Chapter 20 Answer guidance

Judicial Review: Putting it all Together in Problem Answers

Have a go at one of the problem questions set out in Chapters 16, 17, and 18 with the aid of the checklists from Chapter 20.

Chapter 16

The imaginary Mobile Phone Mast Act 2003 gives power to a local council to grant applications for mobile phone masts and the attach conditions ‘if it thinks fit’. Mobile L has made a successful application to Hill Town Council to erect a mobile phone mast outside Fairview Primary School on condition that it builds a new sports hall for the school. Mobile L objects to this condition being added on the basis that is has no obligation towards the school.

Hill Town Council receives a letter from Fairview Primary School, and a petition signed by all of the parents and teachers at the school. They argue that it is a potential health hazard to place a mast so near a school and that the children’s health should be paramount in such a decision. The school produces a report from an independent group of scientists about the cancer risk to children from such masts. The council refuses to consider the report. It simply says that it has a policy of approving such applications and it must follow its policy for the sake of consistency. The council also states that the mast is at least 5 metres from the school and is perfectly safe. In fact, the mast is only 3 metres from the school. The council has also received guidance from the Secretary of State for the Environment that, for commercial reasons, all mobile phone mast applications should be accepted. The Secretary of State has written to the council informing it that, if the council wants to receive funds in the next round of spending by central government, it must encourage commercial enterprises. The council leaders know that losing central government funds would have serious financial consequences for its budget.

Advise Fairview Primary School and the parents of the chances of successfully challenging the decision on a claim for judicial review. Also consider whether Mobile L can object to the imposition of the condition that it builds a new sports hall for the school.

What is the nature of Hill Town Council’s power? Is it mandatory or discretionary? What language are you relying on to guide your answer?
Does it matter that Hill Town Council refused to consider the report about the cancer risk to children?
What do you remember about the adoption of policies? Is it OK for decision-makers to adopt rigid policies or must they be willing to consider exceptional cases? Think back to what you learned about ‘fettering discretion’.
The council seems to have made a mistake about how far the mast is from the school. Does this matter? What type of mistake is this and would the court review it?
What is the significance of the guidance from the Secretary of State? Is it OK if the council leaders placed a lot of weight on that guidance in making their decision about Mobile L’s application? What do you remember about the relevance of a local authorities’ fiduciary duties and the example of Bromley London Borough Council v Greater London Council?
When thinking about the imposition of the condition about the new sports hall, think about why the council might have imposed this condition.

Chapter 17

Sonia, aged 18, is a sixth-form student at Avenue School, who is studying A-level politics. The school publishes an in-house newspaper for its staff and students. Sonia writes an article for the newspaper arguing that the Americans should invade Iran if it continues with its nuclear programme. The editor of the newspaper, who is the head of the politics department, initially accepts the article. He tells Sonia that it is very well written and that is he going to enter it for the ‘UK National Best Student Journalist of the Year’ competition. However, the head teacher refuses to approve its publication and he writes to Sonia informing her that the article is unsuitable. He explains that her views are controversial and provocative. Given that there are many students from different religious and cultural traditions at Avenue School, it will cause great offence and may lead to demonstrations, which will cause disruption. Sonia accepts that her views are controversial, but says that she is prepared to add a paragraph in bold letters at the top of the article stating that the views expressed are hers alone and in no way reflect the views of the school, its management, or staff. The head teacher refuses to reconsider his decision not to publish. Sonia would like to make a claim for judicial review. She wants to argue that the school has violated her rights under Article 10 ECHR. The Campaign for Free Speech has also heard about the decision and wants to take legal action against Avenue School.

Advise Sonia and the Campaign for Free Speech of their chances of success. Pay particular attention to the way in which the court will decide whether there are any justifications of interfering with the right to freedom of expression. You will find the discussion on proportionality particularly helpful. Also consider the issue of standing and advise whether Sonia and the Campaign for Free Speech would be allowed to make the claim.

What is the significance of the possible violation of Sonia’s rights under Article 10 ECHR? What do you know about how the courts determine when to apply the irrationality or proportionality tests?
If the court adopts the proportionality test in Sonia’s case, would it be more likely that she would be successful in her judicial review claim than if they adopted the irrationality test? Ensure that you understand why that is. If you are stuck, look back at the differences between the tests and what more the proportionality test requires.
How might the fact that Sonia was ‘prepared to add a paragraph in bold letters at the top of the article stating that the views expressed are hers alone’ be relevant?
Does it matter that there are ‘many students from different religious and cultural traditions at Avenue School’ and that the Head Teacher thinks it ‘will cause great offence and may lead to demonstrations, which will cause disruption’? How might this be relevant to the proportionality exercise? Think about what you learned in relation to a ‘legitimate aim’.
When thinking about standing, remind yourself of the test in judicial review and for when there are human rights issues at stake. What does the test require Sonia and the Campaign for Free Speech to show and does it matter if the Campaign for Free Speech has not been directly affected by the School’s decision?

Chapter 18

Davenport School for the Gifted is run by Hampstead Local Council in accordance with its powers under the Imaginary Gifted Schools Act 2006. The school can admit or exclude students ‘as it thinks fit’. The school has a policy of expelling students after they have had two written warnings for misconduct. Marina, aged 16, a gifted pupil, has been accused of misbehaviour after swearing at her English teacher, Miss January, during an argument about her grade for an English essay. Because she now has two written warnings, Marina is asked to appear before a disciplinary tribunal to decide whether or not she should be allowed to remain at the school. Marina is not allowed to cross-examine Miss January, because the teacher would find it too upsetting and she is prohibited from calling the only witness, another student, named Melissa. She is also not allowed to have a lawyer present. When Marina gives evidence, she admits to raising her voice, but denies swearing. She is also produces medical evidence that she is taking medication for clinical depression that has the side effect of causing mood swings and which may cause her to act out of character. She apologises to Miss January if she caused offence. Miss January remains with the disciplinary committee when it retires to consider its decision about Marina. The committee decides that it must follow the school policy and expel Marina, and refuses to give any further reasons for its decision.

Advise Marina, who would like to make a claim for judicial review against Davenport School.

If you are unclear on the rules of natural justice, revise pp. 577–579.
Remember, one justification for the rules of natural justice is that they encourage participation in decision-making and so those who have an interest in decisions have an opportunity to participate. What decision does Marina participate in and how might the rules of natural justice help her, given the way her participation was handled?
Does it seem like the disciplinary tribunal considered the various procedural safeguards in order to conduct the proceedings fairly?
If Marina was not allowed to cross-examine Miss January or to call the only witness, to what extent was she given the opportunity to rebut the allegations against her? Can you draw any help from the case of Shoesmith? How does the case of ex p St Germain (No 2) help?
Remember to consider counter arguments. For example, how might the disciplinary committee use the case of Bushell to defend the fairness of its proceedings? With these arguments in mind, try to analyse the differences between ex p St Germain (No 2) and Bushell. Which case seems to be closer in kind to Marina’s case?
Will there be a breach of natural justice if the claimant is not allowed to call witnesses?
What did you learn from Enderby Town Football Club Ltd and ex p Tarrant about the requirements for legal representation? Compare the facts of those cases with the facts of this problem to work out what the rules of natural justice might require in Marina’s case.
What do you understand to be the relevance of Article 6 ECHR and have there been any cases to suggest that Article 6 requires that legal representation be allowed at a disciplinary tribunal?
Does it matter that the disciplinary committee ‘refuses to give any further reasons for its decision’? Is there a general duty to give reasons? When have reasons been required? Don’t forget to think about the wider facts here. For example, would it matter if the decision was made simply because the committee decided to rigidly apply the school policy? Would reasons help to ease your concerns about that?
The facts tell us that ‘Miss January remains with the disciplinary committee when it retires to consider its decision about Marina’ – is this a problem? Think through the rule against bias and pay particular attention to the test in Porter v Magill.