Notesale: Turn your study into money

Document Preview

Extracts from the notes are below, to see the PDF you'll receive please use the links above

---

Public Law & Administration Notes
Introduction
Administrative law = Constitutional law put into practice / Government put into effect;
security, immigration, education, prisons, local govt, etc
...

There is no ‘system’ in England, compared to Droit Administratif in France
...
g
...
Citizens trusted common law courts after crusade vs
prerog and distrust of administrators appropriating judicial functions fed by A V Dicey
whose rule of law stipulated they should be subject to same laws and procedures
...
Coke CJ
quoted ‘Who ought decrees, nor heares both sides discust, Does but unjustly,
though his Doome be just’ (Medea, Seneca)
...
“authority, not
only to correct errors in judicial proceedings, but other errors and misdemeanors
extra-judicial, tending to the breach of peace, or oppression of subjects, or to the
raising of faction, controversy, debate or any manner of misgovernment” (activist
judge) <- English approach being developed (200 years before French) but dropped
after the Civil War and Bill of Rights (1649)
...

2 legal realms – Legal Proper: matters dealt with by ordinary courts of (common) law,
sitting in open court and dispensing justice according to law
...

Governments always wanted to keep lawyers out (see Anisminic)

Franks Report 1957 – ‘Openness, fairness and impartiality” in admin process
(tribunals and inquiries under statute) just tip of the iceberg
...

The 1960s and Judicial Declaration of Coherence in Administrative Law (judicial
review)
...
Police chief not guilty
of bribing, but judge said bad example due to association with guilty, and due to this
he was fired
...
But the rules of natural justice are concerned with fair form of procedure, not
with controlling policy
...


Padfield v Minister of Agriculture [1968]: Minister had discretionary power to refer
complaints to a committee, and refused due to political pressure
...
” Remarkable
as HL told Govt grounds on which it could and could not decide whether to take
actions that Parl had authorised them to take, shake Wednesbury deference?
Established where public authority has no duty to give reasons, cannot use silence
to insulate decision from judicial review = may need to give reasons to explain why
their conduct is not unlawful (Padfield practicality principle)
...

Any error of law made by an admin tribunal or inferior court in reaching their decision
can be quashed for error of law
...
Got £0
...
5 mill grant to compensate; conditions placed that must

be owner or ‘successor in title’ and British
...
Couldn’t claim
again a ‘determination’ as above, so challenged as a ‘nullity’, Court not questioning a
determination but declaring there was no such thing
...
g
...
1790 = law passed
forbidding judges from executive powers  start of separation of powers
...
100  judicial work over French govt,
indiv and themselves
...
Here, foreign office
lawyers work for govt, not independent
...

Conseil d’Etat has 6 sections, of which only one deals with legislation
...

Retains original jurisdiction in some cases
...
1954 decree + ordinance subject to judicial
control :- suspected of dubious background (communist) could not join civil service
...
Doctrine of ‘astreinte’ (daily fines) used since 1980
...
Brief given to
rapporteur who gets relevant information for you, unlike here where your lawyer tries
to do that but the govt creates roadblocks so need additional proceedings to obtain
...
Delibéré = senior judges ask younger judges their opinion
as part of testing them; tend to start working in Europe around 30
...
Blanco [1873] : little girl
critically injured by munitions wagon
...
It is much easier to sue the govt (for negligence, etc
...

PUBLIC LAW: ‘A public service of a public authority aimed at satisfying the public
need
...
=> restriction of
the intervention of state in fields normally reserved for private enterprise by
compelling to follow rules of private law
...

STOPPING WITH THIS FOR NOW AS ONLY HAVE TO ANSWER 2/6 IN EXAM

Proportionate Grievance Redress and Tribunals
Transforming Public Services: Complaints, Redress and Tribunals (2004) = White
Paper which led to Tribunals, Courts and Enforcement Act 2007
...

Tribunals are required for when individuals wish to complain about a decision made
by central and local government as well as public authorities
...
The case for reform of tribunals
was set out in Sir Andrew Leggatt’s report “Tribunals for Users – One System, One
Service”, of which the White Paper was the Govt’s agreement reform was necessary
and also looked at admin justice as a whole and set out to improve the whole dispute

resolution process
...

The WP focuses on tribunals, which are cheap, adjudicatory, involve lay people who
sit with legally qualified ‘tribunal judges’ and are less formal than courts
...
Following
from this, the WP concentrates on the system resolving disputes at the source rather
than tribunals, helping to improve decision making across govt and promoting
quicker and more effective means of DR where things go wrong to lessen the
number of tribunal cases
...
An unreasonable failure to do so risks any
tribunal compensation may receive being reduced by up to 25%
...
Doesn’t contain all tribunals, e
...
no Parole Board
...
Strasbourg found: “Must be
independent not only of the parties but of the executive (began as adviser to Home
Sec)
...

New organisation have two central pillars: admin justice appeals and employment
cases, help and resolve disputes and admin justice and justice in the workplace, to
tackle the disputes at the source
...
Courts and Tribunals Service = judicial arm of state
...


R (Cart) v Upper Tribunal [2011]: judicial review limited to where Upper Tribunal had
committed a pre-Anisminic error of jurisdiction (i
...
when it had decided a question

that it had no jurisdiction to decide) or had committed a procedural irregularity of
such severity that the claimant had been denied a fair hearing
...

Judicial reforms: Senior President of Tribunals post created, unified and cohesive
system, training and appraisal improvements, no legal aid provision so less lawyers
...
There has been widespread criticism that AJTC not replaced and no real
method of independently reviewing admin justice system as a whole
...


Jurisdiction and Vires
Jurisdiction: Legal power of decision (Anisminic) or action (Entick v Carrington
[1765]), of which courts, tribunals and admin decision makers (kind of – doctrine of
review for error of law makes shaky for admin) all have to make legally binding
decisions
...
Judicially: deciding
competing claims  in accordance with established rules  following an established
procedure, and usually the same body that hears the dispute makes the decision
...

Ultra vires = outside power
...
Only with Council of Civil Service

Unions v Minister for the Civil Service [1985] (‘GCHQ’ case) was it established that
the courts can control the exercise of the royal prerogative powers using same
grounds of review as for statutory powers, away from general deference to executive
towards specific issues only deference
...


Parl wished for UK judges to not get involved in Anisminic, ignored
...

Review

Appeal

Correctness of legal matters of decision

Correctness of decision itself

Filed in same court

Filed in higher court

Discretionary right of the court

Statutory right of the individual

Basis: Illegality, irrationality, procedural

Grounds of dissatisfaction or

impropriety and proportionality (debatable)

disappointment

Request to look into legality of ruling

Request to change or modify decision

Fact is not usually an issue in judicial review as look for legality = interpreting law
...
Judges have to distinguish between primary facts, which they are
not to consider, and secondary facts, which are when something is induced from a
factual situation and is a mix of fact and evidence (=law)
...

SC said the law was not based on facts but a balance of probabilities
...
If claimant induced mistake of fact (lied) there is no
remedy, but if it was the officials the court must correct
...


Jones v First Tier Tribunal [2013]: new development – lorry swerved to avoid man
trying to kill himself and hit his car = disabled
...
Failed as not
intention/reckless under s
...

‘Ways of being wrong’: errors “within jurisdiction” and errors “going to jurisdiction”,
non-jurisdictional and jurisdictional
...

Allow partial which specify a time limit to apply to court for a remedy
...
R v

Northumberland Appeal Tribunal, ex p Shaw [1952]: High Court had “inherent juris to
control all inferior tribunals”, power to quash any, supervise keep within jurisd as well
as law
...
Yes for jurisd, no for non- juris (going
to)
...
Defence challenged on vires, unreasonable and bad faith
...


Boddington v British Transport Police [1998]: blanket ban on smoking on train
...

Judges very against ouster clauses (govt ban courts from reviewing legality), if
pushed may have led to unwritten constitution being invoked and refusing
...
Sequestered and sold by Egyptian government due to
Suez Crisis, got £1/2 mil for it
...
Two
issues: whether tribunal had made error of law in construing term “successor of title”
and whether appellate court had jurisdiction to intervene even if they had (ouster
clause in FCA 1950)
...
Court reluctant to give effect to legislative provision
attempting to exclude their jurisdiction in judicial review, even if clear doesn’t stop
error of law scrutiny and quashing
...

“A tribunal may decide a point of law wrongly whilst keeping within its jurisdiction”
Courts still have to decide if determination genuine even if Parl ban (e
...
forged)
List of what makes admin decision nullity (not a determination, not just bad) above
...
Time limit not adhered to
...
Rationale for upholding time limits is that in public

interest to promote executive certainty
...
R
...
Cornwall County Council, ex parte Huntington (1992): The intention of
Parliament when it uses an Anisminic clause is that questions as to validity are not
excluded
...
Ostler are used, then
the legislative intention is that questions as to invalidity may be raised on the
specified grounds in the prescribed time and in the prescribed manner, but that
otherwise the jurisdiction of the court is excluded in the interests of certainty
...
Lane dissenting was
later approved in Re Racal Communication Ltd [1980] said “judge considering
words… ought to consider… if acting outside jurisd, so is every judge who comes to
a wrong decision on a point of law… no form of certiorari available to tenant”
...
In South East Asia Fire Bricks Sdn

Bhd v Non-Metallic Mineral Products Manufacturing Employees Union [1981] it was
held that words in a Malaysian statute that ‘an award
...
Re Racal Communication Ltd [1980]: Mistakes of
law made by High Court judges can only be corrected by appeal to an appellate
court and not corrected at all if statute provides decision not appealable, facts or law
...
HL
struck out as abuse of process to allow ordinary action rather than judicial review to
be pursued by person seeking to establish public authority decision infringed public
law rights
...
If outside
jurisd + procedurally irregular/Wednesbury unreasonable = ultra vires and therefore
unlawful
...
C
could use ordinary action for restitution
...
Judicial review
not avail for error of law but only “jurisd error in narrow, pre-Anisminic sense, or proc
irreg…” that denies right to fair hearing
...
Easier test for
judicial review of UT decisions than HL previous
...
The court will not permit the public
body to confer on itself power to act by an erroneous conclusion as to the relevant
fact, where the body’s power to act depends on a particular factual situation was
challenged
...
Held that court can interfere if decision maker has taken into
account an immaterial consideration, or failed to consider a material consideration
...
Court can interfere… lower tribunal which has erred in
point of law
...


Secretary of State for Education v Tameside MBC [1977]: Rejected grammar school
application as not reasonable education system, held decision unreasonable as
proven track record
...


R v Secretary of State for the Home Department, ex parte Khawaja [1984]: HL held
question whether apps were “illegal immigrants” was a question of fact that had to be
positively proved by Home Sec before expulsion
...


SSHD v Rehman [2002]: Sec of State refused Pakistani national indefinite leave as
likely threat to nat security
...
Deportation
“conducive to public good” and “in the interests of national security”
...


R v SSHD ex p Fayed [1997]: Sec can grant certificate of naturalisation “if he thinks
fit”, refused and declined to give any reasons, no consultation process or
representations
...
CA held, particularly as good character is a factor, fairness obliged to notify
Mr Fayed of matters causing him concern
...

Example of preclusive/finality (total ouster clause) in legislation, where not used
courts tend to respect expertise of tribunals and avoid reversing decisions
...
Was
problem lack of appeal, and should decisions stand if rational? Who decides that?

R v MMC ex p South Yorkshire Transport [1993]: investigating merger between 2
companies operating buses where only 3
...
Review
condition = affect “substantial part of the UK”
...
Not irrational
...
Test “enabling not
restrictive”, but conclusions within “permissible field of judgment” so appeal allowed
...

Information Commissioner upheld that view and held had he had no juris to issue a
decision notice as BBC not a public body
...


HL held BBC was public authority, entitled to complain and Comm had juris to act
...

Should expert tribunals have more leeway with questions of law? In the US the court
assesses the rationality of the approach of an agency in making rules/decisions:

Chevron USA Inc v NRDC [1984]: NRDC and EPA disagreed as to meaning of
“stationary sources” of pollution
...
Simplified law to end those
appeals
...


Judicial Control of Discretion
1
...
How might discretion be controlled?

3
...
The controls “outside” of Wednesbury

5
...
The importance of human rights jurisprudence (study and theory of law)
7
...
”
“The power of a court of justice, or person acting in judicial capacity (judicial = too
narrow for us), to decide, within the limits allowed by positive rules of law, as to the
punishment to be awarded or remedy to be applied, or in civil cases how the costs
shall be borne, and generally to
regulate matters of procedure
and administration
...
C
...
” – Galligan
The main question is whether treat subjectively (individual) or objectively (fictitious
reasonable person) reasonable manner Dicey did not believe in giving discretion as
felt undermined rule of law, left room for arbitrariness and parl sov had covered
(untrue)
...

Advantages of Discretion

Disadvantages of Discretion

“Even where rules can be written,

Risk of the power it grants being misused

discretion is often better
...
Discretion is needed for

historical UK notion of “public service

individualised justice and fairness
...
C
...

Rules might not be the
answer, as the public
needs to be aware,
complex ones might not be
understood or adhered to

and a surfeit of rules will muddle the picture
...


Lord Reid non-exhaustive list of what makes a tribunal decision a nullity in Anisminic:
(1) bad faith decision

(2) decision no power to make

natural justice requirements

(3) failed to comply with

(4) misconstrued provisions giving power to act so

failed to deal with question remitted to it and decided some other question
(5) refused to take into account something required to (6) based decision on some
matter, under provisions setting up, had no right to take into account
Can refer back to criminal law recklessness in case of Liversidge v Anderson [1942]:
“If Sec of State has reasonable cause to believe any person to be of hostile origin or
associations and that by reason thereof it is necessary to exercise control over him,
he may make an order against that person directing that he may be detained
...
”
The four other Law Lords did not agree, considered the discretion subjectively
...
There is an
inherent linkage between statutes as a source of discretion and vires lectures:
- Law on vires concerned with whether someone has power to make a decision
- Law on control of discretion seeks to examine whether someone who had the
power to take a particular decision did so lawfully (reasonably and proportionately)

R v London Council, ex p Bromley London Borough Council (The Fares Fair case)
[1983]: Labour council election promise “Fares Fair” policy = public transport -25%
and subsidised from rates, Tory council claimed ultra vires, which HL held as undue
burden on taxpayer, economic criteria in enabling Act
...


R v Sec of State for Foreign and Commonwealth Affairs, ex parte World
Development Movement [1995]: £234 million spent on a dam in Malaysia, deliberate
waste of money as Thatcher promised in exchange for them buying £1 billion of
British fighter planes
...
High Court held govt acted unlawfully, remarkable as highly political and
involved foreign relations, Minister argued judges should defer to his view of
purposes within statute, to which court disagreed, their job is question of what
considerations the legisl rules out
...
3 requirements for standing: (1) issue important to the public
(2) no one else could make responsible challenge (3) “prominent role” of applicants
Prerogative is a very tricky area, as the traditional approach of the courts was that
while the scope was reviewable, the actual exercise of prerogative powers was not,
now most discretion exercised under prerogative reviewed
...
Orders can be issued by the
courts in order to prevent those acting under prerog from exceeding their powers
...
Foreign policy and nat security powers considered outside scope of
judicial review, while prerogative of mercy (royal pardon) within it
...
(1) First time clearly established courts
can control exercise of royal prerogative using same grounds of judicial review as
stat powers
...


(2) Judges retained idea that some powers

are non-justiciable (3) treats reasons for deference as consids towards non-justic
...


R v Sec of State for Foreign and Commonwealth Affairs, ex parte Everett [1989]:
Court held their right to review granting and withholding of passports by royal prerog
...
Discretionary power to make representations to another
country on behalf of Crown not justiciable consideration so inappropriate to ask
...


R (Bancoult) v Foreign Secretary [2008]: HL reviewed decision to ban Chago
Islanders from returning, held not an abuse of power to base decision on
assessment of value of military cooperation with the US as have air base there
...
It
can be deemed to be part of the government’s regulatory structure for the city and
does not exist solely due to the consent of those regulated
...
Before, only sue in contract or tort
...


R (Beer) v Hampshire Farmers’ Market Ltd [2004]: Private company set up by county
council to run farmer’s markets susceptible to judicial review = carrying out “public
function
...

s6 (1) HRA 1998: “It is unlawful for a public authority to act in a way which is
incompatible with a Convention right
...
”
This test raises considerable problems as to what constitutes a public authority
...


YL v Birmingham City Council [2007]: Deeply divided HL consider
...
Home threatened to evict due to behaviour of daughter and her

husband on visits, if home was public functions she could use Art 8 of Convention to
challenge eviction
...
Unfair if protect
Council paid for or Council housed better, immaterial as ought to be protected both
...
Rule PCC not a public body and exempt from HRA, which would
protect from unreasonable, arbitrary and unfair demands by stat bodies
...


Marcic v Thames Water [2003]: C lived in a house that frequently flooded, only 15
mins of heavy rainfall caused it
...
Judge found no action for breach of stat duty but was
for continuing nuisance under Art 8 of Convention therefore D inactivity unlawful
...
Ask courts to hold private nursing home as “functional” public
authority, both cases CA accepted doing public function for public authority not
necessarily public function if private body
...
Heather not enmeshed and not subject to HRA 1998 s 6,
gives local auth financial incentive to contract out care provision to cheaper private
concerns to avoid Convention constraints and HRA proceedings
...

Claiming the policy is related to National Security often ensures the court steps back
...
Argued ban was justified as (1) better assassination target (2) could end up
in enemy hands (3) public object (4) hinder jobs in social, family and children work
ECJ held up to Industrial Tribunal, in context can’t be excluded there’d be more risk
...
Sec of State had made series of exclusion orders preventing from
travelling into country, app sought reviews with reasons inc safety of family but order
not removed by home sec, who refused to give reasons as believed endanger nat
security as well as several police officers
...
Accept questionable assertions

R v Ministry of Defence ex p Smith [1996]: Armed forces didn’t permit gays to serve,
if engaging in conduct or not
...
CA rejected (pre-HRA) as imperil public
interest, not defiant of logic or wholly incompatible with accepted moral standards,
and EC directive doesn’t apply on grounds of sexual orientation, only gender
...


A v Home Secretary [2004]: Home Sec allowed evidence obtained outside the UK by
torture to be used as evidence to detain, without trial, 8 men at Belmarsh
...
Held common law precedence over SIAC
...
Saudi govt demanded halt, threatening to cancel and
withdraw from co-operating with Britain in anti-terrorist measures, so SFO stopped
...

Fiscal Policy /Funding Issues: The adoption of the “lunatic” or “super Wednesbury”
test and an unwillingness to review “polycentric” issues
...
A number of local authorities sought JR as argued breach of
legit expectations for govt, indicated could not be a ground for challenge short of bad
faith, improper motive or manifest absurdity as regards abuse of power
...
Example of massive deference by the judiciary, Wednes not
...


R v Cambridge Health Authority, ex p B [1995]: 10 y/o girl with leukaemia given only
palliative treatment to enjoy several weeks normal life, no further treatment
...

Father requested health authority pay, refused
...


R (Pfizer Ltd) v Health Secretary [2002]: Drug company unsuccessfully challenged
restrictions to the circumstances in which the NHS would supply Viagra
...
Reiterated what NHS paid for political
rather than technical, although successive govt distancing themselves from this
...


R v Independent Television Commission, ex p TSW Broadcasting Ltd [1996]:
“Judicial review does not issue merely because a decision maker has made a
mistake and it is not permissible to probe the advice received by them”

R v Medicines Control Agency, ex p Pharma Nord (UK) Ltd
...
Not whether a medicine or not, consider
whether the decision has been properly reached
...
Proceeded with a false basis outside discretion
...


Associated Provincial Picture Houses v Wednesbury Corporation [1948]:Local
authority had power to allow cinema open on Sundays, made condition that no u-15
...
Three limbs = Wednesbury test
...
Stat power
only can be used to “promote the policy and the objectives of the Act
...

Acquitted of corruption charges but judge said bad example as associated with men
bribing police and evidence not to be trusted in future = contrary to natural justice
and HL held can be applied to admin decisions
...

“Procedural justice” = procedural requirements common law imposes
...
1st two substantive as relate to
substance of disputed decision, 3rd is about process, not about decision itself
...
Basic rule revolves idea that if Parl gives discretion it
must be exercised, so rule against unlawful delegation, fettering (restricting)
discretion by applying rigid rules or acting under dictation
...

Law regarding no unlawful delegation is relatively flexible but generally clear – must
exercise discretion if have it and should not pass it to another to exercise
...


Ellis v Dubowski [1921]: No film shown that not certified by BBFC, unreasonable and
ultra vires, if subject to review would have had diff consids and been reasonable
...

Board should not be made final dictator and reasons may be private or trade consids

Carltona v Commissioner of Works [1943]: Principle that civil servants can act as
Sec of State
...
As delegated power itself, he can’t delegate again
...

Considering fettering of discretion in the area of rules and policies is contentious due
to the fact that clearly often good for govt to have rules and policies to structure
discretion but problem when swings towards hiding behind rules and not exercising
the discretion the statute granted, which it did for a reason
...
Have to listen
...
Even if authority has internal guidelines, must be prepared to make
exceptions on individual cases
...


British Oxygen Co Ltd v Board of Trade [1971]: Rule against fettering means
decision maker must be prepared to consider an argument than an exception should
be made to a policy for some special reason in a particular case
...


R (Nicholds) v Security Industry Authority [2006]: D adopted rule that conviction of
certain criminal offences should automatically debar applicant from being treated as
fit and proper person to obtain licence as a door supervisor
...

The final problem that has come about “outside” Wednesbury is acting under
dictation, which is almost a method of unlawful delegation as what it means is a
public body is allowing another to exercise its discretion by telling it what to do
...
Natural justice required Board itself to
consider complaints against officers as that was what made for, not accept DPP
decision as binding not to prosecute officer
...


Laker Airways v Department of Trade [1977]: Stat superiority extended, confirmed
prerog powers can’t contradict stat provision, can only further aim
...
CA found ultra vires, govt empowered
to offer “guidance” but not to direct
...

Controls “inside” of Wednesbury

Wednesbury exists in an ‘umbrella’ sense or substantively
...
Umbrella Wednesbury

The first condition are irrelevant considerations, of which there is considerable
overlap between this head of review and that of using power for an improper purpose

Roberts v Hopwood [1925]: A metropolitan borough council decided to pay workers a
min of £4 a week, regardless of job or gender
...
”

R v Home Sec ex p Venables [2002]: Murdered a 2 y/o, trial judge recommended 8,
Home Sec set tariff at 15
...
Parl gave him power not to act contrary to
fundamental principles governing admin of justice (inc nat justice ignoring media)
...


R v Human Fertilisation and Embryology Authority ex p Blood [1997]: Husband in
coma, sperm collected and died shortly after
...

Needed written consent, but by virtue of arts 59 & 60 of EC Treaty she had directly
enforceable right to receive medical treatment in another MS (did in Belgium)
...
Home Sec purported to cancel cheaper ones, found acted
for improper purposes, ultra vires and unlawful
...


Wheeler v Leicester City Council [1985]: Banned a rugby club from using ground
because 3 players wanted to tour SA at time of apartheid
...
World Development Movement, Padfield

Wednesbury in the “substantive” sense
More concerned with application of ‘reasonableness’ test; utter irrationality on part of
decision maker, such as Diplock’s example of a teacher being fired just for having
red hair
...


The area of irrationality and allocative decisions is most problematic for courts as it
relates to the separation of powers, e
...
courts avoid decisions over social rights
...

(a) Requirement of courts entering balancing test
...


R v Barnsley Metropolitan Borough Council ex p Hook [1976]: Street seller urinated
in public, Denning “right thing… small fine… quite wrong… grave penalty of
depriving him of livelihood
...

(b) Secondly, apply necessity test
...
Whether cell
searches contravened a prisoner’s right to private correspondence with his solicitor
...
Requires courts to enter into
examination of whether measure suitable to achieve aim of the policy
...

The case law was very limited prior to 1990, since there has been huge
developments, particularly over the last three or four years
...

Be aware that these cases are about penalties, as courts have always found easier
to say imposed penalty is disproportionate than an admin decision without a penalty
...


R v Home Secretary ex p Brind [1991]: Leading case on prop in domestic law
...
Disproportionate
response to govt objective argument rejected, not a head of review but not excluded
for the future
...


R v Chief Constable of Sussex, ex p International Trader’s Ferry Ltd [1999]: Chief
permitted to consider resources in deciding how many officers to commit (animal
rights protesters, only 2 days a week)
...
Redefined reasonableness test as whether decision reached
was one which a reasonable authority could reach
...
” Suggested full
application of prop test for irrationality, except “policy” = Wednesbury
...


R (British Civilian Internees) v Defence Secretary [2003]: (ABCIFER case) Trade
unions can have standing
...
Formulated definition of Wed unreas close to proportionality
...
Wed test anxious scrutiny irrationality held correct
Proportionality became developed most expressly in human rights cases, courts took
European Convention on Human Rights seriously even prior to HRA 1998
...

Courts began to weave the Convention rights into the Common Law…

Attorney General v Guardian Newspapers [1990]: ex-MI5 published book, breach
Official Secrets Act, published in Australia and US
...
Had to show
disclosure contrary to public interest, no damaging info so no confidentiality breach
...


R v Home Secretary ex p Leech [1993]: Ultra vires, courts assume Parl did not
intend to interfere with basic human rights and refuse to interpret relevant stat prov in
manner that would give public authority power to violate HR
...


Derbyshire County Council v Times Newspapers [1993]: Contrary to public interest
that public authorities be able to sue for libel as should be open to uninhibited public
criticism, undesirable fetter on freedom of speech
...
See Smith, pg 18
...
App on income support,
defamation does not have LA, common law no lesser protector of right than ECtHR
...
Daly again above
...

Very strong, some consider “mirror” their approach rather than reshape domestic law

R (Mahmood) v Home Sec [2001]: Rule that only exceptionally should an appl be
able to escape the requirement to stay, Pakistani had kids here
...
Immigration rules
justified and proportionate balance under Art 8 except exceptional cases
...

The Tricky Issue of Interpretation and the ss
...
“Interpretation of statutes is a matter for courts”

Bellinger v Bellinger [2003]: Marriage of post-op M-F transsexual “without ovaries or
any other biological characteristic of a woman” not valid, recognising as “female”
would give act novel and extended meaning
...

Matter for Parl not courts as sensitive socio-political, hope case provides an impetus

Ghaidan v Godin-Mendoza [2004]: Used s 3 to “reinterpret” person who lived as wife
or husband as deceased to include same-sex couples, as would be incompatible
with Art 8
...

Proportionality and Human Rights Act 1998 Cases
Courts have to consider nature of the right at stake as well as the relative
proportionality of the decision/rule at stake before deciding the overall prop
...
Appealed to Upper Tribunal as mistaken reason,
not material error of fact but error of law and removed from list
...


Huang v Home Secretary [2007]: Not correct to ask whether Sec was reasonably
entitled to come to decision that interference with Art 8 right proportionate under Art
8, correct to determine prop for ones’ self
...
A v Home Sec pg 18
The Balancing of Rights and Interests

R (Begum) v Headteacher and Governors of Denbigh High School [2006]: Luton
school “taken immense pains to devise a uniform policy which respected Muslim
beliefs” as not allowed jilbab but allowed shalwar kameez
...
Right to hold religion absolute, manifest qualified
...
No
difficulty attending schools in area allowing jilbab, chose to go to that school outside
of catchment and went for 2 years without objection
...


Belfast City Council v Miss Behavin’ Ltd [2007]: No breach of Art 10 (expression) for
failure to grant a sex shop license on basis that appropriate number of them was nil
...
Politicians better placed to
decide absolute ban necessary, argued not political party but social advocacy
...

Challenge unprop, less restrictive ways to achieve policy goal, not in EU law

Manchester City Council v Pinnock [2010]: Partner and children ASBO not him,
council wanted house back
...
Prop review, no real chance
...
Breach of Art 8
...
”
HRA clearly gives court mandate for more detailed review, based partly on merits, in
HR cases
...

Substantive Legitimate Expectations
SLE and procedural legitimate expectations have significant areas of overlap, courts
far more willing to aware to procedure than substance
...


R v North and East Devon Health Authority, ex p Coughlan [2000]: Established SLE
...
Breached Art 8 “respect for private and family life and home”, interference
not “necessary in democratic society” as provided for
...
Clear and unambiguous promise
...
“Sec of State cannot fetter his discretion
...
” No LE if specifically legally prohibited
...
Principle of fairness underpinning LE connected to
fact “illogical or immoral or both for public auth to act with conspicuous unfairness
and in that sense abuse its power”
...


R v Ministry of Agriculture, Fisheries and Food, ex p Hamble [1995]: Courts duty to
protect interests of those who expectation of different treatments has a legitimacy
which in fairness outtops the policy choice which threatens to frustrate it = measure
...

Withdrew compensation scheme to victims of miscarriage of justices without notice
or consultation, only “exceptional situations… pressing and focussed”, no LE here
...
Legit exp not present, danger of election
statements restricting govt discretion, inconsistent with stat scheme
...
Examine manner in
which courts have operated doctrine in order to consider the effect it might have
...


Robertson v Minister of Pensions [1949]: Govt dept can be estopped by
representation = same function of LE
...


Western Fish Products Ltd v Penwith District Council [1981]: Distinguished from
earlier cases that LE underdeveloped so estoppel analogy useful
...

Rowland v Environment Agency [2003]: LE insufficient to override public interest
...


Fair Procedure – Procedural Impropriety and Consultation
So far considered legality of admin action in substantive sense, considered whether
public body had power (vires) to reach a decision, and, if it had, on what grounds its
substantive decision could be challenged = methods to protect and vindicate rights
...
What procedures public authorities should follow with powers
or discretions ceded to them by Parl and why the procedural protections exists –
mainly for protection of indiv rights, or more participation in decisionmaking process?
Procedural Safeguards: (a) State gives right/benefit and attempts to take way

(b)

Asking the State for a benefit do not currently have
...

Sources of procedural rules may be statutory (particularly with duties to consult) or
common law decisions (reasons, against bias, hearing, etc) usually
...
No real UK equivalent
(limited in Tribunals and Inquiries Act 1992) and rules on consultation generally in
statute on the particular subject, but no Parl duty to include and often doesn’t, and in
these cases courts rarely intervene to include such a duty through common law
...
Sep of powers?
Expensive, US Act –ve impact on process, participation may be outweighed by cost
and delay but with indiv rights strong procedural safeguards vital for protection
...
g
...
What is law on
procedural justice aiming to achieve? Public participation in public policy making, or
some degree of fairness in decisions in indiv cases
...

Consultation was covered briefly in relation to delegated legislation in constitutional,
one method by which English public law attempts to ensure some form of public
participation is achieved in the govt process
...
Court may find a common law
duty to consult, but relatively rare, and generally linked to legitimate expectation
...

Basic Content of the Duty to Consult

R v Brent LBC ex p Gunning [1985]: Gunning criteria to learn! “The consultation must
be at a time when proposals are still at a formative stage
...
Third… that adequate time must be given for consideration and
response, and finally, fourth, that the product of consultation must be conscientiously
taken into account in finalising any statutory proposals
...

Time where proposals at formative stage
...
Consulted must have sufficient

information avail to permit an informed response
...
Consultees given

4
...


Discretion to Consult

Bradbury v Enfield LBC [1967]: give public notice of proposals for comprehensive
reorganisation, 3 months, failure = ultra vires
...


Agricultural Industry Training Board v Aylesbury Mushrooms [1972]: Minister meant
to consult “any organisation… appearing to him to be representative of substantial
numbers of employers engaging in the activity concerned”, 85% of all mushroom

growers so ultra vires
...
Only required as in statute
...
An attempt to
consult (here a letter not received) is not construed same as an actual consultation
...
Consult – facts and urgency of case led to no duty despite
relatively draconian sanctions due to paramount need to protect public safety
...

Where stat has detailed consultation procedure, SoS has no possibility of departing
...

Consultation at the Formative Stage

R v Wandsworth LBC ex p Beckwith [1995]: Consultation should be at formative
stage of policymaking rather than when decision-making process near conclusion
...


R (Fudge) v SW Strategic Health Authority [2007]: Duty to consult arose even when
implemented policy decision of Department of Health, as even if not responsible for
their decisions, still responsible for provision of services and subject to the duty
...
4) [1996]: Lengthy
proceedings ending with CA decision that all SoS needs to do in consultation
document is give a broad outline of policy objectives and any potential serious
deviations from previous policies
...


R (Lloyd) v Barking and Dagenham LBC [2001]: “consultation axiomatically (selfevident) requires the candid disclosure of the reasons for what is proposed
...
Held only required where substantial change to existing may have
“significant negative effects on human beings or the environment”
Sufficient Time to Respond

Lee v Education Secretary [1968]: 5 days not sufficient time, extended to 4 weeks
...
Devon County Council, ex parte Baker [1995]: where having home closed,
fairness suggests inform in good time and give resident the opportunity to make
representation which should be considered by the Secretary of State
...
Baker
B – Common Law Imposition of a Duty to Consult
Where there is no statutory duty to consult, the case R v Social Services Secretary

ex p Association of Metropolitan Authorities [1986] suggests the common law will
generally not be willing to impose such a duty
...
In order for this to arise, the test for legitimate
expectation, as discussed with substantive legitimate expectation, must be met
...
” Deported without opportunity for reasons to stay
...

R v
...

[1992]: Public interest takes precedence over expectations
...
Ban unfair

Cinnamond v British Airports Authority [1980]: Long record of convictions and
flouting regs meants no LE of being heard before ban imposed
...


R v Liverpool Corporation ex p Taxi Fleet [1972]: Explicit representation made and

relied upon, so legitimate expectation created
...


Council of Civil Service Unions v Minister for the Civil Service (GCHQ) [1985]: Trade
union had legitimate expectation they would be consulted
...
“Arise from express promise given on behalf on a public authority or
from the existence of a regular practice which C can reasonably expect to continue
...
Refused, used other matter, any change in
policy should have gave hearing where K made representations
...


R (Greenpeace) v SoS for Trade & Industry [2007]: LE that consultation before
decision implemented, consultation not on substantive issue, purpose of doc unclear
as appearance of issues paper but manifestly inadequate
...

Natural Justice – “Audi Alteram Partem” (Listen to Each Side of the Story)
This aspect of procedural justice is arguably more concerned with fairness than
participation
...
There are two perspectives on this issue:
first, a historical approach and second, the more modern approach first espoused by
the case of Ridge v Baldwin
...
Tore down building
made without planning approval, under statute but no notice, almost form of abuse
...


Franklin v Minister of Town and Country Planning [1948]: Minister’s duties purely
administrative, no quasi-/judicial duty imposed
...
Held
although could use quashing order, did not as not acting judicially, no breach anyway

R v Metropolitan Police Commissioner, ex p Parker [1953]: Taxi driver’s licence
could be revoked without a hearing despite impact on career
...
Not acting in judicial capacity as made no order
The Modern Approach

Ridge v Baldwin [1964]: Extended doctrine of natural justice into admin decision
making
...
Not charged/informed of
grounds or proper opportunity to present defence
...


Re HK (An Infant) [1967]: Introduced “act fairly” requirement
...

Even if not acting quasi-/judicial capacity, natural justice rules apply, must give
immigrant opportunity of satisfying him of necessary matters (<16) and let him know
his impression so can disabuse him of it
...


R v Gaming Board of Great Britain, ex p Benaim and Khaida [1970]: Gaming Board
not obliged to disclose sources or details of info or reasons when refusing certificate
of consent
...


Glynn v Keele University [1971]: Student sunbathing nude, no hearing, fine and
suspended
...


McInnes v Onslow-Fane [1978]: British Board of Control no oblig to give reasons for
refusing application for boxing manager’s licence or to give oral hearing
...

Forfeit: right to unbiased tribunal, take notice of charges and be heard in answer
...


R v Norfolk Country Council ex p M [1989]: Alleged sexually abused 13 y/o, made
false claims before
...
Held acted unreasonably, case conference where put on
list no simply private admin act, must be subject to review and must act fairly
...
Wrong to adopt inflexible refusal to have oral hearings, fairness
required all material to be disclosed to app and given opportunity to respond
...


Bank Mellat v HM Treasury [2013]: Iranian bank thought to be funding nukes alleged
ban in UK breached natural justice
...

What will Constitute a Fair Hearing?
There are a number of factors which determine whether there has been a fair
hearing or not
...
J
...
The
requirements of natural justice must depend on the circumstances of the case, the
nature of the inquiry, the rules under which the tribunal is acting, the subject-matter
which is being dealt with, and so forth”, essential = chance to present his case
...
Is there a duty to give reasons?

2
...
”
The section is subject to far reaching exceptions in sub sections 2 – 7
...
Overruled in Doody [1994]
...
’” App needs substantially prejudiced by deficiency in reasons

Bolton Metropolitan District Council v Environ Sec [1996]: Sec planning decision had
to include reasons in sufficient detail to allow the recipient to know conclusions the
inspector has reached on the principal controversial issues
...


Lonrho Plc v Trade & Industry Secretary [1989]: SoS acted rationally and consulted
all parties involved in decision not to publish Serious Fraud office report so as to not
prejudice a fair trial and further investigation
...
Civil Service Appeal Board, ex parte Cunningham [1991] : Found unfairly
dismissed, given compensation with no reasons of less than half what employment
tribunal (couldn’t as prison officer) would have given
...
Example of “trigger factor”

R v Universities Funding Council, ex p Institute of Dental Surgery [1994]: No grounds
for council to give reasons for educational grants, “nature and impact of decision
itself call for reasons as a reasons as a routine aspect of procedural fairness” or
where trigger factor required to show fairness demands reasons due to circums
...
Must inform them of the
factors to be taken into account and reasoning must be disclosed, including reasons
for departure from judicially recommended tariff
...
Not a gen duty to tell why parole, even though public concern
...


Fairness dictated need not give reasons, ought to inform app before of any matters
weight against the grant of naturalisation so the app could address him on them
...
Art 10 fine, court
interfere where no reasons support decision within “discretionary area of judgment”
...


R v
...

It seems, however, the law is still no nearer to a general duty to give reasons:

Stefan v
...
“Dangers and disadvantages
to universal requirement for reason… undesirable legalism where high degree of
informality is appropriate and adds to delay and expense
...
”

Gupta v
...


R (Asha Foundation) v
...
Not a
common standard, depended on circums of indiv cases
...

Has the Duty Been Adequately Discharged?

Chief Constable, Lothian and Borders Police v
...
Board wanted no quash, state reasons and reconsider
...
Immigration Appeal Tribunal [2003] : Required to give reasons for refusal
to extend time for applying to appeal
...


The Role of National Security
On occasions the duty to give reasons which might ordinarily arise will be overridden
by national security concerns, most famously SoS relieved of duty to give reasons in

R v Home Secretary ex p Adams [1995]: Gerry Adams, Sinn Fein president, JR of 3
year exclusion order under domestic and EC law
...
ECJ case referred
...


Lloyd v McMahon [1987]: Auditor’s failure to offer oral hearing when not requested
and had made full written determinations not open to challenge at law as not
supplemented in any material way by an oral hearing
...


R (Smith) v Parole Board [2005]: HL delivers clarity on when oral hearing required,
but no hard and fast rules
...
Should be predisposed
...


R v Gaming Board of Great Britain ex p Benaim and Khaida [1970]: Not obliged to
disclose sources or details of its information to app, confidential info not disclosed

Bank Mellat v HM Treasury [2013]: Closed material procedure allowed if justice
required
...

Note the challenge of “closed procedures”:

Home Sec v AF [2009]: Must be given sufficient info about allegs against to enable
to give effective instructions
...


Al-Rawi v Security Service [2011]: Court had no common law power to adopt closed
material procedure in ordinary civil claim for damages
...


Tariq v Home Office [2011]: No absolute requirement that C provided with sufficient
detail of allegs against him to enable him to give instructions to his legal rep as

would have involved the disclosure of details of allegs required to be kept secret due
to interests of national security
...

Legal Representation

Enderby Town Football Club v Football Association Ltd [1971]: A rule made by a
body prohibited legal rep at domestic tribunal may well not be contrary to rules of
natural justice
...


R v Board of Visitors of the Maze Prison ex p Hone and McCartan [1988]: No
automatic right to legal rep for prisoner facing alleg before board of visitors
...
Article 6 of the ECHR requires that an
individual is given a fair trial in the determination of criminal or civil rights
...
If they did not, then Art 6 did not apply and the common
law as it stood after Hone and McCartan was valid
...
Ultimately, the UK courts
found that the common law position was satisfactory, where ECtHR did not
...

Requiring reasons for ordering squat searches impractical, should have good reason

Ezeh v UK [2003]: Where prisoners charged with disciplinary offences with domestic
criminal law equivalent, ECHR Art 6 applied and governor decision to deny legal rep
at hearings breach of right to fair trial
...


R (Greenfield) v Home Sec [2005]: Accepted decision in Ezeh, CA wrong in Carroll
...
ECHR doesn’t apply, in deciding whether determines civil right contrast
proceedings “directly decisive” = applies, or “tenuous” or “remote” consequence
...
For purposes of Art 6,
court required to reach own conclusions as to disputed issues of fact, so essential
...
The most difficult questions
are not often in the adjudicatory process, where law more or less clearly decided
...
Notable for HR decisions
...
“Maxim that no man is to be a judge in his own cause should
be held sacred
...


Hannam v Bradford Corp [1970]: Sub-committee firing teacher quasi-judicial, real
likelihood of bias existed
...


Ward v Bradford Corp [1972]: Student had man in room, should be principal alone
could refer to disciplinary committee, as she would not governing body changed rule
so they could
...
Held body acted
properly and no reason why couldn’t change rule, no evidence treated unjust/unfairly

Taylor v Lawrence [2002]: Residual jurisd to re-open proceedings which already

determined to avoid real injustice in exceptional circumstances
...


El-Faragy v El-Faragy [2007]: Judge who made several jokes and comments about
Saudi sheikh ought to have recused himself on grounds of apparent bias, since fairminded and informed observer would conclude that there was a real possibility the
judge would carry into his judgment the scorn and contempt the words conveyed
...
No personal interest or
reason for being biased
...


R v Bow Street Stipendiary Magistrates ex p Pinochet Ugarte (No 2) [1999]: In order
to ensure absolute impartiality, necessary as matter of law that judge, personally or
director of company closed aligned with company party to suit, automatically
disqualified
...


R (Al-Hasan) v Home Sec [2005]: (=Carroll, Greenfield) By fact present when search
order confirmed, prison governor gave tacit assent and when disobeyed and had to
rule on lawful, a fair minded observer could think him biased towards finding lawful
...
Quashed he didn’t have open mind, not established forejudged
...
In the case of highways,
dept can be both promoting authority and determining auth
...
As long as fair and take all material consids

Steeples v Derbyshire County Council [1985]: A council granting planning permission
to itself must be particularly scrupulous to ensure decision seen to be fair, so not to
be held in breach of natural justice, were not here
...


R v Transport Secretary ex p Gwent County Council [1987]: “While minister entitled
to have policy, must always be prepared to consider, having regard to special
circums, departing from the policy
...
[2008]: SoS appeal
failed, he was in position of apparent influence where had sought to influence; gave
directions, made rules of procedure, allocation of funding and general sponsorship
...
Not politically
motivated more than normally expected, not due to Labour opposition to developing
...

The Applicable Test for Bias

Porter v Magill [2001]: Standard for post-HRA 1998 bias cases and accepted test
“whether the fair-minded and informer observer, having considered the facts, would
concluded that there was at least a real possibility that the Tribunal was biased
...

Fair-minded observer could not have concluded real poss of bias where judge
remove failed Palestinian asylum seeker found to be member of anti-Palestinian org
...
Undermine public confidence in admin of justice, discontinue
...


R (Alconbury) v Environment Secretary [2001]: Ability of SoS to act as decision
maker in relation to planning matters in which had been involved in policy making
was not breach of HRA Art 6 due to powers of courts to ensure compatibility of
overall process by means of JR, exercising sufficient control over SoS discretion
...


see Alconbury above

Begum v Tower Hamlets LBC [2003]: Sought accom from local auth on basis that
unintentionally homeless
...
Declined to find if determination of “civil rights” under
Art 6, manager not independent and impartial tribunal for purposes of Art 6 due to
role as administrator rather than separate judicial body, but decision whether accom
suitable could be safely entrusted to administrator; her decision was lawful and fair
...

Decision, in circums, not rectifiable by JR as no jurisd to rehear + substitute view
...


Ali v Birmingham City Council [2010]: Decision by local housing authority that
discharged duty to secure accom not determination of person’s “civil rights” , said
didn’t get letters from them, no professional knowledge or experience like Tsfayo
...

Natural justice has to give way to necessity in order to maintain the integrity of
judicial and admin systems
...

(b) Statute – affect of HRA 1998
...
If an objection is not raised and proceedings are allowed to
continue without disapproval, held that the party has waived its right to do so
...
It is not concerned with private law remedies, such as actions in
tort, contract, or restitution against a public authority, have been covered earlier
...
Replaced in Part 54 Civil Procedure Rules 2000 with rules all people
wishing to claim JR must comply with, which have subsequently been amended to
address particular problems, or restrict access with regard to certain issues
...

Some of the complexity and uncertainty has been reduced by recent procedural
reforms and Part 54 of the Civil Procedure Rules 2000, but area still beset by
conflicting case law decisions
...
If the PAP is not complied with there may be costs
for the non-compliant party, such as paying other party’s fees, although in certain
cases it may be dispensed with
...
Then usually 14 days for letter of response
unless reasonable extension for D, send to all interested parties, standard format
...
HL struck
out pleadings, held given improvements to JR procedure in 1978 Reforms, would
normally be an abuse of power for court to allow ordinary action by person seeking
to establish decision of a public authority infringed rights protected by public law
...


Mercury Telecommunications v Director General of Telecommunications [1996]:
Where a matter is contractual, even where constrained by licence conditions of BT
set by the DGT under statutory powers, a claim may still be issued under public law
...
Disproportionate for JR to be used as procedure for debt collecting/grant pay
...


R v City Panel on Takeovers and Mergers, ex p Datafin [1987]: Panel’s decisions
were susceptible to HR, operated as integral part of govt framework for regulation of
the City with statutory powers and penalties = body performing a public law duty
...


R v Advertising Standards Authority ex p Insurance Services [1990]: ASA subject to
JR as carrying public duty and not domestic/private tribunal, fair = can present case
...
JR inappropriate and
undesirable method of exercising control over the governing body of a form of
popular entertainment whose powers are solely derived from private law
...
Source of power, nature of
duty and consequence of body’s decision; (b) body whose source of power not solely
consent of those over whom exercised, performed public law sanctions, could be
susceptible to JR
...


R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the
Commonwealth, ex p Wachmann [1992]: Court could not determine whether morally
and religiously fit for rabbinical office, never jurisd for Jewish law, not sufficient for
decision to have public element, govt needs interest in decision of non-govt bodies
...


R v Disciplinary Committee of Jockey Club ex p Massingberd Mundy [1993]: Unlikely
to be capable of JR as lacks public element that might otherwise qualify it
...


R v Press Complaints Commission ex p Stewart-Brady [1997]: Arguable whether
Press Complaints Commission, not to be determined as only an application for leave

R (Mooyer) v Personal Investment Authority Ombudsman Bureau [2001]: In capacity
as independent body concerned with dispute resolution, not susceptible to JR as any
jurisd wholly dependent on contractual consent of members, not binding on 3rd party
...
Relationship purely
commercial to which court could not affix public law duty to Wandsworth London BC
...


R v East Berkshire Health Authority ex p Walsh [1985]: Claimed that senior nursing
officer did not have power to act on behalf of health authority in dismissing and had
been departure from rules of natural justice in procedures leading to dismissal
...


R v Derbyshire County Council, ex p Noble [1990]: Not sufficient public element to
allow JR
...

Cf
...


Clark v University of Lincolnshire & Humberside [2000]: Emphasis changed since
O’Reilly v Mackman
...
Principles in Part 1 now central to determining what is due
process
...


R v Home Sec ex p Fire Brigades Union [1995]: “Prerogative powers of the Crown
remain in existence to the extent that Parl has not extinguished them”
...

Collateral Challenge
The courts have taken a varying approach but recently been more permissive to it
...


Quietlynn Ltd v Plymouth City Council [1988]: Unreasonable to expect courts to take
on supervisory function of reviewing validity of byelaws, and accordingly lack the
power to do so
...

Capacity
Some debate existed over whether unincorporated associations have standing due
to the fact they lack legal personality so why give costs, although issue now settled
...
”

R v Darlington BC ex p Darlington Taxi Owners [1995]: Unincorp ass did not have
capacity to apply for JR but court had discretion to award costs against members of
association who were not parties, if had been instigators of the action
...


Interim Relief
An important part of judicial review and will be granted on the same principles as an
injunction under the common law
...


R v Inspectorate of Pollution, ex p Greenpeace [1994]: Same principles as injunction
Belize Alliance of Conservation Non-Govt Organisations v Dept of Environ [2003]:
Privy Council had inherent jurisd to grant interim relief in order to ensure than any
order made on subsequent appeal not rendered nugatory
...

N
...
where interim relief is requested that could cause loss to a third party a cross
undertaking in damages is usually necessary, often an insurmountable hurdle for C
...
The “sufficient interest” test is generally used
by the court; the principles have developed in case law (s31 Senior Courts Act 1981)

R v Inland Revenue Commissioners ex p National Federation of Self Employed and
Small Businesses Ltd [1982]: Locus standi not always a preliminary issue, take
account of legal and factual matrix sometimes
...
Fleet Street
workers evading income tax with false names, arranged to register and stop
investigations for lost tax
...


R v Social Services Secretary ex p Child Poverty Action Group [1989]: National
associations that “play a prominent role in giving advice, guidance and assistance” to
social security benefit claimants given standing
...


R v Employment Sec ex p Equal Opportunities Commission [1995]: Had sufficient
interest in challenging legisl that discriminated against women as established by
statute which provided duty work towards discrim and authorised it to take steps
...


R v Foreign Sec ex p World Development Movement [1995]: Standing not
preliminary issue but taken in context of whole case, merits of challenge important
factor
...


R (Bulger) v Home Sec [2001]: Invitation to victim’s family to make representations
did not constitute invitation to suggest tariff or give standing to pursue challenge to it
...
com/1158/?form_1155
...
com/en/p/720401

Delay
Cases should ordinarily be brought within 3 months, although courts have been
willing to strike out cases within that time limit if they feel the application should have
been made with undue delay
...

54
...
”

R v Stratford on Avon District Council, ex p Jackson [1985]: Good reason for delay
as attempt to have Environ Sec call matter in, and difficulties with legal aid and
obtaining permission from copyright holders for use of plans and drawing materials
...
Undue delay affects discretion, substantial hardship to others

R v Independent Television Commission ex p TVNI [1991]: App must be made with
utmost promptness particularly where 3rd party rights affected, additional to time limit
...
No good reason
...


The Problem of “Promptness”?
The three month time limit, linked with the requirement for “promptness”, have
recently been called into question by EU law and separately the ECHR
...


Uniplex (UK) Ltd v NHS Business Services [2010]: CJEU decision “promptly and in
any event within three months” offends against procurement legislation
...

Another question is whether the application of a promptness requirement creates
uncertainty that is contrary to the requirements of the ECHR on legal certainty
...
5 that JR
commenced promptly as well as within 3 month limit remained applicable in cases
that didn’t raise issues of EU law, despite case law that time limits had to be certain
...

Alternative Remedies
There is a general rule that all alternative remedies must be pursued before JR - not
if other remedies cause greater difficulty or inconvenience, or unsatisfactory remedy
...
Greater speed makes JR preferable
...


R v Chief Constable of Merseyside, ex p Calveley [1986]: 2 year delay exceptional
case so JR, emphasised mere fact alt not as effective/convenient not sufficient
...


R (Cowl) v Plymouth CC [2001]: Wherever possible recourse to the law should be
avoided in disagreements between individs and public auth, resolve such disputes
with minimum judicial intervention using powers under Civil Procedure Rules 1998
...
In cases where a degree of mala fides
on the part of the claimant is evident, the court has often voiced disapproval
...
As the Crown
always has standing to ensure the law is enforced this is the only method to get
standing after being refused for having no more interest than the general public
...
In appeal granted temp
injunction, AG summoned as “very doubtful whether AG directed himself properly”
...

Statutory Review
Some statutes provide for replacing the usual CPR procedure with one of statutory
review, generally on more limited grounds with a stricter time limit, e
...
6 weeks…

R v Environ Sec ex p Ostler [1977]: Person aggrieved by proposed road scheme
under Highways Act 1959 must apply within 6 weeks; court has no jursid to entertain
an application made outside that time limit, whatever the grounds
...


R v Hammersmith & Fulham LBC ex p People before Profit [1980]: Unincorp assoc
which properly appeared at a public inquiry into a planning applic should not be
deprived of its locus standi simply because became company limited by guarantee
...
The basic nature of remedies
are outlined below
...

Furthermore, if a declaration is granted, this will not produce legal effects unless
accompanied by another remedy
...
As such, making the decision is void
...

Declaration: Not a remedy as such as has no immediate legal effect
...
May be granted on an interim or a final basis
...
An injunction
can be prohibitory or mandatory – prevent a public authority from doing something it
was proposing to do, or obliging them to take action where proposing not to
...
This means that the losing side will be liable
not only for the cost they incur, but also the govt dept concerned, which can be very
significant, particularly if case goes to appeal
...

Protective Cost Orders
It is possible under CPR rr 44
...
20 to apply for a PCO in judicial review cases
...
Easier if pro bono

Weaver v London & Quadrant Housing Trust [2009]: PCO allowed in circumstances
of public importance although couldn’t apply Corner House principles precisely as
app could not reasonably discontinue proceedings as L in control of appeal and
would pursue regardless
...
No doubt reasonable to refuse, no interest beyond all tenants
...
No Cost Capping Order as risk of disproportionate costs could be
adequately controlled
...

The reality here is that it is relatively difficult to obtain a PCO and the costs of
obtaining one could, in itself, be significant! The govt’s recent consultation paper on
JR reform suggests PCOs are too readily available, yet very few have been granted
in JR cases, seems unfair as reducing legal aid and nowhere near other cost reforms
Future Options
After the Jackson review a number of arguments were made in favour of one-way
cost shifting
...
However, this approach has not been adopted and
appears unlikely given attitude of govt’s most recent Discussion paper on JR reform
...
This will be done partially
through the use of cost-based incentives and disincentives, but also perhaps by
limiting the avail of remedies and modification of standing to reduce no of JR claims
...
If the ability to seek such
remedies is significantly curtailed then clearly the rule of law may be diminished
...
Many
claimants are not wealthy and the present approach to costs and legal aid,
particularly if accompanied by endeavours to restrict the standing of interest groups
and charities, could have a detrimental effect on poorest to pursue JR where govt
action or inaction has very severe consequences for them
...
At common
law, the Crown, meaning the Monarch and central government, was immune from
tortious liability, but individual officials were personally liable for tortious acts
...
The Crown was made liable in tort for wrongdoing of its servants under
the Crown Proceedings Act 1947, but the Act only imposes a liability where an
individual would be liable and certain immunities were preserved, e
...
for decisions
of judges
...

See Law Commission Paper No 187 (2008) and No 322 (2010) “Administrative
Redress: Public Bodies and the Citizen”
An invalid administrative action does not give rise to a claim for damages per se:

R v Knowsley MBC ex p Maguire [1992]: No general right in law to damages for
maladministration, hackney carriage licence refusal unlawful, Parl didn’t intend right
Any claim for damages must be based on a private law cause of action
...
Regulatory
tasks may be performed by private bodies, but courts have been reluctant to impose
liability for negligence for public bodies exercising regulatory tasks
...
Only rarely would question of whether public policy required conclusion of
liability to be considered
...
Ltd [1988]: Minister of state may owe a duty of care to a
company to construe legisl properly, damages for negligence as company liquidation

Lonrho v Tebbit [1991]: Public law remedy for negligence not ruled out when private
law action is “operational” rather than “policy” decisions
...


The Problem
The difficulty in liability for public bodies arises when an individual claims to be
injured by the exercise or non-exercise of a statutory power to act
...

The judges in such situations have a strike a balance between the demands for
compensation and the policy-making role of public bodies
...

Public bodies may be liable for breach of a statutory duty, negligence in performing
stat duty or power; negligence itself; misfeasance of public office, as well as other
torts such as nuisance and Rylands and Fletcher liability (form of strict where D may
be liable in absence of any negligent
conduct on their part)
...
Most difficult
hurdle = duty of care
...


R v Deputy Prisoner of Parkhurst Prison ex p Hague [1991]: Legisl intended that
Prison Act 1952 should deal with admin and management but no intended to confer
on prisoners a cause of action in damages
...


O’Rourke v Camden LBC [1997]: Act social welfare programme intended to confer
benefits at public expense pursuant to public policy, which suggested Parl did not
intend to confer private rights
...


http://global
...
com/uk/orc/law/public/endicott2e/01student/ch13/02critical/



---