WHAT IS PUBLIC LAW ( PART 12 )

By Law Teacher

11.2.1 Applications, Grounds and Remedies – Introduction

Welcome to the eleventh topic in this module guide – Applications, Grounds and Remedies! This topic follows on from the previous topic which confers the notional basis of, and requirements for, judicial review.

Below are some goals and objectives for you to refer to after learning this section.

Goals for this section:

• To understand the procedure for judicial review applications, established by Order 54 of the Civil Procedure Rules.

• To identify the three grounds for judicial review outlined by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.

• To consider the opportunities and weaknesses of the exercise of discretion by public authorities.

Objectives for this section:

• To be able to recognise what remedies are available in judicial review cases.

• To be able to understand how principles of natural justice and judicial review entwine.

11.2.2 Applications, Grounds and Remedies Lecture

Introduction

This section follows on from the previous section, which discusses the theoretical basis of judicial review and the requirements for judicial review. In this section, the procedural process for making judicial review will be considered by outlining the stages established within Order 54 of the Civil Procedure Rules. Secondly, it will analyse the various grounds for judicial review, which were outlined by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. Further explanation of the exact meaning of these terms will be given. The final part of this chapter looks at the various remedies for judicial review. It is important to remember that all remedies are discretionary and some, such as injunctions, are also relied upon in private law hearings. However, certain orders such as quashing orders or mandatory orders are exclusive to judicial review proceedings.

A. Applications for Judicial Review

The first step in the judicial review procedure is that the claimant complies with the pre-action protocol.

Claims must be made promptly and in any event within a three month period. The court may extend the time if there is a good reason to do so.

To establish standing to make a claim for a judicial review, the court must find that the applicant has ‘sufficient interest in the matter to which the application relates’ (section 3(1) Senior Courts Act 1981). The court then has discretion to refuse an application by those who are without legitimate concern in a particular issue. E.g. R v Employment Secretary, ex p EOC [1995] 1 AC 1.

A different test of standing has been established under the Human Rights Act 1998 (HRA) section 7. Only someone who is a victim within the meaning of Art 34 ECHR can bring a claim that a public authority has acted in contravention of a Convention right under section 6 HRA.

B. Grounds for Judicial Review

As discussed in Section 11.1, the three grounds for judicial review are outlined by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.

i. Illegality

Illegality is a very broad ground for review and covers a wide range of possible abuses by public authorities. When public authorities act outside of their legal authority, they are acting ultra vires; this is a central principle of administrative law.

The most straightforward illustration of the principle of ultra vires is where a public authority has undertaken activities for which they have no legal authority.

Case in FocusAttorney General v Fulham Corporation [1921] 1 Ch 440

The ‘fairly incidental rule’ implies that if the public authorities actions are fairly incidental to the powers expressed in Statute, they may be permissible. However, this was not the case in Fulham Corporation.

(a) Discretion

In other circumstances, a public authority has the discretion to act. Frequently claims for judicial review arise out of a public authority’s exercise of discretion within their statutory powers. Many legislative provisions confer discretion upon a public authority.

The essential element of a discretionary power is choice, whereas a duty removes discretion and takes away choice. Certain statute laws contain a number of criteria that an authority should take account of when exercising its discretion.

Administrative law has developed through the 1950s in part to prevent the arbitrary or inconsistent use of discretionary powers. Discretion must be exercised in a manner that complies with principles summarised by Lord Diplock in the CCSU case. Discretion will be unlawful if the exercise of discretion is irrational, illegal, or there is procedural impropriety.

(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 FocusPadfield v Minister of Agriculture, Fisheries and Food [1968] AC 997

(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.

Case in FocusBritish Oxygen Company Ltd v Ministry of Technology [1971] AC 619

The following cases are examples of when courts have held that a public authority has acted unlawfully by applying a policy too rigidly.

Cases in FocusR v North West Lancashire Health Authority, ex p A and others [2001] 1 WLR 977, R (on the application of P) v SSHD; R (on the application of Q and another) v SSHD [2001] 1 WLR 2002

(c) 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. E.g. Barnard v National Dock Labour Board [1953] 2 QB 18.

Delegated authority of ministers can be lawfully exercised by other officials for whom the minister is responsible to Parliament or by a junior minister.

(d) 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.

(e) 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 FocusR v Home Secretary, ex p Venables [1998] AC 407

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:

1. A mistake as to an existing fact;
2. The existence of the fact must be uncontentious;
3. The claimant should not have been responsible for the mistake;
4. 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 [1925] AC 578, [1925] All ER 24, the House of Lords held that discretionary powers must be exercised reasonably.

Case in Focus Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1, [1948] KB 223, [1947] 2 All ER 680, [1948] 1 KB 223

The third element of this test is particularly difficult to prove. E.g. In Backhouse v Lamberth LBC 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 FocusR v Ministry of Defence ex p Smith [1996] QB 517

(a) Proportionality

Proportionality can be distinguished from ‘Wednesbury unreasonableness’. Proportionality requires that the court take additional steps and engages with the challenged decision in much greater depth.

Case in FocusR v Home Secretary, ex p Daly [2001] UKHL 26; [2001] AC 532

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 FocusRidge v Baldwin [1964] AC 40, 117

There is certain procedural impropriety that invalidates administrative actions. E.g. London v Clydeside Estates Ltd v Aberdeen DC [1979] 3 All ER 876.

(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 6 ECHR. Two main rules of natural justice include (a) the rule against bias and (b) the right to a fair hearing.

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 [1960] 1 All ER 631] and trade unions [Breen v AEU [1971] 2 QB 175]. The rule against bias has also been applied to local authorities.

The importance of natural justice in judicial review proceedings was highlighted in Ridge v Baldwin. Ridge established many of the foundations of the current judicial review procedures. The findings were then extended.

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:

1. It is assumed that powers conferred by Parliament be exercised in a fair manner;
2. The standards of fairness develop over time;
3. Fairness is dependent upon the context of the decision;
4. An essential element of this context is the statute which confers the discretion upon the public authority;
5. Fairness may require that anyone who would be affected adversely by the decision have the opportunity to make representations prior to the decision or afterwards with the view to its modification;
6. A person affected must be informed of the gist of the case, which must be answered.

(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 can be contrasted with private law cases where a claimant is entitled to relief. There are three possible remedies, which are available in judicial review proceedings: quashing orders, mandatory orders and prohibiting orders.

Quashing orders are the most commonly sought after remedy, their effect is to quash or reject as invalid, unlawful administrative decisions.

Mandatory and Prohibiting Orders

Prohibiting orders are anticipatory in effect; they are issued to prevent unlawful action from being taken. E.g. R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299.

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. E.g. Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.

Injunctions

An injunction is equivalent to a prohibiting order in that it prevents a body from taking unlawful conduct. Injunctions can be granted in ordinary proceedings and can also be interim measures, for which the courts apply a three-stage test:

1. Has the claimant shown prima facie that there is a ‘serious issue to be tried’?
2. Would damages be an adequate remedy, if the act were carried out?
3. 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 [1994] 1 AC 377 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.

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.

Case in FocusRoyal College of Nursing v DHSS [1981] AC 800

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 54 Civil Procedure Rules provides that a claim for judicial review might include a claim for damages in conjunction with another remedy.

11.2.3 Applications, Grounds and Remedies Lecture – Hands on Examples

The following essay style questions provide examples that will test your knowledge and understanding of the topics covered in the chapter on Applications, Grounds and Remedies for Judicial Review. Suggested answers can be found at the end of this section. Make some notes about your immediate thoughts and if necessary, you can go back and review the relevant chapter of the revision guide. Working through exam questions helps you to apply the law in practice rather than just having a general understanding of the legal principles. This should help you be prepared for particular questions, which may be presented in the exam.

Problem Question

The Action Against Climate Change Act 2014 (fictitious) establishes a Climate Commission and empowers it to fine any company in the UK that are impacting negatively upon the UK governments obligations under the Kyoto Agreement., in that the greenhouse gas emissions for which they are responsible exceed a industry based agreed target. The Action Against Climate Change Act 2014 requires that the Secretary of State for Climate Change approve any decision of the Climate Commission before fining any company.

Mega Corp is a private rail operator that operates within the UK railway industry. The railway industry in the UK has managed to keep within its industry an agreed target for greenhouse gas emissions, Mega Corp have also complied with its individual targets for greenhouse emissions. Mega Corp CEO Ronald Baxter learns that the Climate Commission intends to fine Mega Corp for failure to operate within their commitments.

Ronald sends the Climate Commission an independently audited report of its company’s greenhouse emissions illustrating that it complies with its targets and an industry-wide report showing that as a whole the industry has complied with its targets. Ronald Baxter was vocal in his disagreement with the establishment of the Climate Commission and actively lobbied against it.

The Commission’s decision to fine Mega Corp is authorised by the Secretary of State for Climate Change following a meeting with the Prime Minister who reminded him that tighter control of greenhouse emissions was a fundamental principle of current government policy.

Advise Ronald as to the grounds upon which he might apply for judicial review against the decision of the Climate Commission and the Secretary of State for Climate Change.