Undergraduate Assessment Problem [22035] Public Law and Administration.

200127801

When a decision or action is subject to judicial review it is to say it can be challenged on the basis of the rules and principles of public law, which define the grounds of judicial review. However, each person, interest group or another governmental body may not satisfy the rules of standing for judicial review and therefore alternative remedies or appeals should be depleted before the expensive and time consuming process of judicial review proceedings is undertaken. The legal control of governmental institutions or bodies by the courts can take a number of forms; governmental officials and bodies are liable to be sued, for example, for torts, breaches of contract and trusts- a private law action-or the activities can be subject to judicial review-a public law action.

Public law’s main contrast is that of private law. Private law can be defined as the law regulating the relations of private persons-be that individuals corporations or one another. Public law, in broad terms, concerns activities and regulation of relations between governmental bodies such as the legislature, departments of central government and agencies. Here, the scenario provides the Secretary of State as representing such a governmental body. Groups and individuals clearly affected by this legislation will be advised here.

The Truckers Guild can be classified as an interest group. Here, the Guild was not consulted as to the adoption of guidelines and also the imposing of a fee. A preferred method for their claim would be to apply for judicial review (appeal would only be possible where Parliament had permitted it by statute). This is due to the fair procedure elements to review legality of which have been mistreated by the Secretary of State, which can be seen as consultation and a legitimate expectation (elements procedural justice) To continue, the Guild must apply for leave of the court before applying for judicial review and issue their claim under Civil Procedure Rules, part 54. Any claim for review (judicial review the applicant must have permission (leave) of the Administrative Court.

In order to proceed with judicial review, the Guild must first establish a sufficient interest (locus standi) Section 31(3) of the Supreme Court Act 1981 provides that the court will not grant permission to proceed with a claim for judicial review “unless it considered the applicant has a sufficient interest in the matter to which the application relates,” and this has been given wide interpretation by the courts. The test for deciding whether a claimant has sufficient interest was considered in R v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd The element of standing under the Human Rights Act 1998 the sufficient interest test is reconciled with the test under the Act. Section 7 of the Act requires that only a ‘victim’ (as Art 34 of the European Convention on Human Rights) may rely upon convention rights. ‘Victim’ appears to cover those directly affected and those ‘at risk’ of being affected. However, this standing holds more force within the context of the individual’s case against the administration rather than the Guild’s. With interest and pressure groups the issue of standing is difficult to determine contrasting decisions in R v. Secretary of State for the Environment ex parte Rose Theatre Trust and R v. Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement presents that it would ultimately be provided under the courts’ discretion. The Guild would have to present a case within 3 months, that any challenge must be made “promptly.”

For the grounds of their challenge, the Guild must qualify for the ‘illegality,’ ‘irrationality’ and ‘procedural impropriety’ heads for the grounds for judicial review (established in Council of Civil Service Unions v. Minister for the Civil Service, with Lord Diplock’s decent)

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Though there is no general obligation to consult parties before making rules, which will affect interested parties, if a public body, the Secretary of State in the scenario, has published policy guidelines the doctrine of legitimate expectation may prevent it from departing from its policy without consulting the affected parties of which the Trucker’s Guild would constitute. The Guild may also present the Secretary of State acting ultra vires in the plans to impose a search fee and no prior consultation. From the case Congreve v. Home Office at both common law and statutory powers may be held by a court to be illegal with basic principles such as the rule that taxes may not be levied without the consent of Parliament.

The ultra vires principle (illegality) within the context of legitimate expectation, an element of natural justice, a public body should not be able to fetter its discretion and with planning to demand a fee for searching the lorries would be a matter outside the jurisdiction of powers granted to the Secretary of State in the Act. The authority (Secretary of State) may be held to have acted unfairly (hence illegally) if it departs from the policy without giving prior or adequate notice of the change (R v. Home Secretary, ex parte Khan) Under the rules of procedural impropriety (or denial of natural justice) the Guild are entitled to be heard, audi alteram partem. It would be in the Guild’s best interest to take their case to this level due to the formality of procedure documentation will provide publicity of which will bring the Guild public pressure and added strength to the case, which the government would hear. A public law remedy that may be requested would be ‘certiorari’ (now this prerogative remedy has a new name, as do prohibition and mandamus, and certiorari is at the present a quashing order) under which is sought on three main grounds an action or decision is: ultra vires (the Secretary of State’s plan to impose a fee), breach of natural justice (the Secretary of State legitimate expectation of consultation) and an error of law on the face of the record. Under the restrictions established in O’Reilly v. Mackmana private law remedy/action, such as an injunction, can be enforced because it requires a party, the Secretary of State, to stop doing a particular action i.e. the imposing of a search fee. The type of private law injunction appropriate here would be a prohibitory injunction, preventing a further ultra vires act. However, in order to obtain the remedies of private law, it is not appropriate to gain through the judicial review procedure since a dispute of fact would be the process rather than the review of decisions taken in the process and Part 30 of the Civil Procedure Rules enables a transfer between public and private law procedures simpler.

The Smokers Society, an interest group, was clearly under an assurance by the Secretary of State of the limit of cigarettes for personal use. The change in policy by the Secretary of State shaped a legitimate expectation, that the limit of cigarettes would be 12,000, rather than the now 8,000 this change of which the Society was not consulted about. The fact that the Secretary of State declined to have further contact with the Society can be construed as maladministration.

Before any procedure can be advanced, the Society must gain leave of the court i.e. acquisition of permission to proceed and their case must be made within the three month time limit set in the Civil Procedure Rules part 54 rule 54.5.1. The ‘sufficient interest’ test must also be qualified, again at the courts discretion R v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd with this group, they have a stronger case with its maladministration claim.

Without being consulted the Smoker’s Society were under a false belief and relied upon the detriment and therefore the Secretary of State shaped a substantive legitimate expectation. The Act specifically states the decision maker-the Secretary of State-prescribes a process that is required to undertake prior to exercising a statutory power, that of which is to consult interested parties. Therefore the judge in this case will be able to derive that the procedural requirement prescribed in the statute is a mandatory requirement placed upon the decision maker, requiring strict and genuine observance (Agricultural, Horticultural and Forestry Industry Training Board v. Aylesbury Mushrooms Ltd)

Since the Secretary of State declined any further contact with the Smoker’s Society this can be interpreted as a ground for maladministration. Maladministration is not a concept defined in the Parliamentary Commissioner Act 1967 however, the “Crossman Catalogue” is an accepted description of the term referred by Lord Denning in the case of R v. Local Commissioner for Administration North East England, ex parte Bradford M.C.C of which maladministration may include “bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on.”

The publicity of a formal inquiry of the process of which the Secretary of State had decided to adopt would be of great public interest and would be worthwhile the cost.

Remedies available to the Smoker’s Society within the public law context are those of which are headed under the prerogative orders. The Secretary of State can be said to have acted unlawfully or ultra vires in not consulting the Society consequently a quashing order could be sought. In the realms of private law a declaration confirming the legal status of the relationship may be sought, however the remedies through judicial review may be more beneficial.

Tony as an individual may gain a sufficient claim through the Trucker’s Guild if he were a member, however he would gain stronger standing as a lone applicant. Under the HRA 1998 he would have a strong claim for the ‘victim’ test. And the time limit to put forward a claim within three months applies.

His arrest could be seen as the Customs officer’s acting ultra vires of what the Act stated that they could enforce. The statute states stop and search is permitted and that fines and the confiscation of vehicles are permitted; however detainment was not explicitly stated within the statute.

For a detained individual habeas corpus may be sought to challenge the legality of the administrative order on which detention was based. The correctness of Tony’s detention is not reviewable, however its validity is. Correctness of detention can only be challenged on appeal (ex parte Hind), which could be an option for Tony as well as the judicial review claim. In assessing the validity of detention, general principles of administrative law are applied (R v. Governor of Pentonville Prison, ex parte Osman) In a private law context of remedies Tony could claim a restitutory claim due to the Secretary of State has gained, as a representative of the government, a benefit at the expense of Tony and this benefit-that of the sale of the lorry and the proceeds providing the exchequer-was unjustly obtained (Congreve v. Home Office) Tony could approach the ombudsman and make aware of his case before the application for claim is processed in an inquiry through the Parliamentary Commissioner.

Crashulike Ltd a company with ‘sufficient interest’ as a haulage country (Section 31(31) of the Supreme Court Act 1981) can be established via the grounds on which the review may be based those of irrelevant consideration, bias and misfeasance in public office. Under the grounds of irrelevant consideration (illegality) if a body is acting under statutory authority takes an irrelevant consideration into account, such as this case provides that the Secretary of State’s suspicion of smuggling by the haulage company based upon his dealings with them previously, or ignores a relevant consideration then the resultant decision will be open to a challenge (Associated Provincial Picture House Ltd v. Wednesbury Corporation) (the company’s claim must be forwarded within the three month time limit stated in the Civil Procedure Rules Part 54) Essentially the court will observe whether the decision making body-the Secretary of State-has addressed itself to all relevant factors, the court will not be concerned with the question of weighting given to those factors (Pickwell v. Camden London Borough Council) With the context of nemo judex in causa sua (rules against bias under procedural impropriety/denial of natural justice) the element that the Secretary of State has had dealings with this particular haulage company is likely that the company can claim that and due to this bias the Secretary of State based his decision to investigate them. In the context of irrationality (or ‘Wednesbury unreasonableness’) Judges created a fiction by saying that, in giving a power to a decision maker, Parliament would never expect the decision maker to use the power unreasonably. Thus, this decision maker using his discretionary powers unreasonably would be acting ultra vires and is therefore subject to judicial review. The irrational decision the Secretary of State reached to investigate the haulage company under the preconception of dealing with them in the past would be classed as ‘Wednesbury unreasonableness’.

Misfeasance in public office is the only public law tort only applying to the activities of public bodies. The tort is committed if the official whose action inflicted injury on the claimant either knew the action was ultra vires or acted for improper purpose. From the case Rookes v. Barnard this is, ‘oppressive, arbitrary or unconstitutional action,’ of which the haulage company can establish easily.

A private law remedy could be to claim for damages for the inconvenience caused to the haulage company. Under a public law remedy, a mandatory order could be issued.

The Drinker’s Club though an interest group and therefore may have a weak claim for standing however, they have brought a claim concerning a Convention right and may claim under the Human Rights Act 1998 for the freedom of the individual free move of goods. However, no remedy could be sought but a formal procedure possibly. Their claim would be too weak.

BIBLIOGRAPHY

P. CANE, AN INTRODUCTION TO ADMINSTRATIVE LAW, 1992, SECOND ED. CLARENDON LAW SERIES.

C.TURPIN, BRITISH GOVERNMENT AND THE CONSTITUION, 1999 FOURTH ED. BUTTERWORTHS

P.P CRAIG, ADMINISTRATIVE LAW, 1999 FOURTH ED. SWEET AND MAXWELL.

[1982] AC 687

[1991] 1 QB 504

[1995] 1 WLR 386

Rule 54.5 of Part 54 CPR (Civil Procedure Rules)

Rule 54.5.1

[1985] AC 374

Bates v. Lord Hailsham [1972] 1 WLR 1373

[1979] 1 Q.B 629

[1984] PL 332

[1983] 2 AC 237

[1982] AC 687

[1972] 1 W.L.R

[1979] CA

[1961] WLR 325

[1990] 1 WLR 277

[1976] 1 QB 629

[1948] 1 K.B 223

[1983] Q.B 962

[1948] 1 K.B 223

[1964] AC 1129

Undergraduate Assessment Problem [22035] Public Law and Administration.

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