JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

1. Introduction: Central and local govt provide services for and regulate the public across a huge range of activities. A list of such activities would include , e.g. education, health, housing, employment, social security, town planning, transport, fuel, immigration, licensing and taxation. The state regulates and provides for us through powers given to various administrative authorities such as ministers, central govt departments, governmental agencies, local authorities, tribunals, public corporations and so on. These persons and bodies are provided by statute with necessary powers, either duties or discretions to carry out their tasks. Administrative action is the exercise and application of such powers. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

2. On what grounds can JR be sought? The grounds for JR can be classified in at least three ways: (a) Two principle classes of action may be pursued under JR: those which allege that there has been a breach of statutory requirements, and those alleging that action has been taken in disregard of the rules of 'natural justice'. (b) In Council for Civil Service Unions v Minister of State for Civil Service [1985] AC 374 (the GCHQ case) Lord Diplock offered a threefold classification of the grounds for JR-namely (i) illegality (ii) irrationality (iii) procedural impropriety. The Ct has accepted the classification but by no means perfect since the categories often overlap. (c) 'Illegality' & 'Irrationality' are often referred to jointly under the heading of 'unreasonableness' or 'Wednesbury unreasonableness' from the case with the same name. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

3. Operation of 'Illegality' as a ground for JR: (a) Illegality- See Lord Diplock in GCHQ “By 'illegality' ...I mean that the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judge, by whom the judicial power of state is exercisable”. While approaching the discussion on 'illegality' as a ground for JR, the focus of attention is on the doctrine of ultra vires, latin for 'acting outside one's lawful powers', or 'in excess of one's lawful powers'. It contrast with action within one's powers (intra vires). Lord Diplock used this term to cover a number of different grounds. Thus, the following situations are treated under 'illegality': JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

4. Operation of 'Illegality' as a ground for JR: (Continuation) (i) Making error of law If a public authority is to act within its powers (intra vires) it must conduct itself according to law. An 'error of law' takes place either when the authority misinterprets its legal powers or it comes to an unreasonable conclusion etc. (See the case Secretary of State for Education & science v Times MBC [1977] AC 1014- where the HOL ruled that the authority had not been unreasonable and, as a result, Secretary of State's directions were unlawful). As to the facts of the case, the Secretary of State for Education directed a newly elected local authority to implement plans, devised by the predecessor council, to introduce comprehensive schooling and abolish grammar schools. At the election, there had been a change in the political composition of the Council, which resulted in the change of policy. The Secretary of State's power was to direct an authority as to the exercise of its power if satisfied that the authority was acting unreasonably. The Secretary of State argued that the new Council would not be able to organise the necessary system of selective entry required for grammar schools in time for the new academic year, and that the authority was therefore unreasonable. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

5. Operation of 'Illegality' as a ground for JR: (Continuation) (ii) Acting for an improper purpose/abuse of discretion The allegation of 'illegality' may also take the form of the public authority abusing the discretion which it was given by statute. The limits of JR with regards to discretion are that, in some instances, a statute has conferred very broad discretionary powers on the administrative body. Generally, the broader the conferred discretion, the more difficult it will be to seek review of discretionary action/decision. (See the case of Padfield v Ministry of Agriculture [1968] AC 997, where the court held that if a minister, by reason of his having misconstrued the Act or any other reason, uses discretion so as to run counter to the policy of the Act, the person aggrieved would be entitled to compensation. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

6. Operation of 'Illegality' as a ground for JR: (Continuation) (iii) Taking into a/c irrelevant considerations or failing to take into a/c relevant considerations. In determining what considerations a decision-maker ought to take into a/c in exercising his discretion, the court will look at the statute that provides the discretion and will consider overall aims and objectives of the Act. In other words, an authority may have acted beyond its powers (ultra vires) because, in deciding, it took irrelevant considerations into a/c or, conversely, it failed to take relevant considerations into a/c. See the case of Padfield v Minister of Agriculture [1968] AC 997, where the minister had the power to refer complaints about the operation of the Milk Marketing Board scheme to a Committee of Investigation (Sec 19(3) of the Agriculture Marketing Act 1958). He refused to refer a complaint of substance to the committee. It subsequently emerged that one reason for his decision was that he had taken into a/c the fact that publicity about the complaint would be politically damaging for the Govt at that time. This, the court said, was an irrelevant consideration which rendered his decision unlawful. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

7. Operation of 'Illegality' as a ground for JR: (Continuation) (iii) Taking into a/c irrelevant considerations or failing to take into a/c relevant considerations. See also the case of Roberts v Hopwood [1925] AC 578, where the local authority was empowered by statute to pay its workers 'as it thought fit'. Nevertheless, when the council decided to pay wages that were higher than the national average and pay men and women equally, it was held to have been acting beyond its powers. See also the case of Bromley London Borough Council v Greater London Council [1983] 1 AC 768, where the Greater London Council (GLC) wishing to increase the number of passengers using public transport by decreasing fares, sought to pay for this by seeking a higher level of subsidy, the burden of which would fall on ratepayers of London Boroughs. The HOL held the Greater London Council to be acting ultra vires. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

8. Operation of 'Illegality' as a ground for JR: (Continuation) (iii) Taking into a/c irrelevant considerations or failing to take into a/c relevant considerations. See also the case of R v Somerset County Council ex parte Fewings [1995] 1 All ER 513, where the local authority decided to ban stag hunting on land owned by the Council and designated for recreational purposes. Laws J accepted that, in some circumstances, stag hunting could legitimately be banned- for example, where the hunt would damage rare flora, or if the animals themselves were rare. Here, however, the motivation behind the ban was the moral objection of the Councillors to hunting. Note: See the case of R v Broadcasting Complaints Commission ex parte Owen [1985] QB 1153- the Ct held that where an irrelevant considerations does not affect the outcome of the decision, the Ct may hold that the authority is acting intra vires (inside jurisdiction) JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

9. Operation of 'Illegality' as a ground for JR: (Continuation) (iv) Failure to act/failing to act A public authority may be under a statutory duty to take action and, depending on the specificity of that duty, may be held to be acting unlawfully if it fails to act. This is a difficult area of law in that some duties imposed are clear and precise and hence enforceable by the courts, whereas others may be of a general non-specific nature and thus the court cannot enforce them. In addition to that, an administrative body which is given a statutory discretion can adopt a policy as to how that discretion is to be exercised, but the policy must allow for exceptions where necessary and must in itself be reasonable. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

10. Operation of 'Illegality' as a ground for JR: (Continuation) (iv) Failure to act/failing to act See the case of British Oxygen v Board of Trade [1971] AC 610, where the HOL held that the Board could have a general policy as long as it was not precluded from considering individual cases. What the board/body must not do is to refuse to listen at all. In British Oxygen, the British Oxygen Co Ltd used metal cylinders to store pressurised gases which it manufactured. It applied for a grant in respect of the cylinders under sec 1(1) of the Industrial Development Act 1966, which provided that the Board of Trade 'may make to any person carrying on business in Great Britain a grant towards approved capital expenditure incurred by that person in providing new machinery or plant'. The Board had a policy of denying grants for any item of plant costing less than L25 and, in pursuance of that policy, rejected British Oxygen's application as the gas cylinders cost just under L20 each. British Oxygen sought declarations that inter alia the cylinders were eligible for grant. The HOL upheld the right of the Board of Trade to have a general policy, provided the policy did not preclude the Board from considering individual cases. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

11. Operation of 'Illegality' as a ground for JR: (Continuation) (iv) Failure to act/failing to act See also the case of AG v Wandsworth LBC ex parte Tilley [1981]- the court will look at the context in which the policy is being applied. Where the individual circumstances of the applicant are of paramount importance the adoption of a general rule may be less appropriate. See also the case of R v Secretary of State for the Home Department ex parte Jammeh & Others [1997] -where it was stated that a policy will be ultra vires if it is in effect unreasonable. The policy adopted by the Home Secretary in this case was held to be unreasonable as he refused work permits to asylum seekers awaiting the outcome of their appeals against refusal for asylum. The justification for this decision was: (i) the asylum seeker could become destitute whilst waiting for his appeal hearing and not able to context it, & (ii) the policy had the effect that whilst it was lawful to give money to an asylum seeker who went begging for it, it was unlawful to give money to one who was willing to work for it. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

12. Operation of 'Illegality' as a ground for JR: (Continuation) (v) The unauthorised delegation of power of the exercise of its discretion Where Parliament enacts a statute giving discretion to a Minister or local authority, it is in effect delegating some of its powers to the Minister or local authority. Once delegated, the power cannot be further delegated to another body unless there is some express statutory authorisation for it. The general rule is that powers may not be delegated unless the delegation is authorised by law. However, take note that in the case of Caltona v Commissioner of Workers [1943] 2 All ER 560- the principle is relaxed somewhat where delegation by the Minister is to their civil servant on the basis that the actions of the civil servant are attributable to the Minister. Constitutionally the decision of such an officer is the decision of the Minister, the Minister is responsible to Parliament (per Lord Green MR). See also the case of Oladehinde v Home Department (1990) JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

13. Operation of 'Illegality' as a ground for JR: (Continuation) (vi) Lack of authority In its least problematic version of the doctrine of ultra vires covers the 'illegality' of actions/decisions taken by public bodies that had no statutory authority to act/decide. See the case of R v Richmond Upon Thames City Council ex parte McCarthy and Stone Ltd [1992] AC 48, it was illegal for the local planning authority to levy a fee of L25 for the informal consultation between corporation officers and property developers: charges can be levied on the public only on the basis of statutory authority and making charges was not an 'incidental' aspect of the normal functions of the planning authority. (vii) Acting in bad faith See the case of Cannock Chase District v Kelly [1978] 1 WLR 1. It was held that 'bad faith' means dishonesty, albeit not necessarily for a financial motive. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

14. Operation of 'Illegality' as a ground for JR: (Continuation) (viii) Compatibility/Proportionality Any administrative interference with the rights enshrined by the Human Rights Act 1998 (HRA) must be compatible/proportional. Under sec 6 of the HRA, all public authorities are obliged to act/decide in a manner compatible with the Act i.e., either with full respect to the fundamental human rights enshrines or by relying on legitimate reasons for interfering with such human rights (and only to the necessary degree). All public bodies, including courts and tribunals, are subject to the requirement of the HRA. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

15. Operation of 'Irrationality' as a ground for JR (b) Irrationality- See Lord Diplock in GCHQ: “By 'irrationality' I mean what can by now be succintly referred to as the Wednesbury Unreasonableness. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it”. As far as the principle of Wednesbury Unreasonableness-Lord Green in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 233 stated: “...the test of unreasonableness is not what any individual judge might think reasonable or not. Rather it should be asked whether the decision was one which no reasonable local authority could have made”. Take note that in both the European Community and the ECHR, proportionality is recognised as a ground for challenging the decision of public authorities. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

16. Operation of 'Irrationality' as a ground for JR: (Continuation) (b) Irrationality However, while there appear to be clear similarities between proportionality and reasonableness, the English Court have traditionally refused to recognise it as a ground for review. See the case of R v Secretary of State for the Home Department ex parte Brind [1991]- where the HOL re-examined the reasonableness of the exercise of the Home Secretary's discretion to issue notice of banning the transmission of speech by representative of the Irish Republicans Army and its political party, Sein Fein. Despite the issue involving a denial of freedom of expression, the court ruled that the exercise of the Home Secretary's power did not amount to an unreasonable exercise of discretion. Note: It must be recognised that with the enactment of the HRA 1998, proportionality will now become part of the domestic law (UK). JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

17. Operation of 'Procedural Impropriety' as a ground for JR: (c) Procedural Impropriety-see Lord Diplock in GCHQ: “I have described the third head as 'procedural impropiety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness...This is because susceptibility to judicial review under this head covers failure by an administrative tribunal to observe procedural rules that are expressly laid down”. Under this heading we consider actions against administrative decisions/actions which either failed to comply with procedures that are specified by law/or were taken in an 'unfair' manner, according to the principles of 'natural justice' developed over time by the courts. The second class of cases, concerned with natural justice, are particularly significant since in this part of JR the judges control the exercise of administration with reference not to the will of Parliament, but to the principles of legal/political morality. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

18. Operation of 'Procedural Impropiety' as a ground for JR: (Continuation) (c) Procedural Impropriety Procedural impropiety can be viewed from two angles: (i) Procedural Ultra Vires (under statute) and (ii) Failure to abide by the rules of 'Natural Justice'. (i) Procedural Ultra Vires A public body's failure to comply with procedures laid down by the legislative instrument-by which its jurisdictions was conferred may invalidate their decision or action. The Cts distinguish between those procedural requirements which are 'mandatory', the breach of which will render a decision void, and those which are 'directory' which may not invalidate the decision taken. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

19. Operation of 'Procedural Impropiety' as a ground for JR: (Continuation) (c) Procedural Impropiety (i) Procedural Ultra Vires: (Continuation) Examples of 'mandatory' requirements are: Consultation (see the case of Grunwick Processing Laboraties v ACAS); Giving of notice (see the case of R v Swansea County Council ex parte Quietlynn; and Matters, to be out in writings (generally mandatory) (see the case of Howard v Secretary of State for Environment). On the other hand, the Cts consider time limit, as an example of directory requirement (see the case of Cullimore County Council v Lyme Registration Corporation). Whether the procedure is 'mandatory' or 'directory' is a difficult distinction. For example, in the case of London & Clydesdale Estates Ltd v Aberdeen District Council [1979] 2 All ER the HOL emphasised the inherent vagueness in the distinction and stressed that the Ct would not make a demarcation between them: it is all matter of degree and the particular circumstances of the case must be examined. Hence, nowadays, the Cts tend not to concentrate on the wording but on the importance of the procedure. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

20. Operation of 'Procedural Impropiety' as a ground for JR: (Continuation) (c) Procedural Impropiety (ii) Natural Justice The rule of 'natural justice' are common law rules-although their requirements may be made statutory. Two principle rules exist: (1) the rule against bias and (2) the right to a fair hearing. 1) The rule against bias (nemo judex in causa sua) The rule against bias: nemo judex in causa sua (latin for: 'no one should act as a judge in their own case'). This rule is against both actual and potential bias by a public body against the affected party. Thus, it is not necessary to show that actual bias existed as the mere appearance or possibility of bias will suffice, public officials not only have to be just but must be seen to be just. The suspicion of bias, however must be a reasonable one. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

21. Operation of 'Procedural Impropiety' as a ground for JR: (Continuation) (c) Procedural Impropiety (ii) Natural Justice 1) The rule against bias (nemo judex in causa sua) See the controversial case of re Pinochet Ugarte (Jan 18, 1999), the importance of the rule against bias was reiterated. Where the Ct ruled that there are two situations in which this rule against bias applies: where the person making a decision has certain interest in the decision; and where the person making the decision is biased. Take note that 'bias' takes two forms and they are: Financial bias (whether it is actual or potential, will always disqualify a public official from exercising his/her functions) & other bias/a non pecuniary interest. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

22. Operation of 'Procedural Impropiety' as a ground for JR: (Continuation) (c) Procedural Impropiety (ii) Natural Justice 1) The rule against bias (nemo judex in causa sua) * Financial Bias See the case of Dimes v Grand Junction Canal [1852] in which the HOL set aside the Lord Chancellor's decision as he was a shareholder in the Co appearing before him. Although there was no indication that the Lord Chancellor had been biased, the appearance of bias was enough. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

23. Operation of 'Procedural Impropiety' as a ground for JR: (Continuation) (c) Procedural Impropiety (ii) Natural Justice 1) The rule against bias (nemo judex in causa sua) * Other bias/a non-pecuniary interest These include interests such as professional or family interest, race, sex, politics and social background may also lead to a decision being invalidated. See the case of R v Sussex Justices ex parte McCarthy [1924] 1 KB, where Lord Hewart CJ said: “It is a fundamental importance that justice should not only be done but manifestly and undoubtedly be seen to be done”. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

24. Operation of 'Procedural Impropiety' as a ground for JR: (Continuation) (c) Procedural Impropiety (ii) Natural Justice 1) The rule against bias (nemo judex in causa sua) In R v Sussex Justices, the applicant had been charged with dangerous driving and convicted. On discovering that the Clerk to the Magistrates' Court was the solicitor who had represented the person suing McCarthy for damages; McCarthy applied for JR based on bias on the part of the Clerk. The Clerk had retired with the Magistrate when they were considering their verdict. It was accepted that the Magistrate neither sought advice nor given advice by the Clerk during their retirement. Nevertheless, McCarthy's conviction was invalidated on the possibility of bias. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

25. Operation of 'Procedural Impropiety' as a ground for JR: (Continuation) (c) Procedural Impropiety (ii) Natural Justice 1) The rule against bias (nemo judex in causa sua) In order to decide an allegation of other bias, the Ct will ask itself whether, in the event, there was a 'real danger' that the public decision making process may not have been fair as a result of bias. This is known as the 'real likelihood test' and it is found in the case of R v Gough [1993] 2 All ER at p.727. The 'real likelihood test' has been slightly modified in view of the requirements of the HRA 1998 in Director General of Fair Trading v Proprietary Association of Great Britain [2000] TLR, 2 Feb, as: the Ct will first ascertain all the circumstances which had a bearing on the suggestion of bias; then it will ask whether those circumstances would lead a 'fair-minded and informed observer to conclude that there was a real possibility, or real danger-the two being the same-that the decision was biased. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

26. Operation of 'Procedural Impropiety' as a ground for JR: (Continuation) (c) Procedural Impropiety (ii) Natural Justice 2) The right to a 'fair hearing' (audi alteram partem) The right to a 'fair hearing': audi alteram partem (Latin for: listen to/consider the others point of view). It is a fundamental requirement of justice that, when a person's interests are affected by a judicial or administrative decision, he/she should have an opportunity both to know and to undertand any allegations/considerations made against them, and to make representations to the decisions maker to counter the allegations/considerations. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

27. Operation of 'Procedural Impropiety' as a ground for JR: (Continuation) (c) Procedural Impropiety (ii) Natural Justice 2) The right to a 'fair hearing' (audi alteram partem) What is specifically required under the 'right to fair hearing' depends on the facts of each case. Thus, the right may include: * The right to legal representation This right depends upon the nature of the hearing and the nature of rights affected. But in today's context most constitutions provides for such a right. See the case of R v Secretary of State for Home Department ex parte Tarrant-where the Ct held that the right to legal representation will be available if the case cannot be argued properly without it. (See also the case of Pett v Greyhound Racing Association (No.2)-where the Ct held that the right to legal representation will be available if one's livelihood is at stake. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

28. Operation of 'Procedural Impropiety' as a ground for JR: (Continuation) (c) Procedural Impropiety (ii) Natural Justice 2) The right to a 'fair hearing (audi alteram partem) * The right to be given the reasons behind any adverse decision In the case of Breen v AEU [1972] 2 QB 175, Lord Denning MR stated that the giving of reason is 'one of the fundamentals of good administration' See also the case of Doody v Home Secretary [1993] 3 WLR 154-where the Ct held that reasons should be given unless there is some good reason for not doing do so. In Doody, the Ct went further and stated that the applicant did not know the reasons for the decision, it was impossible to make an effective representation in support of his case. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

29. Operation of 'Procedural Impropiety' as a ground for JR: (Continuation) (c) Procedural Impropiety (ii) Natural Justice 2) The right to a 'fair hearing (audi alteram partem) * The right to be given the reasons behind any adverse decision See also the case of R v Ministry of Defence ex parte [1997] The Times, 17 December. In this case, the Divisional Ct ruled that, although there was no general overriding principle of law which required decision makers to give reasons for their decisions, the duty of fairness required that reasons be given, where demand by the circumstances of the case. In this case, the applicant had been convicted by the Court Martial of wounding. The Court Martial reached its conclusion and passed sentence without giving reasons. The applicant's conduct, which was 'entirely out of character', and to which he pleaded guilty, was caused by ingestion of anti malarial drug. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

30. Operation of 'Procedural Impropiety' as a ground for JR: (Continuation) (c) Procedural Impropiety (ii) Natural Justice 2) The right to a 'fair hearing (audi alteram partem) * The right to be given the reasons behind any adverse decision See also the case of R v Director of Public Prosecutions ex parte Manning & Another [2000] The Times, 19 May. The Ct held that there being no general duty requiring the DPP to give reasons for a decision not to prosecute, he would be expected to do so where his refusal concerned a death in custody, in respect of which a coroner's inquest had returned a verdict of unlawful killing. Note: The effect of the HRA 1998 i.e., Art 5 of the ECHR (the right to liberty and security) expressly states that person arrested shall be informed promptly, in a language which he/she understands, of the reason of arrest. See also Art 6 on a right to a fair trial (while the giving of reason is not an explicit requirement of Art 6, it is implicit in facilitating the right to appeal. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

31. Operation of 'Procedural Impropiety' as a ground for JR: (Continuation) (c) Procedural Impropiety (ii) Natural Justice 2) The right to a 'fair hearing (audi alteram partem) * Duty to act fairly There exists a duty to 'act fairly' and the principle can be clearly seen in the case of Re HK (Infant) [1967] 2 QB 617 wherein it was held that, whilst immigration officers were not obliged to hold a hearing before deciding an immigrant's status, they were nevertheless under an obligation to act fairly. The scope of this duty is rather vague -see the case of Schmidt v Secretary of State for Home Affairs-where Lord Denning stated that a foreign alien can be refused permission to remain in the country without reasons and without hearing. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

32. Operation of 'Procedural Impropiety' as a ground for JR: (Continuation) (c) Procedural Impropiety (ii) Natural Justice 2) The right to a 'fair hearing (audi alteram partem) * The right to be given the reasons behind any adverse decision See also the case of Hardie v City of Edinburg Council [2000] SLT 130. In this case, a teacher who was informed that he would be removed from the list of supply of teachers and not employed again following allegations by a pupil of professional misconduct. It was held that 'natural justice' required that fair notice of the allegations made and opportunity to comment on the reports should have been given, and that the report should have been communicated to the applicant before a decision was reached. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

33. Available remedies for the courts to grant: The granting of remedies oocurs at the discretion of the Ct even if the applicant manages to establish his/her case. The Ct may refuse to grant a remedy if the commencement of proceedings was delayed, or if the applicant has acted unreasonably, or the granting of a remedy would damage the public interest in efficient administration. From Oct 2000, the orders of mandamus, prohibition and certiorari shall be known as a mandatory order, a prohibiting order and quashing order. The Ct may grant one or more of the following remedies: (a) Public law remedies * Quashing orders (formerly known as certiorari)- it quashes the an original decision by a public body or nullifies an action by a public body. This remedy overlaps with that of prohibition. * Prohibition orders (formerly known as mandamus)- it prevents a body from making a decision or taking into action, which would be capable of being quashed/destroyed by certiorari. No prohibition order can be made against decisions by the higher cts. (It is an order to prevent an inferior body or person from exceeding its jurisdictions). JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

34. Available remedies for the courts to grant: (Continuation) (a) Public law remedies * Mandatory orders (formerly known as mandamus)- This order compels an authority to act. However, an order of mandamus cannot lie against an authority, which has complete discretion to act. (b) Private law remedies * Declarations- they are statements of the legal position of the parties and, therefore, a declaration is a 'remedy' strictly speaking. It is not enforceable in any way but rarely ignored by public bodies. * Injunctions- they are orders that prevent an administrative body, including a Minister, from acting unlawfully. They can be interim (temporary) or permanent. * Damages- a JR applicant may be awarded damages in combination with one of the other remedies. Damages will only be awarded if they would have been recoverable had the applicant been in action in a private law action. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2

35. The HRA 1998 and doctrine of JR: * Does the action taken prima facie infringes a Convention right at all? The first stage is to determine whether the act of a public authority has had any prima facie impact on the Convention rights. * Is the restriction on the right justified under the Convention? * Was there a breach of sec 6(1) of the HRA 1998 (the duty to act compatible with Convention rights)? JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2