The realms of private law

The Smokers Society, an interest group, was clearly under an assurance by the Secretary of State of the limit of cigarettes for personal use. The change in policy by the Secretary of State shaped a legitimate expectation, that the limit of cigarettes would be 12,000, rather than the now 8,000 this change of which the Society was not consulted about. The fact that the Secretary of State declined to have further contact with the Society can be construed as maladministration. Before any procedure can be advanced, the Society must gain leave of the court i. e. acquisition of permission to proceed and their case must be made within the three month time limit set in the Civil Procedure Rules part 54 rule 54.  

The 'sufficient interest' test must also be qualified, again at the courts discretion R v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd11 with this group, they have a stronger case with its maladministration claim. Without being consulted the Smoker's Society were under a false belief and relied upon the detriment and therefore the Secretary of State shaped a substantive legitimate expectation.

The Act specifically states the decision maker-the Secretary of State-prescribes a process that is required to undertake prior to exercising a statutory power, that of which is to consult interested parties. Therefore the judge in this case will be able to derive that the procedural requirement prescribed in the statute is a mandatory requirement placed upon the decision maker, requiring strict and genuine observance (Agricultural, Horticultural and Forestry Industry Training Board v. Aylesbury Mushrooms Ltd12)

Since the Secretary of State declined any further contact with the Smoker's Society this can be interpreted as a ground for maladministration. Maladministration is not a concept defined in the Parliamentary Commissioner Act 1967 however, the "Crossman Catalogue" is an accepted description of the term referred by Lord Denning in the case of R v. Local Commissioner for Administration North East England, ex parte Bradford M. C. C13 of which maladministration may include "bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on.

" The publicity of a formal inquiry of the process of which the Secretary of State had decided to adopt would be of great public interest and would be worthwhile the cost. Remedies available to the Smoker's Society within the public law context are those of which are headed under the prerogative orders. The Secretary of State can be said to have acted unlawfully or ultra vires in not consulting the Society consequently a quashing order could be sought.

In the realms of private law a declaration confirming the legal status of the relationship may be sought, however the remedies through judicial review may be more beneficial. Tony as an individual may gain a sufficient claim through the Trucker's Guild if he were a member, however he would gain stronger standing as a lone applicant. Under the HRA 1998 he would have a strong claim for the 'victim' test. And the time limit to put forward a claim within three months applies. His arrest could be seen as the Customs officer's acting ultra vires of what the Act stated that they could enforce.

The statute states stop and search is permitted and that fines and the confiscation of vehicles are permitted; however detainment was not explicitly stated within the statute. For a detained individual habeas corpus may be sought to challenge the legality of the administrative order on which detention was based. The correctness of Tony's detention is not reviewable, however its validity is. Correctness of detention can only be challenged on appeal (ex parte Hind14), which could be an option for Tony as well as the judicial review claim.

In assessing the validity of detention, general principles of administrative law are applied (R v. Governor of Pentonville Prison, ex parte Osman15) In a private law context of remedies Tony could claim a restitutory claim due to the Secretary of State has gained, as a representative of the government, a benefit at the expense of Tony and this benefit-that of the sale of the lorry and the proceeds providing the exchequer-was unjustly obtained (Congreve v.

Home Office16) Tony could approach the ombudsman and make aware of his case before the application for claim is processed in an inquiry through the Parliamentary Commissioner. Crashulike Ltd a company with 'sufficient interest' as a haulage country (Section 31(31) of the Supreme Court Act 1981) can be established via the grounds on which the review may be based those of irrelevant consideration, bias and misfeasance in public office.

Under the grounds of irrelevant consideration (illegality) if a body is acting under statutory authority takes an irrelevant consideration into account, such as this case provides that the Secretary of State's suspicion of smuggling by the haulage company based upon his dealings with them previously, or ignores a relevant consideration then the resultant decision will be open to a challenge (Associated Provincial Picture House Ltd Wednesbury Corporation17) (the company's claim must be forwarded within the three month time limit stated in the Civil Procedure Rules Part 54) Essentially the court will observe whether the decision making body-the Secretary of State-has addressed itself to all relevant factors, the court will not be concerned with the question of weighting given to those factors (Pickwell v.Camden London Borough Council18)

With the context of nemo judex in causa sua (rules against bias under procedural impropriety/denial of natural justice) the element that the Secretary of State has had dealings with this particular haulage company is likely that the company can claim that and due to this bias the Secretary of State based his decision to investigate them. In the context of irrationality (or 'Wednesbury unreasonableness'19) Judges created a fiction by saying that, in giving a power to a decision maker, Parliament would never expect the decision maker to use the power unreasonably.

Thus, this decision maker using his discretionary powers unreasonably would be acting ultra vires and is therefore subject to judicial review. The irrational decision the Secretary of State reached to investigate the haulage company under the preconception of dealing with them in the past would be classed as 'Wednesbury unreasonableness'. Misfeasance in public office is the only public law tort only applying to the activities of public bodies. The tort is committed if the official whose action inflicted injury on the claimant either knew the action was ultra vires or acted for improper purpose. From the case Rookes v.

Barnard20 this is, 'oppressive, arbitrary or unconstitutional action,' of which the haulage company can establish easily. A private law remedy could be to claim for damages for the inconvenience caused to the haulage company. Under a public law remedy, a mandatory order could be issued. The Drinker's Club though an interest group and therefore may have a weak claim for standing however, they have brought a claim concerning a Convention right and may claim under the Human Rights Act 1998 for the freedom of the individual free move of goods. However, no remedy could be sought but a formal procedure possibly. Their claim would be too weak.