Constitutional and Administrative Law

Judicial review is a function of the legality of the lawfulness of administrative decision. It is also a function of the competing demands of administrative decision making. In the United Kingdom, the sovereignty of the parliament entails judicial subservience to the total supremacy of enacted law via the legislature. Judicial Review is the enforcement of judicial restraint on the legislative and executive organs of the Government. The concept of Judicial Review is based on the theory of limited government and on the history of two laws, the ordinary and the supreme i.e. The Constitution.

Arbitrary decisions for which a public official cannot be held accountable represent important and dangerous erosion. A breach of the rule of the law raises an important and justifiable legal issue after due consideration to the concern regarding judicially cognizable standards. In general the only remedy for the excesses committed by the executive is judicial review. This essay deals with the excesses committed by the British Fungi Agency’s Managing Director and the Parliamentary Commissioner for British Fungi and the remedies available to their victims.

The discussion begins with a description of the origin of the process of judicial review. Then the procedures to be adopted for judicial review are described. After this, a number of cases in which the process of judicial review was resorted to by the aggrieved parties in order to counter the arbitrary and ultra vires actions of the Executive have been discussed. Finally, the injustice done and the remedies available under judicial review in respect of the ultra vires actions of the British Fungi Agency have been discussed in detail.

Reviewing the decisions of the lower courts, tribunals and administrative bodies by the High Court is known as judicial review. Its origin lies in the Supreme Court Act[1]. In England and Wales the Civil Procedure Rules requires that any claim form in respect of an application for judicial review must be filed within three months from the time that the grounds to make the claim first arose[2]. Judicial review permits people with sufficient interest in a decision or action by a public body to seek judicial review in respect of the legality of an enactment or a decision and action or failure to act in relation to the exercise of a public function[3].

Judicial review of administrative action empowers courts to deem unconstitutional and unenforceable any law or order by a public authority which is inconsistent to or in conflict with the law of the land. Judicial control is the power of the courts to examine the legality of the officials’ acts and safeguard essential and fundamental rights of citizens. The aim of judicial review is to ensure that no authority abuses its power and that the individual receives just and fair treatment. This role of judiciary in protecting citizens against the excess of officials has assumed greater important due to the increase in the powers and discretion of the public officials in the modern welfare states. However, the courts can intervene only when invited to do so by any person who believes that his rights have been rescinded or will be rescinded due to some action of a public official.

In granting these remedies the court enforces the rule of law, which requires that public authorities have shown legal warrant for what they do, and in the absence of the same their action is deemed to be illegal. In general the legality of their acts is always open to attract, and there is no resumption in their favour[4]. The aim of conferring power on a particular administrative authority is that the power must be exercised by that very authority itself without any sub delegation to any other authority or official[5]. An administrative authority must exercise the power within the limits of the statute and if it exceeds those limits then its action will be held to be ultravires. In London country council v Attorney General[6], the court granted an injunction against the operation of buses by the council.

In APP v Wednesbury[7], the defendant had imposed the condition that children under the age of 15 years could not be admitted to any entertainment. The plaintiff argued that the defendant was imposing a condition that was unreasonable and consequently ultra vires. The Court of Appeal held that they can interfere with an act of an executive authority if it is established that the authority has contravened the law and that the condition imposed by it was unlawful.

In R v Derbyshire CC ex parte The Times Supplement[8], The Times had published an article about the chairman of Council, which he claimed was libellous. Accordingly, the Council decided to withdraw its advertisements for teachers from The Times Supplement. The court held that the Council failed to adduce any valid reason for not advertising in The Times, which was the leading trade paper. The Judge while dismissing the claim held that it was impossible to believe that there was no link between the dispute and the decision and hence the Council was held to have acted maliciously and in bad faith.

In R v. Somerset County Council exparté Fewings[9], the council had passed a resolution prohibiting stag hunting on its land. Somerset County Council, appropriated land which had been used by the Quantock Staghounds since 1920s. The applicants, as representatives of the hunt, applied for judicial review of the resolution. On behalf of the council, it was argued that the relevant Local Government Act[10], which had not been considered during the councillors' debate, gave it the power to make the resolution. The resolution was therefore quashed.

On appeal, the Court of Appeal, by a majority, upheld the decision at first instance but employed a significantly different reasoning in arriving at its decision. This case raises important issues of judicial review, like irrelevant considerations, the democratic legitimacy of the council and the adequacy of the present grounds of judicial review to deal with political protest by public authorities.

The Wednesbury principles[11], followed in decision making are, first, to take into account all relevant considerations, second,  not to consider irrelevant considerations and third, not to take a decision which any reasonable person properly directing himself would have avoided. The Court has always adjusted the threshold of unreasonableness according to the importance of the rights involved and it applies a "greater intensity of review".

             In Nottinghamshire CC v Secretary of State for the Environment[12], the government assumed power to limit the local authority in its raising of local rates. The claimant while accepting the right of the defendant to do so however pleaded that the defendant was acting irrationally. The House of Lords clarified that this was tantamount to stating that the secretary of state had taken leave of his senses and therefore dismissed the argument as his deeds did not meet the requirements of the lunacy test.

In Backhouse v Lambeth LBC[13], the Government instructed the councils to raise more money from council house rates and specified an amount. Lambeth being chary of raising rents, fixed this amount on one house, which was unoccupied. The court held that this met the lunacy test as it was clearly ridiculous.

In R v Cambridge AHA ex parte B[14], B was a young child dying of cancer and the AHA stated that it could not afford the cost of the treatment. The Court of First Instance held that this was in breach of Wednesbury principle and therefore an unlawful decision. The Court of Appeal reversed this judgement stating that the court should not be involved in such a decision. This indicates the unpredictability of this test.

The role of proportionality was considered as a replacement for Wednesbury irrationality in R v Ministry of Defence ex parte Smith[15], service personnel with exemplary service records were dismissed due to the army policy prohibiting homosexuals from serving in the military. The UK Courts held that this was an unfair policy, but the court deigned to intervene as the policy was due for a review.

In Smith & Grady v UK[16], R v Ministry of Defence ex parte Smith was put up to the ECHR on grounds of breach of human rights. The ECHR did not mince words and stated unequivocally that this policy was unlawful and constituted a breach of human rights.

In R v Lord Saville of Newingate ex parte A[17], paratroopers overlooking a parade, killed unarmed civilians, claiming that they had been shot at. The Inquiry called upon the soldiers to give evidence, but these soldiers fearing for their lives sought anonymity. However, they were forced to testify with the concession that only their surnames were to be given. This decision was challenged by these soldiers. The Court of Appeal held that justification could not outweigh the potential risk to the soldiers’ right to life and that the threshold test was not good enough for the protection of human rights.

In R (Daly) v Secretary of State for the Home Department[18], it was discussed whether, the legislative objective could be sufficiently important to justify limiting a fundamental right and whether; measures taken to deal with it were reasonably connected to it. The judge held that use of reasonable means should be no more than what is absolutely necessary. Steyn LJ held that this new test would be more intrusive than Wednesbury. Where human rights are not involved the Wednesbury test is still used by courts, but in respect of human rights courts have resorted to the test of proportionality. This test is an improvement over the Wednesbury test.

Fred’s  Case.

Fred’s customers prefer to buy loose mushrooms. When Fred represented this fact to the Managing Director of the Agency, he most callously, refused to entertain him. This is against the principles of natural justice.  Whenever, decisions are taken which will have a very serious adverse effect on his livelihood, his representation in this regard has to be entertained, but no such cognizance of his grievance was taken let alone redressed. It is essential that the power conferred on an administrative authority by statute must be exercised on the considerations relevant to the purpose for which it is conferred; otherwise the power of the authority will be ultravires. The person harmed by such action can challenge it by resorting to judicial review.

In Lavender v Minster of Housing and Local Government[19], the defendant bought a quarry to produce gravel. The local council was agreeable to this, but the Ministry of Agriculture opposed this decision, as only the Minister of Housing and Local Government could decide on planning permission issues. The court held that this was unlawful because the council did not exercise discretion and merely followed the instructions of the MoA.

In Ellis v Dubowski[20], the film council which allotted licenses to cinemas with the condition that only films approved by the BBFC can be screened. The Council whose job was to decide which films could be shown delegated this power to the BBFC. The court held that such delegation was unlawful. In our case Fred was issued a license by the MoA, hence the BFA cannot revoke it, since this power was not delegated to it by the MoA.

Gloria’s Case.

In gross violation of the principles of natural justice and fair hearing the BFA refused to process Gloria’s licence application. The BFA ignored the instructions of the MoA, hence this can be deemed to be Ultra vires. Whenever, an application is made before the authorities, it is the first and foremost responsibility of the concerned official to process the application. This was not done in the case of Gloria, stating that the quota for licensing had already been exhausted.

In Laker Airways v Department of Trade[21], Laker Airways applied for a license from the Civil Aviation Authority, which it granted. The Secretary of State changed his decision and decided that a license should not be granted to Laker Airways. Since, only the CAA can revoke a license, the SoS produced a new guidance requiring the CAA to revoke the license issued to Laker Airways. On appeal the court held that this action was unlawful. Analogously, denial of a licence to Gloria on the mere grounds that the quota was completed is unlawful.

In British Oxygen v Board of Trade[22], the board did not make grants for products costing less than £25. British Oxygen’s cylinders were sold at £20 each and its application for a grant was refused. The House of Lords held this to be unlawful and that the board’s policy had to be flexible and most importantly it must desist from rejecting all the applications. Therefore in respect of Gloria, the BFA should not have ignored her application on the pretext of policy.

Harry’s Case.

The statutory instrument by which the BFA was formed, had specified that any regulation made by it must be based on the requirements of the industry and that this was to be determined by consulting with the major producers in each region of the United Kingdom. Despite, Harry being the sole major producer of mushrooms in his region of East Anglia, he was not consulted and it was decided by the BFA that mushrooms would have to be grown in non peat based substances. Harry’s plea that such a course of action would ruin him and his sizeable number of employees fell on deaf ears. Further, his plea that his customers were totally satisfied with the colour and taste of these mushrooms grown on a peat based soil were also ignored.

In Cooper V. Wandsworth Board of Works, the defendant Board was empowered to demolish any building without giving any opportunity of hearing if it was erected without prior permission and accordingly the plaintiff’s house was demolished. The court held that the Board’s power was subject to the qualification that no man can be deprived of his property without having an opportunity to being heard[23]. Similarly, Harry’s livelihood cannot be deprived without his being given a fair hearing.

The Audi Alteram Partem, is a principle of natural justice, which requires that there must be fairness on the part of the deciding authority and nobody can be condemned without a fair hearing. This principle of natural justice is violated in Harry’s case because without any hearing or consultation he is being deprived of his livelihood.

The remedies available to Fred are that he has to approach the Parliamentary Commissioner for BFA. If his grievance is not redressed at this stage he has to lodge a complaint with the local government ombudsman. If even at this stage he does not get justice he has to approach the High Court for a judicial review.

Gloria has to approach the local government ombudsman and if her plea fails, then she has to approach the High Court for a judicial review.

            Harry he has to approach the Parliamentary Commissioner for BFA, and if he is unsuccessful he has to approach the local government ombudsman. If he is unable to obtain justice even at this stage he has to approach the High Court for judicial review.

            The remedies that the court may award are discretionary and might be:

Quashing of a decision or action which has already been taken. Issuance of an order to prevent an illegal, irrational or improper action or decision. Issuance of an order to enforce the performance of a statutory duty. Declaration in respect of the law or the applicant’s rights. Issuance of an injunction to enforce the performance of a statutory duty or the prevention of illegal acts. An award of damages. Bibliography.

Allan T R S, Law, Liberty and Justice: The Legal Foundations of British Constitutionalism (Oxford 1993). Bailey, Jones & Mowbray, Cases and Materials on Administrative Law (3rd edn Sweet & Maxwell 1997). Baldwin R, Rules and Government (Oxford 1995). Cappelletti M, The Judicial Process in Comparative Perspective (Oxford 1989). Daintith T and Page A, The Executive in the Constitution (Oxford 1999). Dicey A V, Introduction to the Study of the Law of the Constitution (London 1885). Errera R, 'Dicey and French Administrative Law: A Missed Encounter' (1985) PL 695. Feldman D J, 'Judicial Review: A Way of Controlling Government?' (1988) 66 PL 21. Forsyth, C & Elliot, M, ' The Legitimacy of Judicial Review' (2003) PL 286. Griffith J A G, 'The Political Constitution' (1979) 42 MLR 1. Halliday S 'The Influence of Judicial Review on Bureaucratic Decision-making (2000) PL 110. Hammond A H, 'Judicial review: the continuing interplay between law and policy' (1998) PL 34. Harris B V, 'The 'Third Source' of Authority for Government Action' (1992) 109 LQR 626. Jacob JM, The Republican Crown: Lawyers and the Making of the State in Twentieth Century Britain (Dartmouth 1996). Loughlin M, Public Law and Political Theory (Oxford 1992).

[1] Section 31 of the Supreme Court Act 1981 [2] Civil Procedure Rule 54.5(1). [3] Civil Procedure Rule 54.1(2). [4] Wade, H.W.R, Administrative Law, Oxford: Clarendon Press, 1971, p 46 – 105. [5] White and Collins V. Minister of Health (1939), K.B. 838. [6] (1902) A.C. 165 [7] (1948) 1 KB 223 [8] (1991) COD 129 [9] (1995) 1, All ER 513. [10] Section 120(1) (b). Local Government Act 1972. [11] Principles laid down in the case Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223. [12] (1986) 1 All ER 199 [13] (1978) 116 Solicitor’s Journal 802 [14] (1995) 1 WLR 898 [15] (1996) QB 517 [16] (2002) 29 European Human Rights Reports 493 [17] (2000) 1 WLR 1855 [18] (2001) 2 AC 632 [19] (1970) 1 WLR 1231. [20]  (1921) 3 KB 621. [21] (1977) 2 All ER 182 [22] (1971) AC 610. [23] (1863). 14 CB (NS) 180