Judicial review Analysis Paper

The [fictional] Inner City Regeneration Act provides for the establishment of the Inner City Regeneration Fund, to be administered by a new body called the Authority for the Regeneration of Inner Cities [ARIC]. Section 1 of the Act provides that in considering applications for grants ARIC should seek "to promote initiatives designed to address problems presented to inner cities by homeless persons".

ARIC refused an application for a grant made by Rummidge Society for the Homeless [RSFH] to replace the heating system in their shelter for homeless persons, located just off Old Street in Rummidge Inner City. In their application the Society had indicated that without this financial assistance the shelter would probably have to close. This would mean that there would be no overnight accommodation for homeless persons in the Inner City, which would cause problems for the police and others.

Explaining its decision to refuse grant support, ARIC stated that it was not its policy to support initiatives designed to cater for the needs or well being of homeless persons. Its primary purposes, it said, are to dissuade such persons from establishing themselves in inner city areas and to minimise their impact on the enjoyment of inner cities by others. The Chief Executive of ARIC is a School Governor of an Independent School located next to the shelter for the Homeless.

When RSFH applied for planning permission to open the shelter initially five years ago, the school submitted a formal objection to the local planning authority arguing that the use of the building as a homeless shelter would detrimentally affect the school. In order to properly advise Rummidge Society for the Homeless (RSFH) as to the grounds they may have for challenging the decision made by the Authority for the Regeneration of Inner Cities (ARIC) by way of judicial review, one must first establish what judicial review is, and whether it could be a course of action available in this situation.

Barnett explains that 'Judicial review has developed to ensure that public bodies which exercise law making power or adjudicatory powers are kept within the confines of the power conferred. '1 In this course of action the court's function is not to challenge the merits of any decision made by a public body, but rather whether the body was lawfully entitled to make the decision or whether the procedure followed was lawful. In other words, RSFH cannot dispute the fairness of ARIC's decision, but simply the legal basis for it or the way in which the decision was reached.

It must also be noted that only the lawfulness of decisions made by public bodies may be tested under judicial review, and thus one must first establish that ARIC would be considered a public body. There is often question as to this, and the courts will 'look at [the body's] functions'2 in order to establish whether it is a public body, but as stated by Lord Justice Lloyd, where 'the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review'3.

As ARIC have been given the power to administer the Inner City Regeneration Fund by the Inner City Regeneration Act it would seem that its decisions may be subjected to judicial review. It is provided in the Inner City Regeneration Act that when considering applications for grants ARIC should seek "to promote initiatives designed to address problems presented to inner cities by homeless persons". This could be said to be the statutory purpose for the exercise of the power to provide grants.

However the instruction given to ARIC to 'address problems' created by 'homeless persons' in 'inner cities' is quite vague. The Authority has adopted a policy of not supporting 'initiatives designed to cater for the needs or well being of homeless persons', because, it seems, they have interpreted their duty to regenerate inner cities by addressing the problem of homeless people as meaning that they should seek to discourage homeless people from 'establishing themselves' in inner cities at all.

One might argue that this is not the only possible interpretation of the words which describe a duty to 'address problems' that are 'presented to inner cities by homeless persons' and that the Act would allow the support of initiatives which seek to reduce their numbers through employment or housing schemes, or simply to keep them off the streets by providing overnight shelter as RSFH has done. As the case of R v South Hams District Council ex p Gibb4 illustrates, the decision making body must adopt the correct legal test as to what is meant by the Act or else it will be held to have acted unlawfully.

Gibb concerned the duty of the local authority to 'provide adequate accommodation for gipsies'5. South Hams DC concluded that Gibb and others were not gipsies and thus they had no duty to accommodate for them, but Gibb argued to the contrary. The legal test (or definition) adopted by the council, as to what a 'gipsy' was, had to be correct in order for the decision that Mr Gibb was not one, to stand. Thus if it could be found that the definition used by ARIC of the words in the Act is incorrect, then their decision to withhold the grant from RSFH would not stand.

However, the argument that ARIC's decision was unlawful because an incorrect legal test was used may not be the best course of action for RSFH to follow. Where there might be a 'spectrum of possible meanings'6 of the words used by Parliament the court is likely to allow the decision-maker to adopt its own policies and definitions because Parliament entrusted the decision-making power on the public body by statute. RSFH would probably have to prove that theirs was a case in which 'it is obvious that the public body, consciously or unconsciously [was] acting perversely'7 which is likely to be difficult.

This is not unlike trying to prove unreasonableness in the decision that was made by the public body. It is said that the applicant 'has a mountain to climb… decisions [that are] so unreasonable as to warrant interference jump off the page' at the judge, because the decision in question must be seriously unacceptable, completely unsupported by evidence, extremely oppressive or a fundamental error of fact. These are difficult conditions to fulfil and thus if it is possible to follow another ground for review it is usually advisable to do so.

RSFH might instead argue that ARIC abused their discretion by exercising power for an improper purpose. This ground for judicial review arises when the public body acts unlawfully by exercising its power for a purpose other than the purpose for which the power was granted. For example, in R v Ealing London Borough Council, ex p Times Newspaper8 the council was required to provide a comprehensive and efficient library service.

After Ealing stopped keeping newspapers published by the Times group as a gesture of sympathy towards the striking employees it was held that the motive, of providing support, and was entirely unrelated to the statutory purpose of providing a comprehensive library service. It was therefore improper. A ban on deer hunting as a result of an 'ethical' objection by Somerset County Council was held to be outside the requirement that they acquisition the land for 'the benefit, improvement or development of the area'9 in R v Somerset CC ex p Fewings10.