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Seminar 2 – Oct 26 2012 -

Mainly from Lecture: Fri 19 Oct 2012

Law on Abuse of Discretion Controls:

Controls outside of Wednesbury by Lord Greene

(Generally older, basic rule is that if you are given a discretion by Parliament then the person who is given the power MUST exercise it. (hand out p9)

1)   Rule Against Unlawful Delegation (Delegatus non potest delegare):  If you have a discretion, then you must exercise it and not pass it to another to exercise

Ellen v. Dubowski (1921)

-       Each local council was given the power to rate films of what is suitable to be shown. But the council only followed what the British Body of Film Classification used to classify films.  Can the council do that, obviously cannot delegate this power.  Except the Carltona principle whereby lots of statutory power is given the sec of state, far more than they can handle, but in this case, it is allowed for the central government to delegate to civil servants

 

Rule Against the fettering of discretion by applying rigid rules:  problem arises where the reliance wings too heavily towards hiding behind the rules and not actually exercising discretion granted by statute

Northwest ____ Health Authority v ABD and June

-       A, B and D, had been labelled as transgenered and wanted to change their gender and have been supported by psychiatrists and this would be btter if this is the case

-       Wants NHS to sponsor their gender surgery, but NHS said they have a blanket policy that doesn’t permit them to give such srugery

-       But cts say health authorities must look at each case by itself and therefore cannot say that there is a blanket policy

(on the one hand there is good to have rule making, but it’s impossible to

have blanket policies that are so rigid because the law won’t allow it and fundamentally there is logic here because P grants this discretion, but if use the same decision in every case then you aren’t exercising discretion)

 

2)   Rule Against Acting under Dictation:  b/c what a public body is doing is allowing another to exercise its discretion by telling it what to do

Laker Airways v. Department of Trade (1977)

-       Laker A was like Ryanair

-       But BA which was state owned did not like the bc they took away a lot of biz

-       The gov’t thru the dept of trade (which owned BA), ordered the civil aviation authority to take away LA’s aviation license b/c they breached the license.  The problem is could the dept of trade tell CAA to revoke the license (no, bc it would be acting under dictation (similar to delegation), whereby you are dictating for someone else to do your work)

 

 

Controls ‘inside’ of Wednesbury

Wednesbury can be seen in different ways: 

Craig’s views:

Divide it into it’s substantive sense and it’s umbrella sense. 

 

Consists of:

      1) the principles within the “umbrella” of Wednesbury

o   – Improper purposes, Irrelevant Considerations, Failure to consider relevant factors

      2)  “substantive” wednesbury

      – super, sub, and proportionality

 

Umbrella:  Developed from Lord Greene in Wednesbury case.

Difference between umbrella and substantive wednesbury is that in Umbrella, if one can prove that the decision maker has infringed any of the principles (Irrelevant Considerations, Failure to Take into Account a Relevant Consideration, and Using Power for an improper use) then the decision is likely to be impugned (called into question/ dispute the truth) by the courts

 

whereas if one moves to ‘substantive’ Wednesbury (the classical ‘rationality’ review) the outcome of the case will be less certain. Substantive is further divided into (super and sub wednesbury and the adoption of proportionality)

 

-       Wednesbury Test is a range of different tests:

1)   Improper purposes:  If you’re given a power by statute, you must exercise discretion properly (in spirit of statute).

Padfield v. Minister of Agriculture, Fisheries and Food (1968)

-       If Padfield thought the price of milk was too low or high he can refer the matter to a investigatory board.  He decided to not raise the price of milk despite knowing that it was not economical for dairy farmers because an election was coming up and didn’t want to ruin his chances.  Therefore unlawful for him to improperly use his power- in a political or private sense but should be for public interest not private

 

Wheeler: 

-       The club was being punished, by the statutory power given to it, so should have been used in a just way

 

R V Sect of state etc ex p. world development movement (1995)

- Malaysian Dam

- Sec of state’s actually wanted Malaysians to buy arms

- Court’s finding:  predominant purpose was improper

 

Congreve v. Home Office (1976)

-       Regarding unlawful taxation

-       Sec of State said price of television license would go up, so many ppl bought a new one before it expired

-       It was found to be unlawful for Sec of State to use their statutory power which was only used for dealing with fraudulent tv licenses in order to revoke the tv licenses that have been bought earlier (this was improper use of statutory power)

 

 

    2)  Irrelevant Considerations

      Bromley London Borough Council v. Greater London Council (1983)

-       Ken Livingston was elected as head of Greater London Council

-       Were elected on manifesto which was to reduce public transport or made free

-       Bromley Council brought claim of judicial review on basis of breach of bijuciary duty by imposing costs on taxpayers

-       Found unlawful that the need to reduce public transport was irrelevant consideration

 

Roberts v Hopwood (1925)

-       Local authority was elected based on their manifesto’s promises which included:  equal pay for men and women, and minimum living wage would be paid for by council

-       All local authorities need to minimize costs, and ct found that both promises were unlawful

-        

-       Veneables case:  tariff for murder to james bulger, sec of state, used poll money to gage

 

These cases are controversial because the people knew what they were voting for, and they knew what they were voting for

 

    3)  Failure to consider relevant factors: 

R v. Human Fertilisation and Embryology Authority, ex parte Blood [1997]

-

Enfield London Borough Council (2004)

- failed to look at all the facts (i.e. doctor reports) which supported claim that T was a child under 18 and therefore should have been cared for by council (it was unlawful for them to not consider relevant factors)

 

 

Substantive Wednesbury Test (This is the substantive reasonableness test)

Based on Wednesbury case:

Associated Provincial Picture Houses v Wednesbury Corporation (1947)

- Local authority had statutory power to say when the cinema could be open

- LA made one provision that on a Sunday that a person under 15 can’t go unless accompanied by adult

- Wednesbury Corp was not happy and so brought a claim for judicial review, and Lord Greene said:

 

“Once that question [whether any of the ‘umbrella’ principles have been breached] is answered in favour of the local authority, it may still be possible to say that, although the local authority kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.” – Per. Lord Greene [1948] 1 KB 223 at 234.

Found:  Local Authority was lawful.

(This test is difficult to satisfy; because it needs utter irrationality on the part of the decision maker)

(Also, it’s not whether someone would come to this decision, it is if someone COULD)

(So if there is evidence of gross irrationality, it can render a decision unlawful)

 

Development of the Wednesbury Unreasonableness Test

Lord Diplock tried to explain what was meant by the Wednesbury test. 

Lord Diplock in CCSU:

“By ‘irrationality’ I mean what can now be succinctly referred to as ‘Wednesbury unreasonableness’. It 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.”  (therefore looking for outrageous decisions…but very few cases can fall into it’s ambit because it is so limited)

These are a couple of Wednesbury Unreasonableness Case

Chertsey District Council v Mixnams Caravans (1965)

- Application for planning permission to extend the site of caravans

- But council said they would be made into council housing and made available to social tenants

- Completely irrational and unlawful

 

Wheeler v. Leicester City Council (1985)

 

Why is W Test so limited, Lord Greene says: 

The power of the court to interfere in each case is not as an authority to override decisions of the local authority but as a judicial authority which concerns only if the local authority contravenes the law by acting in excessive power

Therefore very limited to the idea of legality and linked to power granted

 

Re Mann: 

Extradition case b/c they were afraid he was a terrorist

Lord Hoffman says that it’s necessary to

 

The problem of W, it doesn’t remain static, the courts have developed the test and applied it

The intensity of Standard of review depends on the subject matter of the case

In relation to policy matters, they don’t want to deal with it, but where it’s individual rights i.e. in cases like A, JR would be intensely required. 

 

 

 

GCHQ Case (supra) About barring trade union.

 

Basic Elements of Law on Control of Discretion

 

Lord Diplock sets out his three main grounds for judicial review.

1)  Illegality – simple UV principle, therefore acts that decision maker doesn’t have the power

2)  Irrationality – the view of irrational decisions

3)  Procedural Impropriety – idea that what’s been done is a breach of fairness or natural justice (i.e. failure to give hearing, failure to allow legal representation)

 

Modern Judicial Review

1) Proportionality

2) Legitimate Expectation

 

 

 

Mainly from Lecture:  Mon 22 Oct 2012

 

Bar in W was set high, Council of Civil Union Services Case: there is a concern about interfering with discretion granted to decision makers by statute bc indirectly that is judges stepping into the legislative and executive realm, so that is unattractive and would be in breach of the general principle of the constitution.  Therefore in general, judges aren’t keen to do this. 

 

The standard of review of W has undergone major development in the last 60 years.

 

Intensity of review in rationality cases will vary based on the case at hand

 

Where cases concerning individual and HR, courts take a close looks and decide that the exec has gone too far in interfering with individual rights

 

Where policy matters (licensing) are less likely to intervene because a) there might be a lack of institutional competence whereby the courts aren’t ideally placed to second guess those decisions, and there would be too much express of interference by the courts to the realm of the political

 

So what happens to the cases in the middle?  These are the cases that give the courts the greatest difficult in deciding the standard of review. 

 

There is a more hands on approach now than in proportionality.

 

Hammersmith case:  these aren’t issues for us

 

Three cases concerning the fundamental rights regarding the standard of review:

Concerning Freedom of Expression i.e Article 10 of the European Convention of HR.

Attorney General v. Guardian Newspaper No.2

- Endeavour of the AG to suppress Peter Wright’s memoir, spy catcher

 

R v. Secretary of State for the Home Department, ex parte Brind (1991)

- Brind was a member of Shin Feign (republican party in N Ireland, which had links to IRA…a terrorist group)

- Sec of state using powers under the broadcasting act put into place a policy where no member of Shin Feign could be shown speaking on the tele or radio.  This policy was bizarre because it only required the individual to be not speaking while on the radio or tv and can be voiced over by irish actors

- Shin Feign brought an action to judicial review arguing that this policy is unreasonable particularly when weighed against Article 10 of ECHR regarding the freedom of expression. 

- In 1991, the HRA 1998 was not passed, but we have a dualist system whereby International Treaties do not have a direct effect unless brought about by legislation.

- So HoL rejected Brind’s complaint, and was deemed not unreasonable. 

- Showed Common Law’s desire to protect freedom of speech as a value.

- Brinn’s lawyer went a step further, to say that they should not have used the Wednesbury test, rather the proportionality test should have been used to determine whether the policy was reasonable

- HoL expressly rejected this b/c unless the convention was adopted into UK law, proportionality could not be used b/c it wasn’t a doctrine that was known to English law

^This is what is known as the CL of Human Rights before the HRA 1998 was passed

 

In these cases, the common law recognized a right to freedom of expression (in line with Art 10 of ECHR) so our rule of law even before the passage of this article, recognizes the fundamental rights as important and worthy of protection

 

Three Important cases reflecting The RoL, and also judicial approach:

And the Common Law of Human Rights (where the courts began to weave European Conventions into our common law)

R v. Secretary of State for the Home Department, ex parte Leech (1993)

- Prison service had policy where all correspondence were opened and checked by staff, even between Leech and his lawyer (wanted bring claim for wrongful conviction)

- Leech argued that it was unlawful and brought claim for judicial review because it infringed a common law right to privileged legal correspondence with legal advisor and article 6 right to fair trial

- High court found policy to be unlawful

- so prison must create an exception for lawyer-client corres.

 

R v. Secretary of State for the Home Department, ex parte Simms (1999)

- Simms was a long term prisoner who wanted to give a telephone interview with a journalist

- Prison had blanket policy that said prisoners were not allowed to speak with journalists

- Simms brought claim to JR, because the policy was a disproportionate interference with his Art 10 rights under the ECHR, and so it was a convention of human rights case because HRA 1998 was passed but not yet enforced so Simms couldn’t rely on it

- HoL upheld Simms’ claim and said it was unreasonable and disproportionate

- The policy was therefore unlawful

 

R v. Secretary of State for the Home Department, ex parte Daly (2001)

- Daly wasn’t entitled to rely on HRA 1998, cuz it wasn’t enforced

- Regarding cell searches in prisons, because the prison service had a policy where a prisoner’s cell can be searched in the absence of a prisoner

- Anything inside can be looked at and even the privileged legal corres

- Daly argued that it’s a breach of his Art 6 right in ECHR and common law right to priv legal corres., and his Art 8 right to privacy.

- Art 6 and common law right claim were unlawful

- *The surprising thing about Daly was that the HoL said that Daly’s lawyers have provided policies that will be less of an interference (i.e to take away the privileged corres and put into a plastic bag)

- Therefore inadequate consideration was given to these alternates, even if they were more reasonable than the present policy

- suitability (and looks at policies that aren’t so oppressive)

 

 

Section 11 of HRA, is an acknowledgement that sometimes common law sometimes offers greater protection than HRA 1998. 

 

Lord Bingham:  The cell searching and looking into legal correspondence, is a greater intrusion than the policy is willing to serve. 

 

So we can see the Cts moving away from the W approach where it is a total unreasonable approach. 

 

 

ITF: case about protesters, about the export of veal calves to continental Europe.

-       animal rights launched a blockade to the ports used

-       the police said that it is impossible to keep the ports open 24 hrs a day, so cops only limited the opening of the courts on specific days

-       ITF argued that this policy was a breach of the free movement principle in the treaty of Maastricht. 

-       We have a right to free movement of goods and the gov’t has a duty to protect this right the protection of this right comes with policing in these ports.

-       When they were reviewing the reasonableness it was found that it would be better if they took a new approach to Wednesbury

 

The ‘sub’ Wednesbury Test in human rights cases

 

Evidence of a shift away from the stringent Wednesbury tests and therefore a softening of intensity of review

In the ITF case, Lord Cooke said:

“The simple test used throughout was whether the decision in question was one which a reasonable authority could reach…These unexaggerated criteria give the administrator ample and rightful rein, consistently with the constitutional separation of powers.”

Also known as ‘modified’ Wednesbury.

‘Sub’ Wednesbury a clear example of this?

-

 

So this is the modified Wed Test (but this wasn’t a popular choice)

 

W test has changed in a number of ways (especially this sub wed approach in human rights cases)

 

And contrary to W test is the proportionality test.

 

Proportionality Test:

- Used to determine whether or not the act of a public authority was appropriate, so review discretion and the substantive exercise of discretion (determines the rationality of admin action)

- This comes from Europe

- used in EU law and ECHR by European court of HR

 

- Three elements (Tripartite Test)

1) Suitability:  Is measure suitable to achieve a legit objective

2) Necessity: Is measure necessary to achieve this objective

3) Does the measure have excessive impact on the complainant’s interests (proportionality stricto sensu)

 

- In W, it is mainly about proportionality stricto senso, and offers a more structured approach to control of admin decision making

- IMPT:  The problem with P, there is a varying intensity of the test.  Cts won’t apply these tests as rigidly in policy cases, but would so in cases involving the individual therefore these is still a problem with striking the balance depending on the subject matter of the case

- So English law should get rid of W and bring in P, but it may make no difference due to the standard of review.

 

 

- S3 of HRA 1998 regarding duty of interpretation, requirement that one uses the tools and techniques of the European Institution the court and commission of HR, one of which is proportionality and it is a general principle of European Union Law.

 

R v. Secretary of State for Health, ex parte Eastside Cheese Company (1999)

- The CoA made it clear that British Courts when dealing with matters of European Union Law, proportionality test instead of Wednesbury is used

- So if a policy infringes on free movement (matter of EU law), then Proportionality is used

 

Hickman:  Problem with P concept is how does a court go about conducting these tests?

- The problem is how do we distinguish between two different senses of proportionality- that when we think of a policy adopted by a decision maker we might think of the overall policy on the one hand and we might think of its relative proportionality

 

- Overall Proportionality:  We need to think about the benefits the measure might bring about i.e. increase security in prisons against the large costs (undue restriction of individuals)

 

- Relative Proportionality:  Involves the courts in a balancing exercise.  So when we think of a measure to a particular case, can we say the measure meets with tricamus vision of P, and was it suitable, and necessary and balances the public interest as well as the individual

 

- The difficulty for ct is to operate this principle effectively, it is useful in HR cases, and EU law cases, but how does it differ from Wednesbury?  This is hard for our judiciary.

 

- In case law, they have never been really clear.  Our courts have had a vision of P even in cases prior to HRA and EU law

 

Should be applied in cases involving EU law and convention of human rights act cases, but in domestic cases W should be retained as per the Court of Appeal

 

A light touch cases: are purely about policy aka funding

 

Lecture:  Tues 23 Oct 2012

 

Lord Clyde as per de Freitas c Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing(1999) echoes Tricamus’ theory of P Test. 

 

HRA S7, ordinary Judicial review requires that u have an interest at the purpose at hand, but in convention, says you must be the victim

 

Qualified and Unqalified rights

 

Unqualified : Article 2 right to life, the state can’t deny you this unless they act in contravention

 

Qualified

8: private and family life

9: religion and freedom of thought and conscience

10: freedom of expression…

11:right of assembly and protest

 

if a right is unqualified and the state finds that there is contravention of that right, then it is a breach of that convention

 

So the role of court in HRA in judicial review (so generally courts don’t want to review the facts, they only look at the reasonability of the decision, except under the HRA 1998.

Huang v. Secretary of State for the Home Dept (2007)

- refused by sec of state for asylum

- Huang brought claim for judicial review

- so what approach should the reviewing court take, in human rights cases, does the court only look at reasonability of the decision made by the sec of state, or should they go back and retake the decision looking at the facts. So which offers adequate protection of convention rights.

 

So in judicial review of cases concerning HRA 1998, it is important for the courts

to undergo merits review and go back to retake the decision examining the facts.  So this is different from ordinary domestic judicial review, this is to give adequate protection to convention rights. 

 

Qualified rights needs more detailed balancing:

- When balancing rights and interests, it needs to see what the public bodies have done

R (on the application of begum) v. Head Teacher and Governors of Denbigh High School (2006)

- Begum = student, and she was a devout muslim, the uniform policy allowed the most modest form of muslim dress

- But prohibited the stricter dress code that Begum wanted, and she argued that this was an infringement of her Article 9 right of the ECHR which was the freedom of religion

- The school argued that they took great efforts that the school uniform policy was compatible with the religious needs of students (had consulted local imams; imams found it acceptable)

- so the courts had to decide, do we adopt begum’s sense of dress or do we adopt the local imam’s interpretation of religious dress

- HoL found that the school’s uniform policy is lawful b/c the general knowledge of the Muslim dress is that it is not imperative for her to wear it

- Article 9 is a qualified right and thus needs to be balanced against the broader interest of the school and society and so on that basis, the uniform policy is lawful **this is objective** and can’t be subjective

 

So the factor that is common, is the nature of the public interest and what rights are at stake (is it a qualified or unqualified right) what evidence can the authority put forward to show that they put effort into considering convention rights and they don’t believe their actions are unlawful.

 

Courts might have to more expressly deal with certain issues

 

R. (on the application of Animal Defenders International) v. Sec of State for

Culture, Media, Sport)

- political ads are banned in the UK

- so courts need to balance competing interests

- ADI argued breach of Article 10 (right to freedom of expression) due to this ban on adverts and that the public interest needs this sort of info

- wanted to put an ad against animal testing

- Courts say they don’t want politics to be driven by money in adverts

- Article 10 is a qualified right, and we can’t say there is an untrammelled right to draw upon

- there is no possible alternative to this ban to achieve the objective that would work as well as prohibiting

- HoL found in favour of Sec of State

 

Proportionality really depends on the subject matter of the case.  I.e. if it is policy or human rights.  If it is discretionary, we won’t interfere.

 

It become controversial because the courts application of more detailed and searching standard of review arises from the separation of powers.  And the courts are reluctant to step outside of their proper constitutional role.

 

Are they accountable or they are overstepping their institutional competence

And the requirement that the court could overrule a decision of the Sec of State in relation to the merits as well as the legality of the planning decision is not only contrary to the jurisprudence of the European court but it is also undemocratic.  (per Lord Hoffman in Alconbury)

 

Aka now courts need to look at the merits and facts of the case, while before it was simply to look at whether a decision of a public authority was lawful or unlawful.

 

Because the usual power of the courts was not as an appellate authority to override a decision of the local authority, but as a judicial authority, which is concerned with looking only at whether a local authority have contravened the law by acting in excess of powers which Parliament has confided in them (per Lord Greene, Wednesbury)

 

Crown Horncastle:  Exception to the (contrary to Art 6) H was found guilty of a series of offences because of anonymous witnesses

- heresay rule was countering article 6