Hakim’s Hotdogs Application for Judicial Review

Judicial review, the process by which courts assesses the lawfulness of an action or a decision made by a public body, is the basis of a functioning democracy. Yet, the nature and the applicability of judicial review, remains unclear. Popular discourse often views judicial review from the lens of appeals. However, the two concepts are different. Judicial review focuses on the legality of the decision rather than the merits of the decision in issue. It is concerned, not with the decision, but with the decision-making process. Judicial review calls for a reasoned articulation as to the legality, form, procedure, and jurisdiction of the decision. It is a way to hold the executive legally accountable[1]. At the heart of issues on judicial review is the procedural questions that a claimant must prove before bringing forth a case. The current landscape of judicial review lays across two grounds upon which judicial review can be brought to court.

Firstly, a claimant must prove that he/she has a recognized interest in a decision, act or omission. Pursuant to section 31 (2) of the Superior Courts Act 1981 and Civil Procedure Rules 54.1, a claimant must have “sufficient interest.” A person with ”sufficient interest” has been construed to mean an individual who has been affected by the decision of the public body or an individual concerned with a decision that affects the interests of the society as a whole. As such, judicial review may be brought by pressure groups to challenge decisions that affect the rights and interests of either the members of that group or the society at large[2].

Secondly, judicial review can only be used to challenge decisions of public bodies. Decisions by private bodies can be challenged in private law proceedings. Part 54.2 of the Civil Procedure Rules set out bodies engaged ”in the exercise of public functions” as amenable to judicial review. But, while this definition seems restrictive to public bodies that provide core functions such as the central government and the local governments, it also covers private bodies exercising public functions, whether or not established by a statute or a public body[3].  In determining the nature of a public body, the court considers the source of power, whether it arises from contract or statute. In addition, the courts will consider the nature of the power the body exercises and the history and membership of the public bodies.

Indeed, a dominant feature of the UK government is the concept of parliamentary sovereignty. The principle presupposes that the UK parliament is constitutionally mandated to make laws. As such, no body or individual is permitted to question or vary the law. The UK courts have generally respected this principle. In contradistinction with other jurisdictions, UK courts have no power to declare an enacted legislation invalid.

However, the rule of law undergirds UK’s democracy. It seeks to control the government by insisting that government acts in accordance with the law and respects standards of fairness, rationality, certainty, and consistency. The rule of law, while always important in any functioning democracy, has oftentimes brought challenges as to its applicability in light of the principle of parliamentary sovereignty. Although there are diverse contexts in which the rule of law rears its head in public law, it finds expression in judicial review. Indeed, judicial review gives effect to the rule of law through the principle of separation of powers.

As the society increasingly views judicial review as legitimizing the rule of law, questions abound as to whether a separate body reviewing the laws set by the legislature is contrary to parliamentary supremacy. Nevertheless, the principle of separation of powers justifies judicial review because the principle is meant to ensure no body has too much power and no body abuses its power. Through judicial review, the courts check the exercise of the executive’s power and ensure that it does not abuse its power and position.

PART B: Judicial Review Problem Question

1. Hakim Hotdogs has a valid ground for judicial review. Indeed, section 1 of the Fast Food (Control) Act, states that the council can reject licences from fast foods establishments proposed to be opened within 2 miles of a school.  The action of Southampton City County are tantamount to an error in law in that they misinterpreted the powers granted to it. The County’s action was ultra-vires because their jurisdiction was limited to fast foods located within 2 miles of a school but they rejected the licence of Hakim’s Hotdogs whose business was 2.3 miles of a school. Therefore, in the absence of any extenuating circumstances, Hakim’s Hotdogs should apply for judicial review based on an error in law.

2. Bill can apply for judicial review based on the existence of an error of law. An error of fact exists where a decision maker fails to apply his/her mind to the issue or that error made the decision maker exceed his/her jurisdiction. Indeed, the university is located within the 2 miles that the council is allowed to reject a licence. However, the Act deals with fast foods within 2 miles of a school rather than a university. Therefore, this aspect can apply is the courts do not use the principle of ejusdem generis to interpret the statute.

3. Sandeep Salsa has justifiable grounds for applying for judicial review. Indeed, public bodies are usually given discretion in decision-making. Nonetheless, the discretion should be used to give effect to the statute. The Manchester City County introduced onerous conditions by requiring businesspersons to employ at least ten people on part-time as a prerequisite for granting licences. The decision of the county is ultra vires because it is meant to make it hard people to do business. Besides, matters to do with the number of employees should be left to private contracts.

4. The decision of Basingstoke and Deane Council to offload some of its works to a private agency is illegal. Section 2 of the Fast Foods (Control) Act does not give any county the power to delegate its functions. The discretion is only limited to deciding grounds upon which to issue or reject licences.

5. Sarah Salad Bar has a valid ground for judicial review. The Portsmouth City County rejected her application based on improper construction of the term ”fast food” to mean food prepared within five minutes. Moreover, the appellate panel that rejected her appeal comprised of his ex-husband Phillip. This insinuates that the verdict was reached out of bad faith rather than a judicious consideration of the issues.

Work Cited

Parpworth, Neil Constitutional and administrative law. (Oxford: Oxford University Press 2016)

[1] Parpworth, Neil Constitutional and administrative law. (Oxford: Oxford University Press 2016)

[2] Ibid.

[3] Ibid.