Law Problem Questions - Coursework Example

Questions The case of Council for Civil Service Unions v Minister for Civil Service1 the Court held that executive action based upon a common law prerogative may not necessarily be exempt from judicial review, which seeks to up0hold fairness to individuals. When national security is involved however, those interests may outweigh fairness to the individual. The rule that exists under common law is that where civil servants are concerned, they hold their office at the pleasure of the crown and as a result, they may be dismissed at any time. Cases like Council for Civil service Unions have established this rule as an integral one within constitutional law on the basis of public policy. In this case, an administrative decision was overturned by way of a judicial review. There were three basic grounds on the basis of which the decision was overturned and Lord Diplock set them out as follows: (a) Illegality (b) unreasonableness or irrationality and (c) procedural impropriety. In this context, procedural impropriety would exist when during the process of arriving at this decision, the relevant procedures which have been spelt out through statutes are not adhered to or when the rules of natural justice have been violated. As a result, an application can be made for judicial review and has a good chance of being successful if a plaintiff contends that either of the above has occurred. Statutory violations that may result in procedural impropriety: This arises when statutes of Parliament need to be applied and such statutes may involve specific certain procedures that must be completed. In the event such procedures are not completed according to the specification in arriving at an administrative decision, this can be grounds for making an application for judicial review. In the case of Jackson Stanfields v Butterworth2, Jenkins J stated: “Bearing in mind that the defendant has had the benefit of the work done and the desirability in the public interest that contracts should be observed, I ask myself whether the Court should regard a purely technical breach of the regulation as ....sufficient ground for absolving him from his undoubted obligation to pay for work done on his property at his request.”3 This case raised the question of the failure to hold a public hearing or inquiry before arriving at a decision and became the subject of a judicial review. The case of R v Social Services Secretary4 raised the issue of failure to consult with an external advisor as required in making an Act of Parliament. In this case, the Minister had a statutory duty of consultation before issuing an SI and the motion for judicial review was raised on the basis that the Secretary had failed to so consult. The Court made a declaration that the Minister had failed to consult the Association but this did not necessarily make the SI invalid, because the complaint in essence, was about the procedure and not the content of the order5. The Court argued as follows: “there is a public interest in not upsetting regulations which have been made unless good reason can be shown for doing so, ....these were regulations which ....[the Secretary of State] was perfectly entitled to make and no useful purpose would be served in quashing them.”6 Hence, in both of the cases mentioned above, although the application of judicial review were not successful, the grounds on which the application was brought was “procedural impropriety” caused by Statutory violations. Breach of natural justice that may result in procedural impropriety: The concept of natural justice requires that any decision is made with some element of fairness, although fairness itself cannot be precisely defined. In Lord v McMohan, Lord Steyn, in referring to fairness stated that the rules of natural justice are not set in stone7. However, natural justice does require some basic elements such as (a) a non biased decision (b) the right to a fair hearing and (c) a duty by a public authority to give reasons for its decisions. Broadly, these aspects must be satisfied in administrative decisions, failing which there could be cause for judicial review. For example, in the case of R v Bow Street Magistrates8 the decision maker had a personal interest in the outcome of the decision that was rendered. The Court held that although no actual bias could be shown, the decision maker was to be disqualified because there was such an interest existing in the outcome of the case. This was also corroborated in the case of Magill v Porter9where it was held that when such an interest exists on the final outcome, there is a very real possibility of bias. In the context of any decision, another aspect that will arise is whether an applicant had had an adequate chance to present his or her case before such a decision was made. For example, in the case of McInnes v Onslow Fane10, if an applicant has certain legitimate expectations that s/he will receive an oral hearing to support a case for renewal of license, then such a request cannot be rejected without providing good reasons. When a decision is made to dismiss an individual for example, the rules of natural justice would require that the person is given a fair hearing and a chance to defend himself/herself. In general, there is no duty imposed upon a public authority to provide reasons for an administrative decision, as also stated in the case of R v Secretary of State for the Home Department ex parte Doody.11 However, there could be a statutory requirement and a duty to give reasons; alternatively there may be such an implication existing under common law and this may be enforced by the Courts in a judicial review, especially in the context of judicial and quasi judicial decisions.12 This implied duty to provide reasons for an administrative decision can also be one of the grounds for a judicial review. On the basis of the above, it may be concluded that when there is a violation of certain procedures that have been set out by statute or when a violation of natural justice has occurred, there could be scope for a challenge of such a decision through judicial review. This also appears to be justified, because while it may be argued that the specified procedures are only regulatory measures, they are nevertheless set out to ensure that fairness and equity are included in the issue and enforcement of regulations. If the opportunity for judicial review did not exist, it could make public bodies more lax about ensuring fairness in administrative decisions. 2. Publishing or distributing certain kinds of written material has also been brought under the scope of the Public Order Act of 1986, when they are intended for a harmful purpose such as storing up racial hatred for example. According to this Act, a distribution of written material will be considered a criminal offence punished by imprisonment when it is threatening, abusive or insulting and stirs up racial hatred13. It must also be noted however, that as laid out in the report of the Select Committee on religious offences in England and Wales, hatred itself cannot be considered a crime, whether it is racial, religious or whether it manifests in any other form.14 In Sean’s case, the articles he is proposing to write will deal with the public order offences caused during the demonstrations of the Rights for refugees campaign. At the outset, it must be noted that applying the rights that have been laid out under the European Convention of Human Rights, protesting itself will not constitute a public offence, unless it has caused serious disruptions in public order or has instigated racial hatred. This appears to have been the case with Andy, since he is now imprisoned, therefore it may reasonably be concluded that his opposition to the rights for refugees campaign did stir up racial hatred. Sean proposes to write articles promoting the cause of the Rights for Refugees. He may not incur criminal liability merely for writing and publishing articles; however if the content of those articles is inflammatory and stirs up racial hatred against those who oppose those rights, then he could become liable for committing a criminal offence under the Public order Act of 1986. Since Sean proposes to also pass conclusions about Andy’s guilt, he could also be deemed guilty for interfering with Andy’s rights to a fair trial, as set out under Article 6 of the European Convention of Human Rights. Another issue that must be considered in this context is Sean’s right to freedom of expression. In the case of R (Begum) v Headteacher and Governors of Denbigh High School15, one of the issues raised was the freedom of expression. Within the context of the Human Rights Act of 1998, the issue concerning freedom of expression was Begum’s right to wear jilbab while at school; however this was counterbalanced by the rights of others and the rights of the school to maintain a uniform dress policy to foster equality among students in a multi-cultural society16. In the case of Herczegfalvy v Austria17, the Court found that there had been a violation of Article 10 of the ECHR. The plaintiff in this case wanted access to reading matter and other materials, but the restriction placed on this was held to be a violation of his rights to freedom of expression, because he was entitled to receive information. Applying such precedents, it could be argued that Sean has a right to disseminate information, and his right to do so would be protected under Article 10 of the ECHR. However, this right would not be absolute; it would be conditioned and balanced by the rights of others. Hence, if his expression of high rights interferes with the rights of another, it would not be upheld. In case of Sean and Andy, the issue at stake is balancing Andy’s rights to a fair trial, versus Sean’s right to freedom of expression in freely disseminating information through his articles containing his views about Andy and the trial. Since the right to freedom of expression is not absolute and the purpose of the ECHR is to ensure that the rights of all individuals are protected, even those who have been criminally accused, Sean’s rights to publish his articles may be curtailed. A great deal would depend upon the content of those articles, Sean would be free to express his views but may not necessarily free to arrive at any determination about Andy’s guilt because this would be a matter for the courts to decide. References Brooks, Emily, 2008. “Is the House of Lords decision in the Begum case consistent with the freedom of expression in a multicultural society?”, http://www.peterjepson.com/law/Brooks%20-%20Begum%20Case.pdf; Criminal offences and civil remedies,” http://www.yourrights.org.uk/yourrights/right-to-receive-equal-treatment/race-discrimination/criminal-offences-and-civil-remedies.shtml; Select Committee on religious Offences in England and Wales, First Report. http://www.publications.parliament.uk/pa/ld200203/ldselect/ldrelof/95/9510.htm; Page, Edward. “Governing by numbers”, Hart Publishing Case law: Council for Civil Service Unions v Minister for Civil Service (1985) AC 374 R(Begum) v Headteacher and Governors of Denbigh High School (2005) 2 All ER 396 Herczegfalvy v Austria (Series A, Volume 242-B; Application No 10533/83) Jackson Stanfields and Sons v Butterworth (1948) 2 All ER 558 Lloyd v McMohan (1987) AC 625 R v Bow Street Magistrates; Ex Parte Mackeson (1981) 75 Cr R(Begum) v Headteacher and Governors of Denbigh High School (2005) 2 All ER 396 R v Secretary of State for Social Services, ex parte association of Metropolitan authorities (1992) 25 HLR 131 Read More