Judicial Review

Furthermore another exception to the rule in O’Reilly is those cases which involve Collateral Challenge; using JR as a defence for civil action or criminal charge6.

1. Parpworth, Pg 243 (12.1)
2. O’Reilly v Mackman [1983] 2 AC 237
3. HL in Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 AC 624
4. Mercury Communications Ltd v D.G of Telecommunications [1996] 1 All ER 575
5. As explained by Parpworth, Pg 251 (12.20)
6. Leading Case Boddington v British Transport Police [1999] 2 AC 143

As a claim for JR can only be made against a public body, it is necessary to determine whether the body is in fact open to proceedings7. To determine if an organization is a public body, it is important to look at the source of their power; which will usually derive from Statute, delegated legislation or the common law. However where a complicated case is involved it may be necessary to examine the nature of the power they exercise. For e.g. in R v Panel on Takeovers and Mergers ex p Datafin Plc8 the Court of Appeal (CA) expressed that an organization can be recognized as a public body due to the nature of the power it exercises and introduced the ‘but for’ test. This can be contrasted with companies which may still satisfy the ‘but for’ test, but an application for JR will be defeated if they a private body9.

In this case the Local Licensing Authority would appear to be a public body whose decisions are reviewable by the courts because they derive their power from Statute; the Local Public Houses and Restaurants Act 2005. Therefore Rachael would be advised to make a claim for JR.

In addition, any claim must comply with the Civil Procedure Rule 54 and must be made promptly and within 3 months of receiving the decision being challenged. The claimant must also have ‘locus standi’10 (sufficient interest). It is fair to say that Rachael does have sufficient interest as her livelihood is at stake and her restaurant is under threat.

Grounds for Judicial Review

What must be examined next are the grounds on which Rachael will make her claim. In CCSU v Minister for the Civil Service11 Lord Diplock expressed that the grounds for JR fell under three heads; Illegality, Irrationality and Procedural Impropriety.

7. R v Panel on Takeovers and Mergers ex p Datafin Plc [1987] QB 815
8. R v Disciplinary Committee of the Jockey Club ex p Aga Kahn [1993] 2 ALL ER 853
9. See 31 (3) of the Senior Courts Act 1981; see also IRC v National Federation of Self Employed and Small Business Ltd [1982] AC 617
10. Council of Civil Service Unions v Ministers for the Civil Service (1985) (GCHQ case)

Illegality;

Dealing with illegality, a minister or a public body can only act within the scope of power granted to them by Statute (intra vires). Illegality can be claimed where a public body acts outside the scope of power and the decision will be deemed ultra vires, as in Bromley L.B.C v Greater London Council12.

Furthermore illegality can also occur when powers are improperly delegated to another person; certain powers are also non – delegable13. However the convention of ministerial duties is recognized as being delegable14.

Further still illegality can be claimed with regard to relevancy; whereby the decision maker has taken into account irrelevant matters and may have disregarded relevant matters, as in Roberts v Hopwood15.

Lastly if power is granted for a certain purpose and is used for another purpose then again illegality may be claimed as a ground for JR16. A statute may expressly state the purpose, or it can be implied by the court.

As the reasons for refusal of a license under section 3 of the Local Public Houses and Restaurants Act 2005 are not known; it is difficult to determine if the Licensing Authority (LA) has acted ultra vires. However Rachael could argue that the LA should not have delegated such an important task out to a sub – committee due to time constraints17. Each case should be dealt with professionally. Furthermore is the sub – committee qualified to make the decisions under s.3 of the Act? Most likely they are not. The LA could also have taken into account irrelevant matters18; perhaps thinking that a fashion consultant will not be able to run a restaurant or serve alcohol.

11. Bromley London Borough Council v Greater London Council [1983] 1 AC 768; contrast with Westminster Corporation v London and North West Railway Company [1905] AC 426
12. Vine v National Dock Board [1957] AC 488
13. Carlton v Commissioner of Works [1943] 2 All ER 560
14. Roberts v Hopwood [1925] AC 578; see also R v Somerset County Council ex p Fewings [1995] 3 All ER 20
15. Wheeler v Leicester City Council [1985] AC 1054
16. Vine v National Dock Board [1957] AC 488
17. Roberts v Hopwood [1925] AC 578

Again however it is not clear, as the question does not give any fact. Likewise as the purpose and functions of the Act are unknown it would be difficult for Rachael to claim improper purpose as the basis for illegality.

Irrationality;

Dealing with the second ground, ‘Irrationality’ was previously described as “unreasonablenes”19 but was redefined in the GCHQ case. Irrationality is very hard to rely on as a ground as it is hard to prove. It is opinion bases in that 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 his mind to the question to be decided could have arrived at it20”.

In our legal system irrationality can still be used, but where person’s liberties/rights are in question the Human Rights Act 1998 and decisions from the European Court of Justice must be involved; they use ‘proportionality’. Courts look at whether or not the means were proportionate which gives a much wider scope. Could the outcome have been achieved in a different way with less force? The phrase “using a sledgehammer to crack a nut” is often used 21.

There is no European element involved in this Rachael’s case so proportionality will not play a part. It could still be possible to claim irrationality as a ground for JR, however as more detailed facts are unknown it is impossible to tell whether the LA did act irrationally and Rachael would be advised not to use it as a ground.

Procedural Impropriety;

Examining more closely the last ground; there are two aspects to consider.

18. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 1 KB 223
19. Per Lord Diplock in GCHQ case [1985] AC 374
20. R v Secretary of State for the Home Department ex p Daly [2001] 2 AC 532

First, the failure to observe procedures laid down in the legislation22, and secondly failure to observe the basic rules of natural justice. Natural justice comes from the ‘Rule of Law’ through the common law and brings basic rules of fairness into the decisions of public bodies and actions of inferior courts and tribunals23. Natural justice comprises of two elements; ‘audi alteram partem’ (hear both sides) and ‘nemo judex in causa sua’ (there should be an absence of bias with no person being a judge in their own cause).

With regard to the latter, bias cannot exist or appear to exist. In some circumstances judges are required to disqualify themselves where an interest may effect the outcome; usually financial24. Likewise in R v Bow Street Metropolitan and Stipendiary Magistrate ex p Pinochet Ugante25, Lord Hoffman had interest in amnesty international. As a result he was removed and the case was reheard. In both cases there was no evidence of bias, only a hint of possible bias which illustrates the point summed that ‘justice should not only be done, but should manifestly be seen to be done26”.

The test for bias was amended by Lord Hope in Porter v Magill27 where it was stated “the question is whether the fair minded observer, having considered the facts, would conclude that there is a real possibility that the tribunal was biased.”

Dealing with hear both sides; the principles require that a person is entitled to know the case against them28 and are given the opportunity for their side to be heard fairly29. Fairness will also require that at an oral hearing individuals have the chance to contest the evidence against them and call witnesses.

21. Agricultural, Horticultural and Forestry Training Board v Aylesbury Mushroom Company [1972] 1 WLR 190
22. Lord Cottonham LC, Dime v Grand Junction Canal (1852) 3 HL case 759
23. R v Bow Street Metropolitan and Stipendiary Magistrate ex p Pinochet Ugante [2001] 1 AC 61
24. per Lord Hewart CJ in R v Sussex Justices ex p McCarthy [1924] 1 KB 256
25. Porter v Magill [2001] UKHL 67
26. R v Norfolk County Council Social Services Department ex p M [1989] QB 619
27. Cooper v Wandsworth Board of Works (1863) 14 CBNS 180

Furthermore since R v Gaming Board for Great Britain ex p Benhaim and Khaida30, the courts have been more obliged to rule ‘that the duty to act fairly required that reasons be given for a decision31’.  With regard to the right to a fair trial, the requirement of article 6 of the European Convention on Human Rights must also be taken into account.

It is clear from this case that there are many reasons why Rachael can claim procedural impropriety as a ground for JR. firstly with regard to the rules against bias, Monica works for a potential rival restaurant company and therefore bias is present in the tribunal; regardless of whether it effected Monica’s decision. She should have stepped down32.

Secondly, only 1 of 3 members were present which seriously affected the level of fairness and impartiality making Monica’s bias greater; also it was unprofessional. It does not appear from the question that Rachael attended an oral hearing; and although this is not a requirement or law (especially regarding licensing cases which are usually postal), Rachael must have the opportunity for her side to be heard; even if through written statements submitted via post. As it appears she has not, then this violates the rules of natural justice and possibly article 6 of her Convention rights.

Lastly Rachael was not informed or given any reasons for the decision against her. All persons are entitled to know the case and evidence against them and since the Gaming Case Rachael should have been informed of the reasons why her application was rejected. Even though Monica only had to show her a basic level of fairness33 for her new application; the whole affair seems very harsh on Rachael.

Remedies

28. R v Gaming Board for Great Britain ex p Benhaim and Khaida [1970] 2 QB 417 (gaming case)
29. as explained by Parpworth, Pg 306 (13.67)
30. Dime v Grand Junction Canal (1852); see also ex p Pinochet Ugante [2001]
31. McInnes v Onslow Fane [1978] 3 All ER 211

It is quite clear that Rachael has grounds for claiming JR and can be awarded

(if successful) one of the following remedies; a prohibiting order, a mandatory order or a quashing order. Rachael would be seeking a quashing order which would in effect quash the decision against her so that she could re-apply. However the process of JR is not concerned primarily with the individual’s outcome, but instead with putting right a wrong decision of procedure from a public body. There is nothing to say that should Rachael re-apply and the correct procedure was followed that she would definitively be given a license for alcohol. She may subsequently be rejected again; legally.

In conclusion, there is no doubt that the LA are a public body whose decisions Rachael can challenge using JR. Rachael will claim JR on two grounds; illegality due to the improper delegation of power, and also procedural impropriety for failure to apply natural justice to her case regarding both bias and hear both sides. Rachael will be seeking a quashing order as remedy but as always the decision is that of the courts.

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Bibliography

• Phil Harris, An Introduction To Law, 7th Edition, Cambridge University Press, 2007

• Neil Parpworth, Constitutional & Administrative Law, 4th Edition, Oxford University Press, 2996