Advise Lord Edge Hill and the residents of Naseby Avenue.

Administrative law Nirali Patel

Geneva Richardson

Judicial review is the means by which courts review the legality of a decision. It is exclusively designed to challenge the decisions of public bodies. In the GCHQ case, Lord Diplock classified the grounds for judicial review under three broad principles, these being ‘illegality, irrationality (or unreasonableness) and procedural impropriety’.

Residents of Naseby Street

The residents can seek judicial review for the local authority’s decision not to fund their street party.

The council announced that it would make funds available to support functions within the borough. The funds would be made available under statutory powers to make grants for public celebrations. An official in the recreational department told the organisers of the street party that the council would fund their party. The organisers submitted an application form for the funding. After the plans for the party were well advanced the organisers were informed that the council would not fund their party as it implied that conditions were better in 1952.

The first point to consider is whether the official in the recreational department had the authority to make a decision as to the funding of the party. The basic principle is that only a body in which a power is vested under a statute is entitled to exercise that power. If someone else exercises the power they may be acting ultra vires, since the delegation could be undermining the purpose of the statute. This does not necessarily mean that civil servants or local government officials are prevented from taking executive decisions on behalf of ministers or local authorities. The courts will be required to decide by reference to statute whether unlawful delegation has occurred. The nature of the functions delegated will be of particular relevance in determining whether the body has acted beyond its powers. The court takes a different approach based on whether the function delegated was judicial or administrative in nature. If the function is judicial it cannot be delegated. This was the view taken in Vine v National Dock Labour Board. On the other hand, it the function is administrative, it can be delegated (Jeffs v New Zealand Dairy Production).

In matters concerning the local government, the Local Government Act 1972, s.101 allows local authorities to delegate functions to officers and to committees. In Provident Mutual Life Assurance, it was accepted that the treasurer’s staff could exercise administrative matters necessary for the collection of rates, which had been placed in the hands of the treasurer. Similarly it can be accepted that the official in the recreational department has been correctly delegated with the function to make decisions with regard to the funding.

The residents’ can argue that a legitimate expectation under the principle of illegality has been created because the official assured them that their party would be funded and that they should go ahead with the plans. As a result, the residents went ahead with the plans for the party. If a public body resiles from a clear and unambiguous representation giving rise to a legitimate expectation, an applicant may have grounds for expecting a particular course of action to be followed by the decision maker.

The leading case in this area is Coughlan. Ms Coughlan was seriously ...

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The leading case in this area is Coughlan. Ms Coughlan was seriously injured in a road accident. She agreed to move to Mardon House on the basis that she could live there for as long as she chose. The Health Authority decided to close down Mardon House and to re-house the patients elsewhere. Ms Coughlan challenged this as being in breach of the promise that she would have a home for life. It was held that this amounted to a breach of substantive legitimate expectations from which the Local Health Authority could only depart if there was an overriding public interest that justified it. It was held that Mardon House was being closed down for financial reasons and this is not a sufficient overriding public interest. The Court of Appeal distinguished between three different situations. In the first, the court might decide that the public authority is only required to bear in mind its previous policy, giving it the weight it thought right before deciding to change course. The second situation was where there was a legitimate expectation of being consulted before the decision was taken. The court would judge the adequacy of the reason advanced for the change of policy. The third situation was where the court considered that a lawful promise had induced a substantive legitimate expectation. The court would decide whether the frustration of the expectation was so unfair that to take a new course of action would amount to an abuse of power. Once a legitimate expectation had been established, the court would weight the requirements of fairness against any overriding interest relied upon for the change of the policy. The present case was held to come within the third category. This was because of the importance of what was promised to the applicant, because the promise was limited to a few individuals, and because the consequences of the Health authority having to honour its promise were only financial.

The standard of review adopted for cases that fall into the third category is abuse of power. The decision of the House of Lords in Preston was treated as the principle authority for judicial review of abuse of power. The court will intervene where there has been an abuse of power.

In applying this case to the existing problem, it can be determined what category the residents of Naseby Street fall into. It is quite clear that the residents fall into the third category. Firstly there has been an express representation made to the organisers of the party by an official. This promise was made to a small group of people i.e. residents of Naseby Street. The representation was unqualified and was relied on by the organisers by going ahead with the plans. A decision not to honour the promise would be equivalent to a breach of contract in private law. Secondly, this was not a case where honouring its promise would place the council in breach of other statutory duties. Thirdly, the reasons advanced by the council for not supporting the party are insufficient. There is not a sufficient public interest to justify the frustration of the applicant’s legitimate expectation. Therefore it can be concluded that there has been unfairness amounting to an abuse of power.

Another point to consider is consistency. If a similar party in Marston Moor Drive has been given the funding, the residents of Naseby Street should be treated in the same manner. This is especially so where the same local authority is deciding the cases, and where the same regulations apply.

It is likely that the courts will approach the case in this manner leading the residents to a successful claim.

Lord Edge Hill

Lord Edge Hill can seek judicial review on the decision to ban any celebrations on his property until the end of 2002. The Home Secretary has made this decision using powers conferred to him by statute. The statute in question was enacted after a series of terrorist attacks. It was brought into force to prohibit large gatherings where there is a risk to the life or health of members of the public. However the purpose of the statute has not been statutorily defined. This can cause difficulty, as there is no statutory purpose included from which to analyse the limits of the power. In this situation it might be possible to have recourse to Hansard. In Spath Holmes the issue as to what extent the courts can look to Hansard to determine the will of Parliament was considered. It was decided that Hansard could be looked at in limited circumstances. If there is ambiguity in the statute, courts will go to Hansard but only if there is something helpful in there. Usually courts will look for some clear statement from the promoting minister of the bill to see if help can be found in Hansard. It will not be looked at if no help can at be found. It is unlikely that courts will be willing to look at Hansard in the problem at hand, even if the courts conclude that the statute is vague in terms of the powers it confers on the minister. This is due to the Under-Secretary of the State acknowledging the fact that the power is very wide, and yet having no intention to make amends. Nevertheless, it must be noted that even where the minister has wide powers conferred to him by statute, the courts will not hesitate to intervene in certain circumstances.

Lord Edge Hill can challenge the decision on grounds of illegality. He can argue that the Home Secretary has used his discretion for a purpose, which Parliament did not clearly or impliedly intend. In the World Development Movement Ltd case, the issue in question was whether Malaysia qualified as a candidate for the overseas aid budget, or was aid being granted to further contacts between Malaysia and the UK. The Act required the money to be granted for a developmental purpose. It was held that economic and political considerations had been the primary purpose for the granting of the aid, rather than developmental. Therefore the grant of this financial aid was unlawful. This can be applied to the problem at hand. It can be argued that the council requested the Home Secretary to make an order under s.27 of the 1992 Act based on the fact that the local health authority could not cope with an increase in the number of casualties. It is quite clear that the Act was not passed for the benefit of the local health authority, but to take precautions in relation to terrorist attacks. Therefore, the Home Secretary can be said to have used his discretion for an improper purpose. On the other hand, it can be argued that the council advised the Home Secretary to ban the celebration as there would be a high risk of attack on this particular occasion, and the local health authority would not be able to deal with the increased number of casualties if there was a terrorist attack. Thus it would be safer if there were no such celebration. From this perspective it is clear that the Home Secretary has the safety of the public in mind and is using his discretion as is intended by Parliament.

When there are a number of motivations present, the courts have to create a balance. The leading case in this area is Westminster Corporation, where there was a conflict between proper and improper purposes. Westminster Corporation had the power to build lavatories and decided to build them underground. The lavatories could be accessed by a subway, which also provided the means of crossing a busy street. This was challenged on the basis that the primary purpose of the project was to provide a means of crossing the street and not the lavatories. It was held that despite the unlawful purpose, the lawful one was the most important. Similarly, it is possible that Lord Edge Hill’s claim may fail on the basis that although the local health authority will benefit from the ban in having to deal with fewer casualties, greater importance is given to the safety of the public.

However, when a decision maker may have mixed motives, and the primary purpose is lawful thereby upholding the validity of the decision, this may be treated as taking into account irrelevant considerations in situations where the secondary purpose is unlawful. This shows that there can be an overlap between improper purpose and irrelevant considerations. A case that highlights this is Roberts v Hopwood.

Irrelevant and relevant considerations is another ground of review under the principle of illegality. The traditional view has been that it is for the courts to determine which considerations are relevant, but leave it to the decision maker to decide what weight to attach to them (Tesco Stores Ltd v Secretary of the State for the Environment). It is arguable that the Home Secretary took into account an irrelevant consideration by basing the decision partly on the Local Health Authority being unable to cope with an increase in casualties. If the courts rule this out to be an irrelevant consideration, the minister may have to reconsider the decision based purely on relevant considerations. However if the courts decide it to be a relevant consideration the decision will stand, but this is only so if the minister weighs the criteria in a reasonable way.

Lord Edge Hill can also argue that the fact that he has planning permission to hold parties with a historical theme has created a legitimate expectation that he should be able to hold parties without interference. Lord Edge Hill has already planned the party and all tickets have been sold out. With reference to the case of Coughlan above, it must be decided what category Lord Edge Hill falls into, to see if he may have a successful claim. The second category seems appropriate in this particular case. This requires for the applicant to be consulted unless there is an overriding reason not to consult. The court will exercise a full review, in the sense that the court will decide for itself whether what happened is fair. In the present case, the council may be able to argue that it did not consult Lord Edge Hill because there was an overriding public interest i.e. public safety. However the court will exercise a full review to ascertain whether the actions of the council and Home Secretary were fair. There is a very slim chance of Lord Edge Hill succeeding on this basis.

If Lord Edge Hill is unsuccessful in challenging the decision based on improper purpose, irrelevant considerations and legitimate expectations, he can go to irrationality (or Wednesbury unreasonable) as a last resort. Lord Greene described this as a decision that no reasonable authority could have come to in Associated Provincial Picture House v Wednesbury Corporation. But to prove a case of this kind would require something very overwhelming. Courts will only intervene when an authority has come to a decision so unreasonable that no reasonable authority could ever have come to it. This is a very high standard to prove and it is unlikely that Lord Edge Hill will be able to show that the minister has come to a decision so unreasonable that no reasonable authority could ever have come to it.

Lord Edge Hill’s best course of action is to argue improper purpose.