Judicial Review as a Function of the Legality - Case Study Example

Judicial review is a function of the legality of the lawfulness of administrative decision. It is also a function of the competing demands of administrative decision making. If a public decision is legal then it can remain as such despite the absence of legal guidance, although this legality may be attributable more to luck than to judgment. While regard to the legal constraints might produce better decision making, and so is to be encouraged, for it to become a ground is a challengeable concept and hence appears to have little merit ( R v. Somerset, 1995). Any arbitrary decisions for which a public official cannot be held accountable represent important and dangerous erosion. Some of the most basic and fundamental tenets of the legal and political systems where such decisions emanate from the Prime Minister, require careful scrutiny. Any alleged breach of the rule of the law raises an important and justifiable legal issue after due consideration to the concern regarding judicially cognizable standards. (The rule of Law). The High Court oversees the decisions of public bodies and officials including courts by resorting to judicial review. Grounds of judicial review are ultra vires. If the contents of the decisions are outside the power of the pubic body that made it, then the court may declare it ultra vires. For example, if a magistrate court decides to hear a decision, which is indictable only, then this would be ultra vires. This means that the body reaching the decision in respect of a complaint, was biased, or the applicant was not given a fair opportunity to be heard. The test of Wednesbury unreasonableness - if a decision was so unreasonable that no reasonable public body could have reached the decision, and then it may be successfully challenged. This is a narrow test of reasonableness that severely limits the court's power to supervise the executive. The principle evolved during the course of the hearing in Associated Picture Houses Ltd V. Wednesbury Corporation (1948). If the decision interferes with Human Rights then the courts generally require stronger proof that the decision was reasonable. There has been debate as to whether a doctrine of proportionality would be a better test compared to reasonableness. Irrelevant consideration - If the courts consider that the public body took into account irrelevant consideration then that decision may be subject to judicial review. In R v. Somerset County Council expart Fewings (1995), the council passed a resolution prohibiting stag hunting on its land. This ban was successfully challenged because this ban considered the desirability and morality of hunting while deciding, which was deemed to be outside the ambit of its statutory powers. Unlike the appeal procedure, judicial review does not look into the merits of the case. In addition to any of the ordinary civil law remedies (damages, an injunction or a declaration) the high court may order a public law remedy only available through judicial review proceedings called prerogative orders; certiorari, mandamus and prohibition. Prerogative remedies are discretionary. Judicial review forms the basis of a modern democracy. As a department of state, the judiciary is charged with the constitutional duty to control abuse of power by the state, its officials and emanations. In a democracy the rule of law, itself legitimizes judicial review. An examination of judicial review requires consideration in particular of four matters, namely the principle of the separation of powers, the rule of law, the principle of constitutionality or legality and the reach of judicial review. The brief facts of this case are that in 1974 the respondent, Somerset County Council, appropriated land, which had been used by the Quantock Staghounds, since the 1920s. In 1993 a report had been completed which urged the council to come to a decision based on ethics, animal welfare and social considerations and it was decided to ban stag hunting on the land. In this connection, Laws J found that the resolution had been passed because the majority found stag hunting to be morally repulsive. The applicants, as representatives of the hunt, applied for judicial review of the resolution. On behalf of the council, it was argued that Local Government Act 1972 s 120(1) (b), which had not been considered during the councillors' debate, gave it the power to make the resolution. That section provides "For the purposes of... (b) the benefit, improvement or development of their area, a principal council may acquire by agreement any land, whether situated inside or outside their area." The applicants argued that the council had taken account of the moral issue of hunting, which the section did not cover. Laws J found that the moral issue was necessarily an irrelevant consideration for the language of the section was not wide enough to allow the councillors' own subjective moral perceptions to influence the making of the resolution. The resolution was therefore quashed. On appeal, the Court of Appeal, by a majority, upheld the decision at first instance but employed significantly different reasoning. The case raises important issues of judicial review: irrelevant considerations, the democratic legitimacy of the council and the adequacy of the present grounds of judicial review to deal with political protest by public authorities. In this case, Lord Bingham M. R. held that, the decision was ultra vires because of the failure to apply the statute. He however, held that the ethical views of the council should have been taken into account, if they were related to the subject matter of the legislation subject to the limitation that a councillor must not abuse his or her position by indulging in a personal crusade. In this respect, the most interesting approach was the dissenting judgement of Simon-Brown L.J. Although he contended that ethical factors were in principle relevant he was in favour of local autonomy and held that, although the council had acted improperly in not considering the legislation, had they done so they could have reached the same conclusion so that it would not be appropriate to set aside their decision. Thus, his Lordship took a broad view of the statutory basis of local power as essentially facultative rather than prescriptive. Furthermore, he held that even if ethical considerations were not necessarily implied in the power to manage land, a local authority should be allowed an area of discretion as to what factors are or are not relevant as opposed to the court making the primary judgement. This margin of appreciation requires the court to defer to local democracy subject to the limits of Wednesbury unreasonableness a threshold, which varies with the context, for example being stricter where human rights are in issue but lower where resource allocation is involved. Simon Brown L.J. therefore provides a basis for a substantial degree of autonomy and protection for local democracy. Swinton Thomas L.J. who agreed with Laws J was of the opinion that sensitive ethical issues are best determined at the central level unencumbered by a statutory framework. However, this seems to beg the question in issue, which turns on the approach that should be taken to the statutory framework. Moreover, the incommensurability argument points to local variations as desirable per se, in that they recognise the impossibility of rational solutions and keep the options open. Laws J in (1995) 1 All ER 513, 524j, stated that: "It is in this sense that it [a public authority] has no rights of its own, no axe to grind beyond its public responsibility: a responsibility which defines its purpose and justifies its existence. Under our law, this is true of every public body. The rule is necessary in order to protect the people from arbitrary interference by those set in power over them." In the locus classicus Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 228 Lord Greene MR set out the principles upon which the courts legitimately can interfere with administrative decisions. A failure by a public authority to address matters, which ought to have been considered and which is to be derived either expressly or by implication from the statute under which it purports to act, will be an abuse of its discretion. The Court of Appeal disagreed with this construction of s 120(1) (b) and did not adopt an approach similar to that of Laws J. Rather the matter was treated as a piece of statutory interpretation alone. All three members of the Court of Appeal, Sir Thomas Bingham MR, Simon Brown and Swinton Thomas LJJ, agreed that s 120(1)(b) had been construed too narrowly by Laws J. Sir Thomas Bingham MR thought that as the statutory language was broad, it would be placing an unwarranted restriction upon the provision to hold that the moral argument was necessarily irrelevant to the exercise of the power. Thus the difference in opinion is only in respect of the law. Hence, Swinton dissented and he was concerned about the cruelty to the stags and stipulation of moral ethics applicable to the statutory proceedings. In this case, it is clearly demonstrated that judicial review is a function of the legality of the lawfulness of administrative decisions and of the competing demands of administrative decision-making. This process tests not only of the legality of the public decision but of the limits of the courts inherent supervisory jurisdiction. Judicial review serves to protect the freedom of private individuals to do as they please unless otherwise prohibited by law; hence, it was incorrect for the Court of Appeal to treat the issue of the moral argument concerning hunting as no more than a question of statutory interpretation. The opinions and observations of the different judges in this case are appended, herewith. Laws J went on to decide whether the councillors were entitled to impose their moral views on hunting under the terms of the power and concluded that the statutory language was not broad enough to allow subjective moral views to form the basis of a resolution. It was necessary for the ban on hunting to be objectively justified as it interfered with the lawful activity of the hunt. As the section did not expressly allow moral views to be taken account of or to form the basis of a resolution it was not objectively justified in law. The fundamental principle of the common law, which Laws J discussed, was that a public authority could only act within the powers conferred upon it, whilst a private person could do anything, not prohibited by law. Simon Brown LJ stated that the moral argument was necessarily relevant; a disregard of which may have led to criticism of the decision-making process. Sir Thomas Bingham MR stated that the acceptance of the moral argument by the council in making the resolution was not an attempt to regulate the moral opinions of the stag-hunters. In the opinion of Simon Brown LJ it was inappropriate to speak in terms of a manifest restriction of freedom, as Laws J had done, because the hunt required a licence to conduct its activities. Both of these last two comments tend towards a view of the resolution as not being an interference with the freedom of the hunt. The council was not attempting to enforce a particular moral code upon the hunt. It was seeking to prevent a lawful activity because of the subjective moral views of its majority. The council was attempting to control the morals of the hunt. According to Simon Brown LJ's comment, many activities may be carried out by virtue of a licence and the interference with which may impinge upon personal liberty. As it was not prohibited by the statutory power, it was clearly a permissible consideration. The fundamental difference in approach between the Court of Appeal and Laws J is that stag hunting was not seen as being a lawful activity in the absence of a statutorily conferred right. Simon Brown LJ commented obiter that his judgment may have been otherwise had the right to hunt been conferred by statute. What the Court of Appeal did here involved a sleight of hand as to why the stag hunting was not a lawful activity unless prohibited by law. The Court of Appeal ignored the major principle of the common law that Laws J went to lengths to explain. However, the appeal was dismissed because the council had failed to address the terms of s 120(1) (b) when making that resolution. Swinton Thomas LJ stated that the failure of the councillors to consider the statutory power led to the resolution being quashed. Simon Brown LJ dissented in this point. In his view, the statutory power mirrored the common law constraints on public decision-making that public authorities act in the public interest. As Laws J ([1995] 1 All ER 513, 523g) stated: "The facts that they (the councillors) were neither aware nor advised of section 120(1) (b) has no bearing in logic upon the question whether in the result they acted within its limits." If a public decision is legal then it can remain as such despite the absence of legal guidance. Whilst regard to the legal constraints might produce better decision-making, and so is to be encouraged, for it to become a ground under which decisions can be challenged would appear to have little merit. After taking the various factors involved into account, it is not possible to agree with the final judgement, because it gives more or less a free hand to kill and maim innocent and harmless animals. This judgement will only serve to increase cruelty towards animals. Further, the indiscriminate killing of these stags will harm the ecosystem and the courts if they interfere with this laudable task in the name of judicial review, will be doing a disservice to humanity at large. All said and done no trophy can match the beauty of a stag in its habitat. It is not correct to kill animals for the sake of hunting or other such frivolous activities. References. R v. Somerset County Council ex parte Fewings, Leyland and Down. (1995). 3 All ER 20. The rule of Law and the Justifiability or prerogative powers: A comment on Black v. Chrtien (Ontario). Lorne Sossin Associated Provincial Picture Houses Ltd v. Wednesbury Corporation. (1948). 1 KB 223 CA. (1995). 1 All ER 513, 515j. (1995) 1 All ER 513, 524j. locus classicus Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948). 1 KB 223, 228. Read More