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JUDICIAL REVIEW OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTION ADMINISTRATIVE ACTION Introduction: Judicial Review (JR) lies at the heart of administrative law. It is an important legal proces through which the High Court examines the way in which public bodies exercise their powers. It is designed to protect citizens from arbitrary and unfair actions and decision by powerful bodies that exercise functions of public significance, thus ensuring the application of the rule of law. Furthermore, while approaching the discussion of JR in the UK context, one needs to be cautious enough to take note of the absence of a written constitution with the status of a higher law and the doctrine of Parliamentary Supremacy prevent the judges from exercising this role. But all in all, they may however, review the manner in which public authorities exercise the powers which have been conferred upon them by the

JUDICIAL REVIEW OF ADMINISTRATIVE ACTION Introduction: Judicial Review (JR) lies at the heart of administrative law. It is an important legal proces through

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Page 1: JUDICIAL REVIEW OF ADMINISTRATIVE ACTION Introduction: Judicial Review (JR) lies at the heart of administrative law. It is an important legal proces through

JUDICIAL REVIEW OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONADMINISTRATIVE ACTION

Introduction:

Judicial Review (JR) lies at the heart of administrative law. It is an important legal proces through which the High Court examines the way in which public bodies exercise their powers. It is designed to protect citizens from arbitrary and unfair actions and decision by powerful bodies that exercise functions of public significance, thus ensuring the application of the rule of law.

Furthermore, while approaching the discussion of JR in the UK context, one needs to be cautious enough to take note of the absence of a written constitution with the status of a higher law and the doctrine of Parliamentary Supremacy prevent the judges from exercising this role. But all in all, they may however, review the manner in which public authorities exercise the powers which have been conferred upon them by the legislature.

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Objectives of Judicial Review:

* To determine whether in making decision or taking action- a public body (other than Parliament) has acted 'within its powers' and in accordance to common law standards of fairness-this is particularly significant with regards to the exercise of discretionary powers.

* To enhance application of separation of powers in the UK as JR involves the courts considering the legality of executive action. Thus, the executive in turn, exercises its discretion with the knowledge that their decisions may well be quashed by the courts where they exceed their powers.

* JR may result in the granting of very effective remedies to the affected party, that can quash, prevent or compel a public decision or action, authoritatively state the legal position of the parties, and award damages.

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Limitation to the operation of Judicial Review:

* There is a limitation to the scope of JR in that in order for the courts to be involved in this matter, the issue of 'justiciability' in question arises (see the leading case of GCHQ).

Note: With the advent of the Human Rights Act 1998, questions focusing on the Act's impact on JR are likely to be considered and addressed in depth. (See the provisions of sections 6, 7, and 8 of the Act)

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Important aspects regarding JR:

* It is a residual form of control & therefore it would be possible for citizens to use any other means of control provided by statute to contest a decision before resorting to JR.

* It is discretionary and it will be up to the courts to decide whether judicial intervention is appropriate.

* JR is concerned only with the manner, or procedure, by which administrative decision was reached.

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How to apply for JR?

Application is made in accordance with the Supreme Court 1981 sec 31, Order 53 of the Rules of the Supreme Court and the High Court's jurisprudence. Thus, the applicant must apply to the HC for leave for JR. However, a number of conditions exist that have to be met before the leave to apply for JR is granted.

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Conditions to be fulfilled before the leave to apply for JR is granted:

(a)The area in which the dispute arises must concern public, not private, law issues. JR is confined to matters of public as opposed to private law. The Courts will not seize jurisdiction to review an administrative action or decision if the matter involved is one of private law. Accordingly, the respondent must be a public authority and the right at issue must be a public right.

In determining whether a body is public or not, the court will ask whether the functions that body performs are public ones, i.e., whether they have public law consequences. The test can also be formulated as follows: 'if the body in question did not exist would some govt department assume its responsibilities?' Thus, in consequence, for the purpose of JR, more bodies are considered public than those that have been created by statute or secondary legislation.

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Conditions to be fulfilled before the leave to apply for JR is granted:

(a)The area in which the dispute arises must concern public, not private, law issues: (Continuation)

Note: The concept of the public law body has developed to encompass not only statutory bodies but also private organizations discharging functions that affect the public. (See the case of R V Panel on Take-Overs & Megers ex parte Data Fin [1987] QB 815, where the City Panel of Takeovers and Mergers was considered a 'public law' even though it had been established on a voluntary basis).

See also the case of Scott v National Trust [1998] where the Ct held that the National Trust could be a public body for the purposes of JR in the context that charitable institutions, especially those regulated by Statutes may, in the exercise of powers and discretions directly or indirectly affect many different sections of the public.

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Conditions to be fulfilled before the leave to apply for JR is granted:

(a)The area in which the dispute arises must concern public, not private, law issues- (Continuation)

See also the case of O'Rourke v Camden LBC [1997] 3 WLR 86/[1996] 3 All ER 23, where the COA held that since the temporary housing duty was recognised by the local authority and governed by an Act of Parliament, this meant an exercise of executive discretion which would be a matter of public law. In this case, the plaintiff had applied to the local authority for accomodation under the Housing Act 1985, on his release from prison. Sec 63(1) of the Act provides that local authority is under a duty to provide accomodation in respect of those who are 'homeless & [had] a priority need', and that includes person who are 'vulnerable as a result of...physical disability or other special reason'. Initially the authority refused him accomodation, but subsequently provided accomodation for 12 days period, after which the plaintiff was evicted and no alternative accomodation offered.

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Conditions to be fulfilled before the leave to apply for JR is granted:

(a)The area in which the dispute arises must concern public, not private, law issues- (Continuation)

O'Rourke v Camden [1997] 3 WLR 86/ [1996] 3 All ER 23- (Continuation) The plaintiff brought a private action against the council for wrongful eviction without alternative accomodation, & claimed damages. The COA restored the plaintiff's claim, on the basis that the breach of sec 63 was a tort. The authority appeal to the HOL. The HOL reversed the decision of the COA. The HOL ruled that the question of whether sec 63 of the Housing Act gave rise to public or private law proceedings depended on the intention of Parliament.

See also the case of R v Disciplinary Committee of the Jockey Club ex parte Aga Khan [1993] 1 WLR 909- where the relationship between the Jockey Club & the horse-owners was seen as having no 'public law' significance &, therefore, the Club was not a 'public body'.

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Conditions to be fulfilled before the leave to apply for JR is granted:

(a)The area in which the dispute arises must concern public, not private, law issues- (Continuation)

See also the case of R v East Berkshire Health Authority ex parte Walsh [1984]- where the court held that matters concerning an individual contract of employment were not within the ambit of public law.

Note: R v Secretary of State for the Home Department ex parte Benwell [1985]- the court held that where a contract of employment exists however, the courts may permit JR on the ground that there is no other form of control to prevent abuse of power.

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Conditions to be fulfilled before the leave to apply for JR is granted:

(b)The application for JR must concern a public law issue that is, prima facie, 'justiciable'. By this we mean that certain matters are excluded from JR (i.e., are seen as non-justiciable') because they are matters of public policy.

See the case of Nottinghamshire Country Council v Secretary of State for the Environment [1986] AC 240, where it was held that the Ct should not intervene to quash guidance by the Secretary of State, issued on authority of Parliament, setting limits to public expenditure by local authorities. Lord Scarman said that unless and until a statute provides otherwise, or it is established that the Secretary of State has abused his powers, these are matters of political judgement and not for judges to resolve.

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Conditions to be fulfilled before the leave to apply for JR is granted:

(b)The application for JR must concern public law issue that is, prima facie, 'justiciable'. By this we mean that certain matters are excluded from JR (i.e., are seen non-justiciable) because they are matters of public policy- (Continuation)

See also the case of R v Parliamentary Commission for Administration ex parte Dyer [1994] 1 All ER 375, where it was held that matters of national policy were not open for challenge before the courts other than on the basis of bad faith, improper motive or manifest absurdity. Matters of national economic policy were for political, not judicial judgment.

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Conditions to be fulfilled before the leave to apply for JR is granted:

(b)The application for JR must concern public law issue that is, prima facie, 'justiciable'. By this we mean that certain matters are excluded from JR (i.e., are seen non-justiciable) because they are matters of public policy- (Continuation)

Note: Often many of these inadmissible, 'non-justiciable' matters are also seen as part of the royal prerogative but, importantly, it is for the court and no one else to decide each time what is and is not 'justiciable'. In other words, even if a matter is subject to the royal prerogative it may still be reviewed if the court asserts that it can evaluate the administrative decision or action in the light of legal rules without usurping the function of policy makers. This was established firmly in the case of GCHQ [1985] AC 374.

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Conditions to be fulfilled before the leave to apply for JR is granted:

(c) An applicant for JR must show that he/she has sufficient interest/locus standi to make the application.

See the case of Inland Revenue Commissioners v National Federation of Self Employed & Small Business Ltd [1982] AC 617 also known as the Mickey Mouse Case-where the court held that in order to establish locus standi/legal standing for the proper application of JR,an applicant must prove two things: (i) illegality by a public authority; & (ii) the illegality threatened some personal interest of the applicant. The HOL ruled that there was no standing to challenge the particular wrongdoing alleged but that, if the Revenue had in fact been acting with impropriety, there would have been standing in a taxpayer to challenge its unlawful acts.

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Conditions to be fulfilled before the leave to apply for JR is granted:

(c)An applicant for JR must show that he/she has sufficient interest/locus standi to make application.

Inland Revenue Commissioners v National Federation of Self Employed & Small Business Ltd- (Continuation)

The facts, in brief, entailed the employment of casual labour on newspapers, where the workers frequently adopted false names and paid no income tax. The Inland Revenue Commissioners (the IRC) entered into an agreement with the relevant trade unions, workers and employers, to the effect that, if the workers filled in tax returns for the previous two years, the IRC would not pursue tax due for previous years. The National Federation (an association of taxpayers) argued that the IRC had no power to enter into this agreement & sought JR. The IRC defended the action on the basis that the National Federation did not have sufficient interest or standing (locus standi) to apply for JR.

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Conditions to be fulfilled before the leave to apply for JR is granted:

(c) See also the case of R v Secretary of State for the Environment ex parte Rose Theatre Trust Co [1990] 1 All ER 754- the court held that the 'locus standi' may not be established where a governmental decision is made that does not affect the rights of ordinary citizen signifies that the citizens do not have sufficient interest.

This case concerned the question of whether a Co which had been incorporated for the purpose of campaigning to save the historic Globe Theatre site in London had sufficient interest, or locus standi. Included in the guidelines were that the question of whether sufficient interest exist is not purely a matter within the discretion of the court; that sufficient interest did not necessarily entail a direct financial or legal interest; that the assertion of an interest by a person or group does not mean that sufficient interest exists; and that, even where thousands of people joined togather in a campaign, that was not conclusive that sufficient interest existed. The court ruled that the Co did not have sufficient interest.

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Conditions to be fulfilled before the leave to apply for JR is granted:

See also the case of R v Secretary of State for the Environment ex parte Rose Theatre Trust Co [1990] 1 All ER 754- the court held that the 'locus standi' may not be established where a governmental decision is made that does not affect the rights of ordinary citizen signifies that the citizens do not have sufficient interest.

This case concerned the question of whether a Co which had been incorporated for the purpose of campaigning to save the historic Globe Theatre site in London had sufficient interest, or locus standi. Included in the guidelines were that the question of whether sufficient interest exist is not purely a matter within the discretion of the court; that sufficient interest did not necessarily entail a direct financial or legal interest; that the assertion of an interest by a person or group does not mean that sufficient interest exists; and that, even where thousands of people joined togather in a campaign, that was not conclusive that sufficient interest existed. The court ruled that the Co did not have sufficient interest.

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Conditions to be fulfilled before the leave to apply for JR is granted:

(c) An applicant for JR must show that he/she has sufficient interest/locus standi to make the application- (Continuation)

See also the case of R v Secretary of State for the Environment ex parte Greenpeace Ltd (No.2) [1994] 4 All ER 352-where a liberal approach to 'sufficient interest' was taken by the court. In this case the court held that it would take into account the nature of the applicant body, the extent of the its interest, the remedies sought, the extent to which the applicant was a responsible body, its consultative status if any, the extent of its membership & support and whether the applicant body would have any other viable means of challenging the matter in question. But warned (the court) that it should not be assumed that Greenpeace or other pressure groups would automatically be held to have sufficient interest in any future case.

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Conditions to be fulfilled before the leave to apply for JR is granted:

(c)The applicant for JR must show that he/she has sufficient interest/locus standi to make the application- (Continuation)

See also the case of R v Secretary of State for Foreign Affairs ex parte World Development Movement Ltd [1995]- where it was held that in determining the 'locus standi' of pressure groups, the court would consider the need to uphold the rule of law, the fact that no other organisation was likely to launch such a challenge and the key role played by the applicants in giving advice, guidance and assistance regarding aid. In this case, the World Development Movement (WDM) sought JR of the Foreign Secretary's decision to grant financial aid to Malaysia for the building of Pergua dam. The WDM argued that the Secretary of State had exceeded his powers. The Ct held that the WDM had sufficient interest. It was unlikely that there would be any other person or body with sufficient interest to challenge the decision.

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Conditions to be fulfilled before the leave to apply for JR is granted:

(d) The application for JR must be made within three months of the challenged decision/action, or within any other time period as specified by clauses in specific statutes designed to prevent excessive delays in matters of urgency. In other words, before a leave is granted, the High Court must be satisfied that the applicant has acted speedily and promptly i.e., the applicant must be made within a three month period.

The courts enforce these time limitations strictly and important cases are: Smith v East Elloe Rural District Council [1956] AC 736 and R v Secretary of State for Environment ex parte Ostler [1976] 3 All ER 90.

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The importance of the doctrine 'ultra vires' in understanding the operation of JR:

Ultra vires is known to refer to actions which are in excess of powers of the decision-making body. Today however, this term is too limited to encompass the whole ambit of JR. In other words, the ultra vires doctrine which gives the courts the basis of intervention states that if body exercising statutory powers went beyond the four corners of the Act, the court could intervene i.e., the body might be exercising the wrong powers, may be taking the wrong type of decision, or there may be a requirement that before the body exercises its powers, a certain state of affairs must exist as a preliminary requirement.

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The importance of legitimate expectation in understanding the operation of JR

According to Lord Denning in Schmidt v Home Secretary [1969] 1 Ch 2149 the application of natural justice depended on whether the applicant had some right or interest or legitimate expectation, of which it would not be fair to deprive him without fair hearing. The students had 'sufficient interest' for leave to be granted. In this case, students who had entered the country as 'students of scientology' challenged the decision of the Home Offiice not to allow them to remain once the permitted period of stay had expired. The students had a 'legitimate expectation' that they would be allowed to make representation to the Home Office, in which they were denied over a matter affecting their individual liberty.

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The importance of legitimate expectation in understanding the operation of JR- (Continuation)

See also the case of R v Devon County Council ex parte Baker & Anor [1995]- Dillion LJ expressed the view that 'legitimate expectation' related to the procedure that the applicant could expect to see followed rather than the ultimate decision being made in his favour. A 'legitimate expectation' of this nature arose whenever a donee of an executive power had the authority to make decisions adversely affecting the rights, interests, or status of others.

Simon Brown LJ identified four broad categories of cases in which the concept of legitimate expectation may be relevant:

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The importance of legitimate expectation in understanding the operation of JR- (Continuation)

Simon Brown LJ identified four broad categories of cases in which the concept of 'legitimate expectation' may be relevant:

(a) Where it is a substantive right, in the form of an entitlement that the claimant asserts cannot be denied. See the case of R v Secretary of State for the Home Department ex parte Khan [1985] 1 WLR 1337.

(b) Where the applicant's interest was of some ultimate benefit which he hoped to attain or retain. See the case of R v Liverpool Corporation Taxi Fleet Owners Association [1972] 2 QB 299, where the Corporation had given undertakings to the taxi drivers to the effect that their licences would not be revoked without prior consultation. When the Corporation acted in breach of this undertaking, the Ct ruled that it had a duty to comply with its commitments to consultation (the giving of assurance).

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The importance of legitimate expectation in understanding the operation of JR- (Continuation)

Simon Brown LJ identified four broad categories of cases in which the concept of 'legitimate expectation' may be relevant:

(c) Where the 'legitimate expectation' referred to the procedure the applicant expects to see adopted. See the case of GCHQ.

(d) Where a particular procedure not actually prescribed by law was to be followed because of a previous promise or course of dealing. See the case of AG of Hong v Ng Yuen Shiu [1983] 2 AC 629-where the applicant had been an illegal immigrant for some years. He was eventually detained and an order was made for his deportation. The Director of Immigration had given a public undertaking that illegal immigrants such as Ng Yuen Shiu would not be deported without first being interviewed. See also the statement echoed by Sedley J in R v Ministry of Agriculture, Fisheries & Food ex parte Hamble (Offshore) Fisheries Ltd [1995].