Public Law (Level 4) Model Plan Answer to Examination Question on Administrative Law

PUBLIC LAW (LEVEL 4) PROBLEM SOLVING QUESTION As a result of its general energy policy and objective of reducing greenhouse emissions, the government proposes an initiative to provide a £500 grant to any home owner who decides to install solar panels on their home. The power to make this grant is included in the Solar Panel Bill. The Bill receives Royal Assent as the Solar Panel Act 2012 and Section 1 provides that the “Secretary of State for Energy and Climate Change may provide up to £500 to any homeowner installing solar panels on their home.” The responsibility for assessing grant applications is given to a team of five civil servants in the Department of Energy and Climate Change (the ‘Solar Panel Team’). Alfred submits a grant application for £500 to assist him in installing solar panels in his garden. The Solar Panel Team refer him to one of their policy documents, which says that the grant can only be provided to those attaching solar panels ‘on their homes’. The policy document adds that this means on the roof, or actual physical structure of the home, and not gardens. They reject his application. Colin, whose neighbour, Edward, was recently given a £500 grant for a solar panel, decides to install one on his roof too, and applies for a grant. However, the Solar Panel Team refuse it on the basis that ‘recent reports have shown that there is too much rain and not enough sun’ in Colin’s town, Southtown. Colin instructs a weather expert, whose report shows that it is viable to install solar panels in Southtown, but the Solar Panel Team says their decision is final. Flora discusses the idea of installing a solar panel on her home with her neighbour, Harry. Harry has heard that the panels transmit a continuous noise and interfere with televisions. He is concerned that this may affect his home life and also his young children too. When Flora tells him that she has applied for the grant, Harry writes to the Solar Panel Team setting out his concerns, but they fail to respond to any of his letters. Three months later, he learns that they have granted Flora’s application. Advise Alfred, Colin, and Harry.

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Question raises issues of both judicial review and Human Rights. Define judicial review (which upholds the respective constitutional principles of the rule of law, the separation of powers and Parliamentary Sovereignty. It is concerned not with the decision but with the decision-making process). Explain the incorporation of the relevant articles of the European Convention of Human Rights into domestic legislation in 1998.

Main Body All parties – Alfred, Colin and Harry Preliminary issues for Judicial review 

Follow pre-action protocol (complete internal appeal stages provided by public body, attempt alternative dispute resolution i.e. mediation or arbitration). Note also 3 month time limit. FACTS: Alfred, Colin and Harry should each write a letter of claim to the Solar Panel Team, which outlines the detail of their claim.

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Source of law test (Powers given by an enabling Act of Parliament.) Part 54 Civil Procedure Rules. FACTS: The Solar Panel Act delegates power to the Secretary of State for Energy and Climate Change.

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Public body exercising a public function. Part 54 Civil Procedure Rules. Or private body exercising public function. Datafin Case (1987). But not a public body exercising private function. Ex Parte Pepper (2000). FACTS: The decision-makers, the Solar Panel Team are a group of civil servants who work for a government department (The Department of Energy and Climate Change) under a government minister. The Solar Panel Team are therefore a public body. They are exercising a public function because they are dealing with applications which are open to the public, therefore making it a public function. Their actions appear to be reviewable.

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Each of the parties must have standing. s.31 (3) Senior Courts Act (1981). In other words, an individual with “sufficient interest”. Rees Mogg (1994). FACTS: Alfred, Colin and Harry are all individuals who have been affected by the decisions of the Solar Panel Team. Colin and Harry have had their applications refused whilst Harry has had his family life interfered with.

Grounds for Judicial review 

This may be illegality, irrationality or procedural impropriety. GCHQ Case (1985). Each defined by Lord Diplock.

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Is the public body acting (exercising power) under a duty or discretion? FACTS: The secretary of state “may provide up to £500...” and the fact that an assessment has to be made as to whether a grant may be provided indicates that this is a discretion and not a duty.

Illegality may be 1. Using power given by the enabling Act to achieve an improper purpose Porter v Magill (2001). 2. Using an irrelevant consideration before exercising the power. Ex parte Venables (1998) 3. Unlawful delegation of power. Barnard v National Dock Labour Board (1964) 4. Dictation by third party to person given the power by the enabling Act. Roncarelli v Duplessis (1959) CAN 5. Fettering of discretionary power. Polemis 6. Error of fact made before exercising power. 7. Error of law made before exercising power. Anisminic Case (1969) All parties – Alfred, Colin and Harry 

Illegality due to unlawful delegation. But the ‘Carltona Doctrine’ from Carltona v Commissioner of Works (1943) authorises persons not named in an Act to be able to exercise discretionary powers. FACTS: The power to make a decision was given to the Secretary of State for Energy and Climate Change by the enabling Act, but this was then delegated to the Solar Panel Team. This may have been unlawful delegation, as the Solar Panel team is not explicitly given this power by the Act. However, it is part and parcel of the administration of government to delegate tasks to civil servants working for a government department as a minister cannot be expected to deal with every single aspect of administration. The Carltona Principle applied here would make this a valid delegation.

Alfred 

Illegality due to fettering of discretionary power. E.g. through exercising a policy that has a ‘blanket rule’. Ex parte Collymore (1995); R v North West Lancashire Health Authority ex parte A (2000). FACTS: Alfred is referred to a policy document which means that a ‘blanket-rule’ may be in effect. Following a policy may mean that ‘discretion’ is not being exercised when making a decision. Alfred may claim that this amounts to a fettering of discretion. However, the courts recognise that government bodies need to operate policies in order to administer their affairs with consistency. (Discretion, which involves making a choice, arguably runs counter to the formal theory of the rule of law; part of which requires certainty in the law and consistency when making decisions). It does not mean that a policy cannot be run but the decision-maker must show that each application is genuinely considered.

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Illegality due to irrelevant consideration. FACTS: The consideration taken into account was the physical location of the solar panel. This could be argued to be an irrelevant consideration because it does not affect the use of the solar panels. The garden is also part of the home, and the wording of the statute does not limit it to the physical location.

Colin 

Illegality due to Error of fact. (Though court will not always interfere). Khawaja (1984). FACTS: His application was refused on the basis that there is “too much rain and not enough sun” in Southtown. But the weather expert’s report “shows that it is viable to install solar panels”. This may arguably mean that the Solar Panel Team’s decision was influenced by an error of fact.

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Illegality due to irrelevant consideration. FACTS: Sunlight exists even in a rainy environment so even if it is limited, the panels would still be able to collect and store the required sunlight.

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Irrationality FACTS: “Too much rain and not enough sun” in Colin’s town” might arguably be considered to be “so outrageous in its defiance of logic” as stated by Lord Diplock in the GCHQ case.

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Procedural impropriety due to infringement of Natural Justice i.e. ‘right to a fair hearing’. Ridge v Baldwin (1964). FACTS: Colin’s evidence regarding the expert report prepared by the weatherman has been ignored by the Solar Panel Team who say that their “decision is final.” He has arguably been denied a fair hearing and could claim that the decision is procedurally improper.

Harry 

Procedural impropriety due to infringement of Natural Justice i.e. ‘right to a fair hearing’. Ridge v Baldwin (1964). Representations can be made in writing. FACTS: The Solar panel team “fail to respond to any of his letters”. This arguably amounts to a denial of a fair hearing i.e. his right to present his side of the story. Representation of a person’s case can be done in writing. Ex parte Doody (1994).

Remedies for Judicial Review If an application is successful, the parties could be entitled to one or more of the available prerogative orders: a mandatory order, quashing order or prohibition order. Civil remedies such as Injunctions are available as is an award of damages which is extremely rare.

Colin and Harry Preliminary issues for Human Rights review 

Public authorities (‘core’ public authorities) required to act in accordance with the Human Rights Act. S.6 Human Rights Act (1998). This obligation extends to ‘hybrid’ bodies. Cobham Hall School case. FACTS: The Department of Energy and Climate Change is a government department and thus a ‘core’ public authority.

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The applicant must be a victim. S.7 Human Rights Act (1998). FACTS: The rejection of Colin’s evidence and ignoring of Harry’s letters of concern may form the basis an action under human rights legislation. Both are affected by decisions made by a public authority.

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Time limit. The application must be made within one year.

Grounds for Human Rights review 

Breach by the public authority of one or more of the rights and freedoms incorporated into the Human Rights Act from the European Convention of Human Rights. E.g. article 5 right to liberty, article 6 right to a fair hearing, article 8 right to private life and so on. FACTS: Colin may wish to make an application under article 6 while Harry may wish to make claims under articles 6 and 8.

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Is the right or freedom infringed 1. An absolute right or 2. A qualified right or limited right? FACTS: Article 6 is a limited right and 8 is a qualified right.

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If an absolute right and evidence of a beach is accepted then the applicant will be successful, however, if a breach concerns a qualified right, the Test of Proportionality is used by the court to come to a decision. This is the ‘Daly Test’ from ex parte Daly (2001).

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The ‘test of proportionality’ involves balancing the fundamental human right of the applicant against the legitimate aim of the public body or government in promoting the well being of the community. The rule created by the public body must be “just and proportionate”. If the human right has been limited in a lawful way to achieve a legitimate aim in a method that is just and proportionate then the claim will fail.

Colin 

Article 6 Right to fair legal procedure. This does not extend to all administrative matters. It applies to the handling of criminal charges and of civil rights or civil obligations.

FACTS: Colin’s issue is not a criminal matter and arguably not one involving civil rights or obligations. He can rely on the common law rules related to fair hearing. Harry 

Article 6 Right to fair legal procedure. FACTS: As above.

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Article 8 Right to Private Life FACTS: Harry will argue that the “panels transmit a continuous noise and interfere with televisions. He is concerned that this may affect his home life and also his young children too”. This will be balanced against the aim of the Solar Panel Act (2012) to increase use of solar panels in order to combat greenhouse emissions and global warming.

Remedies for Human Rights Review If an applicant is successful, s.8 Human Rights Act (1998) gives the court the discretion to remedy the breach of his or her human rights as is “just and equitable” in the circumstances. The following mechanisms can also be used by the court:  

Declaration of incompatibility. S.4 Human Rights Act (1998) as in the Belmarsh Case (2004) Interpretation of the enabling Act in a way which puts it in line with convention rights. Ghaidan v Mendoza (2004). This mechanism is provided by s.3 of the Human Rights Act (1998).

Adeyinka Makinde (2015)