PLAIR Y2S1 Week 2: L3 Judicial Review & L4 JR Grounds: Illegality

What is judicial review (Scotland) and where does the power come from?

• A power of the COURT OF SESSION to supervise 'administrative bodies' that exceed their powers.

• It is triggered in principle whenever it is claimed that an administrative body has EXCEEDED ITS POWERS.

• Unlike STATUTORY APPEALS (available only where Parliament has made specific provision), JR is simply ASSERTED by the court itself: an INHERENT and very long-standing power.

• JR is about the LEGALITY of the decision, not an appeal on the MERITS.

Judicial review and the constitution: what are the courts' two roles?

• Courts protect INDIVIDUALS (and companies, businesses, sometimes public bodies) from UNLAWFUL activity by public authorities, AND

• uphold the LAWFUL acts of authorities implementing powers conferred by statute.

• Sensitivity: JR often means striking down decisions of executive bodies, which are often democratically elected and accountable to the electorate. Linked: the rule of law, parliamentary sovereignty and COMITY (see Endicott's 'core' of administrative law in Week 1).

Human rights and JR before and after the HRA 1998; what did AXA add?

PRE-INCORPORATION:

• Courts would not have regard to the Convention even in cases of statutory ambiguity (Scots law was brought into line with the English approach only shortly before incorporation).

• But 'FUNDAMENTAL RIGHTS' secured in the COMMON LAW could be used for similar interpretative effect. AXA: the Scottish Parliament is bound not only by the limit in the Scotland Act 1998 (it cannot legislate in breach of Convention rights) but might also be subject to challenge for interference with COMMON LAW FUNDAMENTAL RIGHTS.

Are Scots and English judicial review distinct? What are the four points of comparison?

1. BASIS:( supervisory jurisdiction of the Court of Session)

2. GROUNDS:The grounds themselves (CCSU) are broadly the same

3. TITLE AND INTEREST / STANDING (see AXA): standing test, time limit

4. REMEDIES: limited in Scotland, and JR is not a merits appeal (different from English law)

Parties to a judicial review; which court hears it?

Parties: the PETITIONER and the RESPONDENT.

Heard: in the OUTER HOUSE of the Court of Session (procedure in Rule 58 of the Rules of the Court of Session). The court lays out the test:

If a statutory instrument or delegated legislation of a local authority or other body fails it, the court may intervene. ALTERNATIVE STATUTORY REMEDIES: Morrison v South Aberdeenshire Licensing Board [2010] CSOH 66 (an available statutory route can block JR).

Scope (jurisdictional): the 'West' test (tripartite relationship)

JR jurisdiction involves THREE parties (West v SoS for Scotland 1992 SC 385, 413, Lord Hope):

1. The body that has allegedly MISUSED the power (the person or body to whom the power has been delegated or entrusted).

2. The body or authority that GRANTED it the power.

3. The party the power is meant to BENEFIT or affects.

If there is such a tri-partite relationship, the supervisory jurisdiction is appropriate.

Applying the West test: local authorities, the Scottish Parliament, clubs

• LOCAL AUTHORITIES and the SCOTTISH PARLIAMENT: power derives from STATUTE, so they must work within its scope (Whaley v Lord Watson of Invergowrie 2000 SC 340, Lord President Rodger: the Parliament is 'a body created by statute' like any other statutory body).

• CLUBS: a tripartite relationship exists where members entrust the club council with decision-making power over members' conduct (Crocket v Tantallon Golf Club 2005 SLT 663).

• Non-statutory bodies with a public function: R v Panel on Take-overs, ex p Datafin [1987] QB 815 (English authority).

Scope (territorial): when does a Scottish court have JR jurisdiction?

Tehrani v SSHD [2006] UKHL 47 (Lord Nicholls [23]): jurisdiction cannot depend on where the decision happened to be made. A SUFFICIENT CONNECTION with Scotland exists where:

1. the petitioner was RESIDENT in Scotland when the determinations were made;

2. the harmful EFFECTS were liable to be felt in Scotland;

3. the determinations were made under a statutory jurisdiction extending throughout the UK. Taken together, these mean the supervisory jurisdiction can be exercised.

Review of delegated legislation: the characteristics

• Courts take a NARROW view of rules relying only on an IMPLIED power.

• Courts robustly review a statutory instrument even if it was approved by Parliament (affirmative or negative procedure).

• But courts may be MORE SPARING in finding IRRATIONALITY where it was approved by Parliament itself (constitutional relationship).

• PARTIAL invalidity is legitimate: if the rule-maker would still have wanted the remaining rules, only the invalid part is struck down. If that cannot be assumed, strike down the WHOLE.

• Validity may also be challenged as a DEFENCE to a criminal prosecution under the instrument (collateral challenge: no one should be prosecuted under invalid rules; see Boddington, Week 1).

Standing: what is it and what was the position before AXA?

STANDING = who may bring an application for JR.

PRE-AXA the test was TITLE AND INTEREST:

• TITLE to sue: a party to some legal relationship which gives some right which the defender infringes or denies (D & J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7). In practice any member of the public had title where the duty was owed to the public (Scottish Old People's Welfare Council 1987 SLT 179, Lord Clyde).

• INTEREST to sue: must be material or sufficient, a real issue (not hypothetical), depending on the circumstances.

Standing after AXA: the test

AXA General Insurance v Lord Advocate [2011] UKSC 46: the title and interest requirements NO LONGER APPLY.

• Standing is now 'SUFFICIENT INTEREST' (codified in s.27B(2)(a) Court of Session Act 1988). Lord Hope: the essence is 'DIRECTLY AFFECTED' (Rule 58.8(2)). Distinguish the mere BUSYBODY from a person affected by, or having a reasonable concern in, the matter.

• JR is not brought to vindicate a right of the applicant but to ask the court to SUPERVISE the public authority. Sufficient interest depends on CONTEXT and what best serves the purposes of JR.

Public interest interventions

Rules of the Court of Session, Rules 58.17-58.20: a third party may intervene on a 'MATTER OF PUBLIC INTEREST'. The court considers:

1. RELEVANCE

2. ASSISTANCE (to the court)

3. UNDUE DELAY See Sustainable Shetland v Scottish Ministers [2014] CSIH 60.

Permission: what does s.27B Court of Session Act 1988 require?

No JR proceedings may be taken unless the Court grants PERMISSION. It may do so only if satisfied that:

(a) the applicant has a SUFFICIENT INTEREST in the subject matter, and

(b) the application has a REAL PROSPECT OF SUCCESS. Petition of Greenpeace [2020] CSOH 88: permission refused because an ALTERNATIVE to the supervisory jurisdiction was available.

JR is a last resort: it is permissible only where other options have been exhausted.

Time limits for JR: s.27A Court of Session Act 1988

An application must be made before the end of:

(a) the period of THREE MONTHS beginning with the date the grounds first arise, or

(b) such longer period as the Court considers EQUITABLE in all the circumstances.

JR is meant to give speedy consideration: litigants should lose no time (Watt v SoS for Scotland, Lord Weir). Related doctrines: MORA, TACITURNITY and ACQUIESCENCE (Uprichard v Fife Council [2000] SCLR 949; Somerville v Scottish Ministers [2007] SLT 96).

Remedies in Scottish JR

LIMITED, and not a merits appeal. Civil law remedies:

• REDUCTION (most common): sets the decision aside.

• DECLARATOR

• INTERDICT / SUSPENSION

• SPECIFIC IMPLEMENT • Payment of DAMAGES Specific remedies are also available under the HRA 1998 and the Scotland Act 1998. Added: Scottish names differ from English ones: reduction = quashing order; interdict = prohibiting order; specific implement = mandatory order.

Costs in JR and protective expenses orders

GENERAL RULE (civil cases): the losing party pays the winning party's legal expenses (as well as their own).

In PUBLIC INTEREST cases the court may grant a PROTECTIVE EXPENSES ORDER where:

• the issues are of general public importance;

• it is in the public interest to resolve them;

• the applicant has no private interest in the outcome;

• having regard to the financial resources of the parties;

• the applicant would discontinue the proceedings otherwise. Source: R (Corner House Research) v SoS Trade & Industry [2005] 1 WLR 2600 [74], applied in McGinty v Scottish Ministers 2010 CSOH 5.

AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46

Issue:

• Who has standing to bring a JR, and can an Act of the Scottish Parliament be reviewed?

Facts:

• Insurers challenged an Act of the Scottish Parliament (on asbestos-related conditions).

• They argued it breached their rights and was open to review on common law grounds.

Held:

• The title and interest test was replaced by 'directly affected' / sufficient interest, and the Scottish Parliament may be subject to challenge for interference with common law fundamental rights.

• The insurers' challenge failed on the merits

West v Secretary of State for Scotland 1992 SC 385

Issue: What is the scope of the Court of Session's supervisory jurisdiction? Facts: Not in your notes. Held (Lord Hope): supervisory jurisdiction is appropriate where there is a TRIPARTITE relationship: the delegate, the delegator, and the persons for whose benefit the power is exercised. Added: West was a prison officer employed under a contract, and the court held that a purely contractual employment matter fell outside JR (check the report).

Tehrani v Secretary of State for the Home Department [2006] UKHL 47

Issue: Can a Scottish court hear a JR of a UK-wide decision that was made elsewhere? Facts: The petitioner lived in Scotland; decisions about him were made for a UK-wide jurisdiction. Held (Lord Nicholls): There was a SUFFICIENT CONNECTION with Scotland, so the supervisory jurisdiction could be exercised (residence, harm felt in Scotland, UK-wide statutory jurisdiction). Added: notes give only the reasoning; check the facts.

Crocket v Tantallon Golf Club 2005 SLT 663

Issue: Can a private club's decisions be judicially reviewed? Facts: Decisions taken by the club council about a member's conduct. Held: The decisions were open to the court's supervisory jurisdiction, because the club members entrusted the council with decision-making power over any member whose conduct was in issue (a TRIPARTITE relationship). Added: notes give only the reasoning.

Whaley v Lord Watson of Invergowrie 2000 SC 340

Issue: Can the courts review the Scottish Parliament? Facts: Not in your notes. Held (Lord President Rodger): the Parliament is a body created by statute which derives its powers from statute. Like any other statutory body it must work within the scope of its powers. Added: I did not look up the facts (this case concerned a challenge to the Parliament's procedures on fox-hunting legislation); check.

Petition of Greenpeace [2020] CSOH 88: permission refused

Issue: Can JR proceed where an alternative remedy exists? Facts: Not in your notes. Held: Permission for JR was REFUSED because an alternative to the supervisory jurisdiction was available. JR is only permissible where all other options have been exhausted.

Morrison v South Aberdeenshire Licensing Board [2010] CSOH 66

Issue: Does an alternative statutory remedy exclude JR? Facts: Not in your notes. Held: Cited for the rule that alternative statutory remedies are relevant to whether JR should be allowed. Note: your notes give only the citation. Check the facts in the slides or the report.

CCSU as the starting point: why is it important?

CCSU v Minister for the Civil Service [1985] AC 374 (Lord Diplock).

• Clear modern restating of the grounds for JR

• Foundational for understanding the control of discretionary power and later doctrines: relevance, proportionality and legitimate expectation.

• It held the use of a ROYAL PREROGATIVE power was reviewable: the courts look at the SUBJECT MATTER of the power, not just where it came from.

Lord Diplock's classification of the grounds of review

1. ILLEGALITY: mistake of law, doing something it has no power to do, or exercising power unlawfully.

2. IRRATIONALITY: an unreasonable decision (Wednesbury unreasonableness: so unreasonable no sensible authority could make it).

3. PROCEDURAL IMPROPRIETY: failing to follow relevant procedures, or showing bias (natural justice: impartiality and hearing both sides; fairness).

4. Developing further: LEGITIMATE EXPECTATION (a public authority will act in a certain way, e.g. consulting before changing a long-standing practice) and

5. PROPORTIONALITY (has the decision gone further than needed?).

Illegality: Lord Diplock's definition

'The decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.' Decisions must be taken in accordance with the law, statutory OR common law. Illegality = the control of ABUSE OF POWER. A decision may be set aside if the body:

• misinterprets the law,

• uses a power for a purpose it was not designed for, or

• does something it has no power to do (ULTRA VIRES). Also unlawful if so unfair that it amounts to an abuse of power, or if secondary legislation is inconsistent with fundamental common law principles.

Illegality 'writ large' vs 'writ small'

WRIT LARGE (broad): acting outside powers, misunderstanding the law, statutory interpretation. Examples: McColl v Strathclyde RC; ex p Simms (principle of legality).

WRIT SMALL (the specific heads of illegality in a decision-maker's use of a discretion):

i. IMPROPER PURPOSES

ii. IRRELEVANT / RELEVANT CONSIDERATIONS

iii. UNLAWFUL FETTERING of discretion

iv. UNLAWFUL DELEGATION (the non-delegation principle) All are forms of one constitutional problem: a body that has the power but uses it unlawfully.

Improper purposes

• Parliament confers discretionary powers for a given purpose. It is UNLAWFUL to exercise them for WHOLLY or PREDOMINANTLY extraneous purposes.

• The purposes may be clearly stated in the statute; if not, the courts INFER the uses Parliament had in mind.

Cases: Padfield v Minister of Agriculture [1968] AC 997 (a power must be used only for the purpose for which it was conferred); Congreve v Home Office [1976] QB 629.

Relevant and irrelevant considerations: the taxonomy

• A power is not lawfully exercised if the decision-maker takes into account IRRELEVANT considerations, or fails to take into account RELEVANT ones.

• MANDATORY (must consider, express or implied by statute): e.g. Hotak [2015] UKSC 30; statutory examples like Climate Change Act 2008 s.10(2).

• IRRELEVANT (must not consider): e.g. Wright [2019] UKSC 53; Evans [2011] EWHC 1146 (Admin).

• PERMISSIBLE (may consider, no duty to): rationality review only. 'Obviously material' factors are treated as mandatory, or it is irrational to ignore them.

: Leading case: R v SSHD, ex p Venables [1998] AC 407.

Unlawful fettering of discretion

• A public body with a statutory power must NOT prevent itself from properly considering how to exercise it. A discretion must genuinely be exercised when called upon, not replaced by a blanket rule.

• BUT a body MAY adopt a POLICY explaining how it will ORDINARILY exercise the discretion (P Reid, Public Law ¶15-07), so long as it remains willing to consider exceptions.

• The rule: 'anyone who has to exercise a statutory discretion must not shut his ears to an application' (Lord Reid, British Oxygen).

• Forms (ex p Brent LBC [1982] QB 593): an over-rigid policy; over-rigidly applying a policy that is not itself over-rigid; contracting so as to limit future discretion. Also fettering by PREDETERMINATION.

Unlawful delegation (non-delegation principle) and the Carltona exception

When power is granted to a given decision-maker, the presumption is that it must be exercised by, and ONLY by, that decision-maker (Elliott & Thomas p.566).

Reasons: PARLIAMENTARY INTENTION; INSTITUTIONAL QUALIFICATIONS; ACCOUNTABILITY. EXCEPTION: Carltona Ltd v Commissioners of Works [1943] 2 All ER 560: ministers' functions are so multifarious that no minister could personally attend to them. Ministers are responsible to Parliament and will see that important duties are committed to experienced OFFICIALS, so an official's act is the minister's act.

Why does illegality review matter constitutionally?

Illegality control:

• UPHOLDS PARLIAMENTARY SOVEREIGNTY (bodies stay within the limits Parliament conferred).

• GIVES EFFECT TO THE RULE OF LAW.

• Respects COMITY (courts police the LEGAL limits, not the merits).

Problem-question template: illegality

1. What POWER did the body use, and what did the statute (or common law) allow?

2. Did it act OUTSIDE its power, or misunderstand the law? (ultra vires; McColl)

3. Was the power used for a PROPER PURPOSE? (Padfield; Congreve)

4. Were RELEVANT considerations taken into account and IRRELEVANT ones ignored? (Venables)

5. Did it FETTER its discretion by a rigid policy or predetermination? (British Oxygen; Brent)

6. Did it improperly DELEGATE? (Carltona exception?

7. Any common law RIGHT or legality principle in play? (Simms)

8. Remedy: reduction; check standing, permission and the time limit (s.27A, s.27B). Conclude on whether the decision is unlawful.

CCSU v Minister for the Civil Service [1985] AC 374 (GCHQ)

Issue: Could the use of a prerogative power to ban trade union membership at GCHQ be reviewed, and what are the grounds of review? Facts: GCHQ is a sensitive UK intelligence organisation. Its employees had long been represented by trade unions, with an established practice of consultation. The government banned union membership (under the royal prerogative) WITHOUT consulting the unions. The unions sought JR, arguing a legitimate expectation of consultation. Held: The House of Lords accepted the claim was JUSTICIABLE (prerogative powers are reviewable by looking at the subject matter of the power), but national security justified dispensing with consultation in this case. Lord Diplock set out the three grounds: illegality, irrationality, procedural impropriety.

McColl v Strathclyde Regional Council 1983 SLT 179

Issue: Could a local authority add fluoride to the water supply under its statutory duty to provide 'wholesome' water? Facts: The council was required by statute to provide 'wholesome water'. With the health board it added fluoride to the supply to improve dental health. Held: The Court of Session held 'wholesome' meant 'free from contamination and pleasant to drink'. The authority was NOT EMPOWERED to add fluoride, even to improve dental health. The decision was ultra vires (illegality).

R v SSHD, ex p Simms [2000] 2 AC 115

Issue: Can prison rules restrict a prisoner's contact with a journalist, given the common law right to free expression? Facts: Prison rules applied by the Home Office prevented a prisoner meeting with a journalist. Held: The rules were inconsistent with the COMMON LAW protection of free expression and the PRINCIPLE OF LEGALITY. Note: today this would most likely be reviewed by asking whether the body has complied with its duty under the Human Rights Act (lectures 11-13).

Congreve v Home Office [1976] QB 629

Issue: Could the Home Office revoke a valid licence unless the holder paid a fee Parliament had not authorised? Facts: The TV licence cost rose from £12 to £18. The Home Office contacted those who had bought a valid licence at the old price and demanded the extra £6, threatening revocation if unpaid. Congreve had a valid, fully paid £12 licence and challenged the demand and revocation. Held: The proposed revocation was ILLEGAL. It was tainted by the illegal demand. It is an improper exercise of a discretionary power to use a threat to exercise that power to extract money Parliament gave the executive no mandate to demand (improper purpose).

Padfield v Minister of Agriculture [1968] AC 997

Issue: Can a minister use his discretion in a way that frustrates the purpose of the statute? Facts: Not in your notes. Held: A power must be used ONLY for the purpose for which it was conferred (improper purposes). Added: the minister refused to refer a milk producers' complaint to the statutory committee, and the Lords held that this frustrated the Act's policy (check the report).

R v SSHD, ex p Venables [1998] AC 407

Issue: Could the Home Secretary take public petitions and newspaper campaigns into account when setting the minimum detention period for young offenders? Facts: The Home Secretary had power under s.35 Criminal Justice Act 1991 to set the minimum period for retribution and deterrence. He considered representations from the public (petitions, correspondence) and a national newspaper campaign. Held: These were IRRELEVANT considerations, because the function was equivalent to a judge's. The Home Secretary 'misdirected himself by giving weight to public protestations', which was a material defect and made his decisions UNLAWFUL.

British Oxygen Co Ltd v Board of Trade [1971] AC 610

Issue: May a public body adopt a general policy when exercising a discretion? Facts: Not in your notes. Added: the Board had a policy of refusing grants for items costing under £25, and refused a grant for oxygen cylinders. Held: A lawful policy is allowed, but the body must remain willing to consider EXCEPTIONS. Lord Reid: 'anyone who has to exercise a statutory discretion must not shut his ears to an application'. The authority must not refuse to listen at all. Now the rule against fettering discretion.

Carltona Ltd v Commissioners of Works [1943] 2 All ER 560

Issue: May a minister's power be exercised by an official? Facts: Not in your notes. Added: an official of the Commissioners of Works exercised the power to requisition Carltona's factory during the war. Held: Ministers cannot possibly attend to their multifarious functions personally. Because ministers are responsible to Parliament, they may commit important duties to experienced officials. The official's act is the minister's act.

R v Secretary of State for the Environment, ex p Brent LBC [1982] QB 593

Issue: When does a body unlawfully fetter its discretion? Facts: Not in your notes. Added: the Secretary of State cut councils' grants under a scheme and would not properly consider their representations. Held: Listed in your notes as the source of the forms of fettering: an over-rigid policy; over-rigid application of a policy that is not itself over-rigid; contracting in a way that limits how discretion is exercised in future. Also unlawful PREDETERMINATION (check the facts).