This question raises some issues from natural justice and judicial review. The rules of natural justice are generally seen to of two separate limbs: audi alteram partem- no man is to be condemned without a hearing; and nemo judix causa sua – no man should sit as judge in his own case. Essentially, they may be seen as protections of the citizen when seeking to challenge the powers of the state and are fundamental principles in the process of judicial review.
The essence of judicial review is that an ‘inferior body’ (other expressions employed include subordinate body; administrative body, or administrative agency) has acted outside the scope of its power. The expressions used are: ‘intra vires’- within its powers; and ‘ultra vires’- beyond its power. a) To answering this question, irrationality and audi alteram partem would mostly used here. In addition, sources of power, private law, and public law issues, order 53 and Locus Standi should be discussed gradually. No one can be punished without breach of law according Dicey’s rule of law principle.
Section 1, which permits the Secretary of State to draw up Regulations compelling airlines to take measures to enhance security in order to prevent ‘dangerous items’ from being taken aboard aeroplanes. May be on policy ground parliament passed this Act and to give powers to the Secretary of State for Transport to introduce a range of measures designed to increase security at British airports. Parliament may determine the procedure to be followed by a decision-making body by making express provision in the relevant enabling act.
The nature of the procedure prescribed will depend upon the aims that Parliament is trying to achieve. Time limits for the making of applications to the decision-making body lay down to reduce delay. A logical response might be that if an inferior body fails to act in the way prescribed by statute the result must be that its decision is ultra vires. Andy, a director of Hullair, was aggrieved because Hullair were not consulted prior to the introduction of the Regulations and subject to enforcement action under section 3.
Here court consider statutory requirement to give prior notice of decision-making. In R v Swansea City Council, ex parte Quietlynn (1983), held that give prior notice regarded as mandatory. The importance of the notice provision relates not only to the natural justice issue of giving a person adequate time to prepare a case, but also the seriousness of the consequences- the possibility to criminal liability being imposed. In Coney v Choice, the Education Act 1994 required a local education authority to place notices outside of the school. Where notice is required, it should be correct form.
In R v Lambeth London Borough Council, ex parte Sharp (1986) the relevant regulation must have to published in a local newspaper, and display on or near to the land, notice describing the development, and in each case such notice was required to the proposal should be made to the authority in writing within a specified period. However, Andy may grant an application for the Judicial Review because not to the prior notice regarding the new act against the Secretary of State for Transport. Now it is the time to decide Secretary of State for Transport is a public body or not and the issues are private law issue or public law issue.
The distinction between public and private law was important in relation to remedies. Here sources of power test will be applied. The powers of these bodies are limited by reference to the terms of the statutes, royal charters, or prerogative orders, under which they are created; they can be referred to us ‘bodies of limited jurisdiction’. Lord Diplock speeches in O’Reilly v Mackman support these arguments. The Court of appeals decision in R v Panel on Take-overs and Mergers, ex parte Datafin plc (1987) was held that Panel was a body subject to review, even though it exercised no statutory or prerogative power.
In this case, ‘functionalist’ approach was applied here. In case of R v Ethical Committee of St Mary’s Hospital, ex parte Harriot (1986) residual approach was applied. Therefore, Judicial review will be perfect to apply the case of Andy. After proving Secretary of State for Transport is a public body then he has to prove that it was public law issue. If he satisfied these then court will decide that he will get Locus standi or not. However, standing refers to restriction to the right to challenge the decisions of public law bodies by way of Judicial Review based on one’s connection with the decision.
Lord Wilberforce, in the landmark case- R vIRC ex parte National Federation of Self-Employed and Small Businesses (1982) recognised the importance of standing as a safeguard against the courts being flooded and public bodies harassed by irresponsible applications. If court applies the principle of Re Rose and Beatman then Andy does not get the permission in leave stage. Now if consider the fact that Hullair’s searches failed to find small pair of nail clippers which a passenger had in her handbag which were then discovered when she began to use them on the flight.
In response to this, the Secretary of State determined that the nail clippers were a ‘dangerous item’, fined Hullair ? 250,000 and confiscated the aeroplane where the incident occurred. It is unfair and it is unreasonable for a decision-making body to adopt it. A decision can be unfair in the sense that it bears no relation to the evidence before the decision – making body, and in that sense, it would be acceptable to also describe it as unreasonable.