The citizen and the state

The area of law this question is concerned with is ‘judicial review'. Judicial review is defined as the sovereign means by which the high court in this country exercises supervision over the performance of central and local government and other public authorities (Bridges et. al. 1995. p1).

O'Reilly v Mackman signifies that judicial review must be sought when the claimant seeks to challenge the decision made by a public authority only, believing that the authority had acted illegitimately; unless one of the two limited exceptions apply:

  • A case comprising of both private and public law affairs (Roy v Kensington & Chelsea & Westminister FPC);

  • If the public law affair emerges as a defence to a criminal charge (Boddington v British Transport Police) or a civil action (Wandsworth LBC v Winder).

It is worth noting that judicial review is not an appeal and if the authority is not public, it would not be subject to judicial review (R v Disciplinary Committee of the Jockey Club, Ex parte Aga Khan). Therefore, it is important to determine whether Small Business Quality Assurance Agency (SBQAA) is a public authority for judicial review to be sought by Electrics4u. A public authority can be identified by the source (statutory, common law and delegated legislation) or the nature of power it exercises (R v Panel on Take-overs and Mergers, ex parte Datafin plc)

(Cumper, 2001. p.293-295).

SBQAA is a self-regulatory body and the source of power is non-statutory; therefore, it must be established that the nature of power exercised was governmental in nature. This could be achieved with the application of ‘but for' test as in the Datafin case. In determining that the panel was a public body the court looked at the notion that if this body did not exist, the government itself would almost inevitably have intervened to regulate the activity in question and would have certainly created such a body with the same functions (Le Sueur et. al. 1999. p339).

Furthermore, Simon Brown J in R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex p Wachmann emphasised that the body in question must be exercising some kind of regulatory and public function. This provided guidance when it held that a judgement emanating from a private authority would be reviewable, if that authority had the power to make judgements which affected the public (Elliot 2001. p189).

It is evident from the question, that customers rely on SQBAA's trademark to recognise standards of electrical businesses, such as Electrics4u. In that respect, SQBAA deals with certain members of public and carries out a public function. Therefore, it could be fair to assume that SQBAA is a public authority and its decision can be disputed by judicial review.

Before pursuing further with the claim for judicial review, Electrics4u would need to comply with the pre-action protocol. A letter would be sent to SQBAA which would identify the disputed issues and establish if litigation is avoidable. Also, under the Civil Procedure Rule 54(5), Electrics4u would be required to make the claim ‘promptly and within three months' of receiving the decision they intend to challenge. Additionally, under s31(3) of Senior Court Act 1981 it would be determined whether the claimant has a sufficient interest (locus standi) for judicial review. This could be established by relying on the test ‘standing as of right for those directly affected by the administrative action in question', as considered in R v IRC ex p National Federation of Self Employed and Small Businesses (Cumper, 2001. p.297).

Since SBQAA's decision has put Electrics4u reputation under threat, which would affect their business eventually, it would be fair to regard their sufficient interest in the claim.

Electrics4u claim for judicial review would now attribute on three possible grounds of “illegality”, “irrationality” and “procedural impropriety”, as categorised by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service (GCHQ case) (Bradley and Ewing, 1997. p770).

Illegality would constitute when a decision maker is acting ultra vires or where it acts in a manner totally different from that envisaged (A.G. v Fulham Corporation). Furthermore, illegality can also occur when unlawfully delegating powers (Vine v National Dock Board), making decisions based upon irrelevant considerations (Roberts v Hopwood), and using power for an improper purpose (Wheeler v Leicester City Council) (Cumper, 2001. p.300-303).

SQBAA does not exercises statutory powers and it cannot be determined from the question what powers SQBAA are envisaged with regarding their membership.

Therefore, it would be difficult to establish any illegality within the decision, and potentially there is no evidence to suggest the same. Also, it is unlikely that their decision to withdraw the quality seal, when concluding that a particular business did not comply with their standards would constitute illegality.

SQBAA's decision may still be eligible for review if their decision is deemed irrational. Lord Greene MR in Associated Picture Houses Ltd v Wednesbury Corporation laid a principle in order for this ground to stand- "if a decision on a matter is so unreasonable that no reasonable authority could have come to it." This is well applied in Hall & Co v Shoreham-by-Sea UDC and Backhouse v Lambeth LBC. Also, Lord Diplock in the GCHQ case regarded irrationality of a decision if it is “so outrageous in its defiance of logic...that no sensible person who had applied his mind...could have arrived at it."

Provided the facts in Electrics4u's case, to claim that SQBAA's decision was so irrational that no other reasonable authority would have concluded the same, would be difficult to substantiate, especially when the decision is supported by an explanation (“long list of complaints from dissatisfied customers”). The threshold of proof is considerably high as it would mean to challenge SQBAA's opinion.

Also, proportionality would be irrelevant in this scenario because it is not a right to hold a quality seal, but recognition for maintaining quality standards. Although, it might be suggested that Electrics4u were denied a ‘right to a fair trial' under Article 6 of European Convention on Human Rights.

In circumstances where neither an irrational or illegal decision has been made by SQBAA, the claim for judicial review may still stand if the decision was procedurally unfair. Lord Diplock in GCHQ case confirmed that ‘procedural impropriety was a failure to adhere procedural rules specified by the statute and/or breach of the rules of natural justice' (De Smith et. al. 1999. p413).

In failing to comply with laid procedures, such as consultation, public enquiry, serving a notice etc. may invalidate a decision (Agricultural, Horticultural and Forestry Training Board v Aylesbury Mushroom Company). The rules of natural justice are breached if firstly, there was a possibility of the decision being bias, as per the test laid by Lord Hope in Porter v Magill. Second rule illustrates to ‘hear both sides' (audi alteram partem). The aggrieved party is entitled to know and respond to allegations made against them (Cumper, 2001. p.309-311).

It can be determined from the question that Electrics4u were entitled to a notice in ‘writing of any complaints made against them, and informed of particular jobs to which the complaints were attached'. Also, this should have been further investigated by an SQBAA inspector for validation. Thus, it is potentially evident that SQBAA failed to comply with the rules of their membership.

Although, there is no indication of a bias decision by SQBAA, it is considerably clear that the rule of natural justice to ‘hear both sides' was violated. Electrics4u were not given a chance to present their side of argument or call witnesses. The whole affair seems hastily decided against Electrics4u and without proper evidence to support the decision made. The Cooper v Wandsworth Board of Works case would certainly add weight to their claim, where it was held that the aggrieved party must be allowed to present their case.

In conclusion, Electrics4u's claim does have the potential to be considered for judicial review. SQBAA is a public authority, and their decision against Electrics4u clearly indicates procedural impropriety in failing to adhere to procedural rules and the rule of natural justice ‘audi alteram partem'.

As a result of a possible successful claim on this ground, Electrics4 would expect to get their membership restored to the agency; therefore, a quashing order (certiorari) as a remedy. However, the discretionary nature of the remedies would not guarantee this anticipation (Yardley, 1986. p.119-120).

Bibliography

Primary Sources

Statutes

  1. Senior Court Act 1981

  2. Civil Procedure Rules

Directives

  1. European Convention on Human Rights

Case Law

  1. Agricultural, Horticultural and Forestry Training Board v Aylesbury Mushroom Company [1972] 1 WLR 190

  2. Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223

  3. Attorney-General v Fulham Corporation [1921] 1 Ch 440

  4. Backhouse v Lambeth K [1972] 116 SJ 802

  5. Boddington v British Transport Police [1999] 2 AC 143

  6. Cooper v Wandsworth Board of Works [1863] 143 ER 414

  7. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

  8. Hall & Co v Shoreham-by-Sea UDC [1964] 1 All ER 1

  9. O'Reilly v Mackman [1983] 2 AC 237

  10. Porter v Magill [2001] UKHL 67

  11. R [Beer (t/a Hammer Trout Farm)] v Hampshire Farmers' Markets Ltd. [2004] 1 WLR 233

  12. R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex p Wachmann [1992] 1 WLR 1036

  13. R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909

  14. R v IRC ex p National Federation of Self Employed and Small Businesses Ltd. [1981] 2 WLR 722

  15. R v Panel on Take-overs and Mergers, ex parte Datafin plc [1987] QB 815

  16. Ridge v Baldwin [1964] AC 40

  17. Roberts v Hopwood [1925] AC 578

  18. Roy v Kensington & Chelsea & Westminster FPC [1992] 1 AC 624

  19. Vine v National Dock Labour Board [1957] AC 488

  20. Wandsworth London Borough Council v Winder [l985] AC 461

  21. Wheeler v Leicester City Council [1985] AC 1054

Secondary Sources

Textbooks

  1. Bradley, A.W. and Ewing, K.D. (1997) Constitutional and Administrative Law. 12th Edition. Longman, United Kingdom.

  2. Bridges, L., Meszaros, G. And Sunkin, M. (1995) Judicial Review In Perspective. 2nd Edition. Cavendish Publishing. United Kingdom.

  3. Cumper, P. (2001) Constitutional & Administrative Law. 3rd Edition. Blackstone Press.

  4. De Smith, S.A., Woolf, L., Le Sueur, A. and Jowell, J. (1999) De Smith, Woolf & Jowell's Principles Of Judicial Review. 5th Edition. Sweet & Maxwell. London.

  5. Elliot, M. (2001) The Constitutional Foundations of Judicial Review. Hart Publishing. Oregon, USA.

  6. Le Sueur, A.P., Herberg, J.W. and English, R. (1999) Principles of Public Law. 2nd Edition. Cavendish Publishing. United Kingdom.

  7. Yardley, D.C.M. (1986) Principles of Administrative Law. 2nd Edition. Butterworths. London

Lecture Notes

  1. Judicial Review (The Citizen and the State). Teesside University.