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Grounds of Judicial Review

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    CHAPTER – 1 GROUNDS OF JUDICIAL REVIEW INTRODUCTION “Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs – that is to say misuses of public power. ” * Sedley. J1 The ultimate (though not necessarily the most appropriate) means by which public law disputes are resolved is by bringing the matter before the Administrative Court using a claim for judicial review. Broadly, in order to succeed, the claimant (the person or body bringing the case) will need to show that either: The person or body is under a legal duty to act or make a decision in a certain way and is unlawfully refusing or failing to do so; or * A decision or action that has been taken is ‘beyond the powers’ (in Latin, ‘ultra vires’) of the person or body responsible for it. Only then, will a public law wrong have occurred. Generally, it does not matter if the judge, faced with the same decision, would have decided the merits of the case differently.

    This reflects the fact that judicial review involves ‘supervision’ of administrative decision making – did the public body act in a lawful manner in deciding the way that it did. There are three categories of public law wrongs which are commonly used and which will be considered in turn2: (a) Illegality; (b) Irrationality and proportionality; and. (c) Fairness or Procedural impropriety In R v Somerset CC ex parte Dixon [COD] 1997 323, QBD 2Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, by Lord Diplock

    The first two grounds are known as substantive grounds of judicial review because they relate to the substance of the disputed decision. Procedural impropriety is a procedural ground because it is aimed at the decision-making procedure rather than the content of the decision itself. The three grounds are mere indications: the same set of facts may give rise to two or all three grounds for judicial review. The approach of the Administrative Court

    The approach of the courts to public law disputes, and the development of special procedures for handling judicial review claims have a number of important practical consequences. For example: * There are special protections in the procedure intended to ensure administrative decision making is not paralysed by the prospect of claims, or the way they are pursued. These are manifested in the time limit rules, and in the requirement to seek permission; * Judicial review claims proceed, as far as possible, on the basis of agreed facts.

    The rules do not easily accommodate cases where the facts are in dispute (orders for disclosure are rare, oral evidence rarer); * Both parties are expected to co-operate with the court, and take a candid, cards on the table approach to the litigation; * The court will sometimes act proactively, bringing issues into play which have not been raised by either party; * Depending on the nature of the decision being challenged, there may be a degree of deference to the decision maker, given her/his democratic mandate, or special expertise; * The court has a discretion to refuse permission for judicial review, or a remedy, even when a public law wrong has been committed; and * Decisions will often be remitted back to the decision maker with guidance from the court, rather than quashed. Illegality Decision-makers must understand the law that regulates them. If they fail to follow the law properly, their decision, action or failure to act will be “illegal”.

    Thus, an action or decision may be illegal on the basis that the public body has no power to take that action or decision, or has acted beyond its powers. This arises, for example when the legislation relating to a public body does not include the necessary power or has precise limits on when the power can be used. Public bodies acting illegally in this way can be described as acting “ultra vires” (which means beyond or outside their powers). Sometimes legislation allows the exercise of a wide and seemingly unrestrained discretion by the public body, or provides that a duty should be discharged in certain circumstances, but does not prescribe a particular process for determining whether those circumstances arise in an individual case.

    Here, illegality can occur where the action, failure to act or decision in question violates the public law principles set down by the courts for processes of this kind. These principles require public bodies to: * Take into account relevant information (and to assign the appropriate amount of weight to such information), and to ignore irrelevant information; * Ask the right questions and to undertake sufficient enquiry, for example by addressing the right issue, and taking reasonable steps to obtain the information on which a proper decision can be based; * Not to delegate a decision for which they are exclusively responsible, and that therefore only they can make – allowing another person to take a decision for them, means that they are giving their power away and fail to be properly accountable. Ensure that they have not fettered their discretion by for example applying a very rigid policy as if it were legislation. * Comply with the Human Rights Act by acting compatibly with the Convention, so far as it is possible for them to do so. Bromley Council v Greater London Council3. [Judges must not appear to be biased or impartial] The Labour-controlled Greater London Council implemented a “Fares Fair” policy in which public transport fares were subsidised from the rates. A Conservative-controlled council sought certiorari to quash this decision, claiming that the GLC had acted ultra vires. Held: Lord Denning MR said all three members of the Court were interested on all sides. 3. (1983)

    All were fare-paying passengers on the tubes and buses, benefiting from the reduction (or in his own case, from the free travel offered to senior citizens), and all were Greater London ratepayers having to pay the increase in rates. However, neither side had made an objection to their hearing the case. Any Court of Appeal would have been in the same position. Carltona Ltd v. Commissioners of Works. 4 The Carltona doctrine (or Carltona principle) expresses the idea that, in United Kingdom law, the acts of government departmental officials are synonymous with the actions of the minister in charge of that department. Faced with the requisition of their factory by the war-time government, the factory owners raised a judicial review action to challenge the legality of the requisition order.

    The order had been made under the auspices of the Defence (General) Regulations 1939, which authorised the Commissioners of Works to requisition such land as they deemed necessary in the national interest. The Regulations specified that the Commissioner’s powers were exercisable by, inter alia the Minister of Works and Planning. The factory owners sought to argue that the requisition was invalid because the order had not in fact been signed by the minister, but by an official within the Ministry of Works and Planning. It should be emphasised that the essence of the Carltona doctrine therefore lies in the elision of the identity of departmental officials with the relevant Minister.

    It is emphatically not the case that the Minister has delegated his decision-making power to a subordinate and therefore the doctrine achieves consistency with the principle that Parliament’s delagetees have, unless specifically provided by statute, no power to delegate (delegatus non potest delegare). R v Secretary of State for the Home Department ex parte Fire Brigades Union5 House of Lords case concerning the awarding of compensation under the Criminal Injuries 4. [1943] 2 All ER 560 (CA) 5. [1995] 2 AC 513 Compensation Scheme. The case is considered significant in constitutional terms for its ruling on the extent of Ministerial prerogative powers. The Criminal Injuries Compensation Scheme was set up under Ministerial prerogative powers to provide ex gratia compensation payments to victims of crime.

    Compensation was assessed on an individual basis by the Criminal Injuries Compensation Board. The Criminal Justice Act 1988 was to introduce a statutory scheme for criminal injuries compensation with several sections coming into law (by statutory instrument) on a date of the Home Secretary’s choosing. However, the government rather than implementing this legislation amended a non-statutory tariff based scheme under the royal prerogative. This tariff based scheme would save money by awarding less compensation. A trade Union sought judicial review of the decision of the Home Secretary not to bring into force the compensation scheme in the 1988 Act. Irrationality and proportionality

    The courts may also intervene to quash a decision if they consider it to be so demonstrably unreasonable as to constitute ‘irrationality’ or ‘perversity’ on the part of the decision maker. The benchmark decision on this principle of judicial review was made as long ago as 1948, in the Wednesbury case6: “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… ” This threshold is extremely difficult to meet, which is why the Wednesbury ground is usually argued alongside other grounds, rather than on its own.

    The onus is also on the claimant to establish irrationality or perversity. However, the threshold will be a lower one, that of proportionality, when European Union law or Human Rights Act breaches are involved. In general terms, the concept of 6. Lord Greene Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, HL. proportionality requires a balancing exercise between, on the one hand, the general interests of the community and the legitimate aims of the state and, on the other, the protection of the individual’s rights and interests. One approach is to ask: * Is the state’s objective legitimate? * Is the measure suitable for achieving it? Is it necessary, in the sense of being the least intrusive means of achieving the aim? and * Does the end justify the means overall? The onus also lies upon the State to show that these conditions can be met. Strictland v Hayes Borough Council7 A by-law prohibiting profane or obscene songs contained the words “shall conduct himself in a proper, civil and decorous manner at all times” These words fell in the same class and are uncertain as to the standard required. The by-law also purported to prohibit, the use of obscene language ‘in any street or public place or on land adjacent thereto’, the last words ‘on land adjacent thereto’ were beyond the power of the county council.

    Lindley LJ said: ‘I have no doubt whatever that those words are bad. But that being so, is the rest of the bylaw bad? There is plenty of authority for saying that if a bylaw can be divided, one part may be rejected as bad while the rest may be held to be good. In the present case there is, I think, no difficulty whatever in severing the bylaw. If the words “on any land adjacent thereto” are omitted, the rest of the bylaw reads quite grammatically. The bylaw is, therefore, distinctly severable. ’ The by-law was held to be uncertain and the court held the whole byelaw invalid. Regina -v- Derbyshire County Council, ex parte Time;8 7. (1896) 8. CA 1990

    The court upheld the decision of Swinton Thomas J to grant certiorari to quash the decision of a local authority to move a child to prospective adopters without informing the child’s parents and in an attempt to prevent them making an application to the court for the revocation of a freeing order previously made in relation to the child. Fairness or Procedural impropriety Fairness demands that a public body should never act so unfairly that it amounts to an abuse of power. This means that: 1. If there are express procedures laid down by legislation that it must follow in order to reach a decision, it must follow them. 2. It must not breach the rules of natural justice. One of the key issues here is the rule against bias, which requires the public body to be impartial and to be seen to be so.

    For example, the public body must not allow decisions to be made by people who have strongly held views which may cause them to reach a decision based on prejudice, nor allow decisions to be made by people who have a financial interest in the decision. There must also be a “fair hearing” before a decision is reached, although this does not always literally mean an oral hearing. Basically, a person is entitled to know the case against them, and must have the opportunity to put their case properly. Any other requirements above and beyond this will depend on the seriousness of the issue, for example, if someone’s livelihood or liberty is at stake.

    Examples of unfairness could include the following: * Failing to tell the individual what the case was against them, or taking into account evidence or factors which s/he was not aware of * Failing to allow the individual to put their case forward * Failing to give the individual the facilities for putting their case forward properly * Refusing to hear evidence which might have led to a different decision * Denying access to relevant documents * Holding a hearing in the absence of the individual when they had a good reason for not being able to attend * Failing to notify the individual of the time and place of the hearing that would lead to the decision being taken Failing to consult those who the public body had a duty to consult, or those who had a “legitimate expectation” that they would be consulted before the decision was made, perhaps because they had been consulted in the past or because it would seem obvious that someone has an interest in a matter and should be consulted. A legitimate expectation may also arise where a public body has made a promise of a benefit, and it then goes back on this promise. In this instance the courts have said that it could amount to an abuse of power to take such a benefit away. The classic example here is a promise of a “home for life” which was in fact what the key case was all about. A local authority that had promised a resident of a care home that it would remain their home for life, was found to have acted unlawfully by breaching this promise.

    Finally, fairness may also demand that the public body give reasons for their decision. Certain statutory procedures will require this, although there is no specific requirement in law generally. However, more recent cases have suggested that in certain circumstances reasons should be given, and this will often depend on the nature of the decision and how important it is to an individual. Reasons for a decision may be required when the decision-maker is a professional judge, the decision would otherwise appear aberrant (aberrant meaning “to diverge from the normal type”), or where the subject matter is particularly highly regarded, such as a person’s liberty.

    Agricultural Training Board v Aylesbury Mushrooms Ltd 9 In this case, delegated legislation required the Minister of Labour to consult ‘any organisation… appearing to him to be representative of substantial numbers of employers engaging in the activity concerned’. His failure to consult the Mushroom Growers Association, which represented about 85% of all mushroom growers, meant that his order establishing a training board was invalid as against mushroom growers – though it was valid in relation to others affected by the order, such as farmers, since the Minister had consulted the National Farmers’ Union. [Delegated Legislation supervision of the courts – procedural requirements] 9. (1972)

    It was held by providing the statute stated that there must be consultation – there is no requirement otherwise. However, there is no requirement to do any more than ask for the consulted parties’ views – they can be ignored The main rules of Natural Justice (i) Nemo Judex In Causa Sua Potest (no man can be a judge in his own cause), which will be breached where the decision-maker has a direct financial interest or has acted both as prosecutor and judge, or where there is a real danger of bias R v Altrincham JJ ex parte Pennington 10 D supplied short measure of groceries to various schools. The chairman of the bench was a County alderman who sat on the Education Committee.

    It was held by Widgery CJ that although a formal connection between justice and prosecutor need not always disqualify the justice from sitting, justices should always disqualify themselves (or at least invite the parties to object) where they had an active interest in an organisation that was the victim of the alleged offence. Not guilty certiorari (now a quashing order) granted. (ii) Audi Alteram Partem (hear the other side), which requires prior notice to be given of a decision adverse to individual interests together with an opportunity to make representations. Ridge v Baldwin 11 D the watch committee for the police dismissed C who had been acquitted at Crown Court on charges relating to conspiracy and corruption.

    The trial judge intimated C had not given professional and moral leadership to other officers. The decision to dismiss C was void because the watch committee had not observed the principles of natural justice. C had not been charged nor informed of the grounds on which they proposed to proceed and had not been given a proper opportunity to present his defense. C won 10. [1975] DC 11. (1964) HL CHAPTER – 2 Council of Civil Service Unions v. Minister for the Civil Service FACTS OF THE CASE: The Government Communications Headquarters (GCHQ) is a British intelligence agency that provides signals intelligence to the British government and armed forces.

    All the staffs at GCHQ had a long standing right to belong to national trade unions when GCHQ was formed and most of the staff did so. The unions represented at GCHQ were all members of an association of civil service unions and there was an established practice at GCHQ of consultation between the management and the unions about important alterations in the terms and conditions of employment of the staff. Following a spy scandal in 1983, the organisation became known to the public, and the government of Margaret Thatcher decided a year later that employees would not be allowed to join a trade union for national security reasons. The Minister for the Civil Service is a position held ex officio by the Prime Minister.

    This was enforced through an Order in Council, an exercise of the Royal Prerogative. Despite an extensive publicity campaign by trade unions, the government refused to reverse its decision, instead offering affected employees the choice between ? 1,000 and membership of a staff association or dismissal. Those employees dismissed could not rely on an industrial tribunal, as they were not covered by the relevant employment legislation. As such, the Council of Civil Service Unions decided judicial review was the only available route, seeking inter alia a declaration that it was invalid because the minister had acted unfairly in removing their fundamental right to belong to a trade union without consultation.

    The judge granted the application on the ground that the minister ought to have consulted the staff before issuing the instruction. The minister appealed to the court of Appeal contending that – ‘the prerogative powers and instructions given under a delegated power emanating from the prerogative were discretionary and not open to review by the courts’ and – ‘ that the requirements of national security override any duty which the minister otherwise had to consult the staff. ’ The court of Appeal allowed the minister’s appeal on the ground of national security. The appellants appealed to the House of Lords. ISSUES: 1) Whether a power exercised directly under the prerogative was immune from judicial review? ) Whether a person is entitled to invoke judicial review if he has been deprived of legitimate expectation? 3) Whether the government reason of national security is justifiable? JUDGMENT: Glidwell J. found that the employees of GCHQ had some right to consultation and the lack of consultation made the decision invalid. The decision was taken to Court of Appeal. It took a “strongly non- interventionist- stance”, holding that judicial review could not be used to challenge the use of the Royal Prerogative, because it is an executive rather than a judicial right to judge national security requirements. It would be inappropriate for the court to intervene.

    The decision appealed to House of Lords, it was heard by Lord Fraser, Lord Scarman, Lord Diplock, Lord Roskill and Lord Brightman. Judgment was given on 22nd November, 1984. House of Lords chose to overrule the Court of Appeal, holding that the use of the Royal Prerogative was by default subject to judicial review, in a similar fashion to statutory actions. Lord Diplock held that ‘any prerogative power which impacted on the “private rights or legitimate expectations” of people, while Lords Fraser and Brightman held that ‘only powers delegated from the monarch could be subject to judicial review’. But the Appeal failed due to the national security ground.

    The evidence is compelling that the Minister for Civil Service acted without the prior consultation with the unions concerned because she believed, that such process of prior consultation might result in disruption that would pose a threat to the security of the nation. This factor overrode the right the right in public law which the union would otherwise have had, on the facts of this particular case, to be consulted before the instruction of 22nd December1983 was given. The court believed that issue of national security was outside the remit of the courts. The court would prefer to leave the resolution of that question to a case where it must be determined. Appeal dismissed. CHAPTER – 3 PRINCIPAL OF LEGITIMATE EXPETATION In the previous chapter, CCSU1 case was discussed.

    It was observed by Lord Diplock, the principle of legitimate expectation to arise, the decisions of the administrative authority must affect the person by depriving him of some benefit or advantage which either (i) He had in the past been permitted by the decision make 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 and which he has been given an opportunity to commentary or (ii) He has received assurance from the decision maker that they will not be withdrawn without giving him first an opportunity of advancing reason for contending that they should not be withdrawn.

    The procedural part of it relates to a representation that a hearing or other appropriate procedure will be afforded before the decision is made. The substantive part of the principle is that if a representations is made that a benefit a substantive nature will be granted or if the person is already in receipt of the benefit that it will be continued and not be substantially varied, then the same could be enforced. In this case Lord Fracer observed that the civil servants had legitimate expectations that they would be consulted before their trade union membership was withdrawn because prior consultation in the past was the standard practice whenever conditions of service were materially already.

    Lord Diplock even ruled that they had a legitimate expectation that they would continue to enjoy the benefits of the trade union membership, the interest in regard to which was protectable. 1. Council of Civil Service Union V/s. Minister for the Civil Service [1984] 3 All ER 935; (1985) AC 374 (408-409) The principle of a substantive legitimate expectation, i. e. expectation of favourable decision of one kind or another, has been accepted as a part of the English law in several cases. However this doctrine has been rejected by the High Court of Australia and Canada, but it has been favoured in Ireland. The European Court even goes further and permits the court to apply proportionality and go into balancing of the legitimate expectation and the public interest. Development of Doctrine in India

    There are several principles of Administrative Law, which have been evolved by the courts for the purpose of controlling the exercise of power so that it does not lead to arbitrariness or abuse of power. These principles are intended to provide safeguard to the citizens against abuse or misuse of power by the instrumentalities or agencies of the State. One of the latest and important of these principles is the ‘doctrine of legitimate expectation’, which is an outcome of synthesis between the principle of administrative fairness (a component of the principles of natural justice) and the rule of estoppel. The emerged concept of legitimate expectations in administrative law has now gained sufficient importance.

    Legitimate expectation is the latest recruit to the long list of concepts fashioned by the Courts for the review of administrative actions. The Legitimate Action would arise when there is an express promise given by a public authority that there is a regular practice of certain thing which the claimant can reasonably expect to continue. It therefore follows that the concept of legitimate expectations consists of inculcating an expectation in the citizen that under certain rules and scheme he would continue to enjoy certain benefits of which he would not be deprived unless there is some overriding public interest to deprive him of such an expectation.

    In the case of Food Corporation of India V/s M/s Kamadhenu Cattle Feed Industries2 it has been held that non-arbitratrariness, fairness in action and due consideration of legitimate expectation of the affected party are the essential requisities for a valid state action. It has also been held that whether expectation is legitimate is a question of fact which has to be determined in the larger public interest. 2. (1993) [SSC. 7] The Supreme Court in the case of Union of India v/s. Hindustan Development Corporation3 elaborately considered this law. In the case it has been held that the principle of legitimate expectation gave the applicant sufficient locus-standi to seek judicial review and that the doctrine was confined mostly to a right to fair hearing before a decision which resulted in negativing a promise or withdrawing an undertaking was taken. It did not involve any crystallized right.

    The protection of such legitimate expectation did not require the fulfillment of expectation where the overriding public interest required otherwise. However, the burden lay on the decision maker to show such an overriding public interest. In this case several English and Australian cases were referred to and conclusions were then reached. In the case of Madras City Wine Merchant Association V/s State of Tamil Nadu4. , the matter related to the renewal of liquor licences rule which were statutorily altered. It was therefore held that the repeal being a result of a change in the policy by legislation, the principle of non-arbitrariness was not invokable. Then again in M. P. Oil Extraction V/s State of M. P5. t was held that the State’s Policy to extend renewal of an agreement to selected industries which came to be located in Madhya Pradesh on the invitation of the State, as against the local industries was not arbitrary and the said selected industry had a legitimate expectation of renewal under the renewal claims. 3. (1993) 3 SCC 499. 4. (1994) 5 SCC 509. 5. (1997) 7 SCC 592. Then there is a case by Three Judges namely the National Building Construction Corporation V. S. Raghnathan6. This case related to a service matter. In this case it was observed that the doctrine of legitimate expectation had both substantive and procedural aspects. In essence the Supreme court laid down a clear principle that required reliance as representation and resultant detriment in the same way as claims based on promissory estoppel. This principle is very akin to “reasonableness” and “natural justice”. Very Recently the Supreme Court in the case of Dr. Mrs.

    Chanchal Goyal V/s State of Rajasthan7 observed that in a service matter unless there was specific waiver of conditions attached to the original appointment order, mere continuance in service did not imply such waiver. No legitimate expectation could be founded on such unfounded impressions. It is relevant to note that the doctrine of legitimate expectation is attaining the status of a fundamental legal concept of administrative justice which is evident from its incorporation into S. 24 (b) of the Interim Constitution of the Republic of South Africa Act 200 of 1993. The doctrine of ‘legitimate expectation’ imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such legitimate expectation.

    The doctrine is still at a stage of evolution but it has generated a significant body of case law. The doctrine of ‘legitimate expectation’ has been judicially recognised by the Indian Supreme Court and this recognition has paved the way for the development of a broader and more flexible doctrine of fairness. Consequently, the ultimate question should always be whether something has gone wrong to the extent that the court’s intervention is required and if so, what form that intervention should take. In considering whether something has gone wrong, the court has to determine whether what has happened has resulted in real injustice. If it has, the court must intervene in the appropriate manner, in this context.

    The utility of the doctrine of legitimate expectation is manifold. Development of doctrine in UK In the Common law jurisdiction the doctrine had been traced to an obiter dictum of Lord Denning M. R in Sehmidt v. Secretary of Home Affairs. Lord Denning observed in Sehmidt9: The speeches in Ridge v Baldwin show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest or I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say ….

    The legitimate expectation referred to in, Sehmidt did not give the alien students an enforceable right to stay for the time originally permitted but an enforceable right to be heard before the decision to revoke his permit was taken: a procedural protection only. In this case the plaintiffs, alien students at Hubbard College of Scientology, had been given leave to enter the United Kingdom before July, 1968, initially for a period of a month. The periods had been extended to the end of August and September 1968, respectively. Applications were made on behalf of the plaintiffs to the Home Office on June 11 and July 15, 1968 for extensions of their stay until November and December 1968, to complete their studies. By letters of July 29 and 30 the Home Secretary, the defendant, rejected the applications, referring to the Minister of Health’s Statement.

    The plaintiff’s stay was, however, extended to September 30 to let them make arrangements to leave. The Plaintiffs, on behalf of themselves and 50 other alien students of the college, claimed declarations against the defendant that his decision not to consider further similar applications for extension of stay was unlawful, void, and of no effect and the defendant was bound to consider such applications on their merit and in accordance with the principles of natural justice. The court of appeal held that they had no legitimate expectation of extension and therefore no right to hearing, though revocation of their permits within the earlier granted period of permit would have been contrary to legitimate expectation.

    The particular manifestation of the duty to act fairly is that part of the recent evolution of administrative law which may enable an aggrieved party to evoke judicial review if he can show that he had ‘a reasonable expectation’ of some occurrence or action preceding the decision complained of and that ‘reasonable expectation’ was not fulfilled in the event. The two phrases ‘reasonable expectation’ and ‘legitimate expectation’ are treated as synonymous. It is important that in his judgment in Schmidt v. Secretary of Home Affairs, Lord Denning makes no mention of any authority, judicial or otherwise, upon which the concept of legitimate expectation could be founded; indeed he has said that he feels “sure it came out of my own head and not from any continental or other source. ”10 The later cases do not suggest any other provenance.

    Presumably, therefore, the origin of the concept lies within Lord Denning’s justly famed creative mind and not elsewhere. However, it may be recalled that prior to the introduction of the doctrine into English law, it was evolved in German administrative law11 which was subsequently borrowed and developed by the European Court. 11 The judicial evolution of the doctrine of ‘legitimate expectation’ can be traced to the opinion of the Judicial Committee delivered by Lord Fraser in Attorney-General of Hong Kong vs. Ng Tuen Shiu. 12 Ng. was an illegal immigrant from Macau. The government announced a policy of repatriating such persons and stated that each would be interviewed and each case treated on its merits. Ng. was interviewed and his removal ordered.

    His complaint was that at the interview he had not been allowed to explain the humanitarian grounds on which he might be allowed to stay, but only to answer the questions put to him; that he was given a hearing, but not the hearing in effect promised, as the promise was to give one at which ‘mercy’ could be argued. 10. In a letter to Prof. C. F. Forsyth, quoted in Cambridge Law Journal, 47 (2), July 1988, at 241. 11. The German Concept of ‘Vertrauenschutz’ sought to protect the confidence that subjects had placed in government 11. See J. Usher, “The Influence of National Concepts on Decisions of the European Court” (1976) 1 European Law Review 359 at 364 and Re Civil Service Salaries: E. C. Commission v. E. C. Council, (1973) E. C. R. 575; (1973) C. M. L. R. 639 12. 1983) 2 A. C. 629, (1983) 3 All. E. R. 346. The judicial Committee agreed that, on that narrow point, the government’s promise had not been implemented; his case had not been considered on its merits, and the removal order was quashed. Ng succeeded on the basis that he had a legitimate expectation that he would be allowed to put his case, arising out of the government promise that everyone affected would be allowed to do so. In R v. Brent London Borough Council, exp Gunning,1 the legality of a decision to close schools was challenged by a group of parents, ratepayers and parent governors, who alleged, inter alia, inadequate consultation. Hodgson J. aid: The parents had no statutory right to be consulted, but that they had a legitimate expectation that they would be consulted seems to me to be beyond question. The interest of parents in the educational arrangements in the area in which they live is self-evident…. local education authorities habitually do consult on these matters. In 1980 and 1983 this local authority itself had comprehensive consultations which had led to the decision in 1983 to retain all school sites. Local education authorities are exhorted by the Secretary of State to consult and results of the consultations are something which takes into account (in deciding whether to agree to closures). On any test of legitimate expectation, it seems to me that these parents qualify.

    In a subsequent case, the Court of Appeal used this as an opportunity to reconsider the entire development in Britain in the area of legitimate expectation. In Regina v. North and East Division Health Authority, Ex-parte Coughlan1, the court enforced against the health authority its promise made to a lady who was seriously injured in an accident to maintain her in a nursing home for her life. Perhaps it is very significant feature of the opinion in this case that the Court of Appeal not only recognized the doctrine of legitimate expectation into two classes, viz. (1) cases where the court may decide that the public authority was only required to bear in mind its previous policy or other representation, giving it weight it thought fit, before deciding to change course.

    In such cases, the court would review the decision by applying the test of rationality. (2) cases where the court may decide that a lawful promise had induced a substantive legitimate expectation. Here the court would decide whether the frustration of legitimate expectation was so unfair that to take a new and different course of action would amount to an abuse of power. Finally, the court generalized : When the legitimacy of the exception had been established, the court would have the task of weighting the requirements of fairness against any overriding interest relied upon for the change of policy. It is for the court to decide in which of the two categories is a specific fact situation. CHAPTER – 4 PRESENT POSITION

    The chapter discuss on present trend and position of grounds of judicial review and principle of legitimate expectation. Grounds of Judicial Review The most common grounds are: * A breach of natural justice; * An error of law; or * Failure to take into account a relevant consideration. Grounds of review Grounds of review emanate from the common law and are summarised in the ADJR Act. Key grounds are: * The person or entity making the decision did not have the power or authority jurisdiction to make it. * There was an error of law in that the decision-maker misunderstood or misapplied a statute. * Relevant factors were not taken into account. * Irrelevant factors were taken into account. * The decision was made for an improper purpose, or in bad faith.

    See section 5 Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) for a list of most of the common law grounds of judicial review * The decision was so unreasonable that no reasonable decision maker could have made it * The decision-maker acted under dictation. * The decision-maker applied a policy inflexibly. * Essential preconditions were not followed. * The decision was made in breach of natural justice i. e. there was not a fair hearing by a decision-maker who was free from bias. A new ground: Application of the Human Rights Act 1998 Detailed analysis of the provisions of the Human Rights Act 1998 is beyond the scope of this note.

    However the Act provides that “it is unlawful for a public authority to act in a way which is incompatible with a Convention right” 1. This may provide an independent ground for judicial review. The Human Right Act has created a new form of judicial review of legislation, and new grounds for the review of executive decisions, thus enabling judicial decisions to be made on human rights claims. However, when primary legislation is concerned, ultimate legislative authority remains with Parliament, acting on the proposal of the executive. This new form of protection for human rights is exactly that envisaged by the framers of the HRA. The effects of the Act have often been misunderstood both in some political quarters, in the media, and by the public at large.

    Some recent criticisms of the judiciary may have come about because of a failure to understand the constitutional implications of the HRA. The purpose of the Human Rights Act 1998 (“the Act”) is to improve public access to the rights and freedoms guaranteed under the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms. 1. section 6 (1) Convention. S. 6 of the Act makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. The term “act” includes a failure to act, but does not include a failure to introduce a proposal for legislation or to make any primary legislation or remedial order. In addition, s. 6 does not apply to an act if, as a result of a provision of any

    Act of Parliament, the authority could not have acted differently or if the authority was simply giving effect to provisions of a statutory instrument which could not have been interpreted or given effect to in any other way. Home Office guidance (see below) defines the term “public authority” to include- (a) government departments and local authorities, health authorities and trusts; (b) the armed forces and the police; (c) courts and tribunals; (d) any person or organisation which carries out some function of a public nature, but only in relation to those public functions. In other words, all of the above, as well as prisons and prison staff must comply with the Act and failure to do so is unlawful. A person who claims that a public authority has contravened s. and who is a victim of that contravention may bring proceedings against that authority in an appropriate court or tribunal, or may rely on the Convention right concerned in any legal proceedings (including an appeal against the decision of a court or tribunal) 2 Any such proceedings must be brought within one year of the date on which the act complained of took place, or within such longer period as the court or tribunal considers fair having regard to all the circumstances. 2. (s. 7). Where a court finds that any act of a public authority is, or would be, a contravention of s. 6, it may grant such relief or remedy, or make such order, as it considers just and appropriate. Damages may be awarded by a court which has power to award damages (or to order the payment of compensation) in civil proceedings, but no award of damages is to be made unless, taking account of all the circumstances of the case, the court is satisfied that an award is necessary to give just satisfaction to the person in whose favour it is made 3 Proceedings under s. in respect of a judicial act may only be brought 4- (a) by exercising a right of appeal; (b) on an application for judicial review; or (c) in such other form as may be prescribed. In Scotland, where proceedings cannot be brought under (a) or (b) then, for the purposes of (c), the Court of Session is prescribed as the appropriate forum for proceedings5. The Home Office Guidance: A New Era of Rights and Responsibilities-Core Guidance For Public Authorities explains the 1998 Act and gives examples of its effect on public authorities. In the UK’s Human Rights Act 1998, courts sometimes review for unconditional compatibility. For example, in A. v.

    Secretary of State for the Home Department the House of Lords made a declaration that section 22 of the Anti-terrorism, Crime and Security Act 2001, which authorised the indefinite detention without charge of certain foreigners suspected of having links to international terrorism, was incompatible with the right to liberty and the right to be free of discrimination under Articles 5 and 14 of the European Convention on Human Rights as given effect in the UK by the Human Rights Act 1998. 3. (s. 8). 4. (s. 9) 5. (Human Rights Act 1998 (Jurisdiction) (Scotland) Rules 2000, r. 4). Because of the terms of section 22 there was no possibility of its being read or given effect on particular facts in such a way as to avoid incompatibility. Law Lords in Kay v. Lambeth London Borough Council. The claimants argued that decisions about the allocation of public-sector housing had violated their right to respect for private and family life and the home under Article 8 of the ECHR and section 6 of the Human Rights Act 1998. The decisions were within the range of discretion conferred by housing legislation, but were said to produce Convention-incompatible results on the facts of the cases and to be therefore unlawful. A majority of judges7 held that they should review the Convention-compatibility of housing decisions only if it could credibly be argued that the legislation under which they had been made was itself incompatible with Convention rights.

    But if it had been incompatible, it would in any event have denied the claimants any effective remedy for violation of their rights, because the House could only have made a declaration of incompatibility, which (by virtue of sections 3(2), 4 and 6 of the Human Rights Act 1998) would have left both the legislation and the decisions made under it valid and effective. 8 That approach means that the duty under section 6(1) of the Act to act compatibly with Convention rights is effectively excluded from decisions about housing allocation, an extraordinary conclusion. 6. [2006] UKHL 10, [2006] 2 AC 465, HL. 7. Lord Hope at para. 110, Lord Scott, Baroness Hale, and Lord Brown. Lord Bingham, Lord Nicholls and Lord Walker dissented on this point 8.

    Baroness Hale and Lord Brown accepted this at paras. 188 and 205 respectively. CHAPTER – 5 CONCLUSIONS Judicial review is a wide-ranging system of grounds of appeal against the decisions of both public bodies and private entities exercising public functions. Where a decision is thought wrong on the grounds of illegality, irrationality or procedural impropriety, individuals have the right to petition the High Court for leave to appeal the decision. This is in addition to any appeals process the body in question may have set in place itself. The emerged concept of legitimate expectation in administrative law has now undoubtedly gained sufficient importance.

    It is observed that legitimate expectation is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action. The legitimate expectation would arise when there is an express promise give by a public authority that there is a regular practice of certain thing which the claimant can reasonably expect to continue. It therefore follows that the concept of legitimate expectation consists in inculcating an expectation in the citizen that under certain rules and scheme he would continue to enjoy certain benefits of which he shall not be deprived unless there is some overriding public interest to deprive him of such an expectation.

    The judicial perspective regarding the grounds of judicial review also has developed its dimensions to human right spheres which further gives its scope to the concept of justice for all. So, its undoubtedly to the thoughts of Mahatma Gandhi ‘There is a higher court than courts of justice and that is the court of conscience. It supercedes all other courts. ’ ——————————————– [ 1 ]. [1984] 3 All ER 935 [ 2 ]. 6. (1998) Y SCC 66 7. (2003) 102 RJR 788 8. Section 24(b): “Every person shall have the right to procedurally fair administrative action where any of his or her rights or legitimate expectations is affected or threatened”. [ 3 ]. 9. [1969] 2 Ch 149; (1969) 1. AllE. R. 904. [ 4 ]. 13. (1986) 84 LGR 168. [ 5 ]. 14. [2001] QB 213

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