In order to understand whether they have been abuse of power or if the exercise of power is reasonable at first the source of power must be observed. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) the fact that no child under 15 was to be allowed in without an adult, was ultra vires. Secretary of State has to comply test of reasonableness. If it can be proved that applying Section 3 was unreasonable then he will be the subject to the judicial review. Fined Hullair ?
250,000 and confiscated the aeroplane seems to be unreasonable. In case Council of Civil Service Unions V Minister for the Civil Service (1984), Lord Diplock his view that it applies to a decision, which is so outrageous in its defiance of logic or acceptable moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. In case of Short v Poole Corporation (1926), Backhouse v Lameth London Borough Council (1972) and in Cox discuss regarding this subject.
If court applies these cases then the Secretary of State cancelled the decision to release the applicant on the ground that it was unreasonable in the Wednesbury sense, to preserve the right of individuals. After passing Human Right Act 1998, court should follow section 7 of the Act to comply on convention right. On the other hand UK becoming a member of European Union in 1972 by European Communities Act 1972. Therefore, before imposing any obligation the court must show domestic law is not inconsistent with ECJ law. b) Section 2, which create a system of licensing for all airline employees.
The Secretary of State is a public body. Any person who has sufficient interest will be able to bring a case on the grounds characterised by Lord Diplock as illegality, irrationality, and procedural impropriety. Such a person must apply for permission to make an application for Judicial review within three-month time limit. If permission is granted, the case will proceed to a full hearing. Here the facts are the Act were all obliged to apply for licences under the terms of section 2 of the Airport Security Act 2006 and large number of its members of Airline Pilots Association deprive from justice.
It would be representative cases involving pressure groups finding sufficient interest had a problem. In case of Rose Theatre did not get LS but Greenpeace give totally different view. One has to apply on behalf of others. The applicant has standing; he has to consider the three factors. These are the merits of the application, the nature of the applicant’s interest and all the circumstances of the case. In R v Secretary of State for Foreign Affairs ex parte the World Development Movement Limited (1995), here Rose Lj in the Queens Bench Division considered the question of the applicant’s standing.
IRC v National Federation of Self-Employed and Small Businesses also apply this approach. In GCHQ case, by ‘illegality’ as a ground for judicial review that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is per excellence a justifiable question to be decided, in the event of disputs, by those persons, the judges, by whom the judicial power of the state is exercisable.
Furthermore, the HRA 1998 is now generally accepted as providing a fourth ground of review, ‘breach of a convention right’, though it may be argued that this ground is simply a new aspect of ‘illegality’. In Airport Security Act 2006 has error of law; previously the position was complicated by the courts differentiating between errors of law by inferior court, or tribunal or public authority ‘within jurisdiction’. In Anisminic Ltd v Foreign Compensation Commission is that almost all errors of law are now subject to judicial review. The misdirection of law in would render the relevant decision ultra vires and nullity.
In Page v Hull University Visitor (1993), the courts are still required to distinguish errors of law and errors of fact. To find all of facts the law should need to change. c) Here in the case of Flyinair, due to the malfunction of Department for Transport to issue the license the airlines fall in a scarcity of Pilots. As a result Flyinair was bound to diminish their operation. Consequently a great lose of ? 6 million occurred. The evidence looks like the previous one that we discussed in the answer of question (b). Only the difference is that the amount of loosing money is very higher then the previous case.
Thus, in addition here the remedy may ask under Rule of Law and ask for Judicial Review against Department for Transport. I think, before facing a tremendous crisis mentioned in the case of Flyinair, there was a chance to bypass the crisis for the pilots according to Chicago Convention On International Civil Aviation –1944. Under ICAO Article-32, Article-38 & Article-39 pilots may get license from ICAO and endorse with Department for Transport. d) From the fact of the question, it is obvious that David, a very experienced airline pilot.
Therefore, he had a legitimate expectation that that he will be will be given a hearing, or consulted before a decision is taken. In the GCHQ case, the court indicated that the unions had a legitimate expectation of being consulted prior to the implementation of major changes affecting the staff, but in the particular circumstance, the interests of the national security overrode those legitimate expectations. In exceptional circumstance, a legitimate expectation may not merely ensure that the individual is consulted but may not merely ensure that a benefit he or she enjoys is not removed.
However, David applied for a licence under the provisions of section 2 and his application had been refused because he is deemed ‘unsuitable’ under section 2 of Airport Security Act 2006. In relation to bias, it is clear that direct bias will constitute a breach of a rule of natural justice. David has been a vocal opponent of the government’s introduction of the Airport Security Act, and has featured in a number of national newspapers and on national television criticising the government’s measures as being ineffective.
Here there are precedents stretching from Dimes v Grand Canal Junction Properties to R v Bow Street Metropolitan Stipendiary Magistracies ex parte Pinochet Ugarte to back up this assertion. It is important to note that even the direct bias. However, David will have to use judicial review if he wishes to challenge the refusal of the licence. The Secretary of State for Transport is clearly public body and his grounds of challenge derive from public law, making judicial review the appropriate procedure to use. He has to make an application to grant locus standi.
In considering the question of “sufficient interest,” the court considers the relationship to the matter and all the circumstances of the case. David has a direct personal interest and he affected by the action by the decision in question will normally have standing. In R v Her Majesty’s treasury ex parte Smedley (1985) a taxpayer had sufficient interest to challenge a government undertaking to pay a contribution to the European Community. In R v Selby District Council ex parte Samuel Smith Old Breweries (2000), a landowner had sufficient standing though not directly affected.
In case of Greenpeace, Rees Mogg has sufficient interest to get LS. The court will consider the relevant case of Departmental bias for example R v St Edmundsbury Borough Council ex parte Investors in industry, Pearlberg v Varty (1972) before the decision David must be given an opportunity to state his case. Court also considers Tarrant case; Polemis, which allow his to read the report and seek advice, was a breach of natural justice. In Calvin v Carr (1980) and Loyd V McMahon, will play an important role.
If David is successful in establishing grounds for JR, as seems likely, most appropriate remedy would be quashed the decision of Department for Transport. He could ask mandatory order to compel them to reconsider his application. The award of remedies is at the discretion of the court, but seems no reason why the court should decline to give redress. However, the court’s decisions will not necessarily mean that David will obtain the licence he seeks. Conclusion: However, it is a subject of judicial review. Because Airport Security Act 2006 has few loopholes it should be changed, hence or otherwise it brings more difficulties.On the other hand, there has International Civil Aviation Organisation has article 38 and 39 which gives direction regarding licence.
1) Michaelt, M, Administrative Law, 4th edition, Old Bailey Press 2004 2) Craig, P. P. (2003) Administrative Law – 5th edition London: Sweet and Maxwell, 3) Hilaire B. (2002) “Constitutional and Administrative Law” (Cavindish Publishing Limited) 4) Wincott D. (1999) “The Court of Justice and the Legal System” in Cram L et al (eds), Developments in the European Union (Basingstoke: Macm illan) 5) Woolf, H. and Jowell, J. L “ Judicial Review and Administrative Action” London: Sweet and Maxwell