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Published: Fri, 02 Feb 2018
Most effective and appropriate solution
In response to the question I will address the said clients separately and advise on the most effective and appropriate solution for each client.
The situation that Beverley Town Football Club have encountered raises the issue of a possible application for judicial review and in turn a suitable remedy.
It is clear from the evidence you have provided, that there is reason to suggest that the, Football Safety Association (FSA), have acted in a way that could be considered to be ultra vires.
The Doctrine of ultra vires – where an action by a public authority falls outside of its jurisdiction – was brought to the forefront of judicial review claims through the case of Anisminic. As a result of the success/(decision in) of this case, it has enabled many other applicants to be efficacious in obtaining a judicial review remedy. Based on this precedent a claim of ultra vires is possible in the judicial review proceedings.
Beverley Town FC is an amateur club not professional therefore the FSA would be acting outside of their authority that is ultra vires.
In order for you to pursue a judicial review application the matter must be one of Public Law. This is satisfied as the FSA are a public authority that has acquired its jurisdiction directly from the legislation of the Football (Safety) Act 2009.
“Decisions of bodies deriving their power from statute…are generally susceptible to judicial review”
This authority gives grounds for a claim of judicial review application to proceed, provided an error or illegality in the legal decision made has been established. Should it be decided that an error of law arises in your situation, the exclusivity rule from O’Reilly v Mackman could be applied to encourage the court to consider your case as a worthy applicant for judicial review. Moreover, a requirement of standing is necessary to highlight your “sufficient interest” in this claim for review. As the FSA claims that you are “subject to its powers” and you are a football club, you do have potential to comply with this requirement on the consideration you are an interest group and the act conducted by the FSA is directly applicable to you; which if enforced would have a dramatic effect on you.
I believe this is an arguable case, in that, the FSA could be considered to be acting in a way that is ultra vires when “Considering you subject to its powers.”
The Football (Safety) Act, states that it, “Empowers the FSA to regulate the activities of all professional football clubs”.
The literal rule, if applied to the interpretation of the word “professional” then your club would not be subject to the FSA powers as it does not constitute such a title, due to the amateur level of your players. The FSA’s consideration, of you, to be so would be deemed ultra vires, enabling you to apply for a quashing order, a remedy sought through judicial review. This issue of statutory interpretation also arose in White and Collins. Here the discrepancy lay within the interpretation of Section 75 of the Housing Act 1936, which protected land from the exercise of powers by public authorities provided it was considered to be “part of any park”.
Despite the success of this case, you could not instantly proceed with an application. It is a procedural requirement of judicial review, to seek an alternative remedy before making an application. Furthermore judicial review is very expensive and should only be pursued as a remedy of last resort.
Therefore, the alternative remedy that is available and most applicable is the right of appeal. The FSA has not yet acted upon its authority and so you are not appealing a decision, which is usually unsuccessful, but exercising a right. I would advise you to write a letter directly to the FSA, requesting that they reconsider their jurisdiction, thereby establishing your position in relation to the FSA and their authority. If such an appeal is unsuccessful, then you should withhold from seeking a remedy at present, allowing time for the FSA to enforce that their regulations are satisfied. Such regulations could prove to be detrimental to the financial future of the club. If they were enforced it would support a claim of ultra vires against them and require the FSA to reverse their decision. This would allow you to seek a quashing order, resulting in the “consideration” of the FSA to be invalid. Despite my advice in delaying a judicial review application until the FSA has acted, if the FSA does act then you make a claim within three months of this action as a delayed claim can be refused.
b) From the information provided it is evident that you feel aggrieved on several accounts by the FSA. The cause of this injustice falls under the grounds of procedural impropriety.
Procedural impropriety ensures just and fair proceedings have taken place in the decision making process. If this isn’t the case then a claim for a judicial review remedy, would be one of substance. With regards to your situation and the area of law in question, I believe that a judicial review claim to seek a suitable remedy is the appropriate course to take.
It is clear that the FSA could be considered to have acted unlawfully towards the PPU (The Professional Players Union). The Football (Safety) Act 2009 which the FSA derives its authority, stipulates under section 2 that the FSA is to
“consult parties representing the interests of clubs, football supporters and football players.”
This section of the Act clearly outlines a statutory duty to consult.
The duty to consult and the implications of such a duty, are outlined in R V Brent London Borough Council ex p Gunning. Such requirements are now known as the Gunning criteria; used once a statutory duty to consult has been established.
The failure of the FSA to consult establishes procedural impropriety and moreover, grounds for judicial review. So, an appropriate remedy of a mandatory order along with a quashing order would be the most successful remedies. The quashing would cause the Code of Practice on Stadium Safety to be redrafted allowing the PPU to be consulted in its formation, thus making its existence legal and applicable.
The second consultation exercise regarding the insufficient time given in which to respond could be supported by the case of Lee. It was decided in this case that a decision affecting a great number of people and one which should be in their best interest, requires adequate time in order to amalgamate a response. As a result they were awarded four weeks in which to do so. The case highlights a claim under procedural impropriety. However this argument does not imply error of law, and so may not be as successful at judicial review level. In respect of the lack of consideration by the FSA regarding your objections to the proposed Code of Practice,the Gunning criteria stipulates that the
“Product of consultation must be conscientiously taken into account”
It is not a mandatory order and so the FSA are not acting unfairly or illegally in their lack of consideration when finalising the Code of Practice. The Aylesbury case provides authority for such discretion. It identifies that there is only a duty to enquire into the opinions of the affected people, they can however be ignored.
Based on the above considerations I would advise you only to proceed with a claim for judicial review on this first consultation exercise. Although you did receive limited time in which to respond to the consultation you were however consulted, and so the FSA has fulfilled its statutory duties. This however cannot be said on the implementing of the Code of Practice on stadium safety. It is here that the FSA neglected to consult representatives of interested parties a requirement which was mandatory and so courts should render the code of practice void.
c) The FSA have failed to provide you with relevant information, with regard to your warning, leaving you frustrated and without power to rectify the cause. This could be challenged within law.
Furthermore the FSA are unable to locate your file presumably containing the relevant information. I believe that a remedy sought through the Parliamentary Ombudsman would be appropriate. The PO arose out of a recommendation of the Whyatt Report and subsequently introduced under the Parliamentary Commissioner Act.
I believe that if you were to seek a remedy through the PO, your complaint would lie with the neglectful actions of the FSA. In order for a complaint to be investigated there has to be a clear area of maladministration. In addition to this the injustice suffered must be linked to the maladministration. The misplacing of your file is as such, due to the neglectful behaviour in failing to provide relevant information when issuing a warning.
You have sufficient cause to seek a remedy through the PO, which is the route I would advise you to follow. You need to write a letter to your local MP, who will then determine whether to refer your complaint to the PO.
The PO publishes his recommendations in a report which will produce your remedy, based on the findings of maladministration. The FSA will be advised to reconsider their warning. The Parliamentary Ombudsman’s report is only recommendatory, he has no judicial power and so the FSA can choose to ignore his recommendations. If the FSA were to ignore them, a further report, to Parliament, would expose the FSA in a unfavourable light. Such publicity and increased pressure would outweigh the compulsion of the FSA to proceed with the warning without providing relevant information for such a decision.
d) The areas of law to consider in relation to your case include the Wednesbury test of unreasonableness and proportionality and a claim that there was a breach of your common law rights to a hearing before the penalties were imposed.
The first issue I wish to address is the issuing of the £500,000 fine by the FSA. This fine was administered due to the actions of your supporters. However there was a failure by the FSA to provide reasons as to why they have applied the fine. But the FSA have no legal duty to give reasons because the Football (Safety) Act 2009 does not stipulate a statutory duty to do so.
Despite this, you are still able to question the imposition of such a fine. A £500,000 fine for such an act could be considered unreasonable. Such unreasonableness may be the basis on which you claim for a remedy. The test of unreasonableness emerged from the judgement of Lord Greene in the Wednesbury case. In this case it was decided that the Wednesbury Corporation’s decision to prohibit children, under the age of 15, to be admitted to the cinema on Sundays was one of unreasonableness. Conversely the courts held the statutory provision in this case to be lawful but Lord Greene went on to define unreasonableness as,
“something so absurd that no sensible person could ever dream that it lay within the powers of the authority”.
The test of unreasonableness known as the Wednesbury test is one that can only be applied in cases of strong unreasonableness and claimants can only be dependent upon it in specific instances such as when other principles for a claim in judicial review would not be successful or applicable. On identifying the fine as an action that could be considered to be one of Wednesbury unreasonableness, you could make a claim for judicial review based on the grounds of irrationality. Such a claim would be based on irrationality, a principle that would suffice in allowing you to proceed with a judicial review claim.
The other action made by the FSA concerning your player Zucchinio could be eligible for a claim in judicial review. The basis of the three month ban was that Zucchinio was in breach of a provision, included in the Code of Conduct on the behaviour of supporters and players. This provision specified that,
“no player shall express themselves in a manner that might incite offence amongst a club’s supporters. “
Zucchinio’s contentious goal celebration was a breach of said provision.
This issue could therefore fall under the ambit of proportionality. The proportionality principle is applicable when a measure could be seen to be disproportionate to the result it aims to achieve.
Inserted However despite possible grounds for review being present, uncertainty exists as to whether this claim would be successful in gaining a suitable remedy. Such uncertainty is founded upon previous authorities such as the Brind case in which a remedy sought through judicial review on the grounds of proportionality, Wednesbury unreasonablenss and irrationality was unsuccessful.
Zucchinio had a case to answer re his behaviour and the code of conduct, however he was not able to exercise his common law right to a hearing or make representation before the penalties were imposed. This On this basis I believe that Zucchinio would be most successful if he was to receive a hearing in which he could be represented, allowing a counter argument to be received.
On considering all issues raised and the decisions arrived at I would advise you to seek a remedy through means of judicial review. I believe the applications for judicial review should be made separately to achieve a successful outcome. Therefore you would make an application with the intention to have the £500,000 ban lifted or reduced. In order to do this you would base your application on the irrationality principle, such a principle would be supported by the Wednesbury test of unreasonability and by doing so you would be attempting to retrieve a quashing order. This would invalidate the decision, allowing the issuing of the fine to be reconsidered to achieve a reduced fine, ensuring the decision by the FSA was one of reasonability.
In Zucchinio’s claim I would advise you to use judicial review as a means of obtaining a remedy on the grounds that he was not allowed to exercise his common law right to a hearing. In making such an application you should seek the remedy of interim relief. Through seeking interim relief it will prevent the ban from going ahead. Such a remedy is applicable when a decision of an authority, if it was to proceed would result in permanent damage. The banning of your “star” player, for three months could considerably jeopardise your clubs ranking in the sport this would allow for a hearing to take place, in which your counter argument to the imposition of the ban could be considered, possibly resulting in its removal or reduction.
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