Judicial Review.

Constitutional & Administrative Law G6790

INTRODUCTION

Judicial Review is the practice whereby courts are able to scrutinise the decision making processes of public authorities and officials. It is a process developed to ensure that the public bodies which exercise law making power or adjudicatory powers are keeping within the margins of their conferred power.

The Judges’ role is to make sure that the exercise of any power which has been delegated to ministers and administrative and adjudicatory bodies has been lawful according to the power given to that body by the Act of Parliament. Therefore, they must ensure that public bodies are acting within their powers, otherwise known as, ‘ultra vires’. As long as the body in question has acted within its powers as defined by statute and according to the Common Law rules of natural justice, the body’s decision will not be challenged under the public law process of Judicial Review.

Factors of preliminary importance when deciding whether a body is eligible for Judicial Review include;

Public Body- it necessary for the body requesting Judicial Review to be a public body, i.e. that which exercises public functions. This includes central and local government and regulatory agencies exercising governmental powers.
Locus Standi- establishing whether or not the ‘applicant’ or body has sufficient standing
Timing- Judicial Review must be requested within 3 months, from the date the applicant has knowledge of the decision.

It is necessary to establish whether or not the body is considered to be a public body. In order to do this, the body in question must first pass the ‘source test’. If it is possible to determine that it is regulated by statute, delegated legislation or is a prerogative power, then it may be amenable to Judicial Review. Secondly, the body must pass the ‘functions test’. This was established in R v Panel of Takeovers and Mergers, ex parte Datafin [1987], the leading case in this area. Here the court introduced the concept of considering the functions of the body in question; primarily, is the body performing a public function, or do its functions have any public law consequences? If it does fall into this criteria then that may bring it within the reach of Judicial Review. However, the functions test is not always conclusive, as a body may appear to be carrying out a public function, but might not be subject to Judicial Review, R v Football Association, ex parte Football League [1993].

Locus Standi can be defined as the right to apply for Judicial Review. It serves as a filter for the Judicial Review process, such that applicants must have a ‘sufficient interest’ in order to bring any proceedings. The key case in this area is IRC v National Federation of Self-employed & Small Businesses [1982]. Commonly known as the ‘Fleet Street Casuals’ case. It concerned a group of freelance printers who had ‘informal’ contracts with newspapers. Due to this informal arrangement the printers were often paid in cash and so avoided tax. The IRC were aware of this and approached ...

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This case led to the development of a 2-stage approach to ‘interest’;

Permission hearing- this is where all cases with no foundation are thrown out. It excludes all ‘cranks and busybodies’.
Final hearing- at this stage the petition is examined in light of its merits. This is the stage at which locus standi is considered.

This approach was adopted as it would be erroneous to interpret ‘sufficient interest’ too narrowly. Hence, if a case is interesting or if the issue is important to public interest, then locus standi may be granted. This current approach, allows the court greater discretion as to which cases should be heard for Judicial Review.

QUESTION 1

The Parole Board for England and Wales exists to make risk assessments to inform decisions on the release and recall of prisoners with the ultimate aim of protecting the public. The board was established in 1968 under the Criminal Justice Act 1967. It became an independent executive Non Departmental public body on 1st July 1996 under the Criminal Justice and Public Order Act 1994. The Parole Board is clearly regulated by statute, and therefore passes the source test. In carrying out its aim to ‘protect the public’, it also passes the functions test as it is evidently exercising a public function. As the Parole Board ‘make risk assessments to inform decisions on the release and recall of prisoners’, it would be fair to conclude that they have sufficient interest in the case of Jessica Palmer.

The Parole Board satisfies all the criteria necessary to be amenable for Judicial Review and therefore I deduce that this decision is subject to Judicial Review.

QUESTION 2

The British Chemical Company Ltd is a body exercising a public law function. Hence it satisfies the public body element of Judicial Review. As it is a company that is likely to be directly affected from the decisions of the Secretary of State for Foreign & Commonwealth Affairs, it is likely that it will be granted locus standi. However, this issue can be disputed. As all chemical weapons are prohibited by Public International Law, it can be argued that it is not in the interest of the public, to grant the British Chemical Company Ltd locus standi, and therefore, it can be rejected it at the 2-stage test process. Also it is possible that locus standi may not be granted, as the decision of the Secretary of State does not serve a general public interest, only an interest to those directly affected.

It may also be argued that the British Chemical Company Ltd does not have sufficient interest in this matter as it is an issue to be resolved between the political parties of the United Kingdom and Flamencoland, such as in R v Secretary of State for the Home Department, ex parte Bulger [2001] where the father of the accused was found not to have sufficient interest, despite being immediate family, it was considered to be a issue between the Crown and the defendant.

The Trade Agreement (Flamencoland) Act 2004 incorporates the Treaty with Falmencoland into domestic law. Under Section 3(2) of the Act, it states that the Secretary of State for Foreign & Commonwealth Affairs can bring the statute, or parts thereof, into force at his discretion. If the British Chemical Company Ltd is subject to Judicial Review, under Section 3(2) of the Act, the Secretary of State for Foreign & Commonwealth Affairs can choose to enforce only the sections of the Treaty that are favourable to advantages of the United Kingdom.

I do not think that the British Chemical Company Ltd is subject to Judicial Review in this area. As all chemical weapons are prohibited by Public International Law, it would be favourable for the United Kingdom to continue with the Secretary of State’s chosen actions. Secondly, under Section 3(2) of the Act the Secretary of State can enforce sections of Treaty at his discretion, so he may find it is beneficial to do so at a later date when the diplomatic relationship between the United Kingdom and Flamencoland has been resolved.

QUESTION 3

The House of Lords held that there was no general rule that prerogative powers were not subject to Judicial Review, but as most prerogative powers are non-statutory, they do not satisfy the ‘source test’ criteria and hence are not eligible for Judicial Review. The Independent Honours Commission, however, is a body regulated by statute under The Award of Honours Act 2003. It is also acting out a public function, in that it grants honours or privileges recognizing contributions to party political life. Lord Roskill nevertheless, made it clear that some prerogative powers may not be subject to Judicial Review, including the granting of honours.

Section 1 of the Award of Honours Act 2003 prohibits the Prime Minister from awarding any “honours or privileges recognizing contributions to party political life”. Consequently, the Prime Ministers decision to confer a peerage to Marcus Fatcat, is firstly, prohibited by the Act and secondly, seems to be a private and social matter, for which he is abusing his political power and control to show his appreciation.

It is for these reasons that I conclude, this decision is not likely to be subject to Judicial Review.

Pg. 837, Constitutional & Administrative Law, 4th Ed., 2002, Hilaire Barnett

s.31 Supreme Court Act 1981

http://www.paroleboard.gov.uk