Judicial review.

It is provided in the Inner City Regeneration Act that when considering applications for grants ARIC should seek

“to promote initiatives designed to address problems presented to inner cities by homeless persons”.  

This could be said to be the statutory purpose for the exercise of the power to provide grants.  However the instruction given to ARIC to ‘address problems’ created by ‘homeless persons’ in ‘inner cities’ is quite vague.  The Authority has adopted a policy of not supporting ‘initiatives designed to cater for the needs or well being of homeless persons’, because, it seems, they have interpreted their duty to regenerate inner cities by addressing the problem of homeless people as meaning that they should seek to discourage homeless people from ‘establishing themselves’ in inner cities at all.  One might argue that this is not the only possible interpretation of the words which describe a duty to ‘address problems’ that are ‘presented to inner cities by homeless persons’ and that the Act would allow the support of initiatives which seek to reduce their numbers through employment or housing schemes, or simply to keep them off the streets by providing overnight shelter as RSFH has done.  

As the case of R v South Hams District Council ex p Gibb illustrates, the decision making body must adopt the correct legal test as to what is meant by the Act or else it will be held to have acted unlawfully.  Gibb concerned the duty of the local authority to ‘provide adequate accommodation for gipsies’.  South Hams DC concluded that Gibb and others were not gipsies and thus they had no duty to accommodate for them, but Gibb argued to the contrary.  The legal test (or definition) adopted by the council, as to what a ‘gipsy’ was, had to be correct in order for the decision that Mr Gibb was not one, to stand.  Thus if it could be found that the definition used by ARIC of the words in the Act is incorrect, then their decision to withhold the grant from RSFH would not stand.

However, the argument that ARIC’s decision was unlawful because an incorrect legal test was used may not be the best course of action for RSFH to follow.  Where there might be a ‘spectrum of possible meanings’ of the words used by Parliament the court is likely to allow the decision-maker to adopt its own policies and definitions because Parliament entrusted the decision-making power on the public body by statute.  RSFH would probably have to prove that theirs was a case in which ‘it is obvious that the public body, consciously or unconsciously [was] acting perversely’ which is likely to be difficult.  

 

This is not unlike trying to prove unreasonableness in the decision that was made by the public body.  It is said that the applicant ‘has a mountain to climb…decisions [that are] so unreasonable as to warrant interference jump off the page’ at the judge, because the decision in question must be seriously unacceptable, completely unsupported by evidence, extremely oppressive or a fundamental error of fact.  These are difficult conditions to fulfil and thus if it is possible to follow another ground for review it is usually advisable to do so.

 

RSFH might instead argue that ARIC abused their discretion by exercising power for an improper purpose.  This ground for judicial review arises when the public body acts unlawfully by exercising its power for a purpose other than the purpose for which the power was granted.  For example, in R v Ealing London Borough Council, ex p Times Newspaper the council was required to provide a comprehensive and efficient library service.  After Ealing stopped keeping newspapers published by the Times group as a gesture of sympathy towards the striking employees it was held that the motive, of providing support, and was entirely unrelated to the statutory purpose of providing a comprehensive library service.  It was therefore improper.  A ban on deer hunting as a result of an ‘ethical’ objection by Somerset County Council was held to be outside the requirement that they acquisition the land for ‘the benefit, improvement or development of the area’ in R v Somerset CC ex p Fewings.  

It might be possible for RSFH to establish that the ARIC’s purpose in refusing the grant was to try to force the homeless out of Rummidge inner city because they objected to their presence, and thus had exercised their power for an improper purpose.  ARIC states that they seek to ‘minimise [the homeless persons’] impact on the enjoyment of inner cities by others’ by deterring them from establishing themselves there.  This seems to suggest that ARIC are denying those with initiatives such as RSFH the right to grants because they do not want homeless persons to be in the inner cities, and not because RSFH does not ‘address problems presented to inner cities by homeless persons’.  As stated, RSFH stops the problems caused to ‘the police and others’ of the homeless being forced onto the streets at night.  As in the Fewings case, RSFH might not have had grounds for judicial review here had ARIC stated that a grant for a new heating system would not directly address problems presented to inner cities by homeless people, but this was not the case.

The fact that the denial of the grant is likely to lead to the closure of the shelter might give RSFH grounds to seek judicial review too, as they might argue that ARIC failed to take into account a relevant consideration.  As shown in Bromley London Borough Council v Greater London Council if a public body fails to take a relevant consideration into account, such as the obligation to apply business principles to the conduct of public transport, their decision is ultra vires.  We are not informed as to any express provisions as to what will be a relevant consideration in the Inner City Regeneration Act, but this is not necessary as the court can decide that certain considerations should have been taken into account even without express mention in the statute.  One might argue that the consequences of refusing the grant might be a relevant consideration because if it is not made and refusal results in the detrimental effect of increasing problems with the homeless in inner cities the application should not be refused.  This would seem a sensible consideration to be expected to make; if refusal could result in an outcome which is exactly opposite to the purpose of the Act then it would seem ridiculous to allow it to occur.  

The problem with this ground for review, and that of the improper purpose, for RSFH is that deciding what are relevant considerations, and whether the purpose was improper, are matters to be decided by the context of the statute and the interpretation of it, which is a matter for the courts.  There are no real rules which the court will follow in doing this, and thus considerable opportunity is given to the judges to act as they wish.  This means this is an unpredictable ground of review.

Another ground under which RSFH might seek judicial review is that of procedural impropriety.  De Smith et al explain that ‘Procedural fairness…requires that the decision-maker should not be biased or prejudiced in a way that precludes fair and genuine consideration being given to the arguments advanced by the parties’.  The procedural impropriety of bias has been defined in R v Queen’s County JJ as ‘an operative prejudice, whether conscious or unconscious’.  The rule against it seeks to ensure that even the appearance of a risk of bias is not allowed, so as to protect the legitimacy of the decision making process.  In the words of Lord Hewart, ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’ 

As the ‘Chief Executive of ARIC is a School Governor of an Independent School’ which formally objected to the use of the building located next to it as a homeless shelter initially, RSFH might argue that the decision could have been biased.  However, there is uncertainty as to what the test for bias should be, and so on this ground RSFH’s success would depend on the approach adopted by the court which reviewed the case.  It was decided in R v Cambone Justices and Another, ex p Pearce that as there was ‘no real likelihood of bias’ the application would be dismissed.  Slade J asserted that it was not ‘more important that justice appear to be done than that it should in fact be done’.  This approach may not find in RSFH’s favour, whilst the test of a ‘real danger’ which is to mean a ‘possibility rather than probability’ of bias set out in the more recent case of R v Gough might be more sympathetic to them.  Here it was stated that the court will give effect to the maxim of Lord Hewart ‘by examining all the material available and giving its conclusions on that material’ and if it is ‘satisfied that there is no danger of the alleged bias having created injustice, then the application to quash the decision should be dismissed’.  

It would seem that the presence of someone who would want the homeless shelter to close so high-ranking in the public body is likely to undermine the legitimacy of the decision in the public eye, and could constitute a ‘possibility’ or ‘danger’ of bias.  I would advise RSFH to claim for judicial review on the grounds of bias as to apply on the grounds that a fundamental error of law was made by ARIC in understanding its duty, that power was exercised for improper purpose or that the relevant considerations were not made are all subject to the interpretation of the statute by the judge, and so the outcome is difficult to predict.  The argument that the decision made my ARIC was unreasonable is a very difficult one to prove, as it will depend on the subject matter under review.  With the ground of bias however, it is not necessary to prove actual bias but only that there is an appearance of bias.  Where there is a genuine doubt as to whether there is a real danger of bias the matter should be resolved in favour of disqualification and thus it would probably be easier for RSFH to succeed on this ground than any other.  On this ground of review it is possible for ARIC’s decision not to grant money to RSFH to be quashed.  

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