Judicial Review Essay
BC College, a local state secondary school. The school decides to institute a policy of random drug testing. On a positive test, there is provision for a hearing before the headmaster and three other teachers. It is provided that a positive test will (other than in wholly exceptional circumstances) result in a suspension for a minimum of one week up to a maximum penalty (depending on what drug is found and in what circumstances, particularly any indications of dealing in drugs) of exclusion from the school for a first positive test. For a second positive test, an automatic permanent exclusion is provided.
X is expelled because of a second positive test for cannabis which he says can be explained because the second test was shortly after the first and the drug could have remained in his system. A medical report provided by X suggests this is possible but the panel refused to consider it. X argues
- (1) that it was unfair to exclude the report from consideration and
- (2) that the policy of automatic expulsion after a second positive test is irrational and/or disproportionate.
Y is suspended for a term after a positive test for cannabis and alleges that one of the teachers on the panel is biased against her because she made a complaint about his behaviour towards her (the complaint was dismissed), another because he is a well known campaigner with a local anti-drugs group, and a third fell asleep during the hearing and did not listen to her explanation why she should not be suspended for a full term so close to her GCSEs.
Z is expelled after testing positive for cocaine. He objects and says the panel, wrongly, also considered
- (1) his grades, which are not good, and
- (2) the fact that expelling him allows the school to close one specialist course, which is to be discontinued because of lack of students, several terms sooner than planned and thus save money by making the specialist teacher redundant.
Advise X, Y and Z whether they might successfully challenge these decisions through judicial review, with particular reference to the arguments indicated above. Would it make any difference in any or all of these three cases of X, Y, and Z if there was an appeal to a Local Authority board against the decision of the school panel?
Answer with reference to general principles of administrative law and relevant, illustrative cases.
The present factual scenario calls attention to the laws surrounding an application for judicial review. Judicial review enables the courts to review the decisions of public bodies such as government ministers, lower courts and other administrative bodies to ensure that that they are not acting outside of their powers.
The grounds on which the courts may intervene with a decision made by a public body were put into the following categories by Lord Diplock in the landmark case of CCSU v The Minister for the Civil Service: illegality, irrationality and procedural impropriety.
As regards the first of these categories, Lord Diplock had the following to say:
By illegality as a ground for judicial review I mean that the decision make must understand correctly the law that regulates his decision making power and must give effect to it.
This normally refers to situations where the power exercised under statute or the royal prerogative is exercised by someone who has no authority to make the decision. This normally occurs when the persons with the necessary power delegate to someone without it. In the present scenario it is doubtful that the college had authority to expel the students. On the other hand it might not have the powers necessary to adopt the relevant policies. Moreover, the college may be found to have illegally fettered their discretion. They are acting ultra vires, or beyond their powers, if in the exercise of its discretion they adopt a policy which has the result of ensuring that they would not truly exercise their discretion at all. This occurred in Kynoch, where it was held that an authority could not adopt a rigid policy which had the effect of ensuring that applications of a certain category would invariably be refused. In British Oxygen Co v Board of Trade, however, the House of Lords upheld the Board of Trade's right to adopt a policy provided that it did not preclude the board from considering individual cases. Lord Reid stated that:
There are two general grounds on which the exercise of an unqualified discretion can be attacked. It must not be exercised in bad faith and it must not be so unreasonably exercised as to show that there cannot have been any real or genuine exercise of the discretion. But, apart from that, if the minister thinks that policy or good administration requires the operation of some limiting rule, I can find nothing to stop him what the authority must not do is refuse to listen at all.
It is submitted that in the present circumstances, X's argument that the policy of automatic expulsion after a second positive test is irrational and/or disproportionate might be viewed upon favourably by the courts. Firstly, X could argue that the policy is illegal in that the college have illegally fettered their discretion as in the cases of a second positive test the college refuses to listen to the students at all. X, however, also argues that the policy is irrational and/or disproportionate. Of course, these divisions are to a certain extent artificial, as what is irrational is in many if not in most cases illegal and vice versa.
Of irrationality, Lord Diplock stated that:
It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible persons who had applied his mind to the question to be decided could have arrived at it.
Irrationality includes such grounds as unreasonableness, irrelevant considerations and improper motives. It is clear that these are not discrete categories, and there is a lot of overlap not only between these three grounds but also between the grounds of illegality, irrationality and procedural impropriety. Nevertheless it is submitted that X's argument amounts to a claim that the adoption of the second policy - that anyone with a second positive test result will be automatically expelled - is unreasonable. What X must therefore show is not that the decision reached was unreasonable, but that it was so unreasonable that it went beyond the range of responses open to a reasonable decision maker, thereby making it illegal. On the present facts it is hard to advise X with any certainty as to whether this argument would carry any weight in court. Considering, however, the cases of Kynoch and British Oxygen, it certainly seems that X's argument has its precedents.
As to the disproportionality argument, Lord Diplock himself stated that the categories of illegality, irrationality and procedural impropriety are not exhaustive. He foresaw further development on a case by case basis and suggested, in particular, that the principle of proportionality, recognised in EU, could be incorporated into UK law. Moreover, since the Human Rights Act 1998 incorporated the Convention Rights into our legal system, the element of proportionality has become part of our system. Under Section 6, courts and other public authorities are under a duty not to violate Convention rights and must therefore act proportionally. On the evidence, however, it is again impossible to advise X with any certainty as to whether the college's adoption of the policy in question is proportionate to their aims or the aims of the legislation that lies behind it. It is interesting to note that in the case of R v Chief Constable of Sussex ex parte International Trader's Ferry Ltd, Lord Took considered proportionality and the test for unreasonableness, and stated that the European concepts of proportionality and margin of appreciation produce the same result as what are commonly called Wednesbury principles, and went on to re-define the reasonableness test to the more simple formula of whether the decision in question was one which a reasonable authority could reach.
X also argued that it was unfair to exclude the report from consideration. This argument, of course, overlaps with the argument raised above regarding the illegal fettering of discretion and the college's refusal to listen to X's case at all. Moreover, the decision of the college may come under attack on the ground of irrelevant considerations, which is itself a sub category within the ground of irrationality. In the case of Associated Provincial Picture Houses Ltd v Wednesbury Corp it was held that if a body acting under statutory authority takes an irrelevant consideration into account or ignores a relevant consideration then the resultant decision will be open to challenge. Further, in Padfield, Lord Upjohn stated that such unlawful behaviour might be constituted by:
- an outright refusal to consider the relevant matter;
- a misdirection on a point of law;
- taking into account some wholly irrelevant or extraneous consideration;
- wholly omitting to take into account a relevant consideration.
It is submitted that refusing to take into account the fact that the second test might be yielding the same results as the first in that there were still some remains of the drug in X's system amounts to unlawful behaviour on the part of the college and that as a result X might have grounds on which to argue that his claim for judicial review should be accepted.
Similarly, Z could argue that the panel wrongfully took into account irrelevant considerations such as the fact that his grades were not good and the fact that expelling him allows the school to close one specialist course, which is to be discontinued because of lack of students, several terms sooner than planned and thus save money by making the specialist teacher redundant. This clearly falls into Lord Upjohn's third category, in that these are wholly irrelevant and extraneous considerations. However, the mere fact that irrelevant considerations have been taken into account does not mean that the decision will be automatically quashed. In Westminster Council it was held that where the decision is based on two quite separate considerations, one which is relevant and one which the authority is not entitled to take into account, the court must decide which was the dominant consideration. If this is irrelevant then the authority's action will be reviewable. In the present case I would advise Z that he has a strong case for judicial review on the grounds that irrelevant factors were taken into account by the panel when making its decision.
Y's arguments call attention to the ground for judicial review described as procedural impropriety. Although the ground of procedural impropriety covers a wide range of factors which might make the decision reached by the public body unlawful. In the present case, however, Y is alleging bias.
The rule against bias - nemo iudex in causa sua - basically means that no one should be judge in his own cause. The rule against bias is in fact so strict that it is not necessary to show that bias existed; the merest appearance or possibility of bias will suffice. In other words: Justice should not only be done but should manifestly and undoubtedly be seen to be done. The suspicion must, however, be a reasonable one, and both a financial as well as personal interest in a case will disqualify a member of a tribunal.
As regards Y's allegations that the second teacher was biased because he is a well known local campaigner with an anti drugs group, an analogy can be found in the Pinochet case. Here, extradition proceedings against the former Chilean Head of State were challenged on the basis that one of the Law Lords, Lord Hoffman, had links with Amnesty International, the charitable pressure group which works on behalf of political prisoners around the world, which had been allowed to present evidence in the case. It was held that even though there was no actual bias in the case, the rule against bias was so strict that there were concerns that the public perception would be that Lord Hoffman was biased. As a result the proceedings were abandoned and had to be reheard. On the basis of this, then, Y might argue that the case against her should be reheard and the original decision quashed.
After some controversy, the House of Lords have held that the test for bias is the 'real likelihood test'. This holds that the question to be asked is whether there was a 'real danger' that the trial may not have been fair as a result of bias. The House of Lords defined this as a real likelihood in the sense of a real possibility of bias on the part of a member of the tribunal. Therefore, as regards Y's claim that one of the teachers on the panel is biased because Y made a complaint against her, Y could no doubt argue that there is a real possibility that the trial was unfair due to bias. However, on the evidence it is impossible to advise Y with any certainty as to the manner in which the court would receive this argument. Perhaps teachers are subject to complaints by students all the time and are seen as being above such complaints on a personal level. It is submitted, nevertheless, that Y could have a strong case in alleging that there is a real possibility of bias in such a case.
As regards Y's allegations that the third teacher fell asleep during the hearing and did not listen to her explanation as to why she should not be suspended for a full term so close to her GCSEs, Y could claim that her right to a fair hearing has been breached. This is of course another ground for judicial review, falling under the main category of procedural impropriety.
It is a fundamental requirement of justice that when a person's interests are affected by a judicial or administrative decision, he/she has the opportunity to know and to understand any allegations made as well as to make representations to the decision maker in response to the allegations. If it is true that one of the teachers fell asleep during Y's hearing, then Y has in effect not been allowed to make representations in response to the allegations and as a result her fundamental right to a fair hearing has been breached. This is a ground for judicial review. In the case of Cooper, therefore, the courts found that demolishing the building built by Cooper without allowing him the right to put forward his case was unlawful even though there were no positive words in the statute requiring the party to be heard. This is because this is seen as a right of natural justice. In the present case I would advise Y that prima facie she has certainly a strong case against the college on the grounds that one of the teachers was asleep during her hearing thereby breaching her right to have her case heard.
As to the final question raised in the present scenario, I would advise X, Y and Z that it makes no difference whether or not there was an appeal to the local authority to review the decision of the panel. This is because the right to invoke the inherent supervisory jurisdiction of the High Court through the judicial review route exists in addition to any statutory rights of appeal.
In conclusion I would advise the students that even though on the evidence it is hard to advise with any certainty, on the surface it seems that all the students may have a claim in judicial review against the decisions of the college.
- CCSU v The Minister for the Civil Service  AC 374
- R v Port of London Authority ex parte Kynoch  1 KB 176
- British Oxygen Co v Board of Trade  AC 610
- Associated Provincial Picture Houses Ltd v Wednesbury Corp 1 KB 223
- Padfield v Minister of Agriculture Fisheries and Food  AC 997
- R v Inner London Education Authority ex parte West Minster City Council  1 WLR 28
- Cooper v Wandsworth Board of Works (1893) 14 CB (NS) 180
- Barnett, H, Constitutional and Administrative Law (4th edn), London, Cavendish: 2002.