Essay
Legality, not merits
'Judicial review is concerned not with the decision but with the decision-making process.' Discuss.
issue
Whether the grounds of review are purely procedural, or whether the courts sometimes look at the substance of decisions.
rule
GCHQ (three grounds). Wednesbury; ex parte Smith; Daly (proportionality). Ridge v Baldwin; Porter v Magill. Coughlan (substantive expectation). Sections 125 and 134 of the 1991 Constitution.
application
Much of review is about process: the right to be heard (Ridge v Baldwin), the rule against bias (Porter v Magill) and statutory procedure. Illegality asks whether the body understood its power, which is about legality, not wisdom. But irrationality looks at the outcome, even if the bar is high (Wednesbury). Where rights are involved, anxious scrutiny and proportionality bring the court closer to the merits (Smith; Daly). Coughlan shows the court may even hold a body to a substantive promise. The courts justify this by the separation of powers: they still do not take the decision, they only set the limits.
conclusion
The statement is largely true, but incomplete. Review is mainly about legality and process, yet irrationality, proportionality and substantive expectation let the courts examine the substance at the edges.
Essay
Natural justice today
Explain the two rules of natural justice and how far the duty to act fairly now extends.
issue
The content of the rule against bias and the right to be heard, and the bodies to which they apply.
rule
Dimes; Pinochet (No 2); Sussex Justices; Porter v Magill. Bentley's case; Ridge v Baldwin; Kanda; Doody. Section 23 of the 1991 Constitution.
application
The rule against bias disqualifies a judge with a financial interest (Dimes) or a close link to a party promoting a cause (Pinochet). Otherwise the test is the fair-minded observer (Porter v Magill), reflecting the principle that justice must be seen to be done. The right to be heard goes back to Bentley's case, but was revived in Ridge v Baldwin, which applied it to administrative bodies. A person must know the case against him (Kanda), but the content varies with the context (Doody). In Sierra Leone section 23 adds a constitutional guarantee of a fair hearing before an independent and impartial body.
conclusion
Both rules now apply to almost every body that decides matters affecting individuals. What fairness requires depends on the seriousness of the decision.
Problem
A licence refused
A statute lets the Minister of Trade grant export licences 'as he thinks fit'. The Minister adopts a rule never to license firms with fewer than ten staff. He refuses Bintu's firm, which has eight, without hearing her. His deputy secretary signed the refusal. The Minister's brother runs a rival firm. Advise Bintu.
issue
Whether the refusal is unlawful for fettering discretion, delegation, bias or unfairness, and what remedies are available.
rule
British Oxygen; Padfield; Carltona; Dimes; Porter v Magill; Ridge v Baldwin; Doody. Certiorari and mandamus under section 134. O'Reilly v Mackman.
application
The words 'as he thinks fit' do not give an unfettered discretion (Padfield). A rigid rule that he will never grant to small firms, with no willingness to hear exceptions, is an unlawful fetter (British Oxygen). The deputy secretary signing is likely lawful under Carltona. His brother running a rival firm does not give the Minister a direct financial interest, but a fair-minded observer may see a real possibility of bias (Porter v Magill). Refusing a licence that affects her livelihood without letting her put her case may also be unfair (Ridge v Baldwin; Doody). She should apply to the High Court for judicial review, seeking certiorari to quash and mandamus to require a fresh decision.
conclusion
The refusal is likely to be quashed for fettering discretion and, probably, apparent bias and unfairness. Bintu should bring judicial review promptly.
Problem
A broken promise
A council wrote to market traders promising that their stalls would not be moved for five years. Two years later, without consultation, it decides to move them all to a new site for road-widening. Advise the traders.
issue
Whether the traders have a procedural or substantive legitimate expectation, and whether the public interest justifies the change.
rule
GCHQ; Ng Yuen Shiu; Coughlan; Wednesbury.
application
The letter is a clear and unambiguous promise to a defined group, so it can create a legitimate expectation. At the least, they should have been consulted before the change (GCHQ; Ng Yuen Shiu). Holding the council to the promise itself is harder: Coughlan applies where breaking it is so unfair as to be an abuse of power, often where the promise is to a small group and has financial or personal importance. Road-widening is a strong public interest, and the court will weigh it against the unfairness. The traders are likely to obtain at least a fresh decision after consultation.
conclusion
The decision is likely to be quashed for failure to consult. A substantive claim to stay is possible but uncertain, because of the public interest in the road works.
