Judicial Review - Spare Whole Set Flashcards

Question

How does judicial review differ from an appeal?

Answer 1

An appeal stems from legislation subjecting the finding of a public body to, reconsideration on the grounds of the decisions merits, by a tribunal, minister, or even court. Judicial Review is narrower than an appeal and does not involve a consideration of the merits of a decision (rather the legality of the process by which it was made) and may be available where legislation doesn't provide for an appeal.

Answer 2

R v Somerset County Council, ex parte Fewings - “…[I]n most cases the judicial review court is not concerned with the merits of the decision under review. '

Answer 3

The speech of Lord Pannick - 'However inconvenient and embarrassing it is to Mr Grayling to have his decisions repeatedly ruled to be unlawful by our courts ... it remains the vital role of judicial review in this country to hold Ministers and civil servants to account in public, not for the merits of their decisions but for their compliance with the law of the land as stated by Parliament.'.

Answer 4

R(Evans) v Attorney General (Black Spider Memo Case)

Answer 5

A Guardian journalist sought the release, under the Freedom of Information Act 2000 (FOIA), of letters Prince Charles wrote to various Government departments. The Government departments refused and the decision was upheld by the Information Commissioner. The Guardian then launched an appeal which made its way to the Upper Tribunal where an order was passed for disclosure of the letters. The Attorney General under s53(2) of FOIA issued a certificate ‘vetoing’ decision of the Upper Tribunal on the grounds of an overriding public interest. Judicial Review was sought of the Attorney General’s veto.

Answer 6

According to s.53(2) of the FOIA, a veto could only be exercised when the relevant decision-maker: “[H]as on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure [to comply with relevant provisions of the Act].”

Answer 7

The key issue for the Supreme Court to decide was the correct test for ‘reasonable grounds’.

Answer 8

They had to consider whether the statutory provision entitling a veto (s. 53(2) of the FoIA) allowed a member of the executive (The Attorney General) to overrule a decision of the judiciary (the relevant Upper Tribunal).

Answer 9

Supreme Court took a creative approach to legislative interpretation - eventually concluding that the wording of the legislation granting the power of veto to the Attorney General was not sufficiently clear to justify overruling a decision of the judiciary.

Answer 10

He said, on behalf of the majority and in accordance with the final judgement - If section 53 is to have the remarkable effect argued for by Mr Eadie QC for the Attorney General, it must be “crystal clear” from the wording of the FOIA 2000, and cannot be justified merely by “general or ambiguous words”. In my view, section 53 falls far short of being “crystal clear” in saying that a member of the executive can override the decision of a court because he disagrees with it'.

Answer 11

He said - 'A statutory provision which entitles a member of the executive to overrule a decision of the judiciary merely because he does not agree with it ... would cut across two constitutional principles which are also fundamental components of the rule of law…' & 'it is also fundamental to the rule of law that decisions and actions of the executive are, subject to necessary well established exceptions, and jealously scrutinised statutory exceptions, reviewable by the court at the suit of an interested citizen'

Answer 12

He gave the dissenting opinion that - 'the Court of Appeal ought (as, with respect, ought this court) to have resisted the temptation [to seek to maintain the supremacy of the decision of the upper tribunal]. For, in reaching its decision, the Court of Appeal did not in my view interpret section 53 of FOIA. It re-wrote it. It invoked precious constitutional principles but among the most precious is that of parliamentary sovereignty, emblematic of our democracy.”

Answer 13

Arguments surrounding the proper constitutional foundations of judicial review underpin questions concerning the appropriate development of principles of judicial review in the case law which we consider in the course.

Answer 14

1. Is the body which had made the decision a public body so as to be susceptible to judicial review (known as “amenability”) 2. Does the person who seeks to challenge the decision have standing (locus standi) to do so? 3. Is the application made in time and has permission been given? 4. When must the application for judicial review be used?

Answer 15

Public Bodies or bodies exercising a Public Function.

Answer 16

According to the Civil Procedure Rules, Part 54.1 (2); a ‘claim for judicial review’ means a claim to review the lawfulness of an enactment; or a decision, action or failure to act in relation to the exercise of a public function.

Answer 17

1. They exercise certain functions and powers and duties that private citizens don’t have. 2. Due to the great power such bodies have there ought to be additional duties of procedural fairness. 3. Certain institutions may have a monopoly therefore should be subject to a degree of public accountability.

Answer 18

Full Acts of Parliament are immune from judicial review.

Answer 19

1. Statutory Power 2. Prerogative Power 3. De facto Powers

Answer 20

The vast majority of powers exercised by public authorities are statutory powers. The fact that a body derives its authority from statute will generally be conclusive that it is exercising a public function and thus is subject to judicial review.

Answer 21

Much of judicial review is focused on applying principles of administrative law to the exercise of discretionary statutory powers by public authorities

Answer 22

R v Lloyds of London Case significant

Answer 23

‘…those [legal] attributes belonging to the Crown which derive from common law, not statute, and which still survive’. – Munro.

Answer 24

Parliament can curtail the prerogative – De Keyser’s Royal Hotel

Answer 25

No new prerogative powers can be created – BBC v Johns (Inspector of Taxes)

Answer 26

1. Deployment of armed forces 2. Appointment and regulation of the civil service 3. Making treaties

Answer 27

Before the landmark case of GCHQ, it was widely assumed that the courts could determine (a) the existence and (b) limits of a prerogative power but could not interfere with how it was exercised.

Answer 28

In the GCHQ Case, or the Council of Civil Service Unions v Minister for the Civil Service, the House of Lords said - decisions made under prerogative powers are in principle reviewable on the same basis as decisions made under statutory powers, subject to the question whether the relevant powers are ‘justiciable’ in nature.

Answer 29

They said - The question of ‘justiciability’ is not determined by looking at the source of the power, but rather by looking at its nature and subject matter, in light of institutional competence and the role appropriate for the court. Powers whose exercise calls for broad political discretion are less likely to be justiciable.

Answer 30

In CCSU, Lord Roskill sets up a list of ‘non-justiciable’ powers, including the making of treaties and the deployment of armed forces.

Answer 31

De facto powers are those powers that can be said to exist in practice even if not officially recognised by laws.

Answer 32

Yes, in the case of R v City Panel Takeovers and mergers, ex parte Datafin Plc, the courts showed themselves willing to protect individuals from abuses of power even when the source of the power derives neither from legislation nor the prerogative.

Answer 33

The Court of Appeal held that the actions of the Take-over Panel were reviewable, focusing on the ‘public element’ in its exercise of power. The immense power of the Panel and the fact that it was 'tied to an act of government' meant it was unthinkable that courts would not be able to defend citizens from the enormous power wielded by it.

Answer 34

Not all ‘enormous’ power wielded by private bodies is subject to the control of the administrative courts. So what is the governing principle?

Answer 35

R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan

Answer 36

It could not review the decisions of the Disciplinary Committee of the Jockey Club, because the powers and duties of the Club were not governmental, and there were adequate remedies in contract.

Answer 37

Many commentators have invoked monopoly of power as a legitimate basis for allowing judicial review, focusing on the fundamental aim, in administrative law, of averting or redressing abuse of power. But it appears to be rejected in Aga Khan.

Answer 38

The matter raises significant controversy as increasing contractualisation or privatisation of government, as well as the increasing power possessed by private corporations, significantly impacts peoples lives. The Khan Case seems to suggest decisions that have been contracted out may not be reviewable as there was not enough of a 'public function' being exercised.

Answer 39

Also known as Locus Standi, standing is the pre-requisite for judicial review actions that determines who can apply.

Answer 40

The Senior Court Act 1981, s. 31(3) - “the court shall not grant leave to make [an application for judicial review] unless it considers that the applicant has a sufficient interest in the matter to which the application relates.”

Answer 41

Locus Standi is an issue at both the preliminary stage (permission/leave) and at the full hearing - as established in the case of the Fleet Street Casuals Case.

Answer 42

1. If an individual is 'directly affected' by the decision they dispute 2. Representative organisations or pressure groups may establish standing through; - Associational Standing - Public Interest Standing

Answer 43

If directly and personally affected by a decision, the applicant plainly has “sufficient interest” - see the case of R v Board of visitors of Hull Prison, ex parte St. Germain

Answer 44

Yes - the same rules (directly and personally affected) apply to artificial legal persons, such as companies - see R v Panel on Takeovers and Mergers, ex parte Datafin - and local authorities - see Secretary of State for Education and Science, ex parte Tameside.

Answer 45

In the Fleet Street Casuals Case the majority held that ‘sufficient interest’ depends on the nature of the interests relevant to the law under which the act is performed/the decision is made.

Answer 46

He said - “Sufficient Interest cannot be considered in the abstract, or as an isolated point: it must be taken together with the legal and factual context.”

Answer 47

No, while 'directly affected' individuals may show standing through satisfaction of a 'sufficient interest' standing is not limited to a person whose legal rights are impacted upon - standing can also be shown through (a) association or (b) public interest.

Answer 48

1. Associational Standing | 2. Public Interest Standing

Answer 49

Usually an unincorporated group or a corporation claiming on behalf of (the interests of) identifiable individuals who are its members or whom it claims to represent.

Answer 50

Individual, corporation or group purporting to represent the public interest rather than the interests of any identified or identifiable individuals’.

Answer 51

Historically the courts have adopted a fairly restrictive approach to representative standing, as can be seen in the case of Secretary of State for the Environment ex p. Rose Theatre Trust.

Answer 52

A more liberal approach has now been adopted - there was clear recognition of associational standing in the case of R v HM Inspectorate of Pollution, ex parte Greenpeace (No 2).

Answer 53

Associational Standing: Control of the represented over those who claim to represent them. Some degree of input needed: A democratic stake/democratic nexus needed.

Answer 54

Tentative Authority for such a concept was offered in the Greenpeace Case, more certain authority can be found in R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd.

Answer 55

The Court of Appeal adopted a flexible analysis. Considering the following principles; 1. The importance of vindicating the rule of law. 2. The importance of the issue raised. 3. The likely absence of any other reasonable challenger. 4. The nature of the breach of duty against which relief is sought. 5. The prominent role of WDM in providing advice, guidance and assistance with regard to aid.

Answer 56

Public Interest was found to be a sufficient ground for standing and Similarly placed claimants have since established standing on public interest grounds.

Answer 57

Yes, Trade Unions have standing – acting as proxy for members.

Answer 58

1. Permission Required | 2. Time Limits

Answer 59

CPR 54.4 says that 'The court's permission to proceed is required in a claim for judicial review whether started under this Part or transferred to the Administrative Court.'

Answer 60

CPR 54.5 provides; Time limit for filing claim form (1) The claim form must be filed – (a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose. (2) The time limit in this rule may not be extended by agreement between the parties. (3) This rule does not apply when any other enactment specifies a shorter time limit for making the claim for judicial review.

Answer 61

This case demonstrated that even action within 3 months may not be sufficiently 'prompt' and may be deemed unduly delayed.

Answer 62

Lord Diplock in the case of O'Reilly v Mackman said that - 'The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision...for any longer than is absolutely necessary in fairness to the person affected...'

Answer 63

1. Encourages Settlement; 2. Saves court Time 3. Protects the administration; and 4. Protects the public interest

Answer 64

Doubts have been raised about the compatibility of these tests with the European Convention on Human Rights for reasons of uncertainty. In Lam v UK Application, however, the ECHR rejected the argument that promptness in the context of a planning judicial review was a breach of Article 6 and found that it was a proportionate limitation.

Answer 65

If an application is refused, there is a right to renew the application for permission before another judge in open court and if permission is refused here as well, then before the Court of Appeal.

Answer 66

1. Quashing Order - formerly Certiorari. According to CPR 53.19 (2) The court may – (a) remit the matter to the decision-maker; and (b) direct it to reconsider the matter and reach a decision in accordance with the judgment of the court. 2. Mandatory Order - formerly Mandamus. 3. Prohibiting Order - formerly Prohibitioni.

Answer 67

1. Injunction 2. Declaration - this does not quash a decision but amounts to a definitive statement of the legal position of the parties. 3. Damages – but only if there can also be established a tort or breach of contract (now including breach of ECHR rights under the Human Rights Act ss 6,7 & 8) CPR 54.3(2).”A claim for judicial review may include a claim for damages but may not seek damages alone.” 4. Substitutionary remedy - CPR 54 19(3): “Where the court considers that there is no purpose to be served in remitting the matter to the decision-maker it may, subject to any statutory provision, take the decision itself” – RARELY used. ALL of these remedies are discretionary.

Answer 68

1. Failure to pursue adequate alternative remedies such as statutory right of appeal - R (Sivasubramaniam) v Wandsworth CC 2. Undue delay in seeking relief 3. Unmeritorious conduct on the part of the claimant 4. Triviality - application of de minimise non curated lex principle

Answer 69

CPR 54.2 holds that - The judicial review procedure must be used where the claimant is seeking – (a) a mandatory order; (b) a prohibiting order; (c) a quashing order; or (d) an injunction under section 30 of the Supreme Court Act 1981 (restraining a person from acting in any office in which he is not entitled to act). (prerogative remedies)

Answer 70

54.3 holds that - (1) The judicial review procedure may be used in a claim for judicial review where the claimant is seeking – (a) a declaration; or (b) an injunction super(GL). (ordinary remedies)

Answer 71

The judicial review procedure must be used.

Answer 72

It was established by Lord Diplock in the case of O'Reilly v Mackman that as a basic rule public law challenges must be conducted by way of judicial review - 'It would in my view as a general rule be contrary to public policy, ... to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Ord 53 for the protection of such authorities.'

Answer 73

A person sued, or proceeded against for breach of e.g. a bye-law, can raise the invalidity of the instrument relied upon as a defence in criminal trial - see the case of Boddington v British Transport Police

Answer 74

Generally, courts do not read exclusion clauses as ousting judicial review.

Answer 75

Anisminic Ltd v Foreign Compensation Commission - A provision in a statute gave jurisdiction the FCC to determine compensation that should be paid to British nationals who had had property confiscated by foreign governments. An ouster clause stated - “decisions by the Commissioners shall not be called into question in any court of law". The court chose not to enforce the clause, Lord Reid said on the matter - 'if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court'

Answer 76

Statutory provisions which prima facie prohibit judicial review raise fundamental tensions between rule of law (pro access to the courts) and the doctrine of legislative supremacy (giving effect to the will of Parliament).

Answer 77

This Bill contained a clause seeking to exclude judicial review on, among other grounds, the basis of an error of law; (a) Prevent a court, in particular, from entertaining proceedings to determine whether a purported determination, decision or action of the Tribunal was a nullity by reason of – (i) Lack of jurisdiction, (ii) Irregularity, (iii) Error of law, (iv) Breach of natural justice, or (v) Any other matter [though not where it was alleged that a decision had been made in bad faith. Is it possible to exclude judicial review for errors of law?

Answer 78

The Courts could potentially declare the clause unconstitutional if enacted as a fundamental breach of the rule of law (the nuclear option).

Answer 79

“The intended effect of that clause is to ‘oust’ the jurisdiction of the High Court to review the new Tribunal’s decisions, even where the Tribunal has got the law wrong or acted in breach of natural justice. This is a startling proposition. It would be startling if done in a dictatorship. It is incredible that it is proposed in the UK – the so-called mother of the common law.”

Answer 80

Eventually the government dropped the ouster clause and 'announced that it would bring forward amendments to replace the judicial review ouster with a new system allowing oversight by the administrative court' - Rawlings.

Answer 81

s12 (1) As respects England and Wales- (a) any provision in an Act passed before 1st August 1958 that any order or determination shall not be called into question in any court, or (b) any provision in such an Act which by similar words excludes any of the powers of the High Court, shall not have effect so as to prevent the removal of the proceedings into the High Court by order of certiorari or to prejudice the powers of the High Court to make orders of mandamus.

Answer 82

1. Where provisions preventing judicial review have been treated by the courts as 'allocating jurisdiction' to other bodies - see the case of R(on the application of A) v B. 2. Or; where the language of a clause used is sufficiently clear and unambiguous to give the courts no discretion in complying with parliamentary intention - see the case of R (Privacy international) v Foreign and Commonwealth Secretary - Sales LJ - To construe section 67(8) as allowing judicial review of determinations and decisions of the IPT would subvert it.

Answer 83

1. Illegality 2. Procedural Impropriety 3. Irrationality/Unreasonableness

Answer 84

This ground for review states that a decision maker may only act so long as they do not transgress the limits of their powers.

Answer 85

Administrative power is limited by; 1. Express terms of a statute; 2. Implied terms of a statute; 3. General principles like natural justice and reasonableness.

Answer 86

1. Doing an act with no legal authority 2. Errors of law 3. Failure to retain discretion by; (a) improper delegation of decision making (b) fettering of discretion 4. Abuse of discretion by; (a) using a power for an improper purpose (b) taking into account irrelevant considerations or ignoring relevant ones (c) frustrating a legitimate expectation

Answer 87

1. Attorney General v Fulham Corporation | 2. Laker Airways v Dept of Trade

Answer 88

Fulham Corp was empowered to provide facilities for local people to wash their own clothes. They set up a commercial washing service, whereby people could bring in their clothes and the Council would wash them for them ( for a charge). Thus acting outside their authority - ultra vires.

Answer 89

Laker Airways had been granted a licence by the Civil Aviation Authority ("CAA") under statutory authority. The Secretary of State had power to issue guidance to the CAA as to its duties. As a result of a change in Government, and consequent change in policy, the SS issued "guidance" to the CAA as he was entitled to; the guidance, however instructed them to revoke Laker's licence.

Answer 90

An error of law occurs where a public authority fails to correctly construe the legal authority under which it acts - thus acting outside its authority.

Answer 91

Anisminic Ltd v Foreign Compensation Commissioners

Answer 92

The FCC, in considering a claim for compensation by Anisminic Ltd over a forced sale of its property, misinterpreted the rules governing its powers, by assuming that it had to be shown that the successor in title was a British national. It therefore denied Anisminic compensation. According to the House of Lords, on the correct reading of the statute, Anisminic did not have to prove that the successor in title was also a British national, provided Anisminic was a British company.

Answer 93

Yes - in the case of Anisminic Lord Reid said - “The question is not whether they made a wrong decision but whether they inquired into and decided a matter which they had no right to consider.”

Answer 94

Yes - in the case of R v Lord President of the Privy Council, ex parte Page Anisminic was approved - it was said that 'Parliament had only conferred the decision-making power on the basis that it was to be exercised on the correct legal basis; a misdirection in law in making the decision therefore rendered the decision ultra vires'

Answer 95

In the case of Boddington v British Transport Police it was said that "... Anisminic ... extend[ed] the doctrine of ultra vires, so that any misdirection in law would render the relevant decision ultra vires and a nullity..."

Answer 96

Yes - as shown in the case of R v Lord President of the Privy Council, ex parte Page; 1. Where the error of law is not relevant to the decision challenged. 2. Decision made by an inferior court if legislation stipulates that the decision of such court is final. 3. Specialist areas (e.g. where courts may lack expertise).

Answer 97

In this case a further instance in which a decision may not take a decision-maker outside of their jurisdiction was established.

Answer 98

In this case a distinction was drawn between (a) the interpretation of law and (b) the correct application of law to the facts. It was said that an incorrect interpretation would taint a decision with illegality but an application of the law to the facts in a way different to the courts expectations wouldn't necessarily make the decision illegal - provided the conclusion is within the range of conclusion open to a reasonable decision maker.

Answer 99

As oppose to an error of law, an error of fact involves a mistake by the decision maker as to the factual content to which the relevant law is applied.

Answer 100

(1) Traditionally errors of fact were only reviewable where either; (a) the error related to a fact that was jurisdictional. Jurisdictional: Where the decision maker can enter into an enquiry only if the particular fact exists. Or; (b) no evidence at all for the decision reached.

Answer 101

The alternative was to treat errors of fact as a failure to have regard to a relevant consideration - the true facts.

Answer 102

In the case of E v Secretary of State for the Home Department the Court of Appeal held it no longer necessary to characterise the error as a failure to have regard to relevant considerations.

Answer 103

In this case Carnwath LJ said a claimant must show; (i) a mistake as to a existing fact (including a mistake as the availability of evidence); (ii) the fact or evidence must be uncontentious and objectively verifiable; (iii) the claimant/the claimant’s lawyers must not have been responsible for the mistake; and (iv) the mistake must have played a material part in the tribunal’s reasoning. In order to justify a finding of illegality for mistakes of fact.

Answer 104

If a decision is found to be illegal the decision is void ab initio.

Answer 105

Failure to retain discretion occurs when a public body either; (a) wrongfully delegates or transfers power, or; (b) fetters discretion by over-rigid adherence to policy

Answer 106

The general rule that the body to which power has been delegated by Parliament may not itself delegate power is based on the desire to maintain parliamentary intention and ensure accountability.

Answer 107

Yes, further delegation may be permitted in cases where legislation explicitly permits this.

Answer 108

Barnard v National Dock Labour Board - here the claimants were suspended by the port manager not by the Dock Labour Board (the correct body under the Dock Workers Regulation of Employment Scheme).The Board cannot just ratify port manager’s decision. At most all it can do is take recommendations from port manager. Therefore there was an improper delegation of power.

Answer 109

Carltona Ltd v Works Commission - here wartime regulations empowered Commissioner of Works (headed by a Minister) to requisition property. The requisition notice was made by a civil servant of the rank of assistant secretary. It was found that this type of delegation - Ministers to Civil Servants - was permitted.

Answer 110

He said, such a delegation was permitted because - “In the administration of the Government in this county the functions which are given to ministers… are functions so multifarious that no minister could ever personally attend to them…”

Answer 111

The Carltona Principle is to be read into legislation – R v Secretary of State for the Home Department ex parte Oladehinde.

Answer 112

The case of Lavender and Sons Ltd v Minister of Housing and Local Government demonstrated that ministers must be open to persuasion or else they risk acting under dictation and failing to retain discretion as a result.

Answer 113

A extractor purchased land preserved for agriculture to extract gravel and applied for planning permission to the local planning authority. The local planning authority consulted the interested parties including the Minister for Agriculture who objected. Planning authority was ultimately refused so the claimant appealed unsuccessfully to the Minister of Housing and Local Government. The Minister said it was his policy to withhold permission in such cases ‘unless the Minister for Agriculture is not opposed’.

Answer 114

He said that the minister had been acting under dictation and had thus failed to retain discretion - “…by applying and acting on his stated policy I think the Minister has fettered himself in such a what that in his case it was not he who made the decision for which Parliament made him responsible.”

Answer 115

Generally, over-rigid policy develops and fetters discretion when; Broad powers are given to a body by statute, the body then issues policy guidelines to facilitate decision making consequently policy becomes so rigid that the body refuses to countenance exceptions to this policy. In effect, the policy has become a rule.

Answer 116

British Oxygen Co Ltd v Minister of Technology

Answer 117

S1(1) of the Industrial Development Act 1966 provided that the Board of Trade “may make to any person carrying on a business in Great Britain a grant towards approved capital expenditure incurred by that person in providing new machinery or plant.” The Board adopted a policy of not giving a grant for any item of plant costing less than £25. The claimant had purchased £4m of gas cylinders worth £20 each in the 3 years following the entry into force of the act. They were refused a grant.

Answer 118

He said - “The general rule is that anyone who has to exercise statutory discretion must not ‘shut his ears to an application’”.

Answer 119

Discretion can be abused by: (a) Using a power for an improper purpose; (b) Taking into account irrelevant considerations or failing to take into account relevant ones.

Answer 120

Sydney Municipal Council v Campbell

Answer 121

A Statute empowered the council to purchase land for the specific purposes of “carrying out improvements in or remodelling any protection of the city.” Instead land was purchased in this instance simply in order to make money from an increase in land value. Here, an obvious misuse of power had occurred.

Answer 122

Padfield v Minister for Agriculture, Fisheries and Food

Answer 123

The Secretary of State could refer complaints to a Committee of investigation. The Appellant argued that the purpose of this power is to bestow on the minister a duty to refer every genuine and substantial complaint. The Respondent said his only duty was to consider a complaint fairly and he has unfettered discretion whether to refer a complaint.

Answer 124

He said that while the Appellant goes too far. The discretion of the minister is not unfettered as the Respondent suggested. Discretion should be used to promote the policy or purpose of the statute. Indeed, the Minister can’t use discretion to thwart or counter the policy.

Answer 125

This case brought to the fore the issue of identifying what the purpose of a statute is - key in determining whether it has been used for an improper purpose or not.

Answer 126

A metropolitan borough council took the decision to pay its lowest grade of workers the same amount, regardless of whether they were male or female. The Council were empowered under S62 Metropolis Management Act 1855 to pay employees “such .... wages as (the Council) may think fit." The District Auditor was empowered to ‘disallow any item of account contrary to law, and surcharge the same on the person making or authorising the making of the illegal payment.’

Answer 127

Was the decision to pay employees equally irrespective of sex an exercise of a power for an improper purpose?

Answer 128

The case concerned the building by the Corporation of public toilets and a subway affording access to them from both sides of the street under which the toilets were situated. The Railway Company argued that while the Corporation was empowered to build public toilets, the real purpose of its act was to build a subway, which it had no power to do.

Answer 129

Lord Macnaughten, giving judgment, was not sympathetic to this argument. His main point was that as long as the main purpose is a lawful one and is not a sham disguising an ulterior (unlawful) purpose, then the act is lawful.

Answer 130

This was supported by the concept of ‘dominant purpose’ set out by Denning LJ in Earl Fitzwilliam’s Wentworth Estates Co v Minister of Town and Country Planning. As long as the ‘dominant purpose’ is a lawful one, the act is lawful.

Answer 131

R v ILEA ex P Westminster CC & Porter v Magill

Answer 132

ILEA used public money to fund a poster campaign about the effect of government cuts in the rate support grant on higher education. It had power under statute to fund information in its area on "matters relating to local government". ILEA accepted that it had two reasons: To give information as to the policies; To persuade public that ILEA’s approach to policy was ‘correct’.

Answer 133

Shirley Porter, the Conservative leader of Westminster Council at the time, had formulated a policy of designating certain blocks of Council houses to be sold to approved applicants, rather than being re-let, with the aim of increasing the number of likely Conservative voters in key marginal wards; the aim, in short, being electoral advantage. Grants of £15,000 were made available to tenants to encourage them to move.

Answer 134

Public Law Project v The Secretary of State for Justice and The Office of the Children’s Commissioner

Answer 135

The case concerned the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LAPSO). The Lord Chancellor had the power under s 41(2)(b) of the LAPSO to vary the ‘services provided for a particular class of individual’. The Lord Chancellor issued LASPO Act 2012 (Amendment of Schedule 1) Order 2014 to introduce the criterion of residence when assessing who is entitled to legal aid.

Answer 136

Was the Lord Chancellor empowered to introduce this criterion of residence?

Answer 137

He said - 'The statutory provisions, read as a whole, demonstrate that that which the Lord Chancellor had publicly and repeatedly avowed, was to be achieved by a process whereby services were identified according to his assessment of where civil legal aid was most needed. No other criterion emerges from analysis of the statutory provisions. '

Answer 138

He said - 'There is no dispute as to the purpose of the introduction of the residence test. It is designed to ensure that those on whom civil legal aid is conferred “have a strong connection with the UK”. This test has nothing to do with need or an order of priority of need. It is, entirely, focussed on reducing the cost of legal aid.'

Answer 139

He said - 'The exclusion ... on the ground of personal circumstances or characteristics ... which have nothing to do with the nature of the issue or services involved or the individual’s need, or ability to pay, for the services, is simply not within the scope of the power accorded to the Lord Chancellor by section 9(2)(b) of LASPO, and nothing in section 41 undermines that contention.'

Answer 140

This case emphasised the importance of determining the purpose behind the exercise of power.

Answer 141

Miranda alleged that detention at airport under schedule 7 of the Terrorism Act 2000 was unlawful as the powers were exercised for an ‘improper purpose’. Paragraph 2(1) of Schedule 7 stated - “An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b)”. Miranda argued that the actual purpose of detention was not “for the purpose of determining whether he appears to be a person falling within section 40(1)(b)” but to assist the Security Service in obtaining access to the material in the claimant’s possession. This is an improper purpose.

Answer 142

After assessing the various Post Circulation Sheets the courts found that the true and dominant purpose of the Schedule 7 stop of Mr Miranda was to give effect to the final PCS which in turn stated - 'We assess that Miranda is knowingly carrying material, the release of which would endanger people’s lives. Additionally the disclosure, or threat of disclosure, is designed to influence a government, and is made for the purpose of promoting a political or ideological cause. This therefore falls within the definition of terrorism and as such we request that the subject is examined under Schedule 7.' Thus the power was exercised for a proper purpose.

Answer 143

A decision maker will abuse their discretion if they fail to take into account relevant issues or take into account irrelevant issues.

Answer 144

R v SS HD ex p. Venables | R v Somerset CC ex p. Fewings

Answer 145

In this case involving the fixing of the prison term by the Home Secretary of the notorious teenage killers of a 6 year old child, James Bulger, the Court found that the Home Secretary had taken into account a petition signed by 250,000 members of the public.

Answer 146

This case concerned the decision of Somerset County Council to ban stag hunting on its land and the challenge thereto. They were empowered to manage land “for the benefit of their area”. The Court of Appeal found that the Council at no point had their attention drawn to the relevant statutory provision and that Councillors appeared to have been motivated primarily by the view that stag-hunting was morally repellent.

Answer 147

1. Mandatory Factors: decision maker MUST take into account 2. Prohibited Factors : decision maker must NOT take into account 3. Discretionary Factors: decision maker MAY take into account

Answer 148

CCSU v Minister for Civil Service

Answer 149

He said - that judicial review should be available when an individual is deprived of: “Some benefit or advantage which either - (a) 'he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment' (b) 'he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn'

Answer 150

Forsyth said - “If the executive undertakes, expressly or by past practice, to behave in a particular way the subject expects that undertaking to be complied with. That is surely fundamental to good government and it would be monstrous if the executive could freely renege on its undertakings. Public trust in the government should not be left unprotected.”

Answer 151

Administrative Autonomy and Legal Certainty - the tension between the two has shaped the concept of legitimate expectations.

Answer 152

1. Express promise of consultation before action taken 2. Expectation of consultation arises from past practice 3. Expectation based on previous enjoyment of a benefit

Answer 153

R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operator's Association - Liverpool council had promised the Taxi's association that it would not increase the number of licences for taxis without consulting them. Then did precisely that with no consultation.

Answer 154

Council of Civil Services Unions v Minister for the Civil Service - Mrs Thatcher removed the right of workers at GCHQ to belong to trade unions.

Answer 155

He said - "...the evidence shows that, ever since GCHQ began in 1947, prior consultation has been the invariable rule when conditions of service were to be significantly altered. Accordingly in my opinion, if there had been no question of national security involved, the appellants would have had a legitimate expectation that the Minister would consult them before issuing the instruction [banning trade union membership"

Answer 156

Devon County Council ex parte Baker; Durham County Council ex parte Curtis - The case concerned the decision by the two Councils to shut down certain residential homes for the elderly. Devon had engaged in fairly extensive consultation with the residents; Durham only specifically made the residents aware of the plan 5 days before the final decision was made to go ahead with it. Residents from both homes claimed that they had had a legitimate expectation of proper consultation, which had been frustrated by the Councils' actions.

Answer 157

He said - it is perhaps an "unsurprising principle that the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit..."

Answer 158

1. Procedural Legitimate Expectations | 2. Substantive Legitimate Expectations

Answer 159

An individual has an expectation that a certain procedure will be followed.

Answer 160

An individual has an expectation that a certain outcome will be reached.

Answer 161

In the case of R v Secretary of State for Transport ex parte Richmond upon Thames LBC it was said - "such a doctrine would impose an obvious and unacceptable fetter upon the power (and duty) of a responsible public authority to change its policy when it considered that that was required in fulfilment of its public responsibilities"

Answer 162

R v Secretary of State for the Home Department ex parte Khan

Answer 163

The applicant sought to adopt his brother's child from Pakistan. The Home Office had published general criteria which would be applied to decide whether to allow the child to come into the UK. The applicants appeared to satisfy all the criteria, but when the application was made, it was refused and it was evident that different criteria had been applied, in particular the HO appeared to have decided that because the child was living in good conditions with his mother, entry to the UK should not be allowed.

Answer 164

They said - “The Secretary of State… should not in my view be allowed to resile from [the published criteria] without affording interested persons a hearing, and then only if the overriding public interest demands it.”

Answer 165

Does the position of the court (in regards to substantive legitimate expectations) mean that authorities are prevented from changing their policies unless the courts think the overriding public interest demands it?

Answer 166

R v North and East Devon Health Authority, ex parte Coughlan

Answer 167

“Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.”

Answer 168

Some people questioned whether the role of the court in "weighing the requirements of fairness against any overriding interest relied upon for the change of policy” would risk dissolving the distinction between review and appeal?

Answer 169

R v Secretary of State for the Home Department ex parte Hargreaves

Answer 170

This case established that depending on its importance, the substantive legitimate expectation may only be treated as a consideration, which should be considered by the decision-maker, but to which s/he can give as much or little weight as s/he pleases – this is likely to apply where a general policy is being changed.

Answer 171

Legitimacy is not about what individuals actually expect, but about what they are entitled to expect (Elliott) - see the case of Re Findlay.

Answer 172

1. R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) 2. R (Bloggs 61) v Home Secretary 3. (GCHQ Case)

Answer 173

The assurance must be clear, unequivocal and unambiguous - in the case of Bancoult, an undertaking to work ‘on the feasibility of resettling the Ilois’ on the Chagos Islands and to change the law to permit resettlement did not amount to an ‘unequivocal assurance’ that the Ilois could return, so no legitimate expectation was found by the majority.

Answer 174

The expectation must be founded upon a promise or practice by the public authority that is said to be bound to fulfil it. (e.g. the police cannot bind the prison service).

Answer 175

An established practice may lead a claimant to legitimately expect that the same practice will be followed in the future.

Answer 176

R v Devon County Council ex parte Baker; Durham County Council ex parte Curtis, Simon Browne LJ - there must he said be "a clear and unambiguous representation upon which it was reasonable for him to rely"

Answer 177

R v IRC ex p Unilever plc - IRC had for over 20 years allowed Unilever to claim relief for trading loss even though the relief was not properly sought, being out of time. It then revoked this practice, with no notice, costing Unilever millions.

Answer 178

1. Assurances to the claimant only - see case of R v Inland Revenue Commissioners, ex parte Unilever Plc 2. Assurances to the world at large - see the case of Attorney General of Hong Kong v Ng Yeun Shiu

Answer 179

The claimants invoking such statements must be able to show that they fall within the group to whom the statement relates.

Answer 180

Common Sense would suggest so but the case of R (Rashid) v Secretary of State for the Home Department suggested otherwise.

Answer 181

The claimant was resisting removal to Iraq on the grounds that deportation would breach Home Office policy. Neither the Claimant nor those in the Home Office dealing with his case knew of the policy until after the decision was made. It was held that the claimant’s ignorance was immaterial. Note, however, unease was expressed by judges that legitimate expectations were the correct vehicle to use.

Answer 182

In cases where it is unreasonable for the promisee to believe that policy will not change they may be prevented the existence of a legitimate expectation may be precluded - see the case of Findlay v Secretary of State for the Home Department.

Answer 183

The Minister announced changes to parole policy, motivated by public concern about prisoners obtaining parole seemingly too soon into their sentences and also of prisoners committing offences while on parole. The changes meant that, amongst other things, life prisoners would have to serve much longer sentences than they had been lead to believe under the old policy. They claimed a legitimate expectation that the old policy would be applied to them. The courts denied this, Lord Scarman said on the issue - "but what was their legitimate expectation? Given the substance and purpose of the legislative provisions governing parole, the most that a convicted prisoner can legitimately expect is that this case will be examined individually in the light of whatever policy the policy the Secretary of State sees fit to adopt [provided the new policy] is a lawful exercise of...discretion..'

Answer 184

1. Instrumental - promotes just/accurate decisions; promotes public confidence in administration. 2. Intrinsic: respects individuals’ dignity and value rather than treat them as objects of arbitrary governmental process.

Answer 185

Nemo judex in sua causa - No one may be a judge in his/her own cause.

Answer 186

R v Sussex Justices - Lord Heart said - “Justice should not only be done but be seen to be done"

Answer 187

1. Direct Interests | 2. Indirect Interest

Answer 188

If the decision-maker has a direct interest in the outcome of the case they will be automatically disqualified.

Answer 189

1. Where the decision-maker has some financial interest in the outcome (common) 2. Where the decision-maker has a direct interest as an (effective) party to the case (rare)

Answer 190

The basic principle is that the challenger merely needs to demonstrate the existence of the interest. There is no need to show any actual bias or likelihood of it - see the case of Dimes v Grand Junction Canal Co. Proprietors.

Answer 191

In R v Gough he said - "In such a case therefore, not only is it irrelevant that there was in fact no bias on the part of the tribunal, but there no question of investigating, from an objective point of view, whether there was any real likelihood of bias, or any reasonable suspicion of bias, on the facts of the particular case. The nature of the interest is such that public confidence in the administration of justice requires that the decision...not stand"

Answer 192

Financial interest will also be considered ‘direct’ and therefore an automatic disqualification if individual gaining the financial benefit is a close relative of the decision-maker - see the case of Locabail (UK) Ltd v Bayfield Properties Ltd.

Answer 193

“the link had to be so close and direct as to render the interest of that other person for all practical purposes indistinguishable from an interest of the judge.” - Locabail Case.

Answer 194

Yes, in Locabail, it was found that the automatic disqualification rule of Dimes didn't apply because the financial interest of the judge in the outcome was too tenuous on the evidence - the judge was a senior partner in Herbert Smith, which was acting for a company in different but related proceedings claiming security against the applicant’s husband.

Answer 195

R v Bristol Betting and Gaming Licensing Committee, ex parte O’Callaghan

Answer 196

R v Bow Street Metropolitan Stipendary Magistrate, ex parte Pinochet Ugarte (No 2)

Answer 197

Lord Hoffmann – who was in the majority in Pinochet 1 – was a director of a subsidiary of Amnesty International. The House of Lords held in Pinochet (No 2) that Lord Hoffmann was disqualified and that the original decision should be set aside.

Answer 198

He said - that the basis of the automatic disqualification rule is that no one shall be a judge in his own cause, i.e. no one should judge proceedings in which he/she is a ‘party’. A ‘party’ would be someone who has an interest – financial, proprietary, or otherwise – in the outcome of the case. Lord Hoffmann was such a party.

Answer 199

It oversaw an extension of the automatic disqualification rule. Note that Lord Browne-Wilkinson suggested that it was only in rare circumstances such as those in Pinochet that this extension would be applicable.

Answer 200

He said - “Only in cases where a judge is taking an active role as trustee or Director of a charity which is closely allied to and acting with a party to the litigation should a judge normally be concerned either to recuse himself or disclose the position to the parties”

Answer 201

Helow v Secretary of State for the Home Department - Pinochet principle did not apply to a judge who was a member of an organisation which had expressed views relevant to the case and where the judge had not actively associated herself with the views in question.

Answer 202

The classic test was stated in R v Gough - “The court should ask itself whether… there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly disregarded) with favour, or disfavour, the case of a party to the issue under consideration by him.”

Answer 203

The test had to be reassessed after the HRA 1998 in line with Strasbourg Jurisprudence - the courts, as public bodies under s. 6(3)(a), are obliged to act compatibly with the convention rights.

Answer 204

Stated in Porter v Magill - the test is now - "whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the [decision-maker] was biased".

Answer 205

Real Possibility (new) v Real Danger (old). This represents the difference between actual and apparent bias.

Answer 206

Whether there was a real danger the decision-maker "was predisposed or prejudiced against one party's case for reasons unconnected with the merits of the case" - R v Inner West London Coroner, ex parte Dalliaglo.

Answer 207

This means more than a minimal risk but less than a probability. The Judge must have known of the matter giving rise to the danger of bias at the time of the hearing.

Answer 208

Taylor v Lawrence | Lawal v Northern Spirt Ltd

Answer 209

In this case Lord Woolf CJ said - ‘[t]he informed observer can be expected to be aware of the legal traditions and culture of this jurisdiction…Our experience over centuries is that…integrity is enhanced, not damaged, by the close relations that exist between the judiciary and the legal profession…[t]he informed observer will therefore be aware that in the ordinary way contacts between the judiciary and the profession should not be regarded as giving rise to a possibility of bias. On the contrary, they promote an atmosphere which is totally inimical to the existence of bias.’

Answer 210

Here it was said - the ‘fair-minded and informed observer’ is ‘neither complacent nor unduly sensitive or suspicious’.

Answer 211

The courts show a willingness to impute a lot of knowledge, including specialist knowledge, to the hypothetical observer. So…is the observer really the court?

Answer 212

1. Where the decision maker has a relationship with the person affected by the decision - Metropolitan Properties v Lannon 2. Where an overlap of roles causes an 'institutional bias'; (a) decision-maker made original decision against which an appeal is being made - Hannam v Bradford Corporation (b) counsel has sat as judge with member of panel hearing case - Lawal v Northern Spirit Ltd 3. Decision maker appears already to have approved the decision - R v Secretary of State for the Home Department, ex parte Carroll 4. Decision maker has expressed very strong views on general subject matter of case which might be though to affect his ability to approach case with open mind - Timmins v Gormley 5. Decision taken by non-judicial bodies - councillors and politicians deciding cases involving their political views - R(on the application of Lewis) v Redcar and Cleveland Borough Council MORE DETAILS ON EACH NEEDED

Answer 213

The non-personal predisposition based on an individuals political interests/policy considerations will be subject to the predetermination rule rather than the rule outlined in Magill.

Answer 214

Established in the case of R (Island Farm Development Ltd) v Bridgend County Borough Council - legitimate predisposition (an open mind) ≠ illegitimate predetermination (a closed mind). This is determined from the perspective of the fair-minded and informed observer in Porter v Magill.

Answer 215

1. Statutory provisions mandating the decision-maker | 2. Waiver

Answer 216

Duty to Act Fairly

Answer 217

Bias concerns itself with the impartiality of the decision-maker, a duty to act fairly relates to the fairness of the decision-making process. Both are required to ensure procedural fairness.

Answer 218

There are two key approaches; 1. Functional - Look at the nature of the decision being made and the decision-maker. 2. Impact - Look at the impact of the decision upon the individual in question.

Answer 219

This approach looked to the type of decision being made/the decision-make - a distinction was made between administrative and judicial decisions with the latter requiring more procedural safeguards.

Answer 220

There was difficulty distinguishing between administrative and judicial decisions.

Answer 221

The case of Ridge v Baldwin marked a shift towards an impact based approach - this is now the modern position.

Answer 222

The Chief Constable of Brighton had been dismissed by the local police authority without a hearing. The authority had statutory power to deprive him of his position for incapacity or misconduct. The House of Lords found he was entitled to a hearing.

Answer 223

1. He had been deprived of his job and source of livelihood (impact of decision and duty of respect) 2. The power to dismiss was limited by statute, so the authority did not have complete discretion – some checks were appropriate as to whether the dismissal had occurred on statutory grounds (nature of power and instrumental perspective).

Answer 224

The focus was now on the impact on the individual, in accordance with the modern impact approach - look not to some classification of the type of decision being made, or the status of the person making it but rather whether fairness demanded consultation. In determining this issue, the primary matter to look at was the impact of the decision on the person affected and in particular on his or her rights or interests.

Answer 225

If a decision impacts on a person's legal rights or fundamental freedoms: consultation or a hearing is almost always necessary. If a decision impacts on a person's interests: a balancing act will be required, though still depend on magnitude of impact; in such cases, the type of hearing will still be relevant; as will benefit of fairness to individual and cost to public body concerned.

Answer 226

R v Barnsley Borough Council ex parte Hook - here the severity of the impact of the decision on the livelihood of the defendant was considered.

Answer 227

This case rendered the distinction between an administrative and judicial decision obsolete - Lord Denning said - "I do not mind whether the market holder is exercising a judicial or an administrative function. A stallholder counts on his right [to have a stall] to....earn his living."

Answer 228

The standard required to satisfy a 'fair procedure' is lower in 'application cases' in comparison to revocation ones.

Answer 229

McInnes v Onslow Fane - here it was said that in "application cases", all that the applicant could reasonably demand was that the decision maker should reach an "honest conclusion without bias and not in pursuance of any capricious policy"

Answer 230

Yes - R v Huntington District Council ex parte Cowan demonstrated that if a decision is made as a result of evidence from a third party (fairness of procedure requirements say) the application ought to be told of the substance of the objections and have a chance to reply to them.

Answer 231

1. Right to legal representation 2. Right to call witnesses and cross-examine 3. Right to a hearing 4. Notice of the charge

Answer 232

According to Russell v Duke of Norfolk, the following may; 1. The circumstances of the case 2. The nature of the inquiry 3. The rules applicable to the administrative decision-maker 4. The subject matter of the administrative decision/act Note that all of the above are very fluid concepts

Answer 233

Fairness requires that there is a high correlation between the the importance of the rights at stake in a decision and the extent of the procedural safeguards - the more important the rights at stake the greater the extent of procedural safeguards.

Answer 234

Notice is about providing the individual with the case against them when they face a governmental decision that will cause them detriment.

Answer 235

1. If a person has no notice of the case against them then they cannot make any effective representations to advance their interests. It is a pre-requisite to the exercise of other procedural rights. 2. Equality of arms

Answer 236

Lord Hope in Secretary of State for the Home Department v AF said ‘Denunciation on grounds that are not disclosed is the stuff of nightmares’

Answer 237

R v Governing Body of Dunraven School and Another ex parte B - a boy expelled from school was not informed of the evidence against him, he should have been informed so as to make it possible for his parents to argue against the decision.

Answer 238

Lord Mustill in R v Secretary of State for the Home Department ex p Doody and Others said ‘Since the person affected [by a decision] usually cannot make worthwhile representations without knowing what factors may weight against his interests, fairness will very often require that he is informed of the gist of the case which he has to answer.’

Answer 239

Notice is the most basic requirement of fair procedures therefore it is likely to be required unless there are particular pressing reasons of public policy/ safety.

Answer 240

Roberts v Parole Board

Answer 241

In a parole hearing, the Board determined that allowing certain evidence against the prisoner to be disclosed to him might well reveal the source of the evidence, who might then be endangered. So that information was revealed not to the prisoner but only to a ‘special advocate’, who could challenge it, but not discuss the evidence with the prisoner.

Answer 242

Article 5(4) of the ECHR says - Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The decision by the courts not to provide the defendant himself with details of the evidence against him arguably undermines this.

Answer 243

It is now clear that under Art 5(4) and 6, at least the gist of the case against a suspect facing detention or a control order must be given to him, not just the special advocates.

Answer 244

In this case the Court of Appeal affirmed that right to knowledge of case against was a fundamental right at common law and could only be displaced by clear statutory language.

Answer 245

Right to notice may also be excluded where claimant is a ‘mere applicant’.

Answer 246

1. Usually, no wrong doing is alleged against the "applicant". 2. The courts may treat the applicant's request as duty to give reasons for final decision - e.g. McInnes v Oslow Fane 3. Applicant may be entitled to be told substance of any allegations made against them by others - e.g. R v Huntingon District Council ex p Cowan

Answer 247

Generally, the courts seem to adopt the position that bare or mere applicants may be refused both unless their reputation is in danger, but, if 'vital interests' are at stake there is a much higher chance of an oral hearing or written representation being granted in accordance with procedural fairness.

Answer 248

R v Secretary of State for the Home Department ex parte Al Fayed - here an application for citizenship by naturalisation was rejected on the grounds of failure to satisfy the 'previous good character' criteria. The court held that the claimant should have been given a chance to respond as the decision impacted upon their 'good name'.

Answer 249

Again the relationship is proportionate, the more important the rights or interests affected the more likely the party is to be entitled to a hearing or written representation, even at the initial application stage.

Answer 250

R v Secretary of State for the Home Dept ex p Harry - H was a mental patient detained in conditions of mental security which would mean minimal liberty. Following a review of his case, it was recommended to the Home Secretary by an advisory board that following a recommendation by a mental health review tribunal that he be transferred to a lower security hospital, with considerably more freedom. This was refused, so he was to stay at a maximum security classification.

Answer 251

R (Smith) v Parole Board - here the Parole Board was called upon to decide whether the appellants would present an unacceptable risk of reoffending if released again (were released before but breached the terms of their licences). The Board decided that they would, and declined to order release. Neither of the appellants was provided with an oral hearing.

Answer 252

The House of Lords found a breach of procedural fairness had occurred; 1. The prisoner ‘should have the benefit of a procedure which fairly reflects, on the facts of the particular case, the importance of what is at stake for him, as for society’. Thus the significance of what was at issue – liberty – was central to the court’s assessment. 2. They also found it relevant that there were factual issues in dispute, raising issues of credibility, which could also be resolved better through an oral hearing.

Answer 253

Lloyds v McMahon - here an oral hearing was found to be unnecessary in the circumstances as while the consequences of the decision were serious they were to be balanced against competing considerations.

Answer 254

1. What was/is the purpose of the hearing? | 2. What are the practical consideration of affording a hearing?

Answer 255

In the case of Lloyds v McMahon it was said that "If any had asked to be heard orally and the auditor had refused, there would have been clear grounds for a complaint of unfairness.”

Answer 256

The whole point of an oral hearing is to resolve disputed issues of fact that cannot be resolved by written submissions alone. Calling and cross examining witnesses is integral to this as the credibility of witnesses needs to be stress-tested.

Answer 257

R v Board of Visitors of Hull Prison, ex parte St Germain

Answer 258

The claimants, prisoners in Hull Prison, faced disciplinary offence charges arising from a prison riot. A finding against them entailed a loss of remission, effectively increasing the length of their time in prison – so liberty was at issue. The claimants sought judicial review arguing that the procedure had been unfair, given that the Board did not allow them to call witnesses in alibi or to challenge the hearsay evidence of witnesses through cross-examination. The Court considered that both the nature of the matter (alibis could disprove their involvement in the riot) and its seriousness (liberty was at stake) required the availability of cross-examination under the overriding obligation to provide a fair hearing’.

Answer 259

R (Bonhoeffer) v General Medical Council

Answer 260

Consultant paediatrician faced proceedings against fitness to practice on the basis of allegations of sexual assault of children in Kenya. Although most evidence came from Witness A, she was not called into court – so no cross-examination was possible.

Answer 261

The Court found a breach of procedural fairness. It stated: ‘It is hard to imagine circumstances in which the ability to cross-examine the uncorroborated allegations of a single witness would assume a greater importance to a professional man faced with such serious allegations.’

Judicial Review - Spare Whole Set Flashcards

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