Public Law divide and Judicial Review

It is easy to construe that public law should and does cover the general areas of constitutional law, administrative law, welfare law and international law. But even in these seemingly infallible areas grey areas can exist where the body responsible may not be able to be held accountable to judicial review. Public Private Partnerships or PPP’s, privatisation of government subsidised institutions such as the NHS and rail services. These cloud the former clear cut areas of the public private law divide. So where does it stop?  

I tend to agree with lord Diplock’s proposed guidelines, I feel this encompasses the widest range of public industry, public bodies and public entities, without opening debate on meaningless whimsical and irrelevant subject matter from several varied claims made upon flimsy ground.

There are various reasons that the concept of judicial review is necessary. It has various safe guards which the common law does not, although it does have its downfalls. In the common law plaintiffs and defendants have the right to appeal. However this must have a statutory basis, no such requirement exists for judicial review. The reasons set out in the latter portion of the assignment detail the requirements. The appeals procedure has the opportunity and the ability to assess merits of a case, leniency for deeds of reconciliation since the offence. Consideration of individual circumstances relative to the sentence received. Judicial review therefore has a much more pragmatic approach.      

It is a side of the judiciary which deals with cases a lot quicker and more efficiently, whilst it’s various safeguards provide the basis to allow this expedient approach whilst still providing a fair review of the cases at hand. The various safeguards which control application to judicial review help limit the number of cases reviewed in this manner. All applicants must be granted leave to apply from the high court before the commencement of judicial review. There is a time limit imposed of three months for application in Northern Ireland. On the subject of leave for apply lord Diplock highlighted the concepts importance in the retention of an effective court system;

"Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived."

A lesser recognised but also valuable safeguard in judicial review application is the order for discovery. In which a court….

“Must find reasonable evidence that a public duty has been breached“

- Lord Scarman

During review, cross examination is permissible but does not go unchecked as can be the case in the common law. The English law provides a methodology for cross examination in Reg. v. Board of Visitors of Albany Prison, Ex Parte Fell (unreported), July 8, 1981. This opinion that judicial review has sufficient safeguards to merit its continuing unhindered progress is shown in the Select Committee on Home Affairs Appendices under the Minutes of Evidence APPENDIX 9 of Memorandum submitted by JUSTICE

The “pre-action protocol” has the requirement of a letter being sent to the defendant which clearly identify the disputed issues and can establish if litigation is avoidable.

All parties in Judicial Review proceedings are under a duty to give full disclosure to the Court, meaning material, including any unfavorable to their case must be disclosed. Accidental omission of material in not automatically a valid justification. The result is an in tact version of events, failure to comply can result in court enforced sanctions.

None of the above safeguards are ordinarily available in a common law case, leaving them open to abuse from inconsequential differences of opinion. Thus judicial review reinforces the law with a more up to date system of efficiency and less bureaucracy and red tape for a similar end result.

Taking all this into consideration, it is apparent that upon completion of rule 3 of order 53, and therefore allowance of leave to apply, two factors must be satisfied for judicial review to occur. The applicant must have sufficient interest to the case as to be permissible. This has a different meaning in legal terminology than in the colloquial English. Previously only concerned with those of whom were materially affected by a decision, now, on the basis of case law has expanded and encompasses many more circumstances than ever previously considered. All applicants must prove that they have sufficient interest or the “Locus Standi” before commencement of judicial review will begin. The second factor, the nature of the organisation in question. It must be a public body for the applicant to qualify or be amenable for judicial review. Details of what are and are not public bodies have been previously outlined and discussed

It is possible to therefore deduce what in essence judicial review is. It is a process under the judiciary arm of public law, which deliberates upon legal matters in regard to public bodies. It is a supervisory jurisdiction of the high court to ensure that no inferior courts and/or tribunals can act Ultra Vires (outside their legal powers). If proceedings are brought for judicial review, they will commence in the Queens Bench division of the High Court. Review will commence attributable to three possible conditions outlined by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410D-E.

• Procedural Impropriety – this occurs where the organisation in question has not adhered to published procedures or developed rules of natural justice, such as Audi Alteram Patrum. The principle of a Fair hearing. And Nemo judex in causa sua. Literally translated as no one is to be a judge in their own case. The legal interpretation to which means a trial without bias (see footnote). This has also been heavily affected by European law. The UK’s membership to Europe and the signing of the various treaties (Nice, Maastricht etc) and especially the new incorporation of the human rights act. The human rights act has furthered the boundaries of bias, by broadening the scope of inequality and discrimination. Northern Ireland has also separately done this by broadening the Northern Ireland act. Which used to contain the title of discrimination based on religion, this has since been amended to include discrimination on practically any basis under the heading of “Equality”. This is obtained under the view that all rulings must contain both the appearance of and the substance of “justice”. A final point to note is the acceptance that failure to give reasons can be subject to judicial review on the grounds of procedural impropriety; see Doody [1994] 1 AC 531,
• Illegality – This condition covers three major issues. Ultra Vires, where the body in question has acted outside of their powers. For example an inferior court overturning a superior court ruling. Although not strictly possible as appeals are taken to a higher court. However, hypothetically, where a lower court gives a contradictory ruling to a previous ruling of a higher court in a case with identical circumstances, could be seen as acting Ultra Vires, where the decision has been binding. Secondly, retention of discretion. This may occur due to over-rigid policies. These can be rigid to such an extent that they contradict the law, such as the principle of Audi Alteram Patrum, the case quotation, taken from; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410D-E.:  in my opinion clearly show the position of the lord Justices on this issue….

“In the present case there is another matter to be borne in mind. There are on the one hand cases where a tribunal in the honest exercise of its discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him what its policy is, and that after hearing him it will in accordance with its policy decide against him, unless there is something exceptional in his case. I think counsel for the applicants would admit that, if the policy has been adopted for reasons which the tribunal may legitimately entertain …. On the other hand there are cases where a tribunal has passed a rule, or come to a determination, not to hear any application of a particular character by whomsoever made. There is a wide distinction to be drawn between these two classes”.                                          L.J. Bankes

In the case of British Oxygen Co Ltd v Board of Trade [1971] A.C. 610, Lord Reid agreed with the conclusion, and further admonished:

“What the authority must not do is to refuse to listen at all. But a ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say - of course I do not mean to say that there need be an oral hearing.” –P625

Thirdly Abuse of discretion – This is used to ascertain the validity of lower court judgments. A judgment will be deemed an abuse of discretion if the adjudicator has failed to exercise sound, reasonable, and legal decision-making skills. This could be considered as an error of judgment. For example, a trial court making a ruling that is clearly invalid, unreasonable, or arbitrary. This would breach the principle of a fair hearing, as the outcome does not reflect the case at hand. This is therefore unjustified.

• Irrationality – this is more of a common sense approach, the question begged is; would a reasonable person/committee come to the same decision. Failure to have complied with this reasoning is known as 'perverse' or 'Wednesbury' unreasonableness. Lord Diplock describes it as a decision;

"which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it" (P410G).

Wednesbury unreasonableness is a term arising from the case of Associated Provincial Picture Houses v. Wednesbury Corporation [ ] 1 KB 223

This although showing the viewpoint of Lord Diplock also shows just how far a decision must be extraordinary before the courts will supply their own decision as a replacement, otherwise they see fit to leave the decision in the hands of the previous tribunal /committee /etc. The courts voluntarily limit themselves in this respect.

Judicial review has certain areas in which it is permissible that confusion may arise. For instance; the difference in procedure from the system in England and Wales to the Northern Irish system.

Some may also find that certain criteria have become subjective and unclear. There are no clear cut infallibly defined boundaries as to what classifies for judicial review and what does not regardless of a degree of classification. This lack of classification provides a new problem where neither option for relief may be too sure of where they stand and if what is presented to them falls under their jurisdiction or not.

In addition, there are several steps to obtain even an application for judicial review; one could suggest that this increasing bureaucracy defeats the original secondary aim of an alternative expedient legal system for dealing with such issues.

"Today, sufficient should be known about ADR to make the failure to adopt it, in particular when public money is involved, indefensible. This case will have served some purpose if it makes it clear that the lawyers acting on both sides of a dispute of this sort are under a heavy obligation to resort to litigation only if it is really unavoidable."

- Lord Woolf (Frank Cowl and others v Plymouth City Council [2002])

This shows that despite efforts to the contrary, inefficient wastage is still a possibility.

Regardless of the limitations on the courts. It is still commonly considered that judicial review is a necessary process. Not least of all due to the new powers bestowed upon judges in enforcement of their decisions. There are approximately six remedies for relief available in judicial review, these are known as writs. They include;

• Mandamas – and order in which the judge directs the parties upon the correct course of action to be taken.
• Cetiorari – A quashing order, this effectively overturns the previous decision made by the body in question.
• Prohibition – this prevents the public body’s decision from having further effect.
• Injunction – This prevents a public body’s decision from coming into force in the first instance.
• Declaration – Informs of the correct legal position for future reference and insurance against the repetition of the previous misdemeanour.
• Damages – This provides a form of compensation to the less favoured of the previous decisions incorrect implementation.

 

The inclusion of these powers has made the process of judicial review even more necessary. They have proven that judicial review is not only an effective substitute to litigation but a complementary aid as well. It has furthered the law since its introduction and provides a quicker route for relief. It holds all types of government responsible and fills previous gaps in the area of public law.  I am of the mindset in agreement with lord Denning’s position on the matter of judicial review. In as far as the following extract applies.

“Now that judicial review is available to give every kind of remedy, I think it should be the normal recourse in all cases of public law where a private person is challenging the conduct of a public authority or a public body, or of anyone acting in the exercise of a public duty…..I regard it as a matter of high constitutional principle that if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of Her Majesty's subjects, then any one of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced, and the courts in their discretion can grant whatever remedy is appropriate.”“
                        -lord Denning

In answer to the question of Judicial Review’s standing as a sensible or unnecessary process I feel it is in the best interest of the public as a whole to have a legal institution continually striving to better itself. Judicial review may still have a way to go before it proves its utility to the unconvinced population. But I feel it is at the very least a beginning of a legal process, more efficient and more clear-cut that currently available. To quote lord Diplock …

"To revert to technical restrictions ... that were current 30 years or more ago would be to reverse that progress towards a comprehensive system of administrative law that I regard as having been the greatest achievement of the English courts in my judicial lifetime."

Though outside of my personal lifetime, or on the outskirts to say the very least. I do see the incorporation and evolution of judicial review as both a necessary concept and one which is becoming clearer and more defined as it evolves from case law.

Bibliography; 

Administrative Law, 3rd Ed (London: Sweet & Maxwell).

Alexander Harris Solicitors website

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410D-E

O'Reilly v Mackman [1983] 2 A.C. 237 [1982] 3 W.L.R. 1096 [1982] 3 All E.R. 1124 (1982) 126 S.J. 820 1982 WL 220932

Meade v. Haringey London Borough Council [1979] 1 W.L.R. 637; [1979] I.C.R. 494; [1979]   2 All E.R. 1016, C.A.

Reg. v. Inland Revenue Commissioners, Ex Parte National Federation of Self-Employed and Small Businesses Ltd. [1981] 2 W.L.R. 722

Frank Cowl and others v Plymouth City Council [2002]

British Oxygen Co Ltd v Board of Trade [1971] A.C. 610

http://www.enstarsw.co.uk/

http://www.publiclawproject.org.uk/policyres.html

http://isbn.compman.co.uk/

http://www.courtsni.gov.uk/

http://webjcli.ncl.ac.uk/

http://webjcli.ncl.ac.uk/1996/issue1/thomas1.html

Sources;

Electronic resource library UU

Lexis Nexus

Westlaw

Govt Websites

Parliamentary websites

UUJ student library

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