The decisions of a council in regulating operations within its jurisdiction - Essay Example

? JUDICIAL REVIEW 08 March JUDICIAL REVIEW Introduction A judicial review is a process by which a superior court such as the Supreme Court reviews decision by lower courts or ‘quasi-judicial’ processes. One of the roles of the courts in judicial reviews is the control of ultra ‘vires’ powers in delegated legislation. This paper seeks to review decisions of a council in regulating operations within its jurisdiction. The paper, with the aim of advising parties to the case, will explore the powers and decisions made by the council to identify ultra ‘viressness’ in the council’s actions. Overview of the scope of the delegated legislation Subject to the Food Vending (control) Act 2009, local councils are empowered to regulate trade within their geographical jurisdictions through licensing. The act provides that local councils, within their localities, can authorize trade in food substances through licensing and ensure regulation through revocation of licenses whose owners contravene requirements of the act. Subject to section 2 of the act, licenses can be revoked for misconduct or on grounds that the food supplies offered by the licensee are not safe for human consumption. Facts of the cases Nadia’s case Nadia applied for a license for establishing a food and supplies shop. The council denied her request and no explanation was offered for the refusal. She further requested for an explanation that was not offered. There was however, rumors that the council had made a policy to reject application for licenses in a bid to control litters in the locality. Gina’s case Gina had been operating a licensed pizza shop. The council informed her that her license was to be revoked on grounds that she refused to sell supplies to Muslim women because of their religious dress code. Though Gina denied the allegations, offered a witness to the fact that she ran out of stock and requested for a hearing, the council stood its ground, refusing any hearing. Paddy’s case Paddy wanted a license for establishing a shop. He was denied the license and suspected that conflict of interest in the head of the council’s committee for issuing licenses was the reason. This is because the official had a share in her relatives business that operates in the same line of business. Lola’s case Lola, a member of WEAG group is aggrieved by the council’s initiative to license more stalls in the area on grounds of environmental degradation. She cited an act of parliament that should have regulated the council’s initiatives to ensure protection of the environment. Legal principles involved The cases are based on the principle of delegated legislation and authority, and the scope of such legislations and authority. As a source of law, subsidiary bodies such as local councils and other government agencies are permitted to make laws and facilitate implementation of the laws. Similarly, authority may be delegated for implementation of primary legislation through formulation of policies. One of the basic principles of such delegated legislations and authority is that they are limited to provisions of their parent acts that mandated them and any other superior source of law. A delegated legislation or authority can therefore not exercise more powers than is provided for by its authorizing legislation. In order to check on the concept of ultra ‘viresness’, the courts, when called upon, review implementation of delegated legislations to ensure that the agencies do not misuse authority to undermine rights and freedoms of their subjects.1 The scope of judicial review involves examination of the policy or decision in question to either approve, reverse or propose amendments to it. In exercising its review of delegated legislation, the courts look into a number of considerations. The first consideration is the conformity of the delegated legislation or authority to the powers as granted by the parent act. The aim of the courts would be to determine that the decision made in formulation or implementation of policies is within the allowable scope as provided by the parent act. This defines the ultra ‘vires’ doctrine as was observed in the case of Tailor v NUM [1985] IRLR 99 221.2 Another important aspect that the courts consider in reviewing a delegated legislation is the reasonability that is involved in the policy or steps to its implementation. Though the policy may conform to powers as granted by its parent act, its implementation might not be rational to circumstances in the locality or to the aims of the parent act. Under such circumstances, the courts would rescind the policy or its implementation. Judicial review of delegated legislation also considers certainty of the made policies to ensure that authorities conform to predictable trend that will ensure fairness to the subjects of the made or implemented policy. Lastly, the courts consider the intention of the policy or its implementation with respect to the role, which it is expected to play. A delegated legislation that is aimed at ensuring health safety should therefore not be interpreted or implemented for the purpose of criminal safety.3 Advice to the parties Nadia The decision by the council to decline application on any basis other than safety of food for human consumption defies the scope of the council’s authority in regulating trade under the act. The action is ultra ‘vires’ and falls outside the purpose of the parent act. Nadia is therefore entitled to legal redress. Gina The decision to revoke Gina’s license is beyond the scope of the council. This is because the reason for revocation is not based on food security. Besides, there is lack of equitable doctrine of fair trial. Gina can therefore seek judicial intervention to annul the council’s decision. Paddy The council’s decision not to issue him with a license is not based on the scope or the purpose of the act to ensure safety of food, and Paddy has evidence to prove this reasoning. He therefore stands chance of a favourable judicial decision to order the council to grant his licence. Lola Delegated legislations and authority are subject to statutory law. Lola therefore has sufficient legal ground to challenge the council’s decision that undermines provisions of a statute. Bibliography Barrow, C. Industrial relations law. (2nd Ed. Routledge, London, UK, 2002) Heilbronn, G. Introducing the law. (7th Ed. CCH Australia Limited, Sydney, Australia, 2008) Read More