Judicial Review and Police Powers – Part 1
Introduction
The aim of a judicial review is to reassess the legality of actions as well as the decisions and actions made by persons in public authority. This paper provides advice to Eco Turbine Ltd, which is not a member of ‘The UK Engineering Group’, and wishes to use judicial review to challenge the refusal of their application and the making of a grant to AB Engineering plc. In addition, the paper briefly explains whether there are any other means by which the minister may be held accountable for her actions. In addition, the paper is founded on the (fictitious) Wind Turbines Act 2010 which provides information related to making grants to businesses operating in the UK, especially the energy sector. Decisions by persons in power are challenged on three grounds: (i) irrationality, (ii) illegality, and (iii) procedural impropriety.
Procedural Impropriety
Procedural Impropriety is related to the manner in which power and authority was used to reach a certain decision without following set standards and rules. Thus, procedural impropriety is used when a decision maker has not followed procedural rules and standards that have been stipulated under the legislation. In this case, there was bias in the manner in which the grant was issued. The Court of Appeal of England described bias as “a predisposition or prejudice against one party's case or evidence on an issue for reasons unconnected with the merits of the issue.”
The moment the Minister refused to give the grant to Eco Turbine Ltd, and then procedural impropriety was used by decision-makers. For example, the Minister failed to approach the issue with an open mind. She failed to follow S1 (1, 2, and 3) of the Act. In addition, Eco Turbine Ltd was qualified based on the requirements given, but the Minister favoured AB Engineering plc with a poor environmental record and no experience at all. In Imperial Oil Ltd v Attorney-General of Quebec (2003 case, the Supreme Court of Canada concluded that decision-makers in public office “must approach the issue submitted to him or her with an open mind, not influenced by personal interests or outside pressure.” On the other hand, in Gillies v Secretary of State for Work and Pensions [2006]. Lord Hope stated that impartiality entails a lack of predisposed thought by public leaders to favour the interests of the sides part of a dispute. By the time Eco Turbine Ltd applied for the grant, it met all the requirements provided, but it was not given the grant. As part of bias, the Ministry for the Environment recently has recently excluded companies not members of The UK Engineering Group.’
When making decisions, natural justice must be followed.
The Minister acted in a way that can be regarded as inappropriate. For instance, there was no fairness in the manner in which decisions are made. For example, in the case, Eco Turbine Ltd was not given the reasons why their application was not considered. For fairness to be evident, reasons must be given to show why a certain decision was reached. Procedural fairness under the common law is made up of two fundamental principles: nemo iudex in sua causa and audi alteram partem. The Minister did not uphold the principle of audi alteram partem because the decisions were not conducted and made under a fair hearing. On the other hand, nemo iudex in sua causa is applicable because there was no impartial decision-maker. The principle of nemo iudex in sua causa was not applied because the decision was not conducted in a fair manner. Therefore, the principle of the nemo iudex in sua causa was contravened when the Minister failed to hold a fair meeting with the companies which had applied for the grants. AB Engineering plc was not considered to be given a grant in a fair manner. Thus, the actions of the Minister were illegal as they were biased and unfair as a fair process was not granted.
Reasonableness and Irrationality
According to GCHQ Case, Lord Diplock pointed out that irrationality was applied to decisions that were “outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” Based on this ground, a judicial review can be pushed based on unreasonableness and ulterior motives by The Minister. The Minister abused her duty to act fairly because the decisions made were not only unfair, but were not in line with the (fictitious) Wind Turbines Act 2010. The Minister also acted in bad faith because the decision was based on an ulterior motive. Turner pointed out decision maker acts in bad faith by “taking account of irrelevant considerations, and refusal to take into account relevant considerations and acting capriciously.” The Minister did not possess the power to consider a company without prior experience and publish a new clause in order to exclude some companies such as Eco Turbine Ltd. The Minister thus acted with ulterior motives in mind and failed to follow the law and the set standards under the Wind Turbines Act 2010. In accordance with Short v Poole Corporation case, Warrington L pointed out that it was unreasonable for a decision maker to make a decision without exercising reasonableness, as well as accounting for extraneous matters.
Under the Wednesbury case, Lord Greene stated that "If a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere... but to prove a case of that kind would require something overwhelming..." In making the decision, the Minister did not put into consideration all the things which must be considered. For example, it did not consider the fact that AB Engineering Plc. did not meet requirements under Wind Turbines Act 2010 such as having experience and it has a poor environmental record.
Illegality
It is against the law to make decisions that are not in accordance with Wind Turbines Act 2010 and the regulations provide on the Ministry website. For example, the Minister did not follow the policy of giving grants to companies that have a good environmental record. For example, AB Engineering Plc. lacked experience, did not aim at reducing costs, and had a poor environmental record, which contradicts the aim and objective of the Wind Turbines Act 2010. In addition, the aim of AB Engineering was to make quick money without considering the costs involved. The Minister’s actions are set for judicial review because she did not act within her powers and authority.
Other Grounds
Natural law could be used to challenge the decision made. For example, Minister acted in an inappropriate manner and did not exercise due diligence and fairness. In decision making, there was no evidence of fairness and Eco Turbine Ltd was not provided with the reasons as to why its application was not considered. Procedural fairness could have been provided under a fair hearing and impartiality. Persons in public office are supported to safeguard the law. The Minister did not exercise and promote fiduciary duty when making decisions.
Conclusion
The advice to Eco Turbine Ltd is that it can file a judicial review. All the grounds of judicial review irrationality, illegality, and procedural impropriety are applicable. The Minister considered a company that did not meet the requirements of the Wind Turbines Act 2010. For example, AB Engineering Plc., although a member of The UK Engineering Group’ was not qualified compared to Eco Turbine Ltd. For example, it was not environmentally friendly, it lacked prior experience, and it did not focus on the aims and objectives of the Wind Turbines Act 2010.
Bibliography
Cases
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]
Council of Civil Service Unions v Minister for the Civil Service (The GCHQ Case) [1985
Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117
Gillies v Secretary of State for Work and Pensions [2006] EWCA Civ 392; [2006] 1 All ER 731
Imperial Oil Ltd v Attorney-General of Quebec (2003) 231 DLR (4th) 577
Short v Poole Corporation [1926] Ch 66 at 90-91
Books
Forde, Michael, and David Leonard. Constitutional Law of Ireland. Haywards Heath: Bloomsbury Professional, 2013.
Le Sueur, Andrew. Public Law. Oxford: Oxford University Press, 2016.
Pattaro, Enrico. A Treatise of Legal Philosophy and General Jurisprudence. Dordrecht: Springer, 2005.
Turner, PG. Equity and Administration. [Cambridge University Press, 2016). P. 48.
[1] Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117
[2] Imperial Oil Ltd v Attorney-General of Quebec (2003) 231 DLR (4th) 577
[3] Gillies v Secretary of State for Work and Pensions [2006] EWCA Civ 392; [2006] 1 All ER 731
[4] Michael Forde and David Leonard. Constitutional Law of Ireland. Haywards Heath: Bloomsbury Professional, 2013.p. 824.
[5] Ibid
[6] Enrico Pattaro. A Treatise of Legal Philosophy and General Jurisprudence. Dordrecht: Springer, 2005. P. 123
[7] Council of Civil Service Unions v Minister for the Civil Service (The GCHQ Case) [1985].
[8] Le Sueur, Andrew. Public Law. Oxford: Oxford University Press, 2016. P.722.
[9] P.G Turner. Equity and Administration. [Cambridge University Press, 2016). P. 48.
[10] Short v Poole Corporation [1926] Ch 66 at 90-91.
[11] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]
