Judicial Review in the United Kingdom
Procedural Questions for Claim to Stand
When a judicial review is brought before the court, the first step is for the court to determine if it is an arguable case. The key considerations that the court makes are where the issues brought before it has two different arguments that are reasonable where the court will have to side with one of them. The process considers many variables, but the most important factors are the grounds on which the judicial review is based and the weight of the case brought before the court. The three critical grounds that justify a judicial review are illegality, procedural unfairness, and irrationality.
Was the decision illegal?
The first question checks if the decisions presented for review are illegal according to any laws that currently govern the country. Illegality is one of the most common grounds on which a judicial review is based. The question asked is whether an agency may have acted against the laws that govern their operations and the activities they undertake in different jurisdictions. The illegality can occur due to unlawful sub-delegation where the decision is made by the wrong person (Sapienza, 2018). It also occurs due to decision-makers going beyond their powers. Lastly, illegality can occur due to ignoring legitimate considerations or taking into illegitimate considerations. If there is a chance that these thresholds are met, then the case can go to a hearing.
Was the decision Irrational?
The second question that needs to be answered is whether a decision was irrational. The level of rationale is considered measuring a decisions limits within the bounds of what is considered acceptable. A court can accept a claim to stand if the decision made is proven to be considerably out of what is expected. The chance that a person that made the decision did not reason out as all other people would have makes it reasonable to review it. If the decision sounds irrational, a claim may stand and be allowed to go for a hearing by the courts.
Was there any procedural unfairness?
The courts also check if the decision-maker followed the correct procedure when making the decision. All agencies have laws that guide their actions and powers, and these laws often stipulate the guidelines and processes that need to be followed. The procedures are designed to ensure that a fair hearing is given to the participants and that all necessary considerations are made before arriving at a final decision (Tomlinson et al., 2020). The court checks if any of the procedures set out were not followed or whether things such as consultations are undertaken effectively to guide the decision-making process where necessary. If there are issues concerning which procedure was used and how it was used, then the case can go ahead to the hearing stage.
Are there any relevant legitimate expectations?
Legitimate expectations also form a ground on which a judicial review can be undertaken. The core question asked is whether a person had a legitimate expectation that something will happen in a specific way. It could occur if a person were made to believe that specific steps will be followed when dealing with an issue. It also happens when a person relies on a policy that governs an area or a past executive action. When such expectations exist, the court is willing to listen to the case and determine if a judicial review is applicable and which methods can be best used to meet the standards expected by the constitution effectively.
By asking and answering the above questions, judicial officers can determine if the matter at hand presents an arguable case. Development of any doubts about the legality of the decision made, procedures used, or rationality of the decision means the case goes to a hearing and gets determined by a judge. The irrational nature of a decision is probably the most difficult to prove. It is also part of why most of the cases that are presented never make it to hear.
Judicial Review and the British Constitution
The United Kingdom is a country ruled by a prime minister elected by parliament as the leader of the party that has the majority of members in parliament. The parliament is considered the ultimate authority within the country, and any other authority cannot challenge the laws created by the house. A judicial review is a system within the constitution that allows an individual or institution to challenge the way power is exercised by different public bodies within the various levels of government. When an individual feels that any power exercises are unlawful, they have the right to apply to the administrative court to hear whether the actions or decisions were lawful.
In parliamentary sovereignty, it is notable that the constitution protects parliament and considers it the highest authority. The laws made by parliament cannot be challenged or changed by the court through a judicial review process (Sandro, 2021). When a judge finds a law to be unlawful, the source of the law gets checked. If the law was created by a directive of a minister or government official, then that can be struck down, and an injunction may be imposed. However, when the law was created by parliament, it cannot be considered unlawful and stands without alteration.
Judicial reviews can alter the rule of law by injunctions to the various public bodies that may be found guilty of being unjust in their decisions. Many different agencies enforce the rule of law across the country. It depends on the area of control and even the various areas of society and the economy. The government agencies and ministries can be checked on their exercise of power by checking if they observe the rule of law and to which degrees they can accomplish such activities. When they overstep the limits that the law stipulates, the courts have to give injunctions correcting the wrongs.
The core aspect of the rule of law is that the courts can issue injunctions that force the agencies to do something or prevent them from doing something. The guiding principle on this aspect is usually the concept of equitable remedy. The injunctions are meant to help bring justice and reparation in cases where harm may have already been caused or prevent further harm from occurring. The concept of the rule of law in the constitution is effectively followed and applied. The government is expected to rule using the laws, and a deviation is considered an injustice to the public.
Lastly, the constitution sets up a clear separation of powers between the three arms of government. The legislature has the duty of creating laws that govern the various activities of the people and the government. On the other hand, the executive branch is the branch responsible for the running of the government and is also responsible for enforcement of the laws that the legislature develops (Mejía, 2020). The executive is run by members of parliament that form the government and are ministers, and have many other agencies below them. Lastly, the judiciary is the arm of government that runs the courts and solves issues in society through laws.
The judicial review works to regulate the executive against overstepping and doing things that are beyond the limits set by the legislature. The judiciary arm of government does the process and indicates the relationship between the three arms of government. The judiciary can also not change the laws developed by parliament. It shows the limits that the constitution has placed on the checks and balances that the judiciary can undertake. A judicial review is an essential tool used by the judiciary to regulate the actions of the executive arm of government.
Judicial Review Procedural Question
From the analysis of the information given, it is evident that David has clear grounds to argue against the decisions made by Solent City Council. But for each of the shops, the grounds are different, and thus a need to understand each case individually. In the first shop, the city is seen to have clear grounds for refusing to offer a license for the shop. The laws established indicate that a shop selling legal highs can be denied a license to set in an area within two miles of a school.
Such a law is often developed to help to protect children from exposure to drugs even when they are legal (Nazzini, 2021). When a shop is too close to a school, it is common to find that the children will regularly view the drugs or the advertising that often accompanies the drugs in the store. Such regular views are likely to make them want to experiment with the drugs, which could effectively lead to their addiction in the long term. It is even worse for children between 6 years and ten years as they are young and very vulnerable.
The Solent City Council has the duty of protecting the children from exposure to legal highs that could directly impact their health. Understanding this factor can help see the reasoning in the decision by the city to block the establishment of the first shop at a location closer than 2 miles from the Solent City Junior School. The law has a very understandable reason, and David lacks any ground for appeal for the city’s decision to block shop A from being established. The court should throw out the appeal for the first shop as its case is not arguable.
The second shop’s main argument was that it was within two miles of the South Coast University. The case can be appealed because the ruling is irrational. As part of the laws passed by parliament, it is correct that the city must prevent the opening of such shops in locations within 2 miles of a school. However, it is notable that in this case, the school in consideration is a university. A university is a learning institution for people above the legal age limit for using legal high, and thus it is irrational to apply that law in this case.
Universities admit students after they have completed their high school studies. The process often means that the students being considered are above the age of no longer considered a child (Lustig, & Weiler, 2018). The core reason why the 2-mile radius law was established was to protect children from exposure to these drugs. There are no children to be protected as all the people in the university are grown-up that can reason on what is good for them and what is not. It would be a rational decision to allow the shot to be established as long as it only sells to people above the minimum age limit.
There are also many examples of universities that allow for legal highs to be sold within the campus. Such systems are often in place to the grantee that students have all the amenities they need within the university. When legal highs are even being sold inside the schools, it makes no sense to prevent them from being sold within a 2-mile radius of the campus. The court should consider offering injunctions that could correct this and permit David to open the second shop. Considering examples in other universities across the country can also offer a factual analysis of how close such a shop can be to a university.
The third shop was denied a license based on the thinking that the shop’s opening may decrease property value within the area. David can appeal this case on the grounds of procedural impropriety. The decision suffers from procedural impropriety simply because in making the decision, the rules of natural justice have not been adhered to. In this case, the most notable rule is the rule against bias (Craig, 2017). The rule states that a decision should be made without any personal biases guiding the decision-making but should be entirely based on the facts.
For shop C, it was the thinking of the decision-makers that having such a shop in the area will lead to the value of the local property being undermined. The idea is that if legal highs are being sold within an area, some people may feel that the area is not the best and thus could lead to devaluation of the property value. Such considerations indicate that the decision-makers had personal biases about the type of businesses they wanted to see in a specific area. They also had their thoughts about how these businesses can impact the value of the property.
Lastly, there is the ground that the decision is illegal. The Legal Drug Shop Act 2017 does not allow a decision to block the opening of legal highs shops based on economic considerations. The city is permitted to block a shop based on moral considerations that a community has but not economic considerations. The decision-makers acted beyond the legal limits permitted by the constitution and the law. It makes the decision they made to be unjust to David and any other person they may judge in the future based on the same consideration.
For the fourth shop, the license was denied because the shop failed the s3 inspection. The result could be appealed because the decision made was illegal. Judicial review can be done based on the fact that the decision made was illegal. In this case, the decision made was illegal since the person that made it does not have the legal capacity to be making such a decision (Clear & Cahill, 2021). The city chooses to send Sandra, a business person who already has shops selling illegal highs in the area. Therefore, she is a competitor to David and cannot be expected to deliver a fair assessment of a possible competitor.
Second, an appeal can be argued that there is procedural impropriety because Sandra has some personal interests in the decision she is expected to make. Sandra is bound to benefit if David cannot open his shops since she will have no competition but will lose out if David opens as she will have a competitor in the city. The inspector’s interest makes the activity illegal, which can be argued in the high court. A person doing the inspection should be free of any interests in the business to guarantee that their judgment is impartial.
Lastly, when David was given a chance for a hearing, he was only allowed to make written submissions. The process required him to submit new documents as evidence to his arguments, but the lack of other documents meant that he lost the case. It is, therefore, reasonable to say that he did not get a fair hearing. The lack of a fair hearing is a breach of natural justice and can be argued under procedural impropriety in front of a judge. It was reasonable for the city to allow David to defend his applications verbally as he would have expressed his arguments more accurately. It is also reasonable for the court to give the city managers an injunction compelling them to give David an operating license for three of the four shops and block them from any further interference.
Clear, S., & Cahill, D. (2021). An Empirical Study of the Frequency and Distribution of Judicial Review in Resolving Public Procurement Disputes: Proposals for Legal and Policy Reform. European Public Law, 27(1), 131-166.
Craig, P. (2017). Judicial review of questions of law: a comparative perspective. In Comparative Administrative Law. Edward Elgar Publishing.
Lustig, D., & Weiler, J. H. (2018). Judicial review in the contemporary world—Retrospective and prospective. International journal of constitutional law, 16(2), 315-372.
Mejía, L. E. (2020). Judicial review of regulatory decisions: Decoding the contents of appeals against agencies in Spain and the United Kingdom. Regulation & Governance.
Nazzini, R. (2021). A reform too few or a reform too many: Judicial review, appeals or a prosecutorial system under the UK Competition Act 1998?. Journal of Antitrust Enforcement, 9(1), 19-53.
Sandro, P. (2021). Do you really mean it? Ouster clauses, judicial review reform, and the UK constitutionalism paradox.
Sapienza, A. (2018). Judicial review of non-statutory executive action: Australia and the United Kingdom reunited?. University of Western Australia Law Review, 43(2), 67-102.
Tomlinson, J., Hynes, J., Marshall, E., & Maxwell, J. (2020). Judicial review in the administrative court during the COVID-19 pandemic. Available at SSRN 3580367.