Public Law

Public Law – Judicial Review

Introduction

            A judicial review is a form of court preceeding that requires a judge to assess the legality of an action or decision arrived at by a public body. Put simply, judicial reviews seek to confront the procedure involved in arriving at a decision, as opposed to the wrongs and rights of the conclusion attained. So long as the correct procedure has been adhered to in arriving at a decision, a judicial review is less interested in the conclusions of such a process and id if they were correct.  Local authorities are some examples of public bodies whose decisions can be categorised as following within judicial reviews. This paper endeavours to offer advice to Linda and Adil on how best to challenge the decision made by the East Tyneside Council in relation to the (fictional) Great British Seaside Act.

Linda's Case

Permission/leave   

            The East Tyneside Council owns the car park where Linda has been selling ice cream since 2007. She has been paying for the renewal of her licence annually without fail but in March 2017, the application for renewal of licence was declined on the grounds that she sold yoghurt as opposed to ice cream and that the bad quality of her coffee had resulted in numerous complaints to the local press and the Council.  Linda ought to seek permission from the High Court for a judicial review of the East Tyneside Council's decision not to renew her application for licence. The action by the Council was in contravention of the 2012 London Local Authority Act as there are no sufficient grounds for revoking the licence under this Act. Before a local authority can revoke the licence of a street trader, it must establish that the trader in question acted in breach of the terms of the contract. From the case provided, there is no indication that Linda's action constitutes misconduct or a breach of the terms of the contract. This therefore forms the grounds for seeking a judicial review.

Grounds for Review

            Linda's pursuit of judicial review against East Tyneside Council's decision not to renew her trading licence hinges on the following grounds: illegality, acting fairly; unreasonableness, and legitimate expectation. As a decision-maker, it is important that the East Tyneside Council fully comprehends the law that regulates their actions. In the event that they do not abide by the set laws properly, there is the likelihood that their action, decision, or inability to act could be deemed "illegal". The Council's decision to not renew Linda's trading licence despite that she has been very prompt at paying the application fees could be deemed illegal on the grounds that the Council applied a very inflexible policy. Moreover, the action is not in keeping with the Human Rights Act.

            Fairness requires that the actions of a public body should not constitute an abuse of power. In this case, we could argue that Linda did not enjoy a "fair hearing" of the case against her before the Council reached its decision, and neither was she given valid reasons for the decision made by the Council. The decision to decline Linda's application for licence renewal is also unfair because she has been selling food and drinks in beach car parks owned by the East Tyneside Council, which is in keeping with the provisions of the Great British Seaside Act 2006.

            Linda's pursuit of a judicial review for the decision taken by the East Tyneside Council could also be valid on grounds of unreasonableness. Reasonable action is usually guided by reasons. On the other hand, if an action "is not guided by reasons that the law authorizes judges to insist on", then it is deemed unreasonable. The Wednesbury test has found wide application for determining whether an administrative decision is reasonable. The test derives from the ruling made by Lord Greene. The test entails if the decision "is so unreasonable that no reasonable person could have so exercised the power". We could argue that the decision by the East Tyneside Council not to renew Linda's licence is Wednesbury unreasonable given that no reasonable person would have reached the decision made by the Council.

            When a person pursues judicial review based on the argument that his/her legitimate expectation has been defeated, the onus is on the Courts to first establish if a legitimate expectation existed in the first place. The doctrine of a legitimate expectation comes about due to "a promise, representation, practice or policy made, adopted or announced by or on behalf of the government or a public authority". Legitimate expectation as a basis for judicial review advances trust and certainty in executive authority and in this way sustains the rule of law.

Remedies

            There are several courses of action that Linda can consider, but the most suitable one is seeking an injunction.  In this case, Linda ought to outline her ground for judicial review as a means of enhancing the possibility for the court to compel the East Tyneside Council to renew her trading license.  To strengthen her case, Linda could indicate that she has been prompt in paying the annual license renewal fee every year since 2007 and that she was not alerted of the impending decision by the Council.

Conclusion

            By considering the grounds for review of her case and the possible remedies, Linda should be able to persuade the Court to review the decision by the East Tyneside Council.

Adil's case

Permission/leave

            Adil has been refused a renewal of his trading licence to sell ice cream at the car park of Shortsands Beach. He was duly informed by a council officer that license renewal is automatic but a second officer who visits his business premises informs him that his license has expired. Nevertheless, he can still seek judicial review against the Council's decision to decline his license renewal on the grounds that their action contravenes the provision of the Civil Procedure Rules.

Ground for Review

            It was unfair of the East Tyneside Council not to renew Adil's trading license considering that he has been operating his business in keeping with the stipulations of the Great British Seaside Act 2006 which stipulates that among other things, a trader must sell his/her foods and drinks in beach car parks owned by the East Tyneside Council. Moreover, the Act provides that any person is free to sell coffee or tea in the said park without a license. The action by the East Tyneside Council also contravenes the rules of natural justice which calls for "fairness in the decision-making process".

             Adil can also seek a judicial review on grounds of lack of proportionality in the manner in which the decision was arrived at. According to Faragher, "proportionality means that there must be reasonable relationships between the objective being sought and the means used to achieve it". Proportionality as a possible ground for judicial review was explored initially by Lord Diplock. As a key party to the matter at hand, Adil has a right to expect that the decision ruled in favour of the Council would have been exercised with impartiality but it was not and this could be grounds for a judicial review.

                  On legitimate expectation grounds, Adil had in the past relied on the East Tyneside Council's action to renew his license automatically. Based on this practice, he thus expected them to renew his license this time round as they have always done.  R v North and East Devon Health confirms the practice of sizeable legitimate expectation. In this case, Ms Coughlin had been involved in a car accident that left her physically disabled. In 1993, the health authority moved Ms Coughlin to a purpose built-facility and she was duly informed that this would serve as her home for the rest of her life. The health authority later arrived at a decision to have the purpose-built facility closed. Ms Coughlin challenged the decision arguing that the health authority had made a promise to her which constituted a substantive legitimate expectation that she would be staying at the facility for life. The court ruled that there was no justification for the closure and that Ms Coughlin' had a legitimate expectation to stay at the facility.  

            Based on the rule of natural justice, every person has a right to be heard. Moreover, one must not be judged based on his individual cause and the ruling must not be biased.

Remedy

            Adil can prevail on the court to compel East Tyneside Council to reconsider renewing his license through a court injunction, which will in turn be dependent on the grounds for review outlined above.  The Council contravened the rule of natural justice in making the decision not to renew Adil's license while the decision to place him on the list of unhealthy traders was not based on credible evidence.

 Conclusion

Although the East Tyneside Council has declined to renew Adil's license on grounds that he is of improper conduct, having traded without a license for a given duration of time and having no knowledge of the process, he can still succeed in convincing the court to compel the Council to renew his license through a judicial review. Seeking an injunction against the Council is one through which Adil can achieve this.

Bibliography

Books

Australian National University., 2008, The Australian Year Book of International Law, Volume 27 (Butterworths, 2008) 296.

Blackhall, Cameron, Planning Law and Practice (Psychology Press, 2005) 231. 

Courts and Tribunals Judiciary,' Judicial review' (2017).

 Doeker-Mach, Günther and Ziegert, Klaus, Law and Legal Culture in Comparative Perspective (Franz Steiner Verlag, 2004) 290.

Endicott, T., 2015. Administrative Law (Oxford University Press, 2015) 50.  

Faragher, Colin, Public Law Concentrate: Law Revision and Study Guide (OUP, 2013) 157.

Great Britain., 2012. London Local Authorities Act 2012, Part 2.  (The Stationery Office , 2012) 28. Künnecke,  Marina, Tradition and Change in Administrative Law: An Anglo-German Comparison  (Springer Science & Business Media, 2007) 108.

Ramlogan, Rajendra, Judicial Review in the Commonwealth Caribbean (Routledge, 2013) 115.

Samuel, Geoffrey, A Short Introduction to the Common Law (Edward Elgar Publishing, 2013) 67.

Sellick, Joanne, Key Facts: Constitutional and Administrative Law (Routledge 2010) 176.

Case Laws

Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223 

Council of Civil Service Unions v Minister for the Civil Service (1985). 

R v North & East Devon Health Authority, ex p Coughlan [2003].