Scenario: Acting as Legal Advisor to the Director of the Anti-Gambling League
Scenario: Acting as Legal Advisor to the Director of the Anti-Gambling League
In this scenario, we are acting as advisors to Mark, whom is the Director of the Anti-Gambling League (the League). This body has come to seek legal advice concerning the need to make an application of Judicial Review. The League would like to oppose against the decision made by the UK Lottery Commission (ULC) in granting a license to Fat Cats plc. The reason being is that the Director of the League firmly believes that the decision was made on the basis of the fact that the members of the ULC are in favour and want to encourage the promotion of gambling. The wishes of the Fat Cats plc are in conflict with those of the League.
As advisors we firstly need to establish what the purpose of judicial reviews is, and see if its purpose relates to the wishes of the League.
"Judicial review is essentially the courts control of the administrative actions of the
public bodies."
Judicial Review represents the means by which the courts control the exercise of governmental power.
Governmental departments, local authorities, tribunals and agencies exercising power that is governmental in nature, must exercise their power in a lawful manner.
This can be considered as another way of providing and keeping a control over people or bodies whose actions and decisions affect the public.
The courts review the actions of administrative bodies and investigate any illegality, irrationality or impropriety in their actions/ decisions- more reference would be made later on. They scrutinise the actions undertaken by the public bodies, as it is to their discretion that if they find any recognisable public wrongdoing. If there has been any form of public wrongdoing, the courts have the power to enforce remedies.
If the League wish to apply for Judicial Review, they must therefore establish that the respondents to the case as being a 'public body'. As the availability of judicial review, is seen as a way of challenging the decision of a public law body.
The term 'public body' refers to an authority which exercise public law functions, especially those that are public- based powers i.e. statutory source of powers.
The way in which it challenges these powers is through the lawfulness of a decision made by the public bodies.
Public bodies differ from private bodies, because the actions of the public bodies not only affect the public at large, but also enact the essence of the executive, an example of a public body is a local authority or anything as mentioned above of being governmental in nature.
However, recognition must be made to bodies that do not fall within the 'public body' category- can judicial review be made available?
In this respect, it can be said that a body that is wholly private despite exercising a wide range of powers, including those of public, can therefore be said not to be susceptible to judicial review.
In the case R v Disciplinary Committee of the Jockey Club ex.parte Aga Khan [1993] 2 All ER 853, it was held that this was a private body as it exercised powers based on contractual obligations between the owner and the Club.
The major judicial review doctrine of ultra vires (without power) is based on the idea of bodies keeping within powers- intra vires; they have been confined to. As acting outside the jurisdiction of these powers is considered to be a breach of law.
It can therefore be said that judicial review is concerned with the legality of a decision, and is not with the merits of that particular decision. Judicial review can be considered not to be an appeal of a decision, but it is merely a review of the manner in which the decision is made.
It can therefore be said that the decision of the ULC is amenable to judicial review. In this respect, the concept of the decision made by ULC to grant the licence to Fat Cats plc must take into account whether the League have sufficient interest in the subject matter.
Under s.4(4) of the UK Lottery Act, which states:
" ULC shall consult with such persons as it considers appropriate before granting a
licence."
It is advisable to suggest to the League to bring to the attention of the courts: lack of concern shown by the ULC to consider the League in consultation before decision for the granting of the licence.
The basis of review lies in s.31 of the Supreme Court Act 1981, and the attendant Order 53 of the Rules of the Supreme Court.
As, s.31(3) states :
" The Court shall not grant leave unless it considers that the applicant has
sufficient interest in the matter to which the application relates."
Order 53 of the Rules refers to the application for judicial review must be made "promptly within three months from the date."
In the application for a leave, there must be a standing to apply for judicial review. The ...
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The basis of review lies in s.31 of the Supreme Court Act 1981, and the attendant Order 53 of the Rules of the Supreme Court.
As, s.31(3) states :
" The Court shall not grant leave unless it considers that the applicant has
sufficient interest in the matter to which the application relates."
Order 53 of the Rules refers to the application for judicial review must be made "promptly within three months from the date."
In the application for a leave, there must be a standing to apply for judicial review. The applicant may be:
* An individual whose personal rights are affected by the decision
* An individual concerned with the official decision affecting the interests of the society as a whole.
Alternatively, the application may be bought by:
* Interest or pressure group desiring to challenge the rights/ interests of its members or group
* Also it can look at the interests/ rights of society at large.
Naturally the parties concerned in the matters must have sufficient interest in the case concerned for judicial review to be at its most effective. The courts in this situation will be interested to see the extensity of the 'sufficient interest/ locus standi' they posses in order to seek judicial review successfully.
The purpose and the advantage of the standing requirements is that they 'filter out' unmeritorious, frivolous or trivial applications and thereby save time of the courts.
In this case, the main focus is placed upon an interest group and their interest in decision that affects society, as a whole. In illustrating this, there are two cases, upon contrast, can highlight the significance of the sufficient loci standi that the pressure groups have.
In R v Secretary of State for the Environment ex.parte Rose Theatre Trust Co. [1990] 1 QB 504, held that the Trust did not have loci standi as the question of standing should be determined on the basis of whether the applicant has personal interest. The act of forming a company did not in itself give the members' locus standi or the company.
It is clear from this, that the pressure group may not fulfil criteria of being personally affected by the decision or activity in question.
In contrast to this, R v Secretary of State for the Environment ex.parte Greenpeace [1994] 1 WLR 570, it was held that Greenpeace did actually have standing to apply for review. As it must be taken to account that Greenpeace is a well-resourced public interest group, committed to broad public interest. (UK, alone, has over 400,000 supporters) It is claimed to represent broader public interests, as is in a much better position to present a case than an ordinary individual.
In relation to all this, it is clear that the authority in question e.g. the League, cannot merely base their application on loci standi, as further evidence is required. It would be appropriate to examine the statute in question (UK Lottery Act) to inquest further in gaining a better understanding of a successive application of judicial review.
Further to this, the existence of there being grounds of review must be regarded, as this will assist in strengthening the case for the League.
As a famous case Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (commonly known as the GCHQ case), this provides the three-fold classifications of the grounds for judicial review. It is in this case that Lord Diplock was able to identify the three main areas, which were to be under court scrutiny in major judicial review cases:
"...One can conveniently classify under three head the grounds of judicial review...
The first ground I would call 'illegality' and the second would be 'irrationality' and
the third ground would be 'improportionality'. That is to say further development on a
case by case basis may not in course of time add further grounds."
(a) Illegality
(b) Irrationality
(c) Procedural Impropriety
Through this, all that is been looked at, whether the decision-maker is acting ultra vires- if the decision is not ultra vires, there are no grounds for review.
Illegality
This is a term that is given when a decision-maker cannot exercise any power that he/she is not conferred to, by law. Anything in excess or abuse of powers are conferred will be regarded as ultra vires.
Powers are often conferred by statute. The interpretation of the original statute, courts can make decisions upon the question being ultra vires.
With respect to the scenario proposed, concerning ULC and the Anti-Gambling League, a starting point would be to focus on the statutory provision of UK Lottery Act:
"s4(2) ULC shall not grant a licence under this section unless...as ULC has specified
as necessary for enabling ULC to determine whether to grant it..."
From this, it is clearly stated that the licence can only be granted if it is determined by ULC to be 'necessary'.
However reference to s.4(4):
"ULC shall consult with such persons as it considers appropriate before granting a
licence."
It is clear from this statute that the ULC, are entitled to consult any 'such persons' whom they consider appropriate, but ULC has a discretionary power with regards to the consultation of bodies.
With respect to this, it is seen that ULC have exceeded their powers in not consulting the League before the granting of the licence to Fat Cats plc.
The League, qualifies as 'such persons; considered to be 'appropriate', and so therefore is plays a significant role in being consulted by ULC before final decision made. The reason for the League been the appropriate body to be consulted is because the League is an 'anti-gambling' body which is set up to prevent there been an abuse of power, alongside preventing the encouragement and the promotion of the gambling industry.
Therefore the ULC is said to be abuse of his powers, accordingly to the statute as ULC completely
overlook and rule out the possibility of the League been consulted on those basis.
This can be said to be a breach of illegality in the sense that ULC is acting ultra vires of their statutory
powers.
The ULC have also failed to provide sufficient evidence in relation as to why the League was not consulted or even referred to. The failure of the lack of notification given to the Anti-Gambling League means that this draws attention, and presents an argument in favour of the League as to there been a breach of statutory requirement.
In Attorney- General v Fulham Corporation [1921] 1 Ch 440, the Corporation was empowered by
statute to maintain wash-houses, but this power did not extend to the operation of a laundry.
In this, there is a clear illustration of the fact that the decision/ activity was in excess of its conferred powers, therefore it can be said that the Corporation was acting ultra vires.
The court held that the maintenance of the washhouses should not be used for profit-making purposes, in the same way the ULC should not encourage or even favour the promotion of gambling by granting licence to the a body that would encourage further gambling habits.
Abuse of power is another means by which the decision-maker can be said to be acting ultra vires.
In Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, held that Ministers are under a duty to use discretionary powers to promote Parliament's intention, therefore would be acting ultra vires if they acted prior to the policy and objects of the Act in question.
Irrationality
Here the grounds for judicial review can arise when the decision-maker does not exercise discretion properly or abuses the discretion conferred.
A decision-maker that is conferred to the discretionary powers is expected to consider each case on its own particular set of merits and facts.
This can be said to be inter-linked with those of the reasons given above, as in ULC's case the discretionary power together with the decision exercised are unlawful and irrational. According to the Director of the Anti-Gambling League, Mark, the decision made by ULC in granting of the licence to Fat Cats plc, was irrational.
The basis of this argument can be challenged on the grounds of irrationality:
"...can also be referred to as Wednesbury unreasonableness/ irrationality."
This is one of the principles used in judicial review, sometimes it is considered as the 'Wednesbury principal'. This is concerned with the reasonableness of the actions derived from the public body concerned. The principle applies where the courts consider the action deemed so irrational that no body under the same circumstances would have reached the same decision. These rules derive from the case
Associated Provincial House v Wednesbury Corporation [1984] 1 KB 223
"It applies to 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."
In relating to this, the decision made by ULC was regarded to be irrational by the League when the decision to award the new licence was taken without consulting them (the League). As mentioned above, the Director of the League regards the decision made by ULC to be irrational, however, this is not the case as the decision taken is not as outrageous to constitute irrationality. In practice, it can be said that there are very few cases that are successful on these grounds and this case, however is not one of them.
There are other grounds, which the Director of the League is able to argue to satisfy a successful application of judicial review, contrary to s.4(3) of the UK Lottery Act:
As s.4(3) of the Act states:
" ULC shall not grant such a licence unless ULC is satisfied that the applicant is a fit and
proper person to run the UK Lottery."
Here, the Director of the League opposes strong grounds for argument, in terms of challenging the statute, together with the ULC's interpretation of what constituted "a fit and proper person".
The Rules of Natural Justice is a concept that is based on the idea of fairness. This is looking at the decision-maker not giving a general 'duty' to give reasoning for decision, and if it is challenged by judicial proceedings on the grounds of failure to give reasons, therefore courts would regard not give much consideration for the decision of the case. A example is in R v Lambeth Borough Council ex parte Walters (1993) 26 LICR 170
On the other hand, the courts may hold that the failure to provide sufficient reasoning is more likely to prejudice an applicant's success in the application for judicial review, as in R v Doody [1993] 3 All ER 92.
Also a failure to give reasons may also amount to arbitrariness, in Padfield v Minister of Agriculure, Fisheries and Food [1968] AC 997
"...no good reason for that decision and that accordingly the decision itself is irrational."
In this respect the League had made written representations to ULC in relation to the matter in question of what constituted 'a fit and proper person', there was no explanation given, nor were reasons given for the decision of granting the application to Fat Cats plc. The League had evidence as they had been reviewing Fat Cats plc together with ULC, as the granting of the licence would therefore mean that there is a further encouragement of gambling habits. Further to this, a claim of the ULC members being biased in favour of the gambling industry, in particular the chairman of ULC had expressed publicly that was in support of there being a new TV Gambling Channel.
In respect to all this, the decision made by ULC can be said to be irrational, as there is evidence to show that the way in which the decision for the licence was granted, and the failure to provide sufficient reasoning lead to this irrationality.
The procedure of applying for judicial review is through:
. Write a 'letter before action'.
The applicant / lawyer should write to the decision-maker in order to allow him/her the opportunity of remedying the situation. Failure to do so can result in the application being rejected.
2. The applicant has to apply for leave for judicial review as promptly as possible and in any
event within three months of the occurrence of the alleged 'wrong, contrary to Order 53(1) of the Rules of the Supreme Court. The court does have the discretion to allow late applications, but there would have to be good reasons for the delay, Order 53(2) of the Rules of the Supreme Court.
3. The applicant seeking leave for judicial review, the application, must therefore be made ex parte (without giving notice to the decision-maker in question), it is imperative that the authority draft and submit Form 86A to the court together with a supporting affidavit verifying the facts relied upon.
The judge can determine the application for leave without the necessity of a hearing, unless applicant requests an oral hearing in the notice.
A clear illustration of there been a letter of action been forwarded to the court is vital before anything can actually take place.
Reference can be made to R v Horsham District Council ex parte Wenman [1995] 1 WLR 680, this highlights the case to be.
Besides this, there are other factors that can be established, those being:
* Interest groups e.g. The League have the right to appeal against the decision of the UK Lottery Commission (ULC)
* The capacity of the interest group has to be established. The relevant authority used to support this argument is R v Darlington B.C ex parte Association of Darlington Taxi Owners The Times 21st January 1994
* The UK Lottery Commission is in fact a public body. It can therefore be said that primarily this is a 'Public Law' matter. This is an area of law that deals with 'the state and the relations of the state with the public'.
* The League is considered to have sufficient interest in the matter concerned.
* The interest expressed not only represents their views, but that of the public.
Although it can be said with a degree of confidence that if the above criteria is successfully applied in court, the wishes of the League are not beyond the bounds of being achieved.
However, as with all judicial review cases, it is at the court's discretion on whether to operate a form of control on a particular public body. In this case, if a successful application were made, the court would compel the ULC to act upon the recommendations of the court (referring to the granting of the licence been made to Good Cause plc rather than Fat Cats plc).
An applicant may apply for one or more of the following remedies:
(a) Certioria
This is related to the quashing of the Minister's original decision. The decision being declared invalid, as found to be ultra vires therefore means that the parties would return to their original pre-decision position.
This is regarded as a common remedy in which the decision cannot lie against the Crown.
(b) Mandamus
This compels the Minister to exercise his discretion as to which is stated within his Act and authority. The Minister must take relevant consideration into account, also order the Minister not to abuse power conferred.
E.g. Padfield v Minister of Agriculture, Fisheries and Food
These are considered to be 'prerogative orders', and they can only be applied in judicial review proceedings.
Damages are considered to be the remedy that is applicable in private and public law.
In judicial review, where the victims are claiming that there has been ultra vires in practice is not made applicable.
However damages may be awarded in judicial review proceedings, only if the applicant has private law rights- as in Cooper v Board of Works for the Wandsworth District (1836).
Lastly, if the courts decide that the application of judicial review is insufficient, can reject the application on these grounds.
However in response to this, there is another alternative remedy which can be sought through the Parliamentary Commissioner of Administration (also referred as the Ombudsman). The basis, on which this remedy may be sought, is through the concept of maladministration.
Without incurring any costs to the League and the reliance upon the fact the government will act upon the recommendations (if any) made by the Ombudsman on as to the procedure of the governmental/public body involved e.g. ULC in dealing with the case.
If the Ombudsman finds in favour of the League, this means that they will gain compensation from the respondents (ULC) for the aggrieved losses, those been of trying to encourage a gambling habit.
