Judicial act lawfully and fairly.[3] DSIG are likely to

Judicial review could be considered
as a key way in which the court is enabled to scrutinise the actions of public
bodies. The above notion of judicial review comes from s29 and 31 of the Senior
Courts Act 1981 (SCA).1
Throughout history the courts have had an immanent jurisdiction over the
supervision of public bodies.2 The main
purpose being to ensure that the public bodies act lawfully and fairly.3

 

DSIG are likely to want the
decision to be quashed, this is so that the tuition fee structure does not change,
also so that further consideration is given to the minority/disabled students. (The
different remedies will be discussed in detail towards the end of the essay).

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In order to see if DSIG is eligible
to bring a claim for judicial review we need to look at the different
categories of grounds for judicial review. The three key categories are the
following: Illegality, Irrationality and procedural impropriety. These grounds
were confirmed in Council of Civil Service Unions v Minister for the Civil
Service.4 DSIG must be able to prove at least one of
the above grounds.

 

Amenability:

 

Before we are able discuss any
potential ground for judicial review, we need establish we are dealing with a
public body and consider whether its amenable to judicial review. In order to
establish this, we need to look at the ‘source of power test’. This test comes
from Law v National Greyhound racing club5. The
test is that, in order for a body to be contrary to judicial review, it will
usually be established under statute or by delegated legislation.6

 

In circumstance where the above is
unclear, the ‘nature’ of the body’s power will be examined by the courts. R v
City Panel on Takeovers and Mergers ex parte Datafin Ltd, held that if it is
exemplified a body ‘is exercising public law functions/ if the exercise of its
functions as public law consequences’, it may be construed as a public body
which would mean it would be subject to judicial review.7 As a
result, it would lead to the ‘public function test’.8

The body in this case is a
government department, which is clearly a public authority; therefore, it will
be amenable to judicial review.

 

Permission:

 

There are a number of procedural
requirements that must be met when applying for permission for judicial review.

DSIG are required to make a claim
to the Administrative court. There are two key stages, these consist of: the
permission stage, which concerns the request for leave, and the second stage is
the substantive hearing.

 

There is a stage before the
permission stage that must be adhered to prior to applying to the court. DSIG
are required to contact the body establishing the issues, then DSIG are
required to await a response from the body.9 This is
known as the pre-action protocol stage. The main purpose of this process is to
try and ensure a settlement, which can take away the need for litigation.
Therefore, there is an expectation from the courts that this has been complied
with.

 

The procedural requirements come
from s31 SRA10 which states11:

“No application for judicial review
shall be made unless the leave of the High Court has been obtained”.12
Therefore DSIG will need to consider this before they make a claim.

 

Standing:

 

The courts will consider
whether or not DSIG have standing.13

 

Sufficient Interest:

 

Standing refers to whether
DSIG have ‘sufficient interest’ concerning the subject matter, which in this
case is the changes made to the student fees. An important issue that has often
been raised by the courts is ‘who should be entitled to bring a claim for
judicial review? This is whether the above applies to just private claims or if
it is of public interest as well. This is particularly relevant to the present
case, as DSIG are a group rather than an individual; therefore, we need to
consider whether they would be eligible to make a claim.

 

This notion of standing
comes from s31(3) of the Supreme Courts Act 1981 (SCA). This was adapted from
Ord.53 r.3(7) by the Law Commission.14
The Law Commission suggested that any individual that has been affected as a
result of a decision should have ‘locus standi’. It was stated in the above
act:

“no application for JR
shall be made unless the leave of the High Court shall not grant leave to make
such an application unless it considers that the applicant has sufficient
interest in the matter to which the application relates”.

In reagrds to DSIG they
could have standing, because the students that DSIG represent will be directly and adversely
affected as a result of the changes made.15

R
v IRC ex p. National Federation of the Self-Employed is an important case that
created the sufficient interest test. The general principles from this case is
that it created a unified test in reagrds to the sufficiency of interest,
regardless of the decision of the case. An important point that came from this
case was the details outlined in reagrds to the relationship between the
standing at the leave stage.

 

Lord
Donaldosn in Argyll stated:

 

“At
leave stage an application should only be refused if A has no interest and it
is a ‘mere meddlesome busybody’, but where the application appears to be
arguable and there is no discretionary bar such as dilatoriness, A should be
given leave and standing can then reconsidered as a matter of discretion at the
substance of the hearing”.

 

Applying
the above to the present case, it would be at the discretion of the courts to
decide if DSIG have sufficient interest, but based on the above DSIG do have
interest and would not be considered ‘mere busybodies’, therefore should be
entitled to a hearing.

 

Representative
Standing:

 

Groups
such as DSIG may be able claim that they have sufficient interest. This is only
if a decision made by a body affects the groups interest, or the interests of
its members. This was exemplified in R v Liverpool corporation ex parte
Liverpool Taxi Operators’ Association.16
In this case, taxi operator sought to challenge decision made to increase the
amount of licences.

 

The
Word Development case17
involved the construction of a damn in Malaysia. The UK government had given
Malaysia money for the development aid. They brought judicial review, the UK
did not have members that lived in Malaysia. Therefore, the question was ‘could
they bring sufficient interest?’ the court decided that they could as they had
sufficient expertise in the area. This case also gave pressure groups power to
bring judicial review claims. Based on the above DSIG should be able to make a
claim on behalf of the students, as the students are directly affected.18

 

Standing
via HRA 1998:

 

 

If we were dealing with an individual, it could have been
suggested that their convention rights had been engaged, suggesting that they
were a victim.19
In regards to this we would look at s6 of the Human rights Act.20
However, because we are dealing with a group of individuals we would not be
able to look at convention rights under HRA.21

 

Time Limits for judicial review:

 

In order for DSIG to make a
claim, it must be done within the required time frame under s31(6)/CPR Pt 54.22
The time frame is that the claim must be brought with a three-month time frame,
but must be made promptly so cannot be for instance one day before the
three-month period is over.23
It has only been one month the decision was made, this means that DSIG are in
the right time frame to bring a claim.

 

Ouster provisions:

 

Another important factor
that needs to be considered is whether the court’s jurisdiction would be
affected by an ‘ouster’ provision/statutory right of appeal.24
The courts will not usually accept complete ousting, but partial ousting may be
considered. This was affirmed in the Aniesminic case. In the present case, it
has been suggested that the public body has created a complete ouster clause as
they have stated that the policy is ‘fixed’ and ‘cannot be changed’. However,
based on the above they do not have the authority to do this, therefore it
could suggest their decision was ‘ultra vires’. (A further explanation of this
will be provided later).

 

Another key question that
the courts consider before proceeding with a case is, whether it would make any
difference if DSIG won the case.

 

Grounds:

 

We now need to consider the
different grounds in which DSIG may be able to make a claim under. The
different grounds for judicial review mentioned earlier can be split into two
headings: substantive grounds (illegality and irrationality) and procedural
grounds (procedural impropriety). In order for a successful claim, DSIG only
needs to exemplify one of the above grounds.

 

Illegality:

 

This ground refers to whether a
public authority has acted outside of its powers and jurisdiction, if so will
have acted unlawfully. The above is also known as ‘ultra vires’, which refers
to any act construed by a public authority that has gone beyond what they have
authority to do, therefore will be void. The general presumption for this is
that any actions of public bodies will be considered as lawful unless it has
been stated otherwise by the courts. This principle comes from Boddigtion v British Transport police25, which was also
affirmed in R (Draga) v Secretary of State for the Home Department26 and R v SE Searby Ltd27.

 

DSIG may
be able to bring a claim for judicial review under illegality as the Department
of Education had a statutory duty ‘to consult widely and appropriately with
groups of individuals’ before publishing new policy. However, it could be
argued that they have not complied with this statutory duty. This is because,
they did not consult with a proportionate amount of individuals that were going
to be affected as a result of the changes. Therefore, the actions of the
Department of Education could be considered ‘ultra vires’ as they acted out of
their scope of authority.28

 

There
are also a number of additional elements under illegality such as: wrongful
delegation, fettering of delegation, purposes, relevant/irrelavnt
considerations and error of law.29
A number of which are appliciable to DSIG, but because thay have exemplified
the above ground, there is no need to explain the other grounds as DSIG should
be able to make a successful claim for judicial review.30

Remedies:

 

As we are dealing with a public law
issue in order to find a suitable remedy we need to look at prerogative
remedies under administrative law. These include, quashing orders (quashes or
sets aside the original decision), mandatory orders (this usually requires something
to be done) and propitiatory orders (which prevents something from happening).31

 

 

DSIG are likely to want the
decision to be quashed, this is so that the tuition fee structure does not
change, also so that further consideration is given to the minority students. A
mandatory order may be used to make the department reconsider the decision and
potentially change it. The claim has a good chance of being successful as they
have complied with all of the above requirements.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1 Senior Courts Act 1981, s29-31

2 The availability of judicial review against public bodies is a constitutional safeguard. Judicial review provides a corrective against the unlawful use of public law powers by public bodies.2 Judicial review therefore protects the citizen by making sure public bodies are subject to the rule of law. This is because, the judiciary is independent.

3 Senior Courts Act 1981, s29-31

4 1985 AC 374 at 410D.

5 1983
2 All ER 300 CA

6 Hong Kong Administrative Law, Michael Ramsden, Anne Scully-Hill, Lexis, 2017

7 1987 1 QB 815

8 Ibid

9 The contact is usually made via writing.

10 The Senior Courts Act 1981, S31

11 The effect of s84 of the Criminal Justice and Courts Act 2015 was to create a new test for refusing leave/permission. This can require a determination by the court as to whether there would be the ‘highly likely’ outcome of no ‘substantial difference’ following judicial review, even if a fully hearing were to take place.

12 The Senior Courts Act 1981, S31-32

13 There
are three different types of
standing: sufficient interest, representative
standing and human
rights standing.

 

14 procedures for JR are now governed by Pt. 54 Civil Procedure Rules, CPR, but the test for standing continues to be governed by the 1981 Act, s31(3).

15 Ibid

16 R v Liverpool corporation ex parte Liverpool Taxi operators’ Association (1972)

17 R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Word development movement (1995)

18 Ibid

19 Human Rights Act 1998, s7

20 Ibid

21 Ibid

22 Civil Procedure Rules, Pt 54, s31(6)

23 Ibid

24 An
ouster clause also
known as a
private clause is
typically “used in
a piece of
legislation by a
legislative body to
exclude judicial review
of acts and
decisions of the
executive by stripping the courts
of their supervisory judicial function.”

25 1999 2 AC 143 at 155, HL

26 2011 EWHC 1825 (Admin)

27 2003 EWCA Crim 1910.

28 HM Treasury v Ahmed and others 2010 UKSC 2

29 her ground that could be considered includes29 ‘illegality’ in the form of ‘an error in law’.

 

If an authority has been trusted with a discretion, it is expected that they will correctly direct itself in regards to the law, if not is could render the decision invalid. This was confirmed in R v Home Secretary, EX P Venables29

 

This case involved a misunderstanding of the law as a result a prison sentence was changed from 10-15 years. However, this decision was considered unlawful.29

 

In this case, it could be suggested that there had been a misunderstanding with the law, as the purpose of the legislation was to increase the fees to students could have higher earning capacities in the future. However, as a result of the decision it has potentially disadvantaged more individuals, this would include disabled students and minority students as it has created an increase in the BME attainment gap. Therefore, the decision made by the public body could be considered unlawful.29

 

Another ground would be ‘illegality in failing to take into account relevant considerations/ taking into account irrelevant considerations. In the Venables case mention above the court had a discretion to change the tariff, however the body changed the tariff for the wrong reasons. In a decision such as this the court is able to quash the decision.

 

30 Procedural and impropriety:

 

Bias is an element that comes under this ground.30 In regards to apparent bias in Porter v Magill it was stated the questions the courts consider is: whether the circumstance would lead to the fair minded and informed observer to conclude there was a real possibility of bias. 

 

We now need to discuss the grounds mentioned earlier, in which DSIG may be able to make a claim.30

 

A ground of judicial review that may be applicable to this scenario is ‘Irrationality’. This ground comes from the case ‘Associated Provincial Houses Ltd v Wednesbury Corporation30 that was mentioned earlier. The test that comes from the above case is known as the ‘Wednesbury unreasonableness test’.30

The test refers to the decision made by the public body30, it needs to be argued that the decision made was ‘so unreasonable that no reasonable person acting reasonably’ would have come to the same decision.30

 

However, based on the facts of the case it is unlikely that the above would be satisfied. The Wednesbury test could be considered too restrictive. The ECHR used the proportionality test.

 

The above notions of irrationality and unreasonableness were also confirmed in Council of Civil Service Unions v Minister for the Civil Service30, these were considered grounds for judicial review, also affirmed the reasonableness test mentioned above.

 

31 In the present case it
could be suggested there was apparent bias in regards to the consultation
process, as the process was not fair, because more individuals such as university
members were present at the process than the students that were directly
affected.