Morbaine Limited v First Secretary of State - Essay Example

PART A. The act of reviewing the decisions of the lower courts, tribunals and administrative bodies by the High Court is known as judicial review in English law. Some of the court orders are certiorari, which sets aside a decision; mandamus, which makes it imperative for a duty to be performed; prohibition, which orders that an action should not be undertaken as it is unauthorized; a declaration, which defines the legal rights or obligations or an injunction. In short, judicial review is that power of a court, which empowers it to scrutinize a law or an official act of a government agent which violates the fundamental principles of justice or the constitution. In England and Wales the Civil Procedure Rules requires that any claim form in respect of an application for judicial review must be filed within three months from the time that the grounds to make the claim first arose1. Judicial review permits people with sufficient interest in a decision or action by a public body to seek judicial review in respect of the legality of an enactment or a decision and action or failure to act in relation to the exercise of a public function2. Judicial review can be resorted to whenever right of appeal is absent or if all avenues of appeal have been exhausted. In such cases the court may insist upon both the defendant and the claimant to provide evidence for the existence of alternative means of resolving their dispute and as such the court will view such litigation as a last resort and will not issue any premature claims. In Morbaine Limited v First Secretary of State3, the Secretary of State granted planning permission for a large mixed-use development. A petition was filed under the Town and Country Planning Act, in the court to quash that decision4. This means of challenge is available to any person who is aggrieved by such decisions. However Blackburne J dismissed the application holding that the petitioners had no grounds of challenge as it lacks sufficient standing for the purposes of section 288. This decision makes it amply clear that petitioner must have a real or genuine interest in obtaining the relief sought. In R v Enfield London Borough Council5, the council accorded permission for Grade II listed building to be used as offices and for the construction of a nursing home in the premises. The conservation advisory group consented to these proposals. The claimant contended that these decisions were invalid due to the bias inherent among the conservation advisory group members. Richards J accepted this and quashed the council’s decisions and held that it was necessary to take cognizance of the fact that the council had arrived at its biased decision by the application of a closed and prejudiced mind. This case emphasizes the necessity for local planning authorities to implement proper procedure while according sanction to planning applications. The liability for costs in judicial review proceedings is discussed in Ewing v Office of the Deputy Prime Minister6. In the High Court, The Royal British Legion had obtained its costs against both claimants on a joint and several basis. The claimants had applied for judicial review relating to a proposed development against the owner of the site and two developers associated with this development. Ewing contended that as he had not been permitted by the Supreme Court Act7 to initiate court proceedings as an aggrieved litigant, he could not be made liable for costs as he was not a party to these proceedings. The court disagreed and held that he was liable as he was the real party to the proceedings and that the award of costs was justified. The court also held that if a claimant did not follow the pre-action protocol procedure, then he puts his opponents to greater expense in preparing the grounds and that this would be reflected in any order for costs against him. In R v Haringey LBC 8 the approach when there had been undue delay by the claimant was considered. However this did not affect the validity of the planning permission but supported some claims for damages by the claimant against the council. Besides having the power to act, the Department must also use its powers for lawful purposes otherwise its action will be ultra vires. In R v Secretary of State for the Environment ex parte Spath Holme Ltd9 the Secretary of State prepared an order which imposed a maximum limit for fair rent increases. This order was challenged by landlords, on the grounds that the original power had been conferred only to counter general inflation, rather than to benefit one particular class of tenants. The Court of Appeal concurred with this contention of the landlords and held that the exercise of power for a superfluous purpose was ultra vires, accordingly, the order was quashed. In R v Lewisham London Borough Council ex parte Shell UK Ltd, Lewisham LBC refused to do business with Shell, because Shell had interests in South Africa. Shell challenged this decision stating that it had been taken, not for the purpose of improving race relations in the Borough as had been alleged, but to penalize the company for its business interests. The Court held that the Council’s motive was to exert pressure on the Company to sever all links with South Africa and that the companys interests were lawful, therefore the Councils decision, which had been influenced by an extraneous and impermissible purpose was unlawful10. Therefore the Court will adjust the threshold according to the circumstances and context of the case. The Wednesbury principles11, followed in decision making are, first, to take into account all relevant considerations, second, not to consider irrelevant considerations and third, not to take a decision which any reasonable person properly directing himself would have avoided. The Court has always adjusted the threshold of unreasonableness according to the importance of the rights involved and it applies a "greater intensity of review". Judicial review is a vibrant process which, being almost exclusively a part of common law, is greatly influenced by the changing judicial opinion. The courts may `retreat behind a restrictive reading of Wednesbury, overruling or distinguishing these decisions on the particular facts of a case. Or the changes discussed above may come to the forefront and cause assertive judges to refrain from unreasonableness and irrationality and exercise closer supervision over allocative decisions in order to promote better administration and to protect individual rights. PART B. If the courts consider that a public body has taken irrelevant consideration into account then that decision may be subject to judicial review. In R v. Somerset County Council exparté Fewings12, the council had passed a resolution prohibiting stag hunting on its land. Somerset County Council, appropriated land which had been used by the Quantock Staghounds since 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 on its basis it was decided to ban stag hunting on the land. This ban was challenged because it considered the desirability and morality of hunting and further, the act itself was deemed to be beyond the scope of the statutory powers of the council. Judicial review does not look into the merits of a case. 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. In this connection, Laws J observed 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 the relevant Local Government Act13, which had not been considered during the councillors debate, gave it the power to make the resolution. That section states that "For the purposes of... 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 an irrelevant consideration as the language of that section did not allow the councillors 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 a significantly different reasoning in arriving at its decision. This case raises important issues of judicial review, like 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 councillors must not abuse their position by indulging in personal crusades. In this respect, the most interesting approach was the dissenting judgement of Simon-Brown L.J, because although he contended that ethical factors were in principle relevant he was in favour of local autonomy and held that, the council had acted improperly in not considering the legislation and that if it had done so it would have arrived at the same conclusion. Hence, he was of the opinion that it was inappropriate to set aside its decision. In this manner Simon Brown L.J. took a very wide view of the statutory basis of local power as being essentially facultative rather than prescriptive. Moreover, he held that even if ethical considerations were not necessarily implied in the power to manage land, a local authority should be permitted sufficient discretion to decide as to what factors are or are not relevant as opposed to the court making the primary judgement. In addition, such a margin of appreciation makes it imperative for 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 at stake but more lenient where resource allocation is involved. In this manner Simon Brown L.J. provides a basis for a substantial degree of autonomy and protection for local democracy. Swinton Thomas L.J. who agreed with Laws J. in this case, was of the opinion that sensitive ethical issues were best determined at the central level which is unencumbered by a statutory framework. The incommensurability argument points to local variations as desirable per se, in that they recognise the impossibility of rational solutions and keep options open. Laws J 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 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 the legality of public decision but also 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 Court of Appeal had seen the impact of ex parte Fewings that there was an unreasonable exercise of discretion by the council and that the judge erred in holding that the ban was not ultra vires; and in holding that their legally recognised fundamental rights as expressed in the European Convention for the Protection of Human Rights and Fundamental Freedoms had not been violated. 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 natural habitat and it is not correct to kill animals for the sake of hunting or other such frivolous activities. Bibliography. 1. Allan T R S, Law, Liberty and Justice: The Legal Foundations of British Constitutionalism (Oxford 1993). 2. Allison, J A Continental Distinction in The Common Law, (2000, OUP). 3. Bailey, Jones & Mowbray, Cases and Materials on Administrative Law (3rd edn Sweet & Maxwell 1997). 4. Baldwin R, Rules and Government (Oxford 1995). 5. Cappelletti M, The Judicial Process in Comparative Perspective (Oxford 1989). 6. Craig, PP, Constitutional Foundations, the Rule of Law and Supremacy (2003) PL 92. 7. Daintith T and Page A, The Executive in the Constitution (Oxford 1999). 8. 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Kerry M, Administrative Law and Judicial Review - The Practical Effects of Developments over the Last 25 Years on Administration in Central Government (1986) 64 PA 163. 21. Law Commission, Administrative Law: Judicial Review and Statutory Appeals (Law Com 226, 1994). 22. Loughlin M, Public Law and Political Theory (Oxford 1992). 23. Mitchell J D B, The Causes and Effects of the Absence of a System of Public Law in the United Kindom (1965) PL 95. 24. Sunkin M and Le Sueur A P, Can Government Control Judicial Review? (1991) Current Legal Problems 161. 25. Sunkin, M & Pick, K The Changing Impact of Judicial Review (2001) PL 736. 26. Turpin C, Government Procurement and Contracts (2nd edn Harlow 1989). 27. Wade W and Forsyth C, Administrative Law (8th edn Oxford 2000). 28. Woolf The Rt. Hon Sir Harry, Protection of the Public - The New Challenge (London 1990). Read More