[starX]

hi guys a little help please
assuming that under statute a local authority has powers to licence street trading. and a member of the Local Authority (A ill call this person) revokes a traders licence(B) + (they are neighbours and have had a long running dispute going on) as he says they regulary block the roads
Can B use judicial reveiw to help recover his licence and what grounds of challenge may B have

[Ryands]

Judicial review is a process which the judiciary (courts) can use to publicly assess whether the government is exercising its powers 'fairly'. The concept of fairness is NOT concerned with the morality of the law, it is merely concerned with the fair administration of the law. This essentially means that the government (including local authorities) has a duty to treat everyone equally. To put this into Public Law speak - 'Everyone has a right to equal treatment before the law.'

From the facts you have outlined, it seems as if the LA does have the right and the authority to grant, or withhold, street trading licences. So on the surface of it, it might seem that B has no claim. However, the difficulty arises where there is a personal dispute between A and B and this seems to have affected A's choice to revoke his licence.

You should advise B that he may well be able to ask the courts to judicial review his treatment, providing he can show that the LA member treated him unfairly due to their dispute.
I'm not fully up on 'grounds of challenge' but hopefully that should be enough to get you started.

[Solemn Wanderer]

The action in question is a decision of the local authority. The local authority is a public authority. Therefore, it is amenable in principle to judicial review.

To succeed, an applicant for judicial review would have to show the decision was flawed under principles of public law. This can be, broadly speaking, on one of three grounds: (1) illegality, (2) irrationality, or (3) procedural impropriety.

(1) Illegality means that, for example, the decision was ultra vires - that is, outside the council's powers - or otherwise in contravention of the law. Illegality is, here, a term of art because establishing any of the above three grounds of challenge renders the decision unlawful.

(2) Irrationality means the decision was Wednesbury unreasonable, that is to say, it was a decision which no reasonable decisionmaker could have arrived at. This can also be termed a perverse or capricious decision. Essentially, the decision must be so far out of line as to be termed irrational. This is a very long way from asking the court to re-evaluate the decision on its merits, which it will not do.

(3) Procedural impropriety means that, for example, there was a breach of natural justice (so fair procedures were not followed). I think a claim that the decisionmaker took into account an irrelevant consideration or failed to account for a relevant consideration would also fall under this head (such a claim is, in any event, a recognised basis for a successful judicial review).

I will leave you to investigate the application of these general principles to the specific situation. I would also just like to clarify after Ryand's post that unfairness (termed breach of natural justice) is generally a procedural, rather than substantive, basis for challenge in judicial review proceedings. You can argue that the process was unfair, in other words, but not that the decision was unfair in substance, since you can essentially attack the substance of the decision only on the ground of Wednesbury unreasonableness (with exceptions which do not apply to this context).

[starX]

Thanks all who posted a reply very greatful for your help. more questions on this topic now.. hope you dont mind

if B proved thay A gave further evidence relating to the obstruction at the hearing in which he was alowed to argue is case in front of the commity would it change the out come in any way

[madhead123]

Hey there, sos to but in, i just have a quick question (hopefully, Solemn will grace me with a response)...

I'm a bit confused as to the grounds of review...obviously there are the three grounds you stated (from Lord Diplock - GCHQ case).

In respect to the ground "illegality", there are lots of other grounds to this - fettering discretion, unlawful delegation, error of law etc etc. My question, therefore, is how do these come into play with lord diplocks idea of illegality? are these the many ways that an authority may act "illegality", WITHIN that that ground of judicial review?

Say, for example, if in an exam question, the question relates to an authority exercising a feterring discretion then would you describe this concept, apply it to the case at hand and THEN say that if it was established this would make the decision "illegal" under the head of "illegality" - as descrbied by Lord Diplock in the GCHQ case. Is this correct?

Thanks in advance.

[Solemn Wanderer]

madhead123:

Hmmm. I know a little bit about public law but I know nothing about exam marking at your university. So take what I say with a pinch of salt. However, as I observed above, judicial review is generally thought of as being concerned with the legality of public authorities' decisions; therefore, the decision is unlawful if it has been taken either illegally (in the sense of falling under that head of challenge), or irrationally, or procedurally improperly.

Sometimes it has been said that irrationality and procedural impropriety are grounds for justifying the court's interference rather than establishing that the authority's decision was unlawful. However, that is at present a minority way of looking at things, although it may become more prevalent with Article 6 of the ECHR being held in some circumstances to require the court in judicial review to substitute its own view of the merits of the decision. There, the court is clearly just disagreeing on the merits - rather than holding the original decision unlawful. But that kind of merits review is concerned with ECHR fundamental rights cases and has no application to this situation.

Now I think that fettering discretion would probably come under the head of illegality, but as I say, I am not the best person to ask on this because I don't know what the examiner is after. Irrationality is obviously a separate head, but it is well established that an irrational decision is (throughout the law) regarded as making out an error of law. So the fact that an authority speaks of an unlawful way of doing things (e.g., fettering discretion) does not mean that its principle would necessarily come under the head of "illegality" in the narrow sense (i.e., as distinct from irrationality or procedural impropriety). Further, the three heads are a neat summary but they do not cover all bases. For instance, there is a case called Criminal Injuries Compensation Board which permits a decision to be quashed on the basis it was based on demonstrably wrong evidence. That does not fit neatly into any of the three categories.

starX:

If a public hearing is a recognised part of the procedure for revoking a trader's licence and he demonstrates that the hearing was in some way unfair, then that could indeed qualify as establishing a breach of natural justice and, hence, a flawed decision on the ground of procedural impropriety.

[madhead123]

Thanks a bunch Solemn!

[Solemn Wanderer]

Yes, Wednesbury itself said that the grounds for judicial review run into each other.