5. Basis for JR and procedures Flashcards
(Judicial review - Amenability to review - The more recent broad approach) The claimants were elderly residents of a nursing home who challenged the foundation’s decision to close it after they had been there more than seventeen years. The Court of Appeal held that the foundation was not a functional public authority under Human Rights Act s 6, because its contract to provide housing to residents funded by the council did not involve any public functions. It was ‘not standing in the shoes of the local authorities’. Lord Woolf commented that in their contracts with private housing providers, local authorities ought to require the providers to respect the residents’ Convention rights.
R (Heather) v Leonard Cheshire Foundation (2002)
(Judicial review - The public law / private law distinction) In 1999, the county council established farmers’ markets pursuant to s 33 of the Local Government and Housing Act 1989. The claimant was accepted as a stallholder from the oust. In 2001, the running of the markets was transferred from the council to the stallholders, and a limited company was duly established to perform the task. The company’s registered address was originally at the council’s offices and the council provided the company with some finances and facilities, such as the use of a computer. In 2002, the claimant applied to participate in the market program. The company rejected his application and refused to grant him a licence. The claimant sought judicial review of that decision.
At first instance, the company’s decision was quashed since it was held that it was acting as a ‘public authority’ within the meaning of s 6 of the HRA 1998, and that its decisions were therefore susceptible to judicial review. The council appealed.
The CA held, dismissing the appeal, that it was common ground that the company was a ‘hybrid’ authority rather than a ‘core’ public authority. Nevertheless, there were a number of factors which collectively indicated that its decision was amenable to judicial review:
- the markets were not statuary markets, but they were held on publicly owned land to which the public had access;
- the company owed its existence to the council since it had been set up by the latter using its statutory powers;
- the company had stepped into the shoes of the council in the sense that it was performing the same functions previously performed by the council to the same end and in substantially the same way;
- and the council had assisted the company, e.g. by providing office space, use of a computer, etc.
R (Beer) v Hampshire Farmers’ Markets (2004)
(Judicial review - Collateral challenge) The defendants were protesters at the Greenham Common Air Base. They were convicted by magistrates of an offence contrary to the Royal Air Force Greenham Common Byelaws 1985. This prohibited entering, passing, or remaining in or over the protected area without permission. They appealed against their conviction on the basis that the bye-laws were invalid. The Crown Court felt that it was unable to rule on this question. The defendants therefore sought an order of mandamus to compel them to do so.
QBD held: where a defendant wishes to challenge the validity of a bye-law as a defence to summary proceedings brought against them, a magistrates’ court or a Crown Court (on appeal) could hear such a defence. Neither s 31 of the SCA nor RSC Order 53 had removed the jurisdiction to do so. It was neither necessary nor appropriate for summary proceedings to be adjourned so that the validity of a bye-law could be determined by the HC in judicial review proceedings.
R v Crown Court at Reading, ex p Hutchinson (1988)
(Judicial review - Exclusion of judicial review - Ouster clauses) X were the owners of property in Egypt which was sequestrated by the Egyptian Government in 1956 and subsequently sold to an Egyptian organization. Under a Treaty between the United Arab Republic and the UK, compensation was paid for property which had been confiscated. This was to be distributed by the FCC which had been established under the Foreign Compensation Act 1950. X sought to challenge the FCC’s decision that it was not entitled to compensation by applying for a declaration. However, s 4(4) of the T950 Act provided that any determination by the FCC ‘shall not be called into question in any court of law’. The case therefore turned on the effect of this provision.
HL held: that it was a well-established principle that statutory provisions seeking to oust the ordinary jurisdiction of the court should be interpreted restrictively. Where they were reasonably capable of bearing two meanings, the meaning which preserved the jurisdiction of the court would be preferred. Section 4(4) only protected those determinations of the FCC that were not a nullity. The decision in respect of X was not a determination because the FCC had acted outside its jurisdiction. Thus it was not protected from challenge in the courts.
Anisminic v Foreign Compensation Commission (1969)
(Judicial review - Exclusion of judicial review - Time limit clauses) Under the Acquisition of Land (Authorisation Procedure) Act 1946, an aggrieved person had the right to challenge the validity of a compulsory purchase order within six weeks of the date of the confirmation or making of the order. Subject to this right, a compulsory purchase order was not to be challenged in any legal proceedings whatsoever.
Property owned by X was the subject of such an order. Its validity was challenged six years after it had been made.
The HL held, by a majority, that the validity of the compulsory purchase order could not be impugned. It was the duty of the court to give the words of the statute their proper meaning.
Smith v East Elloe RDC (1956)
(Judicial review - Exclusion of judicial review - Time limit clauses) Under the Highways Act 1959, a person aggrieved by the making of a compulsory purchase order could challenge its validity, within six weeks of the date on which notice of its publication had been given, by applying to the HC. Subject to this, the order was not to be questioned in any legal proceedings whatsoever.
X sought to challenge an order when he became aware that an objection to a relief road had been withdrawn as a consequence of a secret assurance which would have had a detrimental impact on his own business. His challenge took place some months after the expiry of the six weeks.
The CA held that his complaint could not be considered because he had not commenced proceedings within the time limit.
*R v Secretary of State for the Environment, ex p Ostler *(1977)
(Judicial review - An unfettered discretion?) The Agricultural Marketing Act 1958 regulated the marketing of various agricultural products, such as milk. By virtue of s 19(3)(b), a committee of investigation could consider and report to the minister as to the operation of any scheme in respect of which he had received a complaint, if he so directed. A dairy farmers’ association complained to the minister about the operation of a price-fixing scheme operated by the Milk Marketing Board. The minister refused to refer the complaint to a committee of investigation and the farmers accordingly sought an order of mandamus to compel him to do so.
The HL held that the order would be granted. Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act. There were to be determined by the court construing the Act as a whole. The minister had misdirected himself in law as to the intention of the Act which imposed a duty upon him to have complaints investigated where they were substantial and genuine and indicated that the board had acted contrary to the public interest.
This case therefore demonstrates that in identifying the scope of delegated powers, the courts are required to construe the relevant statute so as to identify Parliament’s intention. Where the words in the statute are vague or ambiguous, it is now possible for the courts to use Hansard, the official report of Parliament’s proceedings, as an aid to interpretation following the decision of the HL in Pepper v Hart (1993). The use of Hansard is limited, however, to ministerial statements or those of the promoter of the Bill.
Padfield v Minister of Agriculture, Fisheries and Food (1968)
Abstract: Milk producers sought judicial review of the Minister’s refusal to exercise his power to direct an investigative committee to be set up to examine complaints. The House of Lords found that the refusal frustrated the policy of the relevant statute and ordered re-consideration of the matter by the Minister. As regards reasons; if all prima facie reasons point towards one course of action and the Minister takes another without giving a reason, the Court may infer he has no good reason for the decision and is using his discretion for an improper purpose.
