#19887 - Grounds Of Review - Constitutional Law

Reoccurring hypothetical:

The Infrastructure Act says the Secretary of State may decide if planning permission will be granted for major infrastructure projects and subject to what conditions, but usually this function will be carried out by local authorities.

A company wishes to build a new airport which they know the local authority will not allow because of environmental concerns, so they petition the minister to intervene with her powers under the Infrastructure Act.

When using a power, the minister¹ must ask a) can I use the power in this way and b) should I do so. The courts must define the limits of the statutory power and so whether the minister’s use falls within those limits.

In this case, the minister will have to decide what a ‘major infrastructure project is’. The courts, if it’s litigated, will have the final say on this. This is plain interpretation of statute – ‘question of law’. For example, in Anisminic, the Foreign Compensation Commission was challenged on the grounds it had misinterpreted a statute. The courts substituted their view of the statute for the Commission’s view – Lord Reid said ‘it cannot be for the commission to determine the limits of its powers’. The general principle was confirmed in Lord President of the Privy Council, ex p Page that an error of law is a basis for quashing a decision.

Justification 1: Institutional Competence

The argument – we should consider how qualified the courts are to deal with an issue when determining their role. Here, the courts are very well equipped to deal with issues of the meaning of law.

Counter – courts aren’t necessarily better placed than the decision maker to interpret a statute. Arden LJ has argued courts often interpret statutes by analysing the policy choices behind it. They look at the meaning under the surface rather than simply interpreting the words. If judges have to look at the policy to find the statutory meaning, they might not be best placed to do so.

Example: in ex p Page, the courts did not substitute their own interpretation because they were unfamiliar with that realm of law.

In many cases where the statute is very vague, the courts will not impose their own view as it might not be the ‘right’ one – in this case it will only interfere in the statutory legality of a decision if the maker adopted an unreasonable definition (Monopolies and Mergers Commission, ex p South Yorkshire Transport).

Potential counter to counter – do all interpretation exercises involve looking at policy? In those that might not, the courts are surely best placed to interpret the statute.

Justification 2: Judicial Independence

Argument (Farina) – courts are independent so best placed to objectively interpret a statute.

Counter – what if policy needs to be considered in interpretation. In this case, the court might arbitrarily call something a question of fact rather than law so they don’t have to deal with it. In Jones v First-tier Tribunal, UKSC said they might call something fact if it doesn’t warrant close scrutiny.

Justification 3: Consistency

Argument – in Pearlman v Keepers and Governors of Harrow School, Lord Denning said different decision makers shouldn’t be allowed to reach different interpretations of the same legislation. The courts can provide an interpretation adopted by all decision-makers.

Counter – if there’s 1 decision maker, this doesn’t apply. If there are many, consistency might be outweighed by the body’s experience/wisdom.

Even if the body has adopted the ‘correct’ interpretation, it means nothing if they acted outside of that interpretation. In the example, the question of law is what a major infrastructure project is – this is the statutory interpretation part. It is aided by questions of fact – what the proposed airport’s size is etc. Questions of fit are the next stage – do those facts fit the statutory interpretation the courts came up with.

Whether the facts fit the statutory interpretation is not always decided by the courts, but objective answers tend to be i.e. is the claimant over 18 (R(A) v Croydon London Borough Council). The vaguer questions, like is the child ‘in need’ (same case) are sometimes left to the body/minister, as it was in that case. In Croydon, Hale decided that whether someone is a ‘child’ is a yes/no question – as it is objective, it is determinable by the court. However, whether the child was ‘in need’ was not objectively answerable – ‘it is entirely reasonable to assume that Parliament intended... to be [made] by the public authority’ a value judgement.

• Practical – a fair process (letting people have their say) is more likely to turn up information sensible decision

• Intrinsic value

Galligan believes fair procedure is a means to a better decision, and this is a justification. Others believe fairness is an end unto itself – Tribe says it being consulted recognises your humanity. These views are only in tension if you add one is the better, or only justification.

However, recent legislation has ruled out review challenges when it is ‘highly likely’ a failure to follow a legal requirement, which fair procedure is, will make no substantial difference to the decision-maker’s decision.

Our minister can’t be biased. Because this is so hard to prove, there is now a rule against apparent bias. This is fairly strict:

In Sussex Justices, ex p McCarthy a clerk to one of the judges was also a partner in a law firm acting against that defendant in a separate civil case. The clerk was there when the judges retired to discuss the case. Lord Hewart CJ accepted the clerk had not influenced the decision but quashed the conviction because ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’.

When is our minister ‘biased’?

1. Where the decision-maker is a party.

As Lord Browne-Wilkinson put it, ‘a man may not be a judge in his own cause’

2. Where the minister has a financial or proprietary interest in the outcome of a decision

In Dimes v Proprietors of the Grand Junction Canal, the Lord Chancellor had previously given relief to a company he was a shareholder in. In justifying the quashing, Lord Campbell said the rule about not being your own judge applies to where you have an interest.

Olowofoyeku is critical – it’s ‘draconian disproportionate and unnecessary’ to automatically disqualify the decision. The courts are now reluctant to use this rule when the likelihood of financial benefit is remote (Locabail v Bayfielf Properties – didn’t matter that judge might have financially benefitted if some long chain of events happened from the decision).

3. Pinochet (No 2)

In Pinochet No 1, the HL had allowed Amnesty International to put arguments to court even though they weren’t a party in the case. Lord Hoffmann, a majority judge ruling for what AI argued, was a director of Amnesty International Charity and the two were related. AI was involved in promoting the same causes as the organisation actually a party in the case. So, the ruling was quashed in No 2.

Maleson didn’t like the ruling, saying judges may have to withdraw from public life to ensure they’re not disqualified from deciding cases. But the Pinochet rule is rare in its application.

Non-automatic disqualification

The HL in Porter v Magill came up with a test for a disqualifying level of bias ( undermine public confidence):

1. Real possibility of bias – stricter than the previous probable bias requirement.

2. Fair-minded and informed observer – the courts don’t always trust themselves

3. How informed need that observer be? – what reasonably well-informed members of the public will know (Medicaments)

Note: this was due to criticism of the Gough test which looked at things from a judge’s point of view. Allan doesn’t think the tests are so far apart, because the more judicial/administrative knowledge you attribute the fair minded observer, the more judge-like they become.

Standards of politicians v judges

Automatic disqualification and fair-minded stuff apply to ministers too. But judges act differently to politicians:

In Bridgend County Borough Council, a company was negotiating with the council over buying some land. There was a local election in the middle of it and the new council refused the sale – during the campaign they had spoken out against it. Collins J differentiated between predisposition and predetermination – predisposition doesn’t mean a closed mind in the decision-making. This has been codified by the Localism Act 2011 (s. 25).

This is different to the personal context of the minister which decides if a specific person can make a decision. Independence is an institutional problem. A challenge on these grounds was, until recently, impossible because Parliament specified the decision-maker. It was only after a declaration of incompatibility (Article 6 requires institutional independence) following R (Anderson) v SoS Home Dpt that courts can rule on whether decision-makers are independent, even though it’s still specified in statute.

Is independence always required?

Art 6(1) requires an ‘independent²’ decision maker. Two ways of reaching this:

1. Decision being taken by an independent body

2. Decision being taken by a non-independent maker subject to oversight by an independent judicial body

But in Ali v Birmingham City Council, UKSC said Art 6 didn’t apply in this case because deciding whether someone was homeless required evaluative judgements and discretion was needed in which accommodation...