Illegality and Procedural Impropriety in Judicial Review

This assignment will consider the concept of ultra- vires in relation to illegality and procedural impropriety in the arena of judicial review. It will consider whether or not both grounds will require the reviewing to assess the balance which the decision maker has struck.

In the United Kingdom, judges are permitted to review legislation to establish whether it complies with the terms of the Constitution. In order to bring a claim for Judicial Review, certain criteria must be met. Vis-à-vis the actual legislation, it usually requires the courts having need for judicial review of a piece of legislation, which, if applied, would be a breach of the courts constitutional responsibility. Under EU law if a decision is reached against another person, the applicants will have standing to bring a claim before the ECJ if the decision “is of direct and individual concern to him or her.” [1] In the UK, any interested party can bring a claim for judicial review if they are directly affected by the claim. [2]

“Judicial review has… developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify…the grounds upon which administrative action is subject to control by judicial review. Lord Diplock [3]

The first ground I will discuss is “illegality”. This ground is defined as meaning ‘that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. [4]

The first client that we will be advising is Ahmed Saddique who was refused a license to transport ammonium nitrate. We will challenge the decisions and measures for the reason that the decision maker has failed to take into account all considerations. The first issue raised is in relation to relevant and irrelevant considerations. Under ‘this heading there can sometimes be an overlap with the language of purpose, as the taking of a decision in the light of a particular consideration may equate to taking the decision for an improper purpose. [5]

Interesting examples [through illustrative case law has been established] of how the courts resolve consideration points with reference to the terms of the governing statue. [6] A leading case of Wellcome Foundation raises issues of taking irrelevant factors in to consideration where ‘the minister had exercised his discretion in licensing drugs, taking in to account such factors as the safety and efficacy of the medicines concerned, but not the trademarks of the drugs for which the license were issued. [7] The question before the court was thus whether the decision to issue licenses, taken without regard to trade marks, had ignored a relevant consideration as was thereby ultra vires the statue.

Sir John Donalson MR in the court of appeal noted that the trademark rights, while derived from statue, were private law right and that the secretary of state had neither the skill nor the resources to determine them. Moreover, it was stated that the Act under which the decision had been taken was concerned with the safety, efficacy, and quality of the drugs and that there was no indication that parliament intended the proprietary rights of individuals to be taken account as a relevant consideration.

The Secretary of the State has exercised his discretion on the fact that ammonium nitrate is now classified under Regulation 5 of the 2009 regulations as a “controlled substance” and that in the past it has been used as a ‘constituent part of home-made explosives’.

However the relevant consideration to obtain a license was to transport the substance and other commodities to contracted local landscape gardening firms on the basis that it is a ‘popular fertiliser’. Moreover his expertise in ‘regularly’ handling the substance before the ban and the ‘fifteen year’ qualifications on transporting goods which has lead to a successful transport business.

According to EISA2005 s 15 (C) which states… the secretary of state is required to have regard to whether the applicant has appropriate qualifications and expertise in dealing with controlled substances. Saddique can claim on the grounds that the Secretary of State has not given importance to considerations to grant the license that had guided the …decisions [which] were irrelevant when set against the statutory background. [8]

The second issue that can be argued under illegality is fettering discretion. This heading for judicial review entails considering whether an administrative body actually exercised the power it has, or whether because of some policy it has adopted, it has in effect failed to exercise its powers as required. In general terms the courts accept that it is legitimate for public authorities to formulate policies that are ‘legally relevant of [their] powers, consistent with the purpose of the enabling legislation, and not arbitrary, capricious or unjust.’ [9] The term fettering discretion is the legal issue which is raised for Ahmed and Patrick.

For example in Lavender the policy principle is an important example. The Minister here had dismissed an appeal for planning permission having been persuaded by the minister of Agricultural. [10] This decision was quashed, as the Minister had clearly fettered his discretion. However in the judgment by Willis J pointed out that the courts have no authority to interfere with the way in which a minister carries out his planning policy, and that he is entitled to obtain ‘views from other departments.’ [11] However the crucial point held is that the minister must consider objections and not disable himself from exercising his discretion.

The Secretary of the State according to Section 17 of the EISA 2005 states… in making a decision…require the appropriate chief police officer to supply a report. This procedure is valid for the secretary to perform. However the fact that he refused Saddique the license on the basis that the chief police officer stated that he is ‘not fit and proper person for the license’ is unlawful as his objections are solely based on the chief’s objections, and in reality the police officer does not have the power to make such decisions. Also the subsections to s17 were not all considered as Saddique qualifies for all three provisions. The secretary did not exercise the rights under the statue therefore it is ultra vires. “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.” [12]

Patrick can also claim under fettering discretion Flynn had only ‘five minutes to in order to explain the reasons for the need of his license.’ Decision makers should not pre-judge a matter individual application because the authority has a particular policy in place. As a general rule such grounds must not be exercised in bad faith and must not be unreasonable.

The basic rule is anyone who has to exercise a statutory discretion must not “shut his ears” to an application. However, if a number of applications are received, it is reasonable to evolve a precise policy to accommodate many of them. This is acceptable provided the authority is prepared to listen to someone with something new to say. [13] However Inspector Mosley still refused his claim after hearing him out. This is ultra vires as he had already fettered his discretion by adopting the policy which had been formulated earlier. ‘He was obliged not to declare his willingness to listen and that he had to keep an open mind [therefore] an open mind does not mean an empty mind.’ [14]

Per Viscount Dilhorne: It is both reasonable and right that the Board should make known to those interested the policy it was going to follow. By doing so, fruitless applications involving expense and expenditure of time might be avoided. However I would have to disagree with comments regarding “shutting ears” to an application as it seems pointless and a waste of time that the Board should consider applications that are bound to fail as a result of its policy decision.