Judicial Review

If at this point the claimants have satisfied the necessary criteria explained then action must be brought on one or more grounds. This is set out in the case of Civil Service Unions v. Minister for the Civil Service (GCHQ). In this case the union sought to challenge government’s policy against union membership at GCHQ (implemented by prerogative power) by means of judicial review. Lord Diplock stated as a result of this case that judicial review could be held on three grounds: Illegality, irrationality and procedural impropriety. It is possible to argue that more than one of the grounds may apply. Gordon may use the first ground of illegality to allow him judicial review if the requirements were satisfied talked about previously were satisfied. Delia who chairs the Council’s Licensing Committee informed Gordon that the license application was a ‘mere formality.’ Gordon suffered loss as a result of this information. It can be seen that Delia may have been action ultra vires as she has acted outside the local council’s authority by stating this false information. An Act of Parliament has been passed that explains that it is an ‘offence to sell hot food without a licence.’ In Attorney General v. Fulham Corporation the opening of a commercial laundry was held to be acting outside the statutory power to wash houses for the poor. This case helps to determine that Delia was acting outside her statutory power as she has gone against what the Act has enforced.  Hugh could also claim to have judicial review if he satisfies the first criteria on this ground. This is because it could be argued that the decision was made on irrelevant factors of his prices being too high. In R v. Port Talbot Borough Council, ex parte Jones it was held that the decision was ultra vires. This was because the court decided that it was an irrelevant factor that the councillor should get a house to live within the borough and to carry out work in. Therefore, Hugh may be able to seek judicial review, as the Act was introduced after recent health scandals. This suggests that the licence should be granted in terms of hygiene and not by prices.

Hugh could also claim the second ground of irrationality.  This is because the refusal to grant the licence based on the fact that his prices were too high can be seen as a very severe punishment. Therefore it could be argued unreasonable. In Hall and Co. Ltd v. Shoreham-by-Sea Urban Development Corporation it was held unreasonable that planning permission was granted to develop land but was subject to building a road at the claimant’s expense to be used by the public. However the unreasonable test can be hard to prove as shown in R v. Secretary of State for the Home Department, ex parte Brind. The court held that the ban of TV transmission of any speech by the IRA or Sinn Fein was not unreasonable that no reasonable Home Secretary could ever reach the decision. This shows that to claim judicial review on this ground Hugh would have to show that no reasonable authority could have come to this decision. However, there has been a development of ‘proportionality’ as a consideration in judicial review after the introduction of EU provisions on human rights. It states that the action would only be reasonable if the action proposed was no more than absolutely necessary to address the problem. This helps Hugh to claim judicial review on this ground.

The third ground of procedural impropriety allows the claimant to seek judicial review if it seems that the correct procedure of coming to the decision has not been followed. Jamie may be able to claim judicial review on this ground if he satisfies the necessary first criteria mentioned earlier. However, Jamie needs to consider that this ground can only be claimed on the way the decision was made and the final decision itself. A case of natural justice of a right to a fair hearing can be claimed as a way of getting judicial review can be claimed by Jamie. This is because his request to make a presentation to support his licence application was refused. In Ridge v. Baldwin it was held that a right to a fair hearing requires a person to be afforded the opportunity to present their case. This highlights that the local council have breeched in Jamie’s case his right to a fair trial, as he was not allowed to present his case. It is stated that Delia has refused to explain why in Jamie’s case his licence application was refused. There is no common Law duty to provide reasons for the decision. However, in R v. Secretary of State for Home Department ex parte Doody it was held as the case was within the public interest general trend should be followed to explain why the decision is made. This means that because Delia has explained to the other two applicants why their application has been refused she should follow this trend and tell Jamie the reason for his refusal.

The claimants are allowed to seek the available remedies if they satisfy their application for judicial review. Firstly a quashing order overturns the original decision. This would be the most probable outcome for both Hugh and Gordon, as they simply want to be granted a licence. However, a mandatory order, would be a better solution for Jamie. This is because it which compels a decision-maker to act in a certain way. This would allow Jamie to have a fair hearing by presenting his case in the way he wanted to.

In conclusion, Delia acting on behalf oh the local council can be seen to have been very unfair to all three claimants. It is likely that all three claimants satisfy the first requirements to enable them to seek judicial review. Hugh and Gordon can possibly seek on the grounds of illegality. Hugh may also be able to seek on the grounds of irrationality. Finally, Jamie has not has a right to a fair trial and so can seek on the grounds of procedural impropriety. There are appropriate possible remedies that all three claimants may claim.