Unlawful Administrative Court Actions

admin courts unlawful

(b) Discretion is not unrestricted The fact that discretion must be unfettered requires that it must be exercised according to the purpose of the law that gives rise to the discretion. Case in Focus: Padfield v Minister of Agriculture, Fisheries and Food [*] AC * The case concerned the organisation of the milk marketing scheme under which farmers had to sell their milk to the Milk Marketing Board for a fixed fee, which varied according to the region of the country that the farmer lived. Farmers in the South-East argued that the fee they received was too low. The scheme was regulated under the Agricultural Marketing Act *, which established a complaints committee. The Minister for Agriculture had the discretion to refer complaints to this committee. The Minister dismissed the complaint by the farmers in the South-East on the basis that the committee were to find in the farmer's favour, political embarrassment would be caused to the Minister. The House of Lords emphatically rejected the Minister's argument and granted an order of mandamus (now referred to as mandatory order). They held that there were a number of reasons why a Minister might correctly refuse to refer a complaint. Lord Reid concluded that "Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act [which] must be determined by construing the Act as a whole". The majority of the House of Lord held that the Minister's actions were ultra vires as he had not acted in accordance with the purpose of the statute. The Act required that he consider the farmer's grievances and the political consequences for himself were not relevant to the exercise of his discretion. Refusal to pursue a complaint on the grounds that the complaint might be upheld clearly undermines the purpose and intention of Parliament in establishing the complaints committee. (c) Illegality: discretion and policies In cases were a public authority is exercising a discretion which affects a large number of people, it may adopt rules or policy for guidance. However, rules must be applied on a case-by-case basis without rigidity. If circumstances are included within a case that are unforeseen within regulations, these circumstances must be considered separately. A policy can be challenged as unlawful or because it breaches a Convention right. Case in Focus: British Oxygen Company Ltd v Ministry of Technology [*] AC * The British Oxygen Company manufactures medical gases that were kept in cylinders and cost £* each, in total the company spent £* million on the cylinders. The Industrial Development Act * conferred a power on the Board of Trade (BoT) to make a grant for new plant equipment. The BoT refused a grant application of British Oxygen as it would not consider applications for items that individually cost less than £*.*. It was argued that the BoT had fettered its discretion by applying its policy too rigidly. The House of Lords found in favour of the BoT but Lord Reid explained the approach the authority should take in apply its policy. He stated that authorities must "always [be] willing to listen to anyone who has something new to say". The following cases are examples of when courts have held that a public authority has acted unlawfully by applying a policy too rigidly. Case in Focus: R v North West Lancashire Health Authority, ex p A and others [*] * WLR * The North West Lancashire Health Authority (NWLHA) had rejected the claimants' applications for sex-change procedures stating that it was not their policy to fund such operations, except where there was an overriding clinical need or exceptional circumstances. The CA upheld the policy as rational, but found that the HA had acted unlawfully because it had applied the policy too rigidly. The HA had not described the meaning of 'exceptional circumstances' and rejected almost all applications on the same grounds, the court concluded it was operating a blanket policy without considering each case on its merits. Case in Focus: R (on the application of P) v SSHD; R (on the application of Q and another) v SSHD [*] * WLR * The prison service policy permitted mothers with newborn babies to remain in prisons with their babies in special units until the baby was 18 months old. The court held this policy was lawfully in accordance with the right to a family life (Art * ECHR); it found that the policy had been applied to rigidly in relation to Q as it had not considered the affects of separation on the child and the difficulties of finding a placement for the child outside of prison. (d) Delegation, Abdication and Dictation A body to which a responsibility to exercise discretion has been granted must not delegate that responsibility. A statute that authorises delegation does not generally permit further delegation. In Barnard v National Dock Labour Board [*] * QB *, that national board that was delegated disciplinary functions over registered dockers to local boards; a local board acted unlawfully when it delegated the power to suspend dockers to port managers. Delegated authority of ministers can be lawfully exercised by other officials for whom the minister is responsible to Parliament or by a junior minister. The minister cannot delegate the responsibility to another minister who has a different area of responsibility. Similar principles apply to statutory agencies. In R v Police Complaints Board, ex p Madden [*] * All ER, it was found that the Police Complaints Board could not adopt a policy of taking no action on complaints which the DPP had decided should not lead to criminal proceedings. Local government now has wide discretion to delegate their functions to committees, sub-committees and officers. (e) Improper Purpose and Irrelevant Considerations The exercise of power for an improper purpose is invalid. Improper purposes can include malice or dishonesty on behalf of a public official. A city council was empowered to buy land compulsorily for the purpose of extending streets or city improvements, could not compulsorily buy land to benefit from an anticipated increase in the value of the land [Municipal Council of Sydney v Campbell [*] AC *]. In Congreve v Home Office [*], QB * the Home Office threatened a number of TV licence holders with the revocation of their licence if they failed to pay an extra £*. The CA held that it was an improper use of executive power to use threats as a means of extracting money. In Potter v Magill [*] UKHL, *, [*] * AC *, the House of Lords (HL) held that it was unlawful for the Westminster Council to sell off council houses in certain parts of the city in the belief that home owners are more likely than council tenants to vote Conservative. (f) Error of Law and Error of Fact An error of law by a public authority is outside of its jurisdiction and will be declared invalid by the courts. Case in Focus: R v Home Secretary, ex p Venables [*] AC * The Home Secretary increase the minimum 'tariff period' which two juvenile killers would have to serve before being considered for parole. The Home Secretary stated that young offenders who commit murder should be treated in the same manner as adult offenders in the imposition of mandatory life sentences. The CA held that the Home Secretary had erred in law and acted outside the extent of his powers in failing to distinguish the regime for juveniles and adult offenders. A policy to ban deer hunting across its area by a county council was found to exceed the extent of the county council's powers and the policy was quashed [R v Somerset CC, ex p Fewings [*] * All ER *]. These illustrate the point that the decision maker is expected to appreciate the extent of their powers and to act within them. Judicial review does not provide a right of appeal, so an error of fact must not ask the court to substitute the court for the decision maker in deciding an issue of fact. However, if there was an evident mistake in finding of fact that is directly material to the decision the issue may be subject to judicial review. There are four conditions for the jurisdiction of judicial review under an error of fact: A mistake as to an existing fact; The existence of the fact must be uncontentious; The claimant should not have been responsible for the mistake; The mistake must not have been material to the earlier decision. ii. Irrationality In CCSU, Lord Diplock explained that irrationality means unreasonableness. Unreasonableness has been referred to many times by courts, in Roberts v Hopwood [*] AC *, [*] All ER *, the House of Lords held that discretionary powers must be exercised reasonably. Case in Focus: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [*] EWCA Civ *, [*] KB *, [*] * All ER *, [*] * KB * This case established the well-known ‘Wednesbury’ principle. The plaintiff company was the owner and licensee of the Gaumont cinema, Wednesbury, Staffordshire, were granted a licence to give performances on a Sunday under s.(*) of the Sunday Entertainments Act *, by the licensing authority for the borough under the Cinematograph Act *. A condition was applied to the licence that children under the age of * are prohibited with or without an adult. The plaintiff brought a declaration that the condition was unreasonable and ultra vires. In the Court of Appeal (CA), Lord Greene explained the word “unreasonableness”, which was used to describe actions based on illegality and irrelevance. If the exercising authority must by express or implied notification of the statute to have regard to certain matters in making their decision, the authority must not disregard them. In this case, the Wednesbury principle can be established as requiring that a court consider: (a) The public authority took account of factors that it ought not have taken into account in making that decision, or (b) The public authority failed to take account of factors that it ought to have taken account of, or (c) The decision was so unreasonable that not reasonable authority would ever consider imposing it. The CA held that the licensing authority’s decision did not fall within any of these categories. The third element of this test is particularly difficult to prove. It requires something overwhelming to prove it. One such decisions was established in Backhouse v Lamberth LBC, in which a housing authority passed a resolution under s.* (*) Housing Act *, which imposed an increased rental of £*,* per week on a house that was unoccupied and uninhabitable. The LBC had done this in order to exempt itself from increasing rents of council houses under the provisions of s. *(*) Housing Finance Act *. The court held that this decisions fulfilled the third criteria of Wednesbury in that it was a decisions which no reasonable authority could have made. Case in Focus: R v Ministry of Defence ex p Smith [*] QB * The CA considered irrationality within the context of human right laws. Smith and * others appealed against the Ministry of Defence (MoD) policy that homosexuality was incompatible with service in the armed forces, which had led to their dismissal from the armed services. Smith argued that the policy was irrational and contrary to the Treaty of Rome *, Council Directive */* on the Equal Treatment for Men and Women as regards Access to Employment and the European Convention on Human Rights (ECHR). The CA dismissed the appeal holding that the court must decide whether the decision was beyond the range of responses available to the reasonable decision maker. At the time the applicants were discharged, the Treaty of Rome and Council Directive */* did not apply to discrimination on the grounds of sexual orientation and the failure to consider Convention obligations did not impugn the exercise of discretion. Exam Consideration: In most problem type questions which focus upon judicial review, irrationality will be considered in connection with other grounds for judicial review. Proportionality (below) is inextricably linked with human rights and EU law. (a) Proportionality Proportionality can be distinguished from 'Wednesbury unreasonableness'. The general standard for review under the HRA or in EU law is proportionality. Proportionality requires that the court take additional steps and engages with the challenged decision in much greater depth. It is possible that in time proportionality will be recognised as a ground for judicial review in purely domestic judicial review cases with no connection to the HRA or EU law. Case in Focus: R v Home Secretary, ex p Daly [*] UKHL *; [*] AC * Lord Steyn set out the difference between the test for unreasonableness (U) and for proportionality (P). In the latter case, the intensity of review is greater; there are three concrete differences between the two. P requires the reviewing court to assess the balance that the decision maker has struck, not merely its reasonableness. P requires that consideration be given to relative interests and considerations. Finally, even the heightened scrutiny test in R v MOD, ex p Smith, is not necessarily sufficient protection for human rights. The requirements within the P doctrine require that the interference be proportionate to a legitimate aim pursued and be necessary in a democratic society, as required in the ECHR. Those using the traditional ground (U) and the P ground may yield different results. iii. Procedural Impropriety The correct procedure for making a decision must be observed for it to be lawful. Procedural review thus examines the process by which a decision has been reached. Certain procedures are contained within the Statute conferring the powers on the public authority, others are found within common law doctrine of natural justice. (a) Statutory requirements Case in Focus: Ridge v Baldwin [*] AC *, * The Brighton police committee summarily dismissed their chief constable following his trial at the Central Criminal Court on charges of conspiracy; his acquittal had been accompanies by serious criticism of his conduct by the trial judge. The required that the correct procedure in such circumstances under the Police Act * required a formal inquiry into the charges brought before the chief constable prior to dismissal. HL found that the dismissal must be regarded as void since it was arrived at in complete disregard for the disciplinary regulations. There is certain procedural impropriety that invalidates administrative actions and others that does not. In London v Clydeside Estates Ltd v Aberdeen DC [*] * All ER * a planning authority failed to notify landowners of their right of appeal to the Secretary of State against a decision that adversely affected them; this failure invalidated the decision. (b) Natural Justice The principles of natural justice are based on assumptions made historically by judges about how justice should be done. Many aspects of common law natural justice are now reinforced by the HRA by the right to a fair hearing under Article * ECHR. Two main rules of natural justice include (a) the rule against bias, i.e that a fair judicial decision is made by an impartial judge; and (b) the right to a fair hearing, that each party know the case against themselves and be given the right to defend themselves. The rules of natural justice have been applied to many public authorities; the right of individuals to know the charges against them has been applied to the use of disciplinary powers, by universities [Ceylon University v Fernando [*] * All ER *] and trade unions [Breen v AEU [*] * QB *]. The rule against bias has also been applied to local authorities. A decision by the Barnsley markets committee to revoke a stallholder's licence for a trivial misdemeanour was quashed. The committee had heard the evidence of the market manager in the absence of the stallholder [R v Barnsley Council, ex p Hook [*] * All ER *]. The importance of natural justice in judicial review proceedings was highlighted in Ridge v Baldwin. The HL found that natural justice required that a hearing should have been given before the committee exercised its power to dismiss the chief constable; the failure to undertake a hearing invalidated the dismissal. Ridge v Baldwin established many of the foundations of the current judicial review procedures. The findings in Ridge were then extended to police officers [Chief Constable of North Wales v Evans [*] * * All ER *] school teachers [Malloch v Aberdeen Corpn [*] * All ER *], market stall holders [Hook], residents of local authority homes at risk of closure [R v Devon CC, ex p Baker [*] * All ER *] and convicted prisoners in respect of prison discipline and parole hearings [R v Home Secretary, ex p Doody [*] * AC *]. Natural justice is now more commonly referred to as fairness. In Doody, Lord Musthill derived six principles from the authorities in order to explain the meaning of fairness: It is assumed that powers conferred by Parliament be exercised in a fair manner The standards of fairness develop over time; Fairness is dependent upon the context of the decision; An essential element of this context is the statute which confers the discretion upon the public authority; Fairness may require that anyone who would be acted adversely by the decision have the opportunity to make representations prior to the decision or afterwards with the view to its modification; A person affected must be informed of the gist of the case, which must be answered. Exam Consideration: Be careful to distinguish the rules of natural justice as they are applied within judicial review proceedings and their existence as general principles in other areas of law. These rules have developed as a specific application to the system of judicial review. C. Remedies for Judicial Review Remedies in judicial review cases are discretionary, even if a public authority has been found to have acted unlawfully, the court may refuse to issue a remedy if this is in the public interest. This broader public interest might be a consideration that leads to public finances. This can be contrasted with private law cases where a claimant is entitled to relief. Notwithstanding this, it is not common for courts to refuse a remedy in public law litigation. There are three possible remedies, which are available in judicial review proceedings: quashing orders, mandatory orders and prohibiting orders. Quashing Orders Quashing orders are the most commonly sought after remedy, their effect is to quash or reject as invalid, unlawful administrative decisions. If the court finds a decision has been made in an unacceptable way, the decision can be quashed and the decision maker can be required to reconsider their decision in an acceptable way. The courts might also rule that a decision itself is unlawful, in that it was unreasonable, disproportionate, or incompatible with the claimant's substantive legitimate expectations, or a decision that the maker had no jurisdiction to make. In such circumstances, a quashing order can compel the making of a particular decision. Mandatory and Prohibiting Orders Prohibiting orders are anticipatory in effect; they are issued to prevent unlawful action from being taken. In R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators' Association [*] * QB * an LA decided to issue some new taxi licences in breach of an assurance that there would be a cap on licences. Existing licence holders opposed the proposed course of action, due to threat to their business. The court issues a prohibiting order. Mandatory orders compel public authorities to take legally required acts. Mandatory orders are also relevant in relation to discretionary powers such as a duty to act fairly. In Padfield v Minister of Agriculture, Fisheries and Food [*] AC *, a mandatory order was issues to require a decision maker to exercise discretion in line with implied duties. Injunctions An injunction is equivalent to a prohibiting order in that it prevents a body from taking unlawful conduct. It can be distinguished from prohibiting order; injunctions can also be granted in ordinary proceedings. Injunctions can also be interim measures, for which the courts apply a three-stage test: Has the claimant shown prima facie that there is a 'serious issue to be tried'? Would damages be an adequate remedy, if the act were carried out? The court applies a balance of convenience test by considering the implications for both parties. After a period of considerable uncertainty, it was established in Re M [*] * AC * that that injunctions could be granted against Ministers acting in their official capacity, leading to contempt of court for failure to comply, which is a criminal offence. Since the Minister is acting in their official capacity they cannot be imprisoned or fined personally, which has been considered to be a dangerous concession. There will be political ramifications of such an act however. Declarations Declarations are a statement by the court that the legal issue has been brought to its attention. Unlike injunctions, they are non-coercive remedies and can be disregarded without legal consequences. They are appropriate when question shave not yet fully crystallised into specific legal disputes, such as when a claimant might wish to rule on some advice or guidance that they government has given to the unlawful acts by others. Case in Focus: Royal College of Nursing v DHSS [*] AC * A government circular said nurses could not lawfully undertake part of a procedure for termination of pregnancy without a doctor's supervision. The claimant sought a declaration that the government circular was wrong in law. The court declared that it was not wrong in law. Lord Edmund-Davies observed that 'several thousand' of the procedures in question were carried out each year, making clarification of the legal position desirable [at *]. Courts have accepted that they should act with caution in their use of advisory declarations; it does mean that courts accept that they play a role in clarifying the law before a dispute arises as opposed to after the event. This buttresses the rule of law concept of certainty. Damages Part * Civil Procedure Rules provides that a claim for judicial review might include a claim for damages in conjunction with another remedy. This remedy cannot be sought as the sole remedy.

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please summarize all key point: (b) Discretion is not unrestricted The fact that discretion must be unfettered requires that it must be exercised according to the purpose of the law that gives rise to the discretion. Case in Focus: Padfield v Minister of Agriculture, Fisheries and Food [*] AC * The case concerned the organisation of the milk marketing scheme under which farmers had to sell their milk to the Milk Marketing Board for a fixed fee, which varied according to the region of the country that the farmer lived. Farmers in the South-East argued that the fee they received was too low. The scheme was regulated under the Agricultural Marketing Act *, which established a complaints committee. The Minister for Agriculture had the discretion to refer complaints to this committee. The Minister dismissed the complaint by the farmers in the South-East on the basis that the committee were to find in the farmer's favour, political embarrassment would be caused to the Minister. The House of Lords emphatically rejected the Minister's argument and granted an order of mandamus (now referred to as mandatory order). They held that there were a number of reasons why a Minister might correctly refuse to refer a complaint. Lord Reid concluded that "Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act [which] must be determined by construing the Act as a whole". The majority of the House of Lord held that the Minister's actions were ultra vires as he had not acted in accordance with the purpose of the statute. The Act required that he consider the farmer's grievances and the political consequences for himself were not relevant to the exercise of his discretion. Refusal to pursue a complaint on the grounds that the complaint might be upheld clearly undermines the purpose and intention of Parliament in establishing the complaints committee. (c) Illegality: discretion and policies In cases were a public authority is exercising a discretion which affects a large number of people, it may adopt rules or policy for guidance. However, rules must be applied on a case-by-case basis without rigidity. If circumstances are included within a case that are unforeseen within regulations, these circumstances must be considered separately. A policy can be challenged as unlawful or because it breaches a Convention right. Case in Focus: British Oxygen Company Ltd v Ministry of Technology [*] AC * The British Oxygen Company manufactures medical gases that were kept in cylinders and cost £* each, in total the company spent £* million on the cylinders. The Industrial Development Act * conferred a power on the Board of Trade (BoT) to make a grant for new plant equipment. The BoT refused a grant application of British Oxygen as it would not consider applications for items that individually cost less than £*.*. It was argued that the BoT had fettered its discretion by applying its policy too rigidly. The House of Lords found in favour of the BoT but Lord Reid explained the approach the authority should take in apply its policy. He stated that authorities must "always [be] willing to listen to anyone who has something new to say". The following cases are examples of when courts have held that a public authority has acted unlawfully by applying a policy too rigidly. Case in Focus: R v North West Lancashire Health Authority, ex p A and others [*] * WLR * The North West Lancashire Health Authority (NWLHA) had rejected the claimants' applications for sex-change procedures stating that it was not their policy to fund such operations, except where there was an overriding clinical need or exceptional circumstances. The CA upheld the policy as rational, but found that the HA had acted unlawfully because it had applied the policy too rigidly. The HA had not described the meaning of 'exceptional circumstances' and rejected almost all applications on the same grounds, the court concluded it was operating a blanket policy without considering each case on its merits. Case in Focus: R (on the application of P) v SSHD; R (on the application of Q and another) v SSHD [*] * WLR * The prison service policy permitted mothers with newborn babies to remain in prisons with their babies in special units until the baby was 18 months old. The court held this policy was lawfully in accordance with the right to a family life (Art * ECHR); it found that the policy had been applied to rigidly in relation to Q as it had not considered the affects of separation on the child and the difficulties of finding a placement for the child outside of prison. (d) Delegation, Abdication and Dictation A body to which a responsibility to exercise discretion has been granted must not delegate that responsibility. A statute that authorises delegation does not generally permit further delegation. In Barnard v National Dock Labour Board [*] * QB *, that national board that was delegated disciplinary functions over registered dockers to local boards; a local board acted unlawfully when it delegated the power to suspend dockers to port managers. Delegated authority of ministers can be lawfully exercised by other officials for whom the minister is responsible to Parliament or by a junior minister. The minister cannot delegate the responsibility to another minister who has a different area of responsibility. Similar principles apply to statutory agencies. In R v Police Complaints Board, ex p Madden [*] * All ER, it was found that the Police Complaints Board could not adopt a policy of taking no action on complaints which the DPP had decided should not lead to criminal proceedings. Local government now has wide discretion to delegate their functions to committees, sub-committees and officers. (e) Improper Purpose and Irrelevant Considerations The exercise of power for an improper purpose is invalid. Improper purposes can include malice or dishonesty on behalf of a public official. A city council was empowered to buy land compulsorily for the purpose of extending streets or city improvements, could not compulsorily buy land to benefit from an anticipated increase in the value of the land [Municipal Council of Sydney v Campbell [*] AC *]. In Congreve v Home Office [*], QB * the Home Office threatened a number of TV licence holders with the revocation of their licence if they failed to pay an extra £*. The CA held that it was an improper use of executive power to use threats as a means of extracting money. In Potter v Magill [*] UKHL, *, [*] * AC *, the House of Lords (HL) held that it was unlawful for the Westminster Council to sell off council houses in certain parts of the city in the belief that home owners are more likely than council tenants to vote Conservative. (f) Error of Law and Error of Fact An error of law by a public authority is outside of its jurisdiction and will be declared invalid by the courts. Case in Focus: R v Home Secretary, ex p Venables [*] AC * The Home Secretary increase the minimum 'tariff period' which two juvenile killers would have to serve before being considered for parole. The Home Secretary stated that young offenders who commit murder should be treated in the same manner as adult offenders in the imposition of mandatory life sentences. The CA held that the Home Secretary had erred in law and acted outside the extent of his powers in failing to distinguish the regime for juveniles and adult offenders. A policy to ban deer hunting across its area by a county council was found to exceed the extent of the county council's powers and the policy was quashed [R v Somerset CC, ex p Fewings [*] * All ER *]. These illustrate the point that the decision maker is expected to appreciate the extent of their powers and to act within them. Judicial review does not provide a right of appeal, so an error of fact must not ask the court to substitute the court for the decision maker in deciding an issue of fact. However, if there was an evident mistake in finding of fact that is directly material to the decision the issue may be subject to judicial review. There are four conditions for the jurisdiction of judicial review under an error of fact: A mistake as to an existing fact; The existence of the fact must be uncontentious; The claimant should not have been responsible for the mistake; The mistake must not have been material to the earlier decision. ii. Irrationality In CCSU, Lord Diplock explained that irrationality means unreasonableness. Unreasonableness has been referred to many times by courts, in Roberts v Hopwood [*] AC *, [*] All ER *, the House of Lords held that discretionary powers must be exercised reasonably. Case in Focus: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [*] EWCA Civ *, [*] KB *, [*] * All ER *, [*] * KB * This case established the well-known ‘Wednesbury’ principle. The plaintiff company was the owner and licensee of the Gaumont cinema, Wednesbury, Staffordshire, were granted a licence to give performances on a Sunday under s.(*) of the Sunday Entertainments Act *, by the licensing authority for the borough under the Cinematograph Act *. A condition was applied to the licence that children under the age of * are prohibited with or without an adult. The plaintiff brought a declaration that the condition was unreasonable and ultra vires. In the Court of Appeal (CA), Lord Greene explained the word “unreasonableness”, which was used to describe actions based on illegality and irrelevance. If the exercising authority must by express or implied notification of the statute to have regard to certain matters in making their decision, the authority must not disregard them. In this case, the Wednesbury principle can be established as requiring that a court consider: (a) The public authority took account of factors that it ought not have taken into account in making that decision, or (b) The public authority failed to take account of factors that it ought to have taken account of, or (c) The decision was so unreasonable that not reasonable authority would ever consider imposing it. The CA held that the licensing authority’s decision did not fall within any of these categories. The third element of this test is particularly difficult to prove. It requires something overwhelming to prove it. One such decisions was established in Backhouse v Lamberth LBC, in which a housing authority passed a resolution under s.* (*) Housing Act *, which imposed an increased rental of £*,* per week on a house that was unoccupied and uninhabitable. The LBC had done this in order to exempt itself from increasing rents of council houses under the provisions of s. *(*) Housing Finance Act *. The court held that this decisions fulfilled the third criteria of Wednesbury in that it was a decisions which no reasonable authority could have made. Case in Focus: R v Ministry of Defence ex p Smith [*] QB * The CA considered irrationality within the context of human right laws. Smith and * others appealed against the Ministry of Defence (MoD) policy that homosexuality was incompatible with service in the armed forces, which had led to their dismissal from the armed services. Smith argued that the policy was irrational and contrary to the Treaty of Rome *, Council Directive */* on the Equal Treatment for Men and Women as regards Access to Employment and the European Convention on Human Rights (ECHR). The CA dismissed the appeal holding that the court must decide whether the decision was beyond the range of responses available to the reasonable decision maker. At the time the applicants were discharged, the Treaty of Rome and Council Directive */* did not apply to discrimination on the grounds of sexual orientation and the failure to consider Convention obligations did not impugn the exercise of discretion. Exam Consideration: In most problem type questions which focus upon judicial review, irrationality will be considered in connection with other grounds for judicial review. Proportionality (below) is inextricably linked with human rights and EU law. (a) Proportionality Proportionality can be distinguished from 'Wednesbury unreasonableness'. The general standard for review under the HRA or in EU law is proportionality. Proportionality requires that the court take additional steps and engages with the challenged decision in much greater depth. It is possible that in time proportionality will be recognised as a ground for judicial review in purely domestic judicial review cases with no connection to the HRA or EU law. Case in Focus: R v Home Secretary, ex p Daly [*] UKHL *; [*] AC * Lord Steyn set out the difference between the test for unreasonableness (U) and for proportionality (P). In the latter case, the intensity of review is greater; there are three concrete differences between the two. P requires the reviewing court to assess the balance that the decision maker has struck, not merely its reasonableness. P requires that consideration be given to relative interests and considerations. Finally, even the heightened scrutiny test in R v MOD, ex p Smith, is not necessarily sufficient protection for human rights. The requirements within the P doctrine require that the interference be proportionate to a legitimate aim pursued and be necessary in a democratic society, as required in the ECHR. Those using the traditional ground (U) and the P ground may yield different results. iii. Procedural Impropriety The correct procedure for making a decision must be observed for it to be lawful. Procedural review thus examines the process by which a decision has been reached. Certain procedures are contained within the Statute conferring the powers on the public authority, others are found within common law doctrine of natural justice. (a) Statutory requirements Case in Focus: Ridge v Baldwin [*] AC *, * The Brighton police committee summarily dismissed their chief constable following his trial at the Central Criminal Court on charges of conspiracy; his acquittal had been accompanies by serious criticism of his conduct by the trial judge. The required that the correct procedure in such circumstances under the Police Act * required a formal inquiry into the charges brought before the chief constable prior to dismissal. HL found that the dismissal must be regarded as void since it was arrived at in complete disregard for the disciplinary regulations. There is certain procedural impropriety that invalidates administrative actions and others that does not. In London v Clydeside Estates Ltd v Aberdeen DC [*] * All ER * a planning authority failed to notify landowners of their right of appeal to the Secretary of State against a decision that adversely affected them; this failure invalidated the decision. (b) Natural Justice The principles of natural justice are based on assumptions made historically by judges about how justice should be done. Many aspects of common law natural justice are now reinforced by the HRA by the right to a fair hearing under Article * ECHR. Two main rules of natural justice include (a) the rule against bias, i.e that a fair judicial decision is made by an impartial judge; and (b) the right to a fair hearing, that each party know the case against themselves and be given the right to defend themselves. The rules of natural justice have been applied to many public authorities; the right of individuals to know the charges against them has been applied to the use of disciplinary powers, by universities [Ceylon University v Fernando [*] * All ER *] and trade unions [Breen v AEU [*] * QB *]. The rule against bias has also been applied to local authorities. A decision by the Barnsley markets committee to revoke a stallholder's licence for a trivial misdemeanour was quashed. The committee had heard the evidence of the market manager in the absence of the stallholder [R v Barnsley Council, ex p Hook [*] * All ER *]. The importance of natural justice in judicial review proceedings was highlighted in Ridge v Baldwin. The HL found that natural justice required that a hearing should have been given before the committee exercised its power to dismiss the chief constable; the failure to undertake a hearing invalidated the dismissal. Ridge v Baldwin established many of the foundations of the current judicial review procedures. The findings in Ridge were then extended to police officers [Chief Constable of North Wales v Evans [*] * * All ER *] school teachers [Malloch v Aberdeen Corpn [*] * All ER *], market stall holders [Hook], residents of local authority homes at risk of closure [R v Devon CC, ex p Baker [*] * All ER *] and convicted prisoners in respect of prison discipline and parole hearings [R v Home Secretary, ex p Doody [*] * AC *]. Natural justice is now more commonly referred to as fairness. In Doody, Lord Musthill derived six principles from the authorities in order to explain the meaning of fairness: It is assumed that powers conferred by Parliament be exercised in a fair manner The standards of fairness develop over time; Fairness is dependent upon the context of the decision; An essential element of this context is the statute which confers the discretion upon the public authority; Fairness may require that anyone who would be acted adversely by the decision have the opportunity to make representations prior to the decision or afterwards with the view to its modification; A person affected must be informed of the gist of the case, which must be answered. Exam Consideration: Be careful to distinguish the rules of natural justice as they are applied within judicial review proceedings and their existence as general principles in other areas of law. These rules have developed as a specific application to the system of judicial review. C. Remedies for Judicial Review Remedies in judicial review cases are discretionary, even if a public authority has been found to have acted unlawfully, the court may refuse to issue a remedy if this is in the public interest. This broader public interest might be a consideration that leads to public finances. This can be contrasted with private law cases where a claimant is entitled to relief. Notwithstanding this, it is not common for courts to refuse a remedy in public law litigation. There are three possible remedies, which are available in judicial review proceedings: quashing orders, mandatory orders and prohibiting orders. Quashing Orders Quashing orders are the most commonly sought after remedy, their effect is to quash or reject as invalid, unlawful administrative decisions. If the court finds a decision has been made in an unacceptable way, the decision can be quashed and the decision maker can be required to reconsider their decision in an acceptable way. The courts might also rule that a decision itself is unlawful, in that it was unreasonable, disproportionate, or incompatible with the claimant's substantive legitimate expectations, or a decision that the maker had no jurisdiction to make. In such circumstances, a quashing order can compel the making of a particular decision. Mandatory and Prohibiting Orders Prohibiting orders are anticipatory in effect; they are issued to prevent unlawful action from being taken. In R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators' Association [*] * QB * an LA decided to issue some new taxi licences in breach of an assurance that there would be a cap on licences. Existing licence holders opposed the proposed course of action, due to threat to their business. The court issues a prohibiting order. Mandatory orders compel public authorities to take legally required acts. Mandatory orders are also relevant in relation to discretionary powers such as a duty to act fairly. In Padfield v Minister of Agriculture, Fisheries and Food [*] AC *, a mandatory order was issues to require a decision maker to exercise discretion in line with implied duties. Injunctions An injunction is equivalent to a prohibiting order in that it prevents a body from taking unlawful conduct. It can be distinguished from prohibiting order; injunctions can also be granted in ordinary proceedings. Injunctions can also be interim measures, for which the courts apply a three-stage test: Has the claimant shown prima facie that there is a 'serious issue to be tried'? Would damages be an adequate remedy, if the act were carried out? The court applies a balance of convenience test by considering the implications for both parties. After a period of considerable uncertainty, it was established in Re M [*] * AC * that that injunctions could be granted against Ministers acting in their official capacity, leading to contempt of court for failure to comply, which is a criminal offence. Since the Minister is acting in their official capacity they cannot be imprisoned or fined personally, which has been considered to be a dangerous concession. There will be political ramifications of such an act however. Declarations Declarations are a statement by the court that the legal issue has been brought to its attention. Unlike injunctions, they are non-coercive remedies and can be disregarded without legal consequences. They are appropriate when question shave not yet fully crystallised into specific legal disputes, such as when a claimant might wish to rule on some advice or guidance that they government has given to the unlawful acts by others. Case in Focus: Royal College of Nursing v DHSS [*] AC * A government circular said nurses could not lawfully undertake part of a procedure for termination of pregnancy without a doctor's supervision. The claimant sought a declaration that the government circular was wrong in law. The court declared that it was not wrong in law. Lord Edmund-Davies observed that 'several thousand' of the procedures in question were carried out each year, making clarification of the legal position desirable [at *]. Courts have accepted that they should act with caution in their use of advisory declarations; it does mean that courts accept that they play a role in clarifying the law before a dispute arises as opposed to after the event. This buttresses the rule of law concept of certainty. Damages Part * Civil Procedure Rules provides that a claim for judicial review might include a claim for damages in conjunction with another remedy. This remedy cannot be sought as the sole remedy.