When a decision or action is subject to judicial review it is to say it can be challenged on the basis of the rules and principles of public law, which define the grounds of judicial review. However, each person, interest group or another governmental body may not satisfy the rules of standing for judicial review and therefore alternative remedies or appeals should be depleted before the expensive and time consuming process of judicial review proceedings is undertaken.
The legal control of governmental institutions or bodies by the courts can take a number of forms; governmental officials and bodies are liable to be sued, for example, for torts, breaches of contract and trusts- a private law action-or the activities can be subject to judicial review-a public law action. Public law's main contrast is that of private law. Private law can be defined as the law regulating the relations of private persons-be that individuals corporations or one another.
Public law, in broad terms, concerns activities and regulation of relations between governmental bodies such as the legislature, departments of central government and agencies. Here, the scenario provides the Secretary of State as representing such a governmental body. Groups and individuals clearly affected by this legislation will be advised here. The Truckers Guild can be classified as an interest group. Here, the Guild was not consulted as to the adoption of guidelines and also the imposing of a fee.
A preferred method for their claim would be to apply for judicial review (appeal would only be possible where Parliament had permitted it by statute). This is due to the fair procedure elements to review legality of which have been mistreated by the Secretary of State, which can be seen as consultation and a legitimate expectation (elements procedural justice) To continue, the Guild must apply for leave of the court before applying for judicial review and issue their claim under Civil Procedure Rules, part 54.
Any claim for review (judicial review the applicant must have permission (leave) of the Administrative Court. In order to proceed with judicial review, the Guild must first establish a sufficient interest (locus standi) Section 31(3) of the Supreme Court Act 1981 provides that the court will not grant permission to proceed with a claim for judicial review "unless it considered the applicant has a sufficient interest in the matter to which the application relates," and this has been given wide interpretation by the courts.
The test for deciding whether a claimant has sufficient interest was considered in R v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd1 The element of standing under the Human Rights Act 1998 the sufficient interest test is reconciled with the test under the Act. Section 7 of the Act requires that only a 'victim' (as Art 34 of the European Convention on Human Rights) may rely upon convention rights.
'Victim' appears to cover those directly affected and those 'at risk' of being affected. However, this standing holds more force within the context of the individual's case against the administration rather than the Guild's. With interest and pressure groups the issue of standing is difficult to determine contrasting decisions in R v. Secretary of State for the Environment ex parte Rose Theatre Trust2 and R.
Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement3 presents that it would ultimately be provided under the courts' discretion. The Guild would have to present a case within 3 months,4 that any challenge must be made "promptly. "5 For the grounds of their challenge, the Guild must qualify for the 'illegality,' 'irrationality' and 'procedural impropriety' heads for the grounds for judicial review (established in Council of Civil Service Unions v. Minister for the Civil Service, with Lord Diplock's decent)6
Though there is no general obligation to consult parties before making rules, which will affect interested parties,7 if a public body, the Secretary of State in the scenario, has published policy guidelines the doctrine of legitimate expectation may prevent it from departing from its policy without consulting the affected parties of which the Trucker's Guild would constitute. The Guild may also present the Secretary of State acting ultra vires in the plans to impose a search fee and no prior consultation. From the case Congreve v.
Home Office8 at both common law and statutory powers may be held by a court to be illegal with basic principles such as the rule that taxes may not be levied without the consent of Parliament. The ultra vires principle (illegality) within the context of legitimate expectation, an element of natural justice, a public body should not be able to fetter its discretion and with planning to demand a fee for searching the lorries would be a matter outside the jurisdiction of powers granted to the Secretary of State in the Act.
The authority (Secretary of State) may be held to have acted unfairly (hence illegally) if it departs from the policy without giving prior or adequate notice of the change (R v. Home Secretary, ex parte Khan9) Under the rules of procedural impropriety (or denial of natural justice) the Guild are entitled to be heard, audi alteram partem. It would be in the Guild's best interest to take their case to this level due to the formality of procedure documentation will provide publicity of which will bring the Guild public pressure and added strength to the case, which the government would hear.
A public law remedy that may be requested would be 'certiorari' (now this prerogative remedy has a new name, as do prohibition and mandamus, and certiorari is at the present a quashing order) under which is sought on three main grounds an action or decision is: ultra vires (the Secretary of State's plan to impose a fee), breach of natural justice (the Secretary of State legitimate expectation of consultation) and an error of law on the face of the record.
Under the restrictions established in O'Reilly v. Mackman10a private law remedy/action, such as an injunction, can be enforced because it requires a party, the Secretary of State, to stop doing a particular action i. e. the imposing of a search fee. The type of private law injunction appropriate here would be a prohibitory injunction, preventing a further ultra vires act.
However, in order to obtain the remedies of private law, it is not appropriate to gain through the judicial review procedure since a dispute of fact would be the process rather than the review of decisions taken in the process and Part 30 of the Civil Procedure Rules enables a transfer between public and private law procedures simpler.