The Citizen and the State

Judicial review is one way that an individual can dispute the process of how a decision was made by a public authority. The “courts will not decide on the merits of an act of executive power” [1] , and the judges act in a supervisory role not an appellate role; Lord Templeman in R v Secretary of State for the Home Department, ex p Brind [2] concludes that the ‘the courts must not substitute their own views for the informed views of the Home Secretary’ showing the courts supervisory role. There are three initial grounds of judicial review highlighted by Lord Diplock in the Council of Civil Service Unions and Others Appellants v Minister for the Civil Service Respondent [3] (GCHQ); “The first ground I would call ‘illegality,’ the second ‘irrationality’ and the third ‘procedural impropriety.’” Lord Diplock proposes a possible fourth ground, namely proportionality, which refers to matters that breach human rights or European Union law. A claim of illegality is brought when a public authority acts beyond the powers it is given. Irrationality is where a decision seems to be in defiance of logic or beyond an accepted moral standard, so that no sensible person would have come to it. The final ground of judicial review is procedural impropriety in which the public authority fails to abide by a procedure that they are obliged to follow.

There are three criteria that a case must fulfil in order to be eligible for judicial review. Firstly, that it must be brought against a public authority. A public authority is defined in the Human Rights Act 1998 s.6 which states that a public body includes “courts or tribunals, and any person certain of whose functions are functions of a public nature.” In O’Reilly v Mackman [4] it is seen that as a result of reforms, public decisions will be dealt with by judicial review, but for private disputes “Damages could only be claimed in a separate action begun by writ” [5] . Secondly, it must be concerning a matter which the courts can hear (justiciable.) The courts must ask if, as stated in the GCHQ case, the subject matter is too politically controversial for judges to become involved. The matter has to be one that the judges can become involved in (i.e. not national security or foreign affairs.) [6] Finally the claimant must have sufficient standing to bring the claim, this means they are directly affected by the decision. Any doubt to any of the three criteria will result in no eligibility for claim of judicial review. The claimant has a 3 month time limit, from the time of the decision, in which they can bring a claim for judicial review; this is stated in the Civil Procedure Rules 1998 part 54.5. [7]

Many public authorities have a discretional power. However they can act ‘illegally’ in several ways; by going beyond what they are empowered to do in the power giving parent act, or by misinterpretting the law and so through an error in law act ultra vires. In establishing whether the Lindumshire County Council have acted illegally it must be considered if they have acted ultra vires and go beyond their given powers. The Council’s decision to ban the University for two years would be subject to illegality. The case at hand is similar to Wheeler v Leicester City Council [8] in which the judges referred to the duty a council has to eliminate racial discrimination and how they must ‘promote good relations between persons of different racial groups.’ Lord Templeman states “this use by the Council of its statutory powers was a misuse of power.” [9] The decision to ban the rugby team in Wheeler was beyond the Councils power, thus applying this to the decision to ban the University, the Council here to goes beyond its power.

In establishing if the Research Partnership has acted illegally, the enabling act for the Partnership (the Research Funding Act 2005) must be taken into consideration. The Act allows them ‘to revoke any grant if the recipient is guilty of conduct which brings the Local Research Partnership into disrepute’. The conduct of Professor Green would be judged at the Partnership’s discretion, and thus it has not gone beyond the Partnership’s discretionary powers. This would mean that Professor Green has no defence of illegality to the decision to revoke his grant.

Procedural impropriety is concerned with where an authority ignores requirements set out in a statute when exercising their power. It is also concerned with the public authority failing to comply with the rules of natural justice, include the right to a fair hearing and the rule against bias. A fair hearing is defined as having a reasonable opportunity to put across their case. In R v Secretary of State for the Home Department, ex p Hosenball [10] “a person accused must be given a fair statement of the case against him, and… he must be given a fair hearing for the case which he proposes to put up himself” [11] The council scheduled an emergency meeting where the vote was taken as to whether to impose a ban, this is a breach of natural justice as the University is not given a fair hearing; they were not aware of the meeting and were not able to defend or represent themselves. The rule of bias may apply here as Councillor Perkins suggests to the Council there is the need for ‘punitive measures’, it could be argued that this would sway the rest of the council to vote in favour of these measures. In Porter v Magill [12] Lord Hope of Craighead states that “the question is whether the fair-minded and informed observer.. would conclude that there was a real possibility that the tribunal was biased” [13] . The rule of bias is strict; any reasonable suspicion of bias is sufficient. This is seen in the case of R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No.2) [14] where the mere association with a group created the possibility of suspicion, so the decision of the court had to be set aside. Councillor Perkins presents a real possibility that the tribunal was bias and thus the decision would be a breach of the claimant’s natural justice.

Councillor Perkins creates the possibility for bias in relation to the Partnership’s decision as the Councillor is the chair of the meeting. This again creates a reasonable suspicion of bias. Witnesses of which Professor Green has no notice are also called, this could be argued to be unfair as he does not know the full extent of the trial being brought against him, in order to be fair, the person must be allowed to contest any evidence used against them. This must include the opportunity to cross examine any witnesses; this right can be limited as it is not an absolute. It is normally restricted in the cases of national security so the hearing would have been unfair, as Professor Green was told nothing of the information used to base the decision, he had no opportunity to contradict any information nor cross examine and there was a lack of information given to him in order to respond to the charges. [15] He was not given the opportunity to obtain legal representation. However there is no right to be legally represented and it is for the public authority to decide if representation will be allowed. Professor Green is however made aware of the hearing and was allowed to make a five minute statement in his defence, he is only given two working days notice of the disciplinary hearing. He is given the chance to put his side to the panel and was given five minutes to contest any evidence brought against him. The question is, is five minutes long enough to contest witness statements and to have his arguments shown.

Irrationality could be applied to the Lindumshire County Council’s decision to the ban the use of any local authority facility for 2 years. The effect of this is significantly disadvantage to the University. The ban is applied to the whole University not just the Lindum Team. The case of R v Chief Constable of Sussex, ex p International Trader’s Ferry Ltd [16] shows that the decision should be that which the reasonable authority could reach. It is also seen in Wheeler v Leicester City Council in which Lord Justice Browne-Wilkinson states that ‘if this decision of the council is lawful all other decisions to penalise those who do not publicly agree with the majority view would also have to be held valid’ [17] . In the case at hand the Lindum Team could rely on what action other local authorities took as a result of teams going to North Korea. If other local authorities have banned teams from local authority facilities for a similar length of time then the measures that the defendants have taken would not be unreasonable. The test for unreasonableness is seen Associated Provinical Picture Houses Ltd v Wednesbury Corporation [18] . Lord Greene MR states that unreasonable refers to a decision that ‘is so unreasonable that no reasonable authority could ever have come to it.’ [19] Thus again suggesting that irrationality would be applicable if no other Council faced with this problem came to the decision to ban the whole University for 2 years.

Professor Green may be able to bring a claim for irrationality if the decision of the Partnership is seen to be unreasonable. However using the Wednesbury case for the test of unreasonableness the decision does not seem to reach the standard of ‘a defiance of logic’. This would suggest that there could be no claim using irrationality. “The threshold of irrationality is a high one” [20] as stated by Sir Thomas Bingham MR in Ministry of Defence ex p Smith. [21] This would suggest that the claim for irrationality would most likely fail due to the high standard that must be met.

The Lindumshire County Council owes a fiduciary duty to the tax payers. This means that they owe a duty to the people it collects taxes from not to spend this money thriftlessly and to use it as a benefit as a whole. This can be seen in Bromley London Borough Council v Greater London Council [22] in which it is stated “the council owes to the ratepayers from whom it derives its funds” [23] . This could support the Research partnerships decision to revoke the grant given to Professor Green as this could be seen as thriftless use of money. However it could not be used in relation to the decision by the Lindumshire County Councils decision to ban the Lindum team, because the facilities are already available, and the ban means that the local facilities would be used less so may be detrimental in itself to the facilities. The decision has no effect on this fiduciary duty.

There are several remedies available to a successful claim of judicial review. These include a quashi order (an order of certiorari), which nullifies the original decision, it is retrospective. Where a public body has not yet made the decision a prohibiting order can be given, which stops a body from making a decision which would be subject to a quashing order. A mandatory order is where a public authority is compelled to act in a certain way and a failure to do so would result in contempt of court. Another remedy available is a declaration, this involves a statement of the legal position of the parties, the parties will then comply with the terms it provides and rectifies their actions. The final two remedies are injunctions and damages. Injunctions can be used to prevent a body acting in a certain way (usually unlawfully).Damages are awarded in conjunction with another remedy, and would only be available if they would have been available in a private dispute.

In relation to the decision made by the Lindumshire County Council in relation to the ban, decision by Council would be subject to an order of certiorari on the grounds of breaching the rules of natural justice, thus nullifying their decision. It may be subject to a ground of Irrationality depending on other Councils decisions and if it was considered to reach the high threshold necessary for Irrationality. Again resulting in a quashi order, however there is no ground for illegality, as it is seen in Wheeler v Leicester City Council the Council did not go beyond its given powers.

As there was no breach of his natural justice; Professor Green would not be able to bring the decision under a ground of procedural impropriety. There could be not claim under illegality as the revocation of his grant was allowed for under the act providing the partnership with their powers. Due to the high standard of unreasonableness that must be reached in order to bring a claim using illegality, Professor Green would not be able to bring a claim using this either. Thus meaning the Professor Green would have no claim against the decision made by the partnership and as a result would have no remedy provided to him.