Human Rights Unit 8 Flashcards
A statute provides that, if a local authority is satisfied that a person is homeless, it must provide suitable accommodation. X says that the accommodation he has been given is not suitable.
Indicate whether the following statement is true or false.
On judicial review a court would receive evidence of the suitability of the accommodation for X and, if it is not suitable, direct what accommodation should be provided.
FALSE
The statement is false.
What is suitable is clearly a matter of discretion for the local authority. A court would be most unlikely to receive evidence on such a question. However it could quash a decision which it found was irrational. A court would not direct what accommodation should be provided as this would effectively substitute its own decision for that of the decision-maker, in breach of the separation of powers.
Indicate whether the following statement is true or false.
The judiciary’s traditional justification for judicial review is that it is important that Parliament should not be able to pass any primary statute it wants, unchallenged.
FALSE
The statement is false.
In fact, the judiciary’s traditional justification for judicial review is quite the opposite, namely that it is upholding Parliamentary Supremacy.
Is the following statement true or false:
In judicial review proceedings, the court is concerned primarily with the manner or procedure by which a decision has been reached. The court will not examine the merits of the decision.
TRUE
The statement is true. In judicial review proceedings, the court is concerned only with the manner in which a decision was made or the procedure that was followed. Were the court to go on to consider the actual merits of the decision, this would usurp the role of the decision maker in breach of the separation of powers.
When a court judicially reviews a decision made by a Government Minister using their powers under the Royal Prerogative, the court is helping to uphold the will of Parliament by ensuring that the Minister does not exceed or abuse those powers granted to them by Parliament.
Is this statement true or false?
FALSE
The statement is false. Powers exercised by Government Ministers pursuant to the Royal Prerogative are non-statutory in nature - such powers do not derive from an Act of Parliament.
Match the three main academic theories relating to the justification for judicial review with the correct description.
Prompts
1. The ultra vires theory
- The common law theory
- The modified ultra vires theory
Answers:
A. The constitutional justification for judicial review is that the courts are upholding Parliamentary supremacy and ensuring that the powers granted to public bodies by Parliament are exercised in accordance with the rule of law.
B. The constitutional justification for judicial review is based on the supremacy of Parliament as the courts are ensuring that public bodies do not act beyond the powers conferred on them by Parliament.
C. The constitutional justification for judicial review is based on the supremacy of Parliament as the courts are ensuring that public bodies do not act beyond the powers conferred on them by Parliament.
1
The ultra vires theory
The constitutional justification for judicial review is that the courts are upholding Parliamentary supremacy and ensuring that the powers granted to public bodies by Parliament are exercised in accordance with the rule of law.
2
The common law theory
The constitutional justification for judicial review is based on the supremacy of Parliament as the courts are ensuring that public bodies do not act beyond the powers conferred on them by Parliament.
3
The modified ultra vires theory
The constitutional justification for judicial review is based on the supremacy of Parliament as the courts are ensuring that public bodies do not act beyond the powers conferred on them by Parliament.
It is a criticism of the common law theory that this theory justifies unelected judges making law.
TRUE or FALSE
TRUE
The statement is true. The common law theory states that the grounds for judicial review are judge-made and can be developed by the courts in line with the principles of good and fair administration. Critics argue that this gives too much power to make law to the unelected judges contrary to the principle of the separation of powers.
A client, who comes from Nepal, wishes to challenge a decision by the Home Office to deport him once he has been released from prison after serving a sentence of 12 weeks for a common assault. The Home Secretary has the power to deport a foreign national who has received a custodial sentence of at least 12 months. The decision was taken by a civil servant in the Home Office without a hearing.
Which is the best set of potential grounds on which he could challenge the decision?
A. Relevant considerations ignored, wrongful delegation and error of fact.
B. Error of fact, error of law and breach of natural justice.
C. Wrongful delegation, irrationality and bias.
D. Procedural ultra vires, wrongful delegation and error of fact.
E. Error of law, fettering of discretion and breach of natural justice.
B
B is correct. The civil servant appears to have made an error either of fact with respect to the length of the client’s sentence or has made a misread the law (or both). In addition, the client would be entitled to a fair hearing which he has not had.
A is wrong since a civil servant is able to exercise the powers of a minister of State so there is no wrongful delegation. Ignoring relevant considerations and error of law are potentially good grounds.
C is wrong since a civil servant is able to exercise the powers of a minister of State so there is no wrongful delegation. There is no indication of bias or irrationality.
D is wrong, because there is no indication of a breach of a statutory procedure and there is no wrongful delegation answer since a civil servant is able to exercise the powers of a minister of State. Error of fact is a potential ground.
E is wrong, because there is no policy under which discretion could be fettered. Error of law and breach of natural justice are potential grounds.
In order to address concerns about the behaviour of nightclub door supervisors in controlling patrons, Parliament passed the (fictitious) Regulation of Nightclubs Act 2016 (‘the Act’). The Act creates the Entertainment Conduct Authority (the Authority) to regulate the nightclub industry and to grant licences to individuals. Every door supervisor must hold a licence from the Authority to work in the industry.
The Nightclub Workers’ Federation (NWF) is concerned about the fee that the Authority is asking its members to pay on applying for their licences, believing it has exceeded its statutory powers by charging a fee. The NWF wishes to challenge this on their behalf.
Can the NWF seek judicial review of the licence fee?
A. No, because the Authority is not amenable to judicial review claims, nor does the NWF have sufficient interest to apply for judicial review.
B. No, because although the NWF does have sufficient interest to apply for judicial review, the Authority is not amenable to judicial review claims.
C. No, because although the Authority is amenable to judicial review claims, the NWF is unlikely to have sufficient interest to apply for judicial review.
D. Yes, because the Authority is amenable to judicial review claims, and the NWF is likely to have sufficient interest to apply for judicial review.
E. Yes, because as the NWF has sufficient interest to apply for judicial review, the Authority will be deemed to be amenable to judicial review claims.
D
Option D is correct. In order to seek judicial review of a decision, there must be a public body carrying out a public function. Here, the Authority is empowered to grant licences, so both elements are satisfied (ex p Datafin). The Authority is therefore amenable to judicial review.
As regards standing, the NWF is a body representing a number of members but, not being able to apply for a licence, is not itself directly affected by the decision. As such, it will have to show that it has ‘sufficient interest’ to challenge the decision relating to application fees, and the factors from World Development Movement [1995] 1 WLR 386 will assist. The court will consider the need to uphold the rule of law, which here involves what appears to be an arbitrary attempt to impose a fee (Congreve v Home Office). The importance of the issue, which in this instance is whether or not power is given in the statute to charge a fee and the role of the pressure group, which is to promote its members interests. Although individual members could bring a challenge themselves it is unlikely that its members would themselves have the resources to mount an individual challenge. In addition, the NWF are likely to have substantial expertise. As such, the NWF is likely to be permitted to seek judicial review.
Option A is wrong because it incorrectly states the position regarding both amenability and standing. Although option B correctly states the position regarding standing, it is wrong regarding amenability. Option C is correct regarding amenability, but wrong regarding standing.
Option E is wrong. Although it correctly states that the NWF has standing, it does not therefore follow that the decision-maker is amenable to judicial review claims.
Assume that a statute (fictitious) gives power to the Secretary of State to assess claims for property damage arising out of terrorist bomb attacks and to award financial compensation based on the damage suffered. The Act permits a maximum award of £100,000 to be made.
A charity which provides temporary accommodation for the homeless had its premises destroyed in a terrorist bomb attack. It applied to the Secretary of State for compensation of £100,000 to go towards the cost of rebuilding, estimated at £150,000. It was awarded compensation of only £5,000. No reasons were given by the Secretary of State for the size of the award. Before applying for compensation, the charity consulted the Secretary of State’s department and was sent a copy of a departmental circular which states ‘… when awarding compensation, a full award will normally be given to charitable organisations providing care for disadvantaged groups’.
Which of the following best describes the likely result of any claim for judicial review of the amount of the award and the reason for it?
A. The charity’s claim is likely to fail as it is a mere applicant and the Secretary of State’s only duty is to act honestly and without bias. On the facts provided, there is no evidence of dishonesty or bias.
B. The charity’s claim is likely to fail. The Secretary of State is under no duty to give reasons and, in the absence of reasons, the charity cannot prove the Secretary of State has acted illegally or irrationally.
C. The charity’s claim is likely to succeed. By failing to award £100,000 compensation, the Secretary of State has breached a mandatory procedural requirement.
D. The charity’s claim is likely to succeed. The statement in the circular is likely to create a substantive legitimate expectation that its application will be successful and it will be an abuse of power to frustrate that expectation.
E. The charity’s claim is likely to succeed. In the absence of reasons, the decision is likely to be held to be irrational.
E
E is correct. The charity will most likely be able to bring a claim based on irrationality. While there may also be procedural impropriety, neither options C nor D correctly summarise the position.
The charity is entitled to a fair hearing. Initially it seems that it is a first-time applicant for compensation (McInnes v Onslow-Fane). However, the statement in the circular is likely to have created a substantive legitimate expectation that its application will be successful.
It is then necessary to analyse whether this case falls within the first or third of Lord Woolf’s categories in Coughlan. It is unlikely to fall within the first category as it is not a specific undertaking addressed to an individual or small group. The charity would therefore have to rely on irrationality. As no reasons have been given for reducing the award of compensation from £100,000 to £5,000, the charity has a strong argument that the Wednesbury threshold of irrationality has been reached. Option E is therefore correct and a better answer than option D. Option B is also clearly wrong as the absence of reasons is likely to lead to a finding of irrationality.
Although there is no general requirement for Ministers to give reasons for their decisions, the courts may require this if the decision appears wrong. Here, they may require reasons to enable the charity to ascertain whether the Minister took all relevant circumstances into account in reaching his decision (ex p Cunningham). In this case, the size of the award may appear unjustifiably low, and if so, the decision could be quashed for the failure to give reasons. However, this duty arises from the common law rules of procedural fairness, and do not arise from statute; hence option C is wrong. Option A is wrong as the circular has created a legitimate expectation that the charity will receive a full grant
Assume that a statute (fictitious) gives local authorities the power to order the closure of market stalls in a public market if the trader has repeatedly sold goods which are not of a satisfactory quality. The statute provides that the operator of any stall which is to be the subject of a closure order shall be given seven days’ notice of the order and shall also be given the right to make representations against the closure. Using its power, the local authority has sent a notice to a trader ordering the closure of his stall after seven days. The local authority has stated that due to the poor quality of the goods the trader sells, there is no point in him making representations.
Which of the following best describes whether the trader could seek judicial review of the closure notice?
A. The trader’s claim is likely to fail. Due to the seriousness of the matter, the local authority was entitled to dispense with the requirement to allow the trader to make representations.
B. The trader’s claim is likely to fail. The requirement to allow the trader to make representations is merely a guidance as to good practice and its breach does not render the closure notice invalid.
C. The trader’s claim is likely to fail. The requirement to allow the trader to make representations is merely a directory procedural requirement and its breach does not render the closure notice invalid.
D. The trader’s claim is likely to succeed. The requirement to allow the trader to make representations is a mandatory procedural requirement as Parliament probably intended its breach to invalidate the closure notice.
E. The trader’s claim is likely to succeed. The local authority has acted without legal authority in ordering the closure of the stall without allowing the trader to make representations.
D
D is correct. The issue is whether the local authority has failed to comply with a mandatory procedural requirement or a directory one. Non-compliance with the former renders a decision invalid on grounds of procedural ultra vires, whereas failure to comply with a directory requirement does not. An important factor that the court will take into account is the wording of the statute itself. According to the facts, the statute provides that local authorities ‘shall’ allow operators of stalls to make representations; this points towards a mandatory obligation to consult. However, the language used is not conclusive.
Case law also shows that where a claimant is substantially prejudiced by non-compliance with an important procedural safeguard, the courts are likely to rule a statutory requirement is mandatory. Another question is whether Parliament would have intended the consequence of non-compliance with the relevant statutory requirement to be the invalidity of the decision. This seems likely, as closure of the stall will deprive the trader of his livelihood. Accordingly, options C and B are wrong for suggesting the requirement is merely directory or guidance as to good practice respectively.
Option A is wrong as, in the absence of statutory authority, the seriousness of the matter does not dispense with the need to observe procedural requirements.
Option E is wrong as the local authority did have the legal authority to order the closure of the stall, provided it followed the correct procedure. Acting without legal authority (one of the headings under illegality) arises when a decision-maker does not have the power at all to take a given decision, no matter how properly it tried to act.
An established and successful public limited company (‘PLC’) applied to the Railway Authority to be awarded the franchise to run the local area railway. Its application was turned down last week. PLC has just found out that the chair of the Railway Authority, is married to the chief executive officer and major shareholder of one of PLC’s leading commercial rivals. PLC would like to bring a claim for judicial review.
What advice should be given to PLC?
A. PLC’s claim is likely to succeed as the evidence proves the existence of direct bias.
B. The chair of the Railway Authority does not have a direct interest in the matter, thus there is no presumption of bias and the decision will not automatically breach the rule against bias.
C. A fair-minded and impartial observer would conclude that there was a ‘real possibility’ that the decision-maker had been biased and so the decision will breach the rule against bias.
D. PLC will need to prove that a fair minded and informed observer would naturally conclude that there was a conflict of interest for the decision to breach the rule against bias.
E. The Railway Authority will be able to successfully defend a claim for judicial review if it can prove that its chair was completely impartial and did not influence the decision.
C
Option C is correct. Due to the closeness of the relationship (husband/wife), this may well be a case of a direct interest, but even if the chair’s interest fell short of that, PLC could still argue that there was sufficient evidence to lead a fair-minded and impartial observer to conclude that there was a ‘real possibility’ that the decision-maker had been biased (Porter v Magill), given that the spouse’s company stood to gain a competitive edge from the decision.
Option A is wrong as there is no need to prove actual bias. Conversely, even if it can be shown that the chair was not biased, this will not provide a successful defence as the court is concerned with the appearance of bias, so E is wrong.
B is wrong as the chair could have a direct interest in the matter eg if he too is a shareholder in the rival company, and that would create a presumption of bias (Dimes v Grand Junction Canal Proprietors).
D sets out the wrong test for indirect or apparent bias.
The UK government has power under an Act of Parliament (‘the Act’) to give grants to businesses for the purpose of carrying out research into renewable energy sources. The government has adopted a policy of only considering applications for a grant where an applicant has a record of research into renewable energy and has been in business for at least 10 years. A company has been in business for nine years and has won several prestigious industry awards for its work in renewables research. The government refuses the company’s application for a grant. The company wants to challenge the government’s decision in the High Court.
Which of the following submissions will most likely persuade the High Court that the government’s decision was unlawful?
A. The government’s decision is likely to be unlawful because it is pursuing an improper purpose under the Act.
B. The government may have unlawfully fettered its discretion by the application of its policy in these circumstances.
C. The company has a substantive legitimate expectation that the government will give it a grant which it would be unlawful for the government to frustrate.
D. It was unlawful for the government to adopt any policy about its approach to determining applications for grants.
E. The decision may be a breach of natural justice, because a fair-minded and informed observer would consider that there was a real possibility of bias on the government’s part.
B
B is correct. While it is lawful for a public body to adopt a policy as to how it will exercise its discretion, it must be ready to listen to someone “with something new to say” and consider departing from its policy in relevant cases (British Oxygen Limited v Minister of Technology [1971] AC 610). For that reason option B is the most likely ground to succeed here.
Option D is wrong in principle as it is lawful for a public body to adopt a policy.
Option A is wrong. While public bodies must not use statutory powers to pursue improper purposes (Congreve v Home Office [1976] QB 629), the government is not obviously doing so here.
Option C is wrong because substantive legitimate expectations arise rarely (see R v North and East Devon Health Authority; ex parte Coughlan [2001] QB 213) and certainly not on these facts.
Whilst Option E sets out the test for bias from Magill v Porter [2002] 2 AC 357, it is wrong because on the facts there is no arguable case of bias here.
A planning application to develop a disused chalk pit into a lorry park has been rejected in a letter from the Minister for the Environment who has statutory power to grant or refuse such applications. The Minister refused to grant planning permission on the grounds that it was her policy to seek approval for such plans from the Minister of Housing who may wish to zone the chalk pit for residential development. The Minister of Housing refused his approval on the basis that the land was part of a proposed redevelopment plan for the area.
Can the Minister of the Environment’s decision be challenged in Judicial Review?
A. Yes, although she is entitled to formulate a policy to suit her discretionary power to grant or reject planning permission, she must not fetter her discretion by acting under the dictation of another.
B. Yes, she has introduced irrelevant considerations by taking account of the Minister of Housing’s objection and has exhibited bias in her decision.
C. Yes, she has breached the rules of natural justice by making such an important decision without offering an oral hearing.
D. No, she is a Minister of State who sits in a cabinet of ministers who must take decisions together in order to produce ‘joined up government’.
E. No, the land has already been zoned by the Minister of Housing for a residential development which is more important than a lorry park.
A
A is the correct answer because Ministers of State may formulate a general policy to make it easier for discretionary power to used fairly and equally. She may not, however, fetter her discretion by allowing someone else to dictate how to use that power.
B is wrong because, although the Minister of Housing’s opinion might be irrelevant, there is no indication of bias in the facts.
C is wrong because natural justice is not necessarily breached because the aggrieved person does not receive an oral hearing. The hearing must be fair in all the circumstances so that a decision based on documentation might be sufficient.
D is wrong because the person who is granted the power is the only one who may use it. Although she may take notice of the opinions of others, she must make the decision herself.
E is wrong because whilst it might be correct to say that the land has already been zoned for residential development, the power to grant planning permission had been given to the Minister of the Environment and she should not have fettered her discretion by allowing the Minister of Housing to dictate the decision.
A local authority has the statutory power to license ice cream vans to sell ice cream within its boundaries. A woman has applied to the local authority for a licence to operate an ice cream van. The local authority has refused to consider her application. She has lost money as a result of being unable to trade.
What remedy or remedies should the woman apply for?
A. A quashing order
B. A quashing order and damages
C. Damages
D. A mandatory order and damages
E. A mandatory order
E
Option E is correct. The purpose of quashing orders is to set aside unlawful decisions, but the local authority has refused even to consider the application. A mandatory order will force the local authority to consider the woman’s application lawfully.
Although the woman has lost money due to the refusal to consider the application, she is unlikely to obtain damages. In a claim for judicial review, a claimant can only be awarded damages if they can establish that their private law rights have been infringed. However, damages are not available purely for the infringement of a public law right (ex p Maguire).
Options A and B are therefore wrong because there is not a decision to quash, and additionally option B refers to damages.
Options C and D are wrong because they refer to damages, even though option D does correctly refer to a mandatory order.
