In the case of Council of Civil Service Unions v Minster for the Civil Service, Lord Diplock stated that there are three grounds for judicial review in the UK. These are ‘illegality’, ‘irrationality’ and ‘procedural impropriety’. These grounds are broad and can overlap.
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Illegality- which includes, a narrow ultra vires (lack of jurisdiction), errors of law or fact, wide ultra vires, fettering discretion.
- Irrationality – This includes, Wednesbury reasonableness, proportionality (Human Rights Act 1998).
- Procedural impropriety- which includes, failing to comply with statutory procedures, failing to comply with common law rules of natural justice (lack of a fair hearing, failure to give reasons, bias, legitimate expectation).
(1) The first issue that Ben may wish to challenge is the decision to regulate his company, Happy Chalets and Caravans, under the Dignity in Old Age Act 2006 act. He offers holidays that generally last between two and three weeks. The purpose of the Act was clearly stated as providing for the needs of elderly people in long-term residential homes. Section 1 states the purpose as protecting the safety and wellbeing of the elderly in residential retirement homes. Arguably therefore, it provides no authority for regulating Ben’s company, which is a holiday provider. Ultra vires means ‘beyond the power of’ authorities cannot act beyond the powers expressly granted to them by parliament. Since parliament only gave power under section 1 of the act for the regulation of long-term housing, application of the act to other bodies such as holiday operators is arguably void on the ground of illegality simple ultra vires. In the case of A-G v Fulham Corporation (1921) a local authority had interpreted its power to provide a public ‘wash house’ as permitting it to authorise the provision of a commercial laundry. The court concluded that this decision was ultra vires. Also, using a lawful power for an improper purpose can also be considered ultra vires as we have seen in the case of Air 2000 ltd v Secretary of State for transport (1989)
Under section 2, the Secretary of State must consult organisations representing the owners of private residential homes before making regulations. We know that the organisation that Ben is a member of, the Old People’s ‘Home Owners’ Association, had not been consulted. However, the Secretary of State has consulted other organisations. Since it was a requirement of section 2 that they take place before regulations were made, any regulations made without this step being taken could be liable to procedural impropriety. However, the fact that one organisation was not specifically invited to submit opinions is unlikely to be fatal to the regulation in question. Ben should have been consulted about the new regulations as it is a national organisation with many members. This is not fair on Ben when other similar organisations have been asked for there views. This is therefore procedural impropriety (procedural ultra vires). The procedural ultra vires principle was seen in the Aylesbury Mushroom case (1972). In this case the minister of labour did not carry out the correct procedure because he had not done as required which was to consult the mushroom growers. As a result an order establishing a training board was invalid against mushroom growers.
(2) Old people’s home owners are being asked to pay £5,000 for the vague purpose of assisting in the running of the Secretary of State’s department. As seen in the case of Aylesbury Mushroom (1972) above, the ultra vires principle applies when authorities act beyond powers specifically or impliedly granted to them by parliament. The courts have also ruled that the use of powers for a purpose other than the intended purpose also amounts to illegality. The power granted in the 2006 act is for the purpose of safeguarding the well being of old people in long-term homes. The act did not mention that the purpose was to raise revenues for the running of a government department is very likely to be seen as an ultra vires act. This is also unreasonable irrationality as this has been shown in the Wednesbury test. In the Wednesbury principles of unreasonableness it states that in many cases it is difficult to show that a decision is so unreasonable that no reasonable public body could have come to it. However looking at this principle this also leaves a large discretion to the judge in each individual case.
(3) Ben’s company has been proscribed under section 3 of the act because of his political views. Under the terms of the Human Rights Act 1998, any breach of an Article of the European Convention on Human Rights is a ground for judicial review. Under Article 9 everyone has a right to freedom of thought, conscience and religion. Article 10 provides for a freedom of expression. A public body acting to the detriment of an individual because of a political view he has held or a political protest he has made will fall foul of these two articles according to the consistent jurisprudence of the European Court of Human Rights. This is a clear ground of Right to a fair trial of article 6 of the Human rights Act. This is a clear ground for judicial review and could be brought before the Strasbourg court if it was unsuccessful before UK courts. Only a victim can bring a judicial review on the Human rights article 6. It has not been taken into account that Bens Company has an excellent record and is known for its high standards in the industry this is relevant consideration. This has been unfair for Ben as he took a peaceful protest march against the Iraq War which Ben remembers that the Secretary was very much n favour of the war. This shows us that there has been abuse of discretionary powers as the letter states the reason why his company has been proscribed is “due to your unsuitable political views and national security concerns”. Clearly we can see here that this unfair and Ben can bring a judicial review action on the basis of Human Rights.
(4) With regards to the hearing that Ben is given to challenge the decision, it has
Clearly not been carried out in accordance with the principles of natural justice. There
has not been a right to a fair trial. There has been procedural impropriety. Ben has not
had a fair hearing as he is only given one days notice of his hearing under the Human
Rights article 6 this is unfair. Also on top of this Irene who is the owner of the other
main caravan site is in the area is chairing the hearing. This under the Right to a Fair
trial Article 6 is unfair as everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law. Having
Irene chairing this is biased this should be independent as the rival is in Irene’s own
interest; this is very unfair Irene was thinking of her own benefit as it is this will
benefit Irene financially.
Rule against bias is strictly enforced for judges. Usually expressed through principles
of
Judicial independence and judicial impartiality.
i. Impartiality: a state of mind in relation to the issues and the parties.
ii. Independence: a status or relationship to others, the executive branch of
Government, that rests on objective conditions or guarantees. Complete liberty for
Judges to hear cases–without interference. Three components: security of tenure,
Financial security and institutional independence.
iii. This distinctions are set out– in the Bell Canada case.
On the reasonable time element the European Court of Human Rights in Darnell v United Kingdom (1993) held that the UK was in breach of the article. The case involved a question of whether a doctor had been unfairly dismissed. The dismissal had taken place in 1984 and proceedings started soon afterwards, but the final decision of the Employment Tribunal on the case had not been made until 1993.
Ben has not been able to see his report which he has concerns about the accuracy of also Ben is only allowed five minutes to put forward his views. Which is again not fair and this is not a proper procedure therefore it is again procedural impropriety. Irene is thinking of her own financial interest. These factual circumstances are sufficient to constitute a breach of the Human Rights.
For all of these reasons, Ben could initiate a judicial review as he is sufficiently concerned. It would be based on the Secretary of State acting without powers, using powers in an unauthorised way and breaching procedural rules. One of the acts may also be in breach of the European Convention on Human Rights. For these reasons he is likely to succeed in his challenge and have the acts against him quashed by the court.
Bibliography
R v Thames Magistrates’ Court (ex parte Greenbaum) (1957) 55 LGR 129
R v IRC (ex parte National Federation of the Self Employed) [1982] AC 617
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
Air 2000 Ltd v Secretary of State for Transport 1989 SLT 698
Sutherland, R, Introduction to Judicial Revue in Scotland, available at , accessed, June 13 2006.
Supreme Court Act 1981
Administrative and Constitutional Law Book by Alex Carroll.
Salma Miskeen.
R v Thames Magistrates’ Court (ex parte Greenbaum) (1957) 55 LGR 129
2 R v IRC ( ex parte National Federation of the Self Employed) (1982) AC 617 325 Constitutional and Administrative Law Alex Carroll
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
ibid. per Lord Diplock at 410D – 411B
Air 2000 ltd v Secretary of State for Transport 1989 SLT 698
Aylesbury Mushroom case 1972 English legal System 55
See Kruse v Johnson (1898) 2 QB 91 for a judicial interpretation of the basic ultra vires principle.
