It is to be stated that Judicial Review is a provision in the English Law which empowers the courts to exercise powers over the operations of public bodies of the United Kingdom. It can be stated that if any person feels that a public body of the United Kingdom is misusing its powers he can file an application in the administrative court for a judicial review of the decision. It is to be mentioned that upon receiving such application the court will inspect the truth behind such application filed and if it finds that the public body has unlawfully used its powers it will set quash such powers of the public body and will also award damages to the applicant. It is to be mentioned that the duties of the public bodies will be defined by proper legislation. It is to be mentioned that the Human Rights Act 1998 states that every public body must comply with the provisions of the European conventions on Human rights.
However it is to be mentioned that the English law does not allow the review of legislation primary in nature. Judicial Review in English Law is restricted to the decisions of the public bodies and secondary legislation. Only such decisions can be challenged against which legal remedies and prerogative orders are available. According to the theory of Ultra Vires the decisions of public authorities can be challenged and quashed if such decisions are found to be in violation of the powers granted by the parliament.
According to section6 of the Human Rights Act 1998 it can be sated that it is not lawful for a public authority to perform their actions in ways which are incompatible with any of the convention or a right as stated in the convention of rights under section 1 of the Human Rights Act 1998. Subsection 6(3) of the aforementioned act states that the definition of public authorities includes any person or a group of persons whose functions are public in nature. Subsection 7(1) of the aforementioned act states that a person who claims that the public authority has acted in violation of the convention rights as stated in the section 1 of the aforementioned act can start proceeding against such public authority in the appropriate tribunal or court. Subsection 7(3) of the aforementioned act states that proceedings can be started by such applicant who has direct interest is hampered by the misuse of powers or unlawful act of the public body. It can be stated that according to Schedule 1 of the Human Rights Act every person is guaranteed 16 rights. However in this report the rights relevant to the social housing will be discussed.
According to Article 6 of Schedule 1 of the Human Rights Act it can be said that every person irrespective of their citizenship or immigration status will have the right to fair hearing before any tribunal which is impartial within a time period which is considered reasonable. It can be said that the right to fair trial applies in situations when any individual’s private right is infringed. The right to fair trial is applicable for property disputes and contractual disputes. The right to fair hearing means that every individual will be allowed the opportunity and right to take part in hearing of their case and present their statements which do not place them in disadvantageous situations .It is to be stated that the article 6 is expected to be relevant in determining the rights of tenants and owners of disputed properties.
According to article 8 of schedule 1 of the aforementioned act it can be stated that every individual has the right to respect their personal and private life. Personal and private life includes the right to protect and respect their homes. It can be stated that people should be granted the right to lead their lives in privacy and also should be granted the right to choose the way they lead their lives. It is to be mentioned that article 8 is a qualified right. A qualified right is one which cannot be interfered with. Therefore it can be said that it is not permissible to force people out of their homes if the act of forcing people out of their homes is not done in the pursuance of national interest.
According to article 14 of the schedule 1 of the aforementioned act it can be said that every individual must be granted equal access to all the rights granted in the Human Rights Act 1998. It is also important to state that no individual is to discriminated against on the grounds of religion, sexual orientation, race, disability and political views. Article 14 is also a qualified right therefore, no difference in treatment of people is permissible only in case there is good reason for such difference in treatment. However, it is to be mentioned that the aforementioned article does provide the legitimate reasons for justifying the difference in treatment of individuals.
It can be said that the Human Rights Act 1998 was passed following the provisions of the European Convention for Protection of Human Rights and Fundamental Freedom. It is to be stated that the Human Rights Act 1998 did not give the power to Higher Courts to review and quash the primary legislation as primary legislation is considered to be attached with the parliamentary sovereignty. However the aforementioned act provided the administrative tribunals and courts with the authority to issue a declaration stating the issue of non compliance with the convention rights as stated in the section 1 of the Human Rights Act 1998.
The courts have even been granted the power to dictate the parliament and the government to change the law which was found in violation of the human rights. However it is to be stated that the all the appeals for judicial review are not successfully upheld by the court. Many appeals of the judicial review have been overturned by the Courts as well as the House of the Lords. The case Bellinger v Belligner can be considered to be the best example of change of legislation by judicial review. In the case R (Jackson) v Attorney General the impact of Human Rights Act 1998 is best reflected. It can be stated that the judicial review is the procedure to change the legislation upon the violation and contravention of European Convention on Human Rights. Judicial review can only be appealed for if it can be established that a public official had made a decision which is considered to be unlawful in nature. The grounds that will affect the decision of judicial review were best illustrated in the case Council of Civil Service Unions v Minister for the Civil Service. In the remarkable case R v Somerset CC ex parte Dixon, it was held that the ultimate way to resolve disputes in bring the matter before administrative courts. It is to be stated that for a claimant to prove that a public body or person has misused its power or acted unlawfully he must prove in the court that the public body or the person in consideration had a legal duty to act in a way or take a decision. The claimant must also prove in the court that the person or public body in consideration acted in beyond its powers and thus constituting Ultra Vires. It can be said that the judicial review supervises the decisions made by the administrative bodies to check whether they acted illegally or beyond their powers. It can be said that there are only three categories based on which the public law can be challenged. The grounds on which the public law can be challenged are: illegality, fairness and Irrationality.
Illegality
It is to be mentioned that the public decision makers must comprehend and have a clear understanding of the law which will be governing force of the decisions made by them. Therefore it can be understood by that if the public body fails to understand the law, their decisions would be illegal. It can also be said that the decisions taken by such public body can be considered illegal if they act without authority. Such a situation occurs when the legislation governing the powers of the public body does not provide the public body necessary powers to take the decision. Legislation sometimes provides the public bodies with a wide range of unrestrained powers but does not specify the circumstances when such powers can be discharged by the public bodies.
Therefore if decisions taken by public bodies are to be held illegal the actions of public bodies must be ignorant enough to not pay proper attention to the legislation governing their powers. It is also important to mention that public bodies must take steps to conduct an enquiry for the understanding the reason of taking such illegal decision. The public bodies must ensure that they do not delegate their responsibilities to subordinate authority. In the event of such a case the act of delegating the responsibility would be considered illegal. It is also to be ensured that public bodies don not fetter their decision as strictly as primary legislation. All the actions of public bodies must be in compliance with the Convent ion rights as stated in the Human Rights Act 1998.
Fairness
A public body should never act in a way which is unfair and their actions should never reflect the abuse of power. Therefore from the aforementioned statement it can be interpreted that public bodies must follow the procedures as stated by the legislation while making any decision. It is also to be stated that the actions of public bodies must not constitute breach of the rules of natural justice. The public bodies need to be impartial while formulating the decisions. The public bodies need to be just and unbiased. The decisions taken by public bodies need to be free from prejudice of any form. There can be no ulterior motive and no financial interest involved. There must be a proper hearing prior to reaching the decision. However, a fair hearing does not mean an oral hearing always. An expectation is said to arise when a promise has been made by a public body to perform an action. If the public body goes back on its promise and does not create the benefit it had promised, it would be considered that it had misused its powers. The public bodies must justify the decisions take by them. However, it is not mandatory to justify the reason for taking such decision. The need for justification of the reason for taking decision by public bodies may arise in situations when the decision is important n nature and it is likely to affect any individual or the public at large.
Irrationality and Proportionality
It is to be said that the courts can intervene to set aside and quash any decision if it is found to be unreasonable in nature. It is to be proved that the decision taken by public body must be irrational for the courts to quash such decisions. In the remarkable case Associated Provincial Picture Houses Ltd v Wednesbury Corporation, it was held by the court that if a decision taken by any public body on a competent matter is found to be unreasonable in nature or that no authority who is considered to be reasonable would have taken that decision the court would have authority to interfere. It is to be mentioned that the threshold as stated in the aforementioned case is very difficult to meet in most situations. It is because of this reason that other grounds are also considered in addition to the ground as stated in the Wednesbury case while deciding rationality of the decisions taken by the public bodies. The concept of proportionality states that a balance should be mentioned between the community’s general interest and protection of interests and rights of individuals.
After evaluating the abovementioned grounds for judicial review and the provisions of Human Rights Act 1988, the case study analysis can be presented. In the present case study, John is the Chief Executive of Limer Borough Council as well as the member of the Circus Party. In this regard, the Council has a policy of providing the applicants £ 2,000 discount after successful completion of the application procedure in buying their council house.
It has been observed that Sarah and Nick has been the council tenant since 2004 and for 7 years respectively. Sarah and Nick made application under the Council Housing Act, 2016 in order to buy their council houses. It was observed that Sarah did not receive any response from the Council and therefore applied to the Minister of Housing and Planning which in fact belongs to the Circus Party. The Circus party being worried about the forthcoming elections informs John to change the Council’s house selling policy by restricting the council house sales to council tenants for those who live in flagged wards.
The flagged ward is a particular ward where both the Circus Party and the Square Party has a chance of winning. Nick’s application was immediately refused on the ground that he did not live in those flagged wards. On being refused, Nick formed the “Buy your Council House Group” in order to expose the Council’s policy. The Group presented an application before the Police Chief of Limer for permission however the application was rejected without any reasons.
It can be stated that after proper analysis of the case study, it has been observed that both Sarah has been the council tenant since 2004 and she has the right to buy her council house. Sarah has been a resident of UK for more than six years and has held the council tenancy for 5 years. It is to be mentioned that Housing associations must comply with the Human Rights act 1998 as held in the case Eastlands Home Partnership Ltd v White. Sarah has paid her rent regularly and therefore it is her willful right to buy her council house. It has been observed that later on after presenting an application before the Circus Party, the Council house selling policy was changed. In this regard it can be stated that John was wrongful in his act and thereby violated the principles of Human Rights Act 1998. It can be observed that John violated the provisions of Article 14 Schedule 1 of the Human Rights Act 1998. According to the Article 14 Schedule 1 of the Human Rights Act 1998, it is the right of every individual to gain equal access to the rights contained in the abovementioned Act. According to Article 14 of the Act, it is important to mention that no individual should be discriminated on the grounds of religion, sex, and race and even on political grounds. In the present case study it can be seen that John has violated the principles of Human Rights Act 1998 and in such process the rights of Sarah were violated on the grounds of political discrimination. Discrimination of individuals will cause breach of convention rights as stated in the case Husenatu Bah v The United Kingdom and Westminster City Council v Morris
It has been observed that the Circus Party informed John to make changes in the Council’s house selling policies for their own self interest and in order to gain political stability.Nick being a council tenant of seven years faced the same issue. His application was rejected immediately on the ground that he did not live in one of those flagged wards. In this regard the act of the Circus Party and John is said to be illegal according to the provisions of Article 14 Schedule 1 of the Human Rights Act 1998. According to Article 14, all individuals should be treated equally before the law of the land and should not be discriminated on social, political and religious ground. It can be observed that the Circus Party and John rejected Nick’s application in order to gain political motive which is totally unjustified. Nick on being refused formed a group known as Buy Your Council House Group in order to expose the Council’s policy. The Police Chief of Limer however rejected the application presented by “Buy Your Council House” without giving any explanation. It can be stated that the provisions of public law can be challenged based on three grounds- illegality, fairness and irrationality. In the present case study it can be seen that the Police Chief of Limer rejected the application which is illegal and unfair. It is important that the public bodies should have clear knowledge about the legal provisions before making any decision. Decisions given without considering the provisions of law would be considered to be illegal. In the present case analysis, it can be observed that the Police Chief of Limer should have acted by complying with the provisions of Human Rights Act 1998. It can be stated that a public body should not act in a way which is unfair and violates the basic rights of individuals. There should be no political or financial motive involved while making decision. In the present case analysis, the Police Chief of Limer rejected the application due to political motive which is unfair and at the same time illegal.
Therefore it is advised that Sarah and Nick should make an application before the administrative court for judicial review. It can be mentioned that after successful presentation of application procedure, the administrative courts will inspect into the matter carefully in order to find out that whether the public bodies misused their powers or not.
Conclusion
In the conclusion it can be stated that individuals have the option to present an application before the administrative courts for judicial review if their rights are violated. However it is noteworthy to mention here that the scope of judicial review is restricted to the decisions of public bodies. In this regard it can be stated that decisions can be challenged based on the decision of previous judicial bodies. It can be stated that a public body should not perform any action which is unfair and violates the basic rights of individuals. It has been already mentioned that it is unlawful for a higher authority to perform their actions in ways which violate the provisions of Human Rights Act 1998. It is important that the public bodies should have clear knowledge about the legal provisions before making any decision. Decisions given without considering the provisions of law would be considered to be illegal. Finally, it can be said that the public law making bodies should not pass any decision in order to gain political motive.
Reference List:
R (Jackson) v Attorney General [2005] UKHL 56
Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6
‘Human Rights Act 1998’ (Legislation.gov.uk, 2017) <https://www.legislation.gov.uk/ukpga/1998/42/contents> accessed 30 December 2017.
Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB
Bellinger v Belligner [2001] EWCA Civ 1140
R v Somerset CC ex parte Dixon [COD] 1997 323, QBD
Waqas, Muhammad. “Applications of the Doctrine Of Ultra Vires in Developed Countries and Developing Countries.” J. Appl. Environ. Biol. Sci 4.7S (2014): 145-149
Donnelly, Jack, and Daniel J. Whelan. International human rights. Hachette UK, 2017
Buergenthal, Thomas, et al. International human rights in a nutshell. West Academic, 2017.
Rainey, Bernadette, Elizabeth Wicks, and Clare Ovey. The European Convention on human rights. Oxford University Press (UK), 2014.
Leanza, Piero, and Ondrej Pridal. Right to a Fair Trial. Wolters Kluwer Law & Business, 2014.
Husenatu Bah v The United Kingdom – 56328/07 [2006] ECHR 2060
Eastlands Home Partnership Ltd v White [2010] EWHC 695 (QB)
Westminster City Council v Morris [2005] EWCA Civ 1184
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