Constitutional and administrative law The WritePass Journal

Constitutional and administrative law Abstract Constitutional and administrative law has given powers to the Secretary of State to undertake certain administrative tasks such as the licensing of tyre storage and their destruction. A statement was also made that any decisions on the part of the Secretary of State cannot be challenged in a court of law, and the Secretary of State is given wide discretionary power under the statutory provisions. With this in mind and following certain concerns by three different companies, as well as a pressure group, the question has arisen as to whether or not the powers exercised by the Secretary of State in these scenarios could be subject to judicial review. Introduction The paper here will look, firstly, at the legal principles associated with judicial review, including identifying who may bring an action to judicial review and the grounds for such action, before applying this to the set of facts presented in relation to the individual entities in this case study. Judicial Review – Rules Judicial review provides a procedure whereby an individual or relevant group of individuals can bring an action in court to argue that a public body acted in an unlawful manner (IRC, 1982). Broadly speaking, judicial review will fall into one of three categories: where a public body has acted illegally, i.e. failing to apply the law in the relevant manner; has acted irrationally by making a logical decision; or has undertaken some form of procedural impropriety which means that it has not followed the correct procedure. Where an action for judicial review is successful, the court may then quash the act undertaken by the public body or may require it to review the situation or may refrain the body from acting in the manner that it has been acting, previously. A typical example of this would be a declaration by the High Court that the public body had acted in an unlawful manner and would therefore require it to act differently, in the future (Fulham Corporation 1921). Firstly, it is noted that judicial review is available against a decision made by a public body and, in this case, the Secretary of State for the Environment is a public body making public decisions and would therefore be potentially subject to judicial review, regardless of the statement that it cannot be held accountable in court (Hampshire Farmers Market Ltd., 2004). The individual bringing the action must also have sufficient standing in order to make the application (as defined by Section 31(3) of the Senior Courts Act 1981). In accordance with this section, it is stated that the permission shall not be given to bring an action, unless it is considered that the applicant has sufficient interest in the matter to bring the action (Gough, 1993). Having been allowed to bring an action to judicial review, the next stage is to identify the grounds for challenge of the public authority’s behaviour. Each of the three grounds will be looked at in turn, as each is potentially relevant, in this case. The classification of the grounds that will be discussed here was first established in the Minister for the Civil Service case decided in 1985. Under the heading of illegality, there are several grounds for challenge, with one of the most common aspects of this being where there are allegations that the legislation has been misinterpreted (Anisminic 1969).Crucially, a decision can be deemed to be illegal for the purposes of judicial review, if the decision making body has ignored relevant considerations, or is taking irrelevant considerations into account when making decisions. This is particularly relevant when it comes to a situation whereby the public authority has a relatively high level of discretion in applying the rules and regulations by which it is guided. It is however noted that where the public authority is taking into account legally relevant factors and the decision they make is ultimately rationale this cannot then be queried simply because one of the parties does not agree (ex parte Westminster City Council 1986). L Diplcok also placed a large emphasis on the second ground for challenging the actions of the public body which is on the basis of irrationality. He stated that the decision would be deemed to be irrational if it could be seen as â€Å"so, outrageous in its defiance of logic or accepted moral standards, that no sensible person, whether applied his mind to the question that have arrived at it.† (Associated Provincial 1948)This ground for judicial review is somewhat different than the other two in that it looks at the substance of the decision, but will only allow for judicial review where the decision is outrageous and again, not simply because one of the parties disagree (Barnett 2010). Secondly, also under the umbrella issue of irrationality is that of proportionality meaning that the public body needs to make proportional decisions in order to achieve the underlying aim of the powers given to the public authority. For example it may be seen as disproportionate to prevent a particular protest march from taking place where it would have been possible to protect public safety by simply choosing an alternative route. Proportionality is seen as being particularly relevant when it comes to the European convention on human rights is also an issue that is dealt with when looking at decisions relating to the application of the European convention on human rights under UK law. Fundamentally therefore, where the public body has acted in a way that is disproportionate this could be used as an example of irrationality and therefore offer an opportunity for judicial review (Daly, 2001). Finally there is the category of procedural impropriety which deals with an allegation that the public body has not used the processes and procedures required in order to make the decisions that it has made (Oliver 1987). A distinction is drawn between a procedural requirement which is perceived as being mandatory and a simple direction with any breach of a mandatory requirement allowing for judicial review on the grounds procedurally proprietary. There are also rules associated with natural justice, which are linked to procedural requirements and where it has been a breach of natural justice it is likely that judicial review of the procedurally proprietary will be allowed (Lloyd, 1987). For example, there are specific rules of natural justice, which ensured that no bias is shown and that each individual has the right to a fair hearing. An individual will have a legitimate expectation of how their case should be dealt with and a failure to offer the opportunity to have a fair hearing could result in procedural impropriety (Nottinghamshire CC 1986). Unlike other countries there is not a general requirement under English administrative law to give reasons for decisions however it may be required by statute to provide reasons and this would then prevail. Rules relating to legitimate expectation are also likely to be relevant as it is only reasonable that individuals form expectations on how their own situation will be treated and failure to comply with this can result in procedural impropriety (Fairmount 1976). Once an action for judicial review is successful, there are several different remedies which may be available, including a declaration of incompatibility as well as options for the court to nullify the decision made by the public authority by the requirement for the relevant authority to revisit their decision and to comply with the public authority duties that are relevant (Liverpool Corporation 1972). Bearing in mind the various different issues associated with judicial review the position in relation to the four possible claims for judicial review will be looked at in turn. Alpha Ltd (A) Two decisions have been made that A is confused by. These issues are firstly, the refusal to offer a grant for the recycling expansion due to environmental concerns and secondly, the requirement to cease trading due to the lack of licence. A stores no more than 1000 tyres at a time and these are shredded within 12 months. Schedule 1 (B) states that a licence is not required where the tyres are stored for less than 12 months and there are less than 1000 stored at any point in time. Based on this interpretation it would seem irrational that the Secretary of State for the Environment failed to allow the exemption to apply and this would result in a declaration being made and the position having to be re-considered. By contrast it is simply stated that a recycling grant would require the applicant to show that the waste to be recycled will not be harmful to the environment. It is argued here that the belief by the Secretary of State that the chosen recycling approach by A would be harmful and as such it would be appropriate to refuse the grant and could not be deemed to be irrational or disproportionate as it would seem reasonable to disallow a grant that would potentially support some form of non environmentally friendly approach. Beta Ltd (B) An application for a licence has been rejected by the Secretary of State by B as it is using technologies that are seen to be safe and have been proved as such in Germany but has not gained approval in the UK as is required under the statutory provisions. This presents a reasonably difficult position when it comes to judicial review as it could be argued that the Secretary of State has followed the requirements under the statutory provision yet has potentially acted in a disproportionate manner and has failed to take into account the tests that have taken place in Germany. Despite the potential argument of irrationality that B could put forward, it is suggested on balance that the Secretary of State has followed the processes contained within the statutory provisions and therefore it is unlikely that judicial review will be successful in this situation. Gamma Ltd (G) G has also been refused a licence despite having a strong environmental record. G was initially afforded a licence automatically however this was reneged and G was told to apply for a licence which was ultimately refused due to the previous investigations relating to the theft of tyres, this was not an environmental issue. It is also suggested that bias is being shown as the decision maker was involved in the original investigation. Bearing both of these points in mind it is suggested that the judicial review would be successful on the grounds of procedural improprietary on the grounds of bias as well as illegality as the rules contained within the statutory provision have not been applied appropriately with the relevant investigations needing to be environmental in nature if a licence is to be rejected. Tyred Out (T) T is a special interest group looking at environmental issues associated with the disposal of tyres and is arguing that Delta (D) should not be granted a licence due to a poor environmental record. Firstly it is concluded based on the concepts of material interest that T is able to bring an action for judicial review as it has sufficient interest. Secondly it has been put forward by the Secretary of State that a licence was granted based on the devastating potential on the employment in the area despite poor environmental records. It would be necessary to look therefore whether the decision was rational and proportionate, something which it is suggested based on the facts here that the decision was indeed appropriate and could not be deemed irrational. Discretion is given to the Secretary of State and this discretion has seemingly been applied appropriately making it unlikely that judicial review will be successful. Conclusions By looking at the specific rules and applying this to the four scenarios presented, it could be seen that there are mixed results with judicial review being likely to be successful in the case of Gamma Ltd and partly in relation to Alpha Ltd but would be unsuccessful in the other areas. References Anisminic Ltd v.Foreign Compensation Commission [1969] 2 AC 147 Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223) Attorney-General v. Fulham Corporation, ex relatione Yapp [1921] 1 Ch 440, Barnett, H (2010) Constitutional Administrative Law, Taylor Francis Bradley, A.W. and Ewing, K.D., (2003) Constitutional and Administrative Law, Pearson. Council of Civil Service Unions v. Minister for Civil Service [1985] AC 374 Fairmount Investments Ltd v. Secretary of State for the Environment [1976] 1 WLR 1255 IRC v. NFSESB [1982] AC 617. Lloyd v McMahon [1987] AC 625 Nottinghamshire CC v. Secretary of State for the Environment [1986] 1 AC 240 Oliver, D (1987)Is the Ultra Vires Rule the Basis of Judicial Review? [1987] P.L. 543 R(Daly) v Secretary of State for the Home Department [2001] 2 AC 532 R (on the application of Beer) v. Hampshire Farmers Market Ltd [2004] 1 WLR 233 R v. Gough [1993] AC 646 R v. Liverpool Corporation, ex parte Liverpool Taxis [1972] 3 WLR 224 Constitutional and Administrative Law Introduction Constitutional and Administrative Law IntroductionBibliographyRelated Introduction In British constitutional theory and practice there is a clear-cut distinction between law and convention.   Law derives from common law and statute, and is enforceable by the courts.   Convention derives from constitutional principle and practice and is not enforceable by the courts.   Law remains in force until changed by statute.   Convention may change with changing times.   Law, at least if statutory, is ascertainable in precise form.   Convention is often imprecise and may be nowhere formulated in categorical terms. (Professor H.W.R. Wade) Is this an accurate explanation of the distinctive nature of law and convention in relation to the British constitution? Professor H.W.R Wade produced a statement highlighting a clear-cut distinction between the nature of law and convention in relation to the British Constitution. Throughout this essay I shall critically asses the validity and accuracy of his explanation by taking an in depth look at key concepts, doctrines and comments to evaluate whether a distinction exists   between the nature of law and convention. Whilst Britain does not have a single codified document called ‘The Constitution’, it would be deceptive to assert that the constitution is unwritten. Indeed, Britain’s constitution has been cultivated from multiple key constitutional sources which make it possible to approach a description of the constitution. These sources can be found in the decisions of the courts in the form of dictum or in the interpretation of statute. With Britain being a member state of the European Union part of the constitution can emanate from EU Law, the Royal Prerogative, and a distinct part is found in historical arrangements and practices known as conventions. I shall be focusing primarily on the nature of law and conventions, in relation to the British constitution in order to assess whether a distinctions is visible between the two constitutional sources. Professor Wade asserts that â€Å"Law derives from common law and statute, and is enforceable by the courts. Convention derives from constitutional principle and practice is not enforceable by the courts†. Accordingly, it would be just to establish that from a precise detailed point of view, this statement can be seen to be contentious. This is primarily because Professor Wade highlights that the â€Å"Law derives from common law and statute† however what he seizes to base emphasis on is the mere fact that conventions set a key agenda in the crafting of statute and common law reasoning; in the words of Sir Ivor Jennings â€Å"conventions provide the flesh which clothes the dry bones of the law†[1] Thus, evidently the legal hierarchy of the British constitution is everywhere penetrated, transformed and inherently effected by an inevitable element of convention, and a failure to adhere to an important convention might lead Parliament to cast a disputed practice int o legislative form. An example of this is The Parliament Act 1911, which was enforced after the House of Lords exceeded conventional limits on its power, rejecting, in 1909, a finance bill (Lloyd George’s ‘People’s Budget’). This consequently undermines, to some extent, the clear-cut distinction Professor Wade respectively explains, in that, if conventions are so interconnected in the cultivation of   the natural form of law as mentioned above then a distinction cannot be clear-cut or even made, and this connection will always bind the natural law and conventions. Evidently the natural form of law is enforceable by the courts. Professor Wade makes a distinction here between the nature of law and convention by stating that â€Å"Law is enforceable by the courts.Convention is not enforceable by the courts† The issue here arises with regards to the validity of this statement. Are conventions indeed distinctly dissimilar to the nature of law in that they are not enforceable by the courts? Indeed, conventions are rules and are part of the constitutional order, interrelated and interwoven to some extent, however relatively distinguishable from the natural form of law as Professor Wade asserts. The key distinction is in the nature of the enforcement and of the sanction. As mentioned above the natural form of law is inherently enforced in the courts; however it could be debated as to whether conventions are fully applied in courts (discussed further below), conventions are most certainly non-legal but nonetheless binding rules of constitutional behaviour. A good example of this is the convention of ministerial responsibility. It is a convention which holds ministers wholly and individually responsible to Parliament. If a minister knowingly misleads parliament for example he or she will be expected to resign from office. If no resignation is forthcoming the minister would be acting unconstitutionally and NOT illegally. A court of law could not compel a resignation in this situation. Nonetheless, in the case of R. v Secretary of State for the Home Department Ex p. Hosenball[2] the court had relaxed the rules of natural justice â€Å"for the protection of the realm† in a case were the Secretary of State had considered information that Mr.Hosenball, while resident in the United Kingdom, had sought and obtained for publication information harmful to the security of the United Kingdom. This case proves that the courts were willing to shape up the natural form of the law and enforce a convention for public interest in order to ensure the security of the ‘realm’. A key point to address in this case was that the Secretary of State had not arguably acted fairly in that Mr.Hosenball was denied a fair trial. In today’s court this would infringe article 6 of the Human Rights Act 1998. Therefore, it would be fair to establish that in today’s courts the judiciary would have taken a different approach to tackling the aforementioned case. So is Professor Wade accurate in explaining that a distinction between the nature of law and convention exists on the basis that law is enforceable by the courts and convention is not? Certainly the above case contradicts to this to some extent; however a reluctance of the modern courts to enforce conventions has crafted this distinction, making Professor Wade’s distinction relatively accurate on this basis. However as highlighted by the convention of ministerial responsibility a distinction can be formed between a convention and the natural form of law on the basis that acting unconstitutionally differs from acting illegally as highlighted above. Professor Wade explains that a distinction exists between the nature of law and convention on the basis that â€Å"Law remains in force until changed by statute, and convention may change with changing times†. Accordingly Professor Wade is to some extent right in this distinction, in that we have seen numerous acts of parliament being superseded and changed by more modern statutes. Furthermore, it would be fair to establish that courts accept the validity of the acts of Parliament and have validated the concept of Parliamentary Sovereignty, and although the courts do not directly challenge legislation passed down by Parliament, a strong part of the constitution comprises of common law and not solely statute law, particularly in certain cases involving private law including tort and contract law. Thus to some extent it could be inaccurate and problematic to assert that â€Å"law remains in force until changed by statute†. Furthermore, Professor Wade, establishes that â€Å"conventions may change with changing times†. He is indeed relatively accurate in making this statement, as proven by the ‘Widdicombe Convention’ which was formally recorded to resolve any conventional ambiguities with regards to the media and publicity campaigns. This convention was effectively the result of the growing media and the influence it had on society. This convention inherently proves the accuracy of Professor Wade’s explanation that ‘conventions may change with times’. However the legitimacy of this distinction is inaccurate in a sense on the grounds that even the law may change with time, after all, this is why we have a parliament and a superior court system. With changes in society comes change in the law, this is the basic foundation of any competent legal system. Alas, this asserts that Professor Wade’s distinction is relatively inaccurate as both the natural form of la w and conventions change with time in order to sufficiently meet the ever changing needs of our society. Another distinction Professor Wade explains in his statement is that the â€Å"law, at least if statutory, is ascertainable in precise form, convention is often imprecise and may be nowhere formulated in categorical forms† To some extent it can be rather contentious to assert that statutory law is precise in its form. This is merely because a broad term may be used in a statute which can give rise to confusion and uncertainty, developments in society can make the words used in a statute out of date and they may no longer cover the current situation. An example of this is in Section 53, Coroners and Justice Act 2009 c. 25[3]. However the important distinction made here is the statement asserting that â€Å"conventions are often imprecise and may be nowhere formulated in categorical form†. A good authority which validly contradicts to this inaccurate distinction is the convention of ministerial responsibility which is included in the Ministerial Code, which is issued upon appointment to all ministers by the Prime Minister.   The convention clearly sets out the conventions and codes of practice as a minister. Thus, in conclusion after critically assessing Professor Wade’s explanation of the distinctive nature of law and convention in relation to the British constitution I have established that some of the distinctions he explains are more accurate than others. Initially the Parliament Act 1911 proved that failure to adhere to an important convention might lead Parliament to cast a disputed practice into legislative form which undermined Professor Wade’s explanation, and proves that convention can indeed constitute into law. Furthermore the case of R. v Secretary of State for the Home Department Ex p. Hosenball[4] proved that a convention could to some extent be enforceable in order to ensure the protection of the ‘realm’. I also established that Professor Wade was accurate in asserting that a â€Å"convention may change in time† as proven by the Widdicombe Convention, however his distinction could be seen as inaccurate as even the natural form of law can be changed in time to suit the needs of society. The convention of ministerial responsibility’s clarity contradicts Professor Wade’s distinction which stated that â€Å"that convention is imprecise in comparison to the precise form of law†. Therefore the aforementioned examples highlight that Professor Wade’s respective explanation although rightful in some aspects; the distinctions made can seem too broad and relatively inaccurate in some arspects in defining a convention and comparing it to the natural form of law. Bibliography Ward, R. (1997) Cases on Constitutional Administrative Law 4th edition, Pitman Publishing Horsey, K. (2009) Tort Law, Oxford University Press Leyland, P. (2007) The Constitution of the United Kingdom, Hart Publishing Turpin, C. (2007) British Government and the Constitution 6th edition, Cambridge University Press