Question 1

Mary is a student who is just about to complete her three year law degree at Sibton University. She lives in university accommodation and holds a party in her room, that lasts until 4 a.m. The University rules state that students should not hold parties in their rooms after midnight and that students can be expelled for “gross misconduct”.

The warden of the student accommodation is kept awake by the party and decides to expel Mary. The University rules allow her to appeal to a three person committee. Mary wants to be accompanied by a representative of the Student Union, who could speak for her, but the University will not allow this. The warden is one of the three and the committee confirms her expulsion. Mary has never been in any trouble before and is only a month away from her final examinations.

Advise Mary upon whether she would be able to judicially review the University’s decision.

Answer guidance

Only a public body can be judicially reviewed, but that body does not have to be a statutory creation to perform a public function: R v Panel on Takeovers and Mergers ex parte Datafin [1987] QB 815. Even if the university was a private body, the courts could ensure that it obeyed its own rules (R v Disciplinary Committee of the Jockey Club ex parte Aga Khan [1993] 1 WLR 909) and respected the contract that it had with its student (Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988).

The university performs a public function and can therefore be judicially reviewed. This would seem to a clear case of breach of natural justice. In Ridge v Baldwin [1964] AC 40, it was held that natural justice applied whenever a decision affected the rights of the individual.

First Mary must be told the exact charge, so that she can prepare her defence: Fairmount Investments v Secretary of State for the Environment [1976] 1WLR 1255. Fairness would seem to dictate an oral hearing, so that she can contest the University’s version of events and explain: R (Osborn) v Parole Board [2013] UKSC 61. Due to the serious consequences of expulsion for Mary, she should have been allowed legal representation and the ability to summon witnesses and have then cross-examined: R (G) v Governors of X School [2012] 1AC 167. The Committee is obliged to hear all relevant evidence: R v Hull Prison Visitors ex parte St Germain (No. 2) [1979] 1WLR 1401. Since the Human Rights Act 1998, her claim is strengthened by the right to a fair trial in Article 6.

There is also the allegation that the warden was biased. It is clear that the presence of one biased person is enough to invalidate a decision. A breach of natural justice could involve several forms of bias, which are conveniently sub-divided into 'actual bias and 'apparent bias', according to the House of Lords in R v Abdroikov [2008] 1All ER 315. Actual bias leads to automatic disqualification and includes that the decision-makers have already decided the matter before the hearing, as in Eszias v North Glamorgan NHS Trust [2007] 4 All ER 940. It also applies if one of the persons deciding has a previous connection to the case: R v Bow Street Magistrates Court Ex parte Pinochet [1999] 1 All ER 577. Failing that, apparent bias could be proved. In Porter v Magill [2002] 1All ER 465, the House of Lords formulated a general test for bias as follows:

“whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased”.

This would seem to be satisfied here and Mary would win her case. Sibton University would be obliged to hear her case again, this time fairly. As in Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, the court might also advise that the penalty is out of all proportion to the alleged crime and that this is not gross misconduct.

Question 2

Assume that Parliament has passed public health legislation that allows local authorities to licence the production of sausages in their area. Sibton District Council take the following actions against sausage manufacturers.

• (a)  Anita who has been manufacturing sausages for ten years, has her licence withdrawn and no reason is given.
• (b)  Bernadette applies for a licence but is refused. The Council tell her that they are granting no new licences, because there are already 10 sausage factories in the area and that is too many. In fact, three are only 7 factories.
• (c)  Cindy runs a sausage factory and has been constantly reassured by the Council that she will be allowed to continue to do so. The Council change their mind and withdraw her licence.

Advise Anita, Bernadette and Cindy on whether they will be able to judicially review the decisions of the Council.

Answer guidance

As far as Anita is concerned, this looks like a breach of natural justice. According to Ridge v Baldwin [1964] AC 40 decisions affecting the rights of individuals must be made in accordance with the rules of natural justice. This is particularly the case, if the individual stands to lose their livelihood. In R v Barnsley MBC ex parte Hook [1976] 1WLR 1052, Lord Denning MR quashed the council's decision to revoke the licence of a market trader who had urinated in the street. The punishment was out of all proportion to the crime. There is now a general duty in administrative law to give reasons for a decision, if fairness requires it. The Council must give some kind of explanation to Anita: R v Home Secretary, ex parte Doody (1994] 1AC 531. The only thing that might possibly justify the Council’s action would be if there was a public health emergency and immediate closure was necessary: R v Secretary of State for Transport ex parte Pegasus [1989] 2 All ER 481. There is, however, no evidence that this was the case.

In Bernadette’s case, the Council is not entitled to adopt a rigid policy from which they will never depart. This is known as fettering of discretion: A-G ex rel Tilley v Wandsworth LBC [1981] 1WLR 854. It is, however, acceptable to adopt a policy, provided that consideration is given to each individual case: British Oxygen v Board of Trade [1971] AC 610. They must give Bernadette some kind of hearing and consider the individual merits of her case.

The Council’s decision is clearly based on information that is incorrect, so it is unreasonable or irrational, according to Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1KB 223.

It is also a mistake of fact. A decision cannot be based on facts that can be shown to be incorrect, are material to the decision and cause unfairness: R (March) v Secretary of State for Health (2010] Med LR 271.

It was very foolish of Sibton Council to make the promises that they did to Cindy. This raises a legitimate expectation that they cannot go back on:  R v North Devon Health Authority ex parte Coughlan [2001] QB 213. This is a clear and unequivocal assurance to a small and identifiable group of people. As there does not appear to be any public health issue, it was reasonable for Cindy to rely on the promise and expect the policy to continue: R (Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755. Policies can change (Application of Geraldine Finucane [2019] UKSC 7), but the change must be rational and not deemed unfair by the courts: R v IRC, ex parte Unilever [1996] STC 68.

Question 3

In order to apply for judicial review, the claimant must have “sufficient interest”. Consider whether this is a satisfactory test for deciding who may apply for judicial review.

Answer guidance

When the Application for Judicial Review was introduced by the Senior Courts Act 1981, locus standi was deliberately described in words without a previous legal meaning as a 'sufficient interest ' in the matter: Part 54 of the Civil Procedure Rules. The meaning of this expression was discussed by the House of Lords in R v Inland Revenue Commissioners ex parte National Federation of Self-Employed and Small Businesses [1982] AC 617. The court could exclude 'busybodies, cranks and other mischief makers', but pressure groups and even 'a single public-spirited taxpayer ' should be allowed to bring such cases, in order to ensure that the rule of law applies. The strength of the case would also be considered by the court when they decide whether there is sufficient interest.

The effect of this decision was a general liberalisation of the rules of locus standi. A 'single public-spirited taxpayer' was allowed to bring an action in R v HM Treasury ex parte Smedley [1985] 1QB 657. Pressure groups are allowed to bring cases if a genuine legal issue is being raised, the group has a legitimate cause and there is no one directly affected by the decision to bring the case: R v Foreign Secretary ex parte World Development Movement [1995] 1WLR 386. Sufficient interest is also deemed to be present when the pressure group represents potential applicants: R v Secretary of State for the Environment ex parte Greenpeace [1994] 4 All ER 352. In contrast a group of actors and other notables, formed specially for the purpose, had no interest in challenging building work on the site of a theatre associated with Shakespeare: R v Secretary of State for the Environment ex parte Rose Theatre Trust [1990] 1 QB 504.

There are other more substantial obstacles to bringing an application for judicial review. It must be against a ‘public body’ and there is no clear definition of what that is, except that it must perform a public function: R v Panel on Takeovers and Mergers, ex parte Datafin [1987] QB 815. Even bodies created by the royal prerogative can be judicially reviewed since Council for Civil Service Unions v Minister for the Civil Service [1985] 2 AC 237. The applicant must also be granted leave. They must have a case that looks as though it will be successful and there must not be a suitable alternative remedy: R (Cowl) v Plymouth Council [2002] 1 WLR 803. Section 50 of the Criminal Justice and Courts Act 2015 has introduced a tougher test for granting leave. Leave must be refused 'if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred '.

There is also the problem of a strict time limit. Application must be made promptly and in any event within three months of the decision being challenged. This is usually interpreted strictly: R v Dairy Produce Quota Tribunal ex parte Caswell [1990] 2 AC 738 and R (Nash) v Barnet LBC [2013] EWCA Civ 1004.

In conclusion, the requirement to obtain leave is probably the greatest obstacle for the applicant, not the sufficient interest test. If the court considers that the legal case is strong enough and it is an issue that the judges want to hear, sufficient interest will be found. For example, a trade union was allowed to question an increase in Employment Tribunal fees in R (Unison) v Lord Chancellor [2017] UKSC 51 and a pressure group the jurisdiction of the High Court to review the Upper Tribunal: R (Privacy international) v Investigatory Powers Tribunal [2019] UKSC 22. Both cases raise the important right of access to justice and the rule of law.

Question 4

Section 1(1) of the (imaginary) Community Housing Act 2018 states that ‘the Secretary of State may authorise and finance the building of houses as he sees fit’. Subsection (2) goes on to state that ‘the House of Commons must approve by resolution, any proposed scheme of 500 houses or more’. The long title of the Act explains that the purpose of the Act is to ‘Build houses for poor people in the areas of greatest need’.

In January 2020, the Secretary of State made the following decisions:

• (a)  To build 400 houses in Paulton, a town where there are plenty of houses for sale and they are very cheap, compared to other areas. A candidate from the Secretary of State’s political party is shortly to stand at a Parliamentary by election in Paulton. Agnes, who lives in Paulton, opposes this decision, arguing that these houses are not needed in Paulton.
• (b)  To build 1000 houses in Bristol. It is very expensive to acquire the development site, so the houses will be expensive, but this decision has been approved by a resolution of the House of Commons. Brian lives nearby and fears that the development will reduce the sale price of his house.
• (c)  To build 50 houses in Taunton. A mosque on the site of the proposed development will have to be demolished in order to build the houses. The Secretary of State had previously announced that ‘I have very extensive plans to build houses, but I can guarantee that sites of religious worship will not be affected’. Kamal is a local resident and attends the mosque. He strongly objects to the plan to demolish the mosque.

Advise Agnes, Brian and Kamal whether they would be successful in seeking judicial review of the Secretary of State’s decisions.

Answer guidance

A public body, exercising some kind of public function, would normally be amenable to judicial review, even if that body had no statutory existence: R v City Panel on Takeovers & Mergers ex parte Datafin [1987] QB 815. The Secretary of State is a government minister, exercising a function under a statute, so he can clearly be judicially reviewed. The Act seems to grant him unlimited discretion to do “as he sees fit”, but this is not the case. The court will ensure that he does not misuse his statutory power and acts in a lawful manner, within the wording of the statute: Padfield v Minister of Agriculture [1968] AC 997. The G.C.H.Q. case, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, usefully summarises the main grounds for judicial review: illegality, irrationality, and procedural impropriety.

1. The Community Housing Act 2018 clearly states that housing is to be built in areas of the greatest need and that does not seem to be the situation in Paulton. An Act may not be used for an improper purpose. In R v Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement [1995] 1 WLR 386, money was supplied to build a dam where it was not economically necessary, and in Padfield v Minister of Agriculture itself, the minister could not refuse to hold an inquiry when the facts clearly merited it. Nor should the Secretary of State use his statutory power for party political advantage: Porter v Magill [2001] UKHL 67.
   ‘Sufficient interest’, to bring an application for judicial review is not statutorily defined, but a taxpayer could challenge the tax assessment of other taxpayers in I.R.C. v National Federation of Self-Employed [1982] AC 617. However, Agnes is just a local resident and so is only indirectly affected by the building: R v Secretary of State for the Environment ex parte Rose Theatre [1990] 2 WLR 186. If the case for judicial review is very strong, the court may be more inclined to accept that there is sufficient interest, so that someone can bring the case: R v Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement [1995] 1 WLR 386. Agnes would probably have locus standi.

2. Brian would also have the same problems of standing to bring an application for judicial review, but at least he lives nearby and his personal wealth is affected. Does he have a prima facie case? The fact that the houses are expensive might be an indication of improper purpose as in (a). Maybe he could argue that the decision is irrational? This was defined as a decision “so unreasonable that no reasonable authority could ever have come to it” in the influential Associated Picture Houses v Wednesbury Corporation [1948] 1 KB 223. This is a hard test to pass because, as Lord Diplock observed in Secretary of State for Education v Tameside MBC [1977] AC 1014, administrative discretion means that the decision taker may choose between different courses of action, all of which might be reasonable. Brian’s case is made more difficult by the Commons resolution. In Nottinghamshire CC v Secretary of State for the Environment [1986] AC 240, the House of Lords ruled that public expenditure, approved by the House, was a matter of political judgement for the Secretary of State and the House of Commons. The court would only interfere if the applicant could demonstrate bad faith or improper motive on the part of the Secretary of State. Maybe Brian could compel the Secretary of State to explain why he wanted to build expensive houses, but he might just respond that Bristol is an expensive city.

3. The Secretary of State seems to have made a promise that he will not build on sites of religious worship. Does this give Kamal a legitimate expectation that this promise will be kept? It might give rise to procedural legitimate expectation, which arose out of the older doctrine of breach of natural justice in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. The Secretary of State should at least consult Kamal and the mosque congregation about the proposal. Could there be a substantive legitimate expectation, should the Secretary be made to keep his promise? Although his words are specific and unequivocal, they are made generally, not to an individual or specific group: R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 and R (Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755. Ministers are entitled to change policy and the courts might have to judge the fairness of this: Re application of Finucane [2019] UKSC 7 and R v IRC ex parte Unilever [1996] STC 681.

There is also a possible breach of Article 9 of the European Convention on Human Rights, in that Kamal has a right to manifest his religion. The courts could use the ‘Wednesbury principle’ to judge the reasonableness of the Secretary of State’s actions, and as a right is involved this would be a more intense scrutiny than that involved in financial matters as in part (b): R v Ministry of Defence ex parte Smith [1996]. What would be other reasonable courses of action for the Secretary of State? As the Human Rights Act 1998 is involved, the court would need to assess the proportionality of the restriction on Kamal’s religious right. This is a more structured and detailed inquiry. Did the Secretary have a legitimate aim, was his decision connected to that aim, could he have employed lesser measures and overall how does this affect Kamal’s rights: Begum v Denbigh High School [2005] EWCA Civ 199? It is difficult to see that the Secretary of State’s decision is justifiable, unless there is an acute housing need in that area and there is absolutely no alternative to building on the site of the mosque. Kamal may apply to the court as he is a ‘victim’ under section 6 of the Human Rights Act 1998.