Administration Law - Case Study Example

(a) Supreme Court Act 1981 s 31(3) requires a claimant for judicial review to establish a sufficient interest in the matter to which the application relates. In criminal proceedings the only claimants with sufficient interest are the Crown and the defendant: R v Home Secretary ex p Bulger [2001]. In civil proceedings the question of what is a sufficient interest is a question of fact and degree taking into account all the circumstances of the case: R. v Inland Revenue Commissioners Ex p National Federation of Self Employed and Small Businesses Ltd [1982]. Where a claimant is not directly affected by the action once the court is satisfied that (s)he is not simply a "meddlesome busybody"1 then it tries to balance the claimant's interest against the public importance of the issues and the remedy sought. The term 'interest' includes any connection between the claimant and the matter to which the claim relates. In R v Secretary of State for the Environment Ex p Rose Theatre Trust Ltd [1990] it was held that a desire to protect an historic site was not sufficient; only an unsuccessful applicant could appeal against a planning decision. Conversely the courts found a sufficient interest when a public spirited citizen sought judicial review of a serious public issue: R. v Secretary of State for Foreign and Commonwealth Affairs Ex p Lord Rees-Mogg [1994]. The Law Commission disapproved of the decision in the Rose Theatre case recommending that public interest applications be treated as having sufficient interest. The courts now allow a broader definition of sufficient interest based upon such factors as the merits of the challenge, the importance of vindicating the rule of law, the importance of the issue raised, the likely absence of any other responsible challenger, the nature of the breach and the role played by the group or body in respect of the issues in question. For example see Rose LJ in R. v Secretary of State for Foreign and Commonwealth Affairs Ex p World Development Movement Ltd [1995] and R v HM Inspector of Pollution Ex p Greenpeace (No.2) [1994] where Otton J distinguished the Rose Theatre decision since Greenpeace represented 2,500 persons, had a genuine interest in the disposal of nuclear waste and its expertise assisted the court in doing justice between the parties. We are therefore confident that BSS will be able to establish sufficient interest both within the context of vindicating the rule of law and that there is no other responsible challenger of the Home Secretary's decision. Having said this under CPR 54.17 the court has discretion to hear any person, which would allow the BSS to submit evidence on the issue, if not to actually commence the action for judicial review. (b) Generally judicial review is concerned with the lawfulness of the decision making process of public bodies to ensure that powers have not been abused or exceeded. BSS would have to establish that in reaching a decision the Home Secretary had erred in law in this manner. In Council of Civil Service Unions v Minister for the Civil Service [1985] (the GCHQ case) Lord Diplock enumerated the categories under which judicial review might be sought: a) Illegality b) Irrationality c) Procedural impropriety or d) Further development on a case by case basis - particularly with regard to the principle of proportionality which will be important under Human Rights and EU administrative law. BSS could attempt to establish that the Home Secretary has acted illegally as he has misunderstood his powers under the law. For example we are told that BB has had two prison sentences each of which exceeded 9 months, and that by paragraph 9 of the Entry to the UK Rules, BB therefore would not normally be allowed admittance to the UK. The purpose of the rule seems to be to unequivocally exclude from this country persons who have been convicted anywhere of a criminal offences exceeding 9 months in duration. This would imply that the Home Secretary does not have discretion in the matter. However, we note that the Home Secretary has exercised discretion in the matter since he has taken into account the impact on the local economy and disappointed fans. On this head BSS may seek to have the decision quashed as being irrational if they can establish that the Home Secretary has 'taken into account matters which [he] ought not to have taken into account, or, conversely, [has] refused to take into account or neglected to take into account matters which [he] ought to take into account'.2 Even if the Home Secretary has acted within the law it may still be possible to establish that he has reached a conclusion '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.3 In R v Somerset CC ex p Fewings [1995] the Court of Appeal quashed a Local Authority's decision to ban stag hunting on land it owned as Laws J in the Court of Appeal said the majority of councillors in voting for the ban had been swayed by irrelevant factors (namely, their belief that hunting was immoral); they should have considered only whether the proposed measure would be for the benefit or improvement of the area. In R v Secretary of State for the Home Department Ex p Bindel [1999], a pressure group, Justice for Women, challenged a decision by the Home Secretary to allow a convicted rapist - the boxer Mike Tyson - to enter the country in order to fulfil a boxing engagement. They were unsuccessful as after careful interpretation of the statutory provisions, rules and regulations Justice Sullivan found that the Home Secretary had a wide ranging residual discretion to take into account exceptional circumstances in determining whether to allow a criminal into the country which he could refer to in the absence of compassionate grounds. One such matter was the practicalities of refusing entry given that innocent third parties would be negatively affected and that extensive arrangements had been made for the match to take place. Lord Diplock's third heading of procedural impropriety is unlikely to assist BSS as this refers to decisions which affect a person's liberty or his rights as where his property is being taken or where he is dismissed from a public office.4 Indeed Justice for Women argued in the Bindel case that the Home Secretary's decision was flawed by procedural impropriety since no opportunity had been given to review whether the criminal was likely to reoffend. However, Sullivan J made short work of this argument, since there was no duty on the Home Secretary to stigmatise the conduct of any applicant for entry under the rules. The test as described by Lord Greene MR in the Wednesbury case is strict. The court will not override the decision by substituting its own opinion; nor will it assume that prima facie authorities will exceed their powers. The BSS must establish something like bad faith, dishonesty, unreasonableness, attention given to extraneous circumstances, and/or disregard of public policy. If the Home Secretary has followed the proper procedure, considered the proper issues in good faith and made a decision which is not transparently absurd the court will not interfere. (2) The principle of legality has been described as 'a unifying concept identifying the higher purpose of a number of interpretive principles which have in the past been called canons or presumptions or maxims' and is sometimes referred to as "the rule of law".5 It refers to the principles and traditions of the common law intended to secure the basic rights of the individual and the courts presume that Parliament have it in mind when making legislation.6 However, it is a rebuttable presumption which can be displaced by a clear and specific provision to the contrary.7 For example, it allows the courts to presume that Parliament does not intend to overturn fundamental rights, freedoms and immunities, restrict access to the courts, to exclude the rights to claims of self-incrimination or to deny procedural fairness.8 Lord Bingham's judgment reviewed the UK authorities on torture9 concluding that torture had been unlawful in the UK since 1640 as evidence obtained by this method is intrinsically unreliable.10 There were many reasons for this not least of all the fact that torture often requires self-incrimination. The laws of natural justice require the state to ensure that an accused's rights are protected and to prevent abuse of process.11 States have a duty to 'reject the fruits of torture' in order to ensure that torture is discouraged.12 Reliance on evidence procured in this way could only bring judicial proceedings into disrepute.13 In international law there is recognition that Article 3 European Convention on Human Rights (no torture, inhuman or degrading treatment) is non-derogable and s6 Human Rights Act 1998 requires public bodies to act in compliance with the Convention. His Lordship's judgment did take into account the fact that the UK often had to rely on evidence obtained in this way as part of the international fight against crime, since different states had different standards of admissible evidence. However any UK court which relied on evidence obtained under torture is a party to a breach of Articles 3 and 6(1) ECHR.14 This is true no matter the apparent urgency of the matter, since the prohibition against torture is jus cogens erga omnes.15 The decision in the House of Lords had the effect of overturning the majority decision in the Court of Appeal which had interpreted Rule 44(3) of the SIAC procedural code to allow the SIAC to review evidence which would not ordinarily be admissible in a court of law.16 Their Lordships were of the view that in the absence of a clear statement to the contrary Parliament could not have intended to allow evidence obtained by torture to be admissible in a UK court. Whilst it is not the task of the court to query the sovereignty of Parliament the court will apply constitutional principles in those cases on which it is called to decide.17 (3) Fred could be claiming that he has not had a fair trial for a number of reasons. For example he may have evidence to show that he was not able to be represented in the HGC hearing, or he may have evidence of bias on the parts of the officials. However, on the facts presented it would appear that Fred is challenging the discretionary finding of fact that his proposed plans would not 'improve the appearance of the property'. Where an error of fact goes to the 'precedent fact' - as in this case - there is authority that on judicial review the court will decide the question of fact itself, and not limit itself only to whether the decision was unreasonable: Khawaja v Secretary of State for the Home Department [1983]. Further if the finding of fact can be shown to be unreasonable and without any evidential basis then the decision may be reviewable: Ashbridge Investments v Minister of Housing and Local Government [1965]. Fred may also be able to seek judicial review if he can establish that as servants of the Local Authority decisions taken by HGC cannot be regarded as complying with Article 6 as these officials are not 'independent and impartial' and the decision-making process may not have involved a 'fair and public hearing' with 'full jurisdiction' to re-examine all pertinent facts. The question of whether the limited right to challenge findings of fact available in UK law is sufficient to satisfy Article 6's requirement that the deciding body has 'full jurisdiction' turns upon whether the right of the claimant is one of public or private/criminal law. In Runa Begum v Tower Hamlets LBC [2003] the House of Lords considered what 'full jurisdiction' may involve. In that particular case a homeless person challenged the decision of an official that the accommodation offered was 'suitable' and that it was 'reasonable' for her to accept it. Written appeals could be made to more senior officials who would not have been involved in the initial decision. There was also a right of appeal to the county court on a point of law. Appeal was available on a broad range of matters including misinterpretation of law, and also broader grounds of administrative illegality - procedural impropriety and irrationality. No appeal lay, however, as regards findings of primary fact (including assessments of the credibility of those who had provided information to the council). The main substantive grievance was that that the reviewing officer's decision was founded on incorrect assessments of primary fact. Lord Hoffman said that in matters of public law it is acceptable that a local officer takes a lead role in matters of fact finding, since the claimant is able to challenge the decision on the ordinary grounds of review. As such, and echoing Lord Hoffmann's words in R (Alconbury) v Secretary of State for the Environment [2001], 'full jurisdiction to deal with the case as the nature of the decision requires' existed within the arrangements laid down in the 1996 Act and accompanying Regulations, and so Article 6 was satisfied. The House referred to Bryan v United Kingdom (1995) where the ECtHR accepted that there could be compliance with Article 6 even though the independent judicial body might not have power to review an administrative decision fully 'on its merits'. Their Lordships also referred to Kingsley v United Kingdom [2002], as demonstrating that even where the basis of complaint was a dispute about findings of primary fact by an official, the Strasbourg court might regard a more 'limited right of review' of that administrative determination as sufficient. It is only if criminal liability or private law rights are raised that proportionality and a more intensive standard of review are required. This is because it was necessary under Article 6 for the primary facts and inferences from primary facts to be fully within the remit of the independent and impartial judicial body in private/criminal law matters. Hence on the face of it, Fred is unlikely to obtain a quashing order of the HGC's decision since his 'rights' fall under a schemes of regulation and the House of Lords have held that it is 'inappropriate' to regard Article 6 as requiring additional scrutiny in such cases. (4) In undertaking a judicial review, the court has no appellate function. There is no presumption that a public body has flouted the rules pertaining to proper procedure and good faith. The court has no jurisdiction unless there has been improper procedure, bad faith in the decision making process or the claimant establishes that the public body has acted in a manner which is an outrageous defiance of logic or morality: Council of Civil Service Unions v Minister for the Civil Service [1985]. In this case the court will have to decide whether it has any jurisdiction to interfere in an unfettered decision of government to alter a policy on which people such as William have relied. Is there any precedent for a judicial review of a prerogative decision If there is, is it something on which William can rely to seek a judicial review, given that there is no apparent flaunting of Wednesbury reasonableness One particular problem arises in this case in that the compensation scheme came into being by the government exercising its prerogative powers. Until the decision in R v Criminal Injuries Compensation Board Ex p Lain [1967] the courts took the view that prerogative powers were not reviewable and therefore beyond the jurisdiction of the courts. However, in that case Lord Parker held the fact that the Board had been set up under the prerogative to be irrelevant. The court could therefore look at the source of the power and the nature and effect of the power. Subsequent decisions have reviewed the subject matter, but generally only where there is evidence of procedural irregularity. In Council for Civil Service Unions v Minister for the Civil Service [1984] their Lordships held that the trade unionists had a legitimate expectation that they would be consulted based on regular consultation on conditions of service in the past, and the claimants had a legitimate expectation that that would continue until they were given reasons for its withdrawal and the opportunity to comment. A legitimate expectation generally relates to a procedure rather than a result; it is not the same as a legal right, the claimant must show that it is reasonable expectation, which implies that this is an objective test based on previous conduct perhaps. In exceptional circumstances, it may be unfair or an abuse of power to breach a person's legitimate expectation that he would be entitled to enjoy a particular benefit. In Schmidt v Home Secretary [1969] Lord Denning first promulgated the so called doctrine of legitimate expectation. The courts recognise that an official statement or previous conduct can be sufficient to raise an expectation of special treatment in a claimant. This is not quite the same as the doctrine of estoppel where the claimant needs to show detrimental reliance on a promise. Typical examples of when the court will recognise a legitimate expectation include official letters or statements indicating that a particular procedure will be followed: Attorney General for Hong Kong v Ng Yuen Shiu [1983] and R v Secretary of State for the Home Department Ex p Khan [1985]. In Findlay v Secretary of State for the Home Department [1985] Lord Scarman was of the view that a legitimate expectation can provide a sufficient interest to enable a claimant to apply for judicial review even where there appears to be no immediate substantive right. In R v Ministry of Agriculture Fisheries and Food Ex p Hamble Fisheries a company spent money on equipment and licenses based on the Ministry of Agriculture, Fisheries and Food (MAFF) published policies. However MAFF announced a moratorium on the policy and then changed it. Hamble Fisheries alleged that this amounted to a retrospective penalty and that they had a legitimate expectation that the policy would apply which MAFF had breached. Sedley J subsequently turned down Hamble Fisheries' application but stated that he could see no difference in the impact of the frustration of a procedural right and a substantive right; both were questions of fairness in public administration. He said that the court should weigh whether the expectation was reasonable in all the circumstances and was defeated by overriding policy considerations. In Sedley J's opinion the Court has a duty to protect the legitimate expectations of claimants who have good reason to be treated differently where this expectation in all fairness overrides the policy choice which threatens it. Although the Court of Appeal strongly disapproved of Sedley J' 'heresy' in R v Secretary of State for the Home Department Ex P Hargreaves [1997] when the matter came before the Court of Appeal again in R v North and East Devon Health Authorities Ex p Coughlan [2000] the Court of Appeal found that in reversing its decision to provide accommodation for life to the claimant the local authority was in breach of the claimant's substantive legitimate expectation induced by the local health authority's lawful promise. In Coughlan the local health authority had been forced to alter its policy because the claimant no longer qualified for NHS care under legislation which post dated the promise given. It follows from Lord Scarman's dicta in Findlay that William will almost certainly have sufficient interest to apply for judicial review despite the apparent lack of substantive right. He may also be able to establish that in a reversal of the Ministry's policy on compensation is an abuse of process as he has a substantive legitimate expectation, and there do not appear to be overriding policy reasons for the Ministry's new stance. Although William is required to state the remedy(ies) sought in his initial application for judicial review, all remedies are discretionary in judicial review, and there is no guarantee that he will be granted any remedy even if he is successful. Quashing the Ministry's decision, or a declaration as to William's rights will be insufficient to meet his real requirement, which is to be awarded compensation or to be given damages in lieu of compensation. Alternatively the court can issue a mandatory order and/or a declaration and/or damages. Mandatory orders are rarely granted if there are alternatives. Whilst it is within the Court's power to issue orders to effect that the Ministry should review William's application and/or order it to do pay him compensation and/or damages in lieu, bear in mind that the court takes into consideration wider policy issues: the Ministry has a right to make unfettered policy decisions. For example in R (Bibi) v Newham London Borough Council [2002] the court took into account the fact that the final decision rested with the authority and so did not order that the claimant should be housed, but simply made a declaration that there was a duty to consider the application for housing. Word count: 3500 References Alder, J. (2005). Constitutional and Administrative Law. 5th Edition. Palgrave Macmillan. Allen, M. and Thompson, B. (2005). Cases and Materials on Constitutional and Administrative Law. 8th Edition. OUP. Leyland, P. and Anthony, G. (2005). Textbook on Administrative Law. OUP. Scottish Parliament Research Centre. (2000). Immigration Rules: Refusal of Entry to the United Kingdom On The Grounds Of Criminal Conviction Research Note 36/00. http://www.scottish.parliament.uk/business/research/pdf_res_notes/rn00-36.pdf Spigelman, J. (2005). The Principle of Legality and the Clear Statement Principle. Address to the New South Wales Bar Association Conference. Working with Statutes. Sydney, 18 March 2005 Stone, R. (2004). Textbook On Civil Liberties and Human Rights. OUP. Sweet & Maxwell Commentary on Judicial Review. Available at: http://www.ffa-muenster.de/veransta/ss02/sweet%20and%20maxwell.pdf Cases: Alconbury v Secretary of State for the Environment [2001] 2 WLR 1389 A and Others v Secretary of State for the Home Department [2005] UKHL 71 Ashbridge Investments v Minister of Housing and Local Government [1965] 1 WLR 1320, 1326 Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Attorney General for Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 Bryan v United Kingdom [1995] 21 EHRR 342 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Findlay v Secretary of State for the Home Department [1985] AC 318 Home Secretary ex p Bulger [2001] 3 All ER 449 Ibrahim v The King [1914] AC 599 Khawaja v Secretary of State for the Home Department [1983] 1 All ER 765 Kingsley v United Kingdom [2002] 35 EHRR 177 Montgomery v H M Advocate, Coulter v H M Advocate [2003] 1 AC 641, 649 R (Bibi) v Newham London Borough Council [2002] 1 WLR 237 R v A and others v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68 R v Baldry [1852] 2 Den 430 R v Criminal Injuries Compensation Board Ex p Lain [1967] 2 All ER 770 R v HM Inspector of Pollution Ex p Greenpeace (No2) [1994] 4 All ER 329 R v Ministry of Agriculture Fisheries and Food Ex p Hamble Fisheries [1995] 2 All ER 714 R v Monopolies and Mergers Commission Ex p Argyll Group Plc [1986] 1 WLR 763 R v Secretary of State for the Environment Ex p Rose Theatre Trust Ltd [1990] 1 All ER 754 R v Secretary of State for the Home Department Ex p Bindel [1999] January 17 2000, unreported 30 [1999] 2 AC 629 R v Secretary of State for the Home Department Ex P Hargreaves [1997] 1 All ER 397 R v Secretary of State for the Home Department Ex p Khan [1985] R v Secretary of State to the Home Department Ex p Pierson [1998] AC 539 R v Secretary of State for the Home Department Ex p Simms [2002] 2 AC 115 R v Somerset CC ex p Fewings [1995] 3 All ER 20 R v North and East Devon Health Authorities ex p Coughlan [2000] 2 WLR 622 R v Inland Revenue Commissioners Ex p National Federation of Self Employed and Small Businesses Ltd [1982] AC 617 R v Secretary of State for Foreign and Commonwealth Affairs Ex p Lord Rees-Mogg [1994] 1 All ER 457 R v Secretary of State for Foreign and Commonwealth Affairs Ex p World Development Movement Ltd [1995] 1 WLR 386 Ridge v Baldwin [1964] AC 40 Runa Begum v Tower Hamlets LBC [2003] 1 All ER 731 Schmidt v Home Secretary [1969] 1 All ER 904 Wong Kam-ming v The Queen [1980] AC 247 Read More