In (B) scenario the Airline Pilots Association is aggrieved because backlog of applications for licenses has led to significant loss of earning for it members who have also been unable to access the progress of their applications. Such a case it could be regarded Maladministration and injustice. If the decision is believed to be unlawful by the (SOS), the question here could be whether (APA) could make a successful complaint to the Parliamentary Commissioner seeking compensation for loss of earnings. Section 5(1) of the Parliamentary Commissioners Act 1967 provides that a public member may make a complaint to the commissioner and may investigate where individuals “Claims to have sustained injustice in consequence of Maladministration". In the Barlow Clowes affair were a group of companies collapsed, causing significant losses to shareholders. The commissioner found Maladministration and recommended compensation for losses incurred. Also in the Channel Tunnel Rail Link case, were damage caused by prolonged plans made owners unable to sell their home. The committee stated that " ... an expectation that when an individual citizen is faced with extraordinary hardship as a result of strict application of law or policy the executive must be prepared to look again and consider whether help can be given" On the other hand section 5 (5) provides that the commissioner shall act " in accordance with his own discretion", as in the case of Re Fletcher (1970). However if the commissioner decides to investigate claims of the (APA) but makes its finding in an up score manner the (APA) can bring a claim for judicial review to quashed the decision of the commissioner. In Balchin, Court held that the decision on Maladministration was flawed with inadequate reasoning and failing to give reason on the main issue. It could also be necessary to advice (APA) to write to the (SOS) and express their dissatisfaction about the delay and the impact it has cause on their well been and wait for response.
In the (C) sernario, Flyinair Airline is aggrieve because the expectation Flyinair has relied on made by the a Senior Civil Servant has been ignored and as a consequent of that Flynair is now facing a fine for using unlicensed pilots. In such a circumstance it could be regarded as Wednesbury irrationality. If the discretion of the Senior Civil Servant is believed to be unlawful or unfair; the three significant questions we need to ask is: ((a) if the expectation has been engendered? (b) If the expectation worth protection? (c) If there is an overriding public interest?) In Bibi’s case the court held that “in all legitimate expectation cases, whether substantive or procedural, three practical questions arise. The first question is what has the public authority, whether by practice or by promise committed itself, the second is whether the authority has acted or proposes to act unlawfully in relation to the commitment; the third is what the court should do?" In MFK Underwriting Agents Case, Bingham L J ruled that "if a public authority so conducts itself as to create a legitimate expectation that a certain cause will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation..." Although the court have distinguished giving two different meanings to the term " rely upon" it could be a matter to prove whether or not Flyinair has in some way relied upon the representation of the Senior Civil Servant. In Coughlan the court ruled that detrimental reliance was important. On the other hand how could it be established that there is a subjective knowledge (overriding interest) that required the Senior Civil Servant to depart from the representation made to Flyinair, or is it an ultra vires representation as in Rowland v Environment Agency. Also, in the US Tobacco International Inc (1992) case were the government granted production of oral snuff, the court held that even though the applicant had a legitimate expectation, there was an overriding public interest in banning a harmful substance. The question remains whether Flyinair can be successful in bringing a claim. Again, on the balance of probability it might as well be necessary to know whether such representation needs protection. In Liverpool Taxi Fleet cases (1972) were the Corporation announced an increased in licenses without consulting the operators Association, the Court held that the Association has a sufficient standing to bring a claim. However, in National Federation of self-employed and small businesses case the (HL) held that the Court was right to grant leave at the first stage but on fact, the Federation lacked sufficient interest to challenge the legality of the agreement . Although Section 2 of the (ASA) 2010 creates a strict policy for using unlicesened employees, it could be said here that based on the representation made by the Senior Civil Servant, Flyinair had relied upon such promise by using unlicensed pilots even though Flyinair was aware of Section 2 and 3 of the (ASA) 2010. Could it be possible for Flyinaire to succeed in bringing a claim for Judicial Review? It might as well be important to establish the two possibilities open to the court as to when a public authority could resign from a promise. However Flyinair could be advice that there is a possibility that the representation made could be misleading and the probability of getting a remedy will be slim. The reason here could be the relevant statute had not stated that a particular group could be favored.
In (D) scenario David is aggrieved because his application for license under Section 2 of the (ASP 2010) has been refused without any substantive reason. In such a case it could be regarded as irrelevant consideration under the Umbrella Elements of Wednesbury. In Associated Provincial Picture House case were the local authority refused to issue licenses to a cinema, the Court for the first time acknowledged that the decision by the public authority could be reviewed on grounds of reasonableness Also in Padfield (HL) held that one could not use the power that has been given to him in statute for politically expedient purpose. What could be important here is the legislative intent which is the provisions under Section 2 of the (ASA 2010). Although there is no duty to give reason at common law but section 19 (3) (b) Free of Information Act 2000 (FOIA) states” In adopting or reviewing a publication scheme, a public authority shall have regard to the public interest - in the publication of reason for decision made by the authority" In Venables case the (SOS) in a radio interview admitted that one of the reasons he gave a long sentence was because of what the poll show in the Sun newspaper. Accordingly in David’s case the question could be whether the decision of the (SOS) could be regarded as irrelevant considerations as it is not one of those set out in statute. The issue here remains whether David could succeed in bringing a claim for Review for a breach of Section 6 (1) of the Human Right Act (HRA) 1998 to be quashed. It could be noted that even before the HRA 1998 came into force, the (HL) in Simms and Daly defined the modern concept of judicial review, certainly relating to the control of power were individual rights are at stake. The (HL) was also suggesting here that there is relatively little difference between Wednesbury and proportionality. In fact the real question was whether or not the decision of the decision maker was reasonable or proportionate and whether it had an excessive impact on the individual concern. In the words of Lord Steyn in Simms " freedom of speech is the lifeblood of democracy..... It acts as a brake on the abuse of power by public official. It facilitates the exposure of errors in the governance ....." However for David to certify the sufficient interest test it has to be proven under Section 7 (1) (b) of the HRA1998 that he is “a victim of the unlawful act." Nevertheless in Robinson, Lord Woolf MR said "... if an applicant can establish a case which deserves to succeed standing will not constitute a bar to the grant of remedy." It is clear here that David is the victim of the unlawful act and such consequence could create a real negative impact on his well being. Since it will be too costly for court proceeding David could be advice to his local commissioner for maladministration which will cost nothing.
BIBLIOGRAPHY
Barnett. H, (2009) Constitutional & Administrative Law, (8th edn) USA and Canada, Routledge
Barnett. H, (2004) Constitutional & Administrative Law, (4th edn) Cavendish, London.
Turpin, C. and Tomkins, A. (2009) British Government and the Constitution, (6th edn) New York, Cambridge University Press.
ELECTRONIC JOURNAL AND PERIODICAL ARTICLES
Steele, I. (2005) ‘Substantive legitimate expectations: striking the right balance?’ Law Quarterly Review 305.
R v Bent London Borough Council, ex parte Gunning (1985) 84 LGR 168.
R v Wandsworth London Borough Council, ex parte Beckwith [1996] 1 All ER 129, [1996] 1 WLR 60 HL. Here decision was taken before consultation was carried out. This according to the House of Lord (now Supreme Court) was unlawful.
R (Edwards) v Environment Agency [2008] UKHL 22. The question here was whether the Environment Agency was require to disclose all there documentations in relation to the planning enquire or not. The House of Lord (now Supreme Court) was trying to say here that general information was enough.
Lee v Secretary of State for Education and Science (1968) 66 LGR 211, and R V Birmingham City Council, ex parte Dredger (1993) 91 LGR 552. In both cases the court ruled that the given time for response were ludicrous and in appropriate.
Rollo v Minister for Town and Country Planning [1995] All ER 13.
Secretary of State for the Home Department v International Transport Roth GmbH and others [2002] EWCA Civ 158 [2002] 3 W.L.R. 334. The issue here was that the court sought to use proportionality in an interchangeable sense and was willing to uphold the claim.
R v Secretary of State for the Home Department, ex Brind [1991] 1 AC 696. Lord Roskill’s judgement rejecting proportionality concept.
R v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532. were the impart of the decision is great on the individual and no procedural protection is given by the relevant authority the court will step in.
Russell V. Duke of Norfolk [1949] 1 All E.R. 109
R (On the Application of Smith) v. Parole Board [2005] UKHL 1, [2005]
1 All ER 755
Barnett H, (2009) p-732Constitutional & Administrative Law, (8th edn) USA and Canada, Routledge
Barnett H, (2004) p-721 Constitutional & Administrative Law, (4th edn) Cavendish, London.
A v. Secretary of State for the Home Department [2004] UKHL 56,
[2005] 2 WLR 87
Barnett H, (2009) p-818 Constitutional & Administrative Law, (8th edn) USA and Canada, Routledge Here Maladministration could be regarded as follows: delay, incorrect action or failure to take any action, failure to follow procedures or the law, misleading or inaccurate statements and so on.
Barnett H, (2009) pp-823-4 Constitutional & Administrative Law, (8th edn) USA and Canada, Routledge. (Fifth Report, HC 193 of 1994-95, on the Channel Tunnel Rail Link)
Re Fletchers Application [1970] 2 All ER 527, Barnett, H. (2009) pp-820 Constitutional & Administrative Law, (8th edn) USA and Canada, Routledge.
R v PCA ex p Balchin (No.2) (2000) 2 LGR 87
Steele, I. (2005) ‘Substantive legitimate expectations: striking the right balance?’ Law Quarterly Review 305.
Bingham L J’s judgement in MFK Underwriting Agents case. Turpin, C. and Tomkins, A. (2009) p688 British Government and the Constitution, (6th edn) New York, Cambridge University Press.
The importance of detrimental reliance in R v North and East Devon Health Authority ex p Coughlan (2002) and an ultra vires representation as in Rowland v Environment Agency. Steele, I. (2005) ‘Substantive legitimate expectations: striking the right balance?’ Law Quarterly Review 309-310.
Barnett H, (2009) pp-802 Constitutional & Administrative Law, (8th edn) USA and Canada, Routledge
R v. Liverpool Corporation, ex parte Taxi Fleet [1972] 2 QB 299 and R v. Inland Revenue Commissioners, ex parte National Federation of
Self Employed and Small Businesses Ltd [1982] AC 687. Barnett H, (2004) p-722 Constitutional & Administrative Law, (4th edn) Cavendish, London.
Associated Provincial Picture Houses v. Wednesbury Corporation
[1948] 1 KB 223.
Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997.
R v. Secretary of State for the Home Department, ex parte Venables
[1998] AC 407.
The (HL) ruling on R v. Secretary of State for the Home Department, ex parte Daly [2001]
UKHL 26 and R v. Secretary of State for the Home Department, ex parte Simms
[1999] 3 All ER 400 before the (HRA) 1998 came in to force
Lord Steyn judgement in R v. Secretary of State for the Home Department, ex parte Simms
[1999] 3 All ER 400. Turpin, C. and Tomkins, A. (2009) p773 British Government and the Constitution, (6th edn) New York, Cambridge University Press.
The sufficient interest test under the (HRA) 1998 and Lord Woolf judgement in Broadmoor Special Hospital Authority v Robinson [2000] QB 775, 787. Turpin, C. and Tomkins, A. (2009) p693:753 British Government and the Constitution, (6th edn) New York, Cambridge University Press.