Public law - Judicial Review

Question 1

Judicial review - how to go through a judicial review problem question

Answer 1

• The box below sets out the structure to adopt when answering any problem question on JR. Each step is _explaine_d in more detail on the following pages.
• STEP 1: Briefly explain the importance of JR.
  
  • Judicial review of executive decisions is vitally important - it is the practical implementation of the Rule of Law, taking place primarily through the review of the actions of decision-makers (Jowell). In particular, judicial review makes sure that the decision maker acts within the law by not acting arbitrarily or ultra vires (outside their power) (see below).
• STEP 2: Go through the preliminary issues (see below):
  
  • Remember that th_ere_ may be many parties or interested parties. Deal with preliminary issues for all applications at the same time.
• STEP 3: Define the particular JR ground for review:
  
  • Illegality, procedural impropriety, unreasonableness or legitimate expectation.
• STEP 4: Go through the JR ground in detail:
  
  • There will be several issues in the question - identify them, and state which of the specific sub-grounds of the JR ground it applies to (e.g. identify that the issue is to do with the Error of Law sub-ground of Illegality as a ground for review) (see the following c**hapters).
• STEP 5: Conclude and discuss remedies:
  
  • Does the claimant or interested party have a strong or weak case for a judicial review? On what grounds? Is it likely to be granted? What remedy would be most appropriate?

Question 2

Judicial review - principles and preliminary requirments

Answer 2

• Step 1: Introduction
• Step 2: The 6 preliminary requirements of JR
  
  • Amenability to JR – public bodies
  • Time limits for JR application
  • Procedural exclusivity
  • Standing – who may apply
  • Exhaustion of alternative remedies
  • Ouster clauses
• Step 3 & 4: Grounds for review
• Step 5: Conclude and discuss remedies

Question 3

Judicial review - introduction

Answer 3

• Judicial review (“JR”) is a procedure that allows individuals to have courts review how the government is acting within the framework of powers given to it by Parliament, so as to ensure that it is not acting ultra vires (outside its powers). JR has been extended to administrative principles more generally - JR also involves ensuring standards of good administration. The court’s role in overseeing administrative actions clearly links to the more substantive idea of the rule of law.
• JR is not, ho_wever, a form of appeal. It only allows to review the decision makin_g process (the laws, rules, and principles governing the exercise of public power), rather than the actual decision itself.

Question 4

Judicial review - preliminary requirments - outline

Answer 4

• B_eg_in your answer to any problem question by going through the following preliminary requiremen_ts_ _f_or all complainants. Do not spend too long on this part of a JR question - you should be able to cover any issues in a page, or less if there are no problems.
• JR claims may only be brought with the permission of the court, which is why the preliminary requirements must be satisfied. Permission to bring JR must be applied for and may be contested.

1. Amenability to JR - Public bodies
2. Time limits for JR Application
3. Procedural exclusivity
4. Standing - Who may apply
5. Exhaustation of alternative remedies
6. Outser Clauses

Question 5

Judicial review - preliminary requirments - Amenability to JR - Public Bodies

Answer 5

• JR only applies to public bodies. Ask: is the body amenable to JR - is it a public body?
  
  • Local authorities, statutory tribunals and bodies are “core” public bodies. Otherwise, the following factors are relevant to deciding whether something is a public body:
    
    • Is the body exercising a function of a public nature? If so, it is a public body.
      
      • The courts will focus on the nature of the act rather than simply on the identity of the body or the source of its powers (R v Panel of Takeovers and Mergers ex parte Datafin). This includes bodies that exercise a public function, even if they are not publicly funded or overseen.
      • Datafin principles mean that regulatory b_odies_ such as the ASA (R v Advertising Standards Authority ex parte Insurance Services) and Bar Council (R v Bar Council ex parte Percival) are subject to JR.
      • The Datafin principles were considered in R v Jockey Club ex par_te_ Aga Khan. The Jockey Club was a controller of a significant national activity affecting the public interest, h_ad_ _a mon_opoly of power and satisfied the above test. However, the court ruled that, “_neither in its fr_amework nor its rules nor its functions… [does it] fulfil a governmental role.”
• Public importance of the function;
• Source of the power being exercised (R v Jocket Club ex parte Aga Khan);
• Duty to act judicially when making decisions;
• Motivation for using any power (R ((Beer t/a Hammer Trout Farm) v Hampshire Farmers Market); and
• That the body does not derive its power only from the voluntary submission of the parties. Supporting bodies such as the FA are excluded from JR (R v Football Association ex parte Football League). Religious bodies are also excluded from JR, though religious schools are not (ex p Wachmann)
• Care homes have been an issue – in practice ‘ governmental’ means looking for a statutory relationship or powers:
  
  • R v Servite Houses and Wandsworth ex parte Gldsmith: local authourities are under a statutory obligation to make arrangments to provide accommodation. These arrangments are a matter of private law with a body which does not ow_e_ _its ex_istence to statute. So it is only possible to bring actions against local authorities, not private care providers.
  • R (A) v Partnerships in Care: here the private care provider was actually regulated by st_atute_ _(the M_ental Health Acts), and there was a public interest in ensuring that mental patients were properly cared for, so the provider’s decisions in this respect were subject to JR.
  • Public bodies for HR cases compared with public bodies for the purposes of JR cases:
    
    • Lord Hope’s obiter in Aston Cantlow and Wilmcote PCC v Wallbank was that public bodies in human rights cases are likely to be seen as bodies in JR cases, and vice versa. Restated in Hampshire CC v Graham Beer.

Question 6

Judicial review - preliminary requirments - time limits for JR application

Answer 6

• Civil Procedure Rule (“CPR”) 54.5(1)(b): claims must be brought promptly and in any case within three months. Claimants should bring claims as promptly as they can - even if the claim was brought within three months, if it could have been brought more promptly it might not be allowed. Note that the ECtHR has confirmed that imposing the promptness requirement does not violate Art. 6 ECHR (Lam v UK).
• CPR 3.1(2)(a): the court may extend the time limit if there is _a good rea_son, however there must be an exceptional reason (R v Dairy Produce Quota Tribunal ex parte Carswell**).
• Where the JR involves the enforcement of an _EU D_irective, there is no need for promptness - but the ultimate 3 month deadline still applies (R (Buglife) v N_atura_l England).

Question 7

Judicial review - preliminary requirments - procedural exclusivity

Answer 7

• The Exclusivity Principle: actions must be brought within 3 months (whether brought by an individual or a public body). Failure to bring a JR action in time will not be allowed (O’Reilly v Mackman). O‘Reilly establishes the exclusivity principle, which states that public law decisions should be challenged by an application for JR, and private law matters by an ordinary action, otherwise there is an abuse of process. State: “in order to avoid such issues, an action should be brought in the Administrative Court.”
• There are issues with regard to mixed public and private law cases, e.g. local authorities acting as landlords.
  
  • If the case involves private law rights which incidentally involve a public law issues, then it is acceptable to bring an ordinary action (Roy v Kensington & Chelsea FPC).
  • When private rights are not at stake, JR should be brought, but if they do, and the claimant has taken an ordinary action, then the claimant should be allowed to raise in that private law case all public law issues arising out of it (Roy).
  • Trustees of Dennis Rye Pension Fund v Sheffield CC - if in doubt, use JR. If not, court will always allow a private action to go ahead instead. A JR action should not be denied where it would be impractical or substantively unfair to the claimant to do so.
• It is possible to bring public law in as a defence, even after the time limit has expired, e.g. Wandsworth LBC v Winder; Boddington v British Transport Police.

Question 8

Judicial review - preliminary requirments - standing (who may apply)

Answer 8

• The applican_t_ requires the court’s permission to bring a JR claim (CPR 54.4). Section 31(3) SCA: “the court shall not grant permission unless it considers that the applicant has sufficient interest in the matter to which the application relates.”
• Being interested, even for good reasons, is not the same as having an interest. The former may only be sufficient if the case has merits, e.g. IRC V National Fe_derat_ion o_f Small_ Businesses.
• Individuals: will have sufficient interest if they are directly adversely affected by a decision relating to any of their public or private rights, e.g. R v Home Secretary ex parte Venables c.f. R (Bulger) v Home Secretary. Minors pursue their claim through a ‘litigation friend’.
• For individuals who are not directly affected, the courts may still grant the individual standing, as they acknowledge the importance of public law decisions being open to challenge (AXA General Insurance Ltd v Lord Advocate). A wide range of interests can be sufficient - open justice (R v Felixstowe Justices ex parte Leigh), constitutional concern (ex parte Rees Mo_gg_), and collective interests or legitimate expectations (R v Liverpool Corporation ex parte Liverpool Taxi Association). See, for example, Walton v Scottish Ministers where the chair of a local organisation that was formed to challenge a road scheme was granted standing to oppose the scheme.
• Pressure Groups: thi_s_ gives you the opportunity to discuss which of the following cases best apply:
  
  • Rv Secretary of State for the Environment ex parte Rose Theatre Trust: permission to apply was denied because none of the members would individually have had standing.
  • R V HMI Pollution ex parte Greenpeace: given standing because they are a large, respected organisation, who brought expert advice to the trial, and had a significant number of members in the affected area.
  • R V Foreign Secretary ex parte World Development Movement: even though none of their individual members were affected, they were given standing. This was because the matter was of public interest, the rule of law was at stake and no other challenger was likely to come forward.* The WDM brought expertise to the case, and had a strongsubstantive case (evid*en**ce of corruption).
• Contesting an application for permission: a defendant may be able to contest an application for permission on the basis that it is highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred (s. 84 Criminal Justice and Courts Act 2015). If the cou_rt agrees t_hat the conduct comp_lained would _n*ot*_ have *mad*_e a substantial d*if*feren_ce to the claimant then it wil_l refuse to allow JR.

Question 9

Judicial review - preliminary requirments - exhaustion of alternative remedies

Answer 9

If there are alternative remedies, such as a statutory appeal process (R v IRC ex parte Preston) or an alternative method of dispute resolution (R (Cowl) v Plymouth CC), then such methodsmust be used before starting a claim for judicial review.

Question 10

Judicial review - preliminary requirments - ouster clauses

Answer 10

• Ouster clauses are provisions included in statutes which exclude or restrict the use of JR, e.g. “the decision of the tribunal shall be final and conclusive.”
• The courts view their JR powers as inherent, rather than as powers granted to them by statute, and as the final safeguard against the abuse of power. Therefore there is a presumption against allowing ouster clauses, and they will be given the narrowest possible interpretation so as to limit their application.
• Anisminic v Foreign Compensation Commission is the key case to cite on strict interpretation of ouster clauses. The Foreign Compensation Act 1950 read: “a determination by the Commission of any application made to them under this Act shall not be called in_to_ _q_uestion in any court of law.” The word “determination” was interpreted such that the court held the Commission to have made a purported determination in excess of its jurisdiction - rather than a real determination. Since the Commission had only made a “purported” decision, the court’s power was not ousted, and the Commission were told to make the decision again.
• Privacy International v Investigatory Powers Tribunal is an example of a successful ouster clause. The Regulation of Investigatory Powers Act 2000 read: “determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.” The Court of Appeal held that this Act did exclude judicial review. Although the language of the clause differs from Anisminic (in particular, note the reference to questions of jurisdiction), the context is key here: the Investigatory Powers Tribunal (IPT) is staffed by judges and senior lawyers and is different to an ordinary court or tribunal in that it can investigate, hear cases in private and hear cases on assumed facts (given the secretive nature of intel_ligence_ work and national security concerns). The Court of Appeal held: “Parliame_nt_ considered that th_e IPT ca*n *be trusted to make sensible decisions about ma_tters of this kind...”
• Partial ouster clauses (CPR 54.5(3)), that operate by limiting the time for making a JR application, are more likely to be successful than absolute bars, e.g. Smith v East Elloe RDC and R y SOS Environment ex parte Ostler, in which a clause limiting appeals of the decision to a period shorter than 3 months was allowed.

Question 11

Judicial review - grounds for review

Answer 11

• If there are no issues with the preliminaries, then a complainant will be able to take action. TherearefourgroundsofJR,sodecidewhich is most applicable, and discuss in detail(explained on the following pages).Thiswillbethebulkofyouranswer.
• The first three of these grounds are explained by Lord Diplock in the GCHQ case - subsequently the law has distinguished four grounds:
  
  • Illegality
  • Procedural Impropriety / Procedural unfairness
  • Unreasonableness
  • Irrationality
  • Legitimate expectation

Question 12

Judicial Review - Conclude

Answer 12

• Once you have discussed the ground for JR in detail, and if you conclude that the complainant has a case,concludebystatingthatthe complainant will begrantedaremedy, as outlined in CPR 54.2:
  
  • Q_uashing_ Order to set aside the public body’s decision;
  • Mandatory Order to require the public body to carry out its duties;
  • Prohibitory Order to prevent the public body from acting beyond its powers;
  • Declaration setting out the rights of the parties (see also CPR 54.3);
  • Injunction to prevent a public body from acting on or enforcing a decision (see also s. 30 Senior Courts Act 1981); and/or
  • Damages where the public body’s decision has caused loss (although note that there is no standalone right to damages in JR - the claimant must also have another cause of action if it wishes to also claim damages (see also CPR 54.3).
• The most likely remedy will be an order quashing the public body’s decision, and if relevant, a mandatory order to require the public body to take the decision again in accordance with the proper procedure. Consider which of the above remedies is most appropriate in your answer**.

Question 13

Judicial review - illegality

Answer 13

• ILLEGALITY
  
  • “The decision-maker must understand correctly the law that regulates his decision-making powers and must give effect to it” (per Lord Diplock in GCHQ**).
• Illegality has various sub-grounds. These are set out below:
  
  • ​Ultra vires
  • Error of law
  • Errors of fact
  • Abuse of discretion

Question 14

Judicial review - illegality - ultra vires (Simple illegality)

Answer 14

• ULTRA VIRES
  
  • “Ultra vires” means an act or decision that goes beyond the boundaries of the legal power given to the body concerned, e.g. arresting someone for parking on a yellow line would be an ultra vires act.
• CHECK: what power does the statute in the exam question create and what is the extent of it! Has the decision maker gone beyond that power?
• Relevant cases:
  
  • Westminster v London & North West Railway
    
    • Actions that are necessary, consequent or incidenta_l_ to a power will not be ultra vi_res_.
  • R v Lord Chancellor, ex parte Witham
    
    • The Chancellor had set court fees high in order to encourage alternative dispute resolution. Witham argued that his right of access to court was being denied by the scale of court fees. Held that court fees could not be used to encourage alternatives. The statutory instrument was declared ultra vires. See also the more recent case of R (on the application of Unison) v Lord Chance_llor_ which involved fees on claims to the Employment Tribunal.
  • AG v Fulham Corporation
    
    • A local council provided a laundry service, instead of a more simple facility for residents to clean their clothes. Held the decision to provide such a service was ultr_a_ vires.
  • Rv Secretary of State for the Home Department ex parte Leech (No 2)
    
    • The power granted to prison governors to monitor correspondence between prisoners and their solicitors did not include the power to open and read letters. The decision to do so was declared ultra vires.

Question 15

Judicial review - illegality - Error of Law

Answer 15

• ERROR OF LAW
  
  • This means that the decision-maker has misread its legal powers.
• GENERAL RULE:
  
  • Errors of law are always reviewable.
• EXCEPTION 1:
  
  • Where the error of law had no effect on the outcome of the decision.
• EXCEPTION 2:
  
  • Where the decision-maker is interpreting a technical or special system of rules (e.g. ex p Page).
• EXCEPTION 3:
  
  • Where the power granted is capable of a broad interpretation (e.g. ex p South Yor_kshir_e Transport where reference was made to “a substantial part of the UK”).
• Relevant Cases:
  
  • Anisminic v Foreign Compensation Commission
    
    • A British company was nationalised after the S_uez_ conflict. Such companies were entitled to statutory compensation. The FCC said that the company in question was not entitled to compensation, but the House of Lords held that this was an error because the FCC had misunderstood the rules of the statutory compensation scheme.

Question 16

Judicial review - illegality - Errors of fact

Answer 16

• Given the nature of JR, errors of fact are not reviewable, unless they fall within one of the three categories below - error of precedent fact, no evidence or mistake/ignorance:
  
  • 1) PRECEDENT FACT
    
    • JR will be allowed where the decision-maker made a decision based on an initial finding of fact, which later turns out to be incorrect. This applies where a particular fact must be established before a power can be used.
    • Relevant Cases:
      
      • White and Collins v Minister of Health
        
        • A local authority had the power to compulsorily purchase land that was not “parkland”. When it attempted to purchase a park it was held to have made a mistake in its assessment of that land.
      • R v Secretary of State ex p Khawaja
        
        • There was an error as to the claimant’s status as an illegal immigrant. It had to be shown that the individual was an illegal entrant before the power to detain could exist.
  • 2) NO EVIDENCE
    
    • If a decision-maker’s finding is not supported by any evidence, it will be reviewable.
    • Relevant Cases:
      
      • Col_een_ _Prope_rties v Minister of Hea_lth_ _and Lo_cal Government
        
        • There was no evidence for the Minister’s claims regarding the poor condition of housing.
      • Secretary of State for Education v Tameside MBC
        
        • There was no evidence for the alleged detrimental effect of reintroducing grammar schools in the country.
  • 3) MISTAKE OR IGNORANCE OF AN ESTABLISHED FACT
    
    • Check whether the factual basis of the decision is incorrect. This kind of error of fact is reviewable if four requirements are met (E v SOS HD):
      
      • 1) Mistake as to an existing fact;
      • 2) The fact or evidence must have been “established” (i.e. proven and objectively verifiable);
      • 3) The claimant or his adviser must not be responsible for the mistake (i.e. not his fault the decision-maker was confused); and
      • 4) The mistake must have played a material part in the decision maker’s reasoning
    • Relevant Cases:
      
      • E v Secretary of State for the Home Department
        
        • E was a member of a banned organisation, the Muslim Brotherhood. He claimed that if he were to be deported, he could be tortured. The evidence supported this, so the decision to deport him was quashed.
      • Rv Criminal Injuries Compensation Board ex parte A
        
        • When deciding the compensation available for a rape victim, the CIC Board prioritised a Policewoman’s report which said the victim was exaggerating her injuries and ignored the Doctor’s report. The decision to award minimal compensation was quashed.

Question 17

Judicial review - illegality - Abuse of discretion - Relevant & Irrelevant considerations

Answer 17

• In exercising its discretion, a decision-maker must have regard to relevant matters and disregard irrelevant matters. There are 3 types of factors (ex parte Fewings).
  
  • 1) Mandatory factors - the decision-maker must consider these.
  • 2) Prohibitory factors – the decision-maker must not consider these.
  • 3) Discretionary factors – the decision-maker has the discretion to choose whether to consider these.
• These factors may be outlined in the legislation.
• Check: is there a discretionary power in the statute in your exam question? What are the relevant discretionary facto_rs_? Has the decision-maker omitted to consider any relevant factors? Has the decision-maker taken irrelevant factors into consideration?
• Relevant Cases:
  
  • R v Somerset County Council ex parte Fewings
    
    • _The coun_cil banned stag hunting on the grounds that it was immoral. However, “morality” was a prohibitory factor, so the decision was quashed. The council had not considered other mandatory factors such as environmental issues.
  • Ex parte Venables
    
    • The tariff for a child-murderer was set by the Home Secretary, taking into account public outrage. The court was asked: in exercising his discretion to set the tariff, was public ou_trage_ relevant to the decision-making process? It was held that it was not, and so he had improperly considered a prohibitory factor_. Considerin_g public outr_age_ _was n_ot within his discretion, and so the decision was quashed.
  • R V CICB ex parte A
    
    • Th_e_ _court hel_d that an expert’s advice (the Doctor’s advice) should not have been disregarded as it was a relevant consideration and had particular importance in the decision. Consequently the court quashed the decision.
• Public funding and availability of resources can be a relevant factor (R v Gloucester CC ex parte Barry). However, courts are very reluctant to intervene, and will generally not do so, w_hen_ the issue at stake is the use of public resources (R V CICB ex parte P), unless the use of r_esources_ can be clearly established as not being a relevant consideration (R v East Sussex CC ex parte Tandy).

Question 18

Judicial review - illegality - Abuse of discretion - Improper purpose

Answer 18

• When a power is granted by statute, it must be used for the purpose that the statute intended. This can be an express or implied purpose.
• Look at what the purpose of the Act was and ask: has the decision-maker used their power for the intended purpose?
• Relevant Cases:
  
  • Ex parte Wheeler
    
    • The City Council banned a rugby club from using its ground because three of the club’s members intended to go on a tour in South Africa at the time of apartheid. The court held this purpose was not the one the _statute int_ended, and quashed the decision.
  • Padfield v Minister of Agriculture
    
    • The Minister refused to refer an appeal about a decision he had made. He had the discretion about whether or not to refer such appeals. He exercised his discretion and chose not to refer an appeal to prevent himself being embarrassed by any adverse findings. Held that the statute was not intended to permit the Minister to exercise his discretion in this way. Lord Reid stated that the finding of what the Parliament intended is determined by construing the Act as a whole.
  • Congreve v Home Office
    
    • The implied purpose of the power to revoke TV licenses was not to raise revenue, but to make sure they weren’t being wrongfully used. The decision to revoke Congreve’s license because he had bought it prior to the licence fee increase was quashed.
  • Ex parte Fewings
    
    • The local authority decided to ban stag hunting on the grounds of morality. The court held that using such a power to enforce the councillor’s ethical views was not the purpose intended by the statute.

Question 19

Judicial review - illegality - Abuse of discretion - Fettering of discretion

Answer 19

• If the decision-maker has been granted discretion, he must exercise that discretion, and not refuse to exercise it (R v Secretary of State for the Home Department ex parte Fire Br_i_gades Union).
• Words in the exam question, such as “policy”, “generally”, “normally” or “usually” can point to potential fet_tering_, as the decision-maker may simply be applying a blanket decision and not considering each case on its mer_its_.
• Consider the a_ctual_ _decisio_n process that the official has gone through in order to decide if there was**, in reality, a fetter.
• CHECK: have the merits of the individual case been considered?
  
  • A decision-maker ca_n_ adopt and implement policies, and is free to do so, provided the policy:
    
    • does not amount to a blanket ban (R v NW Lancashire HA ex parte A); and
    • i_s_ not to_o infl_exible (R (Corner House Research) v Director of SFO).
    • Accordi_ng_ to R v Secretary of State for the Environment ex p Brent, the decision-maker’s mind must be _“kept aja_r” (i.e. open to considering various options).
• R v Warwickshire County Council ex parte Collymore
  
  • The court concluded that there had been an unlawful fettering of discretion in a situation where a policy on student grants had never resulted in a grant, despite thousands of applications. When implementing policies, the decision maker must give due consideration to each individual application.
• British Oxygen v Board of Trade
  
  • Strict policies are allowed, providing that th_ere_ is evidence that individual c_ases_ have been decided on their merits. In this case the policy of the Ministry that they would not make grants for anything that cos_ts_ _less than £25. British Oxygen bought large quantities of cyli_nders _at a cos_t of £20 per cylinder over a period of years resulting in a cost of 4 million. Lord Reid held the ministry could not “shut his ears” and must be “willing to listen”.
• R (Corner House Research) v Director of SFO
  
  • NOTE: the duty to exercise discretion may be trumped by national security concerns.
• Rv Secretary of State for the Home Department ex parte Fire Brigades Union
  
  • The Home Secretary fettered his discretion by refusing to consider whether to bring a statutory criminal injuries compensation scheme into force. The court held that the statutory power to set a date for the implementation of the scheme imposed a continuing obligation of discretion on the Sec of State to consider bringing it into force. He couldn’t bind himself not to exercise that discretion.

Question 20

Judicial review - illegality - Abuse of discretion - Delegation of discretion

Answer 20

• Where a public body is empowered to make a decision by an Act of Parliament, a decision-maker is not normally allowed to delegate that discretion to someone else (Lavender).
  
  • EXCEPTION 1:
    
    • When the discretion is conferred on a Minister, he can delegate that discretion to officials within his department (Carltona v Commissioner of Works).
    • However, where fundamental rights of interests are at stake, the decision cannot be delegated below the level of a Junior Minister.
  • EXCEPTION 2:
    
    • Delegation is permitted if it is authorised, either expressly or impliedly, by statute (DPP v Haw). If the power to delegate is implied by statute, only non fundamental functions can be delegated by the power-holder himself (R (CC West Midlands Police) v Birmingham Justices).
    • For example, s. 101(1) Local Government Act 1972 allows a local authority to delegate functions to a committee, a sub-committee, an officer of the authority, or to any other local authority.
  • Relevant Cases:
    
    • Lavender v Minister for Housing
      
      • The Minister refused Lavender’s application for planning permission to develop land for use as a quarry after hearing objections from the Minister for Agriculture. The decision was quashed because he had effectively abdicated his discretion to the Minister for Agriculture.
    • R v Secretary of State for the Home Department ex parte Oladehinde
      
      • The Court had to consider whether the Secretary had the power to delegate to Immigration Inspectors. Decision upheld.

Question 21

Judicial review - Procedural Impropriety - Steps

Answer 21

• STEP 1: Define procedural impropriety and identify whether the issue is with a statute or not.
• STEP 2: Does the d_uty_ to act fairly apply to the issues here? To what extent?
• STEP 3: Go through the sub-grounds of the duty in more detail - which sub_-gr_ound is most applicable to the issu_es_ here?
  
  • The right to be heard
  • The rule against bias
• STEP 4: Conclude

Question 22

Judicial review - Procedural Impropriety - Define procedural impropriety and identify whether the issue is with a statute or not.

Answer 22

• STATUTORY PROCEDURAL IMPROPRIETY
  
  • A failure to observe express procedural rules laid down in statute. Breaching a mandatory requirement invalid_ates_ a decision (Aylesbury Mushrooms) (it is also ultra vires - see Illegality chapter). Breaching a discretionary requirement may not be though.
• COMMON LAW PROCEDURAL IMPROPRIETY
  
  • A failure to observe the common law rules of natural justice, also known as the duty to act fairly. This includes two concepts: (1) the right to be heard, and (2) the rule against bias. The duty is also supplemented by Article 6 ECHR.

Question 23

Judicial review - Procedural Impropriety - Does the duty to act fairly apply to the issues here? To what extent?

Answer 23

• You should first discuss whether the duty applies to the scenario in the problem question, and if so, at what level it applies, and what that level entitles the complainant to.
• W_hen_ does the duty apply?
  
  • Ridge v Baldwin
    
    • Chief constable dismissed for negligence: the duty to act fairly applies to both administrative and judicial decisions; so in this case the officer was entitled to prior notice of the charge against him and the opportunity to contest it. Administrative decisions do not require as high a level of fairness as judicial decisions, however.
  • Re HK (an infant)
    
    • 16 year-old seeking to immigrate to UK: even w_here_ an official (the immigration officer) is not acting judicially, he is still obliged to act fairly, as he had done here.
• Exceptions where the duty does not apply:
  
  • GCHQ
    
    • (a_.k.a. Council of Ci_vil Service Unions v Minister for the Civil Service): overriding issues of national security.
  • R V Cambridgeshire AHA ex parte B
    
    • Rationing o_f_ resources (in this case the AHA did not have to give detailed reasons for choosing not to give expensive cancer drugs to a child).
  • Lloyd v McMahon
    
    • Where a person has chosen to waive their right to a hearing.
• The level at which the duty applies varies:
  
  • Durayappah v Fernando
    
    • Creates a ‘sliding scale’, so the higher the level of duty the more likely it is to engage parts (i) through (v) of the right to be heard. For example, if you argued that the duty only applied at a low level, the complainant might only be entitled to notice of the case against 0. When considering at what level the duty applies_, bea_r the following in mind:
      
      • The nature of the property owned by the applicant, his office or general status (the more important, the higher the level), e.g. the chief constable in Ri_d_ge v Baldwin required objective reasons, notice and a hearing.
      • The seriousness of the circumstances, e.g. negligence a serious accusation in Ridge.
      • The harshness of the sanctions potentially imposed, e.g. requiring a building to be demolished where planning permission is not sought (Cooper v Wandsworth Board of Works).
  • Ex p Liverpool Taxi Fleet
    
    • Those co_nsidering_ licence applications are bound to act fairly, but at a lower level. Stated i_n McInnes v Onslow-Fane (application for a boxing manager’s l_icense_)_ that there is no need to give reasons for rejecting an application, but there is a need to give r_easons_ when revoking a licence, as there is more to be lost. Note that when conditions are laid down for the grant of a license and the applicant meets them, this is akin to a revocation for the applicant.
• But note that in ex p Benaim & Khaida (casino gaming license refused), the board were required to give basic reasons. This is because they had less discretion than in McInnes v Onslow-Fane, were deciding a defined issue under statute, and refusal of a licence here was much more serious.

Question 24

Judicial review - Procedural Impropriety - Go through the sub-grounds of the duty in more detail - which sub-ground is most applicable to the issues here?

Answer 24

• 1) THE RIGHT TO BE HEARD:
  
  • I) Notice of the case against:
    
    • This _is the min_imum requirement of fairness, so applies to the lowest level of duty (R v Governors of Dunraven School).
    • Applicant is not necessarily entitled to the precise details (ex p Benaim & Khaida).
    • Applicant must be given a reasonable amount of time to respond and prepare his defence lex p Polemis - required to be in court same afternoon: was ton short).
    • The government’s prohibition of dealing with the Mellat bank in Bank Mellat v HM _Treasu_ry (No. 2) without giving the bank notice or a chance to object.
  • Ii) Right to make representation
    
    • Should be an oral hearing, unless waived by the applicant (Lloyd v McMahon).
    • When deciding whether to give an oral hearing, consider the nature and circumstances of the decision, but also whether any substantive issues of fact could be satisfactorily resolved on the available written evidence (**ex p Anderson).
    • Oral hearings not necessary every time a prisoner is recalled after breaching parole, unless the decision would be assisted by reviewing the applicant’s character and allow him to raise mitigating factors (ex p Smith & West).
    • An o_ral_ hearing was unnecessary when both the parole board and ‘Category A review team’ agreed that a murderer remained a danger to society (McLuckie).
  • Iii) Right to call and cross-examine witnesses:
    
    • Depends o_n_ the proceedings and whether a ‘legalistic procedure is appropriate, e.g. prisoners who risked losing remission were entitled (ex p St. Germain).
  • Iv) Right to legal representation:
    
    • ‘Legalistic’ situations, serious charges, disputed points of law, situations where the applicant is unable to decide their own case, and where there is no need for a speedy process – all these are factors which make legal representation more likely to be necessary (R v Secretary of State for the Home Department, ex p Tarrant).
  • V) Duty to give reasons:
    
    • Duty applies where liberty is at stake or where it would ot_herwise_ be impossible for the complainant to mount a successful JR case without being given reasons why the decision went against him (R v Secretary of State for the Home Department, ex p Doody).
    • R v MOD, ex p Murray: reasons should be given whe_re_ the decision-maker is fulfilling a judicial role and there is no appeal possible, such as in a court martial.
    • Mc_Innes_ v Onslow-Fane: board simply obliged to act fairly, not to also give reasons.
    • R v *Civil Service Appeals B_oard, ex p Cunningham*: prison PE teacher unfairly dism_issed and awarded low damages with no reasons - held that detailed reasons were required.
    • R v Higher Edu_cat_ion Funding Council, ex p Institute of Dental Surgery: no duty to give reasons where to do so would be excessively onerous on the decision-maker because of the complexity of factors and time constraints.
• 2) THE RULE AGAINST BIAS:
  
  • I) Direct Interest = Automatic Disqualification:
    
    • A direct interest is where the decision-maker has a pecuniary interest, such as shares in the company (Dimes v Grand Junction Canal).
    • In extremely significant and politically contentious cases, any appearance of bias cannot be countenanced (such as an Amnesty membership in R v Bow Street Magistrate’s Court, ex p Pinochet).
  • Ii) Indirect interest = Possible Disqualification:
    
    • Depends on the particular circumstances of the case. The test is: “whether those circumstances would lead a fair-minded and informed observer to conclude that the there was a real possibility of bias” (Porter v Magill).
      
      • Helow v Secretary of State for the Home Department: judge in Palestinian asylum claim w_as_ a member of the Jewish Lawyers Association, the head of which had made anti-Palestinian comments. However, t_he_ judge herself hadn’t, and only her membership linked her to such v_iews_ - like any judge she was expected to put personal opinions aside and act impartially.
    • Unauthorised participation or presence; by some_one_ who may be biased:
      
      • R v Hendon RDC ex p Chorley: councillor giving planning permission was also their estate agent = bias even though he took no active part.
      • R v Barnsley MBC ex p Hook: market-trader urinated in the street; committee revoked his licence when market-manager was present = bias.
    • Pre-formed opinion:
      
      • R v Kent Police Authority: Police were required to consult a doctor when deciding whether to retire an officer, but consulted the same doctor who had already seen him and believed him to have a mental disorder = bias.
      • Hamann v Bradford CC: a teacher’s dismissal was sub_ject_ to 2 committees, but some of the same people were on the secon_d_ committee = bias.
      • R (Lewis) v Persimmon Homes Teesside: councillors are entitled t_o_ have strong political opinions, so if they make decisions wit_h_ an open mind, such views are not bias.
      • For local authorities s. 25(2) Localism Act 2011 makes clear that an LA “is not to be taken to have had… a closed mind when making [a] decision _jus_t be_cause_ _th_e decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took, or would or might _tak_e, in relation to a matter, and the matter was relevant to the decision.”
    • Policy bias:
      
      • A policy to prefer to make certain decisions in certain ways (e.g. being sympathetic to planning applications) is acceptable, as long as the decision-maker genuinely considers each case with an open mind (Franklin v M_inist_er of Town Planning).
  • Note on Necessity:
    
    • Note that the duty to act fairly may give way to necessity if the person who would be disqualified is the only one who could make that decision. In The Judges v AG for Saskatchewan it was held that the judges were the correct body to decide their own salaries, as they were the only body empowered to do so by the constitution.
    • In GCHQ, it w_as_ held that natural justice must give way to national security concerns because the courts are in no position to judge national security issues.