Grounds of Judicial Review

The Board of Transport (BOD) is a public body due to the fact that its source of power is derived from statute ((fictitious) Transport Act). [1] Therefore, the validity of their decisions is challengeable under judicial review. [2] There are three possible grounds for bringing judicial review proceedings: 1) Illegality 2) irrationality and 3) procedural impropriety. [3] However, these three grounds are ‘are not watertight compartments’, [4] accordingly more than one ground might overlap in challenging certain facts.

A) The key ground concerned is illegality, it means that the decision maker (public body) must not act ultra vires (outside of their powers). [5] Unlawful delegation of power is a category of illegality. A public body must be strict with the powers granted by the legislation, it is unlawful for a body to which power has been delegated to by parliament cannot itself delegate that power to another body or person. [6] Thus, the BOD is not allowed to delegate its discretion to the HSE. Such an act may be held to be an act under dictation. [7] Acting under dictation is a branch of unlawful delegation of discretion. [8] This was explained in the case of Ellis v Dubowski, it made it clear that if a decision of a public body is dictated or influenced excessively by the instructions of an illicit superior body or person, this act will comprise as ultra vires. In Barnard v National Dock Labour Board [9] Lord Denning observed that:

“While an administrative function can often be delegated, a judicial function rarely can be. No judicial tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication.”

However, there is no definite evidence for this argument as it is not clear from the facts whether the HSE advised or instructed BOD on refusing the application. Consequently, if the consultation of the HSE is considered as a mere administrative function, the BOD activity would be lawful. On the other hand, if the HSE has a judicial rôle in the procedure of granting a licence, this will be recognised as an unauthorised delegation of discretionary power. [10]

B) A type of illegality is ‘Error of Fact’. Obviously, the Inspection Body (IB) did not recognise that that particular train was out of service. This would amount to a factual error in their decision. As an error of precedence it was held in R v Secretary of State for the Home Department, ex p Khawaja that all evidence should be brought to the attention of the court so that it could determine the legality of the issue. [11]

In addition, it was submitted in White & Collins v Minister of Health [12] that if the exercise of a decision maker’s power is conditional upon a particular set of facts, a clear mistake as to those facts will mean that the decision was made without jurisdiction and can be declared void by a reviewing court. [13] Ella could ask for a review of evidentiary findings to show that the train was out of service. According to Edwards v Bairstow, a decision could be set aside if it was based “on a view of the facts which could not reasonably be entertained”. [14] In Mahon v Air New Zealand Ltd, Lord Diplock assured that the decision maker, in the process of finding of fact, must based their judgment upon materials and reasoning that logically support the existence of facts consistent with the pronouncement in order to stand sensibly and not self-contradictory once it is revealed. [15]

Ella may argue that this error of the material fact resulted in a misunderstanding of the established and the relevant fact. The mistake to an existing fact that the train was out of service must be determined in order to achieve fairness in the procedure. [16] The relevant test is “whether a consideration has been omitted which, had account been taken of it, might have caused the decision maker to reach a different conclusion”. [17] Accordingly the BOD disregarded a relevant fact that they ought to have taken into account when they made their decision, which was held to be an unlawful exercise of power. [18] Based on this, the consideration of irrelevant factors had rendered the authorities decision to be unlawful. [19] Therefore, the BOD acted ultra vires.

C) The abuse of discretion is unlawful meaning that statutory powers could be used only for purposes set up by Parliament. [20] The proper purpose rule provides that the Government must use its discretionary powers in appropriation to the law. [21] Granting the licence on the basis that the company sells tickets to Labour voters does not comply with the proper purpose rule. Therefore, the BOD has no lawful excuse to grant a body who will not sell tickets to other political party members. In a similar case to the facts Porter v Magill, Lord Bingham provided that:

“A public power is not exercised lawfully if it is exercised not for a public purpose for which the power was conferred but in order to promote the electoral advantage of a political party.” [22]

Furthermore, the BOD must take into consideration the relevancy doctrine. Lord Slynn said that even if the Secretary of State acquires irrelevant matters in his decision or fails to take relevant facts to his judgment, the Court can quash his decision. [23] Clearly, selling tickets to Labour voters is not a materially relevant matter to the means of dealing with the application; the decision-makers must take into account only factors that are legally relevant. [24] It must be noted that the courts cannot interfere in every case where its reading and understanding of a particular statute differs from that of a public authority; Parliament may have intended to confer a degree of administrative autonomy with respect to matters of construction. [25] As a result, the BOD have fettered their discretionary powers under the 2010 Act and have neither upheld the proper purpose rule, nor the relevancy doctrine that possibly amount to a challengeable ground of the licence for the court which will invalidate it.

D) This decision could be challenged on two grounds. Firstly, irrationality, it could be argued that it is irrational or unreasonable to reject the application on musical basis. Lord Green laid down the test of irrationality:

“If a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere.” [26]

Secondly, proportionality could apply because a fundamental right is engaged under Art.8. Kylie may make an additional complaint under Art.8 since the BOD is a public authority within s.6(2) of the Human Rights Act 1998 (HRA). [27] In addition, under s.6(1) of HRA a public authority is not allowed to act in a way which is incompatible with any European Convention on Human Rights (ECHR). [28] However, in the case of Smith and Grady v UK (1999) [29] the European Court of Human Rights (ECtHR) held that the traditional ‘Wednesbury Principles’ that are applied in judicial review cases were, even in its strongest, ‘anxious scrutiny’ manifestation was inadequate. [30]

The BOD may argue that Art.8(2) imply that any interference with this article by a public authority is deemed unlawful unless it has been done in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or protection of health or morals. [31] The BOD justification of irritation does not cross-reference with the exceptions.

In the De Freitas case, a three-stage test was adopted for proportionality: [32]

Is the objective sufficiently important to justify limiting a fundamental right?

Is the measure designed to meet the objective rationally connected to it?

Are the means used to impair the right or freedom no more than is necessary to accomplish the objective?

The decision is, likely, unreasonable because the BOD came to a conclusion so unreasonable that no reasonable public body could ever have come to it. Although fears over public safety could amount to the immediate revocation or rejection of the licence, [33] the BOD must give their reason and evidence why such music is deemed irritating. [34] Kylie’s obsession is part of her private life which the BOD has no reason to interfere with. It is hardly unlikely that the limitation of Art.8 is lawful as the test seems not to be satisfied. Based on the assumptions, the measures taken against Kylie appear to be disproportionate and unreasonable.

Question 2: Advise Joe what, if any, grounds he may have for seeking judicial review of the decisions of the NBBC and the IFF

Joe has been banned from boxing. As the person directly affected by the decision, he has relevant locus standi. [35] He must apply to the Administrative Court for permission for judicial review proceeding within three months of the IFF’s decision. [36]

It appears that Joe will have more than one justifiable ground that gives rise to a claim in judicial review. Firstly, illegality can apply in terms that the NBBC confirmed the referee decision. This action could amount to unlawful delegation of power, the NBBC do not have the right to delegate its statutory powers to the referee. It is obvious that the referee decision had a great influence on the NBBC which allow his decision to be dictated. As the rôle of the referee is recognised as a judicial rôle, more than administrative, in determining the disqualification of Joe; NBBC’s action would be illegal, and even if his rôle was administrative, it can be challenged. [37]

Moreover, error of fact is applicable as Joe states that his blow was legitimate. The NBBC failed to obtain the video evidence [38] which is considered as a failure in taking a relevant fact on consideration. Joe may request a review of evidentiary findings to demonstrate that that blow was legitimate. If the NBBC’s decision was based on erroneous facts, it could be set aside by the court. [39] Otherwise it is a duty on the NBBC to show that their decision was supported by true facts based on materials consistent with the judgment. [40] Another type of error of fact that could be argued is consideration of an irrelevant fact as the NBBC had taken the illegitimate blow into account when forming their decision. [41]

Joe may argue that there has been a breach of the rules of natural justice. Under these principles, a general duty is assumed for decision-makers to act fairly. [42] Joe must have been given an opportunity to state his case before the decision is made about the licence and the prize. [43] The right to a fair hearing is considered to be a core principle of natural justice. In this case Joe was granted an oral hearing after the decision had been made and no legal representation was granted.

Joe was refused permission to be accompanied with a legal adviser. In Pett v Greyhound Racing Association, Lord Denning favoured this right having regard to the difficulties that the accused or applicant has in the process of defending himself or asserting his view. [44] Although, legal representation is not an absolute right, the public body must consider whether to allow legal representation or not in each case, and that unreasonable refusal could invalidate the proceedings. [45] Moreover, there are a number of factors in favour of legal representation such as seriousness of charge and potential penalty. [46] In Joe’s case the seriousness standard seems to be met as depriving him from both the prize and his licence and this is considered as a misfortune to his career. Yet, it may be difficult to argue that Joe should have been legally represented at the hearing, nevertheless a breach of natural justice can certainly be demonstrated by the unreasonable refusal to permit him to seek legal advice. it must be noted that in the presence of an appeal process in the form of full rehearing the court may accept is any failure of consideration in the initial proceedings. [47] In this case the IFF gave Joe the opportunity to be legally represented.

The NBBC have a duty to hear all relevant evidence from Joe. [48] It could be argued that by denying his video request without any justification is a breach of natural justice. The right to reasons for the decision is fundamentally significant in administrative law principles in order to uphold fairness. Lord Denning regards reasons to be “one of the fundamentals of good administration”. [49] There is no absolute statutory duty for giving reasons, as expressed in McInnes v Onslw-Fane, Sir Robert Megarry declared that there was no general obligation to give reasons for a decision. [50] Nonetheless, in R v Civil Service Appeal Board, ex p Cunningham, it was held that there is no justification to reserve reasons where no harm is expected and it would not be harmful to the public interest. [51] In addition, Lord Mustill declares that refusal to give reasons is unfair and it is not in the public interest. [52] Thus, the NBBC has a duty to examine all pertinent evidence and give reasons for their decision. This is a breach of natural justice as there is no rationale basis on why it should be denied when the decision is simply aberrant and appear enough to invalidate their decision. [53] According to the fact even the IFF failed to give reasoning affirming the NBBC’s decision, this would amount to a breach of natural justice rules.

Furthermore, the discovery that the chairman of NBBC is a good friend of Larry is suspicious. The rule against bias establishes that the presence of one biased person will render the NBBC’s decision invalid. [54] Actual bias leads to automatic disqualification if the decision maker has any direct personal interest, [55] or had made his decision before hearing the case, [56] or has direct association with a party in the case. [57] Peterson would face the last two because he had also vowed to stop at nothing to ensure that Larry gets to the top as well as being Larry’s good friend.

The second type of bias is apparent bias. The HL held in R v Gough (1993) [58] that the two stage test previously developed of ‘reasonable suspicion’ [59] and ‘real likelihood’ of bias, [60] which could be merged into one test. The HL held that the test should be a real danger of bias from a body member that have unfairly favoured or disfavoured that applicant or defendant party in question. [61] This could be satisfied by asking if a fair-minded and informed observer, with regard to all circumstances of the case, would conclude that there was a real possibility of bias in the process. [62] This suggests that Peterson was biased when reaching this decision. However, as the IFF were the appeal body nothing indicates that they have any relation to the prejudged decision against Joe.

The final substantive issue is the non-disclosure of the other boxer’s detailed allegations to Joe before pronouncing his hearing. It is necessary that Joe is informed of the matter of concern in order to offer an effective defence. He has a right to know what evidence is opposing him in the case as a minimum standard [63] to satisfy the right of hearing. [64] Lord Mustill submitted that “Fairness will very often require … that he (the accused) is informed of the gist of the case which he has to answer”. [65] Although, there is a limitation over this rule as the public authority may not necessarily disclose every detail of the allegations; only the sufficiency of the indication of the objection must be provided. [66] The NBBC had violated its obligation toward Joe by not disclosing any information to him in order to enable to defend himself. This amounted to a breach of the rule of natural justice. It must be noted that he was notified of the allegation in the IFF appeal.

It is, therefore, likely that Joe will be able to seek judicial review based on the grounds already discussed above. It is not clear if the court will deem the decision of the IFF in breach of natural justice as no reasons were adjoined with their decision and also by not examining the video evidence. However, the most appropriate remedy would be quashing the NBBC and IFF decision and allowing Joe to regain his licence. Besides, he should be awarded his prize and any other remedies are at the discretion of the court. [67]

Question 3: Advise Water Assets are Valuable for the Environment (WAVE) whether they may challenge the decisions of either the London Water Authority (LWA) or Panel of Water Management (PWM) by way of judicial review

Judicial review can only be sought to challenge the decisions made by a public authority, [68] it is stated that LWA is a privatised water company besides that the PWM are a self-regulatory organisation. Firstly, it must be established that the LWA and PWM are considered as public bodies. Upon application of the functions test, [69] both LWA and PWM would be considered to be public authorities as they contain a public element. Also, their functions are governmental mechanism in their nature [70] and based on statutory underpinning. [71] The ‘But for’ [72] test provides that ‘but for’ LWA and PWM existence, the government or parliament would employ another body to perform their function. [73] The WAVE would likely succeed in establishing that LWA and PWM are both public bodies.

Secondly, the provisions contained within s.31(3) of the Supreme Court Act 1981 provides that only a person with the relevant locus standi can challenge a public authority decision by way of judicial review. [74] It is much easier for an individual to satisfy the standing then a pressure group. WAVE has to have a ‘sufficient interest’ to bring judicial review proceeding against LWA. In ex parte Rose Theatre Trust Co [75] it was held that trust had no standing to make an application for judicial review as none of its members had individual standing. In this case WAVE would be representing several low income families who will be directly affected by the decisions of LWA and PWM so it is likely that this obstacle can be overcome.

The Queens Bench Division considered the locus standi of pressure groups in ex parte Greenpeace Ltd. They held that given the fact that Greenpeace is an eminently respectable organisation with a genuine interest in the issues raised by the application, combined with its national and international membership; it did have grounds for making a judicial review application. [76] WAVE would need to demonstrate that they also meet these requirements. Although, it may not be necessary to be a powerful lobbying body or eminent but they must show that they have a genuine interest in making the application. The court also held in this case that Greenpeace were in a position to mount a focused, relevant and well argued challenge on behalf of those who might not otherwise have had an effective way to bring the issues before the court. This is more then likely the case for WAVE as well as they are representing low income families who do not have the necessary funds, knowledge or expertise to make the application on their own behalf.

The courts have taken a fairly liberal approach to determining who has the relevant locus standi to bring about a judicial review application, for example in ex parte World Development Movement Ltd the court took into account several factors when making their decision. This included the importance of vindicating the Rule of Law, the importance of the issues raised, the likely absence of any other responsible challenger, and the national and international expertise of the applicants coupled with their interest in promoting and protecting aid to underdeveloped countries. [77] WAVE should be able to demonstrate the importance of the issues raised on two separate arguments. Firstly, the critical waste of water and secondly the additional financial burden that this would place on low income families who may struggle to pay the bills.

In the case of R (Bulger) v S/S for the Home Department, the court recognised the liberal approach that has been taken in these cases and Rose LJ observed that:

“The threshold for standing in judicial review has generally been set by the courts at a low level. This, as it seems to me, is because of the importance in public law that someone should be able to call decision makers to account, lest the rule of law break down and private rights be denied by public bodies.” [78]

It would seem likely that WAVE will satisfy the locus standi, as long as they are able to demonstrate that they have a genuine interest in the bringing of the application and that it would not be possible to be brought otherwise. As observed by Rose LJ the importance of being able to seek to challenge the decision of a public authority is considered very important in the upholding of the Rule of Law.

Another relevant issue is the effect of the ouster clause under s.5 of the 2001 Act, which attempt to exclude judicial review. Generally, such clauses would not deprive the judiciary form exercising its supervisory rôle over public bodies. [79] For example, the House of Lords in Anisminic v FCC indicated that an unfair ouster clause will not limit the courts powers in reviewing the case. Lord Reid stated:

“No case has been cited in which any other form of words limiting the jurisdiction of the court has been held to protect a nullity”. [80]

Additionally, in the Fayed [81] case, a statutory provision provided that a decision of the Home Secretary “shall not be subject to appeal to, or review in any court”. Nonetheless, the case has been taken into courts and reviewed the decision of the Home Secretary. Thus, WAVE would have an opportunity to overcome this clause basing their arguments on the unfairness of the clause supported by those cases

In accordance to the HRA, s.6(1) provides that “it is unlawful for public authority to act in a way which is incompatible with a Convention right”. [82] Also, by virtue of s.6(3)(b) a public body includes any body having a public nature function. [83] It could be argued that s.5 is incompatible with the rights and freedoms protected by the ECHR. In particular the right to an effective remedy which is provided for under Article 13 of the ECHR. However, this argument is not possible because the HRA does