Illegality/Standing

Question 1

AG v The Fulham Corporation

Answer 1

early 20th century. At that point in history, we called local councils corporations. Fullem is a place in London. The case concerned the building of wash houses - parliament had passed a law which said that local councils, including Guildford and fuller corporation, would be given a set amount of money which they could build wash houses. These are where the poorest go to wash their clothes free of charge. Why did parliament do this? They wanted to improve the conditions, the hygiene of the working class British people. They couldn’t afford to wash themselves at home, so parliament said to the local councils that this money was for wash houses. Fullem, though…what kind of areas is this? It’s for rich folk. Fullem said that they were not going to build a wash house — they built a laundrette so that they could charge people. If you’re poor, then you’re not going to use it. So the AG at the time launched a case against the Fullem corporation. The money was for the purpose of washing the poor. The fullem corporation used the money for a different purpose - to build a laundrette to exclude poor people because it costs money. It undermines the point of that legislation. What we are looking at with judicial review is when have public bodies, or government agencies have been given a power by parliament and not used that power correctly?

Rather than a wash house….they built one that charges people. They were given a particular power, and what they did with that is something completely different. They acted beyond their power.

Attorney General v Fulham Corporation. This had to do with the Baths and Wash Houses Act. We saw how building a launderette that charged people for washing their close was held by the court to be an illegal use of the power conferred upon the Corporation by Parliament. If they had done as was expected – i.e., build wash houses that did not charge so the poor residents could use the facilities and the public health would improve, the court would have held that the Corporation had acted “intra vires” – within their power.

The whole purpose of judicial review therefore is to ensure the rule of law happens. It is ensuring that the rule of law in practice occurs.

Question 2

Lord Hailsham

Answer 2

“elective dictatorship” It means that yes we are a democracy because there is an election every five years. But in the intervening four years, we have absolutely no say over the government policies.

Question 3

United States v Windsor (2013)

Answer 3

The fed government had to give equal protection to both metro and homosexual marriages. Therefore the statute in windsor were no longer valid. The defence of marriage act was no longer valid.

Question 4

AG v Jackson

Answer 4

legislation in this country is no judicially reviewable

Lord Steyn and his fellow judges uphold parliamentary sovereignty as the general principle of our constitution. And they state that parliamentary sovereignty is the bedrock of our constitution

Question 5

Entick v Carrington

Answer 5

publishing of materials for secretarial reform. Court ruled the action was illegal. The power given to government officials is limited by the rule of law.

Question 6

Rookes v Withers (1598)

Answer 6

Commissions of the sewers acted beyond their power

Question 7

Baggs Case (1615)

Answer 7

decision to expel a man from a borough in an in illegal manner.

Question 8

Prohibitions Del Roy (1607)

Answer 8

Lord Coke said the king could not personally adjudicate in matters of civil or criminal law.

Question 9

Ridge v Baldwin [1964]

Answer 9

Diplock: “no developed system of administration law.”

Question 10

Standing

Answer 10

So what is the first question to be asked to initiate a case of judicial review: Is it a public body?

Why does it matter to ask a question of whether or not we are dealing with a public body? Judicial review is only concerned with public bodies.

What we are concerned with here is public law. Therefore, if the body that we are dealing with is a private law body we have no business using judicial review.

What is a second question after asking is a public body: is it an issue of public law?

Just because it is a matter of a public body doesn’t necessarily mean it is a matter of public law. An example of that would be that many of the decisions that the university aren’t of a public body and public law of nature. My contract to teach is a private law matter, for example. Or, the tube driver that works for Transport for London, which is part of the London government. It is a private law contract.

What is the third question: Does the individual or group have standing to bring the particular case?

Question four: is the matter a reviewable matter or not?

Question five: What are the grounds for review in this particular case?

Question six: is judicial review the last resort?

Question seven: what are the remedies available?

Question 11

ex parte Datafin (1987)

Answer 11

The takeover panel was unusual because it was not set up by the government but was supported by them.

It wrote the code of conduct on how takeovers and mergers are to be conducted within London; meaning that if one company was to take over another, it published a code on how to do it.

Datafin, who were in the middle of a merger, argued that its rival had not undertaken the panel on takeovers and mergers procedure correctly. So it merged, but not following the procedures set by the panel on takeovers and mergers.

The Court of Appeal said that even though the government did not establish this body, it was a public law body. They gave a range of reasons which are listed on the board.

Firstly, the code was part of the machinery for regulating a massive national institution – the stock exchange.

Secondly, it was supported by the Bank of England and the Department of Trade and Industry (now BIS). The BIS, by supporting the panel, gave credence to the thought that it was compulsory to be followed.

Thirdly, and most importantly, if the panel did not exist there would be a gap that the government would have had to have filled somehow.

Fourthly, laws that existed referred to the panel and its role.

So, it is almost like this informal group that the panel has developed into performing a public authority role.

Therefore the Court of Appeal said that because it looks like a public body, and because it acts like a public body, and because it is enforced like a public body, it must be a public body.

this Datafin exception whereby a public body may be a public body if the function that it fulfils is like that of a public body, and that is has these characteristics whereby people view it as a public body and the law refers to it as a public body.

Question 12

ex parte Aga Khan (1993)

Answer 12

Aga Khan involves the Jockey Club, which is an organization that establishes the rules, regulations, procedures, disciplinary actions, relating to jockeys.

If a jockey misbehaves or does anything inappropriately, they have a quasijudicial function – a disciplinary committee. When you study criminal law last year, existence of the Jockey club and things like the football Association are why people like Louis Suarez do not get punished criminally for biting somebody’s ear. Because they think that why bother punishing somebody criminally when their professional organization will deal with it?

So the Jockey club is a private organization, and all the members of it are bound by the rules.

A member disliked the decision given to them – Aga Khan being that member – and sought a claim in judicial review against the committee believing that his disqualification because of a drug test was not entirely decided correctly.

Aga Khan did not have a claim in judicial review because the Jockey club was not a public body.

The public and the powers, Lord Bingham said, are in no sense governmental. Unlike with Datafin where they were dealing with something such as a big industry of national importance – the stock exchange that were regulating the financial sector of the country – you can see therefore how the court might see that as being of governmental importance. Whereas here, the professional conduct between jockeys was deemed not to be a governmental issue. And thus, the Jockey club or the football Association, or the world boxing Association, are considered private bodies.

Question 13

ex p Football League Ltd (1993)

Answer 13

Not a public body

Question 14

R (On the application of West) v Lloyd’s of London (2004)

Answer 14

it was declared that the existence of a contract between parties would be a strong indication that it is an issue of private law and not a public law.

Question 15

YL v Birmingham City Council

Answer 15

Birmingham city Council was short of cash. Old age people needed homes to live in. In these scenarios lots of people, like YL, don’t live in government operated assisted housing, they live in an alternative accommodation offered by private bodies.

It seems to me that about 40% of all of England’s workforce these days seems to work for caring for other people somewhere. I’m sure most of you from this country know somebody who works in healthcare or they work in residential care looking after elderly people, or with people with learning difficulties, etc. Being a carer is quite a common profession these days.

The issue then became: is the provision of care for these elderly people a public law issue under the Human Rights Act, or not? Arguably, these care homes, despite being run by private companies are fulfilling a public law function like Datafin.

But, unfortunately the Human Rights Act on the board here states that that they need to be a public authority. In Section 6(3)(b) a public authority includes any person certain of whose functions are functions of a public nature, but does not include either house of Parliament or the person exercising functions in connections with proceedings in Parliament.

Section 6(1): it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

It is looking at more at the authority – is it acting on a public authority? No, it is acting on a private business which is trying to make money for itself.

Therefore, it was decided in YL that the public function test was not satisfied.

An 84-year-old woman with Alzheimer’s disease was placed in a private nursing home. Under a three-way agreement between herself and family, the local counsel and Southern Cross, the private company. The home threatened to evict her because of the conduct of her daughter and husband during visits, and she sought to challenge under Article 8 ECHR – the right to private life.

But it required that she proved that Southern Cross was a public authority.

There was a split of the court – 3 to 2 – the majority found that Southern Cross was a company, not a public authority and thus the Human Rights Act could not be invoked against them.

Question 16

Parochial Church Council of Aston Cantlow v Wallbank [2003]

Answer 16

held that a church is not a public body under the Human Rights Act 1998.

Question 17

Barnard v National Dock Labour Board [1953]

Answer 17

public-private divide

Question 18

ex parte Datafin plc [1987]

Answer 18

public-private divide

Question 19

GCHQ

Answer 19

(the intelligence Centre for the government) 1984 – the case concerned the staff at GCHQ. What happened was that in December 1983 the minister in charge of GCHQ, with no prior consultation, alter the conditions of service of employees at GCHQ, and prohibiting them from joining a union. So, the national security staff at GCHQ were then prohibited contractually from joining a union. The Minister of State changed these contracts unilaterally without consent.

The applicants sought judicial review here. At trial court they won their case. But it then went to the appeals courts where it was held that this was not a reviewable matter. Because it was one of national security. These individuals were in an intelligence centre – spies, and so forth – and thus, you could not have them forming trade unions and walking out on their job.

Question 20

Reviewability of cases

Answer 20

The first case that they do not hear are errors of fact. Errors in fact – this means that you cannot judicially review a decision because you think that the court lower than that got a fact wrong or misunderstood a fact about your case.

You can only judicially review the law.

You can only judicially review the incorrect application of the law, not incorrect consideration of facts. Facts are not judicially reviewable.

Secondly, policy is not reviewable. What policy? I was teaching some first years tort law earlier. I said what does policy mean? They hadn’t a clue. Of course, we should know the policy means.

A policy we are normally concerned with is National Security. When national security matters, judges are very reluctant to review decisions.

In GCHQ (the intelligence Centre for the government) 1984 – the case concerned the staff at GCHQ. What happened was that in December 1983 the minister in charge of GCHQ, with no prior consultation, alter the conditions of service of employees at GCHQ, and prohibiting them from joining a union. So, the national security staff at GCHQ were then prohibited contractually from joining a union. The Minister of State changed these contracts unilaterally without consent.

The applicants sought judicial review here. At trial court they won their case. But it then went to the appeals courts where it was held that this was not a reviewable matter. Because it was one of national security. These individuals were in an intelligence centre – spies, and so forth – and thus, you could not have them forming trade unions and walking out on their job.

Question 21

Liverseige v Anderson

Answer 21

the second world war caused the judges to refuse to review actions of the executive.

Question 22

Whitehouse v Lemon 1979

Answer 22

Mary Whitehouse was a busybody – somebody who likes to do things with no justification other than they don’t like them. She was very Christian and very very conservative. Whenever she saw something she did not like one of her favourite tactics was to launch a case in judicial review.

Mary Whitehouse was so notorious that the BBC actually did a show, and there is only clips of it – it is called the Mary Whitehouse Experience. Time and time again she would launch these cases. Of course, if you worked at the BBC you weren’t very happy with this because you kept having to go to court and justify your programming because Mary Whitehouse kept saying that it went against Christian values.

Now, the issue there is quite straightforward. We need a system of law that prevents people like Mary Whitehouse from holding government bodies ransom. We need a system of law that distinguishes between people who have legitimate claims and those that don’t.

So we need a compromise between two principal interests – efficient court administration, and the interests of the government departments.

We need to protect the court by having strong judicial review. But at the same time we don’t want governments having to be burdened by people bringing frivolous claims time and time again.

Question 23

Senior Courts Act 1981, Section 31(3)

Answer 23

“No application for judicial review shall be made unless a leave of the High Court has been obtained in accordance with the rule of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.”

From caselaw we have garnered the following:

Individuals can bring a case where
the personal rights and interests have been affected.
individuals can bring a case where they think the rights and interests as a society as a whole have been affected.
cases can be brought by pressure groups, or representative groups
if they feel that rights or interests of members of that group or society are also affected.

Question 24

R v Inland Revenue Commissioners, ex part National Federation of the Self Employed (‘Fleet Street Casuals’).

Answer 24

This case has many names. Some textbooks call it IRC for Inland Revenue Commissions. Some textbooks will call it the Fleet Street Casuals case. Other textbooks might call it the “Mickey Mouse” case.

At the time individuals worked for newspapers. They worked for newspapers on an ad hoc basis. The issue there was that these Fleet Street Casuals – these people who were casual writers for these newspapers, or casual photographers – were not declaring their taxes. They are taking their money from the people and submitting tax claims that were too low. Kinda like taxi drivers.

What they were doing was putting their name down as “Mickey Mouse”, or whatever, in order to pay less taxes.

Now, the IRC – the Inland Revenue Commissioner – decided that rather than to try to prosecute all of these casual workers in the industry, they would have an amnesty. They said “right, we are not going to try to claim back the taxes from you. But, from this day onwards you are going to pay all of your taxes correctly. If you agree to that we will never come back and get you for what you didn’t pay for all of those years. If, although, we find out that you undercut us from now onwards we are going to come back for everything and get everything off you.”

Of course the Fleet Street Casuals agreed. So, they got away with this crime they committed for years.

Some people were not happy about that. Particularly the National Federation for Self-employed People, because every other self-employed person had been paying taxes for a long time. And they didn’t have this amnesty.

So, if I’m a plumber or electrician who has been paying my taxes legitimately for the last 20 years and this journalist hasn’t been paying his taxes, and now the in land revenue company is saying “don’t worry, don’t pay them. Just pay us from now on…” If you are that plumber or electrician how would you feel about that? You would be pretty mad. You have been following the rules and effectively have been punished for it. These people had never followed the rules and now there is this amnesty about it.

So what happened was this employment union goes to court and attempts to launch a case of judicial review. They want to judicially review the Inland Revenue Commissioner’s decision to grant amnesty to the Fleet Street Casuals. They are saying that the minister acted illegally and that as a result the Fleet Street Casuals should have to pay their taxes. That is their argument.

They get to court, though, and they don’t actually have a case to be heard. The case is not heard by the court. Why? Because the judges concluded that the National Federation of Self-Employed does not have standing in this case.

The substantive matter of the cases is held by the court on individual’s tax histories. And the court holds that nobody has a “sufficient interest” in anybody else’s tax history in this country. Meaning, no one in National Federation, nor anyone outside of it, has any legitimate interest, or any sufficient interest, in another person’s taxes.

What you pay in taxes is a private matter between you and the government. Therefore, it was held in this case that the case did not succeed. But not on substantive grounds. It didn’t succeed procedurally because they did not have standing – they were not parties that could stand up in court and make the substantive argument.

The tax agreement was a lawful exercise of discretion by the IRC, a taxpayer did not have interest challenging decisions concerning other taxpayers.

Question 25

R v Secretary of State for Foreign and Commonwealth Affairs, ex p Rees-Mogg.

Answer 25

William Rees-Mogg did not like the fact that we had entered the European Union. So he tried to launch a judicial review case against our entering of the European Union. His case failed on substantive merits, but he was given grounds to review it because he had sincere concern for a constitutional issue.

His sincere concern for that issue meant that he had standing.

Now, there is a quote from the IRC case below, and it is key quote:
“a grave lacuna in public law if a pressure group or even a single public spirited taxpayer, were prevented by outdated technical rules of the locus standi from bringing the matter to the attention of the courts”.

Meaning, so long as you can provide or prove, or justify your interest as an individual or as a pressure group it will be deemed as sufficient interest. The issue in the IRC case was that they could not prove their sufficient interest because of the private matter between the citizen and the government.

Question 26

Representative group standing

Answer 26

The first is an associational group standing. Represents individual interests of members of a group.

The second is a surrogate group standing. Represents individual interests of those who cannot represent themselves.

The third is a public interest group. Represents the interests of the public at large.

Question 27

R v Liverpool Corporation, ex parte Liverpool Fleet Taxi Owners Association (1972)

Answer 27

Meaning, all of the taxi owners in Liverpool combined together to form the Liverpool Taxi Owners Association. They are a representative group of the taxi owners. It was held that they had standing to bring a case regarding taxi licenses as a group.

Liverpool, as an associational group, had standing because all of the members would have had standing as individuals in the case.

Question 28

R v Secretary of State ex p Rose Theater

Answer 28

was set up in response to the closing down of the Rose Theatre. They were held not to have standing.

Why? Because it was done in response to the event. It was not an associational group that already existed. It wasn’t a legacy group or a surrogacy group. It was a direct reaction group. It was held, as thus, that they did not have sufficient interest because they would not have had sufficient interest on their own as individuals.

Question 29

ex parte Greenpeace

Answer 29

The reasoning from the court was that Greenpeace was a responsible and respected body with a genuine concern for the environment.

Question 30

Section 7(3), Human Rights Act 1998

Answer 30

You must be a victim for a human rights claim.