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Published: Fri, 02 Feb 2018
Action based on judicial review
Outline The Fundamental Essentials Of An Action Based On Judicial Review.
Judicial review can also be expressed as a challenge to the public body in ways judgements are reached, as (Taylor, 2008) comments that ‘Judicial review allows the individual to directly challenge at least some of the decision-making powers of the state’. This simply means the public body has the right to make similar decisions as previous cases. Unless they do not carry it out in a legal manner and under the correct acts of law.
Judicial review is undertaken for only a variety of decisions i.e. verdicts made by a local authority and their responsibility to grant a range of benefits for an individual’s well being, and also to provide extra education for children with learning problems or some kind of learning disability.
Illegality, Irrationality And Procedural Impropriety
There are three key types of public law which are illegality, irrationality and procedural impropriety as said by (Diplock, 2008). The process of judicial review can be bought up with one or more types of public law and also more than one of the three key types of public law are relevant with judicial review.
The first type of public law is illegality, which gives possible reasons that the public body that reached the judgement performs and takes action against the law. This is best seen in terms of a decision-maker who makes a final choice and the outcome of the choice can possibly be an action or even a judgment of that choice, and also the public body who has acted beyond the authority.
A decision-maker should have a clear understanding of the law in which it is controlled to follow the rules and principles of law. This decision is mainly said to be called ultra vires which basically means ‘beyond powers’.
Illegality can be grasped easily if you judge it as in terms of ‘absence of authority’. This basically means a decision-maker is given powers to engage them in to making individual decisions but only beyond a certain area, if the decision-maker moves out of the given area, then the outcome may be known as ultra vires.
A key example of ultra vires in the case of (Attorney General v. Fulham Corporation, 1921), the legal entity whom had statutory power to provide wash houses for the poor to prevent the poor from getting diseases. The legal entity opened up washing facilities but also charged money from the poor for them to clean their clothes, meaning that the legal entity had acted outside their authority which was clearly not within their power and therefore was an ultra vires.
Decisions made by decision-makers can be known as ultra vires if they are made using different aspects which are irrelevant, or even if the decision-maker does not take into account the relevant aspects. A key example of an irrelevant circumstance is the case of (R v. Port Talbot Borough Council, ex parte Jones, 1988), a member of the council was granted occupancy of the council house at a higher position in the waiting list, the council suggested the member of the council needed a house near the borough so they can carry their work out for the council and also can represent the council. This was held as an irrelevant decision and so was known as ultra vires, the council is expected to leave the decisions of houses on the amount of need for a house and on the waiting list.
Another key similarity is if the decision-making powers are given to some distinct person, then they would not have the authority to transfer their decision-making powers to some other person. These circumstances are known as ultra vires when a person makes decisions and carries them out without the authority to do so.
A key example of an unauthorised transfer of powers to a specific body is the case of (Barnard v. National Dock Labour Board, 1953), on which the national board had the ability to develop their members by providing training and induction’s for them but instead of that they transferred the abilities to port managers. This was held that the transfer of abilities was not considered by the law and because of this the developing abilities given to the port managers was known as ultra vires.
The second type of public law is irrationality, which is best expressed as ‘unreasonableness’. This is outlined with an agreement of decisions by (Associated Provinial Picture Houses Ltd v. Wednesday Corporation, 1948). Which is a case of rationality of a decision; the local authority had the ability to give authorised permission for cinemas to open on Sunday’s too. The authority had to follow whatever circumstances were enforced on them. If they considered the application, the authority were determined not to open cinema’s for anyone under the age of 15 but the company called this decision to be irrational. The decision made by the authority was not held to be unreasonable, because if it was unreasonable the authority wouldn’t have thought of it in the first place. The authority came to the decision because they thought it would have been reasonable to a sufficient extent.
There is still some chance for a decision to be unreasonable relying on the individual circumstances. A key example of unreasonableness is the case of (Hall and Co Ltd v. Shoreham-by-Sea Urban Development Corporation, 1964), Hall & Co were given permission to prepare and expand their land but the condition given to them was to cover their own expenses, and to provide a road for the owners within the near land and for other general community. This circumstance was held to be unreasonable, because the load from the general community got passed on to the individual for building the road.
A similar area of irrationality is the growing of ‘proportionality’ which is considered in judicial review, i.e. if the action aimed was nothing more than being absolutely sure to direct a question at someone about the problem. This idea is from the European law and it happens to be fairly large in association to the performance of the EU provisions, and the subject of human rights under the principle of human rights.
This principle is discussed with a key case of (R v. Brent LBC, ex p Assegai, Times, 18 June 1987); a banned school governor was stopped from entering the school premises, which was way out of proportion for what he was suspected for.
The third type of public law is procedural impropriety, which has an advantage of being the most easiest to acknowledge. The name tells it all it actually means ‘has the procedure been followed in the right way?’ If it has not been followed then the decision would be questioned. This is done to ensure that all decision-making bodies follow all the steps to reach their decisions. When the right paths are not followed, this does not mean the decision is wrong or misleading, it just means there may have been a different result. This is just to keep up with the principle of judicial review, which looks at the ways a decision has been made.
An example of the nature of procedural propriety is the case of (Vale of Glamorgan Borough Council v. Palmer and Bowles, Crim LR, 1983), in which the council were given authority to issue tree maintenance orders to save a certain number of trees within the area. The orders given out needed a plan to categorize an appropriate tree, so they can have a public examination of the available tree. If failed to follow the whole process of inspecting the trees this would mean the orders given out are unacceptable.
Another area of procedural impropriety has another ground for judicial review which is known as ‘natural justice’ i.e. decisions that go against the basic values of fairness. This consists of the rule conflicting bias and the entitlement to a fair hearing. An example of financial biases is the case of (Dimes v. Grand Junction Canal, 1852), in which the Lord Chancellor heard an appeal about the Grand Junction Canal Company and he was in their favour. At the end it came to, the chancellor had invested shares in the company so this came on as bias so this decision was called unacceptable. It disqualified the Chancellor from having a say on the cause therefore the decision was set aside.
Another example on the entitlement of a fair hearing was the case of (Ridge v. Baldwin, 1964), in which Ridge was the chief constable of Brighton and was claimed for fraud and charged for corruption. He was put in to prison but the judge whom was there for his trial was highly judgemental of his leadership. The judge’s comments allowed Ridge to dismiss without a hearing or even without presenting his case. At the end it came to, the entitlement of a fair hearing which needed a person to be given the chance to be able to present their case in court.
There is also a question raised, if the decision-maker is needed to state of how he came to the decision and what are the reasons behind it. Even though there is no law stating that reasons must be given for taking the decision, generally the only thing to do in common law is to explain why the decisions that are reached are made.
An example of the usefulness to provide reasons for decisions is the case of (R v. Secretary of State for the Home Department, ex parte Doody, 1994), in which claimants were life sentence prisoners whose claims for releasing from prison on parole was not accepted and that too without any reasons given. They wanted to know the reason why their claims were not accepted. It was held that it is not a general duty to tell prisoners why they’re not been given parole, even though it is a public concern in such severe matters.
In many cases decision-makers would like not to be challenged by judicial review while making decisions. Even though as a constitutional defendant this is not seen to be advantageous. The best way of removing the likelihood of judicial review is to remove such authority in the legislative act, which transfers the decision-making abilities by the means of achieving an ‘outer clause’.
Although the legislative act wants to place restrictions on judicial review, still courts generally do well in accepting a certain way which allows challenges to carry on.
Discuss the legal issues that arise from the following facts based on your understanding of how the decisions of public bodies can be challenged.
This case shows a girl X, 12 years of age being sexually assaulted twice within two years. First X was assaulted by a teacher at the age of 11 and the second time she got assaulted by an electrician known to be as a good character. This may mean the girls gone through a lot in the past two years, she’s been vulnerable to sexual abuse and she may need services to help her. The local authority failed to keep the girl safe and to encourage her as needed to do by Children’s Act 2004 section 11.
The decision was made by a public body which means that judicial review can be applied to this case. The ground that can be applied to this case, is the first ground known as ‘illegality’. This may mean the police who made the decision of releasing Mr Z have acted against the law, which means the police have acted outside their authority. The decision is said to be called ultra vires. This is because the police are given the authority to provide evidence against Mr Z in court, but they failed to do so because of the lack of evidence. This may mean the police did not inspect all the evidence as best as they can so Mr Z was released.
The police may even have ignored the relevant factors and took the irrelevant factors in consideration this is called ultra vires again. As the police may have took the important factors to be not so important, and just characterised Mr Z as a good character and released him, even though they knew what the girl X went through during her hard and emotional times.
The third ground ‘Procedural impropriety’ can be applied to this case too, as the case may have not followed the correct procedures. Procedural impropriety is used so the police can follow the correct ways to reach their decision, which they had not done by providing a minimal amount of evidence. This does not mean if the police did follow the wrong procedures, their decision of releasing Mr Z is wrong. It’s just the way the police made the decision, which should be by following the main principles of judicial review.
Also natural justice is included in the ground of procedural impropriety. Mr Z being released may have been against the principle of being fair to the girl X. The case may have taken the wrong decision which raises the possibility of bias so the case should be reopened. And the girl X has the right to be able to walk outside without fear, so she would want the case to be held in court and Mr Z to being punished if he’s in the wrong which is known as a fair hearing.
An similar example of a vulnerable 15 year old girl to sexual abuse and the case of (R v. Barnet London Borough Council, 2009), in which a young girl 15 years of age who came from Portugal was sexually abused, she had learning difficulties and hearing problems. Her needs were not fulfilled by the authority by not giving her extra help. At the end she was granted suitable and compulsory assistance.
Another case which is very similar to this is the case of (R v. Norfolk County Council, ex parte M, 1989). She was 13 years of age and was sexually abused two times, was going through emotional problems. The local council failed to recognise that it was the imagination of the young girl which existed from the previous sexual assault. The verdict did not confess of being guilty, even then the court treated him like a potential threat. Which the council realised at the end, that they were acting unfair towards the verdict.
The girl X may have imagined the same thing as the girl in the previous case, while she was emotionally troubled by being sexually assaulted previously by the teacher, and misjudged the electrician. The girl should be granted assistance by the local council and Mr Z case should be reopened with all the evidence showing he is not guilty. And maintain himself as a good character and clear all the obligations on him and get his job back with all respect by applying declaration remedy.
Associated Provinial Picture Houses Ltd v. Wednesday Corporation. (1948). Constitutional and Administrative Law (2nd ed.). (Taylor, Ed.) Law Express.
Attorney General v. Fulham Corporation. (1921). Constitutional and Administrative Law (2nd ed.). (Taylor, Ed.) Law Express.
Barnard v. National Dock Labour Board. (1953). Constitutional and Administrative Law (2nd ed.). (Taylor, Ed.) Law Express.
Dimes v. Grand Junction Canal. (1852). Constitutional and Administrative Law (2nd ed.). (Taylor, Ed.) Law Express.
Diplock. (2008). Constitutional and Administrative Law (2nd ed.). (Taylor, Ed.) Law Express.
Hall and Co Ltd v. Shoreham-by-Sea Urban Development Corporation. (1964). Constitutional and Administrative Law (2nd ed.). (Taylor, Ed.) Law Express.
R v. Barnet London Borough Council. (2009). Lawtel. Retrieved from http://www.lawtel.com/UK/Document.aspx?ID=AC0122736&HL=Y&BK=Y&ResultID=29437720.
R v. Brent LBC, ex p Assegai, Times. (18 June 1987). Constitutional and Administrative Law (2nd ed.). (Taylor, Ed.) Law Express.
R v. Norfolk County Council, ex parte M. (1989). Lawtel. Retrieved from http://0-www.lawtel.com.unicat.bangor.ac.uk/UK/Document.aspx?ID=AC1266298&HL=Y&BK=Y&ResultID=29444443.
R v. Port Talbot Borough Council, ex parte Jones. (1988). Constitutional and Administrative Law (2nd ed.). (Taylor, Ed.) Law Express.
R v. Secretary of State for the Home Department, ex parte Doody. (1994). Constitutional and Administrative Law (2nd ed.). (Taylor, Ed.) Law Express.
Ridge v. Baldwin. (1964). Constitutional and Administrative Law (2nd ed.). (Taylor, Ed.) Law Express.
Taylor. (2008). Constitutional and Administrative Law (2nd ed.). Law Express.
Vale of Glamorgan Borough Council v. Palmer and Bowles, Crim LR. (1983). Constitutional and Administrative Law (2nd ed.). (Taylor, Ed.) Law Express.
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