PLA Ultra Vires Essay

In (B) scenario the Airline Pilots Association is aggrieved because backlog of applications for licenses has led to significant loss of earning for it members who have also been unable to access the progress of their applications. Such a case it could be regarded Maladministration and injustice. If the decision is believed to be unlawful by the (SOS), the question here could be whether (APA) could make a successful complaint to the Parliamentary Commissioner seeking compensation for loss of earnings. Section 5(1) of the Parliamentary Commissioners Act 1967 provides that a public member may make a complaint to the commissioner and may investigate where individuals “Claims to have sustained injustice in consequence of Maladministration". In the Barlow Clowes affair were a group of companies collapsed, causing significant losses to shareholders. The commissioner found Maladministration and recommended compensation for losses incurred. Also in the Channel Tunnel Rail Link case, were damage caused by prolonged plans made owners unable to sell their home. The committee stated that " ... an expectation that when an individual citizen is faced with extraordinary hardship as a result of strict application of law or policy the executive must be prepared to look again and consider whether help can be given" On the other hand section 5 (5) provides that the commissioner shall act " in accordance with his own discretion", as in the case of Re Fletcher (1970). However if the commissioner decides to investigate claims of the (APA) but makes its finding in an up score manner the (APA) can bring a claim for judicial review to quashed the decision of the commissioner. In Balchin, Court held that the decision on Maladministration was flawed with inadequate reasoning and failing to give reason on the main issue. It could also be necessary to advice (APA) to write to the (SOS) and express their dissatisfaction about the delay and the impact it has cause on their well been and wait for response.  

In the (C) sernario, Flyinair Airline is aggrieve because the expectation Flyinair has relied on made by the a Senior Civil Servant has been ignored and as a consequent of that Flynair is now facing a fine for using unlicensed pilots. In such a circumstance it could be regarded as Wednesbury irrationality. If the discretion of the Senior Civil Servant is believed to be unlawful or unfair; the three significant questions we need to ask is: ((a) if the expectation has been engendered? (b) If the expectation worth protection? (c) If there is an overriding public interest?) In Bibi’s case the court held that “in all legitimate expectation cases, whether substantive or procedural, three practical questions arise. The first question is what has the public authority, whether by practice or by promise committed itself, the second is whether the authority has acted or proposes to act unlawfully in relation to the commitment; the third is what the court should do?"  In MFK Underwriting Agents Case, Bingham L J ruled that "if a public authority so conducts itself as to create a legitimate expectation that a certain cause will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation..." Although the court have distinguished giving two different meanings to the term " rely upon" it could be a matter to prove whether or not Flyinair has in some way relied upon the representation of the Senior Civil Servant. In Coughlan the court ruled that detrimental reliance was important. On the other hand how could it be established that there is a subjective knowledge (overriding interest) that required the Senior Civil Servant to depart from the representation made to Flyinair, or is it an ultra vires representation as in Rowland v Environment Agency. Also, in the US Tobacco International Inc (1992) case were the government granted production of oral snuff, the court held that even though the applicant had a legitimate expectation, there was an overriding public interest in banning a harmful substance.  The question remains whether Flyinair can be successful in bringing a claim. Again, on the balance of probability it might as well be necessary to know whether such representation needs protection.  In Liverpool Taxi Fleet cases (1972) were the Corporation announced an increased in licenses without consulting the operators Association, the Court held that the Association has a sufficient standing to bring a claim. However, in National Federation of self-employed and small businesses case the (HL) held that the Court was right to grant leave at the first stage but on fact, the Federation lacked sufficient interest to challenge the legality of the agreement .  Although Section 2 of the (ASA) 2010 creates a strict policy for using unlicesened employees, it could be said here that based on the representation made by the Senior Civil Servant, Flyinair had relied upon such promise by using unlicensed pilots even though Flyinair was aware of Section 2 and 3 of the (ASA) 2010.  Could it be possible for  Flyinaire to succeed in bringing a claim for Judicial Review? It might as well be important to establish the two possibilities open to the court as to when a public authority could resign from a promise. However Flyinair could be advice that there is a possibility that the representation made could be misleading and the probability of getting a remedy will be slim. The reason here could be the relevant statute had not stated that a particular group could be favored.

In (D) scenario David is aggrieved because his application for license under Section 2 of the (ASP 2010) has been refused without any substantive reason. In such a case it could be regarded as irrelevant consideration under the Umbrella Elements of Wednesbury. In Associated Provincial Picture House case were the local authority refused to issue licenses to a cinema, the Court for the first time acknowledged that the decision by the public authority could be reviewed on grounds of reasonableness Also in Padfield (HL) held that one could not use the power that has been given to him in statute for politically expedient purpose. What could be important here is the legislative intent which is the provisions under Section 2 of the (ASA 2010).  Although there is no duty to give reason at common law but section 19 (3) (b) Free of Information Act 2000 (FOIA) states” In adopting or reviewing a publication scheme, a public authority shall have regard to the public interest - in the publication of reason for decision made by the authority" In Venables case the (SOS) in a radio interview admitted that one of the reasons he gave a long sentence was because of what the poll show in the Sun newspaper. Accordingly in David’s case the question could be whether the decision of the (SOS) could be regarded as irrelevant considerations as it is not one of those set out in statute. The issue here remains whether David could succeed in bringing a claim for Review for a breach of Section 6 (1) of the Human Right Act  (HRA) 1998 to be quashed. It could be noted that even before the HRA 1998 came into force, the (HL) in Simms and Daly defined the modern concept of judicial review, certainly relating to the control of power were individual rights are at stake. The (HL) was also suggesting here that there is relatively little difference between Wednesbury and proportionality. In fact the real question was whether or not the decision of the decision maker was reasonable or proportionate and whether it had an excessive impact on the individual concern. In the words of Lord Steyn in Simms " freedom of speech is the lifeblood of democracy..... It acts as a brake on the abuse of power by public official. It facilitates the exposure of errors in the governance ....." However for David to certify the sufficient interest test it has to be proven under Section 7 (1) (b) of the HRA1998 that he is “a victim of the unlawful act." Nevertheless in Robinson, Lord Woolf MR said "... if an applicant can establish a case which deserves to succeed standing will not constitute a bar to the grant of remedy." It is clear here that David is the victim of the unlawful act and such consequence could create a real negative impact on his well being. Since it will be too costly for court proceeding David could be advice to his local commissioner for maladministration which will cost nothing.

  BIBLIOGRAPHY

Barnett. H, (2009) Constitutional & Administrative Law, (8th edn)  USA and Canada, Routledge

Barnett. H, (2004) Constitutional & Administrative Law, (4th edn) Cavendish, London.

Turpin, C. and Tomkins, A. (2009) British Government and the Constitution, (6th edn) New York, Cambridge University Press.

ELECTRONIC JOURNAL AND PERIODICAL ARTICLES

Steele, I. (2005) ‘Substantive legitimate expectations: striking the right balance?’ Law Quarterly Review 305.

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