Hey hun here's pla :) and i'll just fwd u the client interview email cuz my word is

shutting off and not running properly.

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 J une
- 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 doesnt 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 its impossible to
have blanket policies that are so rigid because the law wont allow it and
fundamentally there is logic here because P grants this discretion, but if use
the same decision in every case then you arent 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 govt thru the dept of trade (which owned BA), ordered the civil
aviation authority to take away LAs 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:
Craigs views:
Divide it into its substantive sense and its 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 youre 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 didnt 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 states actually wanted Malaysians to buy arms
- Courts 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 manifestos 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 cant 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, its 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 decisionsbut very few cases can fall into its 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 its necessary to

The problem of W, it doesnt 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 dont want to deal with it, but where its
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 doesnt
have the power
2) Irrationality the view of irrational decisions
3) Procedural Impropriety idea that whats 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 arent 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 arent 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 arent 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 Wrights 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 IRAa 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 Brinds complaint, and was deemed not unreasonable.
- Showed Common Laws desire to protect freedom of speech as a value.
- Brinns 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 wasnt 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 couldnt 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 wasnt entitled to rely on HRA 1998, cuz it wasnt enforced
- Regarding cell searches in prisons, because the prison service had a policy
where a prisoners 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 its 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 Dalys 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 arent 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 govt 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 reachThese 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 wasnt 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 complainants 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 wont
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 cant 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 dont 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 begums sense of dress or do we
adopt the local imams interpretation of religious dress
- HoL found that the schools 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 cant 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 dont 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 dont want politics to be driven by money in adverts
- Article 10 is a qualified right, and we cant 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 wont 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