Semester 2 - Judicial Review

Question 1

CCSU v Minister for Civil Service (GCHQ) [1985] AC 374

judicial review grounds - procedural impropriety

Wider question flowing from the decision:

‘The reason normally given by the judiciary for avoiding engaging with the royal prerogative when it relates to national security and similar concerns is that such political, policy-related matters are properly part of the legitimate function of the executive;’

Some interpretations of the separation of powers fail to consider its dependence on the wider constitutional context. The rule of law mandates the lawful exercise of power, often necessitating scrutiny of decisions, complicating non-justiciability rulings. Parliament isn’t always apt to scrutinize executive activity (consider Miller [2019]), thus the judiciary may be the only other capable branch. Can the rule of law and the separation of powers principles be reconciled considering this?

Answer 1

On the first issue, the reviewability of the royal prerogative, all of their Lordships were agreed that the particular type of prerogative in question was reviewable. Lords Fraser (at 398) and Brightman (at 424) did not speculate about the reviewability of all types of prerogative power. Conversely, Lords Scarman (at 407), Diplock (at 410), and Roskill (at 417) agreed that the prerogative power in general is subject to judicial control.

What about the justicability of the issue in question ⇒ they agreed that the CCSU appeal ought to be disissed because they were issues of national security involved. Lord Scarman observed that this was not an ‘abdication of the judicial function’, but was instead ‘a common sense limitation recognised by the judges as to what is justiciable’ (at 406–7). For Lord Diplock, the non-justiciability of national security issues arose from the different functions of the executive and the judiciary, reasoning that ‘the judicial process is totally inept to deal with the sort of problems which [national security] involves’ (at 412).

Minister for the Civil Service, Prime Minister Margaret Thatcher exercised the royal prerogative through an Order in council to change the conditions of service for staff at Government Communications Headquarters (GCHQ). In particular, civil servants based at GCHQ would no longer be permitted to be members of a trade union. The announcement before the House of Commons was the first time the unions heard of the change in policy, contrary to an established history of consultation with the Council of Civil Service Unions (CCSU) (see Lord Fraser, at 596).

Question 2

R v Home Secretary, ex parte Zamir [1980] AC 930.

old approach to JR - collateral questions doctrine

Answer 2

the determination as to whether an immigrant was an “illegal entrant” or not was not jurisdictional.

distinguish ex parte Khawaja

Question 3

R v Home Secretary, ex parte Khawaja [1984] AC 74

JR

Answer 3

the courts decided who could be classified as an illegal entrant

Question 4

Anisminic v Foreign Compensation Commission [1969] 2 AC 147

new approach to JR - error of law

also see the privacy international case.

Answer 4

= any error of law can be nullified under judicial review

Anisminic won the case. The majority in the HoL held that:

• The FCC had made a Jurisdictional error
• The FCC determination was in fact no determination at all but only a purported determination
• The ouster clause did not preclude the courts from correcting jurisdictional errors

Lord Morris’s dissent (at 189):
*‘[The Commissioners] were at the very heart of their duty, their task and their jurisdiction. It cannot be that their necessary duty of deciding as to the meaning [of the eligibility criteria] would be or could be followed by the result that if they took one view they would be within jurisdiction and if they took another view they would be without’

=> It was not clear from the judgment why the issue was jurisdictional.

A British company with property in Egypt (4.4 million). The property was sequestrated by the Egyptian govt during the Suez Crisis (1956)

• Anisminic recieved 500, 000
• The Egyptian got sold the prop to TEDO an Egyptian organization
• Later, Egypt made a grant of 27, 5 million to the UK govt to compensate property owners.
• The Foreign Compensation Commission was established to allocate compensation in such cases. The FC Act 1950 contained eligibility criteria (the owner or successor in title had to be British) => FCC decided that Anisminic was ineligible
• Anisminic sought judicial review claiming that the FCC had misinterpreted the eligibility criteria BUT ouster clause (= privative, preclusive clause) in FCC Act 1950, s 4(4) :
  *‘The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.’

Question 5

R v Hull University Visitor, ex parte Page [1993] AC 682 (HL), 702

error of law - exception (anismininc)

Answer 5

The principle in Anisminic, that any error of law is ultra vires, does not apply to decisions of University visitors

Lord Browne-Wilkinson:
‘Therefore…in general any error of law made by an administrative tribunal or inferior court in reaching its decision can be quashed for error of law’: p. 701C
However, In contrast to tribunals and inferior courts that apply the general law of the law, under which any error of law will be deemed ultra vires, a visitor applies ‘a peculiar, domestic law of which he is the sole arbiter and of which the courts have no cognisance’, and an error under such domestic law is not an error of the general law that is amenable to review: p. 702C

Question 6

E v Home Secretary [2004] EWCA Civ 49

error of fact (exceptions) - judicial review -

Answer 6

= the court will quash if there’s an error of fact that gives rise to unfairness and is ‘uncontentious and objectively justifiable’

The first applicant, E, an Egyptian national, had tried to claim asylum in the UK
Being a sympathiser of the Muslim Brotherhood group, he feared persecution if sent back to Egypt
After his asylum claim was refused by the Home Secretary, he appealed to the Adjudicator and then Immigration Appeal Tribunal (IAT), where his appeal was unsuccessful
The second applicant, R, also a foreign national seeking asylum, also had his appeal dismissed
E and R sought to rely on new evidence suggesting that they would be at risk of persecution or torture if sent back to their home countries
The applicants both appealed against the IAT’s decision not to grant permission to appeal

Question 7

R (A) v Croydon LBC [2009] UKSC 8

errors of fact (exceptions)

Answer 7

= ‘jurisdictional facts’ can be corrected by the courts even if not objectively verifiable

Lady Hale:
Deciding what a child is treated is a ‘jurisdictional fact’ for the courts to determine, but whether this child is in need is to be determined by the local authorities as it ‘requires a number of different value judgments’.

= The question whether an individual is a child for the purpose of the Children Act 1989 is a precedent fact that determines the jurisdiction of the decision maker, and is subject to review by the court

The Children Act 1989 s20(1):

‘Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation’

(What is a child? What does ‘in need mean’?)

Question 8

Liversidge v Anderson [1942] AC 206

discretionary powers

Answer 8

The HoL (4:1) held that it was subjective. The court would not investigate whether the SoS really did have reasonable cause to believe.

Famous dissent from Lord Atkin:
‘I view with apprehension the attitude of judges who … show themselves more executive minded than the executive. … In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.’

Home secretary used emergency powers in WWII=> regulation 18B, under the Defence of the Realm Act

*‘If the Secretary of State has reasonable cause to believe any person to be of hostile origin or association … he may make an order against that person directing that he be detained.’ *

Is discretion subjective or objective? (for the Secretary of State to decide according to what he thinks or for the courts to test whether there actually was a reasonable cause to believe)

Question 9

Padfields v Minister of Agriculture, Fisheries and Food [1968] AC 997

discretionary powers - control- wide ultra vires - duty to give reasons

= Padfield is also a good example of another important public law principle: the expectation that reasons should be given, particularly when refusing to exercise a power in response to a legitimate request. The failure to provide reasons may, the Court indicated, attract the negative inference that there are no good reasons to give.
= Padfield suggests that executive discretion granted by statute is defined by Parliament’s intention in the enacting legislation
= Do you think that the courts’ apparent reliance on common law principles in place of statutory interpretation is constitutionally justifiable?

Answer 9

The HoL (4:1) held that Minister had taken into account irrelevant considerations + failed to act for a proper purpose.

Lord Reid:
*‘Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act, the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court.’ *

= the court turned that discretionary power into a duty.

See Lord Morris’s dissent: *
‘The language here is, in my view, purely permissive. The Minister is endowed with discretionary powers. … If the respondent [i.e., the Minister] proceeded properly to exercise his judgment then, in my view, it is no part of the duty of any court to act as a Court of Appeal from his decision or to express any opinion as to whether it was wise or unwise.’ *

Farmers complained abt the Ministers of Agriculture management of a milk marketing scheme.

The Agriculture Marketing Act 1959: the Minister may refer a complaint to a committee of investigation *‘if the Minister in any case so directs’. *

If the committee recommended changes, the Minister could amend the scheme *‘if he thinks fit to do so’ *

The Minister refused to refer the complaint to the committee and Padfield sought judicial review.

Question 10

Pergau Dam Case: R v Foreign Secretary, ex parte World Development Movement [1995] 1 WLR 386

common law constraints on discretion - purposive interpretation

Answer 10

The Court quashed the foreign secretary’s decision

Rose LJ:
*‘[I]t is, as it seems to me, a matter for the courts and not for the Secretary of State to determine whether, on the evidence before the court, the particular conduct was, or was not, within the statutory purpose.’ *

• The statutory power in s 1(1) of the Act to provide assistance for the purpose of promoting development did not include economically ‘unsound developmental purposes’.

=>Applying the objective approach, the statutory power in s 1(1) of the Act to provide assistance for the purpose of promoting development did not include economically unsound developmental purposes.

=> though the Secretary of State was entitled when making decisions whether to grant assistance under the Act to take into account political and economic considerations, on the evidence, no developmental promotion purpose within s.1 existed at the time the financial agreement was signed and the Secretary of State’s decision was therefore unlawfu

*Margaret Thatcher reached an aid-for-arms deal with Malaysia.
*In return for financial assistance from the UK, Malaysia would buy British fighter aircraft.
*In 1993, the Foreign Secretary committed £234 million to build the Pergau dam.
*The National Audit Office, among others, considered the UK’s funding of the dam to be a waste of money. WDM sought judicial review.

The Overseas Development and Co-operation Act 1980, s 1:

*‘The Secretary of State shall have power, for the purpose of promoting the development or maintaining the economy of a country or territory outside the United Kingdom, or the welfare of its people, to furnish any person or body with assistance, whether financial, or of any other nature.’ *

Question 11

R (Corner House Research) v Director of the Serious Fraud Office[2008] UKHL 60, [2009] 1 AC 756 ( outside the lawful limits of discretion)

discretionary powers - common law constraints on discretion

Answer 11

But it is overturned by a unanimous house of Lords.
D had been victim of threats and had reluctantly given up on the investigation

Lord Bingham: The court should ask ‘whether, in deciding that the public interest in pursuing an important investigation into alleged bribery was outweighed by the public interest in protecting the lives of British citizens, the Director made a decision outside the lawful bounds of the discretion entrusted to him by Parliament.’

Lady Hale: ‘The only question is whether it was lawful for [the Director] to take [the threat and national security risk] into account. … Put like this, it is difficult to reach any other conclusion than that it was indeed lawful for him to take this into account.’

= It was for the director to balance the various relevant considerations.

D had been investigating allegations that B had made corrupt payments in connection with a contract for military aircraft between the United Kingdom government and Saudi Arabia. D sought access to bank accounts in Switzerland. An explicit threat was then made by an official of Saudi Arabia that if the investigation continued, Saudi Arabia would withdraw from counter-terrorism co-operation arrangements with the UK and would not enter into the contract. D had a number of meetings with the ambassador to Saudi Arabia, who told him that “British lives on British streets” would be at risk if Saudi Arabia carried out its threat. D decided that continuing to investigate B would not be in the public interest. The respondent public interest organisations (C) applied for judicial review of D’s decision, and the judge concluded that D’s decision had been unlawful as he had submitted to a threat, contrary to the rule of law, and had not taken sufficient steps to divert the threat.
D submitted that his decision was lawful and in accordance with the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 1997 (OECD) art.5, but maintained that even if it had not been in accordance with art.5, he would still have made the same decision to protect the lives of British people. CH submitted that D had interpreted art.5 incorrectly and that his decision should be quashed. The Divisional Court quashed his decision (Sir alan Moses) relies on the rule of law:
*‘The rationale for the court’s intervention is its responsibility to protect the rule of law. … The surrender of a public authority to a threat or pressure undermines the rule of law.’ *

*‘…submission to a threat is lawful only when it is demonstrated that there was no alternative open to the decision-maker.’ *

• The Director had not independently exercised the powers under the 1987 Act and
• The Director had not sufficiently appreciated the damage to the rule of law by submitting to the threat
• The Director can only submit to such threats if left with no other choice

Question 12

Associated Picture House v Wednesbury Corporation [1948] 1 KB 223

JR on the grounds of illegality (ultra vires) - irratioanlity

Defined the Wednesbury unreasonableness

Answer 12

Greene MR Relied on Harman v Butt (a wartime case). Arguably did not pay attention to the context of this case, which was different.
* The local authority’s decision was reasonable and took into account relevant considerations
Lord Greene :

“The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have 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’

In the present case, the defendants imposed the following condition in their licence:
Sunday entertainments act 1932 s 1(1) : local authorities may allow cinemas to open on Sundays, ‘subject to such conditions as the authority thinks fit to impose.’

WC gave the permission under condition that no children 15- were to be allowed on the premises even accompanied by an adult on Sundays

The cinema sought a declaration that the condition was unlawful bc it was unreasonable.

Question 13

Wheeler v Leicester City Council

judicial review - irrationality

=> not an isolated example of the court’s more interventionist approach

Answer 13

HoL = held that the council acted unlawfully ( a badly reasoned judgment ?)

Roskill LJ:
* Procedural impropriety (even though this had not been argued by the club)
* Wednesbury unreasonable (even though accepted the council’s argument)

Lord Templeman;
Unlawful bc it punished the club when they haven’t done nothing wrong

Members of the rugby club wanted to go on a tour in South Africa. The Labour-controlled Leicester City Council asked the club to stop its members to go on tour. The club condemns apartheid but insists taht there was reasonable disagreement over the best way to oppose iy.

The council suspended the club’s use of municipal ground, (on the grounds of the race relations Act 1976, s 71 = imposes a duty to promote good races relations)

Wheeler sought JR.

Court of appeal

• The majority reasoned along Wednesbury lines to conclude that the council’s decision was lawful—i.e., it was not so unreasonable that no reasonable authority could have come to it.
• The majority emphasised the statutory duty to promote race relations and the ethnic mix of the community

Browne-Wilkinson LJ dissented.

• The council’s decision was not ‘perverse’, but…
• The ban unjustifiably infringed the fundamental right to free speech and conscience.
• Browne-Wiklinson LJ did not cite any authority for the existence of this right in English law.
• The reliance on fundamental rights in this case was an early sign of later common-law developments.

Question 14

Education secretary v Tameside MBC [1977] AC 1014

judicial review - irrationality

Answer 14

HoL = the SoS decision was unlawful bc the council’s action was not so unreasonable that no reasonable authority could have come to it.

Lord Diplock
*‘The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred.’ *

*‘[T]he question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly.’ *

= allows the choice for the local authority but not to the central (Labour) govt => Parodoxical

=> decision described as an overtly political one

The (Labour) govt ordered a (Conservative) local education authority to change a school from a selective grammar into a comprehensive.

Education Act 1944, s 68 empowered the Secretary of State to intervene if he was ‘satisfied… that any local education authority… have acted or are proposing to act unreasonably’

Question 15

‘Fares Fair’ case : Bromley London Borough Council v Greater London Council [1983] 1 AC 768

judicial review - irrationality

Answer 15

The HoL: held that the GCL had acted unlawfully

• Their Lordships (except for Lord Keith) held that the GLC ‘fiduciary duty to taxpayers’
• Is it the judiciary’s place to make judgments abt public spendings ?

=> narrow conception of reasonableness

(Labour) GLC implemented a manifesto commitment to cut fares on the Ldn underground – a cost met through rates (local govt taxes)

Question 16

Puhlhofer v Hillington London Borough Council [1986] AC 484

judicial restraint - irrationality

Answer 16

The HoL judgement (Lord Brightman) = upheld the judgment of the CA

• ‘I am troubled at the prolific use of judicial review for the purpose of challenging the performance by local authorities of their functions under the [Housing (Homeless Persons) Act 1977].’
• The courts should only intervene in the discretionary judgments of public bodies if they act ‘perversely’.
• ‘Parliament plainly, and wisely, placed no qualifying adjective before the word “accommodation”. … The word “appropriate” or “reasonable” is not to be imported.’

Married couple with two children lived in one room at a guesthouse, with no cooking facilities, no meals

They applied to the local authority for housing under the Housing (Homeless Person Act 1977).

Application refused on the grounds that they weren’t homeless:

Divisional Court (won) but overruled by the CA

Question 17

Rotherham MBC Case

see pptx

Question 18

R v Home Secretary, ex parte Simms [1999] UKHL 33, [2000] 2 AC 115

judicial review - the legality principle

Answer 18

This case laid down the principle of legality, which states that common law fundamental rights cannot be overridden by general or ambiguous words in Acts of Parliament
Thus, fundamental rights can only be overridden expressly, not impliedly, by Acts of Parliament

appeal allowed

The Home Secretary placed a blanket ban on prisoners giving interviews to journalists, purportedly pursuant to Rule 33 of the Prison Rules 1964, a piece of subordinate legislation
Simms and another appellant (both life sentence prisoners) brought forward a judicial review proceeding against the Home Secretary
The appellants argued that this infringed on their right to free speech in common law.

Question 19

Ex Parte Bugdaycay

judicial review - legality pincipe - Fundamental human rights

Answer 19

The HoL held that => the refusal of the HS unlawful

=> When a value of fundamental importance, such as right to life, is interfered with, more will be required to justify the administrative decision.

Bugdaycay => An Asylum seeker sought JR of the Home Secretary’s refusal. He argued that if he returned to Kenya, he would be removed to Uganda and would be killed.

Brind
Leech

Question 20

R (UNISON) v Lord Chancellor

judicial review- fundamental rights

see semester 1

Answer 20

The UKSC : unanimously held that the fees were unlawful

Decided primarily on common law grounds and constitutional right of access to justice.

The degree of intrusion in this constitutional right was greater than was justified by the legitimate objectives (i.e., transferring cost to users, incentivizing earlier settlement, disincentivizing weak or vexations claims).

UNISON sought JR bc employment tribunal fees were restricting access to justice

Question 21

R (B) v Cambridge Health Authority [1995] EWCA Civ 43

judicial review - fundamental human rights

Answer 21

The Court of Appeal overturned the decision; did not even mention human rights

The father of a seriously ill girl sought JR of the reasonableness of the heath authority’s decision to refuse expensive experimental treatment.

In the Divisional Court, Sir John Laws held that the authority had acted irrationally:

‘Where a public body enjoyed a discretion whose exercise might infringe a fundamental right, such as the right to life, it should not be permitted to perpetuate any such infringement unless it could show substantial objective justification for doing so on public interest grounds.’

=> When there is a fundamental right involved, the Wednesbury threshold is reduced

Question 22

R v Ministry of Defence, ex p. Smith [1996] QB 517

judicial review - fundamental human rights

Answer 22

The CA : All 3 judges accepted Pannick’s submission. But held that the MoD’s decision was within the range of reasonable responses.

=> The Wednesbury is lower in HR cases but it is still a high threshold.

=> However, did the Court of Appeal fail to apply the variable (proportionality-style) Wednesbury test, which required greater justification for the MoD’s policy to be lawful?

MoD’s policy to ban homosexuals in the armed forces.

David Pannick QC’s submission => presents a test in the court of appeal.

‘The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable.’

Question 23

Smith and Grady v UK

fundamental human rights

Answer 23

=> wins the case

The judgment of the ECHR:
Breach of article 8 of the ECHR (private life)

Breach of article 13 ECHR (‘everyone whose rights and freedoms set forth in this Convention are violated shall have an effective remedy before national authority’)

Modified Wednebury was inadequate for the protection of rights protected by the ECHR.

smith goes to the ECHR

Question 24

R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532

fundamental human rights - proportionality vs irrationality

Answer 24

= appeal allowed, the policy infringed upon D’ common law righst

At [27], Lord Steyn argued that the intensity of review is greater under proportionality as it rquires to assess the balance, not merely the reasonableness.
Even the heightened scrutiny test applied in Smith is insufficient to protect human rights as it fails to consider weight and balance, following Smith and Grady v UK
However, he was keen to stress at [28] that proportionality review does not amount to a merits review by the court, that its intensity will depend on context, stating that “[i]n law context is everything.”

The Home Secretary issued a document requiring prisoners to be removed from their cells during routine searches, including examination of legal correspondence on the suspicion that the contents are criminal
Daly applied for judicial review on the basis that these searches breached his common law right that the confidentiality of privileged legal correspondence
Note that this case did not in fact involve Convention rights, has the HRA had not been in effect at the time of the facts of this case, thus the comments on proportionality were strictly obiter.

Question 25

Pham [2015] UKSC 19; Keyu v Foreign Secretary [2015] UKSC 69.

fundamental rights - proportionality test

Answer 25

= the court supported teh view of proportionality becoming a free-standing ground of review

Question 26

Huang v Secretary of State for the Home Department [2007] UKHL 11

proportionality - fundamental human rights

Answer 26

The correct test for human rights matters is proportionality, not Wednesbury or heightened scrutiny
An additional 4th limb was added the the 3 limb de Freitas test for proportionality
Giving weight to the assessment of decision makers does not amount to deference, but rather a recognition that the decision maker might have some specialised knowledge to aid its assessment

Huang was a Chinese citizen who had a daughter, son-in-law and two grandsons who were British citizens living in the UK.
H applied for indefinite leave to remain as a dependant on her daughter
The Secretary of State refused on the grounds that H did not qualify under the Statement of Changes in Immigration Rules (1994) (HC 395), such as the requirement of being 65 or over.
Under s65 Immigration and Asylum Act 1999, H appealed to an adjudicator on the grounds that H’s removal would infringe article 8 ECHR – the right to family life.
The adjudicator granted H’s claim, but the Immigration Appeal Tribunal denied it on appeal it applied Wednesbury review and thought that it should defer to the government
H appealed to the Court of Appeal, which applied proportionality testing and held that insufficient weight had been accorded to article 8
The Home Secretary appealed to the House of Lords

Question 27

British Oxygen Co Ltd v Minister of Technology [1971] AC 610

unlawfully fettering discretion ) illegality

Answer 27

The House of Lords accepted that the department was entitled to make a rule or policy, if it was prepared to listen to arguments for the exercise of individual discretion. On the facts, it was entitled to refuse the application.

Appeal dismissed

s13 Industrial Placements Act gave the Minister of Technology discretionary power to issue grants to industrial plants
The Minister made a policy of not reimbursing products under £25
British Oxygen Co applied for grants for their gas cylinders which cost £20 each; their application was refused
British Oxygen Co applied for judicial review on the grounds that it was unreasonable to disregard the application simply because the cylinders were under £25 each

Question 28

R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport [1993] 1 WLR 23

Answer 28

= The court does not interfere with the decision of a public body based on an interpretation of legislation unless the interpretation was irrational.

The MMC decided that a merger of bus companies in the South Yorkshire area might operate contrary to the public interest, considering that the reference area is ‘a substantial part of the United Kingdom’ under s64(3) of the Fair Trading Act 1973
The company applied for judicial review, questioning the jurisdiction of the MMC
The MMC interpreted ‘substantial’ as ‘something real or important as distinct from something merely nominal’ The MMC argued that the relevant area in this case contained important features
The Court of Appeal found for the applicant, and the MMC appealed to the House of Lords

Question 29

R v Secretary of State for the Environment, ex parte Nottinghamshire County Council

judicial restraint - irrationality

Answer 29

The HoL : held for the SoS

Scarman LJ: *Wednesbury unreasonableness could only succeed if the SoS had acted in a way that was ‘so absurd that he must have taken leave of his senses’ *

The (conservative) SoS set expenditure targets for local authorities. Two (Labour) local authorities argued that it was unreasonably low

Question 30

Ex parte Brind[1991] UKHL 4

legality principle - fundamental human rights

Answer 30

The HoL : rejected both arguments => the ECHR had not been implemented yet + questioned the standard of review (was it abt Wednesbury or did it imply a proportionality)

• Lord Ackner and Lord Lowry – a proportionality test would lead to merit review, which would be a ‘wrongful usurpation of powers’ => requires the courts to assess the powers
• Lord Bridge and Lord Roskill – proportionality may be the right test in the future, but this is not a good case to introduce it.
• Lord Templeman – the ban was lawful and not disproportionate ‘the interference with freedom of expression is minimal and the reasons given by the Home Secretary were compelling.’

In 1988, ban on the broadcasting of members of organization in NI (such as Sinn Fein) which were associated with terrorist groups.

To circumvent, the ban broadcasted would use actors to dub their words.

Brind = journalist sought JR

=> irrationality + breach of article 10 of the ECHR

Question 31

Ex parte Leech[1993]

legality principle - fundamental human rights

Answer 31

CA judgment (Lord Steyn)
*‘it is a principle of our law that every citizen has a right of unimpeded access to a court… Even in our unwritten constitution it must rank as a constitutional right’ *

= The right to unimpeded access to courts entailed the right of unimpeded access to a solicitor

= To allow the SoS to interfere with fundamental rights would require express wording in the 1952 Act.

Prison Act 1952, s 47 (1) : ‘The Secretary of State may make rules for the regulation and management of prisons … and for the classification, treatment, employment, discipline and control of persons … detained therein.’

Prison rules 1964, r 33: ‘every letter or communication to or from a prisoner may be read or examined by the governor … and the governor may, at his discretion, stop any letter…’

Prison Rules 1964, r 37A: An exception: a prisoner who is a party to legal proceedings may correspond with a lawyer without interference.

L was regularly in litigation. He was not at that point a party to legal proceedings but was corresponding w// a solicitor with a view do it. When his letter was opened by the governor, he sought JR

Question 32

Bank Mallet v Her Majesty’s Treasury (No 2) [2013] UKSC 39 [20]

fundamental human rights - proportionality test

Answer 32

=> the measure was unlawful
The court approved the 4 limb proportionality test but disagred on the interpretation third one.

See Lord Reed (orthodox rendition of WR) : The third limb means that the limitation of the protected right must be one that “it was reasonable for the legislature to impose”, and that the courts were “not called on to substitute judicial opinions for legislative ones as to the place at which to draw a precise line”.

See Lord Sumption (harder to satisfy) : On the meaning of the third limb: “it was suggested that a measure would be disproportionate if any more limited measure was capable of achieving the objective …”

The Treasury imposed financial restrictions on BM on the grounds that it financed Iranian nuclear weapon development
BM applied for judicial review on the ground of interference with article 1 ECHR – the right to property, including peaceful enjoyment of business assets

Question 33

R v Secretary of State for the Home Department, ex parte Venables and Thompson [1997] UKHL 25

judicial review - ultra vires - illegality

Answer 33

The House of Lords held by 3 to 2, quashing these tariff decisions: taht the detention of a young offender during Her Majesty’s pleasure was not to be equated to the mandatory life sentence served by adults, since the legislation in the former case required the Secretary of State to keep the young offender’s detention under continuous review. Thus, both the general policy of setting a ‘tariff’, and the particular decision of 15 years, were unlawful. Furthermore, in fixing a tariff period, the taking into account of the media clamour concerning the case was procedurally unfair, and led to an irrelevant consideration being taken into account i.e. the public opinion in favour of a long tariff.

Sentenced for murder to detention (under statute) during Her Majesty’s pleasure, Venables and Thompson were given a tariff of 15 years by the Secretary of State.

Question 34

R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213

legitimate expectations - judicial review

Answer 34

https://lawprof.co/public-law/legitimate-expectations-cases/r-v-devon-health-authority-ex-p-coughlan-2001-qb-213/

Question 35

Ahmed and others v HM Treasury [2010] UKSC 2

fundamental human rights - judicial review

Answer 35

It was held that the TO should be set aside as ultra-vires according to s 1(1) of the United Nations Act 1946, and likewise in a majority decision of six to one (Lord Brown dissenting) that the art 3(1)(b) of the AQO was to be quashed on similar grounds. The decision signalled a shift in power back to the legislature.

The case involved the freezing of assets of five men who were suspected of financing terrorism. Given the constitutional significance of this case and its raising of issues related to abuse of executive power, human rights, and international terrorism, it is arguably the most important Supreme Court case to date. The most significant issue facing the court was whether the provisions under the Terriosm Order 2006 (TO) and the Al-Qaida and Taliban Order 2006 (AQO) introduced by the Treasury to freeze the assets of individuals on the grounds of reasonable suspicion that they were involved in terrorism were ultra vires according to s 1(1) of the United Nations Act 1946. Counsel for the defendants argued that both orders were in breach of s 8 of the Human Rights Act 1998 for their incompatibility with art 8 of the European Convention on Human Rights. Furthermore, both the TO and AQO were passed without Parliamentary scrutiny, which raises questions as to the legitimacy of the orders in light of the issues previously mentioned.

Question 36

Cooper v Wandsworth Board of Works (1863)

procedural impropriety - due process

Answer 36

Held: the demolition was unlawful because C had not been given the right to be heard even though there was a statutory power.

Byles J:
‘although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature.’

Erle CJ:
‘no man is to be deprived of his property without his having an opportunity of being heard.’

Willes J:
‘A tribunal which is by law invested with power to affect the property of one of Her Majesty’s subjects, is bound to give such subject an opportunity of being heard.’

FACTS:Mr Cooper was building a house, but he had failed to fulfil the statutory requirement to give Wandsworth Board of Works sufficient notice (5 days instead of seven).

Metropolis Local Management Act 1855, s 76:

If a building was started without seven days’ notice, ‘it shall be lawful for the … board to cause such house or building to be demolished’.

• Wandsworth Board of Works demolished Mr Cooper’s half-built house, without giving him any warning.

Question 37

Ridge v Baldwin [1964]

procedural impropriety - due process

abolished the distinction between administrative and administrative justice

Answer 37

The House of Lords: held Ridge’s dismissal was void.

=> This landmark revived the 19th-century doctrine, and is part of Lord Reid’s liberalisation of judicial review after the post-war period of (arguably) excessive judicial restraint. The House of Lords scorched the idea that the rules of natural justice apply only to ‘judicial’ decisions.

Facts: A chief constable, who was acquitted of conspiracy to obstruct the course of justice, was dismissed from office without notice of any charge or a hearing.

Question 38

R v Secretary of State for the Home Dept ex parte Doody [1993] UKHL 8

procedural impropriety - due process -

Sets out principles for procedural fairness

Answer 38

Held, Lord Mustill: ‘the law does not at present recognise a general duty to give reasons for an administrative decision’, but there is ‘a perceptible trend towards an insistence on greater openness’.

Held: In setting the ‘tariff’ that prisoners must serve before being considered for parole, the Home Secretary must give reasons, including reasons for any departure from the judicially recommended tariff. => allows them to make a better application

Applicants who had received mandatory life sentences were told the minimum period they must serve before their sentences would be reviewed, but were not informed as to the recommendations of the judiciary as regards the length of their sentence. They applied for judicial review and this application was dismissed by the Divisional Court. The Court of Appeal allowed the appeal in part, declaring that the Home Secretary was required to inform the men of the recommended length of sentence, and to allow them to make representations concerning it, before any period of imprisonment could be determined.

Question 39

R v Home secretary, ex parte Hosenball [1977]

due process and national security

= The courts have since become less deferential and started to question the govt’s approach.

Answer 39

Appeal dismissed
Lord Denning: ‘When the public interest requires that information be kept confidential, it may outweigh even the interest in the administration of justice.’

NB: The courts traditionally show an extreme amount of restraint when the national security card is played. See also Lord Diplock in the GCHQ case: national security is ‘par excellence a non-justiciable question’.

The Court were at that time deferential regarding national security.

• The Home Secretary ordered Mark Hosenball, a journalist, to be deported on national security grounds, but no evidence was produced.

Question 40

R (Roberts) v Parole Board

closed material procedure - procedural impropriety

Answer 40

• House of Lords (3:2) approved the system: if the Board could lawfully withhold information, the special advocate system was better than nothing.

Dissents: Lord Bingham and Lord Steyn

• The Home Secretary and Parole Board should not be allowed to depart from fundamental values unless the statute expressly authorises it (see e.g. Simms).
• Lord Steyn described the special advocate system as ‘Kafkaesque’.

NB: After the decision, Roberts was sent the secret evidence anonymously. A further Parole Board hearing, at which his counsel could effectively cross-examine, cleared him of the most damaging allegations

• The Parole Board was concerned that revealing the evidence of an informer would put him at risk.
• The Parole Board used a special advocate system, without express statutory authorisation.
• Under Criminal Justice Act 1991, s 32(5), the Home Secretary made rules allowing the Board to withhold information on various grounds.

Question 41

SoS for Home Departement v MB [2007] UKHL 46

national security - procedural impropriety (due process)

This case later went to the ECHR
- National security can be a justification for limiting information given to the individual
- But non-disclosure cannot go so far as to deny an individual knowledge of the essence of the case against him—at least where there is a risk of severe consequences.

A week after the ECHR’s judgment new case where the HoL applies this (AF)

Answer 41

HoL: The use of special advocates was compatible with the right to a fair hearing—unless, looking at the process as a whole, the procedure involved significant injustice to the individual.

The majority suggested it would be fair if it would ‘make no difference’ to the outcome (but how would they know that w/o an open hearing?)

Lord Hoffmann (dissenting): the existence of special advocates is sufficient to guarantee procedural fairness in every case.

Context:
= There are categories of suspected terrorists. The govt wanted to either prosecute them or deport them.
= After 9/11 : Anti-Terrorism, Crime and Security Act = unlimited detention w/o trial => The HoL held that it was incompatible with convention rights and issues a declaration of incompatibility under s 4 HRA.

Prevention of Terrorism Act 2005: The Home Secretary could make a control order against a person if s/he had reasonable grounds for suspecting the person to be involved in terrorism-related activity.

• Control orders impose restrictions that come close to house arrest: electronic tags; remain at a specific address for long hours; no communication; Home Office vetting of visitors, etc.
• There needed to be a hearing to determine whether the decision to make a control order was flawed. But the hearings could use the special advocate system.

Question 43

SS for Home dept v AF

national security - due process- procedural impropriety

Answer 43

HoL’s judgement:

The controlee had to be given enough information to be able to effectively instruct his special advocate.

Lord Phillips: ‘I do not believe that it is possible to draw a clear distinction between a fair procedure and a procedure that produces a fair result.’

Yet, although we cannot be sure how disclosure would affect the result, Lord Phillips held that, where the core minimum of disclosure is satisfied, in most cases the special advocate system could be applied ‘without significant risk of producing unjust results

Question 44

KEY CASE

*R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242

procedural impropriety - the duty to give reasons

Answer 44

The Court found no ground for requiring the council to give reasons. Sedley J considered the advantages and drawbacks of a duty to give reasons. He distinguished between cases where the nature and impact of the decision itself call for reasons as a routine aspect of procedural fairness, and other cases where some trigger factor is required to show that, in the circumstances of the particular decision, fairness demands reasons. This case fell into the latter category, but the rating was not so aberrant in itself to call for an explanation.

Grants to educational institutions were based on an assessment of their research quality by the Funding Council. A college applied for judicial review of their assessment, contending the council acted unfairly in giving no reasons for its rating.

Question 45

R v Civil Service Appeal Board (CSAB) ex p Cunningham

procedural impropriety - the duty to give reasons

Answer 45

Held: procedural fairness can include a duty to give reasons. The low amount required explanation.
The Court of Appeal found that natural justice required the Board to give reasons for their decision, since the Board carried out a judicial function from which there was no appeal and reasons were necessary so that the Board’s decision could be judged lawful or unlawful. In R v Higher Education Funding Council ex p Institute of Dental Surgery [1994] 1 WLR 242, Sedley J gave this as an example of a ‘trigger factor’ case (at 261).

Lord Donaldson:

‘The Board should have given outline reasons sufficient to show … not whether their decision was right or wrong, which is a matter solely for them, but whether their decision was lawful. Any other conclusion would reduce the Board to the status of a free wheeling palm tree.’

Applicant dismissed from a job as a prison physical instructor. The Civil Service Appeal Board recommended compensation of £6,500.

Question 46

R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No. 2) [2000] 1 AC 119

due process - the rule against bias

Answer 46

The HoL set aside its own judgment and Hoffman was automatically disqualified (= nb: there was not actual bias but there was apparent bias).*

The case went back to the HoL => and the same decision was reached through a different reasoning.

Lord Goff:

‘Where a judge is performing a judicial duty, he must not only bring to the discharge of that duty an unbiased and impartial mind. He must be seen to be impartial.’

But problem: from which standpoint do we consider the bias as apparent

Dictator in Chili until 1990 = 3000 ppl were murdered or disappeared => after his rule pressure to bring him to justice but he continued to travel the world claiming immunity. He would namely go to the UK. Arrested in London in 1998 on the request of the Spanish authorities.

On the one hand: well-established rule of state immunity

On the other hand: other developing principles were trying to end this immunity.

*The HoL held that he could be extradited to Spain and his arrest was valid. But a Chilean Senator purported that it was biased. One of the judges (Hoffman LJ) was the chairman of Amnesty International which was an intervener in this case.

Question 47

R v Gough [1993] AC 646

due process - the rule against bias

Answer 47

The House of Lords dismissed the appeal.

Lord Goff: the court should look through the eyes of the ‘reasonable man’, personified by the court.

Test : ‘[T]he court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him.’

A man was convicted of conspiring with his brother to commit robbery. The convicted man appealed because a member of the jury was the next-door neighbour of his brother. The jury member swore an affidavit stating that she was not aware of the connection until after the jury had delivered its verdict.

Question 48

Porter v Magill [2001] UKHL 67

the rule against bias - due process - new test

Homes for votes scandal

Answer 48

The court held: that there was not a real possibility of bias = no apparent bias. Lord Hope made a ‘modest adjustment’ to the law of bias defined by Goff.

‘The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.’

An auditor ruled that the Conservative-led council had acted corruptly in selling council houses in marginal wards to gain political support. The auditor convened a press conference to announce his findings. The problem was that the auditor acted as investigator, prosecutor, and judge.

Question 49

Belize Bank Ltd v Attorney General of Belize [2011] UKPC 36

due process - the rule against bias

Answer 49

Held: In the Privy Council, the majority held that there was no real possibility of bias. The observer must have sufficient information, even if not in the public domain.

Lord Brown dissented, arguing that the (less well-informed) public would perceive a real possibility of bias. Goes to the approach of apparent bias.

Belize Bank Ltd appealed against a directive requiring it to transfer US$10m to the government. Two members of the appellate board were appointed by the Minister for Finance.

Question 50

Ex parte Kirkstall Valley Campaign [1996]

due process - the rule against bias

Answer 50

Sedley J: ‘In the case of an elected body the law recognises that members will take up office with publicly stated views on a variety of policy issues. … [T]he court will be concerned to distinguish … legitimate prior stances or experience from illegitimate ones.’

= The normal test for bias applies, but the court clarified that the test is for the appearance of inappropriate bias.

There was alleged bias in local planning decisions because councillors had publicly aired views.But we legitimately expect councillors to have policies. Are they biased by their policies?

Question 51

R (Alconbury Ltd) v Environment Secretary [2001] UKHL 23

due process - the rule againsyt bias- ECHR -

Answer 51

The House of Lords reversed that decision, holding that the system is compliant with Article 6. Justifications for their judgment

• The importance of democratic accountability
  Lord Hoffman: ‘The HRA 1998 was no doubt intended to strengthened the RoL but not to inaugurate the rule of lawyers’
• The Secretary of State was acting administratively ( forced to use the old distinction bc felt that they were backed d into a corner)
• Judicial review can make it article 6 compliant

Was it in full jurisdiction? In determining the scope of judicial review, the court has no function to review the policy-making role of the minister.
=> although civil rights were affected and there should be independent oversight, ECHR art 6(1) did not require a court to rehear the merits of a decision. Statutory appeals to the High Court were sufficient review of legality.
=> the scope of judicial review for procedural impropriety ensured compliance with Convention rights + SS is democartically accountable ⇒ the process as a whole is then fair according to the court

The Secretary of State has power to ‘call in’ nationally significant planning decisions (the minister is not an independent and impartial tribunal). Does Article 6 apply? Do planning decisions involve a ‘civil right’? The ECtHR had—controversially—interpreted civil rights broadly to include planning decisions of this kind.

The Divisional Court held that this power was incompatible with Article 6, creating serious problems for the administrative planning decisions.

Question 52

Runa Begum v Tower Hamlets LBC [2003] UKHL 5; [2003] 2 AC 430

due process - the rule against bias - ECHR

Answer 52

The House of Lords rejected that argument. Again, the court could not take the easy way out and say that Article 6 was never meant to apply in this context.

Justification:

• The reviewing officer is subject to judicial supervision
• Lord Hoffman ‘regard must be had to democratic accountability, efficient administration and sovereignty of Parliament’
• The test is ‘whether, consistently with the rule of law and constitutional propriety, the relevant decision-making powers may be entrusted to administrators. If so, it does not matter that there are many or few occasions on which they need to make findings of fact.’

Lord Bingham:

‘The more elastic the interpretation given to “civil rights”, the more flexible must be the approach to the requirement of independent and impartial review if the emasculation (by over-judicialization) of administrative welfare schemes is to be avoided.’

Begum was offered housing, but complained of racism, drug problems, and muggings in the area. A senior housing manager concluded that the offer of housing was suitable. Begum argued that the housing manager was not independent and impartial under Article 6.

Question 53

Ali v Birmingham City Council [2010] UKSC 8

due process - the rule against bias

Ali v United Kingdom

But in 2015 the European Court of Human Rights rejected that approach!

• ‘It is now well-established that disputes over entitlement to social security or welfare benefits generally fall within the scope of art.6(1) of the Convention.’
• The need for an discretionary, evaluative judgment did not necessarily militate against recognition of the entitlement as a civil right.
• However, the ECtHR held that Article 6, although engaged, had not been breached because of the subsequent scrutiny

Answer 53

The Supreme Court: held that the Housing Act 1996 did not confer a ‘civil right’, meaning that Article 6 did not apply.

Lord Hope drew a line between: ‘an individual right of which the applicant can consider himself the holder’, and a benefit which is conferred on the individual through ‘a series of evaluative judgments by the provider’.

The scheme in question fell in the latter category. Thus, was not about the determination of a right rather a benefit determined by a series of evaluative judgements.

• The local authority’s reviewing officer held that Ali had declined suitable accommodation. But he had not received a notice that if he turned this down he would no longer be provided with accommodation.

Question 54

Poshteh v Royal Borough of Kensington and Chelsea [2017] UKSC 36

due process - the rule against bias - ECHR

Answer 54

UKSC revisited the Article 6 compliance in such cases. UKSC criticised the ECtHR and said the ECtHR had failed to address the reasoning of the UKSC, especially the concerns about judicialization of welfare services.

=> UKSC decided not to follow Strasbourg. The Justices saw no reason to depart from the UKSC’s own decision in Ali. It defended its own approach

Facts: Ms Poshteh turned down an offer of housing. The local authority decided that its duty had ceased.

Question 55

Ruddock v The Queen [2016] UKPC 7

legitimate expectations

Answer 55

The High Court held: that there was a legitimate expectation, but that the Secretary of State’s decision was not irrational.

Facts

• CND members’ phone calls were intercepted by the Security Service (M.I.5), in alleged breach of the government’s criteria governing interception.
• Sedley, counsel for the applicants, argued that there was a legitimate expectation that the published criteria would be followed.
• Laws, counsel for the Secretary of State, argued that the doctrine of legitimate expectations did not apply.

Question 56

R v Secretary of State for Transport ex parte Richmond [1994] 1 WLR 74

legitimate expectations

Contrast with Hamble fisheries

Answer 56

Held, granting the application, that the Secretary of State had failed to fulfil his obligations in not stating the maximum number of flights which would be involved.
Laws J interpreted Ruddock as holding that there could be procedural, as opposed to substantive, protection of substantive legitimate expectations.Laws J argued that the doctrine of legitimate expectations did not, and should not, include substantive protection.

‘…such a doctrine would impose an obvious and unacceptable fetter upon the power, and duty, of a responsible public authority to change its policy when it considered that that was required in fulfilment of its public responsibilities.’

A decision by the Secretary of State to increase the number of night flights to and from certain airports is invalid where he does not specify the maximum number allowed. The Secretary of State decided, under the Civil Aviation Act 1982 s.78(3)(b), to introduce a new system whereby the number of flights into and out of Heathrow, Gatwick and Stansted airports would not be fixed, but variable depending on the type of aircraft involved. The relevant local authorities applied for judicial review.

Question 57

R v Ministry of Agriculture Fisheries and Food, Ex parte Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714

legitimate expectations

but in *Hargreaves

Facts: Prison rules on home leave were changed. Prisoners argued that they had a legitimate expectation that the earlier rules would be applied.

Held: The Court of Appeal overruled Sedley J’s judgment in Hamble Fisheries.

Hirst LJ described Sedley J’s judgment as ‘heresy’ => Matters of substance were to be resolved using the Wednesbury test, not using a balancing exercise to be undertaken by the court.

Answer 57

Sedley J held that: the court’s duty was ‘to protect the interests of those individuals whose expectations of different treatment has a legitimacy which in fairness outtops the policy choice which threatens to outweigh it.’ In this case Hamble Fisheries Ltd’s expectation was outweighed by the minister’s policy objectives, but Sedley’s reasoning is controversial.

= Sedley is treating this fundamental legitiamte expectation as a fundamental HR.

= the court recognised substantive legitimate expectations, under which the courts will protect an substantive benefit of the applicant

Hamble Fisheries Ltd had relied on the Ministry’s policy and argued that it had a legitimate expectation that the policy would continue.

Question 58

R v Devon Health Authority, ex p. Coughlan [2001] QB 213

legitimate expectations - substantive

rationalised Hargreaves (which apparently fell into the first category)

Answer 58

Lord Woolf MR summarised three ways in which legitimate expectations can be legally protected:
a)A legitimate expectation is a relevant consideration. The reviewing court is confined to Wednesbury grounds.

b)Procedural: A legitimate expectation can require the opportunity for consultation, unless there is an overriding reason.

c)A legitimate expectation cannot be frustrated if to do so is ‘so unfair that to take a new and different course will amount to an abuse of power. Here … the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.’

Coughlan’s case fell within category (c). The court held that there were three requirements for the special protection afforded to category (c):

1.The promise is very important.

2.The promise is made to only a few persons.

3.The consequences of holding the authority to its promise were ‘likely to be financial only’.

= To get the special category (c) protection, ‘the promise or representation [would normally have] the character of a contract’.

=> Coughlan won the case

Pamela Coughlan was tetraplegic .

Pamela was cared for free of charge in an NHS hospital, but in 1993, the hospital was closed and she agreed to move to a purpose-built facility called Mardon House, also NHS funded. At that time, Pamela was promised by the NHS that Mardon House would be her “home for life”. All was well until 1998, when North and East Devon Health Authority decided to close Mardon House and hand responsibility for Pamela’s care over to the local authority which is legally responsible for providing accommodation and social care, which is not necessarily provided free of charge.
=> Judicial Review of the health authority’s decision. A key aspect of her case was that the health authority had given her a legitimate expectation that her arrangements at Mardon House would be permanent.

Question 59

R (Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755

legitimate expectatons

See Law LJ identified three classes of legitimate expectations:

• ‘Paradigm case’ of procedural legitimate expectations: this arises from a promise or practice of notice or consultation in the event of a contemplated change and the decision maker cannot make the change without notice or consultation unless there is a countervailing legal duty or countervailing public interest: [29] – [30]
• Substantive legitimate expectations: this arises from a promise or practice of present and future substantive policy and the court allows a claim to enforce the continued enjoyment of the substance of the practice or policy: [32] – [33]
• ‘Secondary case’ of procedural legitimate expectations: this arises from the fact that the claimant has enjoyed a benefit in the past, not from any prior representation, promise or practice, and gives the claimant the same right to notice and consultation as in the paradigm case of procedural legitimate expectations: [38] – [39]
  On the scope of substantive legitimate expectations

Substantive legitimate expectations cannot arise in every case where there is a promise or practice of present and future substantive policy, as that would mean that every policy of a public authority would give rise to substantive legitimate expectations
If that were the case, the establishment of any new policy would be subject to a more rigorous standard of review ‘by the court’s own view of what fairness requires’ rather than Wednesbury
As such, substantive legitimate expectations should only arise where the assurance is ‘pressing’ and ‘focussed’
On the scope of the secondary case of procedural legitimate expectations

This case will not often be established; where there is no promise or practice of notice or consultation, a rational decision to change policy will not be an abuse of power: [49]
Thus, for this case to arise, ‘the impact of the authority’s past conduct on potentially affected persons must, again, be pressing and focussed‘: [49]

Question 60

R v Foreign Secretary, ex parte Bancoult (No 2) [2008] UKHL 61

legitiamte expectations

Answer 60

appeal dismissed , no legitimate expectations

The majority held: that the promise was insufficiently clear and unambiguous, it was not made to a small group of people, and the consequences of resettling the Chagos Islanders would be more than financial.

Lord Bingham and Lord Mance dissented. Lord Mance said, ‘[T]here is no indication that the Government gave any real weight to the legitimate expectation…’.

Residents on the Chagos islands were forcibly removed under an ordinance issued by the Commissioner for the British Indian Ocean Territories under an Order in Council to allow for the construction of an American military base in 1971
In 2000 the Divisional Court ruled that the ordinance was unlawful as it laid outside the scope of the Order
The Foreign Secretary made a ministerial statement that the ruling will be honoured but removed any right of abode by obtaining new Orders in Council
Applicants seek to strike down the new orders in could, contending that the press statement by the Home Secretary to accept the court’s ruling in Bancoult (No 1) and allow the islanders to return gave rise to legitimate expectations

Question 61

Rashid v. The Secretary Of State For The Home Department [2005]

legitiamte expactations - doctrine of consitency

Answer 61

In Rashid, the Court of Appeal appeared to be willing to hold that a legitimate expectation had been established even though the claimant was, at the relevant time, unaware of the policy that he later sought to invoke. May LJ said that “there plainly is a legitimate expectation in a claimant for asylum that the Secretary of State will apply his policy on asylum to the claim” and that “[w]hether the claimant knows of the policy is not in the present context relevant”.

Facts: An Iraqi Kurd’s application for asylum was refused on the ground that he could safely relocate to the Kurdish Autonomous Zone. The Home Office overlooked a policy against relying on internal relocation. The Kurd did not know about the policy, but did he have a legitimate expectation?

Question 62

Mandalia v Secretary of State for the Home Department [2015] UKSC 59

legitimate expectations

incpRebecca Williams (The multiple doctrines of legitimate expectations, L.Q.R. 2016, 132(Oct), 639-663) argues that there are now 3 different varieties of legitimate expectations: 1. one that resembles quasi contract where the public authority makes a promise that is relied upon; 2. one monitors the use and operation of policies by public authorities; and 3. one that applies where public authority has been inconsistent, not over time, but across cases, so that the claimant has been treated unequally in comparison with others in the same situation (Mandalia falls into the third category)

Answer 62

Unlawful refusal => quashed

The applicant was an Indian foreign student on T4 student visa who had applied for visa extension to pursue graduate studies, but had his application refused by the Home Office
Under Immigration Rules, he had to provide bank statements showing a minimum balance of £5,400 for 28 consecutive days, however, his bank statement only showed a consecutive period of 22 days
Under Home Secretary’s published policy relating to the Immigration Rules, UK Border Agency caseworkers dealing with such applications were given a ‘process instruction: evidential flexibility’ document, under which they had to ask for a missing document if they had reason to believe that it actually existed before refusing an application
The process instruction had not been followed in the case of the applicant, thus the applicant challenged the decision to refuse his visa extension on that he had a legitimate expectation that the process instruction would be followed

Question 63

R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363

legitimate expectations

Answer 63

Both appeals were dismissed
Abdi’s on the ground that the Home Secretary had been entitled to conclude that she was not a minor at the relevant time
Nadarajah’s on the ground that he did in fact come under the policy but there had been no abuse of power as the Home Secretary had made an honest but mistaken belief that his original policy excluded Nadarajah and Nadarajah had not relied on the policy
https://lawprof.co/public-law/legitimate-expectations-cases/r-nadarajah-v-secretary-of-state-for-the-home-department-2005-ewca-civ-1363/

The applicants Abdi and Nadarajah were asylum who were ordered by the Home Secretary to be deported to Germany and Italy, ‘third countries’ which were responsible under international arrangements for determining their asylum claims
They argued that they fell within a Home Office policy which generally required certain asylum claims to be determined domestically
Abdi alleged that he came under part of the policy concerning cases where the ‘applicant is an unmarried minor and a parent is in the United Kingdom’
Nadarajah alleged that he came under the part where ‘the applicant is an unmarried minor and a parent is in the United Kingdom’

Question 64

R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin)

legitimate expectations

Answer 64

The Court held: ‘In our view a promise to hold a referendum lies so deep in the macro-political field that the court should not enter the relevant area at all.’

Facts: The claimant argued that there was a legitimate expectation to a referendum before the ratification of the EU Treaty of Lisbon, due to a promise the Prime Minister had made.

Question 65

R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 (‘Fleet Street Casuals’)

the permission stage - standing

Answer 65

Held: The House of Lords, by majority, held that the National Federation did not have sufficient interest.

• The majority held that the Federation lacked standing because it had an insufficiently arguable case (= odd approach in a way ; dealing with the ‘arguable-ness’ of the case before standing)
• Lord Diplock disagreed: the Federation had standing but failed on the substantive claim.
• Nonetheless, the House of Lords established a liberal approach to standing.

Lord Diplock:

‘It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get unlawful conduct stopped.’

= very liberal approach to standing

The National Federation of the Self-Employed challenged the Inland Revenue’s failure to stop tax evasion by casual workers in the newspaper industry (by giving false names and addresses). The IR awarded them amnesty. Did the NF have standing?

Question 66

R v Secretary of State for the Environment, ex p Rose Theatre Trust [1990] 1 QB 504 (does not reflect the current approach)

permissionn stage - standing

Answer 66

Held : Rose Theatre Trust and its members were held not to have sufficient interest to seek judicial review.

Schiemann J:

the Minister’s decision in this case was ‘one of those governmental decisions in respect of which the ordinary citizen does not have sufficient interest to entitle him to obtain leave to move for judicial review.’

The individual must have ‘a greater right or expectation than any other citizen of this country to have that decision taken lawfully. We all expect our decision makers to act lawfully. We are not all given by Parliament the right to apply for judicial review.’ (disagreeing with Lord Diplock in R v IR => adopts an individualistic approach close to the approach in the HRA s 7 to bring it into line of art. 34)

note that DOES NOT reflect the current approach

Facts : Building development in Southwark= excavation of a site and came across an old structure => discovered that it was the remains Rose Theater (16th c). Public Pressures the SoS to use statutory power to declare the site a national monument. The SS refused. The Protesters formed the RTT and sought JR. The SS challenged their standing

Question 67

R v Panel on Takeovers and Mergers, ex parte Datafin [1987] QB 815

permission stage - scope (definition of a public body)

Answer 67

Held: The Court of Appeal held that the panel was amenable to judicial review. Why?

• The court applied a ‘but for’ test: if the Panel had not existed, the state would have had to invent it.
• The Panel was effectively exercising a monopoly over an important sector of national life.
• To these functional reasons, Lord Donaldson MR also suggested an institutional test based on the connection with government.

Two different legal tests: Public function test (especially difficult to apply bc it’s politically tainted => what are the limits of the State )and institutional test

Facts : The Panel on Takeovers and Mergers oversaw the ‘City Code’ and was a form of self-regulation over the conduct of company takeovers. The source of their power was not prerogative nor statutory but rather a contractual agreement.

Question 68

Poplar Housing and Regeneration Community Housing Association Ltd v Donoghue [2002] QB 48

permission stage - scope (definition of a public body)

Answer 68

Held : The Court of Appeal held that the housing association was a ‘hybrid’ (or ‘functional’) public authority. Why?

• The association was ‘enmeshed’ with the activities of the local authority.
• The local authority had set up the association and had transferred housing stock to it, subject to guidance from the local authority.The court applied the institutional test—looking at the connection with government, rather than looking at the nature of the function.

issue : status of Poplar is it a public authority under s. 6(3)(b) HRA?

Donoghue was a tenant of Poplar Housing (at [11]), a housing association established by the London Borough of Tower Hamlets. Poplar took over much of the council housing previously owned and administered by the Borough, including that in which Donoghue was a tenant (see [11], [46]). Poplar sought to take possession of the property and end Donoghue’s tenancy under s. 21(4) of the Housing Act 1988 (see [12–13], also [3–4]).

Poplar contended that Donoghue had rendered herself intentionally homeless by moving to live with her sister (at [12]) and used this as the basis to take possession of the property. Donoghue argued that to do so would breach her Article 6 and 8 rights under the European Convention (ECHR) and the Human Rights Act 1998 (HRA)

Question 69

R (Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936

the permission stage - scope (definition of a public body)

Answer 69

Held: The Court of Appeal held that Leonard Cheshire Foundation was not a public authority. Why?

• It was not ‘enmeshed’ in the council’s activities.
• There was no difference between the service provided to publicly and privately funded residents.

Facts Residents were funded by the local authority, under a contract between the local authority and Leonard Cheshire Foundation.

Question 70

Aston Cantlow Parochial Church Council v Wallbank [2003] UKHL 37

permission stage - scope (definition of a public body)

the PCC was not a public nor hybrid body

Answer 70

HoL (overturning the CA ) held that it was a public body
The Law Lords sought to give ‘a generously wide scope to the expression “public function”’.
There is no single test, but a range of factors:

=> ‘the extent to which in carrying out the relevant function the body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service.’

The last factor (a functional test/ public function test as required by s 6) sets it apart from Poplar Housing

this case changed the approach

NB: first time the issue goes to the HoL
This case concerns liability to pay for certain repairs to Church of England churches— chancel repair liability —that attaches to some property in England. The Parochial Church Council (PCC) had sought financial support for the repair of the parish church from Mr and Mrs Wallbank. The Wallbanks contended that the action was unlawful because it breached Art. 1 of Protocol 1 of the European Convention on Human Rights (ECHR). Section 6 of the Human Rights Act 1998 (HRA) requires that all public authorities should comply with the HRA (see [6]).

This note deals with how the law has come to understand the scope of s. 6, specifically what counts as a public authority for the purposes of the Act, and how so-called ‘hybrid’ public bodies (see s. 6(3)(b)) are understood. Other issues raised in the case, for example the retroactive effect of the HRA (see Lord Nicholls, at [25] et seq) and the applicability of Art. 1 of Protocol 1 ECHR are not considered

Question 71

YL (by her litigation friend the Official Solicitor) v Birmingham City Council [2007] UKHL 27, [2008] 1 AC 95

permission stage - scope - definition of a public authority

Issue: was the nursing home fulfilling a public function for the purpose of the s 6 of the HRA

Answer 71

Held: The House of Lords (3:2) held that the company was not performing a public function.

Lord Scott, in the majority, said:
‘Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business.’

Lord Bingham, in dissent, said:
‘The performance by private body A by arrangement with public body B, and perhaps at the expense of B, of what would undoubtedly be a public function if carried out by B is, in my opinion, precisely the case which section 6(3)(b) was intended to embrace.’

Southern Cross Healthcare Ltd, a nursing home company, was principally funded by the local authority.

An 84-year-old woman with Alzheimer’s disease was placed in the nursing home under an agreement between the local authority, her family, and the nursing home. The company retained the contractual right to terminate the placement ‘for good reason’. The company threatened to evict her because of the conduct of her family which the company was entitled to do under the contract.

It was argued that this violated her article 8 right.

Question 72

LLOYD V MCMAHON [1987] 1 AC 625

the right to be heard - due process - right to an oral hearing

Answer 72

Held: It was held that no oral hearing was required in the circumstances; the auditor’s request was lawful and valid.

⇒ Why is the outcome different to Ridge v Baldwin?
* Ridge concerned a dismissal from public office;
* The councillors in this case did not ask for an oral hearing when they had the opportunity to do so.
⇒ “…what the requirements of fairness demand… depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates” (per Lord Bridge)

Facts: Liverpool councillors failed to confirm the rates (council tax) for the year 1985-86 on time, and the auditor, acting under statutory authority, sought to make good the loss by holding the councillors jointly and severally liable. The councillors contended that the request was unlawful, because they did not have the opportunity to put forward their case (oral hearing).