COMPILED IN PART BY SHORNA-KAYE EDWARDS Administrative Law WS1: Availability of Judicial Review

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1. APPLYING FOR JUDICIAL REVIEW (a) Legislation Barbados Administrative Justice Act [1983] - S. 3 (1): Application to the court for relief against an administrative act/omission may be made by way of an application for judicial review in accordance with this Act and with rules of court. - S. 3 (2) Where the court is of the opinion that the defendant is not an authority of the govt, the court may allow proceedings to go along with necessary amendment, as proceedings not governed by this act. Trinidad and Tobago Judicial Review Act [2000] - S. 5 (1): an application for JR of a decision of an inferior crt, tribunal, public body/authority or a person acting in the exercise of a public duty or function with any law shall be made to the Court in accordance with this Act. - S. 5 (2): Crt. May grant relief in accordance with the act to (a) person whoses interests are adversely affected by the decision (b) to a person or a group of persons if the court is satisified that the application is justificable in the public interest in the circumstances of the case. (b) Civil Procedure Rules Administrative Law of the Eastern Caribbean Supreme Court (ECSC), Civil Procedure Rules (CPR), 2000 Parts 56: Who may apply for Judicial Review - 56.2(1) An application for JR may be made by any person, group, or body which has sufficient interest in the subject matter of the application. - 56.2(1): (a) This includes the person who has been adversely affected by the decision which is the subject matter of the application. (b) any body or group acting at the request of a person in (a). (d) any body who can show the matter is of public interest and that they possess expertise in the subject matter of the application. - 56.3 (1): A person wishing to apply for JR must first obtain leave; - 56.3 (4): the application must be verified by evidence on affidavit which must include a short statement of all facts relied on. 2. CLAIMANTS An applicant seeking judicial review must generally meet the test of locus standi as a first step to getting his application heard. He must be a juristic person, that is a: (a) person of the age of majority and above; or (b) if a minor he can sue by his guardian or next of friend; or (C) a corporate body whether established by special statute or under the Companies Act. Next the applicant must have some, or sufficient interest in the matter such as being prejudiced by the decision or lack of decision about which he complains. It is said this requisite is to keep out busybodies or mischiefmakers from the courts. The applicant must also ensure that the defendant is a juristic person. It is now a general practice to name the Attorney General as defendant in judicial review proceedings. 1

The enforcement provision of the Constitutions of all the English-speaking Caribbean Commonwealth States is explicit as to the nature of the interest required of an applicant seeking judicial review for breach of his fundamental rights. The breach must be in relation to him1 and in some Constitutions of the English-speaking Commonwealth Caribbean States, the said enforcement provision also provides for a detained person to instruct his attorney-at-law to apply on his behalf. In Collymore, Wooding C.J. seems to suggest obiter dicta, that a trade union or other organisation recognised by law may also be capable of suing under this category. With respect to judicial review for Acts of Parliament inconsistent with provisions of the Constitution other than the fundamental rights provision, all the Constitutions of the members of the Organisation of Eastern Caribbean States expressly provide that the applicant must have a relevant interest. The constitutions of the other territories have no such provision regarding judicial review, but that appears to be no bar to judicial review under this limb as the cases of Hinds v. R and The Attorney General of Trinidad and Tobago v. McLeod [1984] 1 WLR 522 demonstrate. If the claim is meritous the claimant will have locus standi. If not he has no locus standi. Make an application: apply for leave, the court will make a determination if fact gives rise to a claim. The claim for declaration. Even on some occasion when there is an application, the court will grant leave even if you do not have locus standi. The court is really avoiding the issue of locus standi and holding it on the basis of merit. The two are seemingly inextricable linked now. (a) Capacity and Standing The two elements that a claimant must show when he wants to prove he has locus stani is that he has (a) capacity and (b) sufficient interest to create standing. There is an important difference between capacity and standing: capacity is whether the entity itself, seeking JR, has the legal capability to bring a claim for JR (e.g. Corporations). Standing on the other hand, is whether the entity has the sufficient interest to be able to bring the claim. Capacity for this course sake speaks to institutional capacity. However it should be noted that minors have no capacity for example, Kristi Charles case 2008 in Jamaica where the minor who received the highest grade in the Island for GSAT did not get a scholarship because the Ministry of Education thought a possibility existed that she could have cheated. Her parents (Timothy and Cleopatra Charles) brought a claim in her stead. Capacity is not inextricably linked to standing. Individuals always have capacity as legislation so provides eg. ECSC CPR 56.2 any person, however the capacities of companies is inferred from the fact that they possess legal rights from legislation and are subject to legal action, and thus should possess to capacity to sue where applicable like individuals. As such unincorporated associations and companies generally lack legal capacity to sue or be sued in their own name . In some claims for JR, brought by unincorporated association it has been held as a bar to permission being granted. A different approach has been adopted in other cases, where either the issue of capacity doesnt arise or a member such as chairman, secretary or other member of association is recognised as representing the association ie the unincorporated association can make a claim in their own name for JR through a member in a representative capacity how has been directly affected or raising a issue of public interest and the member is the appropriate person.
1

Collymore v. The Attorney General of Trinidad and Tobago (1967) 12 W.I.R. 5 per Wooding, C.J. at p 19 F I

It is possible to seek an order under the CPR that a claim be begun or continued with one party representing the interests of others who have the same interest in the claim. Given that the unincorporated status of a defendant is not a bar to being subject to or defending JR (ex P Datafin) , a flexible approach is appropriate. Desmith Judicial Review concludes that Unincorporated associations have been allowed to be claimants in many cases. Incorporation will not of itself create sufficient interest it will only mean that the association now has capacity they will still have to prove the second test. Collymore v AG The appellants were suing for infringement of their right to participate in the activities of a trade union. They were challenging the lawfulness of the industrialisation stabilisation act, which allegedly infringed their constitutional right to freedom of association. The action was brought in the applicants personal capacity but the justices consistently treated the action as if it were brought by the trade union since it was brought collectively by its membership. Fraser JA quotes Professor Dicey who said: In almost every country some forms of association force upon public attention the practical difficulty of so regulating the right of association that its exercise may neither trench upon each citizens individual freedom nor shake the supreme authority of the state. The problem to be solved, either as a matter of theory or as a matter of practical necessity, is at bottom always and everywhere the same. How can the right of combined action be curtailed without depriving individual liberty of half its value; how can it be left unrestricted without destroying either the liberty of individual citizens, or the power of the Government? Wooding CJ: it [ the constitution] was intended to protect natural persons primarily but that 'Some of the particular prohibitions
are undoubtedly apt to protect artificial legal entities also,...' recognise that a trade union or other organisation acts, as it must, through its Executive. the act constituting the offence, if directed by a member of its Executive, to be its own. since s 41 (3) affects only a trade union or other organisation, neither of the appellants can rely on it to complain of any contravention, actual or threatened, in relation to him such as is necessary to qualify him to move in respect of it under s 6 (1) of the Constitution.

Corporations AG v Antigua times Ltd [1976] - The appellants were a registered company in Antigua and applied to the HC for JR seeking declarations that two parliament acts were ultra vires the legislature and repugnant to s10 of the constitution (i.e. imposition of the license fee on newspaper companies was not enacted to raise revenue as required). It was contended that the corporation had no locus standi because the redress under the s 15 was for any person alleging infringement of constitutional rights to him and that excluded artificial persons. Held: (Lord Wilberforce) that there was nothing in the context of the Constitution to exclude artificial persons in so far as they were capable of enjoying the fundamental rights and freedoms protected by the Constitution; that 'any person' in s 15 included a body corporate. Olivier v. Buttigieg [1967] 1 A.C. 115. ' It is obvious that there are certain rights and freedoms in the Constitution which from their very nature cannot be enjoyed by a corporation (the right to life) but there is nothing in principle which prevents a corporation from enjoying other rights (securing of protection of the law or the rights relating to the compulsory acquisition of property, if a corporation's property were compulsorily acquired it be entitled to compensation.) Societe United Docks v Govt of Mauritius [1985] - The appellant companies brought actions against the government of Mauritius seeking redress claiming that an Act deprived them of property without compensation contrary to s 3 the Constitution. held, that the right of the individual to protection from deprivation of property without compensation afforded by s 3 of the Constitution applied also to corporate bodies. There is nothing in 3

section 3 to indicate that it does not apply to corporate bodies, even despite the word "individual. No logical distinction can be drawn between the individual protected by s 3 and "the person" protected by the remaining sections of the Constitution. Both expressions include a corporation where the context so allows. Public Authorities: Many public authorites have capacity to institute legal proceedings. AG has an ancient power to make legal claims in the name of the Crown as an aspect of his role as guardian of the public interest. He may also consent to the use of his name to enable proceedings to be brought by another party in a relator proceeding for protection of the public interest in the civil courts. The liberation of the courts approach to the sufficient interest test has more or less brought an end to the use of relator actions in public law context as there is now no impediment on a citizen commencing a claim in his own name so (citizens naturally have capacity) to enforce a public duty. Re Blake [1994] 47 WIR 174 We see the court adopt the approach of enquiring into the merits of the application before considering standing in this Caribbean case. The court examined the merits of the claim before declaring that the decision of the Governor General to appoint as Prime Minister the individual who had lost the election was non-jusiticiable mainly because a review of his decision would open the door for decision making at the highest level of the state to be questioned.
The appellant filed an ex parte originating summons alleging that the Governor Generals decision to appoint or retain the Prime Minister and to establish a minority government was unconstitutional and that such a decision infringed the appellants fundamental rights and freedoms. The appellant sought a declaration by the court based on those allegations, but in effect claimed an order of mandamus, requiring the Governor General to remove the Prime Minister from office, to dissolve parliament and to call a general election. Hylton J refused the application and the appellant appealed to the CA. Held: leaving aside the procedural aspects of the case, the CA held that s.116 (2) of the Constitution precluded any court from enquiring into the exercise by the Governor General of the power under s52 of the Constitution to appoint a Prime Minister. Notwithstanding s119(11) (which empowered the courts to consider the exercise of functions under the Constitution), the court held that decisions of the Governor General under s.52 were non-justiciable. The court added that if the decision of the GG to appoint a PM were made subject to judicial review, the results could be horrendous. It would mean that the Head of State might be required to divulge sensitive confidential opinions and information imparted by the Representatives and other persons and would be exposed to all the undesirable consequences of such disclosure. Public policy dictated that the Head of State should be spared those consequences.

(b) Standing the Sufficient Interest requirement All legal systems have to face the problem of resolving the conflict between two aspects of the public interest the desirability of encouraging people to participate actively in the enforcement of the law, and the undesirability of encouraging meddlesome interlopers invoking the jurisdiction of the courts in which they are not concerned. To deprive a person of access to the courts because of lack of standing can raise issues of constitutional significance. At its heart is the question of whether it can be right, as a matter of principle, for a person with an otherwise meritous challenge to the validity of a public authoritys action to be turned away by the court on the ground that his rights or interests are not sufficiently affected by the impugned decision. Question: If a decision which is otherwise justiciable is legally flawed, should the court prevent its jurisdiction being invoked because the litigant is not qualified to raised the issue? Yes, presupposes that the crts supervisory jurisdiction is to redress individual grievances, rather than maintenance of rule of law (JR suppose to be concerned with that). 4

Arguments to Restrict Access: (1) Crts resources shld not b dissipated by need 2 provide forum for frivoulous or academic proceedings; (2) Central/local govt. Authorities shldnt b disrupted unnecessarily by having to contest unmeritous proceedings; (3) As a matter of prudence the crts. Should reserve their pwr to interfere with the workings of public authorities to those occasions when there is acclaim b4 them by someone who has been adversely affected by the unlawful conduct of which complaint is made (4) It is important that the crts confine themselves to their correct constitutional roles, and do not become involved in determining issues which are not justiciable by giving unlimited access to the courts. In favour of a more open (generous) approach: (1) When there are strict rules as to to standings there is always the risk that no one will be in a position to bring proceedings to test the lawfulness of administrative action. It is hardly desirable that a situation should exist where because all members of the public are equally affected no one is in a position to bring proceedings. (2) Fears that are sometime voiced of the courts being overwhelmed by a flood of frivoulous claims are unsupported by any evidence of this happening in practice. (3) the cost of litigation are now so heavy that it is only the most determined litigant who will indulge in legal proceeding which are w/o merits.

However as it is important in the interest of the general public that the law be enforced, the policy is to encourage individuals and groups even though not directly affected to challenge unlawful administrative action. Strict rules as to standing run the risk of one on being in a position to bring proceedings, and plus there are other safeguards in place to prevent unmeritorious claims. (B) THE SUFFICIENT INTEREST (SI) REQUIREM ENT No application for JR shall be made unless the leave of the court has been obtained in accordance with the rules of court; and the court shall not grant leave unless the application has sufficient interest in the matter[ECSC CPR 56. 2(1) and 56. 3(1)]. Assessment of standing relate to the circumstances at the time when permission is sought. Normally, the parties will raise the issue of standing . The defendant may not merely agree to the claimant having jurisdiction, which the court may not have, by consent, he can challenge it. The courts may also take the standing point of its own motion even if not raised by the parties. In R Bulger v Lord CJ, the father was of murder victim sought to challenge, by JR, the tariff (punitive term) set by the LCJ for the murderers. On the issue of standing, it was seen that it is the parties that initially raise the issue of standing but in case they dont the court also can , and it did because it considered it of potential importance. It was found that the father did not have sufficient interest in the matter to bring JR; the parties to criminal proceedings, crown and the defendant are able to challenge those judicial decisions susceptible to JR, but not a third party. At best the invitation extended to him to make representations on the impact of the offence on him gave a limited standing to enable him too challenge any failure to have regard to that, but not challenge the appropriate tariff. Relevance of standing (a) At the permission stage for leave to apply for JR - [ECSC CPR 56.3(1)] makes it clear, A person wishing to apply for JR must first obtain leave. If there is insufficient interest at that stage, the court is prohibited from granting permission. National Federation case HOL held however, except in obvious cases, that sufficient interest ought not to be dealt with at the substantive hearing because it cannot be considered isolated from the legal and factual context, instead it shoul be postponed until the full hearing of the claim. - The threshold for standing at the persmission stage should be set only at the height necessary to prevent abusive claimants. A person/body with a bona fide concern about the subject matter of the proceedings wouldnt be a troublemaker, however person with other non-geniune motives may be denied and also if the grounds for challenge are totally unarguable. - When assessing whether these is an abuse, the claimants motives for making the claim may be relevant (Golding v Simpson Miller SC CA No 3/08). 5

Regard may be had to the basis of the claim, if they are totally w/o foundation or unarguable, any standing that a claimant might hypothetical have disappears. - De Smith Judicial Review opines where the grounds of challenge are hopeless it is preferable for the crt to refuse permission on that basis alone w/o making any ruling on standing. (b) At the full hearing for the application of JR - from the ECSC CPR, the claimants sufficient interest is a condition precedent to the court having jurisdiction. Thus examination of standing at this stage is necessary to ensure the Admin court has jurisdiction. Normally standing is not the preliminary issue at hearings, grounds for JR first. The task of the court in assessing whether a particular claimant has standing has been described by Popplewell J in R v North Somerset DC Ex p. Garnett [1998] as a balancing act between the various factors. (c) In relation to the grant of remedial orders The degree of the claimants interest will depend on the remedy which is claimed, eg. A greater degree of interest is needed for a mandatory order than a declaration. R (Leigh) v Felixstone - A journalist not present at the hearing had sufficient interest to claim a declaration that a policy of not disclosing names of justices who had certain types of cases was contrary to public interest, but he was refused a mandatory order to reveal names of a particular case. It would be difficult to apply different principles of standing to different remedies at the permission stage, because claimants tend to include all relevant remedies at then and only after the full hearing decide which order to request. However at this National Federation (Wilberforce & Scarman) are relevant: in a courts discretion to grant relief, the interest of the claimant is a factor to be considered when deciding what, if any, relief should be given, however they opined that for some remedies a crt is going to be more hestitant to grant relief if claimant does not really have standing. Davey v Aylesbury Vale District Council [2007] the purpose of the permission hearing The court was asked here whether, as a general rule, an order made following a full judicial review hearing that a successful defendant should recover its costs will entitle it not only to its acknowledgement costs but to any reasonably incurred preparation costs. The court dismissed case saying the applicants should ensure that when final cost is presented to judge any preparation cost is included.
-Sedley LJ quotes with approval Lord Diplock judgment in the IRC v National Federation of Self Employed and Small Businesses [1982] AC 617, at 643-644:'... The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief. ...'

Assessing the Claimant s interest Bulger - the threshold for standing in judicial review has generally been set by the courts at a low level, because of the importance in public law that someone should be able to call decision makers to account, lest the rule of law break down and private rights be denied by public bodies. There is no guidance by the section CPR, as to the factors to be considered. The court assesses it against all the factual and legal circumstances of the case. It is a mixed question of fact and degree. Lord Roskill states in National Federation that the phrase sufficient interest, embraces all classes of those who might apply, yet permits sufficient flexibility in any particular case to determine whether or not it was shown. This is precisely the approach which has been accepted in the vast majority of cases, even though it creates considerable scope for differing judgments on the same facts as to whether a claimant has standing (Lord Diplock dissent National Federation and Lord Jauncey dissent Equal Opportunities Commission v Secretary of State for Employment [1995]). 6

Main Factors in assessing: - Impact and proximity interests If the decision which the claimant wishes to challenge interferes directly, with his personal/public rights or has adverse financial consequences, he will have standing (direct effect), e.g. A person who uses public land, a beach upon which byelaws where passed impugning his rights to use the beach had standing to challenge decisions in respect of it R (Manson) v Dyfed ; but in a challenge to grant of a license, a person not in contention for the grant may lack standing R (Wildman) v Office of Comm. - Public Interest It may not be necessary for the claimant to show any personal proximity to the decision or special impact or interest over an above that shared with the generality of the public. The courts have drawn distinction between one who brings proceedings having no real or genuine interest in obtaining the relief sought (no SI) and one legitimately and passionately interested in obtaining relief, relies as grounds for seeking that relief on matters in which he has no personal interest (yes SI). e.g. former editor of Times, was held to have standing to challenge the foreign sec. decision to ratify the Treaty on EU because of his sincere concern for constitutional issues (exp Rees Mogg). - See [Payne v AG] and [Francios v AG] in Parlex Admin Wk Sht.1 Cases. Other Factors: - Absence of other challenges may weigh in claimants favour, because otherwise there would be a gap in the vindication of the law. - Legislative framework in which the public authoritys decision is made 1.if it gives the claimant a right to make representations before the decision is reached, this is a strong indication of standing to challenge it when made. 2 whether the statute under which the decision was taken gives an implied right to person in position of the claimant to complain of the alleged unlawful (National Federation, Lord Frazer) 3. The legislation may be intended to protect the section of the public whose interests the claimant is seeking to defend. - Strength of the grounds of review and the importance of the point of issue and the public interest is likely to be considered but are not dominant factors. Campaign and interest groups as claimants basis on which they have interest varies. (i) They may have been directly affected as an organisation by the challenged decision. (ii) Where members of the organisation are personally affected they may bring the claim in a representative
capacity.

(iii) They may bring a claim as a public interest challenge as a group National Federation a body which represents a group of claimants who are seeking to establish standing are in no better position than an individual, since an aggregate of individuals, each of whom has no interest cannot itself have an interest. Ex p Rose Theatre applied this principle to a body of individuals who because they were interested in preserving a site of historical theatrical remains from development, formed a company to challenge the failure of the minister to prevent the development. Judge said: incorporating into a group and pursuing a particular object, doesnt give interest if the individuals themselves lack interest. These principles are can be applied without undesirable results but are not principles of general application. There is no magic in the act of incorporation, however a group of persons combined to make a claim may give them enhanced authority to speak on behalf a section of the public; they may acquire special status of acknowledged expertise; they may have standing to represent less fortune groups or individuals not able to make proceeding themselves. In Rose the presence of specialist individuals in the group should have been 7

considered a factor in favour of standing the agglomeration of individuals might have a standing which anyone individual lacked. In Ex p Greenpeace Greenpeace was entitled to challenge Sec of states decision as to discharge of radioactive waste, if they didnt have standing, an application would have to be made by an employee or neighbour of the establishment who would not be as qualified (Rose not followed). In liberalising the requirement of standing for interest groups further; Ex p World Development Bank Whereas in Greenpeace individual members of Greenpeace would have been directly affected by the testing, no individual member of the WDM was any more affected by the grant to build a powerstation than the public. Nevertheless the court held WDM had sufficient interest due to; the merits of the claim (the impugned decision was unlawful), the importance of vindicating the rule of law, the importance of the issue raised, the likely absence of any other challenger, the prominent role of these claimants in giving advice with regard to all. Today, this type of litigation is valued, the court ought not to decline jurisdiction to hear a claim for JR on the ground of lack of standing to any responsible person or group seeking on reasonable grounds to challenge the validity of the gov t action, this is emphasised by the ability of 3rd party intervention. The court ought not to decline jurisdiction to hear a claim for JR on the ground of lack of standing to any responsible person or group seeking, on reasonable grounds, to challenge the validity of government action. The good sense of this approach is emphasised by the ability of the courts to give permission to a 3rd party in the proceedings to assist the courts, which is happening with increasing frequency. The pressure group must however act as a friend of the court, meaning it conduct in making an application has to be controlled with particular strictness especially as regards the requirement that application for permission be made promptly and in any event within three months of the impugned decision. The opposition leader in the Jamaican case of Golding v Simpson-Miller decision 2008, failed to act as a friend of the court and delayed action to make submission beyond the fourteen day grace period given by the court and as such her prior favourable ruling on locus standi was properly examined with a unanimous court holding that she has no interest and the case should be dismissed. (C) Interested parties and Interveners (i) Interested parties (they are parties to the claim, they may appeal) Persons other than the claimant and defendant may participate in a claim for JR. Interested parties ie. (upon whom the claimant is obliged to serve the claim form, and who should receive a letter before the claim is started) any person (beside claimant or defendant) directly affected by the claim, being inevitably affected by the outcome of the claim for JR is insufficient. Also, it must be affected without the intervention of any intermediate agency. Interested parties are parties to the claim and may therefore appeal against the judgment of the court. (ii) Interveners A person may apply for permission to make written and/or oral submission at the hearing of the JR. May include, campaign groups, govt deps, business enterprises indirectly affected by outcome of claim. These may enhance courts decision-making; provide additional evidence, expertise etc. The Main criterion ought to be whether would-be interveners, through their expertise are likely to assist the court in understanding either the legal issues or the factual basis of the claim and the consequences that may flow from the courts judgement. Instead of merely intervening, in some circumstances a person may seek to be joined as a second claimant or defendant. The same criteria should apply. The advantages of becoming a party are that you may obtain relief if you succeed or appeal if you do not. The principle disadvantage is the possible liability for costs. 8

Why have the courts adopted such a liberal view of standing in relation to interested parties and interveners? Corner House council - In the liberalisation of rules of standing in JR cases, Lord Diplock, National Federation said in justifying the modern approach to standing and purpose of JR "It would be a grave lacuna in our system of public law if a pressure group or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped. A-G oftentime fail to use his pwr against govt. Department. Officers/departments of central govt are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, who is the only judge." It was also said in this regard the court must be mindful not to allow cost to inhibit the value of such liberal action. Belize Alliance of Consevation NGO (BACONGO) v Department of Environment (DoE) [2004] UKPC: CJ did not make an order as to cost against applicant (bacongo) recommending them for bringing the action in the public interest although he did not rule in their favour. Bacongo appealed, the CA ruled against them and oncemore did not award cost. Bacongo appealed to PC, the PC ruled against them and this time say they would award cost based on the submission of the parties. Fisherman and Friends of the Sea v Environment Management Authority [2005] UKPC 32: The FFS was allowed to sue the EMA because based on the liberal generous interpretation of sufficient interest it was held to have interest. It was a non-profit group formed by over 20,000 people. The PC accepts that FFS has standing. 3. DEFENDANTS AND DECISIONS SUBJECT TO JUDICIAL REVIEW (a) Range of Authorities subject to Judicial Review (i) Cabinet: Williams Construction Ltd v AG of Barbados (1994) 45 WIR 94 Lord Bridge: When the cabinet exercises a specific statutory function which, had it been conferred on a minister instead of the Cabinet would unquestionably have been subject to JR, their Lordships can see no reason in principle why the Cabinets exercise of the function should not be subject to JR to the same extent and on the same grounds as the ministers would have been. HMB Holdings v Cabinet of Antigua and Barbuda (2007) UKPC 17 The question here is whether the Cabinets decision is open to review at all, having regard to the terms of section 3(1) of the Land Acquisition Act. The Cabinets decision as to what is a public purpose and that the land is required for that purpose is not justiciable: Spencer v Attorney General [1999] 3 LRC 1, per Byron CJ (Ag) at pp 18-19. But this does not mean that the decision is immune from judicial review. Their Lordships therefore reject the respondents argument that judicial review of the Cabinets decision is not available. It is open to HMB to challenge the decision on the ground that it was irrational. The test of irrationality will be satisfied if it can be shown that it was one which no sensible person who had applied his mind to the question to be decided could have arrived at. As Lord Wilberforce explained in Anisminic v Foreign Compensation Commission [1969] 2 AC 147, 207D-F, however widely the field in which a decision-maker operates is defined by statute, there are always certain fundamental assumptions which necessarily underlie the remission, or delegation, of a power to decide such as the requirement that a decision must be made in good faith. An examination of its proper area is not precluded by a clause which confers finality on its decisions. Clauses of that kind can only relate to decisions which have been given within the field of operation that has been entrusted to the decision-maker. This means that all three grounds for judicial review which Lord Diplock 9

identified in Council of Civil Service Unions v Minister for the Civil Service [1985] 1AC 374, may be invoked illegality, irrationality and procedural impropriety. Cabinet still has a very broad function conferred upon it by the constitution, which may be immune from JR. When a policy making organ, such as the cabinet undertakes to perform administrative functions which have been statutorily conferred, then it cant escape JR.

(ii) The Prerogative of Mercy The courts recognise that the Crown possesses common law powers and immunities. Untilthe mid-1970s the courts took the view that the exercise of prerogative powers fell outside the crts supervisory jurisdicition, except in the narrowest sense of determining whether a prerogative pwr existed. The crts werenot normally prepared to examine the appropriateness or adequacy of the grounds for exercing the pwr, or the fairness of the procedure followed before the power was exercised (de Frietas v Benny [1976] AC 239 at 247-8). In the GCHQ case [1985], the majority of the HOL held it was no longer constitutionally appropriate to deny the court supervisory jurisdiction over a govt. decision merely because the legal authority for that decision rested on prerogative rather than statutory powers. The new approach is to seek whether the particular case the subject matter is justiciable or not. Lewis v Attorney-General (2001) The decisions of the BPC was held reviewable and that was right on this point. The ouster clause in section 77(4) of the Constitution did not bar review by the courts of decisions of the BPC for errors of law, breaches of natural justice or alleged breaches of the Constitution. This decision over-rules Lord Diplock in De Frietas where he held that this pwr is at the sole discretion of the crown. He said prerogative power begins where legal rights end. Reckley No. 2 Lord Goff of Chieveley confirmed De Frietas. The Privy Council confirmed Forte JAs dicta: You cant have protection of the law unless you enjoy due process
Although decisions of the Governor General in the exercise of Prerogative of Mercy are not justiciable, nevertheless the Courts can in accordance with the procedural fairness guaranteed by the Constitution, require the Governor General to consider matters that by virtue of the law and the Constitution, he is mandated to consider in coming to his decision. In those circumstances even though the recommendation of the Commission are not binding on the Governor General in the exercise of the Prerogative of Mercy, given the terms of the Treaty which the Government ratified, the Privy Council ought to await the result of the petition, so as to be able to give it consideration in determining whether to exercise the Prerogative of Mercy.

(iii)

The discretion of the Director of Public Prosecution

Shama v Brown-Antoine [2006] UKPC 57 The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy: R v Legal Aid Board, Ex p Hughes (1992) 5 Admin LR 623, 628; Fordham, Judicial Review Handbook, 4th ed (2004), p 426. But arguability cannot be judged without reference to the nature and gravity of the issue to be argued. It is a test which is flexible in its application The CJ asked for JR of DPPs decision to prosecute him saying there was a reasonable basis for concluding that the Deputy DPPs decision or advice was influenced by political pressure. The court disagrees but importantly hold that it is well established that a DPPs decision to prosecute is ordinarily susceptible to judicial review, and surrender of what should be an independent prosecutorial discretion to political instruction (or, we would add, persuasion or pressure) is a recognised ground of review: Matalulu, above, pp 735-736; Mohit v Director of Public Prosecutions of Mauritius [2006] UKPC 20, paras 17, 21. It is also well-established that judicial review 10

of a prosecutorial decision, although available in principle, is a highly exceptional remedy. The Courts are however very reluctant to disturb decisions to prosecute by way of JR since (1) a DPPs decision may involve policy and public interest consideration which a court has neither constitutional nor practical wherewith to asses; (2) JR will cause delay in criminal trials; (3) the desirability of all challenges taking place in the criminal court; (4) the blurring of executive role of DPP and Judicial function of court. NB: There is an obvious need to set a boundary for practical and constitutional reasons on the reach of the admin crt The clear rationale from these cases is that the court have adopted a more liberal stance towards authorities subject to JR in comparision to its earlier stance in De Frietas; in this modern stance however the court still seeks to strike an effective balance between its wish to enforce the rule of law and its fear that applicants are just seeking to abuse its process as seen in the Sharma and Golding v Simpson-Miller [2008] cases. The courts have accepted the fact that Parliament and the executive makes policy decision and its role is not to substitute its views on what is good decision with those of lawful decision makers but to ensure that the due process as set out in the statue conveying power is followed.

(b) Judicial Review of Public functions (i) What is a public function?

Case: R v. Panel on Take-Overs and Mergers ex p Datafin plc [1987] 1 ALL ER 504
Facts: The Panel on Take-overs and Mergers was a self-regulating unincorporated association, which devised and operated the City Code on Take-overs and Mergers prescribing a code of conduct to be observed in the take-overs of listed public companies. The panel had no direct statutory, prerogative or common law powers, nor were its powers based solely on consensus, but they were supported and sustained by certain statutory powers and penalties introduced after the inception of the panel. In the course of a contested take-over for a company (M), the applicants and another company (NO) mounted rival bids and at a critical time in the bidding an investment institution (KIO) purchased shares in M at a price above the maximum which, under the terms of the code, NO was permitted pay. KIO subsequently committed those shares to NOs offer. The applicants complained to the panel that NO and KIO had acted in concert, contrary to the terms of the code, because KIO was one of the core underwriters to NOs bid and had a significant interest in the success of NOs bid because its underwriting fee was directly related to the success or failure of the bid. The panel rejected the applicants complaint. The applicants sought leave to apply for judicial review of the panels decision but leave was refused on the ground that the court had no jurisdiction to entertain the application. The applicants appealed to the Court of Appeal. On the hearing of the appeal, the panel contended (i) that the supervisory jurisdiction of the court was confined to bodies whose power derived solely from legislation or the exercise of the prerogative, and that therefore judicial review did not extend to a body such as the panel, and (ii) that applications to the court in the middle of take-over bids would create delay and uncertainty when it was essential that there should be speed, certainty and finality in rulings affecting financial dealings.

Held: In determining whether the decisions of a particular body were subject to judicial review, the court was not confined to considering the source of that bodys powers and duties but could also look to their nature. Accordingly, if the duty imposed on a body, whether expressly or by implication, was a public duty and the body was exercising public law functions the court had jurisdiction to entertain an application for judicial review of that bodys decisions. Having regard to the wide-ranging nature and importance of the matters covered by the City Code on Take-overs and Mergers and to the public consequences of non-compliance with the code, the Panel on Take-overs and Mergers was performing a public duty when prescribing and administering the code and its rules and was subject to public law remedies. Accordingly, an application for judicial review of its decisions would lie in an appropriate case

11

The applicants application for leave to apply for judicial review would be refused since on the facts there had been no illegality, irrationality or procedural impropriety in the decision of the panel, which had correctly approached the matter on the basis of the codes definition of acting in concert The Panel is without doubt performing a public duty and an important one. This is clear from the expressed willingness of the Secretary of State for Trade and Industry to limit legislation in the field of take-overs and mergers and to use the panel as the centrepiece of his regulation of that market. In this context I should be very disappointed if the courts could not recognise the realities of executive power and allowed their vision to be clouded by the subtlety and sometimes complexity of the way in which it can be exerted. No one could have been in the least surprised if the panel had been instituted and operated under the direct authority of statute law, since it operates wholly in the public domain. Its jurisdiction extends throughout the United Kingdom. Its code and rulings apply equally to all who wish to make take-over bids or promote mergers, whether or not they are members of bodies represented on the panel. The panel is a truly remarkable body, performing its function without visible means of legal support. But, the panel wields enormous power. It has a giants strength. The fact that it is self-regulating, which means, presumably, that it is not subject to regulation by others, and in particular the Department of Trade and Industry, makes it not less but more appropriate that it should be subject to judicial review by the courts. So long as there is a possibility, however remote, of the panel abusing its great powers, then it would be wrong for the courts to abdicate responsibility. Of course the source of the power will often, perhaps usually, be decisive. If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If, at the other end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review But in between these extremes there is an area in which it is helpful to look not just at the source of the power but at the nature of the power. If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may, as counsel for the applicants submitted, be sufficient to bring the body within the reach of judicial review. It may be said that to refer to public law in this context is to beg the question. But I do not think it does. The essential distinction, which runs through all the cases to which we referred, is between a domestic or private tribunal on the one hand and a body of persons who are under some public duty on the other.

Wade: New Vistas of Judicial Review

In discussing the case of R v. Panel on Takeovers and Mergers, ex parte Datafin plc, the Master of the Rolls noted that the panel is without visible means of legal support. It has neither statutory, prerogative, nor common law powers, nor is it in contractual relationship with the commercial community who are expected to obey the code. The panels chairman and his deputy are appointed by the Bank of England and its members by a variety of city bodies such as the Council of the Stock Exchange and the Accepting Houses Committee. It is unincorporated and lacks legal personality. It is a typical self-regulating body of the kind dear to the heart of the business community. But de facto it wields powers of economic life or death, since offenders against the code (as adjudged by the panel itself) may be banned from the stock exchange or proceeded against by the Department of Trade or Industry. Issue: Can there be a remedy against misuse of great, extra-legal power? The court answered yes and said that the panel was subject to judicial review. The take-over panel had no positive governmental component, except indirectly through the two bank of England appointments and its rules were only approved by itself. The Sec. of State intended to use the panel as the centrepiece of his regulation of the market and refrained from legislating in that field. The Court noted that it should recognise the realities of executive power by treating the panel as part of the machinery of government control. Consequently, it can review the panels interpretation of its own code of rules and ensure that it acts reasonable, and observes the principles of natural justice.

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 The policy of the court seems to be that no sort of public authority, whether de jure or de facto should be allowed to contract out of the legal system. The court will not let itself be ousted from its duty to superintend public authorities even by an Act of Parliament. Anisminic. The judicial instinct is to fight on all fronts against uncontrollable power; and although there will always be a great deal of power in human affairs which no law will ever control, that is no reason for not annexing new territory whenever possible, and for not protecting the public against abuse. The Master of the Rolls indicated that possibly the boundaries for the courts are where they may be excluded from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction. Lloyd L.J. noted that the essential distinction . . . is between a domestic or private tribunal on the one hand and a body of persons who are under some public duty on the other. The categories of judicially reviewable powers are never closed, the system remains open-ended, and new territory can be annexed to the judicial empire as opportunities arise. Instead of looking for dubious sources of authority, the Court now stresses that sources are irrelevant, and that all that matters is the exercise of non- contractual power in the public domain. The Take-over panel has thus acquired legislative power w/o the aid of statute, charter, contract . . . and there is no minister responsible. Self-created powers of legislation in the public domain w/ do not depend upon consent of parties are a new and questionable phenomenon in a democratic constitution. Forsyth: The Scope of Judicial Review: Public Duty not Source of Power The ex p. Datafin case shows that a self-regulatory body is not beyond nor above the reach of the law. But the significance of ex p. Datafin goes beyond this. The CA brought the actions of the Panel within the law by holding that bodies such as the Panel which performed public duties were subject to judicial review, even though they were established neither under statute nor under the prerogative. Thus bodies, which exercise public functions may be susceptible to judicial review, whatever the source of their powers. The major difficulty with Datafins application arose from both the source and nature of the Panels powers. The Panels powers arise from the fact that the Panel enjoys wide support from many institutions in the City of London. The jurisdictional issue therefore resolved itself into the concrete question of whether certiorari would lie against a body such as the Panel. What is meant by a legal authority? It was for long assumed that legal authority meant statutory authority. So, prior to ex p. Datafin, it was arguable that legal authority meant either statutory or prerogative authority. Since ex p. Datafin, this is plainly not the case. Ex p Datafin makes clear that although the Panel itself has no power to affect rights, the unspoken assumption that other bodies would act upon its decisions was sufficient to bring the Panels decisions within the scope of certiorari. Lloyd LJ said that between the clear cases of statutory powers (where certiorari would lie) and contractual powers (where certiorari would not lie), it is helpful to look not just at the source of the power but at the nature of the power. If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may . . . be sufficient to bring the body within reach of judicial review . . . The essential distinction . . . is between a domestic or private tribunal on the one hand and a body of persons who are under some public duty on the other. The limits of the jurisdiction: As is illustrated by ex p Datafin, if the source of the powers has been abandoned as the determinant of their reviewability, then it should make no difference whether the body in question is set up by the government or not. What matters is whether it carries out a public duty.

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Note: OReilly v. Mackman is notorious for having introduced into administrative law a principle of procedural exclusivity: depending on whether the matter is one of public law or private law, litigants are forced to choose whether they wish to proceed by way of an application for judicial review or whether they wish to proceed by way of an ordinary action commenced by writ. Since the wrong answer could be fatal to the outcome of litigation, litigants attempt to oust their opponents from an early stage as was the case with Datafin where it was argued that the application for judicial review was the wrong procedure.

The CA in the UK held that a self-regulating, voluntary body which acted as a watch-dog in the city of London Stock Exchange was subject to judicial review despite the fact that it had no visible means of support, was founded on neither statutory, prerogative not common law powers, nor was it in a contractual relationship with the commercial community. Donaldson MR: If the body in question is exercising public law functions, or if the exercise of its function have public law consequences, then that may be sufficient to bring the body within the reach of JR. The essential distinction that runs in these cases is between a domestic/private tribunal and a body of persons who are under some public duty or another. One must look not just at the source of the IOB's powers but also at the nature of its duties and the consequences of the exercise of its powers (see in particular per Lloyd LJ at p. 847A-C). He submitted that the crucial touchstone is the existence of public law functions; the existence of a contractual nexus is not of itself fatal to reviewability (see per Nicholls LJ at p. 850F-H and the Bank of Scotland case). *Prior to Datafin JR did not apply to a body whose power depended on its consent. - Sir John Donaldson Mr (with whose reasons both Lloyd and Nicholls L JJ agreed) at p. 847A-G. This is because a body whose powers depend on consent is not a public body and a person aggrieved has alternative private law remedies, including leaving the IOB or possibly (though he makes no such admission) suing the ombudsman for breach of contract. Judicial review jurisdiction is not conferred because the consequences of a private body's decisions affect the public (see Law v National Greyhound Racing Club [1983] 1 WLR 1302 and the Jockey Club case). - See Summary of YL v BCC (Birmingham City Council) and Others [2007] UKHL 27 in Cases Public funding- necessary but not sufficient indicator. (2) Whether body is exercising Statutory powers, (3) Coercive and regulatory powers (4) Delegation whether body is taking the place of govt. (5) whether body is providing a public service (6) Cores state responsibilities whether function is instrically governmental (7) whether there is an obligation to carry out matter in public interest (8) Government control (9) the extent to which the state, directly or indirectly regulates, supervise and inspect the performance of the function in question. (10) risk of an improper performance of function violating application HR. The above test is now taken into account by courts when determining if a body is public body and as such amenable to JR. The approach is restrictive and fails to take into consideration power of delegating and the ease with which a government can delegate out its responsibility to the private branch. R (on application of West) v Lloyds of London (2004) On December 23, 2002, Dr Julian West issued a judicial review claim form in which he sought to impugn four decisions of the Business Conduct Committee (BCC) of Lloyd's of London to approve four minority buy-outs of his membershipsor potential membershipsin four syndicates at Lloyd's. These decisions were made in October and November 2002. On May 6, 2003, Dr West appeared in person before Keith J. who refused permission to apply for judicial review on the grounds that Lloyd's was not a public authority and that the decisions of one of its committees were not made in the exercise of a public function. On October 3, 2003, the Court of Appeal granted him permission to apply for judicial review and directed that the question whether 14

Lloyd's was amenable to judicial review, whether by virtue of s.6 of the Human Rights Act 1998 (the HRA) or otherwise, in relation to its functions under scrutiny in this case, be reserved to it. The reason why the Court took this unusual step was that there had been a series of cases in what is now the Administrative Court which upheld the proposition that Lloyd's did not operate in the public sphere, at any rate in relation to those of its functions that were under consideration in those cases, and although the coming into force of the HRA added a new dimension to the debate, it was thought inappropriate to remit the issue back to the Administrative Court in the light of the strong line of earlier authority at that level. Held: dismissing the appeal, (1) Lloyd's was not amenable to judicial review, whether by virtue of s.6 of the HRA or otherwise, in relation to those of its functions that were under scrutiny in this case; (2) The fact that Lloyd's corporate arrangements were underpinned by a private Act of Parliament and not by the Companies Act was in no way unique and was certainly not dispositive of whether or not Lloyd's was amenable to judicial*763 review. A number of insurance companies were incorporated by private Act of parliament. The Court was entirely satisfied that the line of cases at Divisional Court level which related to the private law status of Lloyd's in relation to functions such as were in issue in this case were correctly decided. The coming into force of the Financial Services and Market Act 2000, with its more intrusive regulatory regime (so far as Lloyd's was concerned) made the position even clearer, if greater clarity were needed; (3) the decisions under challenge were concerned solely with the commercial relationship between Dr West and the relevant managing agents, and this was governed by the contracts into which he had chosen to enter. Those decisions were of a private, not a public, nature. They have consequences for Dr West in private, not public, law. R (Tucker) v National Crime Squad [2003] EWCA Civ 2 applied; (4) the functions of Lloyd's under review in this case were totally different from the functions of the Takeover Panel that were under consideration in R. v Panel on Take-overs and Mergers, Ex p. Datafin Plc [1987] Q.B. 815. The Panel exercised regulatory control in a public sphere where governmental regulatory control was absent. This case was concerned with the working out of private contractual arrangements at Lloyd's which was itself subject to external governmental regulation; (5) turning next to the effects of s.6(1) of the HRA. The objectives of Lloyd's were wholly commercial. The nature of Lloyd's was not governmental, even in the broad sense of that expression. If any question arose as to the performance of any obligation on the part of the state to protect its investors, it was the FSA which was the governmental organisation which would be answerable to the Strasbourg Court, and not Lloyd's. Poplar Housing & Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595 applied; (6) although, as Lord Hope observed in Aston Cantlow PCC v Wallbank [2003] UKHL 37; [2003] H.R.L.R. 28, the case law on judicial review did not provide a conclusive answer to the applicability of s.6 of the HRA, there was nothing to comfort the applicant in any of the cases of Poplar, R. (on the application of Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366; [2002] H.R.L.R. 30 or Aston Cantlow to which the Court here referred. It was the FSA which performed governmental functions in these matters, not Lloyd's. The fact that Lloyd's regulates its members' activities in the way it does as a result, in part, of its desire to avoid a more intrusive governmental regulatory regime could not possibly convert it into a body exercising public functions itself within the meaning of Strasbourg case law. CONCLUSION by Brooke L.J.: For these reasons I have reached the same conclusion as Keith J. (see para.[1] above) and would make a declaration that Lloyd's is not amenable to judicial review , whether by virtue of s.6 of the HRA or otherwise, in relation to those of its functions that are under scrutiny in this case. 15

R. v Insurance Ombudsman Bureau Ex p. Aegon Life Assurance Ltd

[1994] C.L.C. 88

This was an application by an insurance company for judicial review of 23 decisions of the insurance ombudsman in which he made awards against the applicant company. The court was asked to determine first whether the court had jurisdiction in relation to awards of the insurance ombudsman. The Insurance Ombudsman Bureau (IOB) was established in 1981 by three insurance companies to resolve complaints by customers. It was an unlimited company without share capital. Its board of directors was appointed exclusively from senior employees of member companies, with responsibility for finance and membership. An independent council with representatives from inside and outside the industry supervised the IOB. The council appointed the Ombudsman. He alone was empowered to investigate and determine complaints, disputes and claims made in connection with or arising out of (1) policies of insurance and (2) contracts which constituted investment business as defined by the Financial Services Act 1986 effected with members of the IOB. The IOB's only powers over member companies were contractual, membership being voluntary, determinable by the member at six months' notice. In December 1993 the IOB had 44 members, 90 per cent of companies eligible. The IOB had power to award compensation against members, but no power to enforce awards. Under s. 10 of the 1986 Act, the Life Assurance and Unit Trust Regulatory Organisation (LAUTRO) was recognised as a self-regulating organisation regulating the carrying on of investment business from A Day (29 April 1988). Since A Day LAUTRO had recognised the IOB as performing a complaints investigation function for the purposes of Sch. 2, para. 6(2) of the 1986 Act. LAUTRO encouraged but did not compel its members to join the IOB. All the policies in dispute were entered into between 1985 and 1987 (before A Day) but the complaints were all made after A Day. In each case the ombudsman made an award against the applicant insurance company, which sought judicial review of one specimen decision. Held, dismissing the application: 1. The source of the IOB's power over members was solely contractual and it exercised no government functions. Even if it could be said that it had become woven into a governmental system, its decisions were of an arbitrative nature in private law and not, save very remotely, supported by any public law function. Therefore the IOB was not a body susceptible to judicial review. 2 It followed that the court had no jurisdiction in relation to awards of the insurance ombudsman.

YL v Birmingham City Council and others (Secretary of State for Constitutional Affairs intervening)
The appellant (YL) is an 84-year-old woman with Alzheimer's disease. She and her family have lived in the area governed by Birmingham City Council (the council) for many years. Since January 2006 she has been living in a nursing home owned and run by the second respondent (the company), a limited company which provides approximately 29,000 care home beds in the United Kingdom. Of these approximately 80% are funded by local authorities. When these proceedings began, 60 of the 72 residents in the appellant's home, including the appellant, were funded by local authorities and 12 paid privately. Her residence is largely funded by the first respondent, Birmingham City Council (the council). It is covered by a three way placement agreement signed on 20 February 2006 by Southern Cross as the provider [homeowner], the council and the third respondent, OL (YL's daughter), acting on behalf of YL, as well as by a third party funding agreement between the council and OL. Under these agreements Southern Cross receives a basic fee from the council and a top-up fee from OL. A further tripartite agreement dated 10 March 2006 records that Southern Cross's fee was 478 16

per week including the top up fee of 35 per week, and that each party [ie the council and YL/OL] will only be liable for their own agreed proportion. The House of Lords upholding the view of the Court of Appeal stated that Southern Cross in providing care and accommodation for YL was not and is not exercising functions of a public nature within section 6(3)(b) of the Human Rights Act 1998 . If further protection or regulation is considered to be necessary in respect of privately owned care homes, in addition to that which is available under common law or statute and for which local authorities may contract as indicated in para 80 above, the means may already be available to achieve this under the Care Standards Act 2000 . And, if additional protection is to be achieved by statutory means, it is no matter for regret that this should be done without distinguishing between residents in one and the same care home who on the one hand arrange and fund their own care and accommodation and others who on the other hand benefit from local authority assistance to arrange and fund such care and accommodation. I would accordingly dismiss this appeal. (ii) Application of Legal rules?

Ex p Khan (1993) 1 WLR 909 The question in this appeal is whether the power exercised by the Jockey Club is so governmental as to make the club subject to judicial review even though it is a private members club? The court discussed all the factors that would make a body such as this subject to JR but in concluding say that since remedy was available outside of JR, claimant should seek these remedies and as such they refused to out rightly say what they clearly implied that the club is subject to JR. Farqushon LJ: The courts have always been reluctant to interfere with the control of sporting bodies over their own sports and I do not detect in the material available to us any grounds for supposing that, if the Jockey Club were dissolved, any governmental body would assume control of racing. Barbados Cricket Association v Pierce (1999) 57 WIR 29 Dispute arose over the inclusion of a disqualified man (on Wanderers team) in the game between Wanderes and Barbados Cricket League. Wanderers won the match and BCL filed complaint to BCA who decided that complaint filed too late Wanderers will still get the winning points. Another match was played earlier between Carlton and said Wanderers team. The BCA at first dismissed the appeals of BCL and Carlton but later ruled in their favour awarding those team Wanderers winning point in effect barring Wanderers from the quater-finals of the Fire Cup. The defendants apply seeking JR but fails because BCA does not exercise public function. - The Barbados Cricket Association, although incorporated by a private Act of Parliament (No 12 of 1933), does not have exclusive control over cricket in Barbados and is a domestic body whose decisions relating to the interpretation of rules relating to cricket competitions are not of a public or governmental nature. Accordingly, such decisions are not susceptible to judicial review under Ord 53 of the Rules of the Supreme Court. Further, there is no basis in Barbados law for including an application for a declaration in an application for judicial review under Ord 53, notwithstanding the Administrative Justice Act, s 5(2)(d). 4. JUSTICIABILITY The Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, has signalled a shift from asking whether the court has jurisdiction to the court examining the justiciabillity of the issue to see if there is any merit in the claim. The Caribbean adopted this approach in Re Blake (1994) 47 WIR 174. (i) Discretion R v Secretary of State for the Environment, ex p. Kensington and Chelsea RLBC (1987) HLR 161 Lord Slynn: described the scope of JR: It has long been established that if the Secretary of State misinterprets the legislation under which he purports to act, or if he takes into account matters irrelevant to his decision or refuses or fails to take account of matters relevant to his decision, or reaches a perverse decision, the court may set his decision aside. Even if he fails to follow necessary procedural steps - failing to give notice of a hearing 17

or to allow an opportunity for evidence to be called or cross-examined, or for representations to be made or to take any step which fairness or natural justice requires, the court may interfere. The legality of the decision and the procedural steps must be subject to sufficient judicial control. ... Lord Slynn continued that he was further of the view that a court had power to quash an administrative decision for a misunderstanding or ignorance of an established and relevant fact ( 51-53 of the judgment, and see also Lord Nolan at 61, Lord Hoffman). (ii) Questions of National Security

CCSU v Minister of the Civil Service [1985] AC 374

The sole issue is whether the decision on which the instruction was based was reached by a process that was fair to the staff at GCHQ. If no issue of national security arose, the decision-making process would have been unfair. The question is on the evidence. The decision on whether the requirements of national security outweigh the duty of fairness in any particular case is for the government and not for the courts; the government alone has access to the necessary information, and in any event the judicial process is unsuitable for reaching decisions on national security. If the decision is successfully challenged, on the ground that it has been reached by a process which is unfair, then the government is under a an obligation to produce evidence that the decision was in fact based on grounds of national security. Facts: On seven occasions between 1979 and 1981 industrial action was taken at GCHQ causing disruption. One such disruption in 1981 had resulted in part of the operations of GCHQ being virtually closed down. On 22 December 1983 the Minister for the Civil Service issued an oral instruction to the effect that the terms and conditions of civil servants at GCHQ would be revised so as to exclude membership of any trade union other than a departmental staff association approved by the director of GCHQ. That instruction, which was issued without prior consultation with the staff at GCHQ, was issued pursuant to the ministers power under art 4a of the Civil Service Order in Council 1982 to give instructions for controlling the conduct of the Service, and providing for the conditions of service, the order itself being made under the royal prerogative. The appellants, the association of civil service unions, a union official and five civil servants employed at GCHQ, applied for judicial review of the ministers instruction seeking, inter alia, a declaration that it was invalid because the minister had acted unfairly in removing their fundamental right to belong to a trade union without consultation. The judge granted the application on the ground that the minister ought to have consulted the staff before issuing the instruction. The minister appealed to the Court of Appeal contending (i) that prerogative powers, and instructions given under a delegated power emanating from the prerogative, were discretionary and not open to review by the courts, and (ii) that the requirements of national security overrode any duty which the minister otherwise had to consult the staff. Affidavit evidence was filed on behalf of the minister to the effect that in her view there had been a real risk that prior consultation would occasion the sort of disruption at GCHQ which threatened national security and which was the very thing the instruction was intended to avoid. The Court of Appeal allowed the ministers appeal on the grounds of national security. The appellants appealed to the House of Lords. Held: Per Lord Scarman, Lord Diplock and Lord Roskill. (1) Powers exercised directly under the prerogative are not by virtue of their prerogative source automatically immune from judicial review. If the subject matter of a prerogative power is justiciable then the exercise of the power is open to judicial review in the same way as a statutory power. However (per Lord Roskill), prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers are not justiciable or reviewable. (2) Administrative action is subject to control by judicial review under three heads: (1) illegality, where the decision-making authority has been guilty of an error of law, e g by purporting to exercise a power it does not possess; (2) irrationality, where the decision-making authority has acted so unreasonably that no reasonable authority would have made the decision; (3) procedural impropriety, where the decision-making authority has failed in its duty to act fairly. 18

Also, Although where the government sought to rely on reasons of national security to justify a decision or action the courts would not accept a mere assertion to that effect but would require evidence that the decision or action was taken for reasons of national security, the question whether the decision or action was in fact necessitated by the requirements of national security was non-justiciable since the executive was the sole judge of what national security required and alone had access to the information that enabled the judgment to be made as to what was required. Once the minister produced evidence that her decision not to consult the staff before withdrawing the right to trade union membership was taken for reasons of national security, that overrode any right to judicial review which the appellants had arising out of the denial of their legitimate expectation of consultation. The appeal would therefore be dismissed. (iii) Political Questions

Re Blake (1994) 47 WIR 174 In 1994 the appellant filed an ex-parte originating summons alleging that the Governor-Generals decision to appoint or retain the Prime Minister and to establish a minority Government was unconstitutional and that such decision infringed (or was likely to infringe) the appellants fundamental rights and freedoms. The appellant sought a declaration by the court based on those allegations, but in effect claimed an order of mandamus requiring the Governor-General to remove the Prime Minister from office, to dissolve Parliament and to call a general election. Hylton J refused the application and the appellant appealed to the Court of Appeal. Held: section 116(2) of the Constitution precluded any court from inquiring into the exercise by the GovernorGeneral of the power under section 52 of the Constitution to appoint a Prime Minister, notwithstanding section 119(11) (which empowered the courts to consider the exercise of functions under the Constitution); decisions of the Governor-General under section 52 were not justiciable. (iv) Foreign Policy

Regina (ex p Gentle) v Prime Minister [2007] 2 WLR 195 The claimants were the mothers of two servicemen who were killed while serving with the British armed forces in Iraq between March 2003 and June 2004. The claimants sought judicial review of the defendants' refusal to hold a separate independent inquiry to examine the wider question, which would not be considered at the inquests, whether the United Kingdom Government had taken reasonable steps to be satisfied that the invasion of Iraq was lawful under the principles of international law ("the invasion question"). The question whether reasonable steps had been taken to consider the lawfulness of sending troops to Iraq was not justiciable, and there was no basis upon which the court could properly order an inquiry into that question - Sir Anthony Clake MR: Follows Lord Fraser says that there are areas in which the court will consider highly sensitive areas; questions of policy, is one such areas which is recognised as essentially matters for the executive and not the courts. - Lord Fraser in CCSU [1985] - many of the most important prerogative powers which are concerned with control of the armed forces and with foreign policy and with other matters which are unsuitable for discussion or review in the law courts."

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5. DISCRETIONARY REMEDY (i) Availability of alternative Remedies R v Chief Constable of Mersyside Police, ex p Calvely [1986] QB 424 On 21 June 1981 complaints were made against five police officers of the Merseyside Police. An investigating officer was appointed on 30 June, but the officers were given no formal notice of the complaints until November or December 1983. At a disciplinary hearing in September 1984 the Chief Constable rejected a submission on behalf of the officers that the delay had been such that the officers had been irremediably prejudiced in that records and logs relating to the period when the incident giving rise to the complaint had occurred had been routinely destroyed. He proceeded to conduct the hearing. The officers were found guilty and dismissed from the force or required to retire. The officers had a right of appeal against the Chief Constable's decision which they proceeded to exercise. Before the appeal was heard they also applied for judicial review of the Chief Constable's decision. The Divisional Court refused the application on the ground that the application was premature. Held, allowing the appeal, that (a) the judicial review jurisdiction would not normally be exercised where there was an alternative remedy by way of appeal, save in exceptional circumstances; (1) that the speed of the alternative procedure, whether it was as convenient and whether the matter depended on some particular or technical knowledge available to the appellate body were all factors to be taken into account in considering whether the circumstances were exceptional; that (per May L.J.) where the basis of the application was delay in taking the necessary proceedings judicial review should only be granted where the delay amounted to an abuse of process. In this case it was since appeal took over 2 years. (ii) Needs of good administration

R v Monopolies and Merger Commission, ex p Argyll Group plc [1986] 1 WLR 763 The applicants, Argyll, were bidding in competition with Guinness to take over Distillers. Both Argyll and Guinness put forward proposals. In February 1986 the Secretary of State for Trade and Industry referred Guinness's bid to the Monopolies Commission for inquiry and report. Such references were normally undertaken not by the whole commission, but by a group formed in accordance with the provisions of the Act. Guinness were prohibited by the City Take-Over Code from making a further bid during the currency of the reference. Before the commission had embarked on its investigation, representatives of Guinness met the chairman and gave him information, particularly as to certain of the activities of Distillers which Guinness contemplated might not form part of a take-over by them, as a result of which he decided that the "proposal to make arrangements such as are mentioned in the reference" had been abandoned within the meaning of section 75(5) of the Act. Thereupon, on the chairman's recommendation, the Secretary of State gave his consent to the reference being laid aside. Guinness then made a revised bid for Distillers which was not referred to the commission. The applicants, as minority shareholders in Distillers, sought judicial review by way of certiorari to quash the decision that the proposal had been abandoned and the Secretary of State's consent to the laying aside of the reference. Macpherson J. refused the relief sought, holding that the chairman had not misdirected himself in deciding that the reference had been abandoned, and that he had authority under the Act to decide that issue and to recommend to the Secretary of State, on the basis of that decision, that the reference should be laid aside. Held: In taking into account the needs of good public administration, the court would, in the exercise of its discretion, refuse to grant judicial review. Good public administration is concerned with (1) substance rather than form; (2) speed of decision, particularly financially ones if relief granted it wld b days b4 a decision is granted; (3) proper consideration of the public interest which is perogotative of the executive, sectary consent to reference being laid aside; (4) proper consideration of the legitimate interest of the individual citizen; (5) requires decisiveness and finality, unless there are compelling reasons to the contrary - account must be taken of the probability that deals have been done in reliance upon the validity of the decisions may now be impugned. 20

6. JURISDICT ION (i) Constitutional Restriction of Judicial Review (a) An absolute bar? Re Blake (1994) 47 WIR 174 This case begs the question of will JR always be refused for political question. (b) Breach of Fundamental Rights? Thomas v AG [1982] AC 113 The plaintiff was a police officer in the Trinidad and Tobago police force. In 1972 he was charged with three offences against discipline. Each of the charges specified that he had been guilty of neglect of duty. The Police Service Commission, purporting to act under regulation 99 of the Regulations of 1966, dismissed the plaintiff from the police force. He brought an action against the Attorney-General claiming a declaration that he was still a member of the police force or that he had been wrongfully dismissed and was entitled to damages. In this case therehe Court of Appeal reversed that decision. That on a proper construction of section 99 (1) [ouster clause] of the Constitution, in the light of its context in chapter VIII [ Fundamental Rights] of the Constitution and in accordance with the right of an individual to equality of treatment under section 1 (d) , the Police Service Commission's power 'to remove' a police officer was a power to remove him for reasonable cause of which the commission was the sole judge. Lord Diplock: There is in their lordships view another limitation upon the general ouster of the jurisdiction of the High Court by section 102 (4) of the Constitution; and that is where the challenge to the validity of an order made by the commission against the individual officer is based upon a contravention of 'the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations' that is secured to him by section 2 (e) of the Constitution, and for which a special right to apply to the High Court for redress is granted to him by section 6 of the Constitution. The general 'no certiorari' clause in section 102 (4) does not, in their Lordships' view, override the special right of redress under section 6. Joseph & Boyce v AG of Barbados [2005] CCJ 3 The CCJ in this case adopts the Privy Councils pronouncement in Thomas v AG. Statutory Restriction of Judicial Review

(ii)

Anisminic v Foreign Compensation Commission [1969] 2 AC 147 Before the Suez Incident and on October 31, 1956, the plaintiffs, an English company, owned property in Egypt which was sequestrated, by the Egyptian authorities. In 1957, the plaintiffs sold the sequestrated property to an Egyptian organisation, T.E.D.O. In 1959, the plaintiffs, who were named in Annex E within the meaning of article 1 (2) of the Foreign Compensation (Egypt) (Determination and Registration of Claims) Order, 1962, made an application to the Foreign Compensation Commission claiming that they were persons entitled to participate in the Egyptian Compensation Fund in respect of their sequestrated property. The commission's provisional determination was that they had failed to establish a claim under the Order. The plaintiffs brought this action against the commission for declarations to the effect that the provisional determination was a nullity and that they were entitled to participate in the compensation fund They contended that the commission had misconstrued the Order in finding that T.E.D.O. was their successor in title. The commission contended that, under section 4 (4) of the Foreign Compensation Act, 1950, the court had no jurisdiction to entertain the proceedings. Held, (Lord Morris of Borth-y-Gest dissenting) that the word "determination " in section 4 (4) of the Act of 21

1950 should not be construed as including everything which purported to be a determination but was not in fact a determination because the commission had misconstrued the provision of the Order defining their jurisdiction. Accordingly, the court was not precluded from inquiring whether or not the order of the commission was a nullity. - Per Lord Wilberforce. Just as it is the duty of the court to attribute autonomy of decision to the tribunal within the designated area, so the counterpart of this autonomy is that the court must ensure that the limits of the area laid down are observed . Critique of the case: (1) The manner in which the majority seeks to define determination is flawed. (2) The Courts should rule ouster clauses as unconstitutional on the basis of the same principles laid out in Hinds v R rather than being timid and making artificial definition of determination which if accepted as court would mean that any decision that takes into consideration irrelevant thing by a normal court would result in the court not having jurisdiction a statement that is self-contradictory. AG of the Commonwealth of the Bahamas v Ryan [1980] AC 718 In 1966 the respondent, who had been ordinarily resident in the Bahamas Islands since 1947, was issued with a certificate that he belonged to The Bahamas for the purposes of the Immigration Act 1963, and he thereby gained Bahamian status. In June 1974 he applied for registration as a citizen of The Bahamas under article 5 (2) of the Constitution of 1973. He attended an interview at which questions were asked about his activities since 1947, but no suggestions were made that he might have done anything that would be a ground for the Minister to refuse the application either under paragraphs (a) to (e) of the proviso to section 7 of The Bahamas Nationality Act 1973 or "for any other sufficient reason of public policy." His application was refused and at no time was he given any reasons for that refusal. He issued a summons against the Attorney-General for a declaration that on the true construction of the Constitution he was entitled to be registered as a citizen of The Bahamas. The Privy Council held that the Minister's decision was made without jurisdiction, section 16 did not prevent the court from inquiring into its validity and the application would be remitted to the Minister to be determined according to law. Lord Diplock: It is by now well-established law that to come within the prohibition of appeal or review by an ouster clause of this type, the decision must be one which the decision-making authority, under this Act the Minister, had jurisdiction to make. If in purporting to make it he has gone outside his jurisdiction, it is ultra vires and is not a "decision" under the Act. Lord Selborne said in 1885 in Spackman v. Plumstead District Board of Works (1885) 10 App.Cas. 229, 240: "There would be no decision within the meaning of the statute if there were anything ... done contrary to the essence of justice."

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