Public manual three 2020

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LLB Year 1
Academic year 2019-20
Public Law
Part Three

Public Law (LLB) Page 3
Contents Page number
1. Unit Leader…………………………………………………………………………………………………………………. 4
2. Recommended Textbooks…………………………………………………………………………………………… 4
3. Introduction………………………………………………………………………………………………………………… .5
4. Class Programme………………………………………………………………………………………………………… .7
5. Lecture One ………………………………………………………………………………………………………………… 8
6. Workshop One..………………………………………………………………………………………………………… 16
7. Lectures 2 and 3 ……………………………………………………………………..……………………………..……22
8. Workshop Two..…………………………………………………………………………………………………………. 32
9. Lecture Four …. ……………………………………………………………………………………………………………39
10. Workshop Three ……………………………………………………………………………………………………… 43
11. Lecture Five.. …………………………………………………………………………………………………..…………. 47
12. Workshop Four………………………………………………………………………………………………………….. 54
13. Mock Exam ………………………………………………………………………………………………………………… 59
15. A4 Grid …………… ……………………………………………………………………………………………………… 61
Teaching team

Unit leader:
Kim Edmonds,room 6.23 Sandra BurslemBuilding
Email:k.edmonds@mmu.ac.uk
Phone:0161 247 3074
Otherlecturers’ detailscanbe foundonthe Moodle page.
Text book: Alex Carroll,(2017)Constitutional and
AdministrativeLaw (9th
ed.) Harlow,Pearson

Introduction
Course outline
This part of the course deals with Judicial Review and the ways in which a person can
challenge the decisions of public bodies.
Assessment and formative assessment:
The Course is assessed with a coursework portfolio (worth 50% of the marks) – which
you have already done - and a final exam (also worth 50% of the marks). The final exam
has two questions on it: the first question is the essay question which you covered in
project two; the second question will be a problem question on judicial review.
The workshops of this project will focus on Judicial Review. You should regard these
workshops as cumulative.
The questions in the second question of the examination will be the same as the
questions on page 66 of the manual, though the scenario will obviously be different.
You will have a chance to do a mock examination question similar to the one in the exam
during the last two weeks of term: dates will be available later. This will be marked
and returned to you by post with a model answer. If you do not attend this you cannot
use the materials in the exam.
Materials in the examination
You may take with you into the examination the completed A4 grid supplied at the end of
the manual and available on Moodle. The grid must be completed in Arial font size 12.
On the grid you may put case names which relate to Judicial Review only and a brief
explanation of the ratios of those cases only. You may alter the size of the blocks on the
table to accommodate long or short case names or ratios, but you must not allow the
table to be more than one side of A4 when completed. If you have special requirements
for examination the font size and size of paper may be reasonably adjusted as
appropriate. You must bring this sheet of paper to workshop 4 (in the week commencing
16th March 2020, where it will be collected by your tutor. The sheet will be returned to
you at the end of the mock in the last two weeks’ of term, along with your essay plan grid,
handed in at the end of project two. The purpose of the sheets is to allow you to use a
very limited aid memoire so that your whole answer does not fall apart because you
cannot remember one case name. Past experience has shown that notes like these are
not always helpful to students; students who have not attended or prepared the
workshops properly tend to do worse if they have notes, because they do not learn the
material properly. Hence, if you do not attend workshop four and bring your A4 grid
of notes to the workshop, and attend workshop four, write the mock and collect
the sheet, you will not be allowed to take any materials into the exam. The A4 grid
may not be handed in after the workshop or instead of attending the workshop. If
you put information other than the case names or ratios of relevant cases on the
grid, you will not be permitted to use it in the exam.

Class Programme (Part Three)
Week
commencing
Lecture * Workshop
17th February 2020 Lecture One of Part Three No workshop
24th February 2020 Lecture Two of Part Three 1st workshop of part
Three
2nd March 2020 Lecture Three Part Three 2nd Workshop of Part
Three
9th March 2020 Lecture Four of Part Three 3rd Workshop of Part
Three

16th March 2020 Lecture Five of Part Three (Question
guidance)
4th Workshop of Part
three
23rd March 2020
and 30th March
2020
No workshops or lectures, but
compulsory mock (at which the A4
sheets and essay plans will be returned).

Lecture One
Judicial Review:
Introduction:
JR is a process by which the courts review the way public bodies make decisions that
affect individuals.
Public bodies include schools, local authorities, prison authorities and local health
authorities. These authorities often make decisions that affect individuals: for example
a school may decide to suspend or expel a student, a prison authority may decide to
discipline a prisoner, a local authority may decide to give or refuse a person a student
grant or planning permission.
Judicial review allows the court to check over the way a decision was made. It does not
allow the courts to make a different decision , merely to say that the decision was badly
made and the authority should make the decision again.
For example, suppose that a local authority decides to let the leader of the council give a
student grant to his niece. If someone applied for judicial review of the decision to give
the niece a grant, the courts would say that the decision to give the grant had been badly
made because it was made by someone who was likely to be biased. The court would
not decide whether the niece should have a grant or not. It would tell the local authority

that it had to go back and have someone more independent look at the papers again to
decide whether or not the niece should get a grant.
An application for judicial review can be brought by anyone with sufficient interest. In the
example above, a person who had been refused a grant by the same local authority might
apply for judicial review, as might the Students’ Union.
Judicial review cases have unusual citations:
The old style of JR case might be written:
R v Withington Borough Council, ex parte Smith [1987] 2 All ER 563
 The implication is that the crown takes Withington Borough Council to court on
behalf of Mr. Smith who feels that a decision of Withington Borough Council was
not properly made.
The new style of JR case is cited:
R(on the Application of Clark-Darby) v Highbury Corner Magistrates’ Court [2001]
EWCH Admin 959
Judicial Review is not a form of appeal.
A judicial review hearing will not substitute a different decision for the one that has been
made. It will not look at a decision to decide whether it is a good decision or a bad
decision. It will only look at a decision to decide whether it was correctly made in the
sense of following the correct procedure. If you win a JR case, you do not get the
decision you want, you have to go back to the original decision maker and ask them to
make the decision again. For this reason JR is not a suitable way of challenging a
decision when it is possible to appeal the decision.
However, The Criminal Justice and Courts Act 2015 basically provides that the
courts should not allow cases of JR where it appears “highly likely’ that the outcome
would not have been substantially different (s.84, amending the Senior Courts Act
1981)
The Origins of Judicial Review
The courts take the power to review decisions of public bodies
from some ancient principles and from the Human Rights Act.
1. The principle of parliamentary sovereignty which implies that public bodies
only have the power to make decisions because of powers that are given to
them by parliament and hence anything they do that is not in accord with
the empowering Act of Parliament is beyond their power (ultra vires) and
can be set aside by the courts. Judicial Review under this principle is
sometimes referred to as judicial review for illegality.
2. The principle of natural justice which says that if parliament has not said
otherwise an institution with power over others should behave fairly. What is
required for fair behaviour will depend on the circumstances but it may include
listening to the other person’s point of view and allowing the person affected by

the decision to present their case fully. Judicial review under this principle is
sometimes referred to as judicial review for natural justice or procedural justice.
Article 6 of the European Convention of Human rights, brought into UK law by
the Human Rights Act, also gives individuals a right to fair hearing in certain
circumstances.
3. The Principle that a public body should not behave completely unreasonably.
This has been adapted by the Human Rights Act and EU law to mean that the
courts can also look at decisions which impact on Human Rights or EU law and
set them aside as not proportionate.
Natural Justice
This section deals with ways of challenging decisions made by public bodies that are
defective because they failed to follow the right procedures in making the decision.
Two aspects will be covered in this course.
1. When a public body makes any decisions the courts will require certain things of
the decision making process for natural justice. The courts may require, for
example, that the person concerned by the decision should be allowed to put his
own point of view. What the court will require of natural justice will vary
depending on the type of decision being made. The rules of natural justice can
be loosely divided into two parts: the concept of a fair hearing and the
doctrine of legitimate expectation.
2. For all decisions, however, the courts will require that the person making the
decision is not biased and does not appear to be biased.

What is a fair hearing?
There are various things that might be required for a fair hearing:
 Right to be informed in advance of the case to be met
 Right to a reasonable time to prepare a response
 Right to be heard: verbally or in writing
 Right to cross-examine
 Right to be legally represented
 Right to reasons for the decision
Each of these possible things can exist in several forms. For example, what may be
considered a reasonable time to prepare a response will vary depending on the
circumstances.
Very Important! – Natural Justice does not apply to all decisions.If you
want natural justice to apply to a particular hearing you have to justify that
demand by showing that natural justice should apply in this situation. This
means showing either that the statute that empowered the decisionmaker
required that natural justice should apply or that It would be “fair overall” for
natural justice to apply.
The statute that empowers the decisionmaker may say quite clearly what
kind of natural justice applies;for example, the statute might say that
certain people had the right to be consulted before a decisionwas made.
In that case the decisionmaker certainly has to consult those people
before making the decision(unless it obviously wouldn’t make any
differenceto the outcome). The statute might say that the decisionmaker
had to have “a hearing” or “a full hearing” in which case you could argue for
quite a lot of the things that go with natural justice.
If the statute doesn’tsay that natural justice should apply to the decision,
you can still argue for natural justice on the grounds of “overall fairness. It
is especiallyimportant to think about what the consequences forthe
personaffected by the decisionmight be.
Try thinking about the following situations:
a) a person whom the librarian wants to fine £5 for having a book overdue

b) a person who is in prison and has been accused of fighting in prison.
The prison governor wants to remove some of the prisoner’s remission as
a punishment.
c) a person whose child has beenrefused a place at the schoolshe wants
to attend.
d) a person applying for a visa to come to the UK for a holiday
e) a person applying to come to the UK for a visa to visit his dying mother
who lives in the UK
f) a personaccused of cheating in an exam.
The potential elements of a natural justice
a) The right to be informed of the case to be met
 R v Army Board of the Defence Council, ex parte Anderson [1992] 1 QB 169
Where a body is not simply making an administrative decision, requiring it
to consult interested parties and hear their representations, (but ) has a
duty to adjudicate on a specific complaint (the public body should not)
consider material withheld from the complainant
 Can restrict detail to the general gist of the case for
o Administrative efficiency
o National security
 R v HS, ex parte Agee and Hosenball [1977] 1 WLR 766
o Fight against crime
 R v Gaming Board for GB ex parte Benaim and Khaida [1970] 2
QB 417
b) The right to a reasonable time to prepare a response

Except for countervailing public interest the person judged should usually be allowed
sufficient time to digest information and prepare a response
 R v Thames Magistrates, ex parte Polemis [1974] 1 WLR 1371
o Cargo shop apparently produced oil slick. Summons to appear
under control of Pollution Act 1971 on afternoon of day when the
summons was issued.
o Conviction quashed because no reasonable chance to prepare
defence.
c) The Right to be Heard
 Does not imply a right to be heard in person – may be in writing
 Right to be heard in person dependent on context attracting highest
standard of procedural fairness
o R v Army Board of the Defence Council, ex parte Anderson –
complained of racial abuse by superior officers – did not imply right
to oral hearing
 Taylor J Whether an oral hearing is necessary will depend
upon the circumstances of the particular case and upon the
nature of the decision to be made. It will also depend upon
whether there are substantial issues of fact which cannot be
satisfactorily resolved on the available written evidence. This
does not mean that whenever there is a conflict of evidence
in statements taken, an oral hearing must be held to resolve
it. Sometimes such a conflict can be resolved merely by the
inherent unlikelihood of one version or the other.
Sometimes the issue is not central to the issue for
determination and would not justify an oral hearing.
d) Cross Examination
 Only arises where procedural fairness requires an oral hearing
 If there is an oral hearing, prima facie there is a right to question those who give
evidence to the decision maker
o R v Deputy Industrial Injuries Commissioner, ex parte Moore [1965] 1 QB
456
 However this won’t be allowed where it would “over judicialise” the process
o Bushell v SS for the Environment [1981] AC 75 – where refusal by an
inspector to allow a party to cross-examine orally at a local enquiry a
person who had made statements of fact or expressed expert opinions is
not unfair per se (local enquiry into road plan)
e) Legal Representation
 No automatic right to legal representation just because there is an oral hearing
 Decision maker to decide considering: (R v HS, ex parte Tarrant [1985] QB 251
o The seriousness of the charge and the potential penalty

o Whether any points of law were likely to arise
o Capacity of the prisoner to present his own case
o Complexity of the procedure
o Need for reasonable speed in decision making
o The need for fairness between the two sides
NB there are two issues here:
1. has the decision maker considered the appropriate things when
deciding whether or not to allow legal representation
2. given the factors, how should the decision (about whether or not to
allow legal representation) have been made
f) Reasons
Following the Criminal Justice and Courts Act 2015, you need to show that reasons
would be useful for a case that your client might actually win before you are entitled
to reasons.
If you manage to show that you are entitle to reasons, then these reasons must be
proper, intelligible and adequate Magaw J, Re Poyser and Mills’ Arbitration [1964] 2 QB
467
And Good enough - to reveal any flaw in the decision making process which will be
open to challenge on some ground other than the failure to give reasons – Save
Britain’s Heritage v No 1 Poultry Ltd [1991] 1 WLR 153 Lord Bridge

Workshop One

Preparation:
(1) Read Carroll, pages 354-363
(2) Write a shortanswer to the following question,using the lecture
notes:
John works for Jacksons plc. John feels that his manager, Tim, is bullying
him and has put in a written complaint about Tim to the firm’s senior
manager, Sara. A week later, John receives a letter back from Sara,
saying that she has considered his complaint and has decided that Tim is
not bullying John. Are there grounds on which John could apply for judicial
review of this decision?
In class Activity One:
You will be given a series of possible answers to the question you prepared for the
workshop and some marking guidance. Assess the answers in pairs, using the
guidance. Apply the marking criteria to your own answer.

Activity Two
1. Read the following notes on “the right to an unbiased judge”
The right to an unbiased judge:
Justice should not only be done, it should manifestly and undoubtedly be seen to be
done. R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256
The person who is “judge” in a hearing of any kind should not be biased.
There are three ways of considering this:
1. If actual bias is proved, that is an end to the case - this is where the decision maker
more or less says, “Good, this is my chance to get so and so”
”R v Gough [1993] AC 6462.
2. Where the decision maker has a “direct interest” in the case, he may not be the
decision maker because no man should be judge in his own cause
Dimes v Grand Junction Canal Proprietors (1852) 3 HL Cas 759 – a
decision of the Lord Chancellor was set aside because he owned shares in the Canal
which was under consideration, although there was no evidence that he was in the
remotest degree influenced by the interest he had in this concern

R v Bow Street Stipendiary Magistrate, ex parte Pinochet Ugarte (No.2)
[1999] 1 All ER 577
Pinochet was the (extremely nasty) ex-dictator of Chile. The Spanish
wanted to extradite him for human rights abuses. A decision by five law lords to
extradite Pinochet was set aside because one of those Law Lords, Lord Hoffman, was
a director of Amnesty International.
3. Where the decision maker appears biased – but there is no direct interest, the test for
setting aside decision is:
a) the judge is presumed to be impartial
b) the decision may be set aside if having regard to all the circumstances.
.which a fair minded and impartial observer would properly have regarded
as material a fair minded observer would conclude that there was a real
danger that the judge was biased.
R (on the application of Al Hasan) v Secretary of State for the Home
Department [2005] UKHL 13
2. What is the legal effect of proving that the judge is biased?
3. Why might it have been more convenient to Dimes to show that the Lord
Chancellor “had an interest” in the Canal shares, that to show that The Lord
Chancellor was corrupt?
5. Stuart is the person in charge of issuing hardship grants at Medchester
University. Stuart’s niece, Poona, is applying for a grant. Stuart decides to give her
a grant. Advise Elizabeth, who wants to challenge the decision to award Poona a
grant. Your answer must follow the IRAC structure. You will be askedto read out
your answer.

Activity Three
You will be asked to take part in a short drama. Scripts will be provided at the
workshop.
Please make notes of what happened in the drama, so that you can use the notes in
workshop 3
Peter’s contract with the Happy Housing Estate includes the following clauses:
63A Termination of tenancy. The tenancy may be terminated by the tenant at 4 weeks’
notice.
63B Termination of tenancy. The tenancy may be terminated by the landlord only upon
proof that the tenant has either
(i) failed to pay the agreed rent by the due date and, following a reminder
supplied by the landlord, failed to pay any arrears within 6 weeks.
(ii) upon proof before a properly convened hearing, that the tenant is engaging
in activities which are disruptive to the other tenants
(iii) in the event of the tenant ceasing to live in the flat, subletting it without the
consent of the landlord or using the premises for improper purposes.

Attached to the tenancy agreement is a letter, signed by the person who was the local
authority housing officer at the time Peter began to live in The Happy Housing Estate.
Dear Peter,
Here you are at last. This is the paper work. You can
relax now – we won’t be moving you on again.
Yours
Jim
Does the hearing in the scenario demonstrate any breaches of natural justice?
Complete the table on the next page. When you have had the grid checked, write an
argument which suggests that Peter should be allowed Judicial Review for breach of
natural justice. This is to be read out.
Factor in Scenario Principle and Case Level of natural
justice
Application and
outcome

Lectures Two and
Three

Judicial Review: Illegality
1. Ultra Vires
Public Bodies (like local authorities) only have the power to make decisions (like
whether to give someone a grant) because they were given that power by an Act
of Parliament. If a local authority does something that it is not given power to do
by an Act or it fails to do something that it is required to do by an Act of Parliament,
then the courts can quash the decision of the local authority by finding it to be ultra
vires (literally “beyond its powers”)
Three situations will be considered:
1. Simple ultra vires (lack of power) – where the local authority does something that it
has not been given power to do by an Act
2. Ultra vires (failure to fulfil a statutory duty) – where the public body fails to do
something that it has been required to do by an Act of Parliament
3. Failure of jurisdictional fact – where the public body does something that it would have
been entitled to do in certain conditions but the conditions are not met
Simple Ultra Vires – Lack of Power
 A-G v Fulham Corporation [1921] 1 Ch 440 – corporation had a statutory power to
provide wash houses – did not include a right to set up laundries where people had
to pay to get their clothes washed
 Further illustrative example:
 A-G v Wilts United Dairies (1921) TLR 884 – renting out of local monopoly on
milk distribution during war – effectively amounted to a tax - no power to raise
tax without act of Parliament
 But this does not exclude any action not explicitly authorised:
 Whatever may fairly be regarded as incidental to or consequential upon those things
which the legislative has authorised ought not to be ..ultra vires AG- v Great Eastern
Railway Co. (1880) 4 App Cas 473

Simple Ultra Vires – failure to fulfil a statutory duty
 A duty needs to be sufficiently specific for an action for JR to apply to failure to do
something
 E.g. failure to provide adequate street lighting – failure to provide any lighting would
definitely be ultra vires, providing some would be difficult because the duty is not
specific enough
 R v Camden LBC ex parte Gillan (1988) 21 HLR 114 – duty under Housing Act 1985
to hear and decide whether people were homeless intentionally and to secure
accommodation. Office to decide whether and applicant was intentionally or
unintentionally homeless open only on weekdays between 9.30 and 12.30 with
telephone access only. Less than minimum, hence ultra vires
Error of Jurisdictional Fact
 Where a power is restricted to particular circumstances and the LA uses it in other
circumstances
 R v HS, ex parte Kharawaja [1984] AC 74 – right to detain illegal immigrants depends
on the person actually being an illegal immigrant, not merely an immigration officer
believing that he was an illegal Immigrant
 Further illustrative example:
 Tan Te Lan v Superintendent of Tai a Chau Detention Centre [1996] 4 All ER
256 – power to detain an illegal entrant pending removal only legal if removal
was actually pending (i.e. within a reasonable time)
The “no evidence” Rule for error of jurisdictional fact
 Error of jurisdictional fact also refers to the situation where body enters its decision
making lawfully (that is the pre-existing facts are present) but makes a decision on

no evidence or on so little evidence that no reasonable decision maker could make
a decision based on that information
 Coleen Properties Ltd v Minister of Housing and Local government [1971] 1 WLR
433 authority to acquire slum properties and other properties where this was
reasonably necessary. No evidence offered on whether this particular property
was a slum. Hence decision to confiscate the property was ultra vires.
2. Failure to exercise discretion:
Often a power is given to a local authority to exercise discretion: for example, to consider
applications for grants and decide whom to give a grant to. The public body will be acting outside
its powers if it then fails to exercise its discretion by not looking at all the applications or farming
out the choice of “whom to give a grant to” to some other body. This is judicially reviewable.
Parliament hasdecided who should make the decision, and the courts will not often intervene if the
right person makes the decision, even if the decision that person makes seems a bit weird.
Five situations will be considered:
1. Unlawful delegation – where the public body gives the decisionto some other person
who does not have statutory authority to make the decision.
2. Surrender or abdication of discretion – where the public body fails to stop some
other body making the decision for it.
3. Acting under dictation – where the public body makes its decision as a result of
dictation or improper pressure from another body
4. Fettering discretion by policy – where the public authority limits its freedom to make
a decision by following a rigid policy.
5. Fettering discretion by contract - where the public body restricts its power to
decide by contractual or other obligation
Unlawful delegation
 Giving the decision to someone else to make:

 Barnard v National Dock Labour Board [1953] 2 QB 18 – disciplinary powers over
dockers given to Local Dock Labour Boards – no power to delegate it directly to dock
manager
 Allowing the decision to be made by a part of the committee that should make the
decision
 R v Liverpool City Council ex parte PAT1984 – Education Act 1944 stipulated a report
from education committee should be considered before exercise of powers – report
must be made by committee collectively and not just by chairman
 Hence power must in general be exercised by the body to whom it was given – whole
committee and not just one person
Surrender or abdication of discretion
 Effectively the public body always relying on someone else’s categorisation and so
not applying the discretion itself
 E.g. Ellis v Dubowski [1921] 3 KB 621 – LA regulating local cinemas was required to
watch all films to be shown in the area before allowing them to be shown. LA officers
did not bother to watch the films, but allowed those certified by the British Board of
Film Censors to be shown. This is illegal as surrendering discretion; the LA must
consider the films itself
Acting under dictation
Public body should not by unduly influenced by another body when making its decisions:
 R v Coventry CC ex parte Phoenix Aviation [1995] 3 All ER 37 - decision to suspend
flights from airport following animal rights protests on live animal flights – unlawful
dictation because public body should not act as directed by unlawful protests and
pressure groups. – cannot discriminate between lawful traders except in emergencies.
Fettering Discretion by Policy
 Policies are a practical necessity for public bodies making similar decisions many
times over.
 A policy must not be so rigid that each case is not considered

 However a committee may have a policy to guide its decisions provided that it actually
does consider each case to see if there is something exceptional
 British Oxygen Co Ltd v Minister of Technology [1971] grants but policy not to award
for less than £25 –application for several cylinders of £20 refused – lawful policy
provided minister considered each application with genuine readiness to make
exceptions OK provided always ready to listen to anyone with something new to say
 Changing policies
 A body must be free to change its policies in the public interest so changes in policy
– which may disadvantage an applicant can only be JRd if
 Refusal to exempt an individual from the new policy is Wednesbury
unreasonable
 R v Home Sec ex parte Hargreaves [1997] 1 All ER 379
Fettering of Discretion by Contract or Agreement
A public body cannot enter into a contract which inhibits the use of discretion.
 Stringer v Minister of Housing and local Government [1970]
 application for planning permission near Jodrell bank turned down due to contract
between council and university about building near telescope. Ultra vires as council
had power to grant or to refuse planning applications (Town and Country Planning Act
1971) – so had to consider each application on its merits, a discretion which it would
have contracted away – hence contract UV
 Does not mean LA can avoid any contract later found to fetter discretion
 R v Hammersmith and Fulham BC ex parte Beddowes [1987] – conservative
council selling council blocks to move restoration costs into the private sector.
To prevent possible Labour council from overturning this decision, covenant in
sale to say flats may not be re-let by council after they become vacant. This
would make the blocks impractical for the council to manage. Appears to fetter
discretion in use of housing stock however court said if the purpose for which
the power to create restrictive covenants is being exercised can reasonably be
regarded as the furtherance of the statutory objective, then,, not an unlawful
fetter. Effectively if the power is being used in a reasonable and honest way
to achieve the objectives of the statute, the fact that it fetters some other way
of achieving the same objective is not fettering discretion by contract.
Make sure that you understand the difference between a contract that furthers the
purpose of the statute and a contract that fetters discretion under the statute.

3. Abuse of discretion
This occurs where the discretion is exercised by the appropriate people but in
ways that contravene the purpose of parliament either:
 because of irrelevancy - the decision maker takes into account irrelevant
factors; or
 because the decision maker has an improper purpose – that is the powers were
given to the decision maker to achieve one purpose (e.g. provision of grants to
poor students) but the power is actually being used by the decision maker to
achieve something else (e.g. to finance a local college)
Irrelevancy
 Where the decision maker has taken into account irrelevant material or has failed to
take into account relevant material
 e.g. Roberts v Hopwood [1925] – Poplar tried to impost minimum wage of £4 per week
on all employees – reviewing court held that the decision maker took into account
irrelevant materials like feminist principles, failed to take into account fiduciary
obligation to rate payers
 Deciding which factors are relevant is complex and there is a risk that the courts will
become politically involved when using this type of JR because which factors should
be taken into account when making a decision is often a political decision.
 Onus is on applicant to show what irrelevant issue may have been considered or what
relevant consideration might not have been considered
 E.g. R v Lancashire CC ex parte Huddleston [1986] 2 All ER 941 –
unsuccessful application by student for discretionary grant – good record –
thought extraneous stuff might have influenced authority but did not know what.
Court refused to quash the decision because the student could not say what
the unreasonable materials taken into account might have been.
Improper purpose
 Using the decision making power to frustrate the enabling Act or to achieve something
other than the purpose of the Act
 Using the power to frustrate the enabling Act:

 Padfield v Minister of Agriculture [1968] – minister refused without good reason to
refer a complaint by a milk producer to complaints procedure – HL complaints
procedure for this purpose hence improper purpose
 Using the power to achieve something other than the purpose of the enabling Act
 Laker Airways v Department of Trade [1977] – use by minister of legislation designed
to ensure competition on long distance flights could not be used to protect BA
Sometimes an action has two effects: for example, giving a grant to a student to study at
a particular college has the effect of helping the student to study and helping the college
to survive. Where there are in effect two purposes, the court will identify the dominant
purpose and determine whether this was consistent with the dominant purpose for which
the power was given
 If parliament grants power to a government department to be used for an authorised
purpose, then the power is only validly exercised when it is used by the department
genuinely for that purpose as its dominant purpose. If that purpose is not the main
purpose but is subordinated to some other purpose which is not authorised by law,
then the department exceeds its powers..
 Earl Fitzwilliam’s Wentworth Estates Co Ltd v Minister of Town and Country
Planning
 Westminster Corporation v London and North Western Railway Co Ltd [1905] power
to build public lavatories with access on either side of road, incidental subway OK
because it was secondary and reasonably incidental
Illustrative extra example:

Questions for use with Lectures Two and
Three
The Schools Act 2006 requires school governors to consider any decision by a head
teacher to expel a pupil. The governors are specifically required to take into account
the need for the school to maintain good discipline. Consider the following decisions
taken by the governors of Plas Concord School:
At the first meeting of the governors, the head of the governors, George, says,
“I don’t know about you but I have very little time for all this tomfoolery. I suggest
that we tell the head that if he’s got anyone he wants to expel, we’ll rubber stamp it.
The governors unanimously agree with this plan.
a) Mark who is expelled by the headteacher and receives a letter from the governors
saying that they have considered his case and decided to support the headteacher in
expelling him. Ignore any procedural issues that arise in answering this question.
b) George has a close relationship with Mary who is the leader of the local teaching
union. George has promised the teaching union that, as far as possible, the
governors will do whatever the union wants.
Monica is a year nine child who suffers from a depressive mental illness. She has been
using a series of prescribed medications one of which had a bad effect on her, causing
her to become violent. While taking this medication, she hit one of the teachers and
the teaching union is determined that she should be expelled. The headmaster is
uncertain about this case as he has investigated the circumstances and concluded that
the violence was only caused by the medication and that following a change of
medication, Monica is very unlikely to be violent again. The headmaster refers the
decision to expel Monica to the Governors.
The governors discover that the teaching union wants Monica to be expelled and they
formally expel her.
c) At the end of the year the governors are considering the school league tables.
George has a bright idea.

“Why don’t we go through all the year 10 students who have not done well in their
exams and use the Schools Act to expel a few of them. We can pick out the ones who
have done something naughty. That way we’ll have fewer failures and we’ll go up in
the league tables.”
Sajit who did badly in his year ten exams is expelled for failing to attend PE lessons.
The Fit Employee Act 2007 requires local authorities to make provision for their
employees to take regular exercise. The Act includes provision for money to be made
available to support projects which will encourage the employees of the local authority
to take exercise. A committee of six councilors is to be appointed to allocate the
money. Tiny Town Council appoint such a committee.
The first meeting of the committee is held shortly after a rather alcoholic celebratory
lunch. The committee decides to allocate several thousand pounds to providing a free
bar to council employees at the pub on the other side of the road from the council
building. They justify this on the basis that the Council Employees will get exercise
walking across the road to the bar.
Councilor Quentin has read an article on employee fitness in which it says that the best
way to make employees fit is to make them walk upstairs rather than taking the lift.
On the basis of this, the committee allocate a grant to a man whose job it is to break
the lift every time it is repaired so that the council employees will have to walk up
stairs.
Councilor Tim has a brother, Sid, who runs one of the two commercial gyms in Tiny
Town. Sid says to Tim,
“If you just pay the rest of the grant over to me, I’ll set up a fit employee scheme for
you – and there’ll be something in it for you, too.” The Committee decide to give the
rest of the grant over to Sid’s Gym so that Sid can set up a Fit Employee Scheme. The
committee does not meet again but keeps a secretary who returns any letters
addressed to the committee with “All funds have now been allocated” stamped on
them.
Advise
(i) Judas is an employee of the council. He is teetotal and does not benefit from the
free bar. He wishes to protest against the grant to provide free drinks.

(ii) Belinda is an employee of the council. She has no legs and is unable to walk up the
stairs when the lift is out of order. She wishes to protest against the grant made to the
man whose job it is to break the lift.
(iii) Quentin is the owner of the other gym in Tiny Town. He wishes to protest against
the grant which has been made to Sid’s Gym.
Workshop Two

Preparation:
Read the following scenario and complete the grid on the following pages:
St Mungo’s home for the deaf has been running for over 50 years. 20 years ago the
home was taken over by the local authority and after much negotiation the inmates began
to run the home successfully themselves as a co-operative venture. The current chairman
of the co-operative is Vasildt. The home receives a block grant from the local authority
and the inmates manage the whole running of the institution themselves with the aid of a
lawyer (Natalie) whom they retain to do their paper work. The lawyer deals with all their
instructions orally as none of the members can read or write. The members, all of whom
are at least 60, are very happy with the arrangement and refer to St Mungo’s as our own
little piece of heaven. Different leaders of the local council have repeatedly promised the
members that the home will be kept open until the last member is dead or no longer
wishes to live there.
The land on which the home is built belongs to a charity called the Society for Distressed
Animals (SDA). The charity have leased the land to St Mungo’s for as long as there are
members of St Mungo’s living there.
George, who is a member of the Local Authority has been reviewing the local accounts
and has decided that St Mungo’s is too expensive to maintain. George locates an expert
in disability medicine, Dr. Pire, who believes that all institutions for deaf people should
be closed and the members released into the community. George plans to close St
Mungo’s and to send all the inhabitants to live in other old people’s homes in the area.
On Tuesday George sends Vasildt a letter saying that the local authority is considering
closing St Mungo’s and inviting him to a hearing to discuss the issues. The hearing is set
up under the rules given in the Local Authority Economy Measures Act 2005. The
hearing is scheduled for Wednesday morning and is chaired by Philip, who happens also
to be a trustee of SDA.
Philip allows Vasildt to attend the hearing but refuses to allow the lawyer, Natalie, to
come as he claims the issues are not judicial. Vasildt is handed a large stack of papers
which outline the medical arguments for closing institutions like St Mungo’s.
At the hearing, Dr. Pire gives lengthy evidence in highly technical language explaining
his belief that St Mungo’s should be closed as such institutions are damaging to deaf
people. Dr. Pire also claims that people like Vasildt are not capable of understanding
these issues as they have been institutionalised from birth.

Philip allows Vasildt to give a brief speech explaining why the members of St Mungo’s
do not want the home to be closed. However, he does not allow Vasildt to cross examine
Dr. Pire nor does he allow an adjournment for Vasidlt to bring his own expert to counter
Dr. Pire’s evidence.
After a short interval Philip announces that the home should be closed. He submits one
line of written reasons which read
The scientific evidence shows conclusively that St Mungo’s should be closed.
Factor
in the
Scenario
Rule and Authority Level
of
natural
justice
Application
and
Outcome
The right to be informed of the case to be
met
The public bodyshould not consider material
withheld from the complainant
E parte Anderson
The right to a reasonable time to prepare a
response
Except for countervailing public interest the
person judged should usually be allow ed
sufficient time to digest information and
prepare a response
ex parte Polemis
Cross Examination
If there is an oralhearing, prima facie there is a
right to question those w ho give evidence to
the decision maker R v DeputyIndustrial
Injuries Commissioner, ex parte Moore [1965]
1 QB 456
Unless it w ould over-judicialise the hearing
Bushell vSS for the Environment

Legal Representation
No automatic right to
legal representation just
because there is an oral
hearing
Decision maker to decide
considering: (R v HS, ex
parte Tarrant [1985] QB
251
The seriousness of the
charge and the potential
penalty
Whether any points of law
w ere likely to arise
Capacity of the prisoner
to present his ow n case
Complexity of the
procedure
Need for reasonable
speed in decision making
The need for fairness
betw een parties
Did the
decision
maker
consider the
factors?
Applying the
factors
Reasons1:
Reasons w illbe required only if they are
necessary to a JR case and the underlying
decision is one that the complainant might
actually w in
Criminal Justice and Civil Courts Act 2015
Reasons must be proper, intelligible and
adequate Magaw J, Re Poyser and Mills’
Arbitration Good enough - to reveal any flaw in
the decision making process Save Britain’s
Heritage v No 1 PoultryLtd

In Class Activity One
Havinggoneover your preparation answers, writean answerto those
parts of the question allocated to you by your tutor. Theas answerswillbe
read out an marked in class, using the mark scheme provided.
In class Activity Two Use the lecture notes and your reading to write
answers to these questions. Note: manyof these scenarios represent
situations which have been dealt with by statute – the governmenttends to

respond to successful judicial review cases by providing a statutory
solution. However, the situations provide good practice for the sort of
situations in which judicial review mightbe used.
1. A committee are supposed to make a decision about which routes a by-pass should
follow. The committee consists of four people, but only Sajit really understands the
issues. The committee meet once and ask Sajit to go away and make a report on the
topic. A few weeks’ later, the committee meet again. Sajit has written a four hundred
page report on the issues. The rest of the committee look at the report in horror.
Eventually, Sophia, the chairperson of the committee, says,
“Sajit, why don’t you just tell us which is the best route for the by-pass?” Sajit
tells the rest of the committee which route he prefers and the committee authorize the by-
pass going along that route.
If you disapproved of the choice of route, how might you challenge the decision?
2. A committee is set up under a law which allows the committee to spend money on
setting up nest boxes for barn owls. Some members of the committee decide that a better
way to protect barn owls is to encourage field voles to breed ( barn owls eat field voles).
The committee, therefore, use some of the money allocated to provide food and nest sites
for field voles. Advise the committee as to whether this is legal.
3. A committee is supposed to decide whether a young person who grew up in care
should be given support to carry on studying after the person turns 19. The statute says
that the committee should consist of a school teacher, a social worker and a housing
officer. The committee meets to decide whether Simi, who grew up in care, should get
support to remain at college after her 19th birthday. The school teacher and the social
worker arrive at the meeting, but the housing officer is delayed by a train strike. The
school teacher says,
“We might as well have the meeting now, anyway, as there is no chance of Simi
attending college even if we do give her a grant, so I vote we refuse her support.” The
social worker agrees and Simi is refused a grant. Advise Simi.
4. The (fictitious) Parking Act 2015 allows the local council to set “no parking” areas and to fine
people who park in the no parking areas. The council has discretion to let people off paying the
fines if they have a very good reason for being in the “no parking “ areas. Petra is travelling
along a road when her mother, who is travelling with her, has a heart attack. Petra pulls off the

road into a “no parking” area to all an ambulance. Her car is photographed in the “no-parking”
area and Petra receives a fine of £100. Petra goes to the Town Hall to protest about the fine,
but she is met by a council official who says,
“It is not our policy to let anyone off fines for being in the “no parking” areas.”
Advise Petra.
5. The (fictitious) Care Act 2015 requires hospital trusts to see that people living at home who
are over 80 years’ old are visited by a doctor at least once per year. Townem Hospital Trust
decides not to provide these visits for people they know to have private medical insurance.
Advise Tricia, who is over 80 and has private medical insurance, but would like to be visited by
the NHS doctor.
6. The (fictitious) School Uniform Grant Act empowers the local authority to give grants to
families whose children receive free school meals to help them with the cost of school uniform.
Judith is the local authority officer in charge of allocating the grants. She discovers that the
Tate children are not able to go to school as their parents have spent all their money on a fancy
car and cannot afford to buy school uniform for their children. Judith gives the family a school
uniform grant. Advise the local authority.

Lecture Four
Legitimate Expectation and Substantive Rights
Unlike the other forms of JR considered on this course, which lead only to quashing the
decision and sending the applicant back to have the decision made again, the doctrine
of legitimate expectation may create substantive rights – that is it may change the final
outcome of the decision and not just the way it is made.

 R v North and East Devon Health Authority, ex parte Coughlan [1999] LGR
703
 LA promised group of disabled people that they would not be moved
from their accommodation as long as they chose.CA creates a
legitimate expectation that they will honour their promise because
 Promise given often and in precise terms to a group of severely
disabled people and related to their home
 Representation unqualified (no unless…) and relied upon by the
people it was made
 This case followed in several similar cases but
 R(On the application of Collins) v Lincolnshire Health Authority [2001]
EWHC Admin 685 no overriding unfairness in breaking a home for life
promise where it was generally agreed that moving the patients into
the community would be to their benefit.
JUDICIAL REVIEW OF THE MERITS OF A DECISION
Traditionally, the courts can also review and quash a decision of the courts because it is
totally unreasonable. This is justified on the basis that the decision maker is not
empowered to make a totally unreasonable decision. However the courts must not take
from the decision maker the right to make the decision so the standard of
unreasonableness is set very high.
The test:
A decision will be quashed as Wednesbury unreasonable if the decision is so
unreasonable that no reasonable authority could have come to it.
Associated Picture Houses v Wednesbury Corporation [1948] 1 KB 223
This principle still applies in situations where there are no human rights implications:
R(Association of British Civilian Internees Far East Region) v Secretary of State
for Defence [2003] EWCA Civ 473
Where a public body makes a decision,it is also bound by the Human
Rights Act.
Suppose that the public body has made a decisionwhich interferes with someone’s rights
by hurting them: by refusing to allow them to live where they want, by taking their child
away or preventing their family from visiting them in prison.
In this situation, if the person asks for a review of the decision,
the court will ask

(1) Was the person’s right interfered with?
(2) Why did the state interfere with the person’s right (what was the state’s
pressing social need)?
(3) was the response of the public body proportionate in the sense of the minimum
necessary to ensure that the state’s pressing social need is accommodated.
 Daly’s Case [2001] 2 AC 532
Proportionality is a general principle in criminal law used to convey the idea that the severity of
the punishment of an offender should fit the seriousness of the crime. The concept of proportionality
is used as a criterion of fairness and justice in statutory interpretation
Proportionality is a requirement that a decision is proportionate to the aim that it seeks to achieve.
For example, an order to forbid a protest march on the grounds of public safety should not be made
if there is an alternative way of protecting public safety, such as by assigning an alternative route for
the march.
This means that the courts start by assuming that the person’s rights should not be
interfered with and then ask the public body to justify the interference. If the public body
cannot show that the interference is necessary, the court will quash the decision of the
court and can also award the person money as damages.
Hence the courts will set aside a decision by a public body
 If it is so unreasonable that no reasonable public body could come to it
if the decision does not have human rights implications
 If the decision of the public body is not necessary and proportionate if
the applicant is asking the public body not to do something that
interferes with his human rights

Workshop Three
Preparation: Prepare answers to these questions, using the lecture notes
and any reading you have done from the textbook. The answers will be
marked in class.

1. The (fictitious) Early Years SupportAct allows the local authority to spend
money on supporting very young children in bed and breakfast accommodation.
Castrian Council discovers that there young children do better if their mothers are
less distressed, so it invests a part of the money in a programme which allows the
mothers to attend a gym and swim session onceper week, whilst their children are
left in the gym crèche. Advise Steven, who believes that the money should have
been spent directly on the children.
2. Quentin is in charge of the recruitment of receptionists forthe local
authority. Quentin prefers to see receptionists who are under 28 and have
long, blond hair so he recruits only receptionists who are under 28 and have
long, blonde hair. Advise Catrin, who is refused a job as a receptionistand
who has short, black hair.
3. Bekim is a very aggressive man who has 16 brothers, all of whom enjoy
fighting. Bekim owns a shop in the Tideswell Centre. The local authority meets to
decide whether the Tideswell Centre will open from 10-4 on Sundays or from 12-
6. Bekim likes to lie in, so he supports the 12-6 option. At the local authority
meeting, Bekim comes with his 16 brothers who make it clear that they would like
the 12 – 6 option to be chosen. The local authority all vote for the 12-6 option.
Advise Viola, who would have preferred the 10-4 option.
4. Tony is the local council officer in charge of planning permission. He exercises
discretion under the Planning Act as to whether planning permission should be
granted for house extensions or not. Michael offers Tony £600 to look favourably
on his planning application to build a large extension to his house. Tony grants the
application. Advise Amy who does not want the extension to go ahead.
5. Chris is an asylum seeker from Ruritania. Chris has failed in his application to
stay legally in the UK. However, Chris does not have Ruritanian passportand the
Ruritanian government says it will not allow Chris to return to Ruritania without a
Ruritanian passport. The(fictitious) Detention Act allows the government to lock
people up when they are about to be deported. The minister locks Chris up.
Advise Chris.
In Class Activity One
Mark your answers to the preparation questions using the marking guidance
supplied.

In Class Activity Two
Read the following scenario and identify any illegal actions:
There is a national shortage of people willing to work in care for old people, partly due to the
very low wages paid for such work. In order to encourage more people to take up care work, an
Act of Parliament is passed called The Care Workers (Special Pension Provision) Act 2011.
The Act makes available to Local Authorities a fund of money to make grants to make up the
pensions of those who have spent a substantial part of their lives caring for old people the Act
requires local authorities to set up a committee to consider applications for grants to be made
under The Care Workers (Special Pension Provision) Act 2011.
Fairside Council sets up such a committee. The committee is chaired by Bob.
At the first meeting, Bob says,
“I know nothing about care workers but I have a friend called Millicent, who runs several
nursing homes. I suggest we co-opt her onto the committee and ask her to vet the grant
applications.” The Committee, who feel that they are very over worked and do not want to go
over a lot of extra paperwork, agree.
Millicent receives all the applications for grants. She decides to award grants first to those
people who have retired from working in her own nursing homes. This uses up much of the
fund.
One Friday, Millicent receives a circular from the government which explains that the recent
cuts will mean that she will receive a smaller grant per patient from the government. This means
that there will be a lot less money coming into the nursing home. Millicent is concerned that she
will not be able to keep on paying her staff.
Millicent, therefore, decides to use a part of the fund to top up the wages of some of her staff at
the nursing homes. She argues to herself that this is a reasonable use of the fund because the
money is still going to care workers.
Identify any ways in which the council’s activities are illegal.
Activity Three
You will be asked to perform a short drama. Scripts will be provided in
the class. Take careful notes so that you can answer questions about
the scenario.

You need some background material:
In 1995, Charning Estate was a once beautiful Victorian housing block that had fallen on hard
times. The estate had attracted a number of families with significant problems and was very
run down. It had a shockingly high crime rate, the lifts did not work, the walls were covered in
graffiti and there was high level illiteracy and school truancy amongst the children.
The Inner Schools Nursery Programme was designed to help with this type of problem. A
beautiful nursery was built on the estate. The nursery is a highly innovative operation and has
attracted some quite exceptional staff. The nursery has a number of unusual features. It takes
children from 18 months to 8 years, providing the first years of primary schooling on site. It is
open from seven in the morning until 8 at night. It is very generously funded.
The nursery school is very successful. Over the years many potentially very disturbed children
from difficult backgrounds have been helped to develop into skilled and successful young
people.
Something else has happened too: the whole estate has improved. One effect of this is that a
number of tenants on the estate have exercised their right to buy and some of them have then
sold their flats on to affluent incomers, many of them families who wish to take advantage of
the nursery. Increasingly, the children at the nursery are from successful, middle class families.
Increasingly, too, the children leave the nursery and go on to private schools in the area, rather
than the local state school. There is a very long waiting list for places in the nursery for those
who do not actually live on the estate.
Faye used to live near the estate. She had a very troubled childhood. She moved out of her
parents’ home when she was fifteen and went to live with a violent man called Sam, who
routinely hit both her and their small daughter, June. Sam has recently been sent to prison for
armed robbery. Faye is now living in bed and breakfast accommodation about a mile from the
Charning Estate. June has attended the nursery since she was 18 months old. She is quite a
difficult child, who is now nearly four. She is developing quite slowly and can be a little violent
with the other children. She swears fluently. She is, however, doing far better than she was
predicted to do. She is happy at the nursery and is very attached to the nursery staff. Faye
usually brings June to the nursery rather late but June is often amongst the last children to be
picked up at 8 o’clock.
The nursery is set up under a private Act of Parliament called The Charning Street Nursery Act
1995. The Act provides for the nursery to be run by a committee consisting of three people
elected from amongst the parents, two people elected from the estate who are not parents, a
representative of the local education authority and a teacher from the nursery. They are to
make all decision jointly. Where there is disagreement, they are to decide by majority vote.
s.4 The purpose of the committee is to run an effective nursery which provides a high quality
service to the children of the Charning estate and immediate surrounding area.
s.5 Once a child has begun to attend the nursery, that child should not be asked to leave
unless, following a detailed enquiry, it is considered that either
(a) the child is considered to be wholly beyond the control of the nursery staff.
(b) the child is considered to be intolerably disruptive to the other children at the
nursery.

Notes:
1.. Does the hearing comply with natural justice.
2. Is the adjudicator acceptable?
3. Identify any ways in which you feel that the decision is illegal.
Now read the answers supplied and complete the “justify the marks” sections.

Lecture Five
The Little Ease housing estate is a supported housing estate, which caters for people
who have been so institutionalized during childhood that they are unable to live
independently. The residents live in their own flats but two support workers live on site
and provide support for the residents with administration, cleaning and general care.
Little Ease works well as a community, and the residents, most of who have lived at the
site for many years are happy and form a sort of extended family for each other. The
estate is run by the local authority and is quite expensive to run.
The local authority is considering its annual budget – and the cuts it is expected to make.
The budget for Little Ease comes up for discussion. Councilor Singh points out, “All
those residents are now quite old. If we put them into ordinary old people’s

accommodation, they would be much cheaper to look after. Is there some way we can
move them?”
The council consider the Act under which Little Ease is set up.
The Little Ease Act provides that:
s.1 All Residents of Little Ease Estate are to be cared for at Little Ease for the rest of their
natural lives unless a decision is made by the appropriate committee that a resident
should be required to leave because
(i) the resident is in need of hospital care for the foreseeable future;
or
(ii) the resident is so disruptive that the management committee
agree that the resident is so dangerous that his or her care is too
difficult for the Little Ease staff.
s.2 It is the intention that residents should only be required to leave if it is necessary for
them to do so to enable Little Ease to function safely.
s.3 “The appropriated committee” shall consist of:
(i) One of the resident support workers
(ii) a resident
(iii)a doctor
(iv)a representative of the local authority.
Councilor Singh points out that none of the residents is in need of permanent
nursing care and so it will have to be fixed in some other way. He volunteers to sort he
problem out for the council.
Councilor Singh visits Little Ease. He observes that Barney, one of the residents, has
the habit of constantly jumping out on the staff and shouting “boo!” at them. Councilor
Singh discovers a doctor called Dr. Risk whose interest is in accident prevention. Dr.
Risk is the author of a book called “The secret of a long life: complete risk avoidance”.
Councilor Singh invites Dr. Risk and his partner, Dr. Hazard, to come to Little Ease to
hold a hearing about whether Barney is dangerous. The local authority offers to pay a
substantial amount of money to the two doctors to visit the centre.
On Thursday, the two doctors arrive at Little Ease. Councilor Singh asks one of the care
workers, Peony, to bring Barney and another patient called Jim to the office where he
proposes to ask the doctors to decide whether Barney is too dangerous to continue living
at Little Ease. Peony is appalled but she brings the two residents to the office. Jim is
very frightened at being in the office with a lot of strangers and he begins to cry noisily.
Councilor Singh announces that he is now chairing a meeting to decide whether Barney
is too dangerous to remain at Little Ease. Peony asks Councilor Singh to stop the
meeting and get some legal advice for Barney. Councilor Singh tells Peony not to worry

about legal matters but to concentrate on stopping Jim crying. Every so often Barney
shouts “boo” at Jim, which makes him burst into tears again.
Dr. Risk reads a long and complicated section from his book in which he proves
conclusively that jumping out and people and shouting “boo” is certain to result in
someone being killed eventually. Councilor Singh says, “Well, that settles it, then. Would
you all agree that Barney is dangerous?” Both doctors agree. Councilor Singh then asks
Jim if he agrees that Barney is dangerous and Jim nods enthusiastically. Peony walks
out in fury.
Councilor Singh then signs a piece of paper saying that a majority of the appropriate
committee agree that Barney should be removed from Little Ease.”
Answer the following questions:
(a) Identify any ways in which you feel that the hearing does not comply with natural
justice.
(b) Is the decision judicially reviewable on the merits?
(c) Is the decision of the adjudicator illegal in any way?
(d) Is the adjudicator acceptable?
The North Langsdale Access Centre was set up under the Access Centres Act 2012.
The preamble to the Act says that the purpose of the Act is to provide a space in which
non-custodial parents can have contact with their children when access is difficult at the
children’s homes. The access centre has arrangements for one parent to drop the child
off, into the care of a centre worker, and for the other parent to receive the child from the
care worker so that the two parties never meet.
The Access Centres Act 2012 provides that
S.1 The centre will have a management committee which will consist of: the director of
the centre; a member of staff; a parent; a representative of social services and a
representative of the local police force.
S.2 Only very exceptionally should a parent’s request to use the centre be refused.
S.3 A parent may be prevented from using the centre only if the management committee
decides, after a full hearing,
(a) that the parent’s behaviour is exceptionally disruptive; or
(b) that the parent’s behaviour poses a threat to the staff, children or other parents
at the centre.

S.4 there will be no appeal from a decision of the management committee.
Maria and Spinal split up shortly after their daughter’s third birthday. Their daughter’s
name is Juliet. Following their divorce, Juliet lives with Maria, with Spinal having access
on alternate weekends. Access arrangements have always been difficult as Maria and
Spinal quarrel noisily whenever they meet, although things are slowly improving. There
has never been any question of violence in their relationship. Following adjudication,
access has been arranged through North Langsdale Access Centre.
Maria has formed a relationship with a new partner, called Peter. Maria and Peter want
to emigrate to Australia but Spinal is resisting this as he does not wish to lose contact
with his daughter.
Maria is a close friend of the director of the Access Centre, Fiona. Maria asks Fiona if
she can arrange to have Spinal banned for the access centre to reduce the contact
between Spinal and Juliet and make it easier for Maria to take Juliet to Australia. Fiona
is very fond of Maria and wants her to be able to establish a new life in Australia.
Consequently, Fiona agrees to help.

On Saturday, Maria takes Juliet to the centre as normal. Fiona sends an inexperienced
care worker called Shelly-Anne to escort Spinal to meet Maria. Also present in the room
are Polly, a mother who has been very badly abused by her husband and Polly’s social
worker, Nazime. As soon as she catches sight of Spinal, Maria begins to scream, “He
hurt me, he hurt me.” Polly also begins to scream in fear. Juliet runs to Spinal who holds
her, gazing at the screaming women in horror. Nazime calls Fiona, who asks all those
present to come into her office. Spinal goes to one side of the room, still holding Juliet,
who is crying. Polly, Maria and Nazime huddle together at the other side of the room.
Fiona asks Nazime if she is prepared to represent social services in a hearing to decide
whether Spinal can continue to use the centre. Nazime agrees to do this. Fiona says
that it is then possible to hold the hearing at once. Spinal, who is horrified, and
simultaneously trying to work out what to do and to comfort his daughter, asks if he is
entitled to legal assistance. Fiona says that this will not be necessary. Spinal starts to
protest and Fiona tells Spinal to be quiet and listen to the witnesses. Maria then explains
that she has always been afraid of Spinal. Polly says that all men are violent and Nazime
says that her client has been very upset by Spinal. Shelly-Anne says that Maria began
screaming as soon as she saw Spinal. Fiona refuses to allow Spinal to speak at all. Fiona
then announces that the committee have found that Spinal’s behaviour poses a threat to
the staff and children and that he may no longer use The North Langsdale Centre.
Answer the following questions:
justice.
Concerned about the pressure on housing, and eager to raise more tax from the wealthy,
Parliament produces The Mansion Tax Act 2015. The intention of the tax is to tax “extra
rooms”.
The Mansion Tax Act 2015 provides that
s.1 Each house will be surveyed and the number of rooms counted.
s.2 The number of people living in the house will be counted.
s.3. A tax will be imposed on the house which is based on how many more rooms
there are than people living in the house.

s.4 Exemption from the tax may be granted if, in the opinion of the local Mansion
Tax Committee, there are grounds for such an exemption based on
…..
(iii) particular needs associated with disability
s.5 The Local Mansion Tax Committee is to consist of a member of the local
authority, a social worker and an estate agent.
s.6 Where there is a prima facie case for exemption, the local Mansion Tax
Committee is to exercise its discretion after considering representations from the
affected householders. Such representations may be made to a suitably
constituted hearing.
Tinsdale Local Authority appoints a local Mansion Tax Committee. The Committee
consists of Stuart, who works for the Local Authority; Tina, a social worker and Rafiq, a
local estate agent.
Mariam lives with her adult son, Tim, in a house with three bedrooms and two reception
rooms, which makes her liable to pay the mansion tax, unless she can prove that she
qualifies for an exemption. Tim has complex needs. He does not go out and can be very
difficult. When he is in a manic state he stays awake all night, keeping Mariam up. On
three occasions, he has hit Mariam. Tim has tried living in a specialist home, but he was
abused there and Mariam very badly wants to keep him at home. The house is adapted
to help Mariam care for Tim. The second reception room is a “soft room” with padding
on the walls and soft lighting, where Tim can lie when he is particularly distressed. The
spare bedroom is used to accommodate carers who sometimes come and stay when
Mariam is unable to cope.
Mariam receives a bill for mansion tax and a form to fill in, if she wants to claim exemption.
Mariam completes the form and, on Wednesday the 14th May, receives a request to
attend a hearing on Friday the 16th May. The letter inviting her to the hearing makes it
clear that Tim must attend, too. Mariam is not able to obtain help in bringing Tim to the
hearing but, with great difficulty, she does bring Tim.
The hearing is set up in Stuart’s office. All three members of the committee and Mariam
and Tim sit around a table. Tim is sure that Mariam is going to send him back to the
home where he was abused and he cries loudly the whole time and clings to Mariam.
Mariam asks whether it would be possible to re-schedule the hearing at a time when she
can get help with Tim and putting her case across. Stuart replies that he does not want
Mariam to have anyone explaining Mariam’s case; he just want to hear her problems in
her own words. Mariam briefly explains how she uses the extra rooms.
Stuart does not explain the thinking of the committee, he just tells Mariam to go home
and that they will contact her later.
When Mariam has gone, the committee discuss the issues. They are appalled by
Mariam’s difficulties. Eventually Tina says,
“If she has to pay the mansion tax, she won’t be able to stay in that house and
she’ll have to put Tim into a home, which would be better for both of them, really.” The
other two agree and they write to Mariam saying that they have decided not to use their
discretion to allow Mariam exemption from the Mansion Tax.

justice.
Workshop Four

Preparation: Prepare and bring with you the A4 sheet on notes that you
wish to take into the exam. They must refer to Judicial review only and
be on the gird supplied on Moodle. For clarity, “attending the
workshop” means arriving within 12 minutes of the start of the
workshop and staying until the end. If you are later than this, you will
need to attend another workshop. “Bringing the sheet to the
workshop” means bringing a printed out version of the sheet, not
having the material on your phone or laptop. As problems can arise
with printing, make sure that you have printed the sheet out the day
before the workshop.
As stated at the beginning of this manual, the A4 sheet must be printed
on the grid supplied, it must be in 12 point Arial. You can move the
internal borders of the grid, to make more spaces, but not he external
ones. The material must go on one side of A4, within the boundaries of
the grid supplied.
Activity One
With reference to the Schools Act scenario, provided on page 30:

1.You will be asked to write (and deliver) in small groups a shortspeech either
claiming that Monica should be re-instated at the schoolbased on judicial review
on the merits if human rights donot apply to the decision
2. Repeat the exercise on the understanding that human rights do apply.
3. In a different small group, write (and deliver) a shortspeech either claiming
that Sajit should be re-instated at the school based on judicial review on the
merits if human rights do not apply to the decision
4. And if they do not.

Activity Two. Read the following scenario and construct an answer to
it.
Muriel is a single parent who works as a cleaner at Strynd High School. Her job involves
leaving home at 6.30 to be at the school for 7. She then works until 9.30 am. at the school. She
has a job at a local supermarket from 10-2pm , near to the school and then returns to carry on
cleaning the school from 4.30 pm until 6pm, when she goes home. Muriel’s would like her
daughter, Cariad, to attend Strynd High School, but she lives outside the catchment area and
admission to the school is very competitive. Cariad has just been turned down for a place at the
school.
There is an appeals procedure against a decision to refuse a child a place at the school. The
(fictitious) Schools Act 2012 provides that
s.5 Places at the school will be awarded in the following order
(1) children in the care of the local authority
(2) children of staff members
(3)siblings of children already attending the school
(4) children who live in the catchment area of the school,
(5) children outside the catchment area, with places awarded in order of distance from
the school.
s.6 Appeals against decisions on admittance to the school may be made to the governors within
who will hear appeals at a full governors meeting which the applicant may attend in person.
Muriel writes to the governors appealing the decision to refuse Cariad a place. She receive a
letter four weeks’ later on a Tuesday, telling her to attend a governors’ meeting at 6.00 pm. that

day. Uriel attends the meeting, which is very intimidating. There are 23 governors, all sitting in
a semi-circle and Muriel has to stand in front of them. The chairman of the governors, Steve,
begins by asking Muriel how she managed to get to the hearing on time, as she is supposed to
work until 6pm. He laughs, and says jovially that he knows that all cleaners are slackers.
Muriel says that she has read the rules on allowing children to attend the school and believes that
Cariad should qualify as the child of a member of staff. Steve laughs uproariously and says that
he is sure that Muriel understands that “staff” is supposed to refer to teaching staff and not
cleaning staff. The other governors do not say anything as they always do what Steve tells them
as they are afraid of his sarcastic tongue. Steve announces that the appeal has been dismissed
and sends Muriel away.
justice.

Mock Exam
The Traffic Reduction (City Centres) Act 2013 required local authorities to set a
committee to designate areas of the city centre as no parking areas. The Traffic
Reduction (City Centres) Act 2013 requires the committee to take into account the
availability of public transport and the flow of traffic in the areas which are to be
designated as no parking areas. The Traffic Reduction (City Centres) Act 2013 also
requires that the committee hear representations from people who will be affected
by the loss of parking rights in particular areas.
In Trupton, the committee consists of Councillor Jones, Councilor Patel and
Councilor Mishka, all of whom belong to the Red Party. Councilor Mishka is the
chair of the committee.
The committee meets to discuss the allocation of designated areas and permits. It
feels that the designation of no parking areas will be very unpopular and decide
that, as far as possible, it will only create no parking areas in parts of Trupton where
the local councilor is from the Green Party. It decides to announce which streets
have been designated as no parking areas on Friday 23rd June and to hold
hearings on Saturday the 24th June to hear representations from those affected by
the no parking areas. It arranges for posters to be put up in local libraries to show
the designated no parking areas and to explain that citizens can make
representations at the hearings on 24th June.
Sam lives in Market Street where the local councilor is from the Green Party. On
Friday, he discovers that his street has been designated as a no parking area and
decides to attend the hearing on the Saturday to protest against the decision. Sam
is disabled but is able to drive using a car specially designed for him.
The hearing is set up in a council room in a court like manner, with Councilor
Mishka chairing and Councilor Jones and Patel presenting the case for the
designation. Sam is given a seat on the opposite side. Sam is allowed to explain
briefly that he thinks it is unjust to prevent him from parking in market street
because he is unable to walk far to get his car from elsewhere. Councilor Jones
calls as a witness a traffic expert who explains in highly mathematical language that
the traffic flows in Trupton make it appropriate to prevent parking in Market Street.
Sam is unable to understand the arguments the traffic expert makes and asks for
an adjournment so that he can consult a lawyer and a traffic expert.
Councilor Mishka says that this will not be necessary, as the council has already
done extensive research into the traffic issues. Councillor Mishka than closes the
hearing, saying that the evidence is conclusively in favour of making Market Street
a no parking zone and so Sam will not be able to park his car in Market Street.

justice.
Each of parts (a), (b), (c) and (d) carries equal marks.
Case Name Ratio
ex parte Anderson [1992
the public body should
not) consider material

withheld from the
complainant

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