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

PUBLIC LAW (LEVEL 4) PROBLEM SOLVING QUESTION Mock Examination of March 2015 The Provision of Housing Act (2014) provides the chief executive of all local authorities the power to “sell council owned homes to council tenants who fulfil the necessary criteria.” The criteria include holding a tenancy for at least 5 years during which the tenant must have been a United Kingdom resident and paid rent regularly. Hillary, the chief executive and leader of the ‘Blue Party’ gives responsibility for making each decision to a panel of 8 civil servants working for the local council. The council has a policy which promises that each applicant who fulfils the criteria will receive a cash bonus of £1,000. Sally, a council tenant for over two decades, makes an application under the Act. She is one of the first to make an application but receives no response from the panel. Six months after the Act has come into effect, the Prime Minister, who belongs to the Blue Party rings up Hillary and tells her that since the Blue Party is down in the election polls, she should change the council’s home selling policy and limit sales to council tenants living in wards that are designated as ‘marginal’, that is, where the Red and Blue Parties have a chance of winning at a local election. Surveys consistently show that home owners have a tendency to vote for the Blue Party. John has been a council tenant for ten years and feels that he easily passes each criterion laid down by the Act. His application is turned down on the grounds that the council policy is to only sell council homes to residents living within “specifically designated wards”. John lives in Colney Ward in which elections are always won by the Red Party. When John finds out about the true reason his application was refused, he forms the ‘Right to Buy Residents Group’ which begins campaigning to expose the council’s policy. The group applies to the local police chief for a permit to stage a demonstration outside the local town hall. The application is turned down on the grounds that the group “have nothing to protest about”. When John stages a one-man demonstration, he is arrested by the police and kept in detention for 48 hours before he is released without charge. Advise Sally, John and the Right to Buy Residents Group.

Introduction • • •

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

Main Body All parties – Sally, John and the Right to Buy Residents Group. 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: Sally, John and the ‘Right to Buy Residents Group’ should each write a letter of claim to the decision-making panel of the local council, which outlines the details 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 Provision of Housing Act (2014) delegates power from Parliament to the Chief Executive of the local authority.

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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 “panel of 8 civil servants,” are a group of government employees working for a local council. The panel are therefore a public body. They are exercising a public function because they are dealing with applications which are open to the public. Their decisions are thus reviewable. The police force are a group of public servants funded by taxpayers money and are responsible for maintaining law and order in the community. The range of services they provide including that of determining whether public demonstrations should be allowed are clearly public functions.

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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: Sally and John are both individuals who have been affected by the decisions of the panel of 8 civil servants. Sally and John have had their applications refused. The Right to Buy Residents Group on the other hand is a representative group which can have standing. Ex Parte Green Peace (1994). It would have to fulfil a three part test: First that it possesses ‘expertise’, secondly that it has ‘resources’ and thirdly, that it is involved in an issue of public interest. The issue surrounding the right to buy council homes is clearly one of great public interest. More facts would be needed in regard to

the first two criteria. It can also be assumed that the group will be composed of individuals who have been directly affected by the council’s decisions.

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 fact that an assessment has to be made may tend to indicate 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. Ex parte Collymore (1995); R v North West Lancashire Health Authority ex parte A (2000). 6. Error of fact made before exercising power. 7. Error of law made before exercising power. Anisminic Case (1969) All parties – Sally, John and the Right to Buy Residents Group. •

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 chief executive, in this case, Hillary, but this was then delegated to the panel of 8 civil servants. This may have been unlawful delegation, as the panel 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 or chief executive cannot be expected to deal with every single aspect of administration. The Carltona Principle applied here would make this a valid delegation.

Sally •

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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 panel of 8’s failure to respond to Sally’s application arguably amounts to a denial of a fair hearing i.e. a right to present her side of the story. Representation of a person’s case can be done in writing. Ex parte Doody (1994). Procedural impropriety due to infringement of Natural Justice i.e. ‘legitimate expectation’ arising from a practice or a promise is protected by law. There should be an expectation of a procedure or a benefit. Ex Parte Coughlan (2001) ; Ex Parte Khan (2005). FACTS: The panel of 8’s failure to respond to Sally’s application which would likely have provided her with the benefit of an

express promise of a cash bonus of £1,000 has arguably frustrated her legitimate expectation. John •

Illegality due to improper purpose. Porter v Magill (2001) FACTS: The council’s policy of limiting sales to council tenants living in wards that are designated as ‘marginal’ has the objective of winning wards for the Blue Party in the forthcoming. It is not done for the general good of the public. The facts here resemble those present in the case of Porter v Magill and would likely to be decided in John’s favour.

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Illegality due to dictation. Roncarelli v Duplessis (1959) CAN FACTS: “The Prime Minister’s decision to tell Hillary that she should change the council’s decision-making process amounts to dictation. The enabling Act of Parliament i.e. the Provision of Housing Act, gives Hillary the power to make decisions not the Prime Minister.

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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: The council policy of only selling council homes to residents living within “specifically designated wards” arguably amounts to a ‘blanket-rule’. Following a policy may mean that ‘discretion’ is not being exercised when making a decision. John 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. In this case, of course, the policy is one which is likely to be found to be based on an improper purpose and will thus be invalid.

Right to Buy Residents Group Assuming it is given standing in the preliminary stage of the judicial review, The Right to Buy Residents group could bring an action based on the issues mentioned in regard to John and Sally. •

Procedural Impropriety due to infringement of Natural Justice i.e. ‘right to a fair hearing’. Ridge v Baldwin (1964). FACTS: The police’s decision to turn down the group’s application for a permit to stage a demonstration may infringe on the right to fair hearing because the purported reason given is vague. It could be argued by the group that no reason for the decision has been given. There is no general duty to give reasons. Ex parte Doody. However, the group should be entitled to be given reasons if imposing such a duty is not too costly or burdensome on the police,

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. Sally and John 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 police force is responsible for maintaining law and order among members of the public. They provide a public service and thus are a ‘core’ public authority. The local council also provide a range of services to the public and would also be considered as a ‘core’ public authority.

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The applicant must be a victim. S.7 Human Rights Act (1998). FACTS: The rejection of John’s application and ignoring of Sally’s application may form the basis an action under human rights legislation. Both are affected by decisions made by a public authority. It should be pointed out that applications for review under the Human Rights Act can generally only be brought by individuals, however, the Right to Buy Residents Group can bring an action because it has been directly affected by the decision refusing them a permit.

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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 10 freedom of expression and so on. FACTS: Sally may wish to make an application under article 6 while John may wish to make claims under articles 5, 6 and 10

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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 an absolute right for the most part, article 5 is a limited right and article 10 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. Sally •

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

John •

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

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Article 5 Right to Liberty FACTS: John could argue that his arrest and detention by the police infringed his right to liberty. The case of Austin v Metropolitan Police Commissioner (2005) held that a temporary deprivation does not amount to a deprivation of liberty. However 48 hours is arguably not temporary.

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Article 10 Freedom of Expression FACTS: John could argue that his arrest by the police during his one-man demonstration was an infringement of his freedom of expression. The test of proportionality would have to decide whether the police had a legitimate aim of preventing a likely outbreak of violence. Ex Parte Farrakhan (2002).Depriving John of his freedom of expression must be proportionate to the objective to be achieved.

Right to Buy Residents Group • Article 11 Freedom of Assembly FACTS: The decision of the police chief to turn down the permit to stage a demonstration arguably infringes article 11. This however, is a qualified right and is subject to the aforementioned test of proportionality . This right has to be balanced against a legitimate aim such as the likelihood of violence at such a demonstration of which no evidence exists. 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 appropriate” 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)