This problem is about various grievances of citizens affected by the government exercising statutory powers. The author will analyse the facts of each case to determine any possible grounds of challenge, apply the relevant law and advise each client as to the most appropriate remedy to resolve their grievances in light of availability, likelihood of success, effectiveness and cost implications. While statute may provide guidance on how a public authority is to exercise its delegated powers, more often strong discretionary powers are granted as in this case to the Secretary of State (hereinafter SoS).
The courts have developed principles of administrative law for public authorities to follow that prevent abuses or misuses of power. Discretionary powers are not absolute but are subject to rules of reason and justice. 1 However, often public authorities act unlawfully. Judicial review is the main public law remedy where judges review the legality of acts and decisions of public authorities, both procedurally and substantively. It is also possible to indirectly challenge the legality of administrative acts and decisions as collateral attacks in defence to civil or criminal proceedings.
2 Other methods of settling grievances include appeals, inquiries, private law actions, internal complaints procedures and the Parliamentary Commissioner for Administration (hereinafter Ombudsman). Various standards and intensity of reviews are applied by the courts depending on the subject matter. The main headings of review are; illegality, irrationality or (controversially) now known as Wednesbury unreasonableness and procedural impropriety.
Breach of a legitimate expectation of a substantive outcome is also a recognised free-standing ground of judicial review. 3 Proportionality is not yet generally available as a standard of review but is now used where Convention rights and European Union law are concerned. There are various sub-headings that fall under each main heading but in this problem, focus will be on procedural impropriety; that is breaching procedures imposed by statute or the common law rules of natural justice or fairness such as consultation, hearing, bias, notice and reasons.
The common law rules of natural justice or fairness are still developing and what is required depend on the nature of interests affected, the power to be exercised and nature of sanctions, if any, in an individual case. 4 Substantial issues pertaining to the substance of Regulations and legitimate expectations will also be relevant. The Ombudsman investigates maladministration causing injustice,5 involving matters of administrative processes such as avoidable delay, wrong advice, unfairness, and bias among others.
6 Firstly, general guidance will be given to all clients on the availability, procedures and effectiveness of judicial review, private law actions and the Ombudsman. It will be assumed that no right of appeal exists and mediation is generally not available. Judicial review procedures are governed by the Civil Procedures Rules (hereinafter CPR) and the Senior Courts Act 19817 (hereinafter SCA 1981). Complainants are usually not permitted to raise claims by ordinary writ8 except where the infringed rights are private law rights. 9 Judicial review consists of the permission stage and the substantive hearing.
Complainants are expected to have an arguable case and to have exhausted alternative remedies first before permission is granted. 10 Applications must be lodged promptly and in any event not later than three (3) months after the grounds of the claim first arose11, although courts have discretion to extend time where a good reason exists. Permission or relief may be refused for undue delay, or if in the court's opinion relief is likely to cause hardship or prejudice to individual rights or would be detrimental to good administration.
The Ombudsman, regulated by the Parliamentary Commissioner Act 1967 (hereinafter PCA 1967),13 takes issues at her discretion and when satisfied that it would be unreasonable to expect the complainant to seek redress in courts or tribunals. 14 Complaints have to be raised through a Member of Parliament15 within twelve (12) months of the complained matter coming into notice. In judicial review, standing is based on a sufficient interest test16 whereas a person aggrieved or their personal representative can bring a complaint to the Ombudsman.
Judicial review remedies are discretionary. Quashing orders, mandatory orders, declarations or injunctions may be given and the case may be remitted back for reconsideration in light of what would have emerged upon the hearing. The Ombudsman has no formal power to award a remedy, but makes findings and recommendations. Although her findings are not binding on the SoS, a claimant may seek judicial review on rationality grounds if the SoS rejects them. 18 Her remedial principle is to restore the complainant to the position they would have been in had the maladministration not occurred.
The Ombudsman's effectiveness stems from his ability to focus public and parliamentary power on the citizen's grievance. No plea of secrecy can be made to her as she is subject to the Official Secrets Act. 19 Judicial review and litigation in general are expensive and usually disproportionate to the amount at stake. 20 The losing party usually pays for both, his own and the successful party's costs. 21 The Ombudsman charges no fees and there is provision for payment of expenses to the complainant.
22 All parties will meet the standing requirements in both judicial review and the Ombudsman except in the case of the Pilots Association where it will be discussed separately. Finally, there is no right to damages for maladministration23 or for invalid acts of public authorities in the absence of an actionable tort. 24 However, courts are reluctant to infer that public authorities owe a duty of care in exercising discretion powers. a) Section 1 by its interpretation, imposes a mandatory duty on the SoS to consult relevant parties before making Regulations. Hullair alleges that they were not consulted.
In Aylesbury Mushrooms25 it was said that even though the determination of who is a relevant party subjectively lies with the SoS, it is subject to bona fides and reasonableness. Hullair is reasonably a relevant party who is required to administer the Regulations regularly. The SoS's failure to consult Hullair is a procedural ultra vires act as it is a condition determining the SoS's jurisdiction. The challenge can be mounted directly in judicial review or indirectly as a collateral attack in defence to the enforcement proceedings. Delegated legislation can be invalidated.
In some cases remedy was given not to apply the impugned Orders to those not consulted,26 and in others, the courts have refused to revoke them in the absence of special circumstances. 27 Again, substantially the Regulations are vague and bad for uncertainty. The phrase 'dangerous item' is not precisely meaningful. The Regulations do not provide adequate information on what is dangerous, leaving wide discretion and room for arbitrariness. Laws which carry penalties for infringement must be certain, clear28 and provide adequate information and guidance to those who must obey them.
The punishment imposed is not clear and adequate as Hullair have not been told whether the aeroplane will be returned or not. Further, Hullair was not given a hearing, breaching common law rules of natural justice. The audi alteram partem maxim which means hear the other side was in Ridge30 said to apply to every body of persons given authority to adjudicate upon matters with civil consequences to individuals. A duty to act judicially can be inferred31 which would require the SoS to give notice to the charge and an opportunity to hear the defence before imposing the punishment.
Hullair can also challenge the penalty imposed as excessive and disproportionate to the misconduct. In the Bill of rights 1869, a recognised principle of justice is that penalties should not be excessive. In Hook,32 the court said that it can interfere by certiorari if a punishment is altogether excessive, out of proportion to the occasion and is reasonably evident. 33 To confiscate the aeroplane on top of a fine because of a small nail clipper appears excessive. The challenge is most likely to succeed and the penalty and the Regulations quashed or invalidated.
b) The Association is aggrieved by the delays to issue licences, and by the SoS sticking rigidly to the provisions of the Act, causing loss of earnings to its members. The SoS may well have a justified public interest reason in sticking rigidly to the Act's provisions and also it may be that he has no discretion over this matter as it is the SoS's duty to enforce what Parliament has enacted. However, delay is a form of maladministration. 34 The pilots likely want compensation for their losses while the department considers their applications. There is no general right to damages in judicial review for maladministration.
35 Judicial review is not worth pursuing. The Parliamentary Ombudsman is more likely to get financial compensation for the pilots. The pilots will have to make complaints on their own as representatives are allowed only where persons aggrieved are unable to act for themselves. 36 Wade and Forsyth37 state that minimising delay is very important in administration and whether the subsequent decision is favourable or not the applicant will have suffered. 38 The Ombudsman's principle of being customer focussed entails public bodies dealing with people within any published time limits.
Public authorities are to act reasonably and to address any unfairness caused by applying the law strictly,40 putting things right by compensating for financial losses, losses of opportunity, inconvenience and distress. 41 Wade and Forsyth42 note that the PCA's reports show a great deal of success in obtaining cooperation and compensation43 where almost certainly no remedy would have been obtained otherwise. They can also raise complains using internal complaints procedures. The pilots are advised to approach their MP's to refer their cases to the Ombudsman.