Constitutional & Administrative Law.

Constitutional &

Administrative Law

Judicial Review is a process by which a judge examines the way in which an inferior court, tribunal, government department or other public body has made a decision. The subject matter must be in the realm of Public, as opposed to private, law. For example, a local authority will be subject to judicial review of its decision-making but would be sued for negligence in maintaining the highway or for breach of contract; the question is whether the body has acted appropriately in exercising a public duty.

Professor Yardely has described judicial review as:

“ The ultimate safe guard for the ordinary citizen against unlawful action by… the more powerful administration”.

This is demonstrated by the case of M v Home office (1993), where M had applied for political Asylum. He was refused and applied for judicial review. He was due to be deported and the Home Office Barrister agreed he would not be deported that night as had been intended, pending a decision form the judge the next day. The Home Office Secretary ordered that M be deported as arranged and was held to in contempt of court. Judicial review is a review not an appeal, it is concerned by the process a decision was reached, not the subject matter of the dispute.

In the CGHQ Case Lord Diplock stated: ‘…one can conveniently classify under three heads of grounds on which administrative action is subject to control by judicial review. Te first ground I would call “illegality”, the second “irrationality” and the third ”procedural impropriety”.

Illegality (or want of jurisdiction): the body has acted ultra vires, that is, beyond its powers. Irrationality (or Wednesbury unreasonableness): in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) (The GCHQ case) in which employees of The Government Communication Headquarters challenged a government decision to deprive them of the right to be members of a trade union, Lord Diplock described an unreasonable decision 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”. Procedural Impropriety (or denial of natural justice): the rules of natural justice fall within three principles 1) No person is to be condemned unheard (Audi alter am partem) 2) No person may be a judge in his or her own cause (nemo judex in causa sua) 3) Legitimate expectation.

Constitutional &

Administrative Law

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Constitutional &

Administrative Law

Before going in to detail concerning the above it shall be wise to concentrate on one of the Grounds for Judicial Review and to examine critically with the relevant case law.

Illegality means: “The simple proposition that a public authority may not act outside its powers (ultra vires) might fitly be called the central principle of administrative law”.

When a power vested in a public authority is exceeded, acts done in excess of the power are invalid as being ultra vires. The ulra vires doctrine cannot be used to question the validity of an Act of Parliament; but it serves to control those who exceed the powers, which, an Act has given. The simplest instance of rule is where a local council, whose capacity to act and to regulate private activities is derived from statute, acts outside the scope of that authority. (As described in the case of R v Richmond upon Thames Council, ex p McCarthy and stone Ltd)

There are varieties of classification of illegality which, comprises several different categories including the following one of which is; Improper purpose, Includes malice or personal dishonesty on the part of the officials making the decision, but examples of this kind are rare. Most instances of improper purpose have risen out of mistaken interpretation by a public authority of its powers, sometimes contributed by an excess zeal in the public interest.

Thus a city council, which was empowered to buy land compulsorily for the purpose of extending streets or improving the city, could no validly buy land for the taking advantage of an anticipated increase in value of the land. Acting in a manor of inconsistence with the purpose of an Act was seen in the case of (Padfield v Minister for Agriculture, fishers and food) (1968), where under the Agriculture Market Act 1958; a committee of investigation was established to make inquiries, if the minister ’so directed’, into complaints made to the minister concerning the operation of, amongst other products, milk. The minister refused to refer this matter to the committee of investigation.

However, the House of Lords ruled that if the minister was not obliged to take the complaints made, neither did he have an unfettered discretion to refuse to refer a case. The result was something of a hollow victory for the farmers, since the incoming minister, having referred the matter to the committee, which upheld the complaint, rejected the committee’s recommendations.

Constitutional &

Administrative Law

Error of Law, includes an authority which is entrusted with a discretion must direct it self properly on the law or its decision may be declared invalid. By tortuous chapter of legal history, the law has fortunately developed to a point at which we need no longer struggle…for reason that all errors of law made by a tribunal now give raise to Judicial Review. The notion of error of law goes wider than a mere mistake of statutory interpretation.

A minister commits an error of law if (inter alia) he or she acts when there is no evidence to support the action or comes to a conclusion to which on the evidence he or she could not reasonably have come. In the case of (Animinic Ltd v Foreign Compensation Commission)(1969) illustrates the difficulties of distinguishing between jurisdictional and non-jurisdictional matters. The main issue for present purposes is whether this case established the role that all errors of law made by a tribunal cause the tribunal to exceed its jurisdiction. Lord Denning MR stated in the case of Deartman v Keeps …”no court or tribunal has any jurisdiction to make an error of Law on which the decision of the case depends”.

The breakthrough made by Animinic was that as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purpose abolished.

Moreover Irrelevant Considerations includes were powers are not lawfully exercised if the decision maker takes into account factors that in law are irrelevant or leaves out of account relevant matters. Thus, the Home Secretary acted unlawfully when, in deciding whether it was justified to release from prison two young men in who were convicted of murder in their childhood, he took into account an irrelevant matter (public petitions demanding that they be kept in prison for life). Moreover, a decision to award a council house to a councillor, enabling her to get ahead of others on the housing list, was unlawful, having been influenced by the view of the chairman of the housing committee that it would help her to be re-elected.

The courts power that some consideration are many severely limited irrelevant limit the scope of general words is a statute, but the courts do not always interpret statutory discretion narrowly. The converse of the proposition that as authority must not take into account relevant considerations. In the case of Wheeler v Leicester City Council (1985) The House of Lords examined the concepts of unreasonableness and of fairness, and here the interaction between had faith, unreasonableness and procedural impropriety can be discerned. Unauthorised Delegation includes the body to which the exercise of discretion has been entrusted by statue

Constitutional &

Administrative Law

May not delegate the exercise of the discretion to another person or body, unless the statute can be read as having authorised such delegation.

In general a statute that authorises one level of delegation does not there by authorise further delegation. This is a wider aspect of having authorities to pass their delegation down to adjust to their functions, case of R. v . Secretary of State for the Environment, ex Parte Spath Holme Ltd 2000.

Our discussion so far of the (ultra vires) doctrine has been phrased in terms of power discretion and duties. In many cases as mentioned above many cases however, use is made of the language of jurisdiction. Often it makes no difference whether a certain matter is regarded as being ulra vires or in excess of jurisdiction. An inferior tribunal or a body such as the licensing authority may be set to have jurisdiction to hear and determine certain question, whether it be claimed for social security benefit or taxi drivers licence. These decisions are subject to control by the superior courts on jurisdictional grounds. This supervision does not provide a fresh decision on the merits but ensures that the body in question has observed the limits, which are a condition of its power to make binding decisions.

The Human Rights Act 1998 provides by s 6(1) “it is unlawful for a public authority to act in a way which is compatible with a convention right”. The act for a public authority is not unlawfully if as a result of a provision of primary legislation, the authority could have acted differently or if it is giving effect to enforcing, legislation, that can not be read or given effect in anyway which is compatible with convention rights.

In practice, most applicants for judicial Review are likely to join arguments based on Convention rights to grounds for review that would have been available apart from the Human Rights Act. Sometimes these arguments will not affect the out come; but they will make all the difference.

Even if the official decision is within the powers of the body taking it, the decision may be challenged on procedural grounds; the issue is whether the procedural requirements on which the decision’s validity have been observed.

We have seen that in the recent debate about the foundation of judicial review, even those who denied the parliamentary intent was the bias of Judicial Review in specific instances. Today by attempt by Parliament to do so may conflict with European Law.

However, staying within the grounds of the question whether

“Judicial review provides an effective mechanism for holding public authorities to account for their actions”. Through the analysis of illegality; which brings this question to its ending as illegality, to some extent Judicial Review provides

Constitutional &

Administrative Law

An answer for holding public authorities together but only to a certain extant… as mentioned previously others factors such as irrationality etc. are to be taken into account. However, when a judgement is to be changed or reviewed mistakes and injustice are bound to take place. Sometimes there are issues which are usually left behind in deciding of a case especially one that involves public authorities, as many contribution from the judge normally goes towards the public authorities, as mentioned in the few cases above.

Thus, making a claim for judicial review may have its good and bad sides… most succeed and most fail, but normally it is the Public Bodies that have the vote, which is bias and unreasonable.