#14663 - Grounds Of Review - GDL Constitutional and Administrative Law

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Illegality

R v Somerset CC ex parte Fewings (above) per Laws J – local authorities must have positive power to act whilst everything which is not forbidden is allowed for the individual

However the Localism Act 2011 gives a general competence to local authorities and curtails this principle

• Forsyth: ultra vires is not really a basis for review, but rather a “fig leaf” (Sir John Laws) for judicial control of good administration

Express & reasonably incidental powers:

R v Richmond LBC ex parte McCarthys & Stone

Council had power to determine planning applications. But they also provided advice to intending developers & charged

Held: the advice was incidental, but the charging was not. It was too far stretched from their positive authority

Error of law:

Errors of law on the face of the record were reviewable, and also those which were a matter of analysis & argument but which were non-jurisdictional, but not jurisdictional matters (i.e. within their competence)

Anisminic

British government set up a Commission to decide compensation for property confiscation in Egypt. Applicant applied & turned down due to error of law

Held: success – removes the strict distinction between jurisdictional & non-jurisdictional errors & focus on unreasonableness

Re Rascal Communications per Lord Diplock:

• Administrative tribunals – rebuttable presumption that errors are reviewable

• Inferior courts – no presumption

• High Court – irrebuttable presumption that it is not reviewable

Ouster clauses:

Anisminic (above) per Lord Reid: ouster clauses are interpreted as narrowly as possible – S.4 Foreign Compensation Act 1950 had a natural meaning but it didn’t extend to immunity

HL urged Parliament to drop the ouster clause of the Asylum & Immigration Bill and they did

Wrongful delegation:

Carltona v Commissioner of Works

Notice requisitioning applicant’s factory signed by secretary of the Commissioner

Held: freedom to delegate as this was practically necessary – however the commissioner remained constitutionally responsible

Fettering of discretion:

Lavender & Son

Minister for Housing & Local Government had a policy that he would always refuse planning permission where the Minister for Agriculture refuses

Held: this was a fettering of discretion & minister should make up his own mind

British Oxygen v Minister of Technology

British Oxygen applied for a grant but was refused as the Board said it would not consider an application for less than 25

Held: the minister was free to have the policy but he had to be prepared to listen to an application to disapply the policy

Unreasonableness/Irrationality

Wednesbury

Wednesbury gave permission to open cinemas on Sundays but imposed restriction on children under 15

Held: per Lord Greene, that though this was a reasonable, the court could review a decision for unreasonableness where:

• In making the decision, the defendant took into account factors that ought not to have been taken into account, or

• The defendant failed to take into account factors that ought to have been taken into account, or

• The decision was so unreasonable that no reasonable authority would ever consider imposing it.

Improper purposes:

Padfield

Minister chose not to refer complaint to milk marketing committee

Held: rejecting minister’s argument that he had a perfect discretion, Lord Reid held that discretion must be used in line with Parliamentary objectives & even a perfect discretion does not amount to a discretion not to use it

Congreve v Home Office

Newspaper warning readers to prematurely renew TV licences before a price hike threatened by responsible minister that he would revoke licences (within his power)

Held: abuse of discretion

• Lord Denning: “an attempt to levy money for use of the Crown without the authority of Parliament”

Wheeler v Leicester CC

CC banned rugby club’s use of pitch because of their visits to SA during apartheid

Held: whilst CC had a duty under the Race Relations Act, their motive of punishment was not proper

Westminster Corp – if there is an incidental improper purpose, it will not tinge the dominant proper purpose

Improper considerations:

R v Somerset CC ex parte Fewings (above)

• Swinton-Thomas LJ: cruelty argument must be irrelevant for if it were not the Council would be free to prevent the local cadet force from marching because of pacifists in the office

R v Broadcasting Complaints Commission – if there is more than 1 improper consideration, it will not tinge the decision if it would have swung that way regardless. If causation is impossible to determine, however, decision must be challenged

Competing considerations are usually in the hands of the public authority – however if they fail to take into account fundamental rights, past breaches of duty or the fiduciary duty to the local taxpayer their balancing exercise may be reviewed

Tesco Stores v Sec of State for the Environment

• Lord Hoffmann: “provided that the planning authority has regard to all material considerations it is at liberty (within the test of ‘reasonableness’) to give whatever weight the planning authority thinks fit or no weight at all”

Irrationality

• Warrington LJ: red-haired schoolteacher being dismissed = irrational

Wednesbury definition – unreasonable where no reasonable authority could ever have come to the decision

• Circular reasoning

• Unclear as to how much deference is needed

• High threshold prevents effectiveness of the remedy

Nottinghamshire CC v Sec of State for the Environment – nothing short of a loss of senses would accede to the threshold

R v MoD ex parte Smith

Dismissal of gay soldiers

Held: not irrational. Alteration to the test should be taken by Parliament

• Lord Bingham: policy matters mean the courts must be hesitant to find a decision irrational

HOWEVER this was found to be an Art 8 breach

Proportionality?

R v Sec of State for the Home Department ex parte Daly

Legality of a prison policy which required inmates to be excluded from their cells when searches were being carried out including inspection of their legal documents.

Held: unreasonable interference with their common law right to legal professional privilege and also a disproportionate interference with their human right under Art.8

• Lord Cooke: Wednesbury as “an unfortunately retrogressive decision…as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation”

• Lord Steyn: the “precise and sophisticated” machinery of proportionality – enables high intensity review which assesses the balance and not “merely whether it is within the range of rational or reasonable decisions” though it is NOT merits review

R (Association of British Civilian Internees)

• Dyson LJ: “we have difficulty in seeing what justification there now is for retaining the Wednesbury test” where no ECHR rights infringed

R (Pro-Life Alliance)

• Lord Walker: “The Wednesbury test, for all its defects, had the advantage of simplicity…But the scope and reach of the Human Rights Act is so extensive that there is no alternative… it is clear that any simple “one size fits all” formulation of the test would be impossible”

Proportionality is an authoritative ground where cases involve qualified Convention rights

However it has also bled into domestic JR with variable intensity & ‘anxious scrutiny’ version of Wednesbury

R (Anne) v Test Valley BC

Nuisance claim involving very “limited” peaceful enjoyment element

Held: Forbes J applies a modified Wednesbury approach - though he stated that he was acting under an intensified version of the traditional irrationality ground; in reality he was weighing up competing interests and engaging in factual scrutiny.

Procedural Impropriety

• Mandatory requirements – makes decision unsafe

• Directory requirements – does not make the decision unsafe

Two procedural duties (natural justice:

• Duty to act fairy in hearing both sides of the case

• Rule against bias

London & Clydeside Estates

Certificate of Alternative Development did not notify them of their right to appeal & thus their appeal was out of time

Held: directory requirements sub-categorise into those with which substantial compliance would be required, and those which were purely regulatory

Coney v Choice per Templeman J that the objective behind mandatory requirements must be satisfied but the methodology is within discretionary limits

Natural justice:

Ridge v Baldwin (above)

Held: per Lord Reid, that the distinction between administrative & judicial was not relevant – if it affects the individual then natural justice applies

McInnes v Onslow-Fane

Licence refused 4 times & wrote requesting notice but refused again

Held: no breach of natural justice as this was an application case where protection is low. There is also no general duty to give reasons but it might add up to the case for breach of NJ

• Megarry J:

  • Forfeiture cases – high protection

  • Legitimate expectation cases – medium protection (though Megarry J states closer to forfeiture)

  • Application cases – low protection

R v Sec of State for the Home Department ex parte Tarrant that legal representation for prisoners might be required for procedural fairness

Lloyd v McMahon

• Lord Bridge: “when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so...