Seminar 4 Notes PDF

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Textbook readings, notes and answers for seminar 4...

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Constitutional seminar 4 ‘Wednesbury principles’- Where the decision is so unreasonable that it would be absurd if it were to be enforced. It bases on whether the reasonable person would judge something so unreasonable that it should not be enforced. However, an issue with this would be how would you define the reasonable person? ‘Ultra Vires’ means acted beyond their power which is the same as Improper purpose

1. Explain the constitutional role(s), and significance, of Judicial Review. - claim against the government, which may result in the government’s unlawful actions being quashed. -key role in ensuring that the executive acts only according to law. Without it, we are closer to an authoritarian or even totalitarian state. With it, we live under the rule of law. -Judicial review is increasingly essential if we have an increasingly powerful executive. It is an irritant to the executive but it is a very important, fundamental control on the executive. And the fact that members of the executive know they are subject to judicial review helps ensure that they carry out their job properly." -A lot of legislation is far too complicated. The more complex it is, the more room there is for the people carrying it out – the executive – to make mistakes that then lead to judicial review. -In R (Alconbury) v Secretary of State [2001]. Lord Hoffman described the significance of Judicial Review in the subsequent statement: ‘The principles of Judicial Review give effect to the Rule of Law. They ensure that administrative decisions will be taken rationally in accordance with a fair procedure and within the powers conferred by Parliament’. 2. What is the difference between judicial review and an appeal? Judicial Review is a process by which a court reviews a decision made by a public body. A public body may be a court, tribunal, government department or other organisation. It does not look at the content but instead how the decision is brought about (By what means). It ensures that the government follow the rule of law. Judicial Reviews are distinct from appeals, in that an appeal is usually brought to challenge the outcome of a particular case. The Judicial Review process, on the other hand, analyses the way in which public bodies reached their decision in order to decide whether or not that decision was lawful. Appeals are more concerned with merits of a case whereas Judicial review is not. There is no automatic right for judicial review yet there is for an appeal. 3. Briefly outline each of the grounds of JR.

1. Bad faith - A decision could be quashed based on having been made in bad faith or dishonesty. ‘Grave charge’ against a public authority. Could be where the decision maker claimed to have decided based on a motive when in reality it was a completely different motive in mind.

2. Improper purpose – When parliament infers power on the decision maker it does so with the intention of a certain meaning and this will be often expressly set out or implied in the statute. If the decision maker does not act in accordance with the statutory purpose he has acted unlawfully and the courts will be prepared to intervene.

3. Illegality – Decision maker must understand correctly the law that regulates his decision-making power and must give effect to it. Other principles fall under this one!!!! 4. Fiduciary duty – Local authorities are responsible for the collection and spending of vast sums of money at a local level (Council tax). A local authority owes a fiduciary duty from those whom it collects this money so that it will not be spent thriftlessly and be used to provide services proposed in an adequate way that will benefit the community on a whole. Where this is breached, courts will intervene. Duty to deal with finances in the correct way. 5. Fettering of a discretion – Decision makers have a large scope of discretion as to the decision to be reached. Even where a decision is based on relevant considerations such as policy they must ensure that the considerations have not fettered their discretion. Therefore, they must not allow these considerations to influence their thinking. The decision should not be fettered(Limited) by anything else outside that acted as an influencing factor. 6. Relevant/irrelevant considerations – The decision maker must have regard to relevant matters and must disregard irrelevant matters. This is in the decision maker’s discretion. Does not prescribe how much weight is to be given to competing relevant considerations, that is a matter for the decision maker not the courts.

7. Irrationality – ‘Wednesbury unreasonableness’. A decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question would have arrived at it. To succeed on this ground the applicant must overcome a high threshold of proof (Sometimes criticised for being too high). 8. Proportionality – ‘Taking a sledgehammer to crack a nut’. The decision or course of action is disproportionate and does not amount to attack the objective itself. It is almost as though the court is telling the decision maker that their ruling of punishment etc. is not correct and to demonstrate this they give them a much harsher one. Adopted by English courts in context of EU law in proceeding brought under the HRA 1998 and in respect of proceedings alleging a violation of a right protected at common law. Not a distinct ground in non-convention rights cases (Not a general standard of review). 9. Procedural Impropriety – A failure to observe procedural rules laid down in statute (Obligation to give reasons for decisions for example) and a failure to observe the basic common law rules of natural justice. There are mandatory and discretionary procedural requirements and if the mandatory ones get broken it will lead to the need for Judicial intervention. 10. Natural justice – comprise of two elements ‘Audi alteram partem’ (hear both sides) and ‘Nemo judex in causa sua’ (there should be an absence of bias with no person being a judge in their own cause). These terms seek to ensure that an individual is given a proper opportunity to present their side of the case prior to a decision being reached. There are linguistic difficulties with principles of natural justice (Loopholes). 11. Legitimate expectations – First coined by Lord Denning to mean something less than right which may nevertheless be protected by the principles of natural justice. An expectation of receiving some benefit or privilege to which the individual has no right. A responsibility may also be created by an

established policy. One of the most common examples occurs in the realms of licencing, a legitimate expectation of this may be to receive the benefit that may arise by a way of undertaking the policy or practise. 12. The right to a fair hearing – Core feature of the principles of natural justice of the duty to act fairly. Expressed in Latin as ‘Audi alteram partem’ to hear both sides. Means something more than both parties being allowed to put their cases across. It also includes the fact that the person should be given sufficient notice of a hearing in order that they can prepare their case and to be able to do this in an effective manner. They should be properly informed of the case against them however there may be situations where requirements for fairness are overridden by other more important interests. Does not necessarily mean an oral hearing could be a written submission. Where it is oral fairness will require that the individuals have the opportunity to contest the evidence put against them such as in cross examinations. 13. The rule against bias – To be fair there should be an absence of bias, however what is more difficult is that ‘bias is an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias’. English courts developed 2 tests for identifying bias. 1- reasonable suspicion of bias 2- real likelihood of bias. 14. Reasons – A person ought to have the right to be informed of the reasons why a decision has gone against them. However, in common law there is no bound requirement for the decision maker to give reasons. To give a legal position. 4. Consider the potential for replacing the test for Wednesbury unreasonableness with one of proportionality. What do you see as the advantages of the proportionality test? It is your own opinion but I argued in the seminar that they both cover different aspects and so it is a better idea if they both co-exist together. We didn’t really go into much detail on specific advantages of proportionality except for the obvious ones. 5. What is the purpose behind the requirement of locus standi and the other ‘filter mechanisms’? - There is a need for permission which prevents any old busy body making a claim for JR -The whole point of a filter mechanism is to stop cases that should be there being brought to JR -There is a time limit of 3 months to prevent absence of delay and ensure cases are dealt with efficiently. However, bare in mind in special and complex cases such as Brexit this time limit could be extended. -There is a requirement to look for other more simple remedies before JR is used as the option (Option of last resort) - Question of standing meaning whether the person actually has the right to bring the claim as they are directly affected by the outcome. (Different types of standing on the sheet from the seminar so just take that with you) -Justiciability, meaning that it must be a subject which can be brought to the court for instance cases based on national security could not. -S7 of the Human Rights Act states who can bring the proceedings

6. Explain the different ‘types’ of standing at common law. Individual: . Those directly affected . Those indirectly affected but with genuine constitutional interest Representative: . Associated interest . In the public interest

7. Greenfields District Council has granted a premises licence to a business (Bruised & Battered Ltd.) that organises boxing matches for entertainment purposes. Consider whether any of the following would or should be able to bring a claim for judicial review. a) Bruised & Battered Ltd (because it disputes the lawfulness of conditions imposed on its licence). -yes, could bring a case through individual standing as they were the company directly affected - Could also use representative standing as they were the only ones who had sufficient knowledge of the situation to bring the case for JR b) A resident in the same street, who says she was not properly consulted. -No, as they don’t have sufficient standing -However, it could be argued that there was procedural impropriety as maybe she should still have being informed c) The British Medical Association, which wishes to have boxing banned. -Yes, as they had associated interest found under representative standing d) A local group formed specially to oppose the licence being granted. -No, as demonstrated in the Rose theatre case. A group created specifically for the purpose of this cannot find standing -However, it could be argued that by using the Greenpeace case that through prior precedent standing could possibly be found e) A concerned individual who lives 150 miles away. -No, No standing as they had no personal interest whatsoever and so are more likely a busy body and the reason the filter mechanisms are in place in the first place.

8. Read the materials relating to the Plantagenet Alliance’s JR of the Secretary of State’s decision to re-bury the remains of Richard III. Try to identify the reason(s) why the Plantagenet Alliance was granted standing. We didn’t really go into much detail on this other than what the case was about. So Richard 3rd skeleton was dug up and the secretary of state at the time failed to consult some people before giving permission for Leicester university to rebury him in a Leicester grave. The descendants of Richard wanted him to be buried in York. JR was granted and brought to the courts and it was accepted that the SOS had failed in their duty however Richard 3 rd was left buried in Leicester....