Illegality might also consist of using powers in a manner totally different from that envisaged, as in Attorney General v Fulham Corporation where the authority was empowered under statute to establish washhouses for the non-commercial use of local residents. The Corporation decided to open a laundry on a commercial basis which was held to be an act of ultra vires. Essentially the task of the court is to determine the nature of the powers granted. In Commissioner of Customs and Excise v Cure & Deeley, Sach J. said that “in carrying out its task, the court was bound to examine the nature, the objects, and scheme of the parent act, and in light of that examination, to consider what is the area over which power is given.” In doing this there are a number of presumptions of statutory interpretation which can assist the court, such as the presumption that a body has no power to act retrospectively and the presumption that a body has no power to restrict a person’s access to the court.
The idea of government according to law has been illustrated in a range of decisions by the courts developing the principles of ultra vires and natural justice which are the central doctrines in administrative law. By development of these doctrines the courts have sought to control the ways in which authorities exercise their powers and the procedures they adopt.
The exercise of power by an authority will be struck down as ultra vires where the authority abuses the power by exercising it ignoring relevant considerations, or by taking irrelevant considerations into account, or it acts in excess of its power as seen in the case of Laker Airways v Department of Trade where a change of government led to a change in the policy of allowing Laker Airways a licence for transatlantic air routes. The right to fly the Atlantic was covered by statute, while the right to land was covered by common law. The Labour government wanted British Airways to have an monopoly but chose not to introduce a new act but to take away the common law right to land. The Secretary of State issued “guidance” to the Civil Aviation Authority (CAA) to the effect that Mr Laker’s licence should be withdrawn. The court agreed with Mr Laker’s application for judicial review that the instruction given to the CAA was ultra vires and beyond the meaning of the word “guidance”. The court also rejected the government’s argument that it had the right, under the prerogative, to deny Laker Airway’s right to fly the Atlantic route. The government could not, it was held, defeat a statutory right by the use of a prerogative power.
In the GCHQ case Lord Diplock categorised the basis of intervention because of irritionality as:
"By 'irrationality', I mean what can now be succinctly referred to as Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corporation). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
The courts now understand that unreasonableness includes acting for improper motives, failing to take account of relevant considerations, failing to respect the requirements of natural justice and fettering a discretion by adopting a rigid policy. With irrationality the courts have moved on from reviewing the procedures by which a decision has been made and testing its legality to substituting the court's own view on the merits of the decision.
Early expression was given to the concept in Rooke's Case where Coke LJ proclaimed:
"…and notwithstanding the words of the commission give authority to the commissioners to do according to their discretions, yet their proceedings ought to be limited and bound with the rule of reason and law."
In more recent time the classic case is Wednesbury where the local authority had the power to grant licences for the opening of cinemas subject to conditions as the authority 'thought fit' to impose. When granting a Sunday licence the authority imposed a condition that no children under the age of 15 should be admitted. The applicants argued that this condition was unreasonable and ultra vires to the authority powers. The test laid out by Lord Greene MR became whether an authority had acted or reached a decision in a manner 'so unreasonable that no reasonable authority could ever have come to it':
"The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account and once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority have kept within the four corners of the matter which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere."
The standard of reasonableness imposed by the courts is high. If the standard were too low it would mean that judicial discretion was being substituted for administrative discretion. Lord Greene stated in the Wednesbury case that a decision is unreasonable if it is "so absurd that no sensible person could ever dream that it lay within the powers of the authority". Also, as we have already seen in the GCHQ case, Lord Diplock regarded unreasonableness as entailing a decision "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it".
In R v Secretary of State for the Home Department ex parte Brind, the House of Lords re-examined the reasonableness of the Home Secretary's discretion to issue a notice banning the transmission of speech of IRA and Sinn Fein representatives. Despite the issue involving a denial of freedom of expression, the court ruled that the exercise of the Home Secretary's power under the Broadcasting Act 1981 did not amount to an unreasonable exercise of discretion.
However, the protection of human rights has allowed the courts to use jurisdiction to employ a stricter test than in other Wednesbury cases. In R v Lord Saville of Newdigate ex parte B (no 2)., a tribunal of enquiry into the Bloody Sunday shootings in Northern Ireland decided to withdraw the anonymity of soldiers giving evidence to the enquiry on the basis that the enquiry should be open and public. The Soldiers applied for judicial review and the application was allowed by the courts as the risks to the soldiers' fundamental right to life, security of the person and respect for family life was extreme.
In the GCHQ case Lord Diplock described the third circumstance as “procedural impropriety rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe the procedural rules that are expressly laid down in the legislative instruments by which its jurisdiction is conferred, even though such failure does not involve any denial of natural justice.”
Procedural impropriety is described as such because not only does it include a failure to observe the basic rules of natural justice, or even to act with procedural fairness, with regards to the person who's affected by the decision, but also incorporates the failure of administrative tribunals to observe the expressed procedural rules that are laid down in the legislative instrument by which it's jurisdiction is conferred, however such a failure would not compromise natural justice being served.
Failure to comply in accordance with procedures that are established by statute may invalidate a decision. The courts are required to distinguish between mandatory and directory. If a procedural requirement is held to be mandatory, then a breach will render the decision unenforceable, on the other hand if the Courts found it to be directory it may not nullify the decision. However, occasionally, even when an authority is under a duty to act, and has failed to act, the Courts may uphold the decision made, this would rely on, that despite the duty, the decision making process was fair and the failure to act does not affect the quality of the decision reached.
As seen in the case of Berkeley v Secretary For the Environment and Another, in which Fulham Football Club (FFC) submitted an application concerning the redevelopment with part of its land to provide apartments and a riverside walk. The Secretary of State was required, under the Town and Country Planning (Assessment of Environmental Effects), to consider the impact on the environment the proposals would have, and to issue an environmental statement. Due to the failure of the Secretary of State to comply with the regulations, FFC were granted planning permission. Despite refusal from other Courts to quash the planning permission the Court of Appeal ruled that the Secretary of State's failure to act did not undermine the decision. The submitted application that had been referred to the Secretary of State had been designated to an inspector. A public hearing had been held, at which the applicant had been heard and the environmental impact had been fully considered. The Court found that the "procedures adopted although flawed, had been thorough and effective, thus enabling the inspector to make a comprehensive judgement on all the environmental issues".
A fair hearing lies at the heart of justice. The rules against bias are strict, therefore it is not necessary to show that actual bias existed, no more than the appearance or possibility of bias will suffice. The suspicion of bias should be a reasonable one. Either personal or financial interests in a case may disqualify a person from adjudicating.
However, the interpretation of bias has been riddled with uncertainty and inconsistency. In the case of R v Gough, the opposing council laid down two different tests for bias. The first known as the 'reasonable suspicion' test. This would entail a fair and reasonable minded person sitting in the Court, and having all the relevant facts would have had a reasonable suspicion that a fair trial of the defendant was not possible. The second test was whether the likelihood of bias was a real possibility. The question to be asked is whether there was a real danger that the trial may not have been fair as a result of bias otherwise known as the 'real likelihood' test. The House of Lords had drawn a test deemed to be correct involving whether there was a real likelihood, in the event of a real possibility, of bias of the part of a justice or member of a tribunal.
In the words of Lord Denning MR, the giving of reasons is 'one of the fundamentals of good administration'. 'Unless a decision maker provides adequate information as to the basis on which a decision has been reached, any possible protection which could be given to an aggrieved person is adversely affected'. The Courts have developed numerous exceptions to the general rule that no reasons need to be given at common law. The Courts may, for example, hold that a failure to give reasons will prejudice an applicants chances of successfully applying for judicial review, or that legitimate expectations have been created, which would require that any withdrawal from that expectation be explained, or even that in the interests of fairness be given.
In the case of R v Civil Service Appeal Board ex parte Cunningham the Court whilst stating there was no general duty to give reason, held that the Civil Service Appeal Board, which had determined the applicant's compensation for unfair dismissal, was under a duty to give reasons, for its powers were analogous to the judicial powers of an industrial tribunal. Fairness required the Board to give reasons, as would be the same for tribunals.
In the GCHQ case Lord Diplock also had in mind “the possible adoption in the future of the principle of proportionality which is recognised in the administrative law of several of our fellow members of the EC.”
As the Human Right Act 1998 (HRA) is now part of domestic law there will be more cases for judicial review of administrative bodies. In the case of R v Home Secretary ex parte Leach (No. 2) it was held in that the reading of a prisoners letters to his solicitor was disproportionate to the right of the prisoner, the Judges quote the action must not go beyond reasonable proportionality. In the GCHQ case proportionality was mentioned as an additional ground for Judicial review and now due to the HRA being the part of British law, such application of the proportionality test will become obligatory in protecting English civil liberties. The HRA in particular will review any British courts decisions within relation to the jurisprudence of the European Courts of Human Rights despite some reservations from some of the judiciary. European law has at least to some extent, permeated and influenced almost every area of constitutional and administrative law. An example of this is the correlation between European community law and royal prerogative powers. In H.P.Bulmer Ltd v J. Bollinger SA Lord Denning MR said that "the European Community treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back."
Some years later in Sheilds v E. Coommes holdings Ltd his Lordship observed that: "the flowing tide of community law is coming in fast. It has not stopped at the high-water mark. It has broken the dykes and the banks. It has submerged the surrounding land. So much that we have to learn to become amphibious if we wish to keep our heads above the water."
The European Community law is indisputably a primary source of the unwritten British constitution. The catalyst for this `flood` was The European Communities Act 1972.The exercise of parliament of its legislative supremacy in 1972 was noted by Professor Bradley that due to EC law being part of British law, this has brought about a profound change in parliamentary sovereignty. The EC Act can be said to have some damaging effects such as the erosion of the traditional constitutional principles such as express repeal, the diminution of Parliamentary supremacy, the preservation of future UK parliaments right to repeal the European Communities Act 1972 and the creation of rights and duties for the individuals in Britain as a result of `directly `effective` European Communities Act 1972.
It is possible that at some point in time, if Britain wanted to it could leave the European Community. Lord Denning MR acknowledged this in Macarthys Ltd v Smith, where he said that if parliament ever should deliberately pass an Act or deliberately acts inconsistently with it, and says so in expressed terms. He stated "Then I should have thought that it would be the duty of our English Courts to follow the statute of our parliament and of course any such move would create major political turbulence and economic uncertainty." Lord Denning MR also said "however unless there is such international and express repudiation of the European Community Treaty, it is our duty to give priority to the treaty".
The option to leave remains, however the longer one stays the harder it is to sever ties and leave. The community ties, obligations and the political realities of the late 20th century has lead Professor Bradley to conclude that today, "the orthodox doctrine of the sovereign Parliament is not an immutable part of the British constitutional law."
Bibliography
- Constitutional & Administrative Law, 3rd Edition, Hilaire Barnett.
- Constitutional & Administrative Law, 8th Edition, Phillips and Jackson.
- Constitutional and Administrative Law, 5th Edition, Greer Hogan
- Cases and materials on Constitutional and Administrative Law, Second Edition, Michael Allen, Brian Thompson and Bernadette Walsh.
- Lexis-nexis
- Lawtel.co.uk
(1998) The Times, 2nd March
[1991] 4 All ER 310, the Court of Appeal
[1981] QB 180; [1979] 3 All ER 32; [1980] 2 CMLR 205
