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Legal power to decide or determine with legal effect, i.e. HC has inherent
jurisdiction to hear claims of JR
Can also refer to legal authority to decide if decision maker is a public
body:
o Local authority – jurisdiction to decide on claims for housing
benefit
o University – Jurisdiction to award degrees
o Home office – Jurisdiction to decide claims for asylum
Court – has PB acted within its juridcition? – i.e. within legal powers, is
decision lawful and valid?
Anisminic 1969 – any error of law made by PB (even in its own
jurisdiction) could be nullified via JR proceeding (extended JR in regard to
PB decisions)§
Errors of Law
May include:
o Application of wrong test
o Acting in bad faith
o Missing out something that should (by law) be accounted
o Determining decision not for decision maker to make
Anisminic – any such errors mate nullify PB decision, even if made within
jurisdiction of decision maker
Errors of Fact
Questions of fact can also be decided by PBs - Not open to Admin Court to
correct such errors in JR proceedings
o *R v Hillingdon LBC ex parte Pulhofer – Whether family were
enjoying ‘accomodation’ under act was a term 1977 Act and Parl.
Entrusted local authority to determine that fact, so not open to
Admin court to substitute its assessment as to fact for those of
local authority.
Why shouldn.t PB determine?
o Intended for another decision maker by parliament
o Decision maker is more likely to know, i.e. local housing conditions
and availability of housing stock
o Local authorities determination of fact provides for degree of
finality
Ex Parte South Yorkshire Transport – bus services in south
Yorkshire covers substantial part of the UK, though it only
represents 1.65% of Uk and 3.2% of population. HL held
Monopolies and Mergers Commission entitled to make this
determination of fact.
Runa Begum v Tower Hamlets 2003 – Begum homeless, but
rejects accommodation so local authority dispensed
obligation towards her. HL – yes court can decide
procedural fairness, but local authority entitled to make
determination of fact – no necessary for such facts to be
determined by independent body
Fundamental Errors of Fact
Public body not court decides whether and how powers will be used
(choice), must be exercised lawfully
Deference
Diplock (GCHQ) – decision maker must understand law that regulates his
decision-making power and give effect to it (ill definition)
Ultra vires? (ill definition)
R v Somerset CC, ex parte Fewings 1995 – Council decision to ban hunting
wuashed, because failed to account for benefit, improvement or
development of the area and motivated instead by ethical or moral
considerations relating to hunting – ‘there are legal limits to every power
you have.’
R v Foreign Secretary, ex parte World Development movement – court
concerned with upholding statutory purpose, court uphold purpose of act.
Funding of dam was economically unsound, and failed to demonstrate
more than marginal benefit for Malaysia and was trying ro secure political
and diplomatic relations, so decision to award aid was deemed unlawful
as being contrary to the purpose of the statute conferring powers upon
foreign secretary to provide aid for the poor, although grant of aid
required consideration of political, economic and diplomatic matters.
Westminster v London and North Western Railway Co. 1905 – HL rule
that installation of toilets and necessary subway to access them were
within statutory powers of local authority, however official must only be
acting upon one motive (the lawful one), while pursuing and unlawful
motive (construction of an unwarranted subway).
o So PB can do something it is not lawfully entitled to do if it’s
accidental to performance of some other lawful act. Contrast with
World Development Movement, as motive of foreign secretary to
secure political and diplomatic relations with Malaysia was not
incidental to exercise of discretion in respect to aid, but was the
primary motive.
Consider jurisdiction, i.e. Fewings (authority exceeds it by deciding moral
and ethical matters); World Development Movement (foreign secretary
exceeds jurisdiction decide destination of aid by allegedly bargaining for
arms contract)
In rights cases (ex parte Smith) courts are more willing to scrutinise
decision and expect justification of PB actions – Anxious Scrutiny
o R(Daly)v Secretary of State for the Home Department 2001 –
Claimants win appeal at HL against prison regulation to be absent
when prison officers search his cell, which contains confidential
and legally privileged correspondence. This was substantive
review, not just illegality, because the though the Sec. of State had
discretion to create prison rules, the substance of the decision was
under scrutiny. Court ruled it was flawed based on irrationality,
and was a disproportionate exercise of discretion on HRA grounds.
In such cases onous is on PB to show they had justification
for ingrinfing on common law protected constitutional
right, since there was no such justification Daly was
successful on Wednesbury grounds
In cases where decision is in pursuit of government policy there is less
scope for irrationality (ex parte Nottinghamshire) – towards deference
In R (Javed) we have Parl. Approval of white list and HR Art. 3 issue is
present, so what is the correct approach?
o Phillips – parliament did not debate position of Armhadi women so
due deference would be less, however HR issues are essentially
thresholds and standards so refers to treat designation of Pakistan
as technically’ unlawful on illegality no irrationality grounds,
although irrationality is relevant to legality question.
There are cases in that middle that invoke no constitutional/ human
rights issues or reasons to induce deference i.e. Wednesbury or Devon CC
v George
Criticisms (Daly)
Proportionality
De Freitas v Permanent Secretary of Ministry of Agriculture 1999 – the
restraint imposed on civil servants amounted to what was more than
necessary to pursue public interest, consequently claimant’s
constitutional right has been unlawfully infringed. Basis of
proportionality:
o Legislation important enough to justify limiting fundamenta right
o Measures designed to meet legislative objective are rationally
connected to it
o Mean used to impair right or freddom are no more than is
necessary to accomplice objective
Huang v Secretary of State for the Home Department 2007 (Working
Definition/ Test) – to what extent do decision makers have to consider
right to family life under Article 8, for claimants seeking asylum in UK
with close family ties whose application was rejected due to UK
government’s new policy on immigration. Appeal successful at HL
o De Freitas test still applies but also has a fair balance been struck
between rights of the individual and the public/ societal interests?
R (Begum) v Denbigh High School Governors 2006 – claimant = girl who
can’t wear jilhab contrary to Article 9 ECHR, due to school policy. School
successfully defend position at HL, policy (which they were legally
empowered to devise and enforce) was pursuing objectives of cohesion
and harmony – a lawful objective.
A and Others v Sercretary of State for Home Department 2004 (Belmarsh)
– Anti Terrorism Act = indefinite detention of terrorist suspects, enacted
following 9/11. HL consider was there an issue of national security,
making the measure necessary? Little Deference on this matter
o Only dealt with foreign suspects only so were not meeting
legislative purpose of counter-terrorism
o Those detained can leave UK, making indefinite detention for those
who remain as a means of countering same threat
disproportionate
o Court quash derogation in time of war order (required as Article 5
is only open to proportionality review under precise
circumstances) under s. 14 HRA and issue declaration of
incompatibility as it deprived Article 5 rights in a disproportionate
and discriminatory manner
o Hoffman: Not just a matter of proportionality, if it was all you do is
extend it to British nationals, just thought there was no such war
or threat making measure necessary so derogation should be
quashed
HRA 1998
Premise for JR review against PB provided by:
S(6) – Grounds
o (1) - PB can’t act in a way incompatible with convention right
o (2) - No liability if PB couldn’t have acted in a rights compatible
way or differently due to legislation
o (3) - Public authority = any person certain functions are of a public
nature – includes courts and tribunals not parliament
o (5) - Person is not a public authority only if nature of act is private
o (6) - Act can be an ommission
S (7) – Proceedings
o (1a) - If claimant believes PB has acted against authority under Act
he can bring proceeding in appropriate court or tribunal
o (1b) - Or rely on convention rights or rights concerned in any legal
proceeding but only if he is or would be a victim of unlawful act
(standing requirement in HRA claims)
S (8) – Remedies
o (1) - In case of Unlawful Act Court may grant such relief, or
remedy, or make such order, within its powers as it considers just
and appropriate
o (3) - No award of damages unless in regards to all circumstances
court is satisfied that I’s necessary to afford justification to
claimant
o (4) - If granting award court must account principles applied in
ECtHR relating to award of compensation under Art. 41 of
Convention
S (9) – Review of Judicial acts, e.g. of inferior courts
o Only where Court is amenable to JR or on usual basis of appeal
o Judicial act done in good faith but unlawfully under s(6)(1) it
cannot give rise to liability except where claimant has been
deprived unlawfully as provided by art. 5(5) ECHR
Not all rights are treated the same
o Qualified: May be lawfully infringed, i.e. article 8 - 11
Proportionality review adopted, because state can lawfully
(even under HRA) infringe on some of your rights
If state infringes on right they do so in a way
prescribed by law (ECtHR Malone v UK)
Infringement is necessary in pursuit of competing
interests or rights (second objection in Daley
o Derogable: May be lawfully suspended from having legal effect
o Torture (Art 3) – unqualified and non-derogable, so cannot be
lawfully infringed or suspended in times of war or public
emergency
Unqualified Rights
Not open to the State to justify an infringement upon a right with reference to
some other competing objective (as is the case with Articles 8-11)
However state can argue that individual whose rights are being infringed is not
capable of holding them, i.e. who is out of their jurisdiction, so claim in JR cannot
be brought against state
For
o Creates new grounds for review s(6)
o Provides for right to claim damages – usual JR remedies plus
damages
o Enhances courts role in scrutinizing substantive decision (not
‘merits’ review according to Steyn)
Against
o Of use only where convention rights has been engaged
o Only victims can claim, not other interested parties
o Rights qualified and/ or derogable
o Leave out social, economic, healthcare, housing, employment
o Conor Gearty – end of socialism, provides for legitimate
infringement of rights by State, also do we want enhanced role of
judges in determining relationship between individual and state?
However: even he has come round to HRA – ‘flawed but
progressive instrument for human endeavor, instead of
return to judicial conservatism of the 1980s’
Also… notable improvements to law as a result of HRA, i.e.
to police decisions, health service, sentencing, armed
forced, anti-terrorism policy, reach of coroner’s inquest
o or procedural grounds
Tribunals
Statutory Bodies of Administrative Redress, where other public body
decision can be appealed, not reviewed, may also have jurisdiction to
decide matter as primary decision maker
Powers are only those conferred by statute, if exceeds decision can be
quashed by Admin Court in JR
Often more able to question merits of decisions
Often look like courts in procedures, presence and formality
Often decision may be subject to appellate jurisdiction of another tribunal
Leggatt Report
Impact
After Investigation
Fairness
PB corresponds how they will act in the future, may be able to rely on this
if they change their mind
Covered by law of legitimate expectations – law may enforce a promise or
may permit a promise to be broken
Key Cases
Article 6 ECHR – civil rights – everyone entitled to a fair and public hearing within
reasonable time by independent and impartial tribunal established by law
Fair Hearing
Legitimate Expectations
Public body should act in a way legitimately expected of them
Does not necessarily mean that promise made, practice established, or
policy established will lead to its protection by the courts
Whether such expectation is enforced is a question of the courts
o R v IRC, ex parte MFK Underwriting – General advice and guidance
by IR on how financial products might be taxed in the future were
not binding, if they were it would be unfair.
o R v IRC ex parte Unilever 1996 – 20 years + Inland Revenue accept
late claims of tax relief, decide it will no longer accept such claims
without notice. Court rule claimant had good cause to expect
established practice to continue, as repetition gave rise to clear,
unambiguous and unqualified expectation of a certain treatment
(that late claims would be considered)
o R (Bibi) v Newham LBC 2002 – Local authority promise 18 month
accommodation because though they were obliged to do so by law,
turns out they weren’t. CA rule it would be unfair to allow council
to be bound by promise to provide accommodation when it is such
an erroneous understanding of the law. But council should bear in
mind they had established legitimate expectation in respect to
these families when considering allocation of available housing.
Reliant on promise to claimant’s detriment would be relevant in
assessing fairness one might attach to enforcing legitimate
expectation.
o R(Rashid) v Home Secretary 2005 – legitimate expectation that
Home Office would apply correct policy, though claimant not
aware of it at the time, because courts are aware immigrants and
asylum seekers might not have access to relevant and good legal
advice so requirement to apply policy correctly is acceptable to
court.
o Nadarajah v Home Secretary 2005 – Two policies for claims
involving asylum, home office use first to seek claimants removal
and claimant seeks to rely on second (family ties) in JR. Claim
failed – Did public body in frustrating expectations of claimant
abuse its power?
o R v Education Secretary, ex parte Begbie 2000 – JR on basis that
pre-election commitment gave rise to enforceable legitimate
expectation of an assisted place until 18. Claim rejected, No
enforceable legitimate expectation arises where compliance would
run counter to an Act of parliament (Labour abolished scheme),
and no pre-election promise can give rise to any legal effect,
whether in legitimate expectations or otherwise.
o Wheeler v Office of the Prime Minister 2008 – Government refuse
to offer referendum on ratification of Lisbon Treaty despite
promise to hold referendum before ratification on EU Constitution,
Wheelers claim in JR fails – it was ruled that decision to hold
referendum was a political judgement; the law on ratification did
not require a referendum and Lisbon Treaty was a different treaty
to the EU Constitution.
Standing
Applicant must have sufficient interest in matter to make application of JR
‘sufficient interest’ – broad terminology – leaving matter to the Courts
o R v IRC, ex parte National Federation of Self-Employed and Small
Businesses 1982 – claimant did not have sufficient interest in
decision to grant amnesty as they were no more than an interest
group or body of tax payers enquiring into tax affairs of others.
o R v Foreign Secretary, ex parte World Development Movement
1995 – Legal and factual context of challenge necessary in
determining standing, claimant had sufficient interest in matter
having regard to their work; absence of alternative challenger and
significance of issues; and the prominence of WDM in field of
foreign aid. Advances possibility that pressure groups, NGOs and
lobbyists might have sufficient interest in public decision and thus
standing to bring a claim.
o R v Inspectorate of Pollution, ex parte Greenpeace No. 2 1994 –
local residents, archaeologists and local MP form company for
purpose of seeking to protect theatre from development by listing
it as a monument. Ruled to have no standing – company was a
guise for members of the public who do not have sufficient
interest.
Amenability
Who may be judicially reviewed?
Some bodies may act without formal power, or may have little or no
formal legal identity, and yet be amenable to JR – must serve public law
functions
o R v Panel on Takeovers and Mergers, ex parte Datafin 1987 – Panel
dismiss Datafin’s complaint about company they were looking to
takeover, so seek JR. CA held panel was an amenable body:
performed governmental or public duties and part of
governmental framework for regulating city activity though it had
no statutory footing; had been referred to be statute and had
quasi-judicial powers of decision making and enforcement; its
functions points towards a public law body who must come under
scrutiny of the court in JR.
Regulation of commercial practice = public
o R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan
1993 – HC and CA agree club is not an amenable public body,
though it exercised control over regulation in the sport and
administered Rules of Racing which where binding on all who
participated in the sport. It was essentially a private matter for
private law only.
Regulation of Sport = private
S (6)(3)
o (a) A court or tribunal
o (b) any person certain of whose function are functions of a public
nature
o Does not include Parliament or person exercising functions in
connection with proceedings of Parliament
Aston Cantlow and Wilmcote v Wallbank 2003 – Was chuch parish a
public authority under s (6)(3)? CA argue it was so there was a breach to
right of property (Article 1) and unlawful discrimination in respect to
enjoyment of substantive right (Article 14), however HL allow Parishe’s
appeal and distinguish between core and hybrid public bodies:
o Core Public Bodies: ordinarily subject to JR – state or emanations
of the state –can’t bring cases under HRA§
o Hybrid Public bodies: sometimes public bodies, sometimes private
bodies – can bring cases under HRA
Poplar Housing v Donoghue 2001 – Poplar Housing was a public authority
under s(6)(3), having regard to the statutory responsibilities it exercised
on behalf the local authority and the closeness between local authority
and the housing authority (former created the latter)
R (Heather) v Leonard Cheshire Foundation 2002 – LC was not a
functional public authority: Article 8 ECHR obligation had not fully been
contracted out to it, so there was insufficient conferral of the public law
function to LC, if HRA obligations were contracted out to LC claimants
would be able to in contract for any Article 8 ECHR infringement.
o Unlike Poplar Housing LC was distinct so the local authority or
health authority remained the amenable policy body in the
absence of the contracting out of liabilities.
YL Birmingham CC 2007 – Southern cross was not a functional public
authority for purposes of s (6)(3) HRA: assistance provided by state was
to put claimant in comparable position to private residents, to decide
otherwise would be to give state-funded residents more rights than
private residents, i.e. public law rights in addition to contractual rights
o LH: function performed pursuant to statutory arrangements at
public expense and in public interest, so no doubt that parliament
intended that to be covered by section 6(3)
Consider: S (145) Health and Social Care Act 2008 – person who provides
accommodation with nursing or personal care in a care home under
arrangements with parliament under relevant statutory provisions is
taken to be exercising a function of a public nature in doing so.
o Reverses YL in context of publicly funded care, but YL still
applicable to general approach taken by courts on interpretation
of functional public authorities under s (6)(3)
R(Weaver) v London and Quadrant Housing 2009 – Claimant has most
rent paid for by local authority, landlord seeks possession of property
when rent falls into arrears. Claimant seeks to rely on convention rights
and CA held landlord was a functional public authority. In regards to:
public financing of accommodation; landlord worked in close harmony
with core public authority; landlord bound by regulatory framework for
social housing. Furthermore, parliament intended to confer public law
rights on claimant subject to decisions of hybrid public bodies, perhaps
situation would be different if landlord enforced his private law rights to
possession of property where rent was at market value.
Quashing Orders
Render decision null and void and of no legal effect (most common)
CPR 54.19
o Remit is up to decision maker
o Direct to reconsider matter or reach decision according to
judgement of the court
o Substitute its own decision for the decision to which claim relates
Prohibitory Orders
Injunctions
Declarations
Damages
Ordinary unavailable
Provided for by HRA s (8)(3)
Or where matter would ordinarily give rise to damage in “a cause of
action sound in damages” (R v Deputy Governor of Parkhurst Prison, ex
parte Hague)
o E.g. public body acts ultra vires and also commits a tort where
damages would be payable
Permission
CPR 54.4 – permission to proceed required in a claim for HR
Sought by written application, since 200 edition of CPR D public body can
make own written representations
Paper stage has survived challenge that it was incompatible with Article 6
ECHR (R (Ewing) v Dept for Constitutional Affairs 2006)
If refused claimant can ask for reconsideration in oral hearing (CPR
54.12(3))
Requirement for permission means no one has a ‘right’ to JR
Typically refused where there is no standing, where other remedies might
be preferable (e.g. in contract) or where there is no grounds for JR
Diplock defends permission stage in R v IRC, ex parte Federation of Self-
Emplyed and Small Businesses –function is to prevent waste of court time
by busybodies with misguided or trivial complaints of administrative
error
R v Home Secretary, ex parte Swati – claimant must have arguable case to
proceed from the permission stage
Time limits (54.5) – (1a) claim form must be filled promptly and (1b) not
later than 3 months after ground to make claim first arose
54.5(5) – if application made by SoS or local planning authority under
planning acts, claim form must be filled not later than 6 weeks after
grounds to make claim first arose