deaths and make these payments. When we recognise there is this imbalance of power conferred through discretionary decision making powers which we may see in public bodies which might have been to the detriment of the individual, we should look at the powers in a deeper way and ask has there been an abuse of power? The approach of the English courts to the abuse of power through contracts has not been to bring them within the scope of judicial review, rather it has been to take the grounds of judicial review and to apply them to the contract. - Having said that you apply the standards of judicial review to that discretionary power, you can say they have taken account of an irrelevant consideration.

This is how the courts have begun to adjust to the modern dynamics of power. In Scotland, the scope of judicial review is remarkably different Tehrani v Argyll and Clyde Health Board 1989 - A surgeon at Inverclyde royal hospital who was fired for a breach of discipline. She said that that was an abuse of a public law power by a public law body and

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therefore, was challengeable by way of judicial review. The court said no, this is a contract law matter between you the employee and the NHS. This is a decision about the terms of employment, therefore, a private law decision. They said there was no public law element to this case. This led to disagreement and doubt in scots law as it had never been assumed that judicial review in Scotland followed England with… there was a call for the inner house of the court of session to resolve this. That is what it did in the case of West v Secretary of state for Scotland (the leading case on the scope of judicial review in Scotland. It sets out the west test.) Lord hope said that Tehrani was wrongly decided because it was justified on the lack of the public law element. In West, lord hope said in Scotland, we make no sharp distinction between public and private law. Lord Hope said that the application of judicial review is not as it is decided in England on a case by case basis. He said that judicial review in Scotland is based on principle. The principle being, that judicial review is a supervisory jurisdiction. It supervises the exercise of delegated decision making powers which he says might be delegated by public or private bodies. So, the west test for the scope of judicial review is also described as a tripartite test. Meaning you look for the existence of a tripartite relationship (three parties to the relationship). You look for the following: the first party to the relationship being the original source of power, the second party, you look for the decision maker upon whom a limited amount of that power has been conferred and the third party is the individual or group who have been adversely affected by the exercise of that power. When lord Hope says that judicial review is a supervisory jurisdiction, we mean it supervises the exercise of power by that second party i.e. has the decision maker exceeded the limits of the power delegated/conferred upon them.

Example of the difference is the Crocket v Tantallon - A guy who had made tons of complaints against the golf club, would constantly threaten judicial review against the club. Eventually at an AGM of the golf club, a decision was made by a vote to remove Crocket from the club. He challenges the decision by way of judicial review. In England, this case would go nowhere as there is no way of applying Datafin or Reganza. In Scotland, we apply the tripartite relationship test. Here in the outer house of the court of session, Lord Reed said that in this case, a tripartite relationship does exist and this decision does fall within the scope of judicial review. He said the members of a golf club are the first party, the first source of power (they can’t be there every day to make every decision so through their constitution, they delegate decision making power to its AGM or its management committee). Crocket falls within the scope as he can point to the existence of a tripartite relationship. In order to succeed, he has to show that the second body, the AGM has abused its powers. But, having said that the decision falls within the scope, lord reed quickly says that there is no illegality and that the AGM had not acted illegally so although it was within the scope and Crocket got in the door, on the substance of the argument, he lost the case. Naik

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Joobeen -

An individual who had been expelled by the university on the basis that they hadn’t paid their fees. The student challenged the decision by way of judicial review. Here the court had to stretch to find whether or not there was a tripartite relationship. In this case, they said there was. The university which was created by a royal charter which through that charter delegates decision making power to the committee and that committee has exercised that power to the detriment of Naik. On the grounds, the student loses.

Very similar facts. Student In contrast, another decision of the outer house, they said there was no tripartite relationship and this was a contractual relationship.

The problem with the West test is how do you extend it to cover certain types of public power in which there is no tripartite relationship e.g. when ministers exercise powers to issue passports under the royal prerogative they are not delegated that power by the crown. This is clearly the sort of decision which is open to abuse and would be reviewed by way of judicial review. The problem is that the minister is not delegated that power by the crown, they are an extension of the crown. Therefore, there is no tripartite relationship and so a strict reading of the tripartite relationship as the basis for judicial review would exclude ministers exercising powers to the harm of individuals. Most significant thing in the outer house decision is that Lord Reed said the tripartite test should not be applied inflexibly. In other words, he says in order to fall within the scope of judicial review, it is not the case that in every case, we have to first point to a tripartite relationship, there are some decisions which by their nature fall within the scope of judicial review, are clearly decisions which should be open to judicial review even though it is a twoparty relationship. Lord Reed is allowing for the fact that the tripartite relationship doesn’t always fit and that we might begin to think of judicial review on a spectrum, on one end public bodies unambiguously exercising public functions and at the other end e.g. golf clubs, private bodies unambiguously exercising private powers. If we think of it like this, Lord Reed said the tripartite test is only necessary towards the private end of the scale. Irvin Stringfellow v the showmen’s guild of Great Britain case is basically wrong.

Standing (slides up later) Judicial review procedure Who can actually raise an action for judicial review. These rules matter because who we allow into the courts and which bodies we allow to be challenged by the courts will shape the sorts of cases and issues which come before the courts. Imagine a decision taken by a local authority to merge two schools, subsequently closing one of the schools. What the courts have to decide on the question of standing is where do we draw the line? If you are directly affected by the closure of the school, it seems likely that

the courts would let you challenge the decision by way of judicial review. What about parents of children at the school which the school is merging with? What about homeowners in the area who are going to be deprived of a school in terms of property prices? (indirectly affected) what about pressure groups who exist to save the school from closure? The courts are faced with the question of where do we draw the line? If they make it too easy to get in, they could be doing harm to good administration.

The law in England on standing starts with the fleet street casuals case. - A group of casual workers who had benefited from a tax loop hole which the government intended to close. A pressure group which represented tax payers and small businesses sought to challenge the decision of the government not to close the loophole but also to ignore any advantage gained from the loophole before. - One of the arguments which was ultimately successful was that the federation - Sufficient interest in the decision. The court of appeal by a majority of 2 to 1 said that the pressure group lacked interest because they themselves were not party to the decision. No one should have an interest in the tax of the individual and the state. - The one was a dissent that said it would be a grave lacuna in the law (serious gap in the law) if public spirited individuals or groups were excluded from judicial review on the basis that they lacked a legal relationship with the decision maker. Lord Diplock being the judge in dissent here said by not allowing them into make the argument, there is a threat to the rule of law itself, the threat being there could be some decisions where no one who is party to the legal relationship has an interest in challenging it e.g. a government that contracts out a service to a private company but the private service was bribing the government, if we said no one else who was not party to the relationship could challenge it, then no one could bring this abuse of power to.. - As the law has developed in England, it is Diplocks dissent rather than the decision of the majority has influenced the position on standing. The courts will generously interpret the meaning of a sufficient interest so as to include not just those who are directly affected. It is extremely rare in England to lose a case on the basis of standing

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until as recently as the AXA case, the leading cases in scots law on the question of standing were from the very start of the 20th century i.e. from a time which predates any meaningful development of separate distinction of public law from private law. D & J Nickol v dudee harbour trustees. - Power to operate ferry service... - Until recently, it was authoritative in relation to who could raise an action for judicial review. The test for standing in scots law was one of title and interest. The courts said that title means that you the challenger are party to a legal

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relationship with the decision maker that confers upon you a right and that that right has been breached. Rape crisis centre case – in this case, the decision which was being challenged was a decision to allow the boxer Mike Tyson to compete in a boxing match in Glasgow. This was being challenged because Tyson is a convicted rapist. According to a normal understanding of the immigration act, this would not be allowed except for … They justified this on economic grounds, that the economic benefits outweighed any disregard of the offence. This was challenged by the rape crisis centre (a pressure group). They raised an action in the Scottish courts saying that the minister has abused his power and has acted illegally. The court refuses to ear the argument as the rape crisis centre do not have standing because they don’t have title. They are not party to a legal relationship with the minister which confers upon them a right which has been breached and therefore grants upon them title. At the same time, the sister organization of the pressure group challenged the decision in the English courts. In the English courts, they got through the door and no one even raised the issue of standing. The more liberal position in England is neatly shown by this case. They lost on the merits This means, in England, judicial review is about correcting public wrongs, the abuse of power by public bodies. Whereas in Scotland, it means that judicial review is about enforcing your private rights against the state. Lord Hope looked at this decision on standing and wrote an article in the journal public law called Mile Tyson comes to Scotland. He said this was problematic in two senses. Firstly...