Judicial Review

Administrative make decisions about the day to day activities in their operations. The decisions assist in making the processes of the governmental bodies more efficient and effective. However, some of the administrative actions may be to the detriment of the employees. The courts have the powers to look into the legality of the decision by the governmental body make a direction to depart from the said decision it does not meet the requirements of the law.[1] The judicial review, however, is exercised upon decisions of a public body as explained in R v Panel on Takeovers and Mergers (1987). In this case, the judge stated that if the body functions lead to consequences to the public, then there is a good reason for a judicial review.

Procedural Requirements for Judicial Review

            The party instigating a judicial review proceeding must fulfill some fundamental questions which include; first, the decision a public body must make it. The reason for this being protecting the public from arbitrary use and abuse of power. It also ensures the public body does not act beyond its question powers. Judicial review can also be done upon NGOs that perform functions that are public. , however, cannot instigate legal proceedings against public entities. Second, the party prompting the judicial review must have a sufficient interest in the matter. The interest may be personal or affects society as a whole. The exclusion of other parties protects the administrative bodies mischief makers and busybodies who have no interests other than interrupting the operations of the governmental body.[2]

Third, the party must ensure they challenge the decision promptly within the stipulated statutory timelines. The court does not entertain proceedings that are long overdue. The restrictions reduce the number of judicial review cases as well as claims that are politically motivated. The limits ensure that the mandates of the courts are respected and not used as complaining platforms.

Judicial Review and the British Constitution

Parliamentary Sovereignty

            The judicial review seeks to examine whether or not the decision maker has acted within a mandate that has been conferred upon them by the parliament.[3] The judicial review thus ensures that the parliamentary will is obliged and respected. The fact that parliament does not prohibit judicial review means that it authorizes it.

The Rule of Law

The rule of law ensures that the constitutional and statutory provisions are upheld. The rule of law provides that everyone is treated equally and the administrative actions are within legal requirements. The rule of law promotes the standards of consistency, certainty, rationality, and fairness.[4]

The legality of the decisions is also maintained as per the requirements of parliament.

Separation of Powers

Separation of powers plays an essential role in ensuring that checks and balances are done upon public organizations. The checks and balances ensure that the public bodies do not abuse their powers and nobody exercises too much control. Separation of powers justifies the reasons for court intervention and the limitations of the courts in judicial review. The court is limited in that the judicial review is limited to determine procedural fairness and legality of the administrative decision.[5] The body responsible for the decision is left to rectify the decision. The administration mandate as granted by the constitution is left to the executive arm of the government.

Problem Questions

Hakimi’s Advice

Hakimi has a claim for judicial review because the Food Act only rejects the licensing of food establishments that are within two miles a school. Refusal to grant Hakimi a license is, therefore, resulting in illegality and an error of the law which are sufficient grounds for a judicial review. Hakimi’s food establishment is beyond the stipulated legal requirement of two miles. Refusal to grant him the license means that the grounds for the denial do not have any legal backing or there was an error in the application of the law. The court will have a simple task of establishing whether or not Hakimi’s food establishment falls with the stipulated two miles. The court will order for the decision by the council to be quashed.

Bill’s Advice

            Bill does not have any ground for a judicial review. The reason for this is because his premise falls within the restricted area. The decision by the council to reject the licensing of his business premise is therefore legal. When the determination of an administrative body is legitimate, then the courts cannot entertain a judicial review proceeding against the said decision.

Sandeep’s advice

            Sandeep restaurant could apply for judicial review on the following grounds; first; Section 2 of the Food Act if vague and grants for council too much discretionary powers. Leaving the conditions to the council as they deem fit leaves a room for abuse of power as the limit of their powers is not clearly outlined. Second, requiring Sandeep restaurant to employ ten part-time employees is a difficult condition. It is unreasonable for the council to impose upon the number of employees that the restaurant employs. The restaurant can only sustain the employment of six persons on a permanent basis. The condition also is illegal as it tries to manipulate the affairs of the private entity and also does not have any legal backing. By doing this, the council acts beyond their scope of powers and decisions which are made when a body acts beyond its powers are void ab initio.

Basingstoke and Deane Council Advice

            A governmental entity may delegate its powers if the delegation is permitted a statute. Any powers to decide or act that is coffered upon other entities by a governmental body without the statutory backings amounts to the organization acting ultra vires. The delegation made by Basingstoke and Deane Council is based on lack of resources not from a legal provision. Therefore, the decision is illegal and subject to judicial review. Unlawful delegations were well demonstrated in Barnard v National Dock Labour Board (1953) where the court indicated that the body that is conferred upon decision-making powers must continue doing so unless allowed by the statutory provision to delegate the powers.[6]

Sarah’s Advice

            Sarah could apply for a judicial review through the following grounds; first, the decision entails an error of facts. Sarah’s premise involves the preparation of fruit salads as opposed to fast food. The ordinary meaning of fast food is not food that is prepared quickly. The fact that salad is prepared within a short period does not make it fast food. The misinterpretation of the fact renders the decision unlawful as the revocation of the license does not fall within the statutory requirements, therefore, a valid ground to instigate a judicial review proceeding. Second, Sarah can prompt a judicial review on bias by the rejection of her appeal by the panel. The reason for this being that the decision-making bodies should not decide matters with they have a pecuniary interest. Sarah’s ex-husband being a member of the panel gives room for biases thus unfair to Sarah. 

The importance of a judicial review cannot be overlooked. Judicial review is an effective and efficient mechanism with is put in place to prevent administrative bodies from making an arbitrary decision as well as acting beyond the powers conferred upon them by parliament.

Bibliography

Barnett H, Constitutional & Administrative Law (Routledge 2011)

Parpworth N, Constitutional and Administrative Law (Oxford University Press 2015)

Halliday S, ‘The Influence of Judicial Review on Bureaucratic Decision-Making’, Administrative Law (Routledge 2018)

[1]

Hilaire Barnett, Constitutional & Administrative Law (Routledge 2011).

[2]

Ibid at page 575

[3]

Neil Parpworth, Constitutional and Administrative Law (Oxford University Press 2015).

[4]

Ibid at page 56

[5]

Ibid at page 97

[6]

Simon Halliday, ‘The Influence of Judicial Review on Bureaucratic Decision-Making’, Administrative Law (Routledge 2018).