Judicial Review

                                                                                                   Judicial Review

1.0 Introduction

            Individuals have the right to seek judicial review, which involves challenging decisions made by different government agencies on the basis of a particular Act in courts of law.  Gillespie asserts that ‘judicial review can only be brought against a public body’. Success in seeking judicial review is mainly possible if the decision maker has acted outside their legal powers in making the decision.  In seeking judicial review, a number of aspects must be taken into consideration. The first stage entails seeking permission from the court of law.   This paper provides advice to Linda and Adil on how they can challenge the decision made by the Local Authorities in relation to the scenario and the fictional Great British Seaside Act 2006.

1.1 Summary of the Great British Seaside Act 2006

The Act stipulates that;

1Food or drink – may only be sold in beach car parks owned by a local authority in accordance with this Act.

2Any person may sell tea or coffee in such a car park without a license.

3Annual license is required for the sale of ice cream in such a car park.

4A local authority shall have due regard to the need to promote healthy food and drink

5No license may be issued to a person who is not fit and proper.

2.0 The Case of Linda

2.1 Permission/leave 

In seeking a judicial review against East Tyneside Council's decision not to renew her license; Linda should seek permission from the High Court.  In doing so, Linda should argue that the East Tyneside Council acted contrary to the London Local Authority Act 2012 with regard to the revocation of a license.  One of the issues that form grounds for revocation of license entails if the trader’s actions are in breach of the stipulated terms or acted in a manner that amounts to misconduct. Gillespie and Weare assert that in order to succeed in applying for a judicial review, one must ensure that his or her case is arguable.  In this case, Linda’s business activities did not in any way contravene the street trading laws by the Local Authority. 

 2.2 Grounds for review;

            In seeking a judicial review against the decision by East Tyneside Council, Linda should base her application on the concept of fairness, which constitutes one of the legal grounds for a judicial review. The Council’s decision not to renew Linda’s license on the basis that she has been selling frozen yogurt instead of ice cream was unfair and that the coffee that she was selling did not meet the specific quality specification was unfair and biased.  In making decisions, public bodies such as the Council in this case should depict a high degree of impartiality. As a street vendor at Shortsands Beach, Linda’s business activities were aligned with the Great British Seaside Act 2006, which stipulates that food or drinks may only be sold in car parks owned by a local authority in accordance with the Act. The fact that she was selling ice cream which constitutes one of the categories of food and drink and the Council’s decision not to renew her license indicates that the Council acted unfairly and in a biased manner.

  In addition to challenging the decision by the Local Authority not to renew her license on the basis of unfairness, Linda’s application for a judicial review should also be based on the concept of natural justice, which stipulates that an individual seeking to take action against another party should base the action on evidence. This assertion is supported in the case of Breen v. Amalgamated Engineering Union in which the judge argued that ‘the duty of natural justice rests upon anyone who decides anything’.  The scenario reveals that one of the reasons behind the Council’s decision not to renew Linda’s license was based on the claim that she has over the years sold poor quality coffee, which has been the subject of repeated complaints to the Council in the local press. In challenging the decision, Linda should seek the court to compel the Council to provide factual information on the claim.

Linda can also seek judicial review on the basis of the concept of proportionality, which underlines the need for public bodies to act with a high degree of reasonableness in making decisions. The concept of proportionality examines whether the restrictions imposed by a particular legislation in relation to constitutional rights are invalid or disproportionate.  In applying for judicial review on the basis of the concept of proportionality, Linda should cite the case of Hand v Dublin Corporation [1989] IR 26. In this case, a number of street traders had been charged with offences under the Casual Trade Act 1980.  The Act stipulated that a street trader who had been convicted for offences could not be granted a street trading license. However, in this case, Linda had not acted contrary to the Great British Seaside Act 2006 in undertaking her business activities within the car park despite the Council’s claim regarding the quality of her coffee. The Council’s decision not to renew Linda’s street trade license was out of proportion. This arises from the fact that the decision would deprive her of a significant proportion of her income arising from street trading. In the case of R v Barnsley Metropolitan Borough Council, ex parte Hook [1976] 1 WLR 1052, the court ruled that Commissioners of Sewers had imposed excessive fines against the plaintiff. The court held that the defendant should have imposed a reasonable fine. Similarly, in the event that Linda acted contrary to the new regulations, the Council should have considered an alternative legal approach to deal with Linda’s conduct in her business rather than refuse to renew the license.

2.3 Remedies

One of the most legal actions that Linda should consider entails seeking an injunction, which entails an equitable remedy against the Council. According to Cunningham-Hill and Elder, equitable remedies entail injunctions for specific performance (p. 108).  In seeking a court injunction, Linda should focus on presenting the ground for judicial review outlined in order to increase the likelihood of the court compelling the Council to renew her street trading license. One of the issues that Linda should bring to the court's attention entails the fact that the Council has over the past years renewed her license without bringing any comments on the issue that she was selling frozen yoghurt instead of ice cream and the quality of coffee. By seeking an injunction against the Council, Linda will be assured of running her business legally. Subsequently, she will be assured of an income stream from vending the products stipulated under the Great British Seaside Act. 

2.4 Conclusion

In summary, by taking into account these legal aspects, Linda will succeed in bringing a judicial review against the Council’s decision.   

3.0 Judicial review; the case of Adil

3.1 Permission/leave

Adil may also seek judicial review against the decision by East Tyneside Council not to renew his license despite the fact that the license has over the years been renewed automatically. In applying for a leave, Adil may argue that the Council acted contrary to the Civil Procedure Rules.

3.2 Ground for review

In seeking judicial review, Adil should establish sufficient ground for review. One of the issues that Adil should take into account entails proving to the court that the Council’s actions amounted to procedural impropriety and unfairness. Over the past years, the licensing authority had automatically renewed Adil’s license to sell ice cream. Additionally, Adil’s trading without a license within the park was not in any way contrary to the Great British Seaside Act 2006, which stipulated that any person may sell tea or coffee in such a car park without license.  Moreover, the council’s refusal to grant Adil license to sell ice cream was also based on the Local Authority’s decision that Adil was not a fit person. However, Adil had over the years sold ice cream without any negative outcomes such as health concerns.  Therefore, Adil should argue that the Local Authority breached the rules of natural justice by acting with bias. According to Faragher, ‘no man shall judge in his own cause, both sides in a dispute have the right to expect the matter to be adjudicated with impartiality’.

 In this case, the Local Authority acted with bias and unfairness by refusing to issue a license to sell ice cream on the basis of East Tyneside Against Junk's assertion that the ice cream sold was over 150% of the recommended sugar level. The local authority is required to observe the concept of natural justice in making decisions. One of the areas in which the local authority is required to observe natural justice relates to the revocation of a license. This aspect is underlined in the case of R v Barnsley MBC, ex P Hook (1976), in which the court held that local authority controlling licensing of trade activities in a market has a duty to act judicially by observing the concept of natural justice.

In addition to this aspect, Adil’s ground for judicial review can also be founded on the ground of legitimate expectation. According to Pollard, Hughes, and Parpworth, ‘a person may have a legitimate expectation of being treated in a certain way by an administrative authority even though there is no other legal basis upon which he could claim such treatment’. The relevance of legitimate expectation as one of Adil’s grounds for application for judicial review arises from East Tyneside Local Authority's consistent past practice of renewing the license automatically. The effectiveness of legitimate expectations as a ground for judicial review is underlined in the case of Council of Civil Service Union v Minister for the Civil Service [1985] AC 374. In this case, the Council sought judicial review regarding a decision made by the Minister for the Civil Service to ban trade union membership.  In making a ruling, the court held that the trade unions and employees had legitimate expectations that the minister would have consulted the union prior to making a decision.  Thus, the decision by the minister was unfair due to failure to undertake consultation with the parties. Similarly, Adil had legal expectations that the Local Authority would have renewed his ice cream trade license based on the Local Authorities' past conduct.

Adil’s failure to renew the license was also based on the promise made by one of the Council’s staff that the renewal of his license would be automatic. This aspect is underlined in the case of R v North and East Devon Health Body, ex p Coughlan [2001] QB 213.  In this case, the court ruled that if a public body makes a promise in the course of exercising its statutory functions on how it intends to act or behave in the future; such an act leads to the creation of a legitimate expectation that is substantive in law. Frustrating such expectations, like in the case of East Tyneside Local Authority, amounts to unfairness and abuse of power. 

3.3 Remedy

In line with the grounds for review outlined above, Adil should seek a court injunction against the Local Authority. In applying for an injunction, Adil should focus on seeking the court to compel the Local Authority to renew his license in accordance with its past practice.  In addition to this aspect, Adil’s decision to seek a court injunction should also be aimed at ensuring that the court compels the Local Authority to provide factual evidence regarding the sugar content of the ice cream sold at Adil’s stall in accordance with the rule of natural justice. This arises from the fact that the decision by East Tyneside Against Junk to include Adil on the list of unhealthy traders was subjective and not evidence-based.

3.4 Conclusion

In summary, Adil can succeed in applying for judicial review against the Local Authorities' decision to revoke his license and to include him in the list of unhealthy traders on the grounds of unfairness and procedural impropriety. Additionally, citing legitimate expectation also forms another sufficient ground for seeking judicial review against the Local Authority’s decision.

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