Judicial Review - Case Study Example

Questions Ans The issue to be considered at the outset is whether a judicial review will in fact achieve the desired ends. If Fred is keen to get the decision of the HGO reversed and his application for a grant reviewed, then it may be better to go in for an appeal, where not only the legality of the procedure involved in making the decision will be examined but also the legality of the actual result. However, a judicial review will only examine the procedure1a based upon which the HGO has arrived at his decision and may issue a mandatory order for the application to be re-reviewed. But this does not prevent the HGO from taking the same decision again. If Fred wants to go ahead with a review, he must first request leave to apply for a review.1 In the case of CCSU v Minister of State for Civil service2, Lord Diplock set out three grounds for review2a: (a) illegality – the best cause of action on this ground in Fred’s case is that of adopting too rigid a policy in administering a decision (b) Irrationality - the human rights will element that invokes involve anxious scrutiny by the judges will be best for Fred (c) Procedural impropriety, in which Fred was not provided a fair hearing by the Housing Grants Committee. Additional grounds that are eligible are the breach of EC law and action under Article 6 of the Human Rights Act. The courts may independently assess the compatibility of domestic legislation with Convention rights, and even prior to the HRA, British Judges have independently assessed Government actions in the areas impacting upon fundamental rights and where necessary, invalidated such infringing Government actions.4 Irrationality: Although Fred may contest the decision of the HGO on grounds of anxious scrutiny leading to irrationality, it will be difficult to establish sufficient grounds, because the criterion for this was laid out by Lord Greene5 who stated that it should be “so unreasonable that no reasonable authority could ever have come to it.” This is by no means the case, because the decision to deny the grant has been done on the basis that Fred’s improvements are not “for the purpose of improving the appearance”6 of his property. Legality: Has the HGO adopted too rigid a policy in arriving at this decision? The Courts may not deem it to be so, since specific amounts7 have been designated under the procedures, together with a specific purpose. Moreover, the correct authorities have made decisions and assessed the appeal. Therefore, the best grounds appear to be that of procedural impropriety, which may succeed, especially because Article 6 of the European Convention of Human Rights requires that every individual have the right to a fair trial within a reasonable time period and Section 6(1) of the HRA states that “it is unlawful for a public authority to act in a way which is incompatible with a convention right” especially since Fred is a “victim”8 of the unlawful act or unfair procedure rejecting his application. Fred has appealed to the Housing Grants Commission but his appeal has been turned down. In Kansal v United Kingdom9, the Court held that there was a violation of Article 6, since the claimant was denied a fair trial. The case of Hooper v United Kingdom10 may be relevant, where the European Court held that there was a violation of Article 6(1) and 3(c) where the opportunity was not provided to the applicant to address the magistrate before a decision had been taken. In the case of R (Anufrijeva) v Secretary of State for the Home Department11 the Court held that the constitutional principles requiring the rule of law to be observed also required that an individual be informed of a decision before his/her rights were adversely affected. Fred’s application has been arbitrarily rejected, thus affecting his rights. The principle of proportionality may also apply in this case. For example, in the case of Edore v Secretary of State for the Home Department12 , it was held that there was room for two possible proportionate outcomes in the exercise of a decision and the decision of the HGO could be held to be disproportionate and violative of Fred’s rights to a fair trail and disposal of his application for grant, with the imperative of proportionality13 mandating a decision in his favour. But the most important case standing in Fred’s favour is Begun v Tower Hamlets LBC14, which held that the right to appeal against housing decisions carried out by internal review and appeal to a higher court are permissible under Article 6. Judicial review in Fred’s case may also be compatible with Article 6 applying the case of R (Keyhoe) v Secretary of State for Work and Pensions15. Fred’s chances for success are only fair however, given the fact that the HGO and Housing Committee have acted within the requisite provisions. Ans 2: In BSS’s case for judicial review, it appears that the best grounds for filing an application for judicial review will be on the grounds illegality16 and BSS can challenge the decision on the grounds that it was illegal and unlawful because the Minister exceeded the powers that were given to him. When a decision is to be challenged on the grounds of illegality, there must be a sufficient number in a group to bring a case, in order to establish that they have the standing to file a suit17. In the case of BSS, they do represent a sizable section of the female population that is against violence, hence they may legitimately contest the Minister’s decision. The Home Secretary has violated the powers that have been given to him18 because he does not have the power to grant permission to Banging Bucks to do a concert. Under certain conditions, a Minister may have the prerogative to override the boundaries of some of his powers, as for example, during a war19 however unless such conditions exist (which they don’t in this case) exercises of prerogative have been successfully challenged and found to be unlawful20 therefore, there is an excellent chance that the Minister’s decision in this case may also be found to be unlawful, especially for violation of Convention rights of individuals20a. Judicial process and remedies are essential to ensure that the rights of individuals and the Court of Justice in the case of UNECTEF v Heylens21 has imposed a duty upon public administrative bodies to state the reasons upon which their decisions are based and the validity of the Minister’s decisions could be a questionable one. Bibliography References: Answer 1: * Associated Provincial Picture House Ltd v Wednesbury Corporation * Barnett, Hilaire, 2004. Constitutional and Administrative Law” Cavendish Publishing * Begun v Tower Hamlets LBc (2000) 2 WLR 388 * CCSU v Minister of State for Civil Service (1985) AC 374 * Edore v Secretary of State for the Home Department (2003) NLJ 998 * Heylens (222/86 UNECTEF v Heylens [1987] ECR 4097 * Hooper v United Kingdom 42317/98 [2004] ECHR 628 (16 November 2004) * Kansal v United Kingdom 21413/02 [2004] ECHR 181 (27 April 2004). * M v Home Secretary [1996] 1 WLR 507 * R (Keyhoe) v Secretary of State for Work and Pensions [2003] 3 all ER 674 * R (Anufrijeva) v Secretary of State for the Home Department [2003] 3 All ER 827 * Section 31(3) of the Supreme Court Act of 1981 * Vujnovic v Secretary of State for the Home Department [20003] EWCA Civ 1843 * Walker, Neil, 1999. Setting English Judges to Rights Oxford Journal of Legal Studies, 133 References: Answer 2: * Barnett, Hilaire, 2004. Constitutional and Administrative Law” Cavendish Publishing * CCSU v Minister of State for Civil Service (1985) AC 374 * Heylens (222/86 UNECTEF v Heylens [1987] ECR 4097 * Laker Airways Ltd v department of Trade [1977] QB 643 * R (Tucker) v the Director General of the National Crime Squad [2003] EWCA Civ 57 * R v Secretary of State for the Home Department, ex parte Fire Brigades Union and others (1995)1 All ER 888 Read More