Rules of Standing and the Grounds of Judicial Review Essay (Critical Writing)

Introduction

Public law administration is applicable in providing justice to everyone. Judicial review processes seek to expand the knowledge base on helping judicial sector practitioners deliver justifiable rulings to claimants as well as protect the executive and public bodies from disproportionate legislation. This paper discusses the extent to which rules of standing and the grounds of judicial review have struck the right balance between helping claimants achieve justice and protecting the executive and public bodies from excessive litigation.

The Rational for Administering Justice

The process of attaining a balance between helping claimants win cases as well as shielding the executive and other public agencies from disproportionate litigation has been challenging.¹ Probably, the urgent questions then one can ask are what constitutes justice, whether or not achieving justice matter, and is justice only be seen to be done only when a petitioner wins. There is the need for the judges to make the most accurate decisions while handling cases.²

Grounds of Judicial Review

The judges involved in hearing and determining cases must adhere to the regulations that govern their practice. They ought to understand their failure to follow the legal provisions render their decisions, actions, or avoidance of action illegal.³ The executive and the public bodies sometimes make illegal decisions, which affect people. The people in may seek legal redress through the courts and the courts may eventually declare the decisions were illegitimate.⁴

There are situations when the legislations concerning public bodies fail to incorporate the obligatory power or defined boundaries on the application of their powers. The public bodies can make illegal decisions by applying undefined powers provided in the legislations. The illegal decisions made by the public bodies’ amounts to action in ultra vires (meaning outside their authorities).⁵

The laws governing public bodies’ allows full discretion or suggest that public bodies shall discharge duties under certain situations. The laws fail to stipulate specific procedures for identifying whether those situations emerge in every individual case.⁶ The standards demand that public bodies consider pertinent information and consider them appropriately as well as disregard extraneous information.⁷

The public bodies should make accurate inquiries by addressing relevant matters and taking practical steps to acquire appropriate information on which decision-making can rely upon. The public bodies should avoid entrusting other people to make appropriate decisions on their behalf because it is illegal and takes away their accountability privileges.⁸ The public bodies should also fulfill the Human Rights Act provisions by ensuring that their decisions are compatible with the convention on human rights.

The grounds for judicial review also entail opinions by the courts that certain decisions were evidently unfair and amounts to irrationality.⁹ The scale for decisions on judicial review pertaining to irrationality emerged as early as 1948. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation, Lord Green argued, “If a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere….but to prove a case of that kind would require something overwhelming.”¹⁰

This has always led to the need to make submissions on judicial review cases touching on irrationality using the Wednesbury matter and other relevant cases. The same issues of illogicality are argued through cases such as see also: Council of Civil Service Unions v Minister for the Civil Service and Wheeler v Leicester City Council.¹¹

The judicial review cases pertaining to irrationality demand that the claimants make their submissions in such a way that they can prove the illogicality or perversity. The additional cases for arguing irrationality include see also: Strictland v Hayes Borough Council, R v Derbyshire County Council, ex parte the Times, and R (Rogers) v Swindon NHS PCT.¹²

Conversely, the threshold normally gets low and proportionality arguments emerge. Arguments for proportionality takes place in cases where there is an infringement of the European Union (EU) law or the Human Rights Act.¹³ The proportionality approach demands the parties involved to undertake a balancing activity. The balancing activity normally takes place between, on one side, the common interests applicable to a community and the justifiable objectives of the state, on the second side, defending the rights of the individuals as well as their interests.¹⁴

Arguing of proportionality requires one to ask certain questions such as whether the state’s aim has legitimacy. The other question is inquiring whether the measures put in place by the state are sufficient for achieving the aims. The other question is enquiring whether the decision made is necessary in the good judgment of ensuring the least invasive means of accomplishing the aim and whether the end really rationalizes the means.¹⁵

Hearing of cases ought not to contravene natural justice laws. The standard that outlaws bias demands the public bodies to practice impartiality in the actions. The fairness anticipates nemo judex in causa sua potest (meaning nobody has the ability to judge the cause of self).¹⁶ In R v Altringham Justices ex parte Pennington (1975), unfairness was determined.¹⁷ See also: Regina v Secretary of State for the Environment and William Morrison supermarket plc Ex parte Kirkstall Valley Campaign Limited (1996).¹⁸

Furthermore, public bodies must ensure that persons with direct financial significance on certain decisions cannot participate in the giving of judgment because it amounts to bias. The law also guards against unfairness through withholding information from other parties in a suit. The principle of audi alteram partem (which means one has to hear both sides of a case) demands that public bodies give earlier notice about some of their decisions that are likely to play a significant role in the proceedings so that the relevant parties can ensure representation.¹⁹ See: Ridge v Baldwin (1964).²⁰

The grounds for unfairness are determined through examining evidence whether one party failed to inform another party in the litigation the cases they are bringing up against them. Denying one party crucial facility they require in preparing for their cases also amounts to unfairness²¹. Furthermore, denying one party the opportunity to make submissions on their case and access critical documents leads to unfairness. In addition, failing to tell other parties the details of the hearing of their case and failing to undertake consultation with the appropriate persons or group a public body ought to have held discussions with amounts to unfairness.²²

The standard of legitimate expectation that is unmet is also viewed as an act of unfairness. In Council of Civil Service Unions v Minister for the Civil Service (1985), Lord Diplock observed,

A legitimate expectation may arise from an express promise ‘given on behalf of a public authority’, and ‘some benefit or advantage which The decision-maker had in the past permitted [the applicant] to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment.²³

A legitimate expectation can meet the criteria for judicial review when the actions by the public body adversely affect the claimant. The person can be deemed affected by an action when an alteration of certain obligatory rights, which are enforceable by the public body or the person in private law.²⁴ People are affected when a public body negates an original communication to individuals that their use of certain facility will not be taken away before they are accorded a chance to elucidate the reasons why the public body should not withdraw the rights.²⁵

The standard for fairness may sometimes require public bodies to elucidate the basis of their actions. There are statutory provisions that demand this, even though the law generally does not require the same. Many modern cases have concluded that public bodies should provide reasons for their action.²⁶ The directive normally depends on the significance of the decision to an individual and may be required by a professional judge. Nevertheless, a decision arrived at by the judge would materialize as aberrant (meaning a decision that differs with the usual types) or in cases where the matter is held in the highest regards such as the right to Ombudsman or a committee.²⁷

Rules of Standing

The introductory stages of the judicial review processes incorporates the locus standi as a courts administrative procedure for determining parties that can qualify as applicants.²⁸ Through the administrative process, a claimant established to have standing normally find the opportunity to have their claims heard. However, gaining standing in a case does not necessarily mean a claimant can win. “Section 31(3) of the Supreme Court Act” clearly shows the grounds which judicial reviews shall be applicable.²⁹

In Inland Revenue Commission v National Federation of Self-Employed and Small Businesses Ltd at the House of Lords, the IRC made a decision in reverence of taxation associations regarding the Fleet Street casuals to avoid probing missing tax.³⁰ The applicant in this case was a coalition of the self employed and small business owners. The court argued that the claimants had inadequate interest in the issue before the court that their application related.³¹ Furthermore, the court observed that the coalition was simply a group of taxpayers that had shown insufficient interest in the issue to validate their request for tax relief and they failed to elucidate the action of IRC that was ultra vires.³²

In R v HM Inspectorate of Pollution ex parte Green Peace submitted for judicial review before Judge Otton J, was a submission by Green Peace Ltd.³³ The submission concerned their view that HM inspectorate of Pollution (HMIP) and the Ministry of Agriculture, Fisheries, and Food (MAFF) grant the British Nuclear Fuels Plc (BNFL) authorizations to dispose of radioactive wastes from the company’s firm in an unlawful manner.³⁴

Green Peace submitted that HMIP and MAFF acted ultra vires because they were aware the radioactive wastes presented immense danger to the public and the environment and that they were acting based on principle of locus standi. The Judge held that arguments by BNFL litigants that Green Peace was “a mere or meddlesome busybody” were not logical.³⁵ The Judge further argued that Green Peace is an internationally recognized body and its concerns genuinely met the criteria for determining sufficient interest and granted the organization a locus standi.

Conclusion

In summary, this paper has successfully discussed the extent to which rules of standing and the grounds of judicial review have struck the right balance between helping claimants achieve justice and protecting the executive and public bodies from excessive litigation. It has established that justice should be determined by the regulations that guide accuracy in decision-making. It has also established that the grounds for judicial review include illegality, procedural impropriety, irrationality, proportionality and fairness.

Appendix 1

List of Cases

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223).

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374).

R (Rogers) v Swindon [2006] NHS PCT).

R v Derbyshire County Council ex p Times Supplements Ltd and Others (1990) 140 NLJ 1421).

R v HM Inspectorate of Pollution ex parte Greenpeace Ltd [1994] 4 All ER 329).

Rv Inland Revenue Commissioners, ex pNational Federation of Self–employed and Small Businesses Ltd [1982] AC 617).

R. v Altrincham Justices, exparte Pennington [1975] 1 QB).

Regina v Secretary of State for the Environment and William Morrison supermarket plc Ex parte Kirkstall Valley Campaign Limited [1996] 3 AER 304).

Ridge v Baldwin [1964] AC 40).

Strickland v. Hayes [1896] 1 Q.B. 290).

Wheeler v Leicester City Council [1985] AC 1054).

Bibliography

Bailey, S Cases, Materials and Commentary (4^th, Sweet and Maxwell Ltd, London 2005).

Bondy Varda and Maurice Sunkin, ‘The Dynamics of Judicial Review Litigation: The resolution of public law challenges before final hearing‘. Web.

Ministry of Justice, ‘PART 54 – Judicial Review and Statutory Review‘ (2013) Web.

Sueur, A., Sunkin, M. and Murkens, J. Public Law: Text, Cases, and Materials 2e (2nd, Oxford University Press , Oxford 2005).

The Law Commission, ‘Remedies against Public Bodies: A scoping Report’. 2013. Web.

The Public Law Project, ‘A brief guide to the grounds for judicial review’ (2006). Web.

Thomas, R. Legitimate expectations and proportionality in administrative law (Hart Publishing 2007).

Tiede, W. Application of Parameters of Working Efficiency in Matters of Local Importance and Municipal Standards in European Countries (GRIN Verlag, Munich 2011).

Footnotes

1. S.H. Bailey, Cases, Materials and Commentary (4^th, Sweet and Maxwell Ltd, London 2005) 241 – 636.
2. Bondy Varda and Maurice Sunkin, ‘The Dynamics of Judicial Review Litigation: The resolution of public law challenges before final hearing‘ (2009). Web.
3. Bondy Varda and Maurice Sunkin, ‘The Dynamics of Judicial Review Litigation: The resolution of public law challenges before final hearing‘ (2009). Web.
4. S.H. Bailey, Cases, Materials and Commentary (4^th, Sweet and Maxwell Ltd, London 2005) 241 – 636.
5. S.H. Bailey, Cases, Materials and Commentary (4^th, Sweet and Maxwell Ltd, London 2005) 241 – 636.
6. Wolfgang Tiede, Application of Parameters of Working Efficiency in Matters of Local Importance and Municipal Standards in European Countries (GRIN Verlag, Munich 2011) 1 – 18.
7. Andrew Sueur, Maurice Sunkin, and Jo Murkens, Public Law: Text, Cases, and Materials 2e (2nd, Oxford University Press , Oxford 2005) 736 – 756.
8. The Public Law Project, ‘A brief guide to the grounds for judicial review’ (2006). Web.
9. The Law Commission, ‘Remedies against Public Bodies: A scoping Report’ . Web.
10. [1948] 1 KB 223).
11. [1985] AC 374); [1985] AC 1054).
12. [1896]1 Q.B. 290); [1990]140 NLJ 1421); [2006]NHS PCT).
13. S.H. Bailey, Cases, Materials and Commentary (4^th, Sweet and Maxwell Ltd, London 2005) 241 – 636.
14. Bondy Varda and Maurice Sunkin, ‘The Dynamics of Judicial Review Litigation: The resolution of public law challenges before final hearing‘ (2009). Web.
15. Bondy Varda and Maurice Sunkin, ‘The Dynamics of Judicial Review Litigation: The resolution of public law challenges before final hearing‘ (2009). Web.
16. S.H. Bailey, Cases, Materials and Commentary (4^th, Sweet and Maxwell Ltd, London 2005) 241 – 636.
17. [1975] 1 QB).
18. [1996] 3 AER 304).
19. S.H. Bailey, Cases, Materials and Commentary (4^th, Sweet and Maxwell Ltd, London 2005) 241 – 636.
20. [1964] AC 40).
21. Robert Thomas, Legitimate expectations and proportionality in administrative law (1st, Hart Publishing, Oxford 2000) 26 – 70.
22. Wolfgang Tiede, Application of Parameters of Working Efficiency in Matters of Local Importance and Municipal Standards in European Countries (GRIN Verlag, Munich 2011) 1 – 18.
23. [1985] AC 374).
24. Robert Thomas, Legitimate expectations and proportionality in administrative law (1st, Hart Publishing, Oxford 2000) 26 – 70.
25. Wolfgang Tiede, Application of Parameters of Working Efficiency in Matters of Local Importance and Municipal Standards in European Countries (GRIN Verlag, Munich 2011) 1 – 18.
26. The Public Law Project, ‘A brief guide to the grounds for judicial review’ (2006). Web.
27. The Public Law Project, ‘A brief guide to the grounds for judicial review’ (2006). Web.
28. Andrew Sueur, Maurice Sunkin, and Jo Murkens, Public Law: Text, Cases, and Materials 2e (2nd, Oxford University Press , Oxford 2005) 736 – 756
29. Ministry of Justice, ‘PART 54 – Judicial Review and Statutory Review’ (2013). Web.
30. [1982] AC 617).
31. S.H. Bailey, Cases, Materials and Commentary (4^th, Sweet and Maxwell Ltd, London 2005) 241 – 636
32. S.H. Bailey, Cases, Materials and Commentary (4^th, Sweet and Maxwell Ltd, London 2005) 241 – 636
33. [1994] 4 All ER 329).
34. [1994] 4 All ER 329).
35. [1994] 4 All ER 329).