Summative Assignment Public Law II LW203

Part 1

The purpose of a judicial review is to undertake a reassessment of the legality of decisions and actions made by people in public authority. The paper provides advice to Mary on the grounds of judicial review following the refusal to be granted a license by Bakeoff District Council (BDC) to run a summer fare and cake-baking competition in a marquee on the village green. Mary was denied permission based on the [fictitious] legislation Public Outdoor Spaces Act 1971, which states that “a local authority may grant or refuse a license for an event on an outdoor space within their area”. The validity of the decisions by the BDC can be challenged under judicial review. The three possible grounds that can be used to bring judicial review proceedings are irrationality, illegality, and procedural impropriety. Nonetheless, the three grounds have to be fulfilled in order to carry out a successful judicial review.

a)      

The first ground provided by Mary is that the councillor who chairs the BDC licensing committee (Paul) is biased based on a personal relationship.  This is based on procedural impropriety whereby the decision-maker failed to observe the procedural rules which have been laid down and under which legislation is conferred. In this case, one of the council members acted in an inappropriate manner.  In the common law, procedural fairness is composed of two fundamental principles namely audi alteram partem and nemo iudex in sua causa. Under the principles of audi alteram partem decisions must be made and conducted under a fair hearing, while nemo iudex in sua causa calls for the presence of an impartial decision-maker. In this round both principles were applicable. For example, Paul one of the councillors who chairs the BDC licensing committee did not exercise nemo iudex in sua causa because he was biased and not an impartial decision-maker. Thus, Mary could argue that the decision-maker the councillor who chairs the BDC licensing committee was biased because he plays golf with Mary’s former partner, with whom she now has an acrimonious relationship. This contravenes the principle of the nemo iudex in sua causa.

The Court of Appeal of England defines 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.” Thus, it was evident that there was procedural impropriety as Paul was one of the decision-makers and had personal interests in the case, and hence there was a bias. For this reason, the decision-maker did not approach the issue with an open mind. This can be supported by  Imperial Oil Ltd v Attorney-General of Quebec (2003 case where the Supreme Court of Canada contended decision maker “must approach the issue submitted to him or her with an open mind, not influenced by personal interests or outside pressure.” Similarly, this is supported under the decision by Lord Hope explained in Gillies v Secretary of State for Work and Pensions [2006] EWCA Civ 392; [2006] 1 All ER 731 where he opined that impartiality comprised of the absence of predisposed thought to favour the interests of the sides involved in the dispute. In this case, Paul was not impartial because he acted in favourable predisposition to fulfil personal interests.

Mary can also use the ground of illegality to support her rounds. For example, it is illegal for decision-makers acted outside their authority. For example, the BDC licensing committee did not follow set rules, and as a result, the decision made was biased. For instance, impartiality must always be observed when making decisions, and in this case, the principle of nemo iudex in sua causa was breached making the decision illegal.  Thus, natural justice to act in a procedural manner was not applied. The decision-makers should have acted fairly.

b)     

The second ground relates to the exercise of powers for ulterior motives and taking into account irrelevant considerations when making decisions. According to Turner, “bad faith is recognized as including a decision for an ulterior motive, taking account of irrelevant considerations, and refusal to take into account relevant considerations and acting capriciously.” In this context, the council used the power granted under the [fictitious] legislation Public Outdoor Spaces Act 1971 for an unauthorized purpose.  For example, the council did not have the power to disapprove of the good cause to which Mary was to donate the proceeds of the event to assist destitute asylum seekers. Thus, when making the public decision, some of the councilors acted with an ulterior motive in mind and subsequently took into account an irrelevant factor. Helping destitute asylum seekers in society on humanitarian grounds is a logical and moral course that should not be the basis for refusing Mary the license.

In Short v Poole Corporation  Warrington L it is unreasonable to make a decision without exercising reasonableness and putting into consideration extraneous matters. As such an action taken by some of the council members was unreasonable and it could be described because it was carried out in bad faith.  This can be supported by the GCHQ Case where Lord Diplock stated that irrationality “applies to a decision which is so 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.” Thus, this ground is also applicable to Mary to push for a judicial review as the concepts of unreasonableness and ulterior motives were used by the public lawmakers. Lord Scarman stated that natural justice requires decision-makers to have the duty to act fairly. The decisions made were unfair and this amounted to an abuse of power and the [fictitious] Public Outdoor Spaces Act 1971.

c)      

The third ground is that Mary was refused the chance to address the licensing committee in person before the decision was made but she was not allowed to do so. The principle of audi alteram partem is applicable on this ground because the decisions were conducted under a fair hearing. Mary had the right to be heard, and not necessarily under legal representation. Thus, Mary should have been given adequate prior notice to address the licensing committee in person before the decision was made.  Subsequently, she could have laid down her reasons for the license. In addition, she deserved to be re-examined and be given reasons for her decision.  In addition, fairness was not evident in making the decision. The concept of fairness requires a public body to give reasons for its decisions. In addition, a public body is required to keep its promises to the people, unless there is a good reason for not keeping them.  Thus, as a public body, BDC has made a promise to Mary and it was supposed to a keep promise, but it failed. Mary has the right to file for a judicial review on the ground of being heard by the commission but it did not keep the promise. The concept of proportionality is also applicable because individuals’ rights and interests were not protected.

Conclusion

The advice to Mary is that the grounds provided are applicable in judicial review because the manner in which the decision was made, and the processes followed by the decision-makers were not proper. Subsequently, the decision was not within the confines of the law. For example, all three possible grounds for judicial review proceedings which are irrationality, illegality, and procedural impropriety are all evident in the case. In addition, there was no fairness in the decision-making process, the decision-maker was biased and irrational. Substantive judicial review is based on Lord Denning, M.R. ruling that in most cases, a person must be given a fair hearing and the decision made must be reasonable and fair.

Bibliography

Cases

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.

Top of Form

Le Sueur, Andrew. Public Law. Oxford: Oxford University Press, 2016.

Bottom of Form

Pattaro, Enrico. A Treatise of Legal Philosophy and General Jurisprudence. Dordrecht: Springer, 2005.

Turner, PG. Equity and Administration. [Cambridge University Press, 2016). P. 48.

Woolf, Harry, S. A. De Smith, Jeffrey L. Jowell, A. P. Le Sueur, Catherine M. Donnelly, and S. A. De Smith. De Smith's Judicial Review. London: Sweet & Maxwell, 2007