Public Law – Judicial review

In order for Waterpebbles plc (W) and the SPLC (SP) to succeed in their claims to have Chalpter's (C) decisions reviewed, they must prove that the authority acted outside the limits of their power or have been unreasonable in their use of such power. If C has operated in excess of the powers conferred upon them, through statute, then they have acted illegally or ultra vires. This essentially means that 'the decision maker must understand correctly the law that regulates his decision making power and must give effect to it' 3.

It would be up to the courts to decide whether the public authority's actions are in breach of a statutory requirement and thus ultra vires. If, however, the public authority was not in breach of the commanding statute, they still may be open for review if their actions are deemed unreasonable4. The decision's made must therefore be rational under the circumstances, as the courts will not accept 'a decision which is so outrageous in its logic… that no sensible person who applied his mind… could have arrived at it'5.

In the event that neither an illegal or irrational decision has been made, the individuals may still be able to have it reviewed if some procedural impropriety has been performed. Even upon a decision that is sound in its legal disposition, the courts may still be able to review the decision if it has been reached in absence of either natural justice or procedural fairness. This would allow a claim to be made upon an authority that although has enforced such provisions effectively, failed substantially to follow 'set in stone' statutory guidelines.

In order to advise W and SP sufficiently each of these three principles will be addressed in relation to the regulations imposed by C. Decisions made by an authority may be deemed as unlawful for two reasons, where the decision is contrary to the provision of statute or is irrational or procedurally unfair, as explained earlier. We will look to the first of these, which will require examination of regulations implemented by C compared to those set out in The Regulation of Booksellers Act 2003 (RBA).

As mentioned earlier, a decision may be deemed illegal where it is 'in excess of [the powers granted to] decision making bodies'6. It is therefore important that C has used such power given within the confines defined by statute. W and SP could look to the regulation regarding the book Hurry Petal for grounds of illegality, as the RBA states that 'Designated Titles should only be sold to those over the age of 15'. The regulations implemented by C, however, place the minimum age in relation to this book at 16, a decision which could certainly be perceived as C acting ultra vires.

The case of R v Richmond where 'the council had misconstrued its powers and, accordingly, acted ultra vires'7 illustrates that imposing regulations not expressly stated by statute, will often deem decision to be held unlawful. C may argue that the RBA allows for 'additional regulations as the local authority deem appropriate' and that a book containing both offensive genres should be subject to stricter rules in the interests of public policy.

This use of excessive power may extend to the regulation relating to the title The Lord of the Wringer as W and SP may wish to highlight the absence of rules regarding 'displaying' books in shop windows. There is no mention of this in the RBA, however C has implemented a regulation banning the display of the above book 'where the book is freely accessible by under 15 year olds'. There are two reasons why this decision is irrational; firstly, this would limit W's advertisement potential unnecessarily and secondly, the regulation is itself too ambiguous as surely all bookshops are located in areas 'accessible' to under 15's.

These regulations can be compared to those imposed by the Wednesbury Corporation8 where Lord Greene MR detailed many grounds upon which a decision can be attacked, encompassing them under the general term of 'unreasonableness'9. W and SP could look to the regulation relating to Offensive Book licences, as C have indicated that without a licence no books of this nature are to be sold. This is contrary to regulation (a) of the RBA as it clearly indicates that this licence is only compulsory within two miles of an 'educational establishment'.

This may also be deemed as the authority acting ultra vires. Obviously C has to use its discretion when implementing regulations to ensure that the parenting act is followed to give it the desired effect, however W and SP may argue that C has given regulation (a) too wide a scope. When implementing regulations, a local authority must adhere to any procedures that have been expressed by the parenting act, as otherwise this could lead to a regulation/decision that has been reached in the absence of procedural impropriety.

Lord Denning indicated in Bradbury10 that there must be 'compliance with rule of law' and that decisions reached must not be procedurally ultra vires. W and SP may look to regulation (d) regarding literary consultations and question why C has failed to allow for such a consultation to have taken place before issuing such legislation. The Aylesbury Mushroom11 case would certainly add weight to their claims, where consultation was required with all those affected by such decision making bodies. When looking to counter this claim, C may draw attention to the end of the regulation in question, emphasising on as the local authority sees fit'.

If the court construed this to be no more than an option available at the discretion of the authority, then W and SP's claims would be rejected. W and SP could argue that there had been a legitimate expectation12 created through regulation (d) of the RBA which had failed to be recognised by the regulations imposed by C13. If the courts feel that a legitimate expectation did exist, it would provide grounds for W and SP to apply for judicial review. If the courts agree that judicial review can be applied for then W and SP may seek remedies which are divided into two categories; prerogative orders and non-prerogative remedies.

C's decisions may be remedied through Certiorari where illegal, irrational or procedural improper decisions can be quashed and therefore would not have to be followed. The non-prerogative orders of Declaration and Injunction could provide a more effective remedy for W and SP. A declaration would allow an illegal14 or invalid15 decision by a legal authority to be challenged and thus deem the decisions void. An injunction may be sought to restrict C's overuse of power, with the result that any decisions reached ultra vires will be void.