The court concluded that this decision was ultra vires. Also, using a lawful power for an improper purpose can also be considered ultra vires as we have seen in the case of Air 2000 ltd v Secretary of State for transport (1989)5 Under section 2, the Secretary of State must consult organisations representing the owners of private residential homes before making regulations. We know that the organisation that Ben is a member of, the Old People's 'Home Owners' Association, had not been consulted. However, the Secretary of State has consulted other organisations.
Since it was a requirement of section 2 that they take place before regulations were made, any regulations made without this step being taken could be liable to procedural impropriety. However, the fact that one organisation was not specifically invited to submit opinions is unlikely to be fatal to the regulation in question. Ben should have been consulted about the new regulations as it is a national organisation with many members. This is not fair on Ben when other similar organisations have been asked for there views.
This is therefore procedural impropriety (procedural ultra vires). The procedural ultra vires principle was seen in the Aylesbury Mushroom case (1972)6. In this case the minister of labour did not carry out the correct procedure because he had not done as required which was to consult the mushroom growers. As a result an order establishing a training board was invalid against mushroom growers. (2) Old people's home owners are being asked to pay i?? 5,000 for the vague purpose of assisting in the running of the Secretary of State's department.
As seen in the case of Aylesbury Mushroom (1972) above, the ultra vires principle applies when authorities act beyond powers specifically or impliedly granted to them by parliament. The courts have also ruled that the use of powers for a purpose other than the intended purpose also amounts to illegality. The power granted in the 2006 act is for the purpose of safeguarding the well being of old people in long-term homes. The act did not mention that the purpose was to raise revenues for the running of a government department is very likely to be seen as an ultra vires act.
7 This is also unreasonable irrationality as this has been shown in the Wednesbury test. In the Wednesbury principles of unreasonableness it states that in many cases it is difficult to show that a decision is so unreasonable that no reasonable public body could have come to it. However looking at this principle this also leaves a large discretion to the judge in each individual case. (3) Ben's company has been proscribed under section 3 of the act because of his political views. Under the terms of the Human Rights Act 1998, any breach of an Article of the European Convention on Human Rights is a ground for judicial review.
Under Article 9 everyone has a right to freedom of thought, conscience and religion. Article 10 provides for a freedom of expression. A public body acting to the detriment of an individual because of a political view he has held or a political protest he has made will fall foul of these two articles according to the consistent jurisprudence of the European Court of Human Rights. This is a clear ground of Right to a fair trial of article 6 of the Human rights Act. This is a clear ground for judicial review and could be brought before the Strasbourg court if it was unsuccessful before UK courts.
Only a victim can bring a judicial review on the Human rights article 6. It has not been taken into account that Bens Company has an excellent record and is known for its high standards in the industry this is relevant consideration. This has been unfair for Ben as he took a peaceful protest march against the Iraq War which Ben remembers that the Secretary was very much n favour of the war. This shows us that there has been abuse of discretionary powers as the letter states the reason why his company has been proscribed is "due to your unsuitable political views and national security concerns".
Clearly we can see here that this unfair and Ben can bring a judicial review action on the basis of Human Rights. (4) With regards to the hearing that Ben is given to challenge the decision, it has Clearly not been carried out in accordance with the principles of natural justice. There has not been a right to a fair trial. There has been procedural impropriety. Ben has not had a fair hearing as he is only given one days notice of his hearing under the Human Rights article 6 this is unfair. Also on top of this Irene who is the owner of the other
main caravan site is in the area is chairing the hearing. This under the Right to a Fair trial Article 6 is unfair as everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Having Irene chairing this is biased this should be independent as the rival is in Irene's own interest; this is very unfair Irene was thinking of her own benefit as it is this will benefit Irene financially. Rule against bias is strictly enforced for judges.
Usually expressed through principles of Judicial independence and judicial impartiality. i. Impartiality: a state of mind in relation to the issues and the parties. ii. Independence: a status or relationship to others, the executive branch of Government, that rests on objective conditions or guarantees. Complete liberty for Judges to hear cases-without interference. Three components: security of tenure, Financial security and institutional independence. iii. This distinctions are set out- in the Bell Canada case.
On the reasonable time element the European Court of Human Rights in Darnell v United Kingdom (1993) held that the UK was in breach of the article. The case involved a question of whether a doctor had been unfairly dismissed. The dismissal had taken place in 1984 and proceedings started soon afterwards, but the final decision of the Employment Tribunal on the case had not been made until 1993. Ben has not been able to see his report which he has concerns about the accuracy of also Ben is only allowed five minutes to put forward his views.
Which is again not fair and this is not a proper procedure therefore it is again procedural impropriety. Irene is thinking of her own financial interest. These factual circumstances are sufficient to constitute a breach of the Human Rights. For all of these reasons, Ben could initiate a judicial review as he is sufficiently concerned. It would be based on the Secretary of State acting without powers, using powers in an unauthorised way and breaching procedural rules. One of the acts may also be in breach of the European Convention on Human Rights. For these reasons he is likely to succeed in his challenge and have the acts against him quashed by the court.
R v Thames Magistrates' Court (ex parte Greenbaum) (1957) 55 LGR 129 R v IRC (ex parte National Federation of the Self Employed)  AC 617 Council of Civil Service Unions v Minister for the Civil Service  AC 374 Air 2000 Ltd v Secretary of State for Transport 1989 SLT 698 Sutherland, R, Introduction to Judicial Revue in Scotland, available at www. jonathanmitchell. info/uploads/judicial review. pdf, accessed, June 13 2006.