LLB: ADMIN LAW

ADMINISTRATIVE LAW
MARKING GUIDE –
G1 JANUARY 2016

QUESTION 1

“Traditionally, judicial review was confined to bodies exercising statutory power…. [But]
the ambit of judicial review has been increased in a number of ways. First, following the
House of Lords decision in Council of Civil Service Unions v Minister of Civil Service
[1985], the exercise of prerogative power is considered judicially reviewable subject to
issues of justiciability….Since GCHQ the courts have developed the scope of judicial
review of the exercise of prerogative powers into those…”non-justiciable” areas identified
by Lord Roskill”.

(Elizabeth Giussani, Constitutional and Administrative Law, 1st Edition 2008)

Explain how the decision in CCSU changed the legal landscape in relation to
Judicial Review. Critically discuss the extent to which Judicial Review of
Prerogative Powers has expanded since CCSU, with reference to relevant case
law.

Introduction:

 Set out structure of essay (synopsis)

 Reflect on what the question is (refer to quote)
 Give an indication as to conclusion

Example:

This paper will explain how the decision in CCSU changed the legal landscape in
relation to Judicial Review (JR) by expanding its ambit to include the review of non-
statutory powers, namely prerogative powers (as referred to in Giussani’s quote). It
will begin by defining prerogative powers and judicial review, before going on to
critically discuss the case law in this area that suggests the courts have expanded the
scope of judicial review since CCSU into non-justiciable prerogative powers (as
referred to in Giussani’s quote). It will be argued that whilst CCSU did represent an
important change to the legal landscape of judicial review (and since CCSU there has
been some review of non-justiciable powers), there are still some areas of the
prerogative that remain unchanged.

Definitions

 Define JR: JR is the mechanism established by the Judiciary under which it

may challenge the validity of secondary legislation implemented by the

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Executive as well as decisions made by public bodies (powers can derive from
primary and secondary legislation, common law, prerogative powers (PP)).

 JR is the jurisdiction of the superior courts to review the acts, decisions and
omissions of public bodies in order to establish whether they have exceeded or
abused their powers.

 Define PP: PP – one of the 7 sources of the UK Constitution.

 Created by HVIII (1509-47) – divine right to award himself powers (to add a
third source of law to statute and case law).
 By 1689 rule ix of the Bill of Rights had established Parliament as the supreme
element of the UK Constitution and the legal doctrine of Parliamentary
Supremacy (PS) has applied to the UK Constitution ever since – this meant a
lot of PP were replaced by AoP but some still remain today.
 Most PP that remain are exercised by Ministers (mostly, the Prime Minister)
rather than the Crown.
 As far back as 1611 in the Case of Proclamations the court clarified that no new
PP could be created, widened or extended.
 Residual discretionary legal powers of the Monarch, now mostly exercised by
the Ministers.

Background to review of prerogative

 Briefly explain the Case of Proclamations 1611 in more detail.

 Case of Proclamations arguably marked the starting point in the Judiciary’s long
process towards expanding the scope of JR to include, as established in CCSU (the
GCHQ case), JR of PP.

The Case of Proclamations established that:

 (1) the Judiciary is qualified to assess the existence and scope of PP held by the
monarch personally; and
 (2) it was for Parliament, not the monarch, to create law.
 The Judiciary reinforced that:
 the courts are the arbiters of whether a PP exists, and
 it is not possible to create new PP nor widen existing PP.

 Case of Proclamations was confirmed in Blackburn v AG 1971 – the J had the

power to determine whether a PP existed but could not review how the PP had
been exercised (this case was in relation to the signing of international treaties
which is a PP).
 These decisions (CoP and Blackburn) fit in with the Judiciary’s traditional
justification for JR.

Traditional Justification for JR

 The Judiciary’s traditional justification for having created JR has always been that
it is ensuring that the public bodies (PB) are doing as Parliament wished, in line
with Parliamentary Supremacy (PS) (Giussani quote – traditionally JR confined to
review of statutory powers).
 In line with the legal doctrine of Parliamentary Supremacy (PS), the Judiciary
confirmed in AG v De Keyser’s Royal Hotel that statute prevails where it conflicts

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with PP, and in R v SoS Home Dept ex p Northumbria Police Authority that,
where there is no such conflict, PS and the PP can operate side by side.
 Review of PP does not fit in with this traditional justification – PP were created by
the Monarch not Parliament. If the Judiciary were to expand the scope of JR by
deciding it could review decisions based on PP, its traditional justification for the
use of JR would no longer apply. The Judiciary would no longer be able to argue
it was ensuring that Parliament’s will is upheld because Parliament played no part
in establishing PP as they were created by a monarch, Henry VIII.
CCSU
 However, in CCSU 1984 the Judicairy were asked to review the use of a PP.

 Briefly explain facts – the Minister for the Civil Service, namely Prime Minister
Margaret Thatcher, exercised her PP to ban employees at the Government
Communications Headquarters (GCHQ) in Cheltenham, from joining a trade
union. It is often assumed that the PP she used related to defence of the
realm/national security but, in fact, she was acting under a Civil Service Order in
Council which was made under a PP relating to the regulation of civil servants’
terms of employment and conditions.

 So Thatcher used her PP to change the terms and conditions of the civil servants
employment.

 The Council of Civil Service Unions (CCSU), representing the GCHQ employees,
sought JR of Thatcher’s use of the PP – they argued she should have consulted
the employees first before making any changes.

 Thatcher’s justification for exercising the PP was for national security purposes –
the UK’s security would be at risk if the GCHQ employees went on strike.

 The House of Lords (HL) retreated from the decision in Blackburn and ruled that
there was no reason why Thatcher’s decision should not be reviewed simply
because she was exercising a PP, rather than a statutory power. PP can have
consequences on private rights or the legitimate expectations of individuals –
individuals should not be deprived of the right to challenge an Executive decision
just because they have exercised a PP rather than a statutory power.

 Lord Diplock obiter – for a decision to be reviewable, it must alter a person’s

rights/obligations or deprive him of benefits/advantages previously enjoyed.

 Refer to quote – agree with Giussani - ambit of judicial review has been
increased in a number of ways. Following the House of Lords decision in Council
of Civil Service Unions v Minister of Civil Service [1985], the exercise of
prerogative power is considered judicially reviewable subject to issues of
justiciability.

 CCSU changed the legal landscape in respect of JR by expanding the scope to

include the review of PP – importantly, the way in which PP were exercised.
Paragraph
 J were aware that they needed to tread carefully in making its decision – legally
the Executive could push a bill through Parliament abolishing JR.

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 In an effort to placate the Executive (or to respect separation of powers which

requires that political judgment calls are left to the Executive), the HL opted for a
compromise answer to JR/PP question.
 Explain the compromise – although the HL decided it could extend the scope of
JR to include Executive decisions based on PP, it placated the Executive by
clarifying it would only review more minor ‘justiciable’ PP including imposing a
ban on joining trade unions.
 But Lord Roskill identified ‘non justiciable’ PP – areas of high policy: signing
international treaties, deploying UK armed forces abroad (declaration of war),
defence of the realm, dissolution of Parliament, granting public honours, granting
pardons of mercy, appointment of ministers, conduct of foreign affairs (Lord
Fraser).
 Refer to Giussani quote - the exercise of prerogative power is considered
judicially reviewable subject to issues of justiciability.
It is interesting, upon inspection of Roskill’s list, to consider that the two principal means
of controlling the exercise of the PP are:

(i) parliamentary control and

(ii) judicial control.

Methods of parliamentary control include question time, debates and select committees
but, in practice, there are certain areas where the Government will choose to
decline to answer questions – e.g. foreign affairs, defence of the realm and national
security. What is interesting is that these are the same issues which the HL
decided in CCSU 1984 are non-justiciable.

The Judiciary is reluctant to become involved in these areas for two reasons:
i) They are areas which are often highly political in nature, and members of the Judiciary
are concerned that reviewing the actions of the Executive in these areas will lead
to their becoming politicised and potentially losing their independence - the
accountability of the Executive in these areas is better secured through the
electorate at a General Election than through the courts; and
ii) These are areas where the Executive is deemed to have greater technical knowledge
and expertise than the Judiciary. According to Lord Roskill himself, the ‘non-
justiciable’ PP he listed were not ‘amenable to the judicial process’. He noted that
the Executive, with its experience, expertise and access to intelligence information
in areas like foreign affairs and national security, is in a much better position to
judge when and how the power should be exercised. Lord Roskill stated that:

‘The courts are not the place wherein to determine whether the treaty should be
concluded or the armed forces disposed in a particular manner or Parliament
dissolved on one date rather than another’.

This view was upheld by Lord Woolf and Jeffrey Jowell (5th ed. 1995) when they described
the limits of PP:
‘Yet there are some decisions that the courts are ill-equipped to review; those that are
not justiciable, either because they admit of no objective justification or because
the issues that they determine are polycentric in effect. Such decisions include
those that necessitate the evaluation of social and economic policy, or the
allocation of scarce resources among competing claims. Courts are institutionally

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unsuited to resolve these kinds of problem, which are best left to be decided in the
political arena.’

Paragraph

The HL’s actual decision in CCSU was reluctantly to decide for the PM on the grounds it
was in the public interest for national security to be given paramount importance,
but the HL clarified it would otherwise have found for CCSU. National security
overrode fairness (the right to be consulted).

Paragraph

The next logical step to take in the essay is to critically discuss the extent to which JR of
PP has expanded since CCSU, with reference to relevant case law. Evaluate the
extent to which the Judiciary has continued to treat certain prerogative powers as
immune from JR since CCSU – to what extent do you agree with Giussani’s quote
that “Since GCHQ the courts have developed the scope of judicial review of the
exercise of prerogative powers into those…”non-justiciable” areas identified by
Lord Roskill”.

In answer to this question, it would be reasonable for us to argue that, since CCSU 1984,
the Judiciary has in fact extended the scope of JR of the PP to include some of the
PP Lord Roskill originally identified as non-justiciable.
Could it therefore be argued that this is evidence of the Judiciary increasingly showing
less deference to the Executive?

For example, Lord Roskill identified granting pardons of mercy in his 1984 list of ‘non
justiciable’
PP but the Judiciary did review the use of this PP less than ten years later in R v
SoS Home Dept, ex p Bentley 1993. Not expected to mention the facts of the case in
the exam.

 Bentley 1993 - mother and sister asked the Home Secretary (HS) to provide
Bentley with a posthumous pardon. Bently had been hanged in 1953 for murder.
 The HS said he could not grant Bentley a full pardon – on the evidence Bentley
was guilty and had been convicted by a jury.
 Bentley’s sister sought JR of that decision. The HS argued that the PP of
pardons of mercy was non-justiciable (per Lord Roskill).
 The High Court held:
 (1) PP are subject to review following CCSU – pardon of mercy was reviewable
(within Judiciary’s competence); and
 (2) HS had made an error in law because he had failed to consider whether he
could grant Bentley a conditional pardon. When exercising his PP the HS had
only considered whether he could declare that Bentley was innocent, not whether
he could give a conditional pardon (reduced sentence). The court held that this
was an unlawful use of his power.
 The HS’s decision was set aside and he had to reconsider – he granted Bentley a
conditional pardon.

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 So the Judiciary appeared to go back on an apparent promise not to extend JR to

non-justiciable areas. Supports Giussani’s quote that courts are reviewing non-
justiciable powers.
 Was this a one off or a trend whereby the Judiciary is gradually increasing the
number of justiciable PP?
Paragraph

We might legitimately argue that, since CCSU, case law seems to show that the Judiciary
is prepared to examine the use of PP to a far greater extent than in the past.
Apart from the intrinsically political powers (notably the dissolution of Parliament and the
appointment of ministers), the evidence suggests that the courts have made further
inroads into the exercise of PP.

There is still judicial deference in this area, but the Judiciary seems prepared at least to
consider cases (i.e. to check the policy is not applied unreasonably; that there is no
failure to uphold a legitimate expectation; or that the policy is not a blanket one
which does not allow for exceptions).

Bentley 1993 is not the only example, post CCSU, of the Judiciary expanding the scope
of JR of the PP.

 Smith & Grady 1996 (no need to mention facts) – Ministry of Defence (MOD) had
a policy banning homosexuals from the armed forces. The policy was
implemented under the PP of defence of the realm (the MOD argued that
homosexuals in the army would affect fighting effectiveness and cohesiveness).
 Before hearing the case, the UK HC and CA had to decide if the policy (PP) was
justiciable. Lord Roskill had said that defence of the realm was non-justiciable.
 CA decided that the use of the PP in this way was justiciable because….
 The use of the PP in this way impacted on individual rights (if it involved national
security where the Judiciary truly lacks expertise and information then they would
not get involved).
 However, having decided that it could hear the case, the UK CA found for the
MOD – the policy was legal as the MOD had evidence to justify its policy in the
form of a report and questionnaires and so, in that sense, it fell within the range
of reasonable responses and was therefore not irrational.
 Smith & Grady then took their case to the ECtHR in Strasbourg. The ECtHR
found in Smith and Grady’s favour. The UK then revised its Armed Forces Code
of Social Conduct.
Paragraph
Another example of the Judiciary expanding the scope of JR of the PP:

 In R (Abbasi) v Foreign Secretary 2002 (no need to mention facts) his family
asked the court to review the FS’s exercise of the PP to protect British citizens
abroad (conduct of foreign affairs).
 The HL first had to decide whether this PP was justiciable. The conduct of
foreign affairs and protecting British citizens had traditionally been seen as a non-
justiciable PP. However, the HL ruled that the PP was justiciable and heard the
case because the use of the power impacted on individual rights.

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 Abbasi had a legitimate expectation that the Foreign Office (FO) would consider
whether to make representations to the US (our expectations under this PP are
very limited) – the courts would review whether the FO had considered making
representations but not whether and how representations had actually been
made (that would be impinging on foreign policy which was largely a political
judgment as only the FO knew what relations were like between the particular
states).
 Abbasi lost his case – FO had considered whether to make representations to the
US.
Smith and Abbasi are evidence of the Judiciary expanding the scope of JR to include
non-justiciable PP. However, arguably the courts only do this when the subject-
matter concerns rights of individuals or raises a legitimate expectation (consider
impact of Human Rights Act 1998). That said, before CCSU the Judiciary would
not have looked at these cases at all. However, ultimately in both cases the
Judiciary still found for the Government.

Paragraph
It is always good to provide balance in our answer.
Here, we might provide an example of the Judiciary refusing to review the exercise of a
PP
listed by Lord Roskill as ‘non-justiciable’, namely the case of R (on the application of
Gentle) v Prime Minister 2006.

 Gentle 2006 CA – the Judiciary could not review a decision to go to war as it

involved issues of national security and foreign relations which are immune from
JR.
 HL (2008) agreed. Lord Bingham:
‘… the restraint traditionally shown by the courts in ruling on what has been called high
policy - peace and war, the making of treaties, the conduct of foreign relations –
does tend to militate against the existence of the right [to have an inquiry]’.

Lord Hope:
‘ … the conduct of international relations between states is a matter of political
judgement. It is a matter for the conduct of which Ministers are answerable to…
Parliament and… the electorate’.

Conclusion

 Prior to CCSU the courts could only review the exercise of statutory powers.
 CCSU changed the legal landscape of JR by extending the scope of JR to
include the review of some PP – justiciable PP.
 However, Lord Roskill identified non-justiciable PP (obiter).
 This supports Giussani’s quote that following the House of Lords decision in
CCSU, the exercise of PP is considered judicially reviewable subject to issues of
justiciability.
 However, also in support of Giussani’s proposition that since GCHQ the courts
have developed the scope of judicial review of the exercise of prerogative powers
into those…”non-justiciable” areas identified by Lord Roskill”, this paper has

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discussed cases where the courts have started to review some of these areas
(Bentley, Abbasi and Smith).
 This suggests that there is a general trend that the Judiciary are expanding the
scope of JR of the PP. It seems reasonable to argue that any argument that the
Judiciary is continuing to respect that some PP remain ‘non-justiciable’ and are
best left to the discretion of the Executive is outweighed by the fact that there is
also clear evidence that the UK Judiciary is expanding the scope of JR to include
review of more and more PP.
 After expanding the scope of JR in CCSU to include review of the exercise by the
Executive of some ‘justiciable’ PP, the Judiciary further expanded the scope of
JR to include even some of those PP identified in CCSU as ‘non-justiciable’.
 However, some PP remain non-justiciable – declaration to go to war (Gentle).
 So the legal landscape has not completely changed.
 But those remaining areas of non-justiciable PP are arguably unsuitable for JR as
the courts lack the knowledge and expertise to review them (intrinsically political
– dissolution of Parliament and appointment of ministers).
 There is therefore still judicial deference in this area but at least the Judiciary are
prepared to consider some cases involving the exercise of non-justiciable PP
when they impact on individual rights.
As we did in our introduction, we should always refer to the person quoted in our
conclusion.
We should confirm, in more detail than we did in our introduction, whether we agree with
the quotation and our conclusion following our evaluation of the question.

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Question 2
‘To what extent is it legitimate for a non-elected judiciary to intervene to correct the
administrative process which is controlled through powers granted by the
democratically elected Parliament? One response to this question is that judicial review
- with respect to the review of delegated law making and adjudicatory powers –
ensures that parliament’s will is observed, and judicial review may thus be regarded as
an aspect of parliamentary sovereignty.’

(H. Barnett, Constitutional and Administrative Law, Routledge, 10th edition, 2013)

Evaluate the extent to which Judicial Review upholds Parliamentary Sovereignty

(otherwise known as Parliamentary Supremacy).

1. This seems to be a question which very clearly follows the line/ message of the
course – ie that JR is the practical manifestation of basic constitutional
principles, namely that Parliament creates (statutory) law; the judiciary interpret
it; and the Executive has to act within the law. In this way it reflects the
constitutional pecking order, with the legislature – democratically elected – at
the top of the triangle.

2. Students should describe and explain this. And contextualise it within the SOP
model in the UK.

3. Students should illustrate how this process works through discussion of some
key JR cases, in which statute has been interpreted by the courts in a way
which has ensured that a public body has acted lawfully.

a. M v Home Office; ex p FBU; GCHQ (though not statutory law); A-G v

Fulham Corp (pure UV); ex p Venables (abuse of discretion)

4. Issues or problems with the theory?

a. The quote refers to a non-elected judiciary – the courts don’t have a

mandate in the same way as Parl does. Does this disqualify them from
intervening in “political” matters?
b. In terms of parliamentary will, the courts should follow this – in doing so,
however, are they entitled to read in and presume certain constitutional
protections and safeguards? The duty of interpretation is very much
their province and common law infusion of values and principles is
arguably a key part of the judiciary’s role in our system.
c. Some examples of the courts intervening in quite politicised areas? (eg
ex p World Development Movement – one of Sumption’s bugbears; A &
Others; Binyam Mohamed case etc.)
d. Development of newer grounds of JR – extending the courts’ remit eg
movement from review of basic legality to review on more substantive
grounds such as rationality/unreasonableness; LE and fairness (a major

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source of development of common law protections for the individual

against the state).
e. Cane’s arguments that were specifically covered in the tutorial
i. Unrealistic to argue the process of interpreting statutes, resolving
ambiguities and filling in gaps is always just a matter of
discerning and giving effect to the intentions of Parliament –
notes particularly in relation to EU and ECHR and Pepper v Hart
(statements made by the Executive) and the use of the
purposive rule of interpretation
ii. Conduct of the Courts themselves in developing JR; cf Anisminic
(refusing to obey will of Parliament); rules of NJ; Minister act as
he sees fit and growth of reasonableness
iii. Traditional justification does not justify control on non-statutory
functions like prerogative

5. Conclusions– it is appropriate for the courts to check the legality of

governmental action – in fact it is one of the most vital aspects of a ROL state.
The courts have developed their own way in which to respect both
parliamentary will and the institutional competence and expertise of the
Executive by regulating the intensity of review. In this way the SOP limitations
can be observed.

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Question 3

(i) Analyse whether the Administrative Court is likely to decide that the preliminary
requirements have been met, so that it may permit Saloman and Claudio to
progress to the hearing stage of any Judicial Review claim each might bring

Students have been advised to establish five preliminary requirements so we should not
penalise if number (iii) is omitted or included.
i) Amenability
ii) Is JR the correct procedure to use?
iii) Does the claimant have standing?
iv) Is the claimant within time limit?
v) Is the claimant ousted from claiming?

There is no need for the students to follow a specific order

(1) Amenability

Is the decision maker a public body?

A decision of a body will be amenable to judicial review if that body is performing a public
function.

R v Panel of Take-overs and Mergers, ex p Datafin: Source test of the power (statute
or prerogative) and if that fails the nature of the power test.

Here the Health Minister has been granted power under the fictitious statute and has
made the decision so clearly a public body making a public law decision (concerning
jurisdiction to alter conditions and pay under the PHAct). The Five a Day issue does not
relate to them making the actual decision so students should not discuss private body
and the nature test.

(2) Is JR the correct procedure to use?

This is solely a public law issue (here, wages and health care) and so according to the
general rule in O’Reilly the applicants would be advised to commence their claim asap
in the Administrative Court.

(3) Does the claimant have standing?

Section .31(3) SCA 1981test is "sufficient interest in the matter to which the application
relates". The SCA contains no definition of ‘sufficient interest’ so IRC (Fleet Street
Casuals) should be mentioned. The IRC / Fleet St Casuals case said that standing is a
mixed question of fact and law, where it's necessary to look at the relationship between
the parties and all the circumstances.

Individuals will have ‘sufficient interest’ if ‘directly affected’

Here both applicants will have SI as their working hours has been increased and their
pay not.

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(4) Is the claimant within the time limit?

The time limit is governed by both the SCA 1981 and the claim form must be filed: (a)
promptly and (b) in any event, not later than three months after the grounds to make the
claim first arose.

Identify any wording in the fictitious scenario which relates to timing (eg ’last week’).

They should therefore make their application asap.

(5) Is the claimant ousted from claiming?

Section 15 of the Act contains an ouster clause. Courts will generally not uphold a
complete outser clause as in Anisminic but will uphold a partial clause. Here the clause
limits review to a six week period. In Ostler, similar on it facts, the clause was allowed
to stand.

(ii) Advise Saloman and Claudio on illegality only (NB: Students should pick out the
fact first, then apply the grounds of review, and not the other way round).

1. Issue: Health Minister instructs a private firm

Ground: Rule against sub- delegation

The rule - established in Vine 1957 and confirmed in Lavender 1970 states that, if
Parliament has delegated decision making power to a public body through an Act of
Parliament, that public body cannot then further delegate that decision making power to
another body. There are, however, two exceptions to the rule against delegation:

(a) Section 101 of the Local Government Act (LGA) 1972: A council leader can
sub-delegate to a council committee or individual officer, provided a formal
resolution was passed to permit the sub-delegation; and
(b) The Carltona Principle: a Minister can sub-delegate to one or more civil
servants within their Department.

Here the HM has been given the power but due to lack of time has tasked a private
company to look into the matter. If the private body had made the decision then as this
would not fall into any of the exceptions it would be an unlawful delegation.

2. "Concern at the finding of a recent national survey which revealed a decline in

standards." And "Speaking as a qualified lawyer, he saw no reason why the
working hours and pay of junior doctors should not be brought into line with
those of junior lawyers”

Ground: DM has arrived at the decision based on improper purpose

The HM arrived at the overall decision based on more than one reason - one of these is
lawful as it fulfils the purpose of the Act (improve health care) and the other is unlawful
as it is not set out in the Act (the lawyer/ doctor issue).

However, the court might find in favour of the HM because the purportedly lawful reason
is the first reason discussed in their letter which suggests that it is the dominant reason

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(Westminster Corporation 1905). The court considers which of the two reasons for the
overall decision is the dominant one - the lawful one or the unlawful one. If the court
decides that the legal reason is the dominant one, it will allow the overall decision to
stand. If it decides that the illegal reason is the dominant one, it will quash the overall
decision.

3. "Speaking as a qualified lawyer, he saw no reason why the working hours and
pay of junior doctors should not be brought into line with those of junior
lawyers”

Ground: Irrelevant consideration.

A DM is required to take into account relevant considerations (and ignore irrelevant
considerations) when exercising their discretion and coming to a decision. In Fewings,
a Local Authority had power to acquire and manage land for the ‘benefit, improvement
or development of their area’ under s.120 of the Local Government Act 1972. The Local
Authority decided to ban stag hunting on its land under the Act because, inter alia, they
decided that it was unacceptably and unnecessarily cruel. The court held the Local
Authority had failed to take into account relevant considerations (as set out in the Act)
and conversely taken into account irrelevant considerations (the question of whether or
not stag hunting was morally repugnant).

As well as being a factor above this can also be considered an irrelevant consideration.

4. “Claudio also practising medicine but completed his postgraduate training”

Ground: ‘error of precedent fact’ – The statute empowers the HM to determine hours
and pay for junior doctors. This is defined as qualified medical practictioners who are
working whilst engaged in postgraduate training …”

So before exercising his power the HM must determine that the person in question is in
fact a junior doctor. White & Collins -v- MoH ('parkland' case), ex p Khawaja (detention
of an illegal immigrant was subject to the precedent fact that the person was an illegal
entrant).

This is not the case for Claudio who has completed his postgraduate training.

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Question 4

(i) Analyse whether the Administrative Court is likely to decide that the preliminary
requirements have been met, so that it may permit Boaz to progress to the hearing
stage of any Judicial Review claim each might bring

In tutorials students were advised to establish five preliminary requirements

(1) Amenability: Is the decision maker a public body?
(2) Is JR the correct procedure to use?
(3) Does the claimant have standing?
(4) Is the claimant within time limit?
(5) Is the claimant ousted from claiming?

There is no need for the students to follow a specific order

(1) Amenability

Is the decision maker a public body?

A decision of a body will be amenable to judicial review if that body is performing a public
function.

R v Panel of Take-overs and Mergers, ex p Datafin: Source test of the power (statute
or prerogative) and if that fails the nature of the power test.

Here Parliament has required Trading Standard Officers to make the decision under
statute so clearly a public body making a public law decision.

(2) Is JR the correct procedure to use?

This is solely a public law issue (here, BT Act and licensing) and so according to the
general rule in O’Reilly the applicants would be advised to commence their claim asap
in the Administrative Court.

(3) Does the claimant have standing?

Section 31(3) SCA 1981test is "sufficient interest in the matter to which the application
relates". The SCA contains no definition of ‘sufficient interest’ so IRC (Fleet Street
Casuals) should be mentioned. The IRC / Fleet St Casuals case said that standing is a
mixed question of fact and law, where it's necessary to look at the relationship between
the parties and all the circumstances.

Individuals will have ‘sufficient interest’ if ‘directly affected’

Here BOAZ made an application which has been rejected and so is clearly directly
affected by the decision.

(4) Is the claimant within the time limit?

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The time limit is governed by both the SCA 1981 and the claim form must be filed: (a)
promptly and (b) in any event, not later than three months after the grounds to make the
claim first arose.

Identify any wording in the fictitious scenario which relates to timing.

We are told that seven weeks have now passed since Boaz received the rejection letter.
They should therefore make their application asap.

(1) Is the claimant ousted from claiming?

Section 12 of the Act contains an ouster clause. Courts will generally not uphold a
complete outser clause as in Anisminic but will uphold a partial clause. Here the clause
is a complete ouster clause so the Court’s will apply Anisminic and interpret the clause
so that it does not apply ie only applies to decisions that are legally and correctly made,
which this one is not.

(ii) Advise on Procedural Impropriety

1. Given three minutes to put across his argument

Ground: Duty of Fairness

Ridge v Baldwin states that the right to a fair hearing, also known as natural justice and
the duty to act fairly, generally applies to all administrative and judicial decisions

(There are two important steps that you must take when considering the right to a fair
hearing:

1. The level of fairness owed; and then

2. Set out the content of the duty owed)

1. Establishing level of fairness – Durrayapah and McInnes and the three categories
of claimants.

Here it is a first time licence application so would seem to attract a lower level of
fairness. However, it is akin to revocation / forfeiture as a failure to get a licence
would lead to the applicant being worse off and suffering the detriment of his
business closing.

2. Content of duty of fairness

Here specifically the issue relates to the amount of time given within the hearing.
There is no general duty to hold an oral hearing but the more a claimant stands to
lose, the more likely he will be entitled to a full oral hearing (Lloyd 1987) but section
8 of the Act specifically provides for an oral hearing for applicants already offering
beauty treatments. As the level of fairness is quite high it is reasonable to expect
that longer than three minutes would be given.

(Given the nature of the application the right to call witnesses and legal
representation does not arise so there is no need to discuss this).

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2. Boaz received a letter indicating his application has been rejected

Ground: Reasons for the decision.

In Doody and Hasan, the courts confirmed that there is no general duty to give
reasons for a decision. Whether fairness requires reasons to be given for the
decision is therefore going to depend on the circumstances of the case / type of
claimant.

In regards to a first time claimant, as in McInnes it is unlikely that the decision

maker would be obliged to provide the claimant with reasons for their decision. It
is more likely that a decision maker would be obliged to provide a legitimate
expectation claimant with reasons for their decision. In respect of a forfeiture
claimant, the decision maker must provide reasons for their decision (Ridge).
However in ex p Institute of Dental Surgery, the duty to give reasons may not be
necessary in circumstances where it would be unduly onerous for a body to do
so because of the complexity of the decision or the range of factors that was
considered

On balance it is fair to assume that more than a simple rejection is necessary and
some reasoning should be provided.

3. FTSO CE is Boaz’s brother in law

Ground: Bias

The rule against bias requires that a decision maker should have no personal
interest in any decision it makes.

It is arguable that this is not enough of a close relationship to constitute a direct

interest and therefore the real possibility test should be applied. “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”.

On the facts we know that he is Boaz’s BIL and that they haven’t been in touch
since he died Victor’s hair green. There is a real possibility that Victor still
harboured resentment towards Boaz and so a real possibility that he was or
would be perceived to be bias in his decision making. This is made more evident
by the lack of reasons.

4. “Application rejected and no right of appeal mentioned. Seven weeks have

now passed”

Ground: Procedural UV–

Where an enabling Act (the fictitious Act in the fictitious scenario in your exam)
requires a decision maker to follow a specific procedure such as to “consult
interested parties” and that decision-maker fails to comply with that statutory

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requirement, the court may find that the decision maker has acted procedurally
ultra vires. The court will take into account the following three factors when
coming to its decision:

I. The wording in the enabling Act; (the courts used to place a lot of importance
on the wording in the enabling Act. If the wording stated that the decision maker
“must” do something then the court was likely to find that the statutory
requirement was “mandatory” and would find for the claimant if the decision
maker had not complied with the statutory requirement (Bradbury v Enfield
London Borough Council 1967; Aylesbury Mushrooms 1972)

In Soneji 2006, Lord Steyn held that “the rigid mandatory and directory distinction,
and its many artificial refinements, have outlived their usefulness. As a result,
the courts now place less emphasis on the wording in an enabling Act and more
emphasis on the nature of the procedural statutory requirement and the severity
of the consequences for the claimant.

II. The severity of the consequences for the claimant; and

III. The degree of effort the decision maker has made to comply

Section 12 of the Act informs the TSO that they shall notify in writing …. And that
they have a right of appeal. Is this a mandatory requirement? This is an important
procedural requirement as it will cause substantial prejudice for Boaz who is
unable to appeal the potentially illegal decision

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