Illegality as a Ground for Judicial Review - Essay Example

Public Law: Judicial Review (a) Alya’s Case As much as Catford District Council has ity to issue retailing license to pet-shop owners and operators, the relevant statute provides discretion to the local authority to conduct consultations if necessary. The fact that the license was legally issued and Alya is not comfortable with the shop’s operation on Sundays, gives rise to various grounds upon which the complainant may challenge the council’s decision or at least, the procedure used in issuing the license. The following are the various grounds: Illegality: Illegality, as a ground for judicial review, is where the law is contravened at some point by an administrative body in its actions or inactions, as was defined in White and Collins v Minister of Health.1 In this case, procedural ultra-vires is evident. This is whereby an administrative body fails to follow the right procedure in its actions or inactions (Fitzroy 2014, 1). As much as Catford district council is vested with the power to issue licenses, procedure as per the relevant statute law requires it to conduct consultations where necessary. Bearing in mind that the shop operates within a residential flat, it was necessary for the council to consult the adjacent household dwellers regarding the same before issuing the license. As a renter of a dwelling premise, Alya has a right to peaceful and quiet enjoyment of his property. Therefore, she has every right to protest due to the nuisance emanating from the shop during Sunday. Had the council consulted her prior to the issuance of the license, things might have turned differently, as some conditions could have been attached to the operating license. It was therefore illegal for the council to issue the license without conducting necessary consultations as the relevant authority suggests. Unreasonableness: The principle of reasonability is to the effect that an administrative body should be rational in acting or making its decisions. Unreasonableness is seen when an administrative body acts or makes a decision in a manner so absurd or outrageous, that a reasonable person acting in the same capacity and under the same circumstances would to do or make, as was defined in Associated Provincial Picture Houses Ltd v Wednesburry Corporation.2 In this case, the reason given for the council’s failure to conduct consultations, something which is done by all other local authorities, is so unreasonable that one would not expect such an authority to fail to act on that basis (Harel and Kahara 2010). Time and money saving is not reasonable enough to warrant failure to conduct consultations prior to the issuance of licenses. It is so unreasonable, that other local authorities with the same status and powers would not use as an excuse for failure to conduct due consultations. Bias: In legal terms, bias refers to a situation where an action or a decision is influenced by an underlying interest on the part of the decision maker in the subject matter, as it is described in Webb v The Queen.3 The fact that the right procedure was not followed during the issuing of the license in question seems to suggest that the familiarity between the members of the council and the retailer must have played a role in the same. The rule against bias is a natural justice principle that requires a decision maker to alienate himself with a subject matter in which he has an interest of any kind. In this case, the members of the council must have heard the best interest of the retailer at heart, since they belonged to the same congregation. This tends to suggest further that the license was not necessarily offered on merit. (a) Chester’s Case Considering the facts of this particular case scenario, Chester has strong grounds for judicial review in legitimate expectation and illegality, as discussed below in detail. Legitimate expectation: Legally speaking, legitimate expectation is not literally speaking a right, though it is enforceable under law. Legitimate expectation simply refers to the “right” of a person to expect that a promise made by a local authority will be kept (Thapliyal 2014, 1). The law, under judicial review, therefore seeks to protect an individual who as acted in reliance to a promise made by an administrative authority, as was rationalized in Nadarajah v Home Secretary.4 In the case at hand, Chester made an enquiring with regard to the application of a license in order to run small tropical fish selling business in his shop. However, an officer at the council informed him that he should not worry, as only specialists in pet-selling business are required to apply for licensing. Acting in reliance of this assurance, Chester went ahead to implement his plan. He therefore did this, having a legitimate expectation that the local authority would keep its promise and not harass him in future for operating an illegal business. Therefore, the council’s decision to prosecute Chester cannot stand, since the ground of legitimate expectation would act to protect him, as was held in R v North and East Devon Health Authority exp Coughlan.5 Illegality: In this context, illegality may be defined in two ways; acting or deciding unlawfully and acting or deciding beyond power or authority, as was defined in R v Fulham Corporations exparte Withan.6 According to the Pet Retailer Regulations of 2003, one can only be prosecuted and be required to pay the pre-determined fine of fifty thousand pounds, if they allowed the operation of pet-selling business in their premises without license. In this case, Chester had not on his own allowed such a business to operate. Being a law abiding citizen, he had taken his own initiative to contact the council, enquiring on the application procedure. He was then informed that such business did not require license, and this therefore meant he was to continue operating his business, as it did not amount to contravention of the law. The fact that the council has decided to prosecute him, is therefore unwarranted and very much illegal. The other instance of illegality is seen where the council is acting beyond power, as was suggested in R v Milton Keynes Council.7 The Pet Retailer Regulations of 2003 is meant to apply to pet retailers specifically. In the facts presented in this case, Chester did not intend to specialize in pet retailing, but rather to sell a small number of tropical fish as a side-line to its small other business. This therefore means that Chester does not fall under those who are to be affected by the statute, and therefore the council is acting beyond its jurisdiction. The council therefore is acting illegally, as they are applying the provisions of the statute inappropriately, as it does not have power to license general shop operators under the statute in question. (b) Dogford District Council’s Case The Localism Act of 2011 was formulated to define and describe in detail the powers, both general and specific, and authority of local authorities. With regard to setting up a cat rescue sanctuary, Dogford District Council would derive the power to do so from the statutory law. The law has provisions regarding the limits imposed on commercial activities carried out by local authorities, or rather involving local authorities. According to the statute, local authorities have general powers to operate things for a commercial purpose provided that similar things would be done by the authority without any commercial interest in otherwise circumstances.8 As much as Dogford District Council wants to set up a cat rescue sanctuary and sell unwanted cats to lonely people, the commercial aspect is not what mainly drives them. They are driven by the desire to take good care of unwanted cats, and they would still do the same even if the money aspect was not involved. This sub-section therefore gives the District Council the power to set up such a sanctuary. Part one of the Localism Act of 2011 also prescribes the manner in which commercial activities involving a local authority should be carried out. In section 4, sub-section 2; the provisions are to the effect that a local authority with such a desire should carry out the commercial activities through a registered or rather, licensed company. This therefore means that Dogford District Council will have to register the proposed sanctuary as a company, in order to act in line with this legal provision. An area of controversy, however, would be when it comes to the licensing of the proposed pet-selling shop. This is because, in line with the regulations provided by the Pet Retailers Regulations of 2003, the pet-selling shop must be licensed by the local authority, which is the council itself. The council will therefore have to make an application to itself, consider the application itself and make a decision either in favor of or against itself. Considering all these in light of administrative law, there will be some difficulties. This is because the council will be reviewing an application and making a decision on an application in which it has a proprietary interest. This, in administrative law, would amount of absolute bias, hence contravening the natural justice rule against bias. In administrative law, a person or body is not allowed to decide on a case in which he may appear to be biased, even if that may never be the case. The purpose of this is usually to preserve the public confidence in the administrative bodies and tribunals at all costs, as it was explained in Metropolitan Properties Company Ltd v Lennon.9 In the case at hand, the public will definitely not be comfortable with the council being the judge in the council’s own case, since the outcome will most likely be biased. This is true because the council has a proprietary interest in the proposed sanctuary. It has an interest, which is seeing unwanted cats being taken care of instead of roaming the streets, and the same being sold to lonely people. It would obviously appear to a reasonable by-stander that there is no way the council can deny itself a trading or rather, a retailing license. Therefore, a decision for the council to grant itself a license is likely to be quashed on the ground of imputed bias, should any member of the public feel bad about it and apply for a judicial review to the same administrative decision or action. (c) Justifications For Judicial Review Judicial review is an administrative process that is adopted by majority of jurisdictions with administrative bodies and tribunals. It is worth noting that judicial review is distinguished from judicial appeals, in that with appeals, it is the decision of the administrative body that is under scrutiny. In judicial review, however, it is the procedure or rather; process through which a decision was reached that is under scrutiny, and not the merits of the decision itself. There are various factors that clearly points out the need for judicial review, and the significance of the same with regard to justice and fairness, as was cited in Chief Constable of North Water Police v Evans.10 To prevent excessive exercise of power by administrative bodies and officials: Administrative bodies and officials are usually vested with powers and authority, whose limits are normally set out either expressly and impliedly in statutory law. As much as the administrative bodies and tribunals are supposed to act within the limits of their powers, some go an extra mile to act excessively (Sellick 2013, 173-185). This simply refers to situations in which administrative bodies and officials decide or act on matters beyond their jurisdiction, hence occasioning some degree of injustice to members of the public. There are various ways in which judicial review works to protect the public from arbitral exercise of power by the administrative bodies and functions. This is seen in the various cases in which administrative actions and decisions have been quashed by judicial review courts on various grounds such as illegality or simply lack of jurisdiction, as was held in White and Collins v Minister of Health.11 To ensure that an individual is given fair treatment before an administrative body or official: Many are times when administrative bodies and officials are involved in determining or establishing the right and duties of individual public members within their jurisdiction. During such moments, there are administrative procedures that are involved; some which are procedurally fair and just while others are not. Judicial review therefore exists to ensure that a decision or an action by an administrative body or official emanates from a fair procedure. The right to a fair hearing and the rule against bias as contained in the general principle of natural justice operate to ensure fairness. For instance, in Ridge v Baldwin, it was stated that a decision reached by a local authority in the absence of the complainant was not valid, as it did not provide the complainant a fair chance to have him heard.12 To provide remedies to those aggrieved by the decision or action of an administrative body or official: Judicial review seeks to heal wounds that might have been occasioned by a decision or an action taken by an administrative body. There are three major ways in which the remedies are provided, with the issuing of a mandamus order being the first one. This is where an order is issued to an administrative body requiring it to perform a legal duty which it has failed to perform (Fitzroy 2014). The second remedy is through the issue of certiorari, which is an order issued to set aside a decision taken by an administrative body. Finally there is prohibition, an order issued against an administrative authority requiring it to put to an end either a proceeding or an action (Fitzroy 2014). Sources Used Table of Cases Associated Provincial Pictures Houses Ltd v Wednesburry Corporation Chief Constable of Northern Waters v Evans Metropolitan Properties Company Ltd v Lennon Nadarajah v Home Secretary Ridge v Baldwin R v Fulham Corporation R v Milton Keynes Council R v North and East Devon Health Authority, exp Couglan Webb v The Queen White v Collins Table of Legislation Localism Act of 2011 Bibliography Fitzroy. Grounds of Review. May 1, 2014. http://www.lawhandbook.org.au/handbook/ch21s02s06.php (accessed December 22, 2014). Harel, Alon, and Tsvi Kahara. "The Easy Core Case For Judicial Review." Journal of Legal Analysis, 2010: 227-256. Sellick, Joanne. Key Facts: Constitutional and Administrative Law, Fourth Edition. London: Routledge, 2013. Thapliyal, Arvind. India: Doctrine of Legitimate Expectation: Overview. June 16, 2014. http://www.mondaq.com/india/x/320664/Constitutional+Administrative+Law/Doctrine+ Of+Legitimate+Expectation+Overview (accessed December 22, 2014). Read More