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AVAILABILITY OF JUDICIAL REVIEW A public authority is an authority that performs public functions; they are creatures of Statute and

derive its authority from statute. The source of its power being that of statute distinguishes public from private. Judicial Review is the jurisdiction of the

superior courts to review laws, decisions, acts and omissions of public authorities in order to ensure that they act within their given powers. supervisory power within the four corners of the Statute. The judges exercise a NOTE: Public authorities

exercise discretionary powers as a process of reasonableness and this discretion must be within the power given to them by the prescribed statute. If a public authority acts outside of the statute it is deemed Ultra Vires or unconstitutional. However, the definition has been extended by case law to include some bodies which derive their authority from a source other than Parliament. This is due to a shift in the focus of the courts from looking at the source of power to the nature of the power. In GCHQ case, we see the boundaries of Judicial Review of public bodies pushed. Here the body under review derived its authority not from statute but from prerogative power. Lord Denning said that such a body should not be reviewed by the courts. However, Lord Diplock held that there was a public element in the bodies function and there is no reason why the body should not be reviewable by the court. NOTE: Lord Diplock set out three criterias for a public body to qualify for judicial review. Illegality in the performance of its functions; Irrationality in the reasoning behind its decision; and Procedural impropriety Exparte Datafin case went the furthest on the issue of a body subject to Judicial Review. The case involved a private company run by private agencies which can be viewed as de facto public authorities for the purpose of Judicial Review. In William C.O. v Ag of Barbados, emphasis was placed on both the source of the panels power and the nature of the power. In Griffiths v Barbados Cricket Authority (BCA), it was held that the BCA was reviewable based on their substantial powers that could affect the lives of cricketers as well as the fact that it governed a sport of
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paramount importance to the citizens of the country. (Cultural)

The courts in their

discretion took the importance of cricket into account in making their decision thus, giving themselves a wider discretion. However, the courts discretion should be

exercised based on objective criteria. Each case is to be considered on its own merits, social context and it is the factors that are of particular importance to that case that will be taken into account whether it would be considered in another case. NOTE: The source of a public bodies power has not been r eplaced as a criterion for a public body. It has been joined by the nature of the power exercised by the body and speaking to bodies that on the face appear to be private bodies. Thus a private body may be a public body for the purpose of Judicial Review but a public body by contrast can never be a private body. CLASSES OF BODIES: Public Bodies deriving its power form statute; Private Bodies regarded as public bodies for the purpose of Judicial Review deriving its power from a source other than statute but having some public element in its function; and Private bodies deriving its power from prerogative or private charter. Administrative law is evolutionary, that is constantly changing. NOTE: Datafin

extended not over rule GCHQ (Locus Standi). Wade acknowledges that the boundaries are not closed; the categories of bodies that can be subject to judicial review are openended and at any time anybody can be annexed to the category of judicially reviewable authorities. The courts are still trying to formulate a policy for the criteria for Judicial Review however, they are being very cautious. In Jockey Club case the courts

avoided opening the flood gates and decided that there was a question to answer whether the relevant authority was a public body or not since a remedy could be under contract law so administrative law need not apply. The changes in the courts attitude have raised issues. Organizations such as

Universities which have a public element are yet to be categorized as a judicially reviewable public body. Court decisions have also left unanswered questions as seen in the decision of Barbados Cricket Authority v Pierce where the COA held that the
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decision in question was not reviewable on the grounds of Order 53. By excluding review under Order 53, the judge was implying that the decided might be reviewable on some other basis. Administrative law is the law relating to the control of governmental power. The primary purpose of administrative law therefore is to keep the powers of government within their legal bounds, so as to protect the citizen against their abuse. It deals with the practical application of the rule of law, meaning that the government must have legal warrant for what it does and that if it acts unlawfully, the citizen has an effective legal remedy. Administrative law then is the body of legal principles, which govern the exercise of powers and duties by public authorities. If the state is to care for its citizens from the cradle to the grave, to protect their environment, to educate them at all stages, to provide them with employment, training, houses, medical services, pensions, and, in the last resort, food, clothing, and shelter, it needs a huge administrative apparatus. To deal with this apparatus, there must be discretionary power. If discretionary power is to be tolerable, it must be kept under two types of control: 1). Political control through parliament; and 2). Legal control through the courts The essence of administrative law lies in judge-made doctrines which apply right across the board and which therefore set legal standards of conduct for public authorities generally. The rule of law, the sovereignty of parliament and the power of the independent judiciary combine to produce the doctrine of ultra vires, which is the main principle on which most of the courts interventions are founded. This doctrine merely states that public authorities must act within the powers given to them by Act of Parliament. The powers of those public authorities which are subordinated to the law all have two inherent characteristics: 1). they are all subject to legal limitations; there is no such thing as absolute or unfettered administrative power; and 2). consequentially, it is always possible for any power to be abused. Even where parliament enacts that a minister may make such order as he thinks fit for a certain purpose, the court may still invalidate
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the order if it infringes one of the many judge made rules. And the courts will invalidate it if it infringes the limits which Parliament has ordained. The primary purpose of administrative law, therefore, is to keep the powers of government within their legal bounds, so as to protect the citizen against their abuse. The powerful engines of authority must be prevented from running amok.

Discretionary power must be exercised by the proper authority only and not by some agent or delegate. It must be exercised without restraint and as the public interest may from time to time require. It must not be fettered or hampered by contracts or other bargains or by self-imposed rules of thumb. So a distinction must be made b/w

following a consistent policy and blindly applying some rigid rule. Further, discretion must not be abused. An integral part of administrative law is that of natural justice. The concept of natural justice has crystallized into two rules: that no man should be judge in his own cause; and that no man should suffer without first being given a fair hearing. Under the first rule, the decision of a tribunal or other collective body will be invalid if any person has participated in it that might be thought to be prejudiced or biased. Under the second rule, any act of administrative power if likely to be invalid if the person adversely affected has not first been given a fair opportunity to object.

ADMINISTRATIVE JUSTICE ACTS The Administrative Justice Act 1980 was designed to provide for the improvement of administrative justice in Barbados and related matters. Section 2 of the AJA defines the subject matter of judicial review to include a decision, determination, advice or recommendation made under a power or duty conferred or imposed by the Constitution or by any enactment. A reviewable decision is one that is made in relation to an act or
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omission of a minister, public official, tribunal, board, committee or other authority of the Government of Barbados exercising or purporting to exercise of failing to exercise any power or duty conferred or imposed by the Constitution or by any other enactment. In referring to a public official or other authority of the Government, the Act does not limit itself to those bodies which are only endowed with coercive powers. It has also been suggested that the section is restrictive in that it fails to provide for the judicial review of non-statutory bodies for example, those founded on the prerogative. Therefore, cases such as CCSU could not happen in Barbados. It is submitted that this could not have been the intention of a reforming statute. An Act designed to improve administrative justice ought not to be more restrictive than the common law. The way to counter that argument is to interpret duty conferred or imposed by the constitution liberally, to cover bodies set up under the prerogative. The section makes it clear that an act or omission of a public official may attract judicial review. In Williams Construction v AG both the local courts and the PC had to

consider whether the Minister of Transport and Works had been properly joined I the suit brought by P as a second D. That question in turn rested on whether the minister had performed an act within the meaning of the statute. P instituted proceedings for judicial review against Blackman, who was then the Minister of Transport and Works, and against the AG as representing the Cabinet in respect of the actions taken by Blackman and the cabinet in connection with the award of the Highway 2A contract to Rayside. Both Ds applied to strike out the proceedings as disclosing no cause of action or as frivolous and vexatious or an abuse of the process of the court. The Ds

application came before a judge who ordered that the proceedings against Blackman be struck out, but declined to strike out the proceedings against the AG as D representing the Cabinet. Both unsuccessful parties appealed against these decisions. The COA affirmed the decision of the CJ to strike out the proceedings against Blackman, but they reversed the decision of the CJ in relation to the AG and ordering that the proceedings against him be also struck out. P appealed to Her Majesty in Council by leave of the COA. The PC also agreed that the minister was properly struck out from the suit.

Section 3 of the AJA introduces the procedures of judicial review and makes it clear that an application lies only against the Government of Barbados or some other authority of the Government. This section could mean that acts and decisions of nongovernmental authorities are excluded from judicial review. This is clearly an attempt to maintain the purity of the distinction between public and private bodies. But this

section must now be interpreted in light of the courts desire to annex new territory by crossing the boundaries when it is just to do so, a policy exemplified in decisions such as Ex. P Datafin. It is also possible to give Section 3 a wide and liberal interpretation so that other authority of the Government of Barbados would include the acts and decisions of nongovernmental bodies where those bodies are exercising an authority of the Barbados government. Such a determination would, of course, require appropriate evidence. But, it would open up exciting possibilities on the arguments over the divide between public authorities and private bodies. Section 3 contains another very important provision as well. In OReilly v Mackman clearly shows, the invocation of a wrong procedure in the UK is fatal to the claim. This case 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. In Barbados, however, a procedural error such as that which occurred in OReilly is curable. Section 3 (2) allows the court, in case of the wrong invocation of procedure or the wrong citation of a defendant, to allow the proceedings to continue, with any necessary amendment, as proceedings not governed by this Act and not seeking any remedy by way of certiorari, prohibition or mandamus. In non-technical language, the court may allow the proceedings to continue as a private law action. Section 4 deals with the grounds for relief.

In CCSU Lord Diplock yielded to the temptation of restating whole branches of administrative law in his own terms. He said then that administrative action would be subject to review on grounds of illegality, irrationality and procedural impropriety, while leaving the door ajar for the inclusion of proportionality at some later stage. Those who admire such brevity of thought will be disappointed by Section 4 of the AJA. First, the section uses language to denote that the listed grounds are not exhaustive. Second, the grounds almost run the entire gamut. The grounds are: that an administrative act or omission was in any way unauthorized or contrary to law; Excess of jurisdiction; Failure to satisfy or observe conditions or procedures required by law; Breach of the principles of natural justice; Unreasonable or irregular or improper exercise of discretion; Abuse of power; Fraud, bad faith, improper purposes or irrelevant considerations; Acting on instructions from an unauthorized person; Conflict with the policy of an Act of Parliament; Error of law, whether or not apparent, on the face of the record; Absence of evidence on which a finding or assumption of fact could reasonably be based; and Breach of or omission to perform a duty. The fact that no express mention is made of potentially novel grounds for relief as misfeasance in public office, should pose no problems, since the section left room for growth and expansion of those grounds. Nevertheless, a couple of observations on the stated grounds will still be in order. In so far as ground (a) speaks of administrative acts or omissions which are contrary to law it is possible to argue that it encompasses the ground of illegality. But while ground (a) covers the terrain of illegality, it is also wide enough to catch situations of ultra vires acts or omissions, short of illegality. This is so because ground (a) also refers to administrative acts and omissions which are unauthorized. Not every unauthorized act or omission amounts to an illegality. Implied in ground (a) is also the admission that a mere error of law could vitiate a decision. Ground (b) refers to excess of jurisdiction. The word jurisdiction is by all accounts a troublesome word and, in Anisminic case, the meaning of the word shifted with every judgment of the Law Lords. Since the word is not qualified in any way in the AJA, it should be permissible to interpret it most amply and liberally. It would thus cover a straight case of lack of power, embarking on an inquiry without authority and embarking
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on an inquiry with authority but straying off course. Ground (f) abuse of power ought to be able to cover misfeasance in public office. Ground (I), conflict with an Act of

Parliament would constitute repugnance, such as occurred in Padfield v Minister of Agriculture. Ground (j) error of law goes beyond the common law by requiring that the courts may review such error even where it is not apparent on the face of the record. This provision is consistent with one of the recommendations of the Justice. It is important to note that, unlike the situation at common law, the application for judicial review may yield a remedy or a combination of remedies. Furthermore, the courts power is not limited to the reliefs applied for. There is also an expansion of the

remedies to include restitution for damages in money, and an order for the return of property, real or personal. At common law, actions for damages played a relatively small part in administrative errors. Caribbean constitutions and the AJA of Barbados provide a clue to an answer which is taken up by Bolden v AG of Barbados. Caribbean constitutions provide that in case of administrative infractions, leading to a violation of fundamental rights, among other things, the courts may provide redress. No limitation is placed on the courts as to the type of redress which they may prescribe. Yet, thus far, damages seem to have been awarded more for the infringements of the bill of rights than for administrative errors. The constitutional position which allows for a wide ambit of redress, including the award of damages, is enhanced by the AJA, which provides in Section 5 (2) that administrative errors may be compensated for in damages. Section 5 (2) (f) provides that the court may grant in addition or alternatively damages in money. In arriving at the conclusion that the plaintiff was entitled to damages for the unjustified refusal to the grant of a licence, the court indicated that damages claimed had to be proved and also the damages were to be compensatory and not punitive. Bolden v AG is important in the sense that it takes the plunge, whereas the PC in the case of C.O. Williams is slow to do so, and show that Caribbean public law has exhibited a boldness and imagination which the common law is still grappling with in the area of damages and which reinforces the writers view that indeed Caribbean public law has come of age.
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It must be noted also that, in C.O. Williams case one of the reliefs claimed by the applicant was damages in such amount as the court may deem just and reasonable. In the judgment delivered by the PC on the procedural aspects of this case the question whether the AJA provided for an independent claim for damages, outside of the common law, was raised in argument, but left undecided. The PC put the issue thus: the question whether the appellant ahs any prospect of obtaining effective relief in the proceedings is, in their Lordships judgment, the most difficult question which arises, although it was not canvassed in the courts below. It is obviously impossible now, when Rayside has finished or nearly finished the contract works, to put the clock back and reverse the effect of the Cabinets decision. The relief claimed by the appellant is a declaration that the Cabinets decision was invalid and damages. In these

circumstances, the AG forcibly argued: (a) that the possible grant of a declaration alone would be academic and of no value to the appellant and could not justify the continuation of the proceedings; (b) that the appellant, even if successful in striking down the Cabinets decision, has no remedy in damages at common law; (c) that Section 5 (2) (f) of the AJA, on its true construction, was only intended to authorize the recovery in judicial review proceedings of damages otherwise recoverable at common law, not to create an independent use of action for damages sustained in consequence of an administrative malfeasance under Section 4. Their Lordships appreciate the force of these arguments and would be inclined to accede to the first and second. But the interpretation of Section 5 of the AJA raises a question of difficulty and importance which it would be quite inappropriate for their Lordships to determine without the benefit of any opinion expressed by the courts in Barbados and on an application to strike out. While the last paragraph above may represent a classic example of the doctrine of judicial restraint, yet it is submitted that notwithstanding that Bolden is a first instance decision, it nevertheless blazes a trail which is widely shared and is in keeping with modern ideas. Judicial Review also includes remedies whether by writ or order. Three forms are: Certiorari for quashing unlawful acts; Mandamus for requiring performance of a public duty, including a duty to make a decision or determination or to hear and
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determine any case; and Prohibition for prohibiting unlawful acts. The court may also grant remedies such as injunctions, an order for the return of any property, real or personal and restitution for damages. NOTE: The court may also grant remedies such as injunctions, an order for the return of any property, real or personal and restitution for damages. Section 6 addresses issues of standing. Section 6 (a) allows relief to a person whose interests are adversely affected by an administrative act or omission. However, Section 6 (b) breaks new ground by allowing relief to a person on public interest grounds. The discretion remains that of the court upon satisfaction that a persons application is justifiable. In Collymore v AG it was questioned whether an unincorporated body

can apply for judicial review. It was held that artificial entities can also bring judicial review once they can show that the matter is of public interest and they possess expertise in the subject matter of the application. Corporations are interpreted by the constitution as a legal person. In Societe United Docks v Government of Mauritius Respondent It was the question of whether a legal person can be subject to Judicial Review and on appeal it was found that both sections inferred the inclusion of a corporation and thus judicial review could be invoked. In AG v Antigua Times Ltd Lord Fraser in delivering his judgment said that corporations play an important role in the economic life of society and a modern constitution dealing with right to property amongst other things should include corporations under the scope person. Public Authorities are subject to judicial review to ensure they act within the scope of the power given to them by statute. In Re Blake where an appellant makes an application for an order of mandamus one must show that he has sufficient interest in the public duty. Also in reference to an application for declaration or other relief one is required by section 96 of the constitution to show that he has sufficient interest in the declaration or other relief. On appeal it was elected to decide the case on the merits of the application and it was found that the application was unmeritorious thus, it was unnecessary to decide whether the appellant has locus standi either by way of a sufficient interest or by way of a relevant interest in the subject matter of the application.
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Hence, the capacity to bring a claim is where the claimant has sufficient interest of the public duty or subject matter. One who has been adversely affected by the decision which is the subject of the application? For a claimant to have a standing in judicial review the application must meritous. The doors in Barbados are open for individuals who have good grounds for supposing that a government department or a public authority is transgressing the law, or about to transgress it to move the court for relief on non-fundamental rights issues. It is up to the court to non-suit the applicant. An applicant for judicial review may be made by any

person, group or body which has a sufficient interest in the subject matter of the application. R v Lord Chief Justice this case establishes the principle. The case concerned an application by the father of James Bulger seeking permission to challenge the decision of the Lord Chief Justice fixing the tariff term to be served by those who murdered his son. Mr. Justice Turner rightly ordered that the application be heard orally. In the Court of Appeal, Rose LJ stated that the second question which arises is whether the claimant has standing to challenge the tariff which the Lord Chief Justice has fixed. It was a question of whether a third party was needed to

intervene to uphold the rule of law and the judgment held NO. In the judgment it was said that the crown and the defendant are the only proper parties to criminal proceedings. On the question of the invitation given to the claimant by the Lord Chief to make representation to appropriate the tariff. It was decided that no Section 31 (3) of the Supreme Court Act 1981 did not give a right to the claimant to appropriate the tariff. The claimant was deemed to have limited standing to enable him to challenge any failure to have regard to the impact of the offence on him personally and he was not regarded as having standing to challenge the appropriate tariff. It was said that in view of the exceptional public interest in this case, it was not appropriate to dismiss the application without considering the merits of the challenge to the decisions of the Lord Chief Justice and the Secretary of State. NO NEED FOR THIRD PARTY INTEREST. To access this interest as stated in Ex. National Federation, once leave has been given to move for judicial review the court still ought to examine whether the applicant
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has a sufficient interest and whether an applicant has a sufficient interest is not purely a matter of discretion in the court. Not every member of the public can complain of every breach of statutory duty by a person empowered to come to a decision by that statute. To rule otherwise would be to deprive the phrase a sufficient interest of all meaning. However, a direct financial or legal interest is not required. Where one is examining an alleged failure to perform a duty imposed by statute it is useful to look at the statute and see whether it gives an applicant a right enabling him to have that duty performed. Merely to assert that one has an interest does not give one an interest. The fact that some thousands of people join together and assert that they have an interest does not create an interest if the individuals did not have an interest. The fact that those without an interest in its memorandum power to pursue a particular object does not give the company an interest. Section 7 of the AJA provides that an interlocutory application may in any application for judicial review and that the court may grant an interlocutory relief in a deserving case. This power includes the making of an order for discovery of documents, for interrogatories and for cross-examination. By this provision, it is now possible to short circuit some of the procedural and technical shortcomings of the prerogative writs, especially certiorari. The court has power to stay proceedings until further order. In Lewis v AG a case on the death penalty. On the face of it there are compelling reasons why a body which is required to consider a petition for mercy should be required to receive the representations of a man condemned to die and why he should have an opportunity in doing so to see and comment on the other material which is before that body. This is the last chance and in so far as it is possible to ensure that proper procedural standards are maintained that should be done. Material may be put before the body by persons palpably biased against the convicted man or which is demonstrably false or which is genuinely mistaken but capable of correction. Information may be available which by error of counsel or honest forgetfulness by the condemned man has not been brought out before. Also if the opinion of the JA PC is taken in an arbitrary or perverse way or is otherwise arrived at in an improper,
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unreasonable way the court should prima facie be able to investigate. The rationale for judicial review would be to uphold the rule of law. Sharma v Browne-Antoine illustrates the governing principles that the rule of law requires that, subject to any immunity or exemption provided by law, the criminal law of the land should apply to all alike. A person is not to be singled out for adverse treatment because he or she holds a high and dignified office of state, but nor can the holding of such an office excuse conduct which would lead to the prosecution of one not holding such an office. The maintenance of public confidence in the administration of justice requires that it be, and be seen to be, even-handed. NOTE: Judicial review would only be granted in the rarest of cases if the DPP acted in excess of power, bad faith and abuse of process. Defreitas v Benny, the prerogative of mercy is not subject to judicial review. However, the PC changed the attitude and allows the person on death row to make representation as to why he shouldnt be hanged. Materials may be before the committee which may be biased towards the counsel. Information before the board which was forgotten by the defendant. If the decision is reached by the PC is lacking with regard to the way in which it was reached. Section 8 underscores the important power in the courts to refuse to grant relief, but the Act goes much further than the common law. The usual ground of undue delay is referred to, as well as a set of unusual grounds. The court may refuse a remedy if the relief sought would cause substantial hardship to, or would substantially prejudice the rights of, any person, or would be detrimental to good administration. Two logical

questions immediately arise. What constitutes good administration and, as a matter of public policy, should the courts provide legitimacy to an otherwise ultra vires decision in the name of upholding the tenets of good administration? Section 9 provides that where the court quashes an administrative act to which the application relates, it may in addition remit the matter to the court, tribunal or other authority concerned with a discretion to reconsider the matter and to determine it in accordance with the courts order. This power is necessary for the avoidance of a
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multiplicity of actions and, also, for providing necessary for the avoidance of an authority in order for them to keep within the bounds of legality. NOTE: Section 10 (1) provides that where a person brings proceedings alleging that some person is not entitled to act in a public office, the court may, if satisfied that he proceedings are justified, grant an injunction restraining that person from acting in the public office and the court may, if it thinks fit, declare the office to be vacant. Section 11 preserves the law relating to habeas corpus by stating that nothing in the AJA affects the law relating to it. Part II of the AJA deals with administrative

procedures. The statute provides for a condition duty to state reasons, as well as the principles of natural justice. Section 13 provides that there is now a duty to state reasons which is imposed on any person or body making a decision. The request for reasons must be in writing, except that where an oral hearing is held the request may be made orally before the conclusion of the proceedings. Section 15 provides that the reasons must be furnished in writing, except where the party has waived the right to a written statement. Once requested, the statement of reasons must be supplied within a reasonable time. That statement forms part of the record and may be quashed for error on the face of the record or for plain error of law. Two exceptions from this duty are where statute excuses the statement of reasons and decisions listed in the First Schedule. The decisions listed seem to go against natural justice developments and principles of good administration. Secondly, while it is true that public policy requires that the minister should have drastic powers of deportation and refusal of entry over aliens, yet as Wade persuasively argues, there is no reason why these, like drastic powers over citizens generally, should not be required to be exercised fairly, particularly since the consequences for the alien are often extremely severe. Section 16 (1) (a) provides that natural justice applies to all licensing applications as well as the imposition of penalties. The same applies to all disciplinary matters

adjudicated upon by the service commissions. If natural justice is so important why restrict its application to matters of a disciplinary nature? After all, the service

commissions are responsible for the appointment, transfer, discipline and dismissal of public officials.
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CONCLUSION Judicial recognition has been given to the AJA in several important cases. (a) the nonexhaustive language of Section 4 that deals with the grounds for relief allows scope for the proper development of administrative law; the wide discretion in the court to grant relief as and when appropriate is preserved and enhanced; the erection by parliament of a statutory structure by which the exercise of the constitutional and statutory duties and powers of ministers, public officials and other government authorities is now subject to judicial review; and the fact that the Act reflects the important decisions in English administrative law, in cases such as the Wednesbury case, Ridge v Baldwin, Anisminic and CCSU. The C.O. Williams case recognizes the potential of the AJA. In Barbados unlike in the CPR rules no leave of the judges is first required before making an application for judicial review. An application for judicial review may be made by originating motion to the HC, except in vacation when it may be made by originating summons to a judge in chambers. An application must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought and by affidavit verifying the facts relied on. The applicant is required to give notice of the application to the AG and furnish him with copies of the statement and every affidavit in support. The AJA is an extremely powerful weapon in the armoury of the citizen in the fight against improper and unauthorized administrative action by public officials. The Act is broad enough to cover acts or omissions of any authority of the Government of Barbados, though not of the Crown. Public interest litigation may now be undertaken by a person who, in the eyes of the court, is not a busybody. Another improvement is that the Act allows a combination of prerogative and private law remedies in the same action. Before public law and private law remedies had mutually exclusive procedures. Now there is a combination of their remedies in any application of judicial review. The Act also allows decisions to be challenged for error of law, whether that error appears on the face of the record or not. The Act also allows for a conditional duty to state

reasons for decisions made by public officials. It is also possible under the AJA to challenge a decision on the grounds of no evidence. Unlike in the UK, no leave of the
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judge is required in order to invoke the jurisdiction of the HC under the Act. The Act also cures one of the fundamental deficiencies of the prerogative orders by allowing a proper interlocutory process. Finally, we noted that the court was granted very wide discretionary powers in enforcing an enhanced range of remedies, including the power to refuse a remedy in the interest of good administration. The AJA chief shortcomings is that it fails to deal with the single greatest source of complaint against public authorities delay in the decision making process. It is

unfortunate that the Act does not take the lead in providing a standard which demands of public officials timely and prompt decision making. Also the list of authorities

excluded from the duty to state reasons. One can well understand the exclusion of a duty to state reasons in a national security setting but not immigration. It is submitted that another signal omission of the Act is its failure to address the conflict as to whether an applicant must exhaust alternative remedies before invoking judicial review. We have also noted that one of the confusing areas of Caribbean public law is the status of procedural requirements, especially in the area of subordinate law making. Finally, while we have commended the Act for making it possible for a public law action wrongly commenced to proceed as a private law claim, the opposite is not provided for. It is submitted that there is no strong or compelling reason why a private law action, wrongly commenced, should not be converted to a public law action. That the Act omits to provide for that possibility is much to be regretted. JUDICIAL REVIEW ACT 2000 OF T&T The Act of T&T follows in the footsteps of the Barbados AJA but with some important differences. While C.O.Williams case tells us that the AJA of Barbados does not bind the State, the situation is reversed in T&T. Section 3 of the Act expressly provides that the Act binds the State. Under Section 5 (1), judicial review lies against a person acting in the exercise of a public duty or function. Section 5 (3) lists a number of familiar grounds, which include an improper exercise of discretion, taking account of irrelevant considerations and acting on instructions from an unauthorized person. The grounds for judicial review receive some expansion on the Barbados legislation, though both statutes acknowledge that the grounds are not exhaustive. Additional grounds to
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be found in T&T are: deprivation of a legitimate expectation; a defect in form or a technical irregularity resulting in a substantial wrong or miscarriage of justice; an exercise of a power in a manner that is so unreasonable that no reasonable person could have so exercised the power; and an exercise of a power in a manner that is so unreasonable that no reasonable person could have so exercised the power. Unlike Barbados, no application for judicial review shall be made unless leave of the court has been obtained. T&T law takes a rather liberal view of locus standi by providing access to judicial review to persons outside the category of those who may have a personal interest in the matter before the court. Section 7 (1): Notwithstanding section 6, where the court is satisfied that an application for judicial review is justifiable in the public interest, it may, in accordance with this section, grant leave to apply for judicial review of a decision to an applicant whether or not he has a sufficient interest in the matter to which the decision relates. The court is assisted in determining justifiability in the public interest by having regard to factors, including but not limited to the following: the need to exclude the mere busybody; the importance of vindicating the rule of law; the importance of the issue raised; the genuine interest of the applicant in the matter; the expertise of the applicant and the applicants ability to adequately present the case; and the nature of the decision against which relief is sought. At common law only a person affected adversely by an administrative decision, act or omission may bring an application for judicial review. In recent times, the courts have adopted a more flexible approach to locus standi by permitting public interest litigation. So to that extent, the Trinidad law is progressive. However, the provision produced

such a flurry of public interest applications for judicial review that the Cabinet was moved in 2005 to introduce a Bill to repeal the section sanctioning them. How sufficient must the public interest be to ground locus standi? The interest of the public must be tenuously connected with the subject matter of the complaint. Section 9 preserves the alternative remedies rule but allows a variation in exceptional circumstances. Section 12 and 13, the court now has power to permit an action
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wrongly started in the Private Law Court to be continued as a public law action. Barbados has no provision akin to Section 13 of T&T. DEFENDANTS AND DECISIONS SUBJECT TO JUDICIAL REVIEW General Application 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 judicial review. There is no reason in principle why the cabinets exercise of the function should not be subject to judici al review to the same extent and on the same grounds as the ministers would have been. In the Barbadian case of Williams Construction Ltd. v. AG of Barbados. In an action for judicial review against the cabinet of Barbados in connection with the award of a road construction contract, the preliminary point was raised as to whether the cabinet was a proper party to the proceedings and the PC held that it was. According to Lord Bridge for the Board: The fact that the cabinet has the very broad function con ferred upon it by s. 64(2) of the Constitution of Barbados, in respect of which it may be immune from judicial review, seems to their lordships for present purposes to be quite irrelevant. 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 judicial review, their lordships can see no reason in principle why the cabinets exercise of the function should not be subject to judicial review to the same extent and on the same grounds as the ministers would have been. The Williams Construction case thus illustrates the principle that when a policy-making organ, such as the cabinet, undertakes to perform administrative functions which have been statutorily conferred, then it cannot escape judicial review. It becomes a public authority, which will not be allowed to contract out of the legal system. In the Interpretation Act Barbados Minister should be read as plural i.e. Cabinet is unquestionably another authority of the government of Barbados. Also in HMB Holdings it was questioned whether cabinet could be subject to judicial review so far as the issue arose when it made a compulsory order for the acquisition of its property. The court held that the question as to what is a public purpose and that the
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land is required for that purpose is non-justicable. However, the AG conceded that the decision was not totally immune from judicial review. 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 may be invoked. The respondents argument that judicial review of the Cabinet decision being not available was rejected. 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. JUDICIAL REVIEW OF PUBLIC FUNCTIONS, in the case of Datafin a panel was set up as a self-regulated body. It regulated take-over and merges in London. It had its own code and was unincorporated. It prescribed certain conduct to be followed by take overs of certain Companies in the UK. The issue was whether it was subject to judicial review. The applicants sought relief in respect of an order of ceteriorari to quash the panels decision/declaration that the decision was wrong in law, an order of mandamus requiring the panel to reconsider and take a proper decision in accordance with the city code; and an injunction to restrain the interveners from acquiring shares in a certain company. In circumstances where it was alleged that rule 6.2 of the code on take over and mergers had been infringed in virtue of Norton take-over bid and the panels decision to dismiss the complaint of the applicants. The initial petition for leave to make an application for judicial review was refused but later the COA granted leave to hear the substantive application itself. The counsel for the applicant argued that the code governing take-overs and mergers though not of law as statutorily recognized. A breach of the code is an act of misconduct by a member of the stock exchange for which expulsion may result. Does the panel on take over and mergers owe a public duty? (1) Source test the government impliedly devolved its power to regulate transactions powered by the code on the panel. (2) Consequences test decision taken by body which has a public law
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character often has public law consequences. (3) Function test although the code does not have legal rules per se, it has legal consequences. The function performed by the panel is a public law one. The respondents argued that the panel is only

susceptible to judicial review if it satisfies the traditional criteria for determining whether it is fulfilling a public duty. This depends on the source of power. COA: Decision extended the exercise of Judicial Review to a body which was not constituted by an Act of Parliament. Thus in the absence of public source of power a body could still be subject to judicial review. The panel was not a club but anyone who was in the process of takeover/merger had to abide by the code. It was not contractual. Sir Bingham MR The effect of this decision was to extend judicial review to a body whose birth and constitution owed nothing to any exercise of governmental power but which had been woven into the fabric of public regulation in the field of take-overs and mergers. It is now clear that statutory and analogous sources are not a necessary criterion of reviewability. In R v. Panel on Take-overs and Mergers, ex p. Datafin, the CA held that the decisions of the self-regulatory City Take-over Panel were subject to review by the court, and that its decisions could be quashed on the conventional grounds of irrationality or unfairness. The CA found that the panel performed a public duty in its regulation of the financial markets and that it would be unthinkable to allow it to be cocooned from the attention of the courts. For reviewability under Order 53, the only essential elements are what can be described as a public element, which may take many different forms and the exclusion from jurisdiction of bodies whose sole purpose of power is a consensual submission to the jurisdiction.(conclusion: obiter b/c application dismissed on merits) This conclusion (obiter) in Datafin represents the triumph of substance over form and if the panel was a creature of statute its function would have been the same as it was as a self-regulatory body. It displays an

expectation for the expansion of the outer bounds of judicial review. NOTE: Set up by parliament and contractual the court doesnt look at the source but the nature of the power. If the body is set up by a statute it may be subject to judicial review.

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Ex. P West Law of London the consequences were private not public.

The

consequences were private, therefore not subject to judicial review. The source of the powers was contractual. JUSTICIABILITY AND DISCRETION Courts have jurisdiction to supervise the operations of certain public bodies by reviewing their decisions, the decision-making process, acts and omissions. However, courts can determine by discretion whether they should intervene in a judicial matter. In Ex p. Chelsea RLBC the issue arose whether the court should entertain an application for Judicial Review in relation to an inspectors ruling. The court rules that the inspectors error of law would so fundamentally affect the conduct and utility of the inquiry that the court would take the exceptional course of allowing an application for Judicial Review in the course of an inquiry. The court was not fettering the inspectors discretion as he was free to admit evidence. On the issue of National Security, in CCSU v Minister of Civil Service the issue was whether the minister was justified, on national security grounds, in declaring, without prior consultation with the union, that the staff members would no longer be permitted to belong to national unions. On the issue of a political question in Re Blake, public policy dictates that the Head of State should not devolve certain sensitive information regarding the appointment of a Prime Minister by Sir Vincent Flossiac. Sir Vincent Floissac CJ noted that: the decision to appoint a Prime Minister or any other Minister of Government is one of the many decisions which are made in the exercise of prerogative powers. They are not

justifiable or subject to judicial review for the simple reason that the subject matter of the decision is not amenable to the judicial process. If the decision of the Governor-General to appoint a Prime Minister was 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 person. Public policy dictates that the Head of State should be speared those

consequences. The alternative outside of legal procedures would be to have a vote of no confidence in order to see who commands the majority.
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Foreign Policy Ex p Gentle, the claimants were mothers of two service men who were called while serving in Iraq. There was supposed to have been an inquest. The claimant sought Judicial Review on the basis of not only a separate inquest but also on the wider question as to whether the UKs invasion of Iraq was in breach of International Law. The question whether in sending troops to Iraq, the UK government acted The courts avoided interpretation and application of

unlawfully was non-justiciable.

international instruments because this was not the function of a domestic High Court judge. To allow the claim would mean an inquiry into the foreign policy. The power of a state to make war was non-justiciable of non-intervention of court. It was highlighted that in respect of the principle of separation of powers therefore no inquiry into executive policy. However, one may review foreign policy by using public inquires. DISCRETIONARY REMEDIES Can the court refuse to exercise its discretionary power? In Ex Parte Calvery, a

complaint was made about certain police officers. Two years later an investigation began. According to the police disciplinary Representative he was not granted notice. Three years subsequently, the matter was heard. The applicants claimed that his ability to be properly prosecuted was prejudiced given that the matters may have slipped the memory of witnesses. The police officers could have appealed the decision; instead they petitioned the court, which dismissed the argument given that the appeal was in progress. It was held that notwithstanding the general principle that it would not

exercise its discretionary power to allow a Judicial Review application, in these circumstances, given the fact of the unreasonable length of the delay, would grant such an application of Judicial Review. Judicial Review should not be granted where an alternative remedy is available but the court considered: How long it took to investigate the matter as it would allow a judicial review where there was an abuse of process in respect of the length of delay even though there is an alternative remedy of appealing. GOOD ADMINISTRATION: Ex.P Argyll two Co. were bidding for a 3rd Co. Both submitted proposals before reference was stated. Representative of the Co. who

tendered the revised bid petitioned the commission which then asked the Secretary of
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State to abandon the reference. The issue was whether the decision of Secretary of State to consent to the setting aside of a reference to the Monopolies Commission was unlawful, on the basis that he had acted upon the recommendation of the Chairman of the commission rather than the commission as a whole. We have to approach our duties with a proper awareness of the needs of public administration. Good public administration is concerned with substance rather than form. Good public

administration is concerned with speed of decision, particularly in the financial field. Good public administration requires a proper consideration of the public interest. Good administration requires a proper consideration of the legitimate interests of individual citizens, however rich and powerful they may be and whether they are natural or juridical person. Lastly, good public administration requires decisiveness and finality, unless there are compelling reasons to the contrary.

OUSTER CLAUSE The courts power of judicial review is extensive but it has limits. A court may conclude that a case is not amenable to judicial review for several reasons for example because it falls outside the realm of public law or because the matter is non-justicable. Even where the court accepts its power of review, there are limitations on when that power is to be exercised: the court will not intervene where there is an operative ouster clause or where they impose restraint on themselves. Generally however the courts tend to

presume reviewability. Ouster clauses seek to protect public bodies from judicial review by attempting to oust the court its supervisory jurisdiction. Wade, in Administrative
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Law, 2000, 8th Edn., at page 705, states that ouster clauses are wide enactments designed to oust the jurisdiction of the courts entirely in respect to all remedies. The ouster clauses seek to deny the power to exercise final adjudication over the exercise of legislative or administrative power by state officials. The court has generally upheld the validity of those partial ouster clauses which only attempt to protect decisions by limiting the time period within which they can be challenged. It has

however been contended that Parliament is using ouster clauses to make judge proof legislation. It has also been contended that ouster clauses seek to stop the democracy of the law. In respect of the doctrine of Separation of Powers the judiciary being the independent organ of this doctrine cannot allow the ouster clause to weaken it. The Ouster Clause is an attack on the judicial jurisdiction and its independence. Ouster Clause is designed to oust the jurisdiction of the court completely in respect of all remedies. It has been held however that that they cannot prevent the courts from intervening in cases of excess of jurisdiction for example by violation of the principles of natural justice. Apart from the positivist theories, it would seem that ouster clauses are difficult to justify jurisprudentially. If it is agreed that recourse to the courts is a

necessary element of an equitable and just system, then there is no justification for ouster clauses within the jurisprudential principles of justice and morality. The three clauses are as follows: No Certiorari Clause: According to Lord Denning, the remedy of certiorari can only be taken away by the most clear and explicit words. Even where a statute expressly says that no certiorari would issue in a certain type of case, judicial policy has been that certiorari would be granted to quash an act or decision that is ultra vires. The courts have therefore refused to let statute interfere with its power over excess of jurisdiction. As if enacted Clauses: These clauses are to the effect that a statutory order shall have effect as if properly enacted in an Act the necessary procedural requirements having been followed. In effect it makes the order unchallengeable but the courts have not allowed these clauses to protect acts or decisions that are blatantly ultra vires. The
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court has held that the term as if enacted only protects those orders which actually conform to the Act. Shall not be questioned Clause: These clauses aim to protect an order from all types of legal proceedings. It is usually framed to take effect after only after a time limit before which remedies may be sought. Ouster clauses can take two forms that are statutory and constitutional. The courts have dealt with statutory ouster clauses in different ways. STATUTORY OUSTER CLAUSES In Taylor v National Assistance Board, the acts of the board were covered by Sec. 4 of the Legal Aid and Advice Act 1949 which provided that every decision or determination of the Board shall be final. The court ruled in favor of the board but Lord Denning created an inroad into the law by stating that the court is not prevented from awarding a remedy merely because a statute says that a tribunals decisions are final. Lord Denning argued that Parliament only gives the impression of finality to decisions reached in accordance with the law so the courts can issue a declaration to see this condition is fulfilled. This statement amounts to a warning against taking a face value approach to statutory ouster clauses. Lord Denning buttressed this approach in R v Medical Appeal Tribunal ex parte Gilmore. The legislation in question provided that any decision of a claim or questionshall be final. Lord Denning maintained that it is well sett led that the remedy of certiorari is never to be taken away by statute except by the most clear and explicit words. He went further to say the word final was not sufficient since it only removed the possibility of appeal but not of review. The use of the word final in the statute made the decision final on the facts but not final on the law. Certiorari can still issue even for a final decision where there was excess of jurisdiction or where there was some error of law on the face of the record. The court therefore indicated their willingness to protect their jurisdiction except where expressly prevented from doing so.

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It must be noted however that even where statute has expressly provided that courts should have no jurisdiction to question decisions of tribunals, the courts have found ways to circumvent this. Rawlins explains that it is well known that the courts have usually jealously guarded their jurisdiction from ouster by legislation and have devised novel ways to neutralise such provisions purporting to usurp the jurisdiction of the court. According to Wade and Forsyth: there is a firm judicial policy against allowing the rule of law to be undermined by weakening the powers of the court. Statutory restrictions on judicial remedies are given the narrowest possible construction, sometimes even against the plain meaning of the words. This is a sound policy since otherwise administrative authorities and tribunals would be given uncontrollable power and could violate the law at will. Finality is a good thing but justice is better. The legal scope and effect of ouster clauses are well settled, thus the following principles have emerged from the large body of case law concerning this issue, namely, 1.) That an ouster clause can never shut out the jurisdiction of the courts to determine the preliminary issue as to whether they have jurisdiction in the first place, 2.) After the courts first exercise their jurisdiction to examine the matter, they will only refrain from giving any judicial remedy if the body, entity or functionary has acted properly within the scope of its statutory or constitutional jurisdiction, 3.) If the courts determine that the body, entity or functionary has exceeded or acted outside its jurisdiction, then the ouster clause will be of no effect to shut the jurisdiction of the court, by declaring that the purported exercise of jurisdiction is illegal, null and void. CONSTITUITIONAL OUSTER CLAUSES Ouster clauses are clauses which aim at usurping the supervisory jurisdiction of the courts. In essence ouster clauses put a fetter on the discretion of the courts. However the courts have jealously guarded their jurisdiction. They have generally been willing to intervene to ensure that fundamental rights are protected against public bodies. The effect of a literal interpretation of ouster clauses would be to place the public authorities
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to which they apply beyond the reach of the law. Courts have therefore found ways of circumventing such clauses. Fiadjoe suggests that OCs are put in the constitution to promote social, economic and administrative efficiency and prevent interference by the courts in the expeditious execution of governmental policies because by providing finality. Dicey argues that they are included to preserve conventions within the constitution. It is suggested that the latter view is the weaker view since it explains COCs but not SOCs and can be rebutted by the fact that the constitution is supposed to be evolutionary and preserving conventions would not facilitate this. Constitutional ouster clauses (COCs) provide for the unreviewability of certain discretions ascribed to the Head of State and Service Commissions. The courts have treated COCs differently and various legal writers have suggested different approaches to them. There are cases in which the courts have actually upheld ouster clauses. However, these cases have usually turned on special circumstances. For example, in the case of Re Blake (1994) 47 WIR 174, the court of appeal of the OECS upheld Hylton Js refusal of the application of the appellant on the ground that s.116 (2) of the constitution precluded any court from inquiring into the exercise by the Governor General of the power under s.52 of the constitution to appoint a Prime Minister and to establish a minor ity government. The applicant contended that the Governor General had acted unconstitutionally in his decision to appoint and establish a Prime Minister and minority government, and that the decision infringed the appellant fundamental rights and freedoms. RE BLAKE: The appellants challenged the GGs decision to appoint/refrain Dr. Simmonds as PM and to establish a minority government as being unconstitutional. He also alleged that the GGs decision infringed or was likely to infringe/impair his private/ personal fundamental rights and freedoms. The redress sought was an order of mandamus ordering the GG to remove Dr.Simmonds as PM, to dissolve parliament and to issue writs for general elections. Applicant could not seek an order of mandamus because he had failed to obtain leave of the court.

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The court in Re Blake relied on Lord Roskills dicta in the Council of Civil Service Union case [1984] 3 AER 935, in which Lord Roskill made reference to those prerogative powers which are excluded from judicial review. They are: CCSU

prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative or mercy, the grant of hours, the dissolution of parliament and the appointment of ministers are susceptible to judicial review because there nature and subject matter are such as not to be amendable to judicial process. If the decision of the GG to appoint a PM was 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 dictates that the Head of State should be spared those consequences. The answer to the question that is likely to command the support of the majority of the representatives is subjective and the constitution makes it subjective to the GGs personal judgment. Hence, an inquiry into such is non-justiciable. The constitution itself allows for a motion of non-confidence in the government the outcome of which would conclusively establish whether or not the PM commands the support of the majority of the representatives. The decision of the GG generally while not subject to judicial review if it were to be so, such could only be impugned where there is a finding of illegality, irrationality and procedural impropriety. Irrationality Wednesbury unreasonableness a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at. There is no evidence or justification for the conclusion that the GGs decision was so outrageous in its def iance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Therefore, there is no valid ground for impugning the GGs decision at judicial review.

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A court is not empowered to usurp the powers of the authority by substituting its own opinion or decision for the decision of the authority which is the constitutionally, statutorily and legally authorized decision maker. The purpose of a judicial review of a public authoritys decision are merely to determine whether the decision is legal, national and procedurally proper and if not, to make such orders as may be necessary to protect individuals affected by the decision from illegality, irrationality and procedural impropriety. The applicant is acquiring to show that he has a sufficient interest in the mandamus section 96 constitution. THOMAS V AG OF T&T P was a police officer in T&T police force. He was charged with 3 offences against discipline in 1972. (Guilty of neglect of duty). He was dismissed by the police service commission Regulation 998. He claimed an entitlement to

damages and a declaration that he was still a member of the police force. Under section 99 of the constitution, the PSC has power to remove a member of the police force in accordance with the law. Section 102 (4) of the constitution bars an application for redress under section 6 of the constitution and regulations 74 to 1996 cannot be inquired into. (Ouster clause) There are overwhelming reasons why remove in the context of to remove second exercise disciplinary control over police officers in section 99 must be understood as meaning remove for reasonable cause of which the commission is constituted the sole judge. To construe it otherwise would frustrate the whole constitutional purpose of chapter 8 of the constitution which in light of Section 1 (d) provides for the right of the individual to equality of treatment from any public authority in the exercise of any functions. Dismissal of individual members of a police service at whim is the negation of equality of treatment. Suffice the governors decision as to what amounted to sufficient cause in the individual case was not open to judicial review. The survival of the historic legal doctrine of dismissibility at pleasure of

prejudice and other public officers was inconsistent with the constitution. Reasonable cause is not confined to willful misconduct; it would embrace reasons such as ill-health or unsuitability of temperament or even some personal characteristic anyone of which through no fault of his own had rendered a particular officer unfitted to perform with reasonable efficiency the duties of a police man.
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In this case, the judicial committee held that it could not be argued that the PSC acted outside its jurisdiction in removing the plaintiff from the force. Thus, the High Court had no jurisdiction to inquire whether the PSC actions were valid or not. The PC held that there is intrinsically no difference between statutory and constitutional ouster clauses. The police service commission although an administrative body was performing a quasijudicial function. In dismissing the applicant, in breach of natural justice; the issue was whether the court was precluded from rendering judicial review. Two limitations in face of constitution ouster clause: (1) if the commission had acted outside its functions. (2) Where there was a breach of the fundamental rights of an individual. The specific overrides the general that is the specific fundamental rights and freedoms overrides the general ouster clauses. This statement was upheld in Joseph & Boyce. As per De Law Bastide: Ever since the decision from Anisminic, the court has declared that it would not be precluded by virtue of an ouster clause particularly where the decision of the public body is in breach of procedural fairness. Note: This does not say that COCs should or could never be disregarded. In fact, it suggests that the court can ignore COCs if they have good and compelling reasons to do so. Fiadjoe suggests that any evidence of an offence against the constitution is enough satisfy the test of strong and compelling reasons. STATUTORY OUSTER CLAUSES In Anisminic Ltd. v. Foreign Compensation Commission, the locus classicus, judicial review was sought in relation to a determination of the FCC under the Foreign Compensation Act 1950. This Act contained an ouster clause which stated that a determination of the Commission shall not be called into question in any court of law. The House of Lords in granting a declaration held that the Compensation Tribunal made an error of law in misconstruing the Order; and that this error was of such a serious nature that the Compensation Tribunal went so far outside its jurisdiction that its determination was a nullity. (Brief facts of Anisminic Ltd. v. Foreign Compensation
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Commission The property belonging to a particular group was used by the Egyptian. A tribunal was set up to determine who should benefit from lands acquired by the Egyptian government. The tribunal held that they were not entitled to compensation. The tribunal in fact had asked an incorrect question. Where a tribunal acted outside its jurisdiction, the decision would be a nullity. If the tribunal acted in bad faith, made a decision which it was not entitled to make or acted in breach of natural justice then the ouster clause would not preclude the court from entertaining an action for judicial review. A decision of a tribunal made contrary to any of the grounds of judicial review would not render it void even though there is an ouster clause. The Anisminic Company claimed that, on true construction of the Order, they were entitled to participate in a compensation fund. The Compensation Tribunal rejected the companys clai m. The company then brought an action in the courts claiming a declaration that their claim was good. The Compensation Tribunal pleaded that, by reason of the Statute, the High Court had no jurisdiction to entertain the proceedings. The FCC applied to the Court to have the question of jurisdiction determined as a preliminary point of law. They said that, even assuming that the Compensation Tribunal came to a wrong determination on the construction of the Order, there was no jurisdiction in the High Court.) The Law Lords in Anisminic were applying the same general principle: that an ouster did not protect any determination which was outside jurisdiction. The difference in result came because of the application of the principle to the particular facts of Anisminic. Thus, it is arguable whether Professor Wades contention was correct when he said that Anisminic had extended the law on the issue to an extreme point. One must realize that there will always be legitimate disagreements about the application of legal principles to the particular facts, but since the basic principle being applied is the same, then it is arguable whether it can be said that there has been an extension of the legal principle. There may have been an extension of the application of the legal principle, but not necessarily an extension of the scope or content of the principle itself.

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Another point of contention that Professor Wade made was that the courts were acting in total disobedience to Parliament when they refuse to allow ouster clauses to shutout their jurisdiction. However, there seems to be no issue of judicial obedience where the courts have determined that the body, entity or functionary has acted within their jurisdiction. However, this issue turns upon what the courts consider to be acting within jurisdiction or outside jurisdiction. OReilly v Mackman, provided the occasion forth eland mark case of Anisminic. The breakthrough that the case made was the recognition by the majority of this house that if a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, that is one into which it was not empowered to inquire and so had no jurisdiction to determine. It s purported determination not being a determination within the meaning of the empowered legislation, was accordingly a nullity. In AG of the Bahamas v. Thomas DArcy Ryan [1980] AC 718, Applicants ordinary residents of Bahamas, gained Bahamian status and applied for citizenship. He in fact was interviewed but subsequently was not given reasons for why the grant of nationality was not made possible. There was an ouster clause in the statutory regulation. It was held that the ouster contained in s.16 of the Bahamas Nationality Act 1973, did not preclude the courts from re-examining a decision which was exercised in excess of jurisdiction, in that it was arrived at in breach of the principles of natural justice. It was further held that the Ministers decision would be reviewed because the appellant claimed that the Minister had acted in breach of the audi alterum partem principle of natural justice. Court accepted the Animinisic principle. AG v Thomas Ryan The respondent Ryan issued a summons against the AG for a declaration that on the true construction of the constitution he was entitled to be registered as a citizen of Bahamas. The minister responsible for granting nationality did not however render the reasons for refusing to grant such. The applicant argued that the Minister cannot rely on the ouster clause in s.16 of the Act if he acted on ground; since he did not give the respondent a hearing and there was thus a breach of natural justice. However, if he based his decision on the concluding words, and they are intra vires he can rely on the ouster clause. Lord Diplock: the respondent after 19 years
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living as an ordinary citizen obtained a Belonger certificate.

He then made an

application 8 years to be registered under the Bahamas nationality Act 1973. The Minister did not give reason for the refusal. The three requirements of Art. 5 of the constitution had been met. (1) Applicant must have possessed Bahamian status. (2) Must have been an ordinary resident in the Bahamas. (3) Must have made application in the prescribe manner to be registered as a citizen of the Bahamas. It was held as an applicant for registration as a citizen of the Bahamas under Art. 5 of the constitution, the respondent was entitled to a fair hearing in accordance with the principles of natural justice before his application was rejected by the Minister. To impose limitations/qualifications upon any of these entrenched rights, is not to be construed expansively so as to authorize it to deprive the individual of the substance of the right which prima facie is conferred upon him by the constitution, under the guise of imposing limitations/qualifications. Exceptions and qualifications must be spelt out

clearly in legislation, either primarily or subordinate; they may not be left to the discretion of the executive. It is contrary to the constitution to confer on the executive a discretion to allow the registration of the applicant notwithstanding that he has no legal right to demand it. Section 5 (4) does not permit parliament to make the right of persons with Bahamian status to be registered as citizens of Bahamas subject to the discretion of the executive branch of government. To leave to the Minister sole discretion to refuse registration to any applicant whose admission to citizenship would in his opinion not be conducive to the public good is null and therefore non justiciable given that such would make him the sold judge of what constitutes any other sufficient reason for refusing the application. By failing to let the respondent know about the case against him was a breach of natural justice. Unlike an appeal a review is concerned with the superior judicial authority limiting itself to re-examining the inferior tribunals conclusions of law as to the legal consequences of the facts as they have been found by the inferior tribunal. The anisminic case the supreme court in the exercise of it supervisory jurisdiction over inferior tribunals where there has been a decision made ultra vires can set aside
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such decision or declare it to be a nullity. A decision affecting the legal rights of an individual which is arrived at by a procedure which offends against principles of natural justice is outside the jurisdiction of the decision making authority. The ouster clause in section 1 of the Bahamas nationality Act does not prevent the court form inquiring into the validity of the ministers decision on the ground that it was made without jurisdiction and therefore ultra vires. The ouster clause was inconsistent with the constitution and therefore void. Minister thereafter obliged to reconsider the application for citizenship on grounds of natural justice. The Anisminic Case clearly demonstrates the great determination of the courts to uphold their long-standing policy of resisting attempts by Parliament to disarm them by enacting provisions which, it interpreted literally, would confer uncontrollable powers upon subordinate authorities. CONCLUSION The authorities have thus established that the courts will obey ouster clauses where an authority is acting within jurisdiction, and where the ouster clauses operates after allowing time for judicial review. It seems that, if ouster clauses are allowed to stand even in the face of illegalities, it would undermine the rule of law principle. For if ouster clauses are applied literally, it would mean that the courts will be denied jurisdiction to exercise supervisory control over government departments and other entities. The

courts would therefore be unable to correct and give redress for any ultra vires actions. Citizens would be denied access to the courts even in obvious cases of injustices. This could have the true intention of parliament. Parliaments true intentions are reflected in cases such as Anisminic Ltd. v. FCC which allows a balanced approach, in that ouster clauses are only upheld in relation to decisions made within the lawful jurisdiction of the body, entity or functionary in question; but they are not upheld with respect to actions or decisions made outside the jurisdiction. The courts attitude to COCs therefore seems ambiguous. Courts have sometimes taken a face value approach to COCs relating to the HOS upholding them as absolute while at other times they have adopted a forensic (also called modified face
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value) approach or an Anisminic approach. COCs relating to SCs are not so strictly adhered to. It is perhaps only those actions of the HOS done in consultation with another authority which remain absolutely non-justiciable and only because they are unlikely to infringe anyones fundamental rights or property rights. Fiadjoe submits that whether by Dr. Basus face value approach or the forensic approach in Anisminic, the courts have reserved to themselves a right to review in the exercise of their duty to uphold the rule of law. He submits that the correct approach should be for the courts to review all acts which offend the constitution regardless of any COC. Courts should decline to honour the finality of any administrative decision where the underlying action may be illegal or unjust. It has been noted that courts have never been eager to substitute their views for those of public authorities and have also been more willing to restrain themselves in cases involving highly contentious political matters. However, despite this, the law has so developed that there are few areas still outside the scope of judicial review either because they involve information not available to the courts, issues so complex they are inappropriate for judicial resolution, or issues within the exclusive constitutional preserve of government. It can be concluded in the words of Professor Wade that the harder draftsmen strive to devise judge-proof legislation, the more judges show determination and ingenuity in extending and refining grounds for judicial review. Legislation deliberately designed to cut down the powers of the courts tends, paradoxically, to lead to their expansion. Professor Peiris recommends an approach which affords lower tribunals greater leniency, which derives from assessment of a) the degree of the tribunals deviation, objectively considered, from its statutory function; and b) the subjective purpose and intention of the tribunal in exceeding the limits of its authority. It is suggested that Caribbean courts in determining how statutory ouster clauses ought to be treated should consider a) whether the actions of the functionary fall within the prescribed duties or are reasonably incidental to those duties; and b) the constitutionality of the functionarys actions, whether or not those actions are intra vires the statute which conferred the authority.
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GROUND FOR JUDICIAL REVIEW Lord Diplock in CCSU v Minister for the Civil Services has sought to rationalise the grounds for judicial review in three catergories: procedural impropriety, irrationality and illegality to resolve the overlapping among the remedies. However, it has been raised that a fourth catergory that been unconstitutionality should have been established. It is now permissible to frame a challenge to administrative action in terms of both the common law and the constitution. It must be pointed out that all the catergories of

judicial review overlap and that no single classification provides a total picture of isolationism. ULTRA VIRES Note that parliament through statute has set out twelve grounds that are in actuality subsets of the three categories laid down by Lord Diplock. The principal weapon in the judicial armoury for the control of State power has traditionally been the doctrine of ultra vires beyond ones power or authority. The various principles applied by the courts in the exercise of the power of judicial review have been specific application of this doctrine. law. Professor Wade calls ultra vires the central principle of administrative

It has been argued that judicial review has moved away from the questions of

jurisdiction or the ultra vires rule to a concern for the protection of individuals and for the control of power, rather than powers or vires. Thus, P rofessor Wades interpretation of the doctrine is viewed as a fairy tale. This new development in the law is seen as a movement towards a doctrine called fairness that questions the fairness of the authorities actions. The doctrine was

promulgated by the argument that the judges are fulfilling the duties of their constitutional position, acting in their own right independently of Parliament, adjusting the balance of forces in the constitution, and asserting their title to promote fairness and justice in government under the rule of law. This approach would grant the court a
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wider jurisdiction however, the doctrine is not a straight forward concept that would place administrative action in the four corners of a statute. Ultra vires still remains the cornerstone of judicial review because judicial review is concerned with defining the scope of State power and that most of its presumptions are to be viewed in the context of statutory interpretation. Today the courts have based the development of modern public law principally on the exercise of discretion and the maintenance of the

principles of good administration. Thus a decision or action of a functionary is said to be ultra vires when that functionary acts outside the ambit or scope of his authority. ILLEGALITY Illegality being one of the catergories laid down by Lord Diplock in the CCSU case establishes that the decision-maker/functionary must understand correctly the law that regulates his decision-making power and must give effect to it. Thus, he must act in the four corners of the statute as not to give rise to the doctrine of ultra vires. In

Liversidge v Anderson it was noted that once a functionary acted in good faith he would not need to disclose the basis for his decision and his actions were not justiciable in a court of law. E.g. emergency legislation, National Security etc. The principle was established in Padfield v. Min. Of Agriculture, Appellants, members of regional committee of Milk Marketing Board made a complaint to the Minister of Agriculture pursuant to the Agricultural Marketing Act asking that the complaint be referred to the committee established there under. The Minister declined to refer the matter to the committee because he thought that unsuitable and he had unfettered discretion. Held:PRINCIPLE: Where a statute conferring a discretion on a Minister to exercise a power did not expressly limit or define the extent of his discretion and did not require him to give reasons for declining to exercise the power, his discretion might nevertheless by limited to the extent that it must not be used so as to frustrate the objects of the statute which conferred it. Lord Reid: Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act if the Minister, by reason of his having misconstrued the Act of for any other reason, so uses his discretion as to thwart
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or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. Also illustrated in AG of St. Kitts & Nevis v. Reynolds, The plaintiff, a former police inspector of good character was a member of the opposition party in St. Kitts etc. In 1967, the Constitution came into force and s. 103 of the Constitution stated that existing laws were to be construed in such a way as to bring them into conformity with the constitution. By virtue of the Leeward Islands (Emergency Powers) Order 1959, which was an existing law, the Governor of the State had power during a period of emergency to make laws that appeared to him to be necessary from securing public safety, the defence of the state or the maintenance of public order. Under the Constitution, the 1959 order was to cease to have effect as part of the law of the state in September 1967. In May, 1967, the Governor declared a state of

emergency and made the Emergency Powers Regulations 1967 pursuant to the power conferred on him by the 1959 order. Under the 1967 regulations, a person could be detained without trial if the Governor was satisfied that the person had been involved in acts prejudicial to the public safety. The plaintiff was arrested and detained under a detention order signed by the Deputy Governor. No evidence was brought against the plaintiff in front of the tribunal dealing with persons detained. The plaintiff, on his

release, brought an action against the state claiming damages for false imprisonment and compensation under the Constitution for unlawful arrest and detention. The plaintiff proved his case and was awarded damages. On appeal, the West Indies Assoc. States CA held that the 1959 order was so out of conformity with the constitution that it was impossible to construe it in conformity with it as required by s.103 and therefore the 1967 regulations were invalid. The court increased the plaintiffs damages. The state appealed to the PC: Held: The power to arrest and detain contained in the order had to be modified,

adapted, qualified or excepted as required by s 103 so as to conform generally with the protection of fundamental rights and freedoms contained in the constitution and in
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particular with the power to arrest and detain only if it was reasonably justifiable to do so. The 1967 regulations made under the 1959 order were to be construed in conformity with the constitution, with the result that the words, if the Governor is satisfied that . . . it is necessary to exercise control over a person did not confer unrestricted power on the Governor but required him to be satisfied on reasonable grounds that it was reasonably justifiable and necessary to exercise control over the person before ordering him to be detained. On that construction, the 1967 regulations were therefore lawful and valid, but equally the detention of the plaintiff was invalid since no justification or ground for detaining him had been given to him or put forward at the inquiry by the tribunal. Per Lord Salmon: It is inconceivable that a law, which gave absolute power to arrest and detain without reasonable justification would be tolerated by a Constitution, one of the principal purposes of which is to protect fundamental rights and freedoms. Since there were no details of any reasonable ground on which the Governor had detained him and no other evidence of any such ground. As a result, on the facts there was an irresistible presumption that no reasonable grounds existed, so that the detention order was invlaid and the plaintiffs detention was unlawful. There are two limbs of the doctrine of ultra vires: Substantive ultra vires and Procedural ultra vires. SUBSTANTIVE ULTRA VIRES Substantive ultra vires occurs when a public authority does something which is not authorized by statute. Where a public authority has been granted powers, whether by the constitution, statute or some other instrument, it must not exceed the powers so granted. Such public authority will be taken to have exceeded such powers if it has decided to do an act that it does not have the legal capacity to do. Note sometimes, powers are left to be implied and here we invoke the reasonably incidental rule. This rule means that when a statute grants powers, an administrator is permitted to do all that is reasonably incidental to those powers.

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In Tappin v Lucas, The appellants son was shot by the respondent, who is a police man, during an incident in which her son and another person was alleged to have committed the offence of robbery with violence. The son died as a result of the gunshot wounds. A coroners inquest was held and the jurys verdict was that no one was criminally responsible for the death. The appellant then filed an information in which she alleged that the respondent had murdered her son. Upon the matter coming before a magistrate the DPP stated that he had discontinued the proceedings launched by the appellant by virtue of Art. 47 (1) (c) of the constitituion of Guyana. The magistrate then made an order of the discontinuance of the criminal proceedings and discharged the respondent. The appellant appealed against the order of the magistrate to the full Court of Appeal and then to the Court of Appeal. Issues: Whether the letter of the Director of Public Prosecutions to the Magistrate constituted a proper mode of exercising his powers of discontinuance of criminal proceedings under Art. 47 of the Constitution of Guyana; Whether it was not necessary first for the DPP to take over the proceedings himself before purporting to discontinue them. Held: That the submission to the magistrate of the letter signed by the Director of Public Prosecutions was sufficient to comply with the Constitution which empowers him to discontinue any criminal proceedings, and that he need not appear in person to do so; That he has the power to take over and discontinue criminal proceedings instituted by any person in authority and to discontinue such proceedings at any stage before judgment is delivered. Appeal dismissed. PRINCIPLE: Where the statute is

ambiguous or not fully comprehensive, the powers which it may seek to confer may of necessity have to be inferred or implied. In such a situation the reasonably incidental rule would be invoked so that where the statute grants powers an administrator is permitted to do all that is reasonably incidental to those powers. In Taylor v The Mayor Alderman and Citizens of the City of Bridgetown, Hanshell J had no difficulty in holding that the statutory right to create posts walk hand in hand with the right to abolish such post. In this case the plaintiff held the p ost of building
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inspector in the service of the Bridgetown City Council. On February 25, 1965, the Council decided to abolish the post with effect from June 30 1965. the P. was informed of this on March 1 and was paid his salary and allowances up to the end of June but not in respect of any subsequent period. He brought an action against the defendants claiming arrears of salary and allowances on the ground that the Council had no power to abolish his office, or in the alternative, that if the Council did have such power, it could only be exercised in good faith the P also claimed in the alternative, a declaration that he was entitled to pensionable emoluments. Issues:Whether the

Council had the power to abolish the P. post. Held: That the Council, like other employers, had the right at common law to abolish an office or a post and the imputation of malice not having been substantiated, the post of building inspector had been lawfully abolished. However, in the case of AG v Coconut Marketing Board it was held that a Board which had power to trade in coconut and coconut products had no incidental power to manufacture coconut products. Reasoning: In determining this the court looked at the exercise of any alleged power on behalf of a corporation of that kind to see whether it is expressly given by the statute or is necessarily implied in order to fulfill the powers. If this cannot be found then the company would not be able to exercise the alleged power. The court looked at the word marketing to define the primary function of the Board. PROCEDURAL ULTRA VIRES This occurs when a public authority fails to follow procedure laid down by the law. In instances where there is no set procedure the courts have taken the liberty to prescribe conditions of fair procedure in the decision making process. Procedural breaches have been classified into two categories: Mandatory breaches and Directory breaches. Mandatory breaches have the effect of vitiating a decision wile directory breaches do not. The problem of determining what constitutes a mandatory breach and what constitutes a directory breach remains unsettled in the courts. However two possible solutions have been suggested. That the courts be given the discretion to decide on the prevailing circumstances what constitutes an important breach and what does not. To
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find a nexus wherever possible, between the breach complained of and a constitutional requirement. The leading authority is the decision of the PC in Wang v commissioner of Inland Revenue. Lord Slynn had discouraged the use in this field of rigid legal classifications like mandatory and directory. He said that their Lordships consider that when a question like the present one arises an alleged failure to comply with a time provision it is simpler and better to avoid these two words mandatory and directory and to ask two questions. (1) Whether the legislature intended the person to comply with the time provision, whether a fixed time or a reasonable time. (2) If so, did the legislature intend that a failure to comply with such a time provision would deprive the decision maker of jurisdiction and render any decision which he purported to make null and void? The answer to the first question posed there must be that the framers of regulation 90, in this instance effectively the Commission itself must have intended those involved to comply with the relevant time provisions. The answer to the second question involves an examination of the role of regulation 90, and its individual parts, in the overall regulatory scheme. The purpose and policy of the time provisions and in the end a judgment as to whether those who promulgated the regulations intended that breach of a time limit should deprive the Commission of jurisdiction, thus rendering any later purported decision or determination null and void. At the outset their Lordships observe that it seems highly unlikely that the Commission can have intended that breaches of time limits at the investigation stage would inevitably prevent it from discharging its public function and duty of inquiring into and, if appropriate, prosecuting relevant indiscipline or misconduct. A self imposed fetter of such a kind on a discharge of an important public function would seem inimical to the whole purpose of the investigation and disciplinary regime. Although the time limits in regulation 90 are incidentally of benefit to that officer, their Lordships view them as designed primarily to expedite the investigation process for the benefit of the public interest in having matters of indiscipline or misconduct effectively investigated and dealt with. This makes it unlikely that breaches of a time limit was intended to lead to the frustration of that ultimate purpose.
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If a complaint is made about the non-fulfillment of a time limit the giving of relief will usually be discretionary. This discretionary element to which Lord Hailsham referred underlines the fact that problems arising from breach of time limits and other like procedural flaws are not generally susceptible of rigid classification or black and white a priori rules. With this in mind their Lordships note that in the present case the delays were in good faith, they were not lengthy and they were entirely understandable. The appellant suffered no material prejudice; no fair trial considerations were or could have been raised, and no fundamental human rights are in issue. Bearing in mind the

relevant aspects of regulation 90, its regulatory environment, the other relevant circumstances of the case and the lack of significant impact of the time defaults on the appellant. Their Lordships came to the clear view that the regulations cannot have been framed with the intention that breaches of the kind in issue would deprive the Commission of jurisdiction to act as it thought fit on the investigating officers report and thereby fulfil its public responsibilities. Charles v judicial and Legal Service Commission applied Wang. The case

concerns the effect of failures to observe time limits laid down by regulations dealing with discipline and misconduct in the public service. The issue was whether a fetter on the discharge of an important public function brought about by a failure to observe a number of time limits would be inimical to the whole purpose of the investigation and disciplinary regime which was under consideration in that case.

IMPROPER DELEGATION Improper delegation is a species of ultra vires. This is so because public authorities are required to act within their given powers. This means that they may not exercise The

powers which have been otherwise conferred on someone else specifically.

principle (delegates non potest delegare) means that power conferred on A must be exercised by A personally. It cannot be delegated to someone else. A number of exceptions have had to be crafted to the rule otherwise the machinery of government could not simply function properly. Sometimes, statute itself may confer the power of delegation.
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But, traditionally, a distinction has been drawn between judicial, legislative and administrative powers. (Anisminic) It was said then that judicial and legislative powers could not be delegated but that, depending upon the context, administrative powers could be delegated. The distinction as to what administrative power could be delegated seems to revolve around the question whether the power involved the exercise of an important discretion. While a functionary could delegate the power to undertake work preparatory to decision making, the final decision had to be made by the functionary so charged with the power. It is suggested that a better approach would be to leave that question to the courts. In their determination they are to be guided by all the

circumstances of the case, including the level of importance of the discretion to be exercised. Glasgow v. Cadogan (1931 37) LBRG, Facts: s. 22 (1) of the Employers and Servants Ordinance, Cap 261, provided, inter alia, that no contract of service shall be enforced under s. 21 unless the labourer who is to serve under it has been registered by a person appointed by the Governor in that behalf. The person so appointed by the Governor also delegated his powers to another. In holding that the person appointed by the Governor had no power to delegate his powers, the Chief Justice said: The evidence shows that James Winter was appointed by the Governor under this ordinance, and that he James Winter, took it upon himself to delegate these powers to his nephew, Alexander Winter. This delegation of powers by James Winter to his nephew was completely outside his powers, even though he says the Commissioner of Mines agreed to Alexander Winter his nephew acting for him. From the Ordinance it is quite clear that no one has the power to register unless he is directly appointed by the Governor in that behalf. In view of the unambiguous wording of the section, counsel for the respondent does not support the conviction on that section, and for the reasons already given the conviction must be quashed, and the fine, if paid, returned to the appellant. Ex. P Hill, states that if summons is requested, after the information after receipt and before it is laid it is the function of the justice to determine whether a summons should be issued and this is a judicial function that cannot be lawfully delegated. In King
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Emperor v Benoari, whether an Ordinance which provided that it shall come into force in any Province only if the Provincial Government, being satisfied of the existence of an emergency.declares it to be in force in the province amounted to a delega tion of legislative power? The PC held that the provisions of that subsection did not amount to a delegation of legislative power, but merely provided for the necessity of the local application of the ordinance being determined by the local administrative body. It was said that it was not delegated legislation at all. It was merely an example of the not uncommon legislative arrangement by which the local application of the provision of a statute is determined by the judgment of a local administrative body as to its necessity. Thus in the case of Re Sarran (1969) 14 WIR 361 the court held that, Where the Public Service Commission of Guyana has delegated to a Permanent Secretary the power to hold an enquiry into the conduct of a public officer, the Permanent Secretary may not delegate that power to another officer. And where a prima facie case of a violation of constitutional provisions has been made out, the writ of certiorari should issue even to a domestic tribunal. The case concerned Gerriah Sarran, a wardmaid employed by the Ministry of Health. She was charged with the offence of being under the influence of alcohol while on duty to such an extent that rendered her incapable of performing her duties to the prejudice of discipline and the proper admin istration of the service. She replied to the charge and received a letter written by the Assistant Secretary to the Ministry of Health to the effect that he was appointed by the Permanent Secretary to hold an Enquiry into the charge against her. She was later informed that she was formally suspended pending the outcome of the enquiry. The enquiry was held and she was told by the Permanent Secretary that the charges against her had been proven and as a result she was to be dismissed from the service. In the circumstances she applied to the High Court for a writ of certiorari to quash the order of the dismissal. The enquiry was not conducted in accordance with the provisions set out in Art. 96 of the constitution. That the said Assistant Secretary was by virtue of his executive position, sufficiently interested in the matter against her that he should not have been appointed governor of the enquiry.

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The Rules of Natural Justice and Legitimate Expectation - Natural justice involves the application of procedural requirements designed to achieve fairness in the decision making process. Eg. Fair hearing audi alteram partem rule; Rule against bias - nemo iudex causa rule Abuse of Discretion - Discretion conferred upon a public authority must be exercised reasonably and in accordance with law. Abuse of discretion translates into the exercise of a power not intended and as such the courts may control it by the ultra vires doctrine. Abuse of discretion may take several forms: IRRELEVANT OR IMMATERIAL CONSIDERATIONS Where a public functionary takes into account immaterial or irrelevant considerations in the decision making process, he steps outside of the four corners of the power conferred upon him and in so doing his decision may be deemed ultra vires. Where a statute expressly sets out what is a material consideration, the failure of an adjudicator or decision maker to take that matter into consideration would vitiate that decision. See: Marks v. The Minister of Home Affairs and Labour, The appellant, a consultant psychiatrist, had been born in England. He worked in Bermuda from 1971 to 1974 and in South Africa from 1974 to 1976. While in South Africa he married his wife, a South African. In 1976 he returned to Bermuda and was granted a work permit for one year. This was renewed, on the appellants application, each year up to the end of 1982. During this time the appellant built up a lucrative practice. In 1982 when he applied to renew his work permit the Chief Immigration Officer consulted the Bermuda Medical Council and the Bermuda Medical Society (the Minister of Home Affairs, to whom the Chief Immigration Officer was responsible, being required by section 61(4) of the Bermuda Immigration and Protection Act 1956 to consult with professional organisations regarding such applications). As a result of representations made to him, the Chief Immigration Officer renewed the appellants work permit for only six months; no further renewal was allowed; under section 61(6) of the Act, no reasons for the decision had to be given, and none were. The appellant suspected that the refusal to extend his work permit might have been influenced in part by professional jealousy; he
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also suspected that a conviction on a criminal charge (which had later been reversed on appeal) might have influenced the decision. The appellant applied to the court for orders of certiorari and mandamus. These were refused. On appeal, Held, allowing the appeal, that the appellant had a legitimate expectation that his work permit would be renewed by reason of the previous virtually automatic renewals; accordingly, he should have been advised of any factors which were likely to influence the decision not to renew his work permit and he should have been given an opportunity to make representations; the fact that the Minister was not required to give reasons for his decision did not affect his duty to act fairly in reaching that decision; as the factors adverse to the renewal of the work permit had not been disclosed to the appellant and he had not been given an opportunity to make representations the principle of fairness was absent from the decision which was accordingly a nullity. BETTER VIEW J.Astaphan & Co.Ltd. v Ag of Dominica, the managing Director of the appellant claimed that they had been importing flour form Trinidad and Tobago from the year 1985/1986 without the need to obtain a licence to do so. However, the goevenrment passed the supplies Control Act in 1980. In 1987, the Minister purporting to act under section 4 (1) (b) of the Act made orders which placed cereal flour of wheat on the negative list of import. As a result, the plaintiff was required to get an import licence, which was sometimes denied him, in order to import flour from T&T. The Government of Dominica did not enact the Treaty of the Organisation of Eastern Caribbean States. In his affidavit the Managing Director of the plaintiff said, that the reason for the refusal of his application for a licence was that flour must be sourced from within the OECS sub region and reliance was usually placed on Article 56 of the Treaty of Chaguramas. The court accepted that if the minister in exercising his discretion under S.4 of this Act were to take into consideration the resolutions of the Council of Ministers or the Treaty fo Chaguramas he would be taking into consideration irrelevant matters. C.O. Williams Construction Ltd. v AG of Barbados, a tender for a road construction contract. In 1986 the Ministry of Transport and Works, acting in accordance with the
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Financial Administration and Audit Act and Rules made thereunder, invited tenders for the execution of large scale words for highway improvement referred to as World Bank Road Maintenance Project, Improvements to Highway 2A-Phase I. CO Williams Co.Ltd. submitted a tender for the work, the only other tenderer being Rayside Asphalt Paving Ltd. Williams Constructions tender was less than $9 million, while Raysides was more than $10 million for the same work. In the event, the constract was awarded to

Rayside. Williams Construction instituted proceedings for judicial review, inter alia, on the grounds that, in deciding on the bid, the Cabinet of Barbados had allowed itself to be influenced by extraneous and irrelevant considerations which had no relevance to the tender. The primary evidence relied on by the appellant as indicating the reasons which motivated the Cabinet to accept RAysides tender in preference to the appellants was contained in the affidavit of a journalist, which gave a summary of a speech made in the House of Assembly by the appropriate minister outlining why the Government had decided to award the multi-million dollar contract to Rayside over the appellant. Even without seeing the verbatim transcript of the speech, the PC, while stating that it would be inappropriate at that stage for the court to comment in detail on the effect of the evidence, nevertheless boldly asserted that the advertisement was sufficient to sustain a prima facie case for impugning the cabinets decision. In other words, if those

averments were correct, then the cabinet would have been found to have violatied the material considerations rule. Padfield v. Min. of Agriculture, Food and Fisheries, Per Lord Denning M.R.: If it appears to the court that the Minister has been, or must have been, influenced by extraneous considerations which ought not to have influenced him - or, conversely, has failed, or must have failed, to take into account considerations which ought to have influenced him - the court has power to interfere. It can issue a mandamus to compel him to consider the complaint properly. That was laid down by two of my predecessors in this place: Lord Esher M.R. in Reg v Vestry of St. Pancras, said of a body who were entrusted with a discretion: "they must fairly consider the application and exercise their discretion on it fairly, and not take into account any reason for their decision which is not a legal one. If people who have to exercise a
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public duty by exercising their discretion take into account matters which the courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion." IMPROPER PURPOSE A statutory power must be exercised for the purpose for which it was intended. Thus if the proper purpose of the statute is not pursued, then the functionary would have acted ultra vires the statute. This was illustrated in Gard v Commissioners of Sewers for the City of London where a Commission acted in bad faith. The court held that the adjudication of the Commissioner was ultra vires. The commissioners had no power to adjudicate tha the possession of the whole of a piece of land was necessary for the purpose of improvements when they only intended to use a small part of it for that purpose. In Ex p. Westminster City Council, where the dominant motive of the local authority, which was to publish information about central government, as found to be unlawful because it sought to persuade the public rather than merely provide the public with the raw facts. The rationale for the rule that allows public authorities to undertake tasks that are reasonably incidental to the achievement of the specific purpose identified in the statute was illustrated in R (Stennet) v Manachester CC, The applicants were former mental patients who, having been compulsorily detained under the provisions of the mental Health Act 1983 and then discharged form hospital, received after-care services including accommodation form the respondent local social services authorities pursuant to section 117 of that Act. Section 117 of the Act sets out the people who are entitled to statutory aftercare under the same section. Section 117 (2) provides that it shall be the duty of the health authority and of the local social services authority to provide, in cooperation with relevant voluntary agencies, after-care services for any person to whom this section applies. The central question is whether section1 117 authorises and requires the provision of the after care services or whether it merely operates as a gateway section to trigger provisions under other statutory provisions. If the first prevails, it is common ground
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there is no right to charge for the after-care services because section117 itself contains no charging provision. On the other hand, if the second view is correct, the authorities may charge under other provisions even in cases covered by section 117. It si entirely proper that special provision should be made for them to receive after-care, and it would be surprising, rather than the reverse, if they were required to pay for what is essentially a health-related form of care and treatment. Instead section 117 is free standing. It imposes a duty on the authorities to provide the after-care services and to continue to do so until such time as the person concerned is no longer in of such services. That specific duty must be carried out in respect of each particular individual person to whom section 117 applies. In my view section 117 (2) is incapable of being read as a duty to secure the provision of such services under unnamed other enactments. If the argument of the authorities is accepted that there is a power to charge these patients, such a view of the law would not be testimony to our society attaching a high value to the need to care after the exceptionally vulnerable. If the purpose is not specified we see in Porter v Magill that the leader and deputy leader of a council set up a policy, which they were advised was unlawful, of disposing of council houses in order to achieve an increase in the likely numbers of conservative voters in certain key marginal wards. The legal principle is that powers conferred on a local authority may be exercised for the public purpose for which the powers were conferred and not otherwise. Such powers are exercised by or on the delegation of councilors. It is misconduct in a councilor to exercise or be party to the exercise of such powers otherwise than for the public purpose for which the powers were conferred. If the councilors misconduct themselves knowingly or recklessly it is regarded by the law as willful misconduct. If the willful misconduct of a councilor is found to have caused loss to a local authority the councilor is liable to make good such loss to the council. The powers conferred on a local authority may not lawfully be exercised to promote the electoral advantage of a political party. The court held first that councilors do not act improperly or unlawfully if, exercising public powers for a public purpose for which such powers were conferred, they hope that such exercise will earn the gratitude and support of the electorate and thus strengthen their electoral position.
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And secondly a public power is not exercised lawfully if it is exercised not for a public purpose for which the power was conferred but in order to promote the electoral advantage of a political party. The power at issue in the present case is section 32 of Housing Act 1985, which conferred power on local authorities to dispose of land held by them subject to conditions specified in the Act. Thus a local authority could dispose of its property, subject to the provisions of the act, to promote any public purpose for which such power was conferred, but could not lawfully do so for the purpose of promoting the electoral advantage fo any party represented on the council. Purpose refers to the intention of a statute. A statutory power must be exercised for the purpose for which it was intended. Accordingly, if the proper purpose of the statute is not served, then the functionary would have acted ultravires the statute. There seems to be two tests for determining improper purpose. Professor de Smith is credited with the view which holds that if an administrator does not substantially or materially fulfil the express purpose of the statute, then the resultant decision may be invalidated. Lord Denning is credited with the test which says that if the dominant purpose of the legislation is not served, then the resultant decision may be invalidated. There is no difference between the two test because under either test a functionarys decision would only be protected if he acted substantially within the basic purpose of the statute. Anything outside of that rubric may be considered by the courts to be improper and therefore ultra vires. Thus, in Ex.P World Development Movement, the statutory

provision under consideration in the case that empowered the Secretary of State to furnish assistance for the purpose of promoting the development of a country outside the UK was a matter for the courts to determine whether or not the Secretary of State conduct was or was not within the statutory purpose. The court found that there was no sound economic argument for the contemplated development and concluded on the evidence as a whole that, notwithstanding the Secretary of States evidence as to his subjective intention, his conduct was not within the statutory purpose and was unlawful. Accordingly, where, as here, the contemplated development is, on the evidence, so economically unsound that there is no economic argument in favour of the case, it is not, in my judgment, possible to draw any material distinction between questions of
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propriety and regularity on the one hand and questions of economy and efficiency of public expenditure on the other. FETTERING DISCRETION To fetter ones discretion is to abuse that discretion. The law expects that public

functionaries would approach the decision making process with an open mind. Fettering discretion may usually occur in two broad sets of circumstances: first, when one contracts away ones statutory powers; and second, when one resolves to apply general policy blindly. The basic principle is that a functionary must bring his discretion to bear on each case and consider the same on its merits. In doing so, he may have regard to undertakings which are compatible with the powers to be exercised. The Antigua case of Camacho and Sons v Customs Collector where by law the Customs Collector had the discretion to grant import licences, taking into account the general trade policy of the government. In the case of the present applicants, he accepted the instruction and direction of the Minister of Trade to refuse the grant of a licence. The COA affirming Louisy J, issued against the Customs Collector a mandamus to reconsider the application in accordance with law. As the court made clear, the Custom Collector had abdicated his responsibility and refused to exercise his judgment when he obeyed the dication of the minister. Guidelines usually assist in implementation of policy, but may sometimes be unlawful. In Ex. P BAPIO, under sections 1 (2)(4) and 3 (2) of the Immigration Act 1971 whereby the Secretary of State for the Home Department was required to regulate the entry into and stay in the UK of persons not having a right of abode by means of Rules laid before Parliament. The Immigration Rules were amended so that international medical

graduates could enter the UK to undergo up to four years of permit-free training on condition that they intended to leave on the expiry of their training. From 2002, it

became possible for international medical graduates who wished to settle in the UK to gain entry to undertake postgraduate medical training under the Highly skilled Migrant Programme. In this case, their leave of entry would be periodically renewed provided they remained able to support themselves, with eligibility for indefinite leave to remain arising after five years.
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Concern that the continued admittance of international medical graduates to training positions within the NHS would lead to domestic graduates being unable to obtain such positions led in 2006 to amendment of the Immigration Rules to limit permit-free

training to those international students who had graduated at a UK medical school. Since the Home Office did not make any corresponding changes to the Rules with regard to the Highly Skilled Migrant Programme, the Secretary of State for Health published guidance to the effect that NHS trusts should only offer training posts to international medical graduate if there were no suitable candidates in the resident labour market. The Secretary of State submitted that the guidance was given to NHS employers to influence their conduct in the employment. It did not purport to alter, nor did it in fact alter, the immigration status of anyone. The intended effect, of the guidance was, he submitted, clear: it was to subject those IMGs who had entered, or who would enter, under the HSMP to a new requirement, unexpressed in the Rules, that they should be employable as junior doctors only if they satisfied the resident labour market test (qualified by the period of their unexpired leave to remain). Satisfaction of the resident labour market test had always been a requirement of obtaining a work permit, but neither PFT nor the HSMP had included such a requirement. Access to the former route had been effectively blocked by the Effective access to the latter for many IMGs would be amendment to the Rules.

impeded by inability to meet the new test and consequent inability to obtain employment and so support themselves. Stanley Burnton J rejected the claimants challenge. The guidance did not affect private hospitals, he pointed out, so an IMG who qualified under the HSMP could obtain employment there. Sedley LJ in the CA took a different view. The guidance directly and intentionally affected immigration law and practice by imposing on the possibility of employment in the public sector a restriction beyond those contained in the Rules. Lord Bingham: I am satisfied that the arguments of the In other words, a new term,

claimants and the reasons of the COA are correct.

unwritten and formally unauthorized, was being silently introduced into their permissions.

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There was a further, less obvious but no less rea l, disadvantage to IMGs seeking to rely on the HSMP. A cardinal feature of that programme, as noted above, was the expectation of renewal if the conditions continued to be met. Thus the initial, or

renewed, period of leave was not to be regarded as finite for the economically active. There is, however, no suggection in the guidance that account would be taken of the prospect of renewal. Thus HSMP entrants would be subject to the resident labour market test even though, if appointed, they could ordinarily have expected their period of leave to be extended under the programme as formerly operated. These changes were not made in the way which the 1971 Act requires. EXCEPTIONS This is a usual tool which prevents the public authority from fettering its discretion. Ex.P Rogers, the claimant, a patient with primary breast cancer, was prescribed by her oncologist a drug which was licensed for the treatment of late stage breast cancer but not for the earlier stage from which she suffered. She came within the eligible group of patients for whom the drug was likely to be effective and to increase her life expectancy. She applied to the defendant primary care trust for her treatment to be funded by the National Health Service. It was the general policy of the trust to fund off licence drug treatment not approved by the NICE only where a patient had a special healthcare problem that presented an exceptional need for treatment having regard to the funds available. In the case of the drug in question the trust decided to fund off-licence

treatment in exceptional circumstances but without regard to cost. The claimant was denied funding because she was not considered to be an exceptional case. The thrust of the claimants case was that, in the particular circumstan ces of her case, the policy adopted by the PCT was irrational because there was no rational basis upon which it could properly provide funding for some women and not others on the basis of exceptional circumstances. It may be lawful for an authority to refuse funding save in undefined exceptional circumstances. It was indeed so held in Ex.A. In that case the respondents were transsexuals who wanted to undergo gender reassignment treatment. The claimant authority refused to fund such treatment save in the event of overriding clinical need or of exceptional circumstances, on the basis that it was low in the list of
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priorities for public funding. The essential question was whether the policy was rational; and, in deciding whether it is rational or not, the court must consider whether there are any relevant exceptional circumstances which could justify the PCT refusing treatment to one woman within the eligible group but granting it to another. While the policy is stated to be one of exceptionality, no persuasive grounds can be identified, at least in clinical terms, for treating one patient who fufils the clinical requirements for Herceptin treatment differently from others in that cohort. We should also emphasise that, as already indicated, the issue in this case is indeed whether the policy that the PCT adopted in relation to Herceptin was irrational. If it was rational, we cannot see that the refusal to fund the claimants treatment was irrational. The policy involves asking whether there are exceptional circumstances in the case of any particular patient. If that policy is lawful, we can see no basis for criticizing the decision to refuse treatment to the claimant. She is one of the eligible group and there is no basis for saying that her circumstances are exceptional by comparison with others in the group. All the clinical evidence is to the same effect. The PCT has not put any clinical or medical evidence before the court to suggest any such clinical distinction could be made. In these circumstances there is no rational basis for distinguishing between patients within the eligible group on the basis of exceptional clinical circumstances any more than on the basis of personal, let alone social, circumstances. In short, we accept Mr. Pannicks submission that once the PCt decided that it would fund Herceptin for some patients and that cost was irrelevant, the only reasonable approach was to focus on the patients clinical needs and fund patients within the eligible group who were properly presecribed Herceptin by their physician. This would not open the floodgates to those suffering from breast cancer because only comparatively few satisfy the criteria so as to qualify for the eligible group. For these reasons we have reached the conclusion that the policy of the PCT is irrational, unless it can properly be said that it is not necessary to identify individual characteristics which might justify distinguishing between one patient within the eligible group and another. The appellants have relied strongly on a well established principle of law, that if a person or public body is entrusted by the Legislature with certain powers and duties
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expressly or impliedly for public purposes, those persons or bodies cannot divest themselves of these powers and duties. They cannot enter into any contract or take any action incompatible with the due exercise of their powers or the discharge of their duties. There was an undertaking not to exercise discretion was illustrated in Ex.P Liverpool Taxi Fleet Operators Association, the committee chairman gave a public undertaking that the numbers would not be increased above 300 until proposed legislation in the form of a private Bill, which included provisions controlling private hire vehicles, had been enacted by Parliament and had come into force. committee resolved on an increase for 1972. But in November the sub-

It is said that a corporation cannot

contract itself out of its statutory duties. In a case that it was a well established principle of law, that if a person or public body is entrusted by the legislature with certain powers and duties expressly or impliedly for public purposes, those persons or bodies cannot divest themselves of these powers and duties. They cannot enter into any contract or take any action incompatible with the due exercise of their powers or the discharge of their duties. Lord Denning stated that principle does not mean that a corporation can give an undertaking and break it as they please. So long as the performance of the undertaking is compatible with their public duty, they must honour it. I should have thought that this undertaking was so compatible. At any rate they ought not to depart from it except after the most serious consideration and hearing what the other party has to say: and then only if they are satisfied that the overriding public interest requires it. The public interest may be better served by honouring their undertaking than by breaking it. This is just such a case. It is better to hold the corporation to their undertaking than to allow them to break it. Applying these principles, it seems to me that the corporation acted wrongly at their meetings in November and December 1971. In the first place, they took decisions without giving the owners association and opportu nity of being heard. In the second place, they broke their undertaking without any sufficient cause or excuse. The taxicab owners association come to this court for relief and I think we should give it to them. I would say that the trouble has arisen because the corporation was advised that
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this undertaking was not binding on them, whereas it certainly was binding unless overridden by some imperative public interest. SUBSTANTIVE REVIEW UNREASONABLENESS There is continuing controversy as to whether unreasonableness is an independent head of wrongdoing or whether it is merely an aspect of irrelevant considerations. In many ways, a decision which is unreasonable would be one in which the decision maker has indeed taken into account some irrelevant considerations. However, from the decisions of the courts, especially Lord Diplocks speech in CCSU,

unreasonableness (or irrationality) can now be said to be firmly established as an independent head of administrative wrongdoing. The Wednesbury principle established such a wide test that a decision was said to be unreasonable only when it was so absurd that no reasonable authority could have come to that conclusion That with respect gave an extremely wide latitude to a public functionary. J Jowell and A Lester persuasively argue in an article that the Wednesbury principle is unsatisfactory for several reasons and that Lord Diplocks ground of irrationality identifies a different way in which the substance of official decisions may be challenged by the courts by separating irrationality from illegality. The authors draw the conclusion that rationality now stands on its own feet as an independent ground of review and clears the way for the courts to develop general principles of substantive administrative law. In Mohammed v Moraine we see substantive review in a constitutional context. In this case the issue was whether the decision of the school not to permit the applicant to wear a dress conforming to the hijab was unlawful? There is no evidence that

conforming to the hijab will conduce to indiscipline or erode the sense of tradition or loyalty to the Holy name Covent Secondary School. There is no evidence that

conforming to the hijab will accentuate distinction between students from affluent homes and those who are not. The fact that the applicant may make an application for transfer to another school is an irrelevant consideration and so too is the fact that she is eligible to resit the common entrance examination. The respondents fear that others may
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apply for exemption is also extraneous matter. However, all these cases demonstrate that the limit of this power is reasonableness. Would reasonable tribunal seized of all the facts have reached the decision communicated to the applicant. NO. The principal and the bard of management of the Holy Name Convent School in arriving at their decision have not exercised their powers under the Education Act reasonably. Associated Periodical Picture Houses v. Wednesbury Corp., By s. 1, sub-s. 1, of the Sunday Entertainments Act, 1932, an authority having power in any area to grant licences for cinematograph performances under the Cinematograph Act, 1909, is given power to allow a licensed place to be open and used on Sundays, "subject to such conditions as the authority think fit to impose." When a local authority granted to the plaintiffs leave for Sunday performances subject to the condition that no children under fifteen years of age should be admitted to Sunday performances with or without an adult:Held, that the local authority had not acted unreasonably or ultra vires in

imposing the condition. In considering whether an authority having so unlimited a power has acted unreasonably, the court is only entitled to investigate the action of the authority with a view to seeing if it has taken into account any matters that ought not to be or disregarded matters that ought to be taken into account. The court cannot interfere as an appellate authority to override a decision of such an authority, but only as a judicial authority concerned to see whether it has contravened the law by acting in excess of its power. The courts must always, I think, remember this: first, we are dealing with not a judicial act, but an executive act; secondly, the conditions which, under the exercise of that executive act, may be imposed are in terms, so far as language goes, put within the discretion of the local authority without limitation. Thirdly, the statute provides no appeal from the decision of the local authority. What, then, is the power of the courts? They can only interfere with an act of executive authority if it be shown that the authority has contravened the law. It is for those who assert that the local authority has contravened the law to establish that proposition. On the face of it, a condition of the kind imposed in this case is perfectly
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lawful. It is not to be assumed prima facie that responsible bodies like the local authority in this case will exceed their powers; but the court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for that authority. It is only concerned with seeing whether or not the proposition is made good. When an executive discretion is entrusted by Parliament to a body such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the courts in a strictly limited class of case. As I have said, it must always be remembered that the court is not a court of appeal. When discretion of this kind is granted the law recognizes certain principles upon which that discretion must be exercised, but within the four corners of those principles the discretion, in my opinion, is an absolute one and cannot be questioned in any court of law. What then are those principles? They are well understood. They are principles which the court looks to in considering any question of discretion of this kind. The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely, if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters. There have been in the cases expressions used relating to the sort of things that authorities must not do, not merely in cases under the Cinematograph Act but, generally speaking, under other cases where the powers of local authorities came to be considered. I am not sure myself whether the permissible grounds of attack cannot be defined under a single head. It has been perhaps a little bit confusing to find a series of grounds set out. Bad faith, dishonesty - those of course, stand by themselves - unreasonableness, attention given to extraneous circumstances, disregard of public policy and things like that have all been referred to, according to
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the facts of individual cases, as being matters which are relevant to the question. If they cannot all be confined under one head, they at any rate, I think, overlap to a very great extent. For instance, we have heard in this case a great deal about the meaning of the word "unreasonable." It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v Poole Corporation gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another. In the present case, it is said by Mr Gallop that the authority acted unreasonably in imposing this condition. It appears to me quite clear that the matter dealt with by this condition was a matter which a reasonable authority would be justified in considering when they were making up their mind what condition should be attached to the grant of this licence. Nobody, at this time of day, could say that the well-being and the physical and moral health of children is not a matter which a local authority, in exercising their powers, can properly have in mind when those questions are germane to what they have to consider. Here Mr Gallop did not, I think, suggest that the council were directing their mind to a purely extraneous and irrelevant matter, but
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he based his argument on the word "unreasonable," which he treated as an independent ground for attacking the decision of the authority; but once it is conceded, as it must be conceded in this case, that the particular subject-matter dealt with by this condition was one which it was competent for the authority to consider, there, in my opinion, is an end of the case. Once that is granted, Mr Gallop is bound to say that the decision of the authority is wrong because it is unreasonable, and in saying that he is really saying that the ultimate arbiter of what is and is not reasonable is the court and not the local authority. It is just there, it seems to me, that the argument breaks down. It is clear that the local authority are entrusted by Parliament with the decision on a matter which the knowledge and experience of that authority can best be trusted to deal with. The subject-matter with which the condition deals is one relevant for its consideration. They have considered it and come to a decision upon it. It is true to say that , if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind. I think Mr Gallop in the end agreed that his proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really meant that it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether. If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy of this kind. Some courts might think that no children ought to be admitted on Sundays at all, some courts might think the reverse, and all over the country I have no doubt on a thing of that sort honest and sincere people hold different views. The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. It is the local authority that are set in that position and, provided they act, as they have acted, within the four corners of their jurisdiction, this court, in my opinion, cannot interfere.
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Charles v Jones, Kristi Charles sat the GSAT exam and received the top grade. As a result of being the top student, she would have clearly qualified for. It was alleged that the school had seen the examination paper just prior to the exams. A meeting was held with the member of the school board, who was asked to submit the name of the students who would have been involved in the examination fraud. She was

denied the Scotia Foundation scholarship. Cogent evidence must be made out in respect of examination fraud. It was only found out that a decision was made when there had been a report of examination fraud and called for a resit by the students. Hear say evidence was adduced and the Minister of Education though suspicious did not conduct the investigation properly. Where an examination body is examining a case of examination fraud and concludes that there the student was either the recipient and beneficiary, the student must be given a right to be heard in accordance with principles of natural justice. Alleging that someone has participated in a fraud, very cogent evidence is required to make a change much less a conclusion on the matter. For the Wednesbury unreasonableness, the judges expect the test to perform

miracles. The test gives more leverage to the decision maker. The standard of proving a case against the decision maker is a higher one. It cannot be contended today that because a decision hasnt reach the standard of irrationality in Wednesbury test in order to amount to irrationality. A reasonable decision maker will not be irrational. Even where the decision is so absurd, it cannot be the case that a reasonable public authority would make a decision in defiance of logic. A decision maker must have facts upon which to base his decision. Here, there was no

reasonable or factual basis for the school to make the decision that the student had to resit because of exam frauds. The Minister of Education did not engage in proper investigation of the matter. There was no attempt both prior or post its judgment, for the Minister to determine from principal what actually occurred. Increasingly, the courts are recognizing proportionality as an aspect of

unreasonableness. Lord Diplock made reference to proportionality in the CCSU case,


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but declined to expand on it. It is agrued that proportionality invites review of the merits of public decisions on the basis of a standard which is considerably lower than that of Wednesbury reasonableness. That would involve the courts in a process of policy evaluation which goes far beyond their allotted constitutional role. In Defreitas v PS of Ministry of Agriculture, the applicant, who was a civil servant, participated in peaceful demonstrations against government corruption. The PS in which the applicant worked claimed that the applicant had acted in breach of section 10 (2)(a) of the Civil Service Act. The section forbade the communication by civil servants to any other person of any information or expressions of opinion on matters of national or international political controversy, and interdicted him from exercising the powers and functions of his office pending disciplinary proceedings against him. The applicant applied to the HC of Antigua for redress under section 18(1) of the constitution for alleged infringement of his constitution for alleged infringement of his constitutional rights under sections 12 & 13. These sections guaranteed freedom of expression and peaceful assembly and association while permitting restrictions on public officers that were reasonably required for the proper performance of their function except to the extent that the restrictions were shown not to be reasonably justifiable in a democratic society. The PC defined the questions generally to be asked in deciding whether a measure is proportionate: whether the legislative objective is sufficiently important to justify limiting a fundamental right. The measures designed to meet the legislative objective are rationally connected to it. The means used to impair the right or freedom are no more than is necessary to accomplish the objective. In Huang it was noted that this formulation has been widely cited and applied. However, counsel for the applicants suggested that the formulation was deficient in omitting reference to an overriding requirement which featured in the judgment of R v Oakes, from which this approach to proportionality derives. He continued, this feature is the need to balance the interests of society with those of individuals and groups. This is indeed an aspect which should never be overlooked or discounted. Proportionality must always involve the striking of a fair balance between the rights of the individual and the
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interests of the community which is inherent in the whole of the Convention.

The

severity and consequences of the interference will call for careful assessment at this stage. It was concluded that if as counsel suggest, insufficient attention has been paid to this requirement, the failure should be made good. In Ex.P Smith, by a statement made in 1994 the Ministry of Defence reaffirmed its policy that homosexuality was incompatible with service in the armed forces and that personnel known to be homosexual or engaging in homosexual activity would be administratively discharged. The applicants, who were serving members of the armed forces, were administratively discharged on the sole ground that they were of homosexual orientation. In Judicial Review proceedings applicants challenged the

decision to discharge and the policy on which it was based, on the grounds that they were irrational and contrary to article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The court accepted a submission by

Pannick QC as to the correct test. The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial is the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above. This has come to be known as Strict Scruntiny. The court concluded that the existing policy cannot in my judgment be stigmatized as irrational at the time when these applicants were discharged. It was supported by both Houses of parliament and by those to whom the ministry properly looked for professional advice. There was, to my knowledge, no evidence before the ministry which plainly invalidated that advice. Changes made by other countries were in some cases very recent. The Australian, New Zealand and Canadian codes had been adopted too recently to yield much valuable experience. The ministry did not have the opportunity to consider the full range of arguments developed before us. Major policy
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changes should be the product of mature reflection, not instant reaction. The threshold of irrationality is a high one. It was not crossed in this case. Laws LJ in Ex. P Begbie had this to say Fairness and reasonableness (and their contraries) are objective concepts; otherwise there would be no public law, or if there were it would be palm tree justice. But each is a spectrum, not a single point, and they shade into one another. It is now well established that the Wednesbury principle itself constitutes a sliding scale of review, more or less intrusive according to the nature and gravity of what is at stake: see for example in the field of human rights, the observation in Ex. P Smith. In R v Secretary of State noted that the approach under the

Convention and the basic Wednesbury rule are by no means hermetically sealed the one from the other. And that, there is rather, what may be called a sliding scale of review; the graver the impact of the decision in question upon the individual affected by it, the more substantial the justification that will be required. In Ex. P A noted that what is important to note is that when a fundamental right such as the right to life is engaged, the options available to the reasonable decision-maker are curtailed because it is unreasonable to reach a decision which contravenes or could contravene human rights unless there are sufficient countervailing considerations. Even the broadest discretion is constrained by the need for there to be justification for interference with human rights. The courts will anxiously scrutinize the strength of the countervailing circumstances and the degree of interference with the human right involved.

R (SB) v Governors of Denbigh High School, She sought judicial review of the decision of the defendants, the school governors, not to admit her to school wearing a jilbab. And claimed declarations that her exclusion was unlawful because: her right to manifest her religion under article 9 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms was being limited, and that her right to education to under article 2 of the First Protocol to the Convention had been violated. The school authorities had statutory authority to lay down rules on uniform, and those rules were
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very clearly communicated to those affected by them. It was suggested that the rules were not made for the legitimate purpose of protecting the rights and freedoms of others. So the issue is whether the rules and the schools insistence on them were in all the circumstances proportionate. This raises an important procedural question on the courts approach to proportionality and, depending on the answer to that, a question of substance. The HOL stated that it was clear that the courts approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The inadequancy of that approach was exposed in Smith and Grady v UK and the new approach required under the 1998 Act was described by Lord Steyn in R (Daly) v Secretary of State in terms which have never to my knowledge been questioned. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the COA in Ex. P Smith. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time. Proportionality must be judged objectively, by the court. The schools action cannot properly be conde mned as disproportionate, with an acknowledgement that on reconsideration the same action could very well be maintained and properly so. If, in such a case, it appears that such a body has conscientiously paid attention to all human rights considerations, no doubt a challengers task will be the harder. But what matters in any case is the practical outcome, not the quality of the decision-making process that led to it.

LEGITIMATE EXPECTATIONS The principle of legitimate expectation is now seen as the third limb of Natural Justice. The difference between Natural Justice and Legitimate Expectations is that Natural
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Justice takes its validity from rights and Legitimate Expectations takes its validity from representation. Legitimate Expectations have been described as one that

concerns the relationship between public administration and the individual during the course of dealings between the parties. It seeks to resolve the basic conflict between the desire to protect individuals confidence in expectations raised by administrative conduct and the need for administrators to pursue changing policy objectives. Thus, the principle therefore concerns the degree to which an individuals expectations may be safeguarded in the face of a change of policy which tends to undermine them. Hence the role of the administrative court is to determine the extent to which the individuals expectation can be accommodated within changing policy objectives. In the CCSU case, the HOL rejected the unions allegation that in failing to consult before such variations were effected, the minister had been in breach of her duty to act fairly. This was rejected on the grounds that on the facts, interests of national security outweighed those of fairness. However, they unanimously agreed that, apart from

considerations of national security, the consistent practice of consultation was such as to create a legitimate expectation that the unions would be consulted. The key concept of Lord Diplocks concept of legitimate expectation in CCSU case is that it focuses upon the conduct of the decision-maker. It is the expectation created by his conduct, which creates the legitimate expectation which in turn provides the justification for judicial intervention. The case indicates that the doctrine of Legitimate Expectations can be broken down into a number of component parts. In this case indicates firstly, that the doctrine only

applies where the aggrieved citizen has no right to whatever he may be seeking. Secondly it establishes that the expectation must be legitimate and Lord Diplock notes that mere reasonable expectation will not give rise to judicial review. Thus, legitimate expectations will be grounds for judicial review when the applicant is deprived of some benefit which was an expressed promise or is an existing practice by public authority. Thus, Legitimate Expectation from the English view is when a person has an
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expectation of receiving or continuing to enjoy a benefit, to which he has no right in private law, due to express assurances from the granting authority or from the past practice of the granting authority in their course of dealings, the courts will enforce this expectation as a matter of public law. It is the non-rights established in the CCSU case that have awoken the conscious of fairness in the concept of Legitimate Expectation in recognizing that there are some interest other than legal rights that deserve the protection of the law. The concept of Legitimate Expectation was invoked by Lord Denning in Schmidt v SOS for Home Affairs to extend the circumstances in which an individual could claim a right to be heard. This case also makes the distinction of the two limbs of Legitimate

Expectations that is procedural and substantial. In this case, American students of scientology temporarily resident in the UK applied to have their stay extended. The extension was refused because the government had formed the view that scientology was objectionable and that its growth in the UK should be curbed. The applicants argued that the Home Secretarys decision not to consider the applications was unlawful and void. That raised the question whether the duty to act fairly had imposed on the government the added duty to be flexible in its policies. Lord Denning thus, laid down the principle, after acknowledging that the applicants had no legal right to protect upon the expiry of their permit, he clearly recognized an interest which was protected by the duty to act fairly during the validity of that permit. Thus, it all depends on whether he has some right or interest or, some legitimate expectation of which it would not be fair to deprive him without heating what he has to say. (distinction between procedural and substantive) SOURCE OF EXPECTATION It can be argued that the general public always has a Legitimate Expectation that any and every policy pursued by persons acting in an official capacity is intra vires and not ultra vires and that there is perhaps a universally implied promise to do so I the absence of any express promise. The claimant then has to prove that their legitimate

expectation was frustrated by that authority acting ultra vires. In Preston v Inland
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Revenue, the Inland Revenue informed the taxpayer that he did not intend to raise any further inquires on his tax affairs if the taxpayer withdrew certain claims for interest relief and capital loss. The taxpayer withdrew the claims and paid capital gains tax on a transaction. The Inland Revenue Commission then gave the taxpayer formal

notification on the basis that the taxpayer had received an advantage of a kind from the transaction. In the court of first instance the judge held that the commissioners had

acted unlawfully. However in the COA the appeal was allowed because the taxpayer failed to show that the Inland Revenue Commission had failed to discharge their statutory duty towards him or that they had abused their powers or acted ultra vires. Lord Scarman in an analysis of the statutory provision that governed the Inland Revenue Commission powers noted that the statute clearly establishes a complex of duties and discretionary powers imposed and conferred in the interest of good management upon those whose duty it is to collect the income tax. He did not accept that the principle of fairness in dealing with the affairs of taxpayers is a mere matter of desirable policy or moral obligation. He made it clear that the principle of fairness has an important place in the law of judicial review and that in an appropriate case it is a ground upon which the court can intervene to quash a decision made by a public officer or authority in purported exercise of a power conferred by law. (Boyce) He noted that the Inland Revenue Commission was not immune from judicial review. However the taxpayer must show either a failure to discharge their statutory duty to him or that they have abused their powers or acted ultra vires. His third proposition was that unfairness in the purported exercise of a power can be such that it is an abuse or excess of power. Hence, judicial review is available only as a remedy for conduct of a public officer or authority which is ultra vires or unlawful, but not for acts done lawfully in the exercise of an administrative discretion which are complained of only as being unfair or unwise. His fourth proposition is that a remedy by way of judicial review is not to be made available where an alternative remedy exists because judicial review is a collateral challenge (legitimate expectation as an equitable application) and not an appeal. If these propositions are related to the threefold test of
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illegality, irrationality and procedural improperity one sees that (LE previous policy) applies to irrationality and illegality and (LE consultation & promise) applies to procedural impropriety by reference to fairness. Note that illegality and irrationality

constitute abuse of power where there is no legitimate expectation and on the other hand frustration of legitimate expectation can only amount to abuse of power so as to make policy decisions ultra vires in cases of procedural impropriety because only in such cases is fairness the relevant factor. Thus the principle as summed up by Lord Woolf is that the fact that the court will only give effect to a legitimate expectation within the statutory context in which it has arisen should avoid jeopardizing the important principle that the executives policy-making powers should not be trammeled by the courts. Policy being for the public authority alone, both it and the reasons for adopting or changing it will be accepted by the courts as part of the factual data. In other words, as not ordinarily open to judicial review. The courts task is then limited to asking

whether the application of the policy to an individual who has been led to expect something different is a just exercise of power. In many cases the authority will already have considered this but it is for the court to say whether the consequent frustration of the individuals expectation is so unfair as to be a misuse of the authoritys power. Also in Ex p Unilever, established what would amount to an implied representation. In this case the Inland Revenue Commission appealed against a decision that Unilever had made the necessary claims relating to corporation tax within the two year period specified. Since the late 1960s the Inland Revenue Commission and Unilever had used an agreed procedure and schedule for the provisional and final assessment of company profits. Unilever argued that the Inland Revenue had abused their power and that their decision not to exercise discretion in Unilevers favour was so unreasonable as to satisfy the public law test or irrationality. The decision of the Inland Revenue Commission not to exercise discretion in favour of Unilever to allow late claims was irrational.
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It is a well established principle of administrative law that a public body cannot fetter its future executive action by contract or estoppel. Moreover, it is clear that no person can make a claim arising out of the frustration of his expectations which, results from a change of policy adopted by a public body. Such expectations, although they may have been reasonably held, do not constitute legitimate expectations so as to attract the safeguards of judicial review principles. In Re Findlay, it was stated that given the substance and purpose of the legislative provisions governing parole, the most that a convicted prisoner can legitimately expect is that his case will be examined individually in the light of whatever policy the SOS sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute. Any other view would entail the conclusion that the unfettered discretion conferred by the statute upon the minister can in some cases be restricted so as to hamper, or even to prevent changes of policy. In Ex p Khan, The applicant, a Pakistani citizen by birth, was settled in England. They wanted to adopt his brothers child, who was living in Pakistan. Before applying for entry clearance for the child, the applicant obtained a Home Office circular letter which stated that, although there was no provision in the immigration rules for bringing a child to the UK for adoption, the Home Secretary in the exercise of his discretion might exceptionally allow the child to be brought into the UK if the intention to adopt under UK law was genuine, the childs welfare was assured, the court was likely to grant an adoption order, and one of the intending adopters was domiciled in the UK. The application was refused on the ground, inter alia, that the SOS was not satisfied that serious and compelling family or other considerations make exclusion of the child from the UK undesirable. The applicant sought judicial review of the refusal contending that by virtue of the terms of the Home Office letter, he had a legitimate expectation that the procedures set out in the letter would be followed and that such legitimate expectation gave him sufficient interest to challenge the admitted failure of the SOS to observe such proceedings:

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Held:

allowing the appeal, that the Secretary of State had a duty to exercise his

common law discretion fairly, but in reaching his decision on a ground not included in the specified criteria, the Secretary of State acted unfairly and in disregard of the applicants legitimate expectations; and that accordingly, the refusal of entry clearance would be quashed. Where a member of the public affected by a decision of a public authority had a legitimate expectation based on a statement or undertaking by the authority that it would apply certain criteria or follow certain procedures in making its decision, the authority was under a duty to follow those criteria or procedure in reaching its decision, provided that the statement or undertaking did not conflict with the authoritys statutory duty. Accordingly, since a recipient of the Home Office circular, such as the applicant, would have a reasonable expectation that the criteria and procedures there set out would be followed, and since those criteria and procedures in effect constituted rules made by the Secretary of State for deciding applications for entry, the Secretary of State could only apply different criteria and procedures if he first gave the recipient of the circular a full opportunity of making representations why in his particular case criteria and procedures different from those set ought in the circular ought not to be followed. In the circumstances, the Secretary of State had acted unfairly and unreasonably in deciding the applicants application for entry clearance for the child by applying different criteria from those set out in the circular. This case establishes that there can be substantive legitimate expectation that is an expectation capable of giving rise to an entitlement to a substantive benefit that the claimant asserts cannot be denied to him, and not merely to be consulted or heard. Public bodies in not stepping outside the four corners of the statute have an overriding obligation to exercise their powers in the public interest, but an important element in determing where the public interest lies is the fact that undertakings or assurances should in general be honoured. In this way, the courts have adopted principles, which enable them to balance considerations of fairness with wider aspects of the public interest. Thus, it use to be the view that the doctrine in practice was procedural and only confers an expectation to be provided with an
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opportunity to be heard. It is an argument of whether there is a distinction between substantive and procedural legitimate expectation. Sedley Q C stated that a balance has to be struck because legitimacy is not an abosulte. It is a function of expectations induced by government and of policy considerations which militate against their fulfillment. In Ex p Ruddock, Taylor J concludes that yes there is a distinction and states that the doctrine of legitimate expectation in essence imposes a duty to act fairly. Whilst most of the cases are concerned with a right to be heard, I do not think the doctrine is so confined. The catergories of unreasonableness were not closed and an unfair action would seldom be a reasonable one. In Ex P Coughlan, although the circumstances did not create an estoppel the Secretary of State had misdirected himself according to his own criteria and had acted unreasonably. The health authority assured them Mardon House would be their home for life. In 1998, following public consultation, the health authority decided to close Mardon House and to transfer the long-term general nursing care of the applicant to the local authority. If a public body exercising a statutory function made a promise as to how it would behave in the future which induced a legitimate expectation of a benefit which was substantive, rather than merely procedural, to frustrate that expectation could be so unfair that it would amount to an abuse of power. The court had to determine whether there was sufficient

overriding interest to justify a departure from what had previously been promised; that in view of the importance of the promise to the applicant the fact that: it was limited to a few individuals; the consequences to the health authority of honouring it were likely to be financial only and the applicant had a legitimate expectation that the health authority would not resile from its promise unless there was an overreaching justification for doing so. In the circumstances, including the fact that the quality of the alternative accomodation to be offered to the applicant was not known, the closure decision was an unjustified breach of that promise which constituted unfairness amounting to an abuse of powers. LEGITIMACY OF EXPECTATION
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Where the assurance and the course of dealing to be carried out is ambiguous for the expectation to be a legitimate one. In Ex p MFK, approaches were made to the Inland Revenue by financial institutions proposing to issue bonds and those considering them as an investment, seeking assurances concerning the prospective tax treatment of the proposed bonds. The particularity of the proposals put to the revenue and the extent to which explicit replies were given varied widely. The IRC resolved that the taxation element involved would be assessed as income and not as a capital gain. Applicant applied for judicial review seeking, inter alia, a declaration that the decision and the assessments made pursuant thereto were unlawful being in abuse of power. For such assurances to be relied upon or to form the basis, in the event of breach, of a successful application for judicial review, they must have been given in response to full disclosure by the party seeking them of the clear terms of the specific transaction and of the use to be made of such a ruling. Such a ruling should be clear, unambiguous and devoid of relevant qualification. On the facts the assurance given did not amount to a general assurance to the Lloyds market as a whole as to future tax treatment of other issues on different terms and the revenue had not indicated that it would follow a certain course so as to render departure from it unfair. The issue as to whether authority is actual or ostensible was illustrated in Bloggs 61 Case, the claimants argued that police officers told him that if he were accepted into such a protected witness unit he would remain in I for the whole of his sentence. That scheme provided segregated accommodation and a very high level of personal security for prisoners who would have been at risk in mainstream prison conditions. However, the decision as to whether a prisoner should be in a protected witness unit lay with the Prison Service and was required to be reviewed annually. The claimant spent two months with police officers preparing a case against a particular drug trafficker who was reputed to be linked with contract killings. In 2001, on the recommendation of the police, the claimant was accepted into a protected witness unit. The CPS decided that it could not rely on the claimant as a witness, and as a result the suspected drug trafficker was not prosecuted. Consequently, the Prison Service
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reviewed the claimants status as a protected witness, and in January 200 decided that he would be removed from the scheme and returned to the general prison population. It was held that police had no actual or ostensible authority to bind the Prison Service to treat the claimant as a protected witness. The representations of the police had created no legitimate expectation. Even if the police had such authority, an expectation that the claimant would retain protected witness status for the whole of his sentence would not be a legitimate one. Since not even the Prison Service had the power to grant him such status for the duration of his sentence. A court would not give effect to legitimate expectation if it would require the public authority to act contrary to the terms of a statute. This was illustrated in Ex P Begbie, By section 2 of the Education Schools Act 1997, existing assisted pupils receiving primary education were to continue to be funded only until the end of the year in which the primary stage was completed, save where the Secretary of State decided against exercising this discretion so as to allow the applicant to be funded beyond the age of 11. The main opposition party, which was subsequently elected, had resolved to abolish the scheme but had given undertakings that children already holding places under the scheme would continue to receive funding. By her mother and next friend, the applicant sought an order of certiorari to quash the Secretary of States decision on the grounds that the undertakings given had created a legitimate expectation that he would exercise his discretion to allow the applicant to enjoy the benefit of her assisted place until the conclusion of her education at that school, so that his decision to the contrary was unfair and unreasonable. The judge dismissed the application. On the applicants appeal: Held: dismissing the appeal, that the courts would not give effect to a legitimate

expectation if it would require a public authority to act contrary to the terms of a statute and any requirement for the SOS to implement the Act of 1997 in favour of all children in the applicants position would be contrary to the statute having therein conferred on him a discretion to reach a decision on the facts of the individual case; that in any event, pre-election statements were not to be treated as giving rise to legal effect and, if made

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by a party in opposition, it is not recognised as arising from a public authority so as to fall within the ambit of judicial review.

Notes: Counsel for the applicant submitted that the rule that a public authority should not defeat a persons legitimate expectation is an aspect of the rule that it must act fairly and reasonably; the rule operates in the field of substantive as well as procedural rights; the categories of unfairness are not closed; that it is not necessary for a person to have changed his position as a result of such representations for an obligation to fulfil a legitimate expectation to subsist; and that the principle of good administration prima facie requires adherence by public authorities to their promises. Counsel also stated that the Secretary of State reneged on his promise thereby defeating the legitimate expectations of the applicant, which constituted an abuse of power. But, reliance on pre-election statements flounders on the fact that such statements were not made on behalf of a public authority. In CCSU, Lord Fraser of Tullybelton said of legitimate expectations which may be protected by judicial review as a matter of public law: legitimate, or reasonable expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue. An opposition spokesman or even the leader of the opposition does not speak on behalf of a public authority. In Ex P Bibi, the applicants and their families, having arrived in the UK as refugees, were accepted by the council as unintentionally homeless and in priority need. The council provided them with accommodation on a temporary basis and, in the erroneous belief that it had a duty to do so, promised to each of them legally secure accommodation within 18 months. Subsequently the HOL held that local housing

authorities were not obliged to secure permanent accommodation for homeless persons, and the Housing Act 1996 restricted the duty to accommodate homeless persons and provided that they should not, as such, be given priority in the allocation of permanent accommodation. The council continued to provide the applicants with temporary accommodation. The applicants sought judicial review of the councils failure
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to comply with its promise to provide them with legally secure permanent accommodation. It was stated that in all legitimate expectation cases, whether substantive or procedural, three practical questions arise. Firstly, what had the public authority whether by practice or by promise committed itself. Secondly, whether the authority has acted or proposes to act unlawfully in relation to its commitment. Thirdly, what the court should do. The court in Ex P. noted that reliance, though potentially relevant in most cases, is not essential. In the

judgment the significance of reliance and of consequent detriment is factual, not legal. English law recognizes that there may be circumstances where fairness and proportionality require that a public body should not be able to resile from a representation which has resulted in a legitimate expectation in an individual or group of individuals. Unfairness may arise as seen in Ex P Coughlan, as this kind of unfairness arises where there is no overriding interest which would justify the public body in resiling from its representation. The law does not allow the individual however, to retain the benefit which is the subject of the legitimate expectation, however strong, if creating or maintaining that benefit is beyond the power of the public body. In Rowland v

Environment Agency, Mr. Water was part of the original main stream of the River Thames. From time immemorial, a public right of navigation has existed over the river. The public right of navigation now exists by statute going back to the Thames Preservation Act 1885. Successive navigation authorites had no power to extinguish that right. A public right of navigation cannot be extinguished by prescription, even over a period exceeding 100 years. The respondents and their predecessors have acted for a period in excess of 100 years so as to give rise to the legitimate expectation on which Mrs. Rowland relies. But, because the navigation authorites had no power to extinguish the public right of navigation over Mr. Water, the law cannot give effect to Rowlands legitimate expectation. NOTE: This is unjust and illustrates a defect in the law. In Ventose view the just outcome of the proceedings should be that Mr. Water remain private however, present law cannot achieve this.

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SUBTANTIVE EXPECTATION There can be a substantive legitimate expectation that is an expectation capable of giving rise to an entitlement to a substantive benefit that the claimant asserts cannot be denied to him, and not merely to be consulted or heard. Ex P Richmond rejected that there was substantive legitimate expectation and accepted that Wednesbury unreasonableness provided a correct test. a decision to introduce new system of night flying restrictions at airports and maximum number of take-off and landing movements variable according to type of aircraft involved whether the decision by the Secretary of State to increase the number of night flights to and from certain airports which did not specify the maximum number allowed breaching the legitimate expectations of the applicant. The department thus gave fair notice at that time of the aims and limits of the new scheme which it proposed. It follows that Mr. Gordons complaint cannot be of a want of consultation, or a failure to accord a right to be heard. His case is that, notwithstanding the departments announcement of what it proposed, in the very context of a consultation exercise his clients had a legitimate expectation that the policy would not be shifted so as to procure only a cap of noise levels below those of 1988, and thus permit, potentially at any rate an actual increase of any opportunity which his clients enjoyed to complain about the proposal between January and July 1993. In large measure Mr. Gordons submissions were designed to persuade Laws J that the law as it has developed will encompass and enforce not only procedural, but also substantive, legitimate expectations. Laws J considered that the putative

distinction between procedural and substantive rights in this context has little, if any, utility; the question is always whether the discipline of fairness, imposed by the common law, ought to prevent the public authority respondent from acting as it proposes. Such a doctrine would impose an obvious and unacceptable fetter upon the power, and duty, of a responsible public authority to change its policy when it considered that that was required in fulfillment of its public responsibilities. In Laws J view the Secretary of State was plainly entitled in Wednesbury terms and Mr. Gordons submission can only be based on Wednesbury to take a measure of exposure
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to noise energy levels as his criterion for regulating aircraft noise at night. But if, as must be the case, the public authority in question is the judge of the issue whether the overriding public interest justifies a change in policy, then the submission means no more than that a reasonable public authority, having regard only to relevant considerations, will not alter its policy unless it concludes that the public will be better served by the change. However this is no more than to assert that a change in policy, like any discretionary decision by a public authority, must no transgress Wednesbury principles. That however, is elementary and carries Mr. Gordon nowhere. In Ex P Hamble the issue as to whether common law recognized substantive legitimate expectation was affirmed and accepted that the standard of review was essentially on of fairness in administration. In this case the Ministry of Agriculture Fisheries and Food declined the applicants request for a licence for its vessel to beam trawl for pressure stock in the North Sea because of changes in governmental policy prohibiting the aggregation of transferable licence entitlements by which method the applicant had anticipated securing the licence. The applicant applied for judicial review on the basis that the expectation asserted was of the grant of a licence and for that agrument to have succeeded it would, therefore, have been necessary to establish that the doctrine of legitimate expectation extended to the protection of not only procedural but also substantive benefits. Sedley J in this case rejected Ex P Richmond reasoning and endorsed the

propositions that there is no principled distinction between procedural and substantive expectations; that both are aspects of the same discipline of fairness in public administration; and that both may be accorded the legitimacy which deserves enforcement in the courts. In referring to Ex P. Ruddock, in which he and Laws J argued at the bar was precisely a case of legitimate expectation of a substantive benefit, namely that individuals not falling within the governments publicised criteria for telephone surveillance would not have their telephones tapped by security services. Taylor J held that the doctrine of legitimate expectation in essence imposes a duty to act fairly. Whilst most of the cases are concerned with a right to be heard, the doctrine
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is not so confined. Of course, a promise or undertaking given by a minister as to how he will proceed must not conflict with his statutory duty. The secretary of state cannot fetter his discretion. By declaring a policy, he does not preclude any possible need to change it. Taylor J founded on the speech of Lord Scarman in Findlay in which the possibility of a substantive legitimate expectation was recognised. It is difficult to see why it is any less unfair to frustrate a legitimate expectation that something will or will not be done by the decision-maker than it is to frustrate a legitimate expectation that the applicant will be listened to before the decision-maker decides whether to take a particular step. It has proved easier to establish a legitimate expectation that an

applicant will be listened to than that a particular outcome will be arrived at by the decision-maker. But the same principle of fairness governs both situations. One thing, which should be got out of the way at the start is the notion that legitimate expectation is another name for estoppel. It is precisely because public authorities have public duties to perform that they can no more be estopped from performing them than they can contract out of them. This is why the decision-makers knowledge or

ignorance of the extent of the reliance placed by the applicant upon the factors upon which the expectation is founded has no bearing upon the existence or legitimacy of the expectation. It is upon the practices or promises of the public authority that any such expectation will be built: whether it stands up depends not at all on how much the decision maker knew of the applicants reliance on the practice or promise. A minister cannot fetter a discretion given him under statute. Providing he acts within his statutory powers, rationally and fairly, he is entitled to change his policy. Where the expectation has been raised by a public promise made by government it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. But where the expectation is based n practice, the issue is more elusive. In balancing policy against expectation, fairness will presumably be as much an issue for the policy maker as far as the judge who reviews his or her decision. The judges role is not simply to ascertain whether or not the balancing exercise has been
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performed but to hold up the scales again and weigh considerations indistinguishable from those already weighed by the policy maker. The judge may, of course, reach a different conclusion but it is difficult to see how, in doing so he or she is doing anything other than second guessing the policy making ministers own view. It cannot be any less unfair to frustrate a legitimate expectation that something will or will not be done by the public authority than it is to frustrate a legitimate expectation that the applicant will be listened to before the public authority decides whether to take a particular step. Although the legitimate expectation of the applicant must be respected so that he must be heard it is not paramount and a balance must be arrived at. Thus, in this case fairness did not require the perceived need for a swift limitation of North Sea beam trawling for pressure stock to be sacrificed in favour of a class whose expectations, however reasonable and however genuine, might well have eventually subverted the policy. The means adopted bore a fair proportion to the end in view. Even though Sedley Js view was that the protection of a substantive legitimate expectation was as much in the interests of fairness as the need to uphold expectations of a procedural nature it has not been accepted because the courts focus is the decision making process to the exclusion of policy or interference with the substantive question of the merits. The notion that the court could undertake a balancing act to determine the legitimacy of an expectation was said to exceed the scope of judicial review. All that the court was required to do was to test an expectation against Wednesbury unreasonableness. Thus, it is the courts task to recognize the constitutional importance of ministerial freedom to formulate and to reformulate policy; but it is equally the courts duty to protect the interest of those individuals whose expectation of different treatment has a legitimacy which in fairness outtops the policy choice which threatens to frustrate it. Ex P Hagreaves overruled the dictum of Sedley J purporting to extend the doctrine of legitimate expectation to cover substantive expectation. In uncharacteristically strong language, Hirst LJ decried the notion of a balancing exercise, adding that Sedleys approach was heresy. On matters of substance as contrasted with procedure, he
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added, Wednesbury provides the correct test. Pill LJ understood Sedley J to have been making the claim to a broader power to judge the fairness of a decision of substance which was wrong in principle. Thus in this case the COA held that since the change of the prisoners home leave policy was not irrational, their expectation were not protected. The later decision in Ex P Coughlan faced the same issue and decided against the Wednesbury test when it held that the health authority was prevented from breaching its promise to the residents of a specially built home to the effect that it was their home for life, notwithstanding that the reasons offered by the health authority for closing the home were based on practical and financial considerations. The COA stated that the appropriate standard of review was not irrationality but whether there was a sufficient overriding interest to justify a depature from what has previously been promised. What is still the subject of some controversy is the courts role when a member of the public, as a result of a promise or other conduct, has a legitimate expectation that he will be treated in one way and the public body wishes to treat him or her in another way. Here the starting point has to be to ask what in the circumstances the member of the public could legitimately expect. There are at least three possible outcomes; a). The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks rights, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds. b). On the other hand the court may decide that the promise of practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see NG), in which case, the court will itself judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires. c). Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now
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establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy. The court having decided which of the categories is appropriate, the courts role in the case of the second and third categories is different from that in the first. In the case of the first, the court is restricted to reviewing the decision on conventional grounds. The test will be rationality and whether the public body has given proper weight to the implications of not fulfilling the promise. In the case of the second category the courts task is the conventional one of determining whether the decision was procedurally fair. In the case of the third, the court has when necessary to

determine whether there is a sufficient overriding interest to justify a departure from what has been previously promised. Most cases of an enforceable expectation of a substantive benefit (the third category) are likely in the nature of things to be cases where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract. We recognise that the courts role in relation to the third category is still controversial, but, as we hope to show, it is now clarified by authority. The facts of this case comes within the third category because of the importance of what was promised to Mrs. Coughlan; the fact that the promise was limited to a few individuals; and the fact that the consequences to the health authority of requiring it to honour its promise are likely to be financial only. There has never been any question that the propriety of a breach by a public authority of a legitimate expectation of the second category, of a procedural benefit typically a promise of being heard and consulted is a matter for full review by the court. The court has, in other words, to examine the relevant circumstances and to decide for itself whether what has happened is fair. But in relation to a legitimate expectation of a substantive benefit (such as a promise of a home for life) doubt has
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been cast upon whether the same standard of review applies. Instead it is suggested that the proper standard is the so-called wednesbury standard which applied to the generality of executive decisions. This touches the intrinsic quality of the decision, as opposed to the means by which it has been reached, only where the decision is irrational or immoral. The courts task in all these cases is not to impede executive activity but to reconcile its continuing need to initiate or respond to change with the legitimate interests or expectations of citizens or strangers who have relied, and have been justified in relying, on a current policy or an extant promise. The critical question is by what

standard the court is to resolve such conflicts. It is when one examines the implications for a case like the present of the proposition that so long as the decision-making process has been lawful, the courts only ground of intervention is the intrinsic rationality of the decision, that the problem becomes apparent. Fairness in such a situation, if it is to mean anything, must for the reasons we have considered include fairness of outcome. This in turn is why the doctrine of

legitimate expectation has emerged as a distinct application of the concept of abuse of power in relation to substantive as well as procedural benefits, representing a second approach to the same problem. Policy being (within the law) for the public authority alone, both it and the reasons for adopting or changing it will be accepted by the courts as part of the factual data in other words, as not ordinarily open to judicial review. The courts task is then limited to asking whether the application of the policy to an individual who has been led to expect something different is a just exercise of power. In many cases, the authority will already have considered this and made appropriate exceptions and as has happened in exp. Hamble Fisheries, or resolved to pay compensation where money alone will suffice. But where no such accommodation is made, it is for the court to say whether the consequent frustration of the individuals expectation is so unfair as to be a misuse of the authoritys power.
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Therefore, the decision to move Miss Coughlan against her will and in breach of the health authoritys own promise was in the circumstances unfair. It was unfair

because it frustrated her legitimate expectation of having a home for life in Mardon House. There was no overriding public interest, which justified it. In drawing the

balance of conflicting interests the court not only accept the policy change without demur, but will pay the closest attention to the assessment made by the public body itself. Here, however, the Health Authority failed to weigh the conflicting interests

correctly. Furthermore, the quality of the alternative accommodation and services to be offered Miss Coughlan is unknown. Absent such an offer of satisfactory

accommodation by the Health Authority, here there was unfairness amounting to an abuse of power by the Health Authority. STANDARD REVIEW In Ex P. Begbie, it was said that abuse of power has become, or is fast becoming, the root concept which governs conditions our general principles of public law. It may be said to be the rationale of the doctrines enshrined in Wednesbury and Padfield of illegality as a ground of challenge, of the courts insistence on procedural fairness. It informs all three catergories of legitimate expectation cases as they have been expounded by this court in Ex P Coughlan. The difficulty, and at once therefore the challenge, in translating this root concept or first principle into hard clear law is to be found in this question, to which the court addressed itself in the Coughlan case: where a breach of a legitimate expectation is established, how may the breach be justified to this court? In the first of the three catergories given in Ex P Coughlan, the test is limited to the Wednesbury principle. But in the third (where there is a legitimate expectation of a substantive benefit) the court must decide whether to fr ustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power: However the first category may also involve deprivation of a substantive benefit. What marks the true difference between the two? Fairness and reasonableness (and their contraries) are objective concepts; otherwise there would be no public law, or if there were it would be palm tree justice. However, each is a spectrum, not a single point, and
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they shade into one another. It is now well established that the Wednesbury principle itself constitutes a sliding scale of review, more or less intrusive according to the nature and gravity of what is at stake. As it seems to me the first and third catergories

explained in the Coughlan case are not hermetically sealed. The facts of the case, viewed always in their statutory context, will steer the court to a more or less intrusive quality of review. In some cases a change of tack by a public authority, though unfair from the applicants stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis, without themselves donning the garb of policy-maker, which they cannot wear. In other cases the act or omission complained of may take place on a much smaller stage, with far fewer players. The cases facts may be discrete and limited, having no

implications for an innominate class of persons. There may be no wide-ranging issues of general policy, or none with multi-layered effects, upon whose merits the court is asked to embark. The court may be able to envisage clearly and with sufficient certainty what the full consequences will be of any order it makes. In such a case the courts condemnation of what is done as an abuse of power, justifiable or rather falling to be relieved of its character as abusive only if an overriding public interest is shown of which the court is the judge, offers no offence to the claims of democratic power. There will of course be a multitude of cases falling within these extremes, or sharing the characteristics of one or other. The more the decision challenged lies in what may inelegantly be called the macro-political field, the less intrusive will be the courts supervision. More than this: in that field, true abuse of power is less likely to be found, since within it changes of policy, fuelled by broad conceptions of the public interest, may more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by an earlier policy.

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It may be that the question of mistake in relation to the abuse of power will need to be revisited in other fact situations, but I agree entirely with Peter Gibson LJ analysis of its materiality in the present case. It may be, too, as Laws LJ suggests, that the distinction drawn in Ex P Coughlan between the first and third categories of legitimate expectation deserves further examination. In Ex P Bibi, in all legitimate expectation cases whether substantive or procedural, three practical question arise. The first question is to what has the public authority, whether by practice or by promise, committed itself. The second is whether the

authority has acted or proposes to act unlawfully in relation to its commitment. The third is what the court should do. This formulation of the question is we think a more helpful way of approaching the problems in this type of case. The answer to the first is a question of analyzing the evidence it poses no jurisprudential problems. In other words, if the public body has done nothing and said nothing which can legitimately have generated the expectation that is advanced to the court, the case ends there. It seems likely that a representation made without lawful power will be in this class. Two

problems face a court in answering these questions. The first is to find one or more measuring rods by which it can be objectively determined whether a certain action or inaction is an abuse of power. The second is what order to make once an abuse of power has been discernedcan the court come to a substantive decision itself or should it send the matter back to the decision taker to decide afresh according to law? To a degree the answer to the second depends on the approach one takes to the first. The traditional view has been that the Wednesbury categories were exhaustive of what was an abuse of power. However, in Ex P Coughlan the court preferred to regard the Wednesbury catergoriesas the major instances of how public power may be misused. In Coughlans case the court followed Ex P Unilever in asking itself whether the reneging by an authority on its promise was so unfair as to amount to an abuse of power. It concluded that it was. However, without refinement, the question whether the reneging on a promise would be so unfair as to amount to an abuse of power is an uncertain guide. Where one is dealing with a promise made by an authority a major
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part of the problem is that it is often not adequate to look at the situation purely form the point view of the disappointed promise who comes to the court with a perfectly natural grievance. Sometimes many promises have been made to may different persons each of which has induced a reasonable expectation of a substantive benefit for that person but all of which promises cannot be fulfilled. This situation is not uncommon in central and local government. Decision takers promise and find themselves unable to deliver that which they have promised. Seen from the point of view of administrators focusing on the problem immediately before their eyes a promise seems reasonable or will at least reduce the need to worry further in the immediate future about the promise. But when they, or their superiors, focus on a wider background it appears that the making of the promise was unwise or that, in any event, its fulfillment seems too difficult. The court has two functions

assessing the legality of actions by administrators and, if it finds unlawfulness on the adminstrators part, deciding what relief it should give. It is in our judgment a mistake to isolate from the rest of administrative law cases those which turn on representations made by authorities. The same constitutional principles apply to the exercise by the court of each of these two functions. The court, even where it finds that the applicant has a legitimate expectation of some benefit, will not order the authority to honour its promise where to do so would be to assume the powers of the executive. Once the court has established such an abuse it may ask the decision taker to take the legitimate expectation properly into account in the decision making process. Only part of the relevant material upon consideration of which any decision must be made is before the court. Because of the need to bear in mind more than the interests of the individual before the court, relevant facts are always changing. While in some cases there can be only one lawful ultimate answer to the question whether the authority should honour its promise, at any rate in cases involving a legitimate expectation of a substantive benefit, this will not invariably be the case. In Nadarajah, the principle is not in my judgment supplied by the call to arms of abuse of power. Abuse of power is a name for any act of a public authority that is not legally
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justified. It is useful name, for it catches the moral impetus of the rule of law. I accept, of course, that there is no formula which tells you that. If there were, the law would be nothing but a checklist. Legal principle lies between the overarching rubric of abuse of power and the concrete imperatives of a rule-book. It may be as I ventured to put it in Begbie, the root concept which governs and conditions our general principles of public law However, it goes no distance to tell you, case by case, what is lawful and what is not. In Coughlan Lord Woolf said of legitimate expectation, the limits to its role hav e yet to be finally determined by the courts. Its application is still being developed on a case by case basis. I do not begin to suggest that what follows fulfils the task. However, although as I have said I would conclude the case in the Secretary of States favour on the arguments as they stand, I would venture to offer some suggestions (obiter) to see if we may move the laws development a little further down the road, not least so as to perceive, if we can, how legitimate expectation fits with other areas of English public law. The search for principle surely starts with the theme that is current through the legitimate expectation cases. It may be expressed thus, where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not fat to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. In my judgment this is a legal standard which, although not found in terms in the European Convention on Human Rights, takes its place alongside such rights as fair trial, and no punishment without law. That being so there is every reason to articulate the limits of this requirement to describe what may count as good reason to depart from it as we have come to articulate the limits of other constitutional principles overtly found in the European Convention.

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Accordingly a public bodys promise or practice as to future conduct may only be denied, and thus the standard I have expressed may only be departed from, in circumstances where to do so is the public bodys legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances. This approach makes no distinction Nor should it. The dichotomy

between procedural and substantive expectations.

between procedure and substance has nothing to say about the reach of the duty of good administration. Of course there will be cases where the public body in question justifiably concludes that its statutory duty requires it to override an expectation of substantive benefit which it has itself generated. So also there will be cases where a procedural benefit may justifiably be overridden. Otherwise the question in either case will be whether denial of the expectation is in the circumstances proportionate to a legitimate aim pursued. Proportionality will be judged, as it is generally to be judged, by the respective force of the competing interest arising in the case. Thus, where the representation relied on amounts to an unambiguous promise; where there is detrimental reliance; where the promise is made to an individual or specific group; these are instance where denial of the expectation is likely to be harder to justify as a proportionate measure. They are included in list of factors, all of which will be material, where they arise, to the assessment of proportionality. On the other hand where the government decision-maker is concerned to raise wide-ranging or macropolitical issues of policy, the expectations enforcement in the courts will encounter a steeper climb. All these considerations, whatever their direction, are pointers not rules. The balance between an individuals fair treatment in particular circumstances, and the vindication of other ends having a proper claim on the public interest (which is the essential dilemma posed by the law of legitimate expectation) is not precisely calculable, its measurement not exact. These cases have to be judged in the round. There is nothing original in my description of the operative principle as a requirement of
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good administration. The expression was used in this context as least as long ago as the Ng YUEN Shiu case It is in the interest of good administration that a public authority should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. My aim in outlining this approach has been to see if we can conform the shape of the law of legitimate expectations with that of other constitutional principles; and also to go some small distance in providing a synthesis, or at least a backdrop, within or against which the authorities in this area may be related to each other. In Ex P Murphy, in this case the doctrine of legitimate expectations to powerful critical analysis of the paradigm case of procedural expectation and substantive expectation and further creating a secondary case of procedural expectation. The decision also asddresses the unanswered questions left by the COA in Ex P Coughlan and

confirmed the role of proportionality in substantive legitimate expectation cases which was explored in Nadarajah. The case broadly surveys the key aspects relating to the creation of legitimate expectations in public law. Previous cases have usually been concerned with the test to be applied by the courts in determining the extent of protection for legitimate expectations, in particular, substantive legitimate expectations. Those cases have not however, dealth exhaustively with delineating the applicable principles relating to the creation of these expectations. In this case the applicant

claimed that tow decisions of the Secretary of State taken without consultation frustrated their legitimate expectation of consultation. The first decision was to withdraw a discretionary scheme and the second was substantially to reduce the level of legal fees paid to solicitors in connection with applications for compensation. Laws LJ in giving the leading judgment of the court noted that although legitimate expectation is now a well known public law headline its reach in practice is still being explored. He observed that currently the law only recognizes procedural legitimate expectations, and substantive legitimate expectations. In the paradigm case of procedural legitimate expectation the public authority provides an unequivocal assurance whether by means of an express promise or an established
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practice, that it will give notice or embark upon consultation before it changes an existing substantive policy. There are few if any conceptual difficulties with the

paradigm case of procedural legitimate expectation, leading Laws LJ to conclude that the law is clear enough. In the case of substantive legitimate expectation the court allows claims to enforce the continued enjoyment of the content the substance of an existing practice or policy, in the face of the decision-makers ambition to change or abolish it. Laws LJ identified the term secondary case of procedural expectation which has not been examined in previous case law and asks: what are the conditions under which a public decision-maker will be required, before effecting a change of policy, to afford potentially affected persons an opportunity to comment on the proposed change and the reasons for it where there has been no previous promise or practice of notice or consultation? He explains that this expectation is identical to the right afforded in the paradigm case of procedural legitimate expectation, where there has been a promise or practice by which just such an opportunity has been a promise namely the right actually enjoyed is the right to make representations in response to a change in policy by the public authority. Law LJ summarizes the place of legitimate expectations in publc law. First, the power of public authorities to change policy is constrained by the legal duty to be fair. Secondly, a change of policy which would otherwise be legally unexceptionable may be held unfair by reason of prior action, or inaction, by the authority. Paradigm case of procedural expectation where the authority has distinctly promised to consult those affected or potentially affected, then ordinarlily it must consult. (CCSSU) Substantive Expectation where the authority has distinctly promised to preserve existing policy for a specific person or group who would be substantially affected by the change, then ordinarily it must keep its promise. Secondary case of Procedural Expectation where without any promise the authority has established a policy distinctly and substantially affecting a specific
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person or group who in the circumstances was in reason entitled to rely on its continuance and did so, then ordinarily it must consult before effecting any change. Laws LJ concluded as in Ex P Coughlan that to do otherwise in any of the instances would be to act so unfairly as to perpetrate an abuse of power. The approach in Ex P. Murphy confirms the place of legitimate expectations in public law and accepts that the applicable test is whether to act contrary to the legitimate expectations is so unfair so as to amount to an abuse of power. The case focused on establishing the expectation itself, clarifying the expectional nature of legitimate expectations by indicating that the public authority must have distinctly promised either to consult or preserve an existing policy for those potentially affected or a specific person or group, or must have established a policy distinctly and substantially affecting a specific person or group who in the circumstances was in reason entitled to rely on its continuance and did so. Laws LJ clarified that these types of legitimate expectation are concerned with exceptional situations since public authorities enjoy wide discretions in the performance of their functions in the public interest, they have to decide the content and the pace of change and usually they must balance different indeed opposing interests across a wide spectrum. He reiterates the view in Nadarajah which grounds the doctrine in the

requirement of good administration and that any denial of the expectation must be proportionate to a legitimate aim pursued. Essentially legitimate expectation is

therefore an aspect of the duty placed on pubic authorities to act fairly and not abuse powers. In this case Laws LJ takes the courts one step cloaser to indentifying the boundaries of this evolving concept. Sedley LJ disagreed with Laws LJ view that a substantive expectation can prevent a change in policy and offered the view that the courts will not go so far but will in such circumstances ensure that the method by which the policy change was effected was fair. The two views are not far from each other and did not affect the appeal because

the two accepts that a public authority may override a substantive legitimate expectation if the requirements of proportionality are satisfied. Despite the opposing views and the
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HOLs delinquence in settling the scope of legitimate expectatio ns it is observed that Laws LJs approach has been used in recent HC cases. In a recent Barbados case of the CCJ acknowledged that procedural protection could not adequately remedy the unfairness occasioned by the decision makers breach of his promise or established practice. In Leacock v Ag of Barbados, Mr. Leacock sought a declaration to the effect that a decision and/or administrative act and advice and recommendation of the commissioner made on or about 11 march 2005 that Leacock not be granted study leave to the Legal Education Certificate at eh Hugh Wooding Law School is unreasonable, irregular, or an improper exercise of discretion. In addition, he sought an order of certiorari to quash the decision and administrative act and advice and recommendation. It was held that Leacock substantively expected the practice of being allowed to go to law school to continue and for him to obtain a benefit similar to that accorded to other police officers over the years. Mr. Leacock had a legitimate expectation that he would have been granted study leave to go to the Law School to read for his professional qualification as an attorney at law as had been the case with many others before him. He had no legally enforceable right to study leave but, by virtue of the practice, he had a reasonable expectation that he would have been granted leave. In other words, the practice induced a legitimate expectation of a substantive benefit which was disappointed by the commissioners adverse recommendation. The expectation d erived from a representation implied from the regular and established practice based upon the past actions of the office pursuing the LEC. I can find no overriding consideration on the evidence to justify a departure from what had been the previous practice. To resile from that practice now is a breach of Mr. Leacocks legitimate expectation .

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NATURAL JUSTICE THE RIGHT TO A FAIR HEARING The principles of Natural Justice represent nothing more than the imposition of certain procedural safeguards on a body or person whose decisions may affect the rights, interests and legitimate expectations of others thus, natural justice is based on fairness. Natural Justice applies to public authorities, clubs, associations, trade unions and professional associations. The twin pillars of natural justice were identified by Phillips JA in Bazie v Ag: the right to a fair hearing (audi alteram partem) and freedom from bias in an adjudicator (nemo judex in causa sua). Constitutional natural justice is

secured in caribbean constitutions where the provisions secure to the individual the protection of law when charged with a criminal offence as seen in Section 18 of the Barbados constitution. The section thus mandates a fair hearing within a reasonable time by an independent and impartial court established by law. Also, in other

constitutions such as T&T, parliament may not deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of
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his rights and obligations or deprive a person of the right to such procedural provisions as are necessary for the purpose of giving effect and protection to the fundamental rights and freedoms. The procedural safeguards guaranteed by the constitution are of a far higher standard that of the common law. A recent source of natural justice worth mention is that of statutory source of the Administration Act of Barbados. The principles of natural justice were unsettled and then Ridge v Baldwin it was stressed that, despite the great difficulty of classifying powers into judicial, quasi-judicial and administrative components, the right to be heard had to depend on the consequences of the decision to the individual rather than upon the nature of the power in question. In this case it was held that the committee was bound to observe the principles of natural justice in charging the chief constable by informing the appellant of the charges made against him and giving him an opportunity of being heard. They had done neither so their dismissal was unlawful. The legal requirement on the adjudicator is nothing more than a basic duty of fairness and the court must balance several interest such as those of the State, principles of good administration, speed and efficiency in decision making and the level of injustice suffered by the individual in having been denied the opportunity to present their case. There are no fixed rules or requirements, it all depends on the circumstances of the case. However, from the practice of the courts it is possibly to identify the ingredients of a fair hearing. In the context of criminal and disciplinary offences, the courts insist that adequate notice of a charge should be provided to a party. Fair or adequate notice depends on several factors such as the nature of the case, the type of hearing and the consequences flowing from the charge. Instant notice of a charge is inadequate as shown in

Annamunthodo v OWTU, and also represents the principle as per Lord Denning that a person cannot be tried on a charge which has not been notified to him, especially if that charge carried a heavier penalty than the original. In order that an individual may have a fair crack of the whip, it is important that they must have full particulars of that charge together with any relevant factual evidence. A failure to do so breaches the fair hearing doctrine.
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Such a case was Maharaj v Ag where the committal of the appellant to prison for contempt was quashed because the trial judge failed to make plain the particulars or the specific nature of the contempt. The HOL was satisfied that his failure to explain that the contempt with which he intended to charge the appellant was what the judge described in his written reasons as a vicious attack on the intergrity of the court vitiates the committal for contempt. Also a person cannot be tried on a charge on the which he has not been heard. This means that there must be a hearing on each charge as illustrated in Diggs-White v Dawkins. One of the ingredients of natural justice is that a party charged must be furnished with full particulars of that charge. It is submitted therefore, that it is now more accurate to regard the right as one to make representations (written) to the decision maker. In Katwaroo v Burroughs, the appellant applied to the Commissioner of Police for a licence under the Firearms Act. Subsequently was advised that his application had been granted and that a firearm users licence had been granted to him. The commissioner wrote to advise him that his firearm users licence had been cancelled and gave no reason. It was held that although the commissioner was given a wide and unfettered discretion the court applied the objective test. The court held that the commissioners failure to give reasons for the revocation constitute a breach of the rules of natural justice. It conferred a privilege on the licence holder to be afforded a hearing before such revocation and amounted to his written representation. A contrasting

decision was outlined in Naraynsigh v Commissioner of Police, where the appellant a holder of a firearm user licence had his licence revoked by the Commissioner of Police pursuant of Section 21 of the T&T Firearm Act 1970. The Commissioners decision was based on a search of the appellants home where a second firearm (unlicence) was found on his premises. Judicial review was sought by the appellant on the grounds that the COP decision was reached unfairly and without sufficient investigation. The claim failed and on appeal to the COA the appellant arguments were centered upon the fairness and adequancy of the process by which the decision was arrived at. The appeal was quashed.

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ANAYLSIS The question before the court was what fairness required in the present case? Where an Act of Parliament confers an administrative power there is a

presumption that it will be exercised in a manner which is fair in all the circumstances. The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal administrative system within which the decision is taken. Fairness will very often

require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. Since the person affected usually cannot make

worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer. The Act gave the COP a wide discretion and unfettered discretion according to Sub section (d) as he thinks fit. Unlike, Katwroo case the court did not take an objective test as it did not see it fit to trammel on the COP powers. The rules of fair hearing do not necessarily mandate that an oral hearing be required. However, it appears that the constitutions of some of the West Indian States insist on an oral public hearing in all proceedings for the determination of civil rights or obligations. Thus, the hearing must embrace the right to call witness, to cross-examine, and to request for an adjournment for good cause. In Ex. P Smith the claimant sought judicial review on the grounds that the decision to revoke his prison release was taken without holding an oral hearing even after his written representation. It was held that the board should be altogether readier to hold oral hearings if their determination is likely to turn upon the resolution of important issues of fact such as was the prisoner suitable for release. An individuals right to call witnesses was illustrated in R v Clarke where the trial judge failed to inform the appellant of his right. It was held that it is the
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constitutional right of every person who is charged with a criminal offence to be afforded such facilities as would enable him to obtain the attendance of witnesses for examination on his own behalf before the court. It a practice of natural justice in aiding a right to fair hearing that one is entitled to cross-examine. In Western Broadcasting Services v Seaga, A judge refused to hear the oral evidence of a defamation claim between two parties. There was a dispute as to

whether the parties had in fact reached an agreement with respondent claiming they had. The judge in the absence of the oral hearing held that the affidavits was enough for her to make her determination on the matter. The PC held that the judge acted ultra vires in declining to hear the oral evidence and was guilty of an abuse of power. They held that the procedure adopted by the judge was unfair and went outside the ambit of the judges case management. The PC also held that the COA was wrong in concluding that there was ample opportunity for the attorneys to cross examine and in upholding the trial judge decision. Thus in the absence of cross-examination the COA was in no better position than the judge to assess the credibility of the respective deponents. As said previously, natural justice mandate for the right to adjournment especially where refusal reasonably justified. In AG of Grenada v Gairy, the court

refused a fourth adjournment request by the appellant after being granted three adjournments. There is no general duty to give reasons for a decision, but there are classes of case where there is such a duty. (1) where the subject matter is an interest so highly regarded by the law that fairness requires that reasons, at least for particular decisions, be given as of right. (2) Where the decision appears deviatant. Here fairness may require reasons so that the recipient know whether the deviation is in the legal sense challengable or apparent. If the respondent fails to prove that there decision is fair then relief may take the form of an order of mandamus to give reasons or other appropriate relief as seen fit. HEFC case. The advantages of the provision of reasons have been often rehearsed. They relate to the decision making process, in strengthening that process, in the public confidence in
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it, and in the desirability of the disclosure of error where error exists. They relate also to the parties immediately affected by the decision, in enabling them to know the strengths and weakness of their respective cases, and to facilitate appeal where that course is appropriate. There is also dangers and disadvantages in a universal requirement for reasons. It may impose an undesirable legalism into areas where a high degree of informality is appropriate and add to delay and expense. The trend of the law has been towards an increased recognition of the duty upon decision-makers of many kinds to give reasons. This trend is consistent with current developments towards an increased openness in matters of government and administration. The trend is proceeding on a case by case basis and has not lost sight of the established position of the common law that there is no general duty, universally imposed on all decision-makers. It was affirmed in Ex.P Doody that the law does not at present recognize a general duty to give reasons for administrative decisions. But it is well established that there are exceptions where the giving of reasons will be required as a matter of fairness and openness. These may occur through the particular

circumstances of a particular case as was recognized in Ex. P Instutute of Dental Surgery, there may be classes of cases where the duty to give reasons there may be classes of cases where the duty to give reasons may exist in all cases of that class. Those classes may be defined by factors relating to the particular character or quality of the decisions, as where they appear aberrant, or to factors relating to the particular character or particular jurisdiction of a decision-making body, as where it is concerned with matters of special importance, such as personal liberty. There is certainly a strong argument for the view that what were once seen as exceptions to a rule may now be becoming examples of the norm, and the cases where reasons are not required may be taking on the appearance of expections. But the general rule has not been departed from and their Lordships do not consider that the present case provides an appropriate opportunity to explore the possibility of such a departure. Turning to the particular circumstances of Stefan v General Medical

Council their Lordships are persuaded that there was a duty at common law upon the
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committee in the present case to state the reasons for their decision. The decision was on which was open to appeal under the statute. Secondly, a consideration of the whole procedure and function of the committee prompts the conclusion that the procedures which it follows and the function which it performs are akin to those of a court where the giving of reasons would be expected. Thirdly, the issue was one of considerable importance for the practitioner. Fourthly, Dr. Stefan has repeatedly asked for an explanation of the committees view and for the diagnosis which they have reached of her condition. Fifthly, the only expert witness who had examined Dr. Stefan and appeared to give evidence before the committee, Dr. Adams, stated in his written report that she was now well able to control the expression of her attitudes to race and gender, which had been matter of earlier concern, and that the passage of time had reduced the intensity of her distress and anger. Sixthly, this was the first time that an indefinite suspension was decided upon. The depature from the periodic suspensions which had been imposed before was certainly a legitimate course under the amended legislation but, particularly in light of an apparently less serious condition, the selection of it called for an explanation. In a Caribbean approach in an extradition case, Rey v Government of Switerzland, the applicant was charged in Switerzland with commercial fraud, falsification of accounts and bankruptcy offences and he absconded to The Bahamas. Request for extradition made by the Government of Switerzland. Proceedings against the applicant commenced and he was arrested and remanded in custody. The magistrate committed the applicant to custody to await his extradition. His appeal and application for habeas corpus was refused. The magistrate was not satisfied in respect of one charge on the evidence placed before her. Counsel for the applicant submitted that the magistrates decision was unlawful in as much as she failed to give reasons on disputed issues of fact. They also acknowledge that there was no authority for the proposition that a magistrate seized with the duty to decide whether to commit an accused person to custody to await extradition is bound to give reasons for his or her decision. The legal position is that the law does not at present recognize a general duty to give reasons for
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an administrative decision and such a duty may in appropriate circumstances be implied. Ex.P Doody, in the present case the judicial nature of the magistrates function is a factor that generally speaking tends to support an implied duty to give reasons. The turning point of the case was that in the Bahamas a person committed to custody for extradition has under s. 11 of the Act has right to apply for habeas corpus to the Supreme Court with a further right to appeal to the COA if his application for habeas is refused. Thus in the circumstances the HOL were not prepared to hold that there was a general implied duty upon magistrates to give reasons in respect of all disputed issues of fact and law in extradition proceedings. They however entered a cautionary note: it was unnecessary in the present case to consider whether in the great diversity of cases which come before magistrates in extradition proceedings the principle of fairness may in particular circumstances require a magistrate to give reasons. It did not so require in this case. It was held that the magistrates failure to give reaso ns on disputed issues of fact was not unlawful. The common law does not recognize a right to legal representation. However, in the Caribbean, the constitutions do provide for the right to legal representation in criminal matters. In Thornhill v AG of T&T, after a shooting incident, the appellant was

arrested and taken to a police station. Several requests were made for him to be given the opportunity of communicating with his lawyer but these requests were initially refused. It was three days after his arrest and after an identity parade that the appellant was permitted to communicate with the lawyer. Subject to the provisions of Sections 3,4 and 5 of the T&T constitution, no law shall abrogate, abridge or infringe or authorize the abrogation, abridgement or infringement of any of the rights and freedoms hereinbefore recognized and declared and in particular no Act of parliament shall deprive a person who has been arrested or detained (ii) of the right to retain and instruct without delay a legal adviser of his own choice and to hold communication with him. It was held that section 2 (ii) of the constitution of 1962 secured the right of a detained person to access to a lawyer without delay, independently of any rights
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enjoyed under the law at the commencement of the construction. In Hinds v Ag of Barbados, the judge refused the application made by the applicant for a legal aid certificate and the trial proceeded without him being represented. He was convicted and sentenced to a term of imprisonment. The COA dismissed his appeal against conviction and held that the denial of legal representation at his trial had not infringed his constitutional rights. Although not every criminal defendant of insufficient means was entitled to legal aid, his right to a fair hearing guaranteed by section 18 (1) was not qualified by section 18 (2)(d) or section 18 (12) constitution. The right to be heard is not absolute. It may therefore be excluded for good reason. The CCSU case illustrates one set of in which the right to a fair hearing may be curtailed. Principal among these are national security considerations. Lord Fraser

explained the point well by saying, 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. In other words, there are some matters, of which national security is one, which are not amenable to the judicial process. Rees v Crane case also refers to a set of circumstances in which a fair hearing may be denied to an applicant. Among these may be the fact that the investigation is purely preliminary, that there will be a full chance adequately to deal with the complaints later, that the making of the inquiry without observing the right to fair hearing maxim is justified by urgency or administrative necessity, (Ex.P Pegasus Holdings) that no penalty or serious damage to reputation is inflicted by proceeding to the next stage without such preliminary notice and that the statutory scheme properly construed excludes such a right. Ex. P Pegasus the court held that while the rules of natural justice required that a person affected by an administrative action should have a reasonable opportunity of presenting his case, comparatively little was required in a situation of emergency where the safety of aircraft and passengers was concerned. In Bates v Lord Hailsham, it was held that considerations of natural justice and fairness did not affect legislative process whether primary or delegated. In the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general
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duty of fairness. The court held that the committees function under S56 was of a legislative and not administrative, executive or quasi-judicial nature. Consequently it was not bound by rules of natural justice or by any general duty of fairness to consult all bodies that would be affected by the order it made under the powers delegated to it by S.56. THE RULE AGAINST BIAS The right to a fair hearing would be a very hollow unless it were twinned with the requirement that the hearing should be before an unbiased decision maker. Every person has a bias of one form or the other based on their life experiences. Bias, is sufficient to disqualify a decision maker, therefore, has a narrower technical meaning than in ordinary parlance. The law on bias is not concerned with actual bias thus, there need not be any proof of bias just an apparent bias. Lord Hewarts famous dictum in Ex. P McCarthy said, It is not merely of some importance but it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done. threshold for bias. The issue arises as to what is the true test for bias. The HOL in R v Gough seemed to have finally settled the interchangeable use, confusion and uncertainty of application of the real likelihood of bias and the reasonable suspicion of bias tests. The leading The COA in the UK took the opportunity, which presented itself in Re Medicaments and Related Classess of Goods to consider the whole question of apparent bias and how its presence was to be tested. The adjustment of the test in R v Gough laid the basis for the final stage in the formulation of the objective test. The objective test was set out in Porter v Magill of whether the fair-minded decision of the House was delivered by Lord Goff, who shifted the focus of the courts scrutiny away from real likelihood and reasonable suspicion of bias to that of a real danger of bias test, emphasizing the possibility and not the probability of bias. The court also whittled away the need to ascertain the perceptions of the reasonable man and stressed
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However, this dictum has been seen to provide too long a

that the views of the court were founded upon the facts must be imputed to the reasonable man personified by the court. The real danger test has been applied in Commonwealth Caribbean, it has not been so applied in Canada, Australia and New Zealand, or in Guyana where the uncertainty which beset the pre-Gough situation in England still prevails. In Porter v Magil, the COA having examined the question

whether the real danger test might lead to a different result from that which the informed observer would reach on the same facts, concluded in Locabil that in overwhelming majority of cases the application of the two tests would lead to the same outcome. It was observed that the precise test to be applied when determining whether a decision should be set aside on account of bias had given rise to difficulty, reflected in judicial decisions that had appeared in conflict in R v Gough had not commanded universal approval. The alternative test had been thought to be more closely in line with Strasbourg jurisprudence which since 2 October 200 the English courts were required to take into account, the occasion should now be taken to review R v Gough to see whether the test it lays down is, indeed, in conflict with Strasbourg jurisprudence. It was suggested that they should now approve the modest adjustment of the test in R v Gough set out in that paragraph. It expresses in clear and simple language a test which is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances gives to a reasonable apprehension of bias. It removes any possible conflict with the test which is now applied in most Commonwealth countries and in Scotland. I would however delete form it the reference to a real danger. Those words no longer serve a useful purpose here, and they are not used in the jurisprudence of the Strasbourg court. The principle laid down in Porter v Magil is whether the fair-minded and informed observer, having considered the facts, would consider that there was a real possibility that the tribunal was biased. Lord Steyn said in Lawal v Northern Spirit Ltd, public perception of the possibility of unconscious bias is the key. The case of Meerabux v AG of Belize represents the latest successful impeachment of a judge in the Commonwealth Caribbean. The appellant, a former justice of the
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Supreme Court of Belize, was removed from office for misbehavior by the Governor General acting on the advice of the Belize Advisory Council. His case on appeal was that the decision of the Belize Advisory Council that he misbehaved while performing his duties as a judge, and its advice to the Governor General that he should be removed from office, were fundamentally flawed for two reasons. The first was that the person who presided over the proceedings in his capacity as the chairman of the BAC was also a member of the Bar Association of Belize by which the majority of the complaints of misbehavior had been made. It is said that he was

automatically disqualified from taking any part in these proceedings by reason of his membership of the Bar Association, or alternatively that a fair-minded he was biased. The second reason was that the hearing into the allegations of appellants right under S 6 (8) of the Constitution, as it required that the proceedings for the determination of the question whether he should be removed from office as a justice of the Supreme Court should be heard in public. In dismissing the appeal, the Privy Council relied on four grounds. These were as follows: (a) Where there was an allegation of bias on the part of a tribunal (in this case, the Belize Advisory Council) the appropriate test was whether a fair-minded and informed observer, having considered the facts, would consider that there was a real possibility that the tribunal was biased. Having regard to the nature and composition of the tribunal, the qualifications required of the chairman of the Belize Advisory Council, the requirement (in the first proviso to S54 (11)) that in a case under S 98 the chairman must preside, and the fact that specific provision was made should the Council be convened to consider the removal of the chairman, it seemed that a fair-minded observer would not have concluded that this person was biased. (b) The chairmanship of the Belize Advisory Council would in practice almost always be held by a person who was a member of the Bar Association (an association
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necessarily concerned with matters relating to judicial inability or misbehavior and, possibly, actively involved with such) and these facts must be taken to have been within the contemplation of the draftsman of the Constitution. This was a conclusive indication that that membership of the Bar Association was not, in itself, a ground of disqualification of the chairman. (c) S 6(8) of the Constitution had no application in this case, not because the appellant had no civil rights in respect of his office, but because S 6 (8) applied only to courts and other authorities forming part of the judicial branch of government and the Belize Advisory Council (being an independent body, uniquely constituted as part of the executive arm of government) was not such an authority. (d) A public hearing was not an indispensable element in a fair hearing; the common law requirements of procedural fairness were essentially that the person affected had to have prior notice and an effective opportunity to make representations before a decision was made or implemented, and that the tribunal was unbiased; the appellant had not given or led nay evidence to contradict the allegation against him and it could not be said that he had suffered any unfairness as a result of the decision to hold the proceedings in camera. In R v Gough, there is only one established special category where the law assumes bias and that exists where the tribunal has a pecuniary or proprietary interest in the subject matter of the proceedings. The court should hesitate long before creating any other special category. Ex.P Pinochet, the principle of automatic disqualification was applied. The applicants advisers discovered that one of the judges, Lord Hoffman, who had been part of the majority was, although not a member of Amnesty International, an unpaid director and chairman of Amnesty International Ltd., a charity which as wholly controlled by Amnesty International and carried on that part of its work which was charitable. One of the objects of AIC Ltd. was to procure the abolition of torture, extra-judicial execution and
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disappearance. The Home Secretary signed the authority to proceed. The HOL held that in order to maintain the absolute impartiality of the judiciary there had to be a rule which automatically disqualified a judge who was involved, whether personally or as a director of a company, in promoting the same causes in the same organization as was a party to the suit; and that, accordingly, the earlier decision of the House would be set aside. In Locabail (UK) Ltd v Bayfield Properties Ltd, the CA held that where a judge had a direct personal interest, which was other than de minimis, in the out come of proceedings bias was presumed to exist and he was automatically disqualified from hearing or continuing to hear the case and any judgment he had given would be set aside. It was further held that such disqualificatio n arose irrespective of the judges state of knowledge as to his interest; but that a party with an irresistible right to object to his hearing or continuing to hear the case might waive that right so long as he did so in clear and unequivocal terms and with full knowledge of the relevant facts Ex. P Pinochet applied. That in any automatic disqualification where the judge had knowledge of his interest, he should recuse himself before objection was raised and at the earliest possible stage. Where, following appropriate disclosure, no objection was taken to his hearing or continuing to hear a case no subsequent complaint of bias could be made in respect of the matter so disclosed. What constituted appropriate disclosure would largely depend on the stage reached in the proceedings so that where, in advance of the hearing, the judge became aware of a matter which might affect his fitness to sit he should inquire fully into it and make full disclosure but where such a matter emerged during the hearing the judge, while the being required to disclose what he then knew, was not obliged to conduct any fuller inquiry. In Jones v Das Legal Expenses Insurance Co Ltd, is a situation where bias will not apply. In this case the COA did not consider that in these circumstances the claimant could be said to have acted freely in waiving his right to object. They were left with a nagging doubt that he had been hustled into his decision. The court went on to find,
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however, that he had subsequently waived his right to object to the chair. It offered the following guidelines: If there is any real as opposed to fanciful chance of objection being taken by that fair-minded spectator, the first step is to ascertain whether or not another judge is available to hear the matter. It is obviously better to transfer the matter than risk a complaint of bias. The judge should make every effort in the time available to clarify what his interest is which gives rise to this conflict so that the full facts can be placed before the parties. Some time should be taken to prepare whatever explanation is to be given to the parties and if one is really troubled perhaps even to make a note of what one will say. Because thoughts that the court may have been biased can become festering sores fo r the disappointed litigants, it is vital that the judges explanation be mechanically recorded or carefully noted where that facility is not available. That will avoid the kind of controversy about what was or was not said which has bedeviled this case. A full explanation must be given to the parties. That explanation should detail exactly what matters are within the judges knowledge which give rise to a possible conflict of interest. The judge must be punctilious in setting out all material matters known to him. Secondly, an explanation should be given as to why the problem had only arisen so late in the day. The parties deserve also to be told whether it would be possible to move the case to another judge that day. The options open to the parties should be explained in detail. Those options are, of course, to consent to the judge hearing the matter, the consequence being that the parties will thereafter be likely to be held to have lost their right to object. The other option is to apply to the judge to recuse himself. The parties should be told it is their right to object, that the court will not take it amiss if the right is exercised and that the judge will decide having heard the submissions. They should be told what will happen next. If the court decides the case can proceed, it will proceed. If on the other hand the judge decides he will have to stand down, the parties should be told in advance of the likely dates on which the matter may be re-listed. The parties should always be told that time will be afforded to reflect before electing. That should be made clear even where
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both parties are represented. If there is a litigant in person the better practice may be to rise for five minutes. The litigant in person can be directed to the Citizens Advice Bureau if that service is available and if he wishes to avail of it. If the litigant feels he needs more help, he can be directed to the chief clerk and the listing officer. Since this is a problem created by the court, the court has to do its best to assist in resolving it.

REMEDIES CERTIORARI (QUASHING ORDERS) A quashing order nullifies a decision which has been made by a public body. The effect is to make the decision completely invalid. Such an order is usually made where an authority has acted outside the scope of its powers (ultra vires). The most common order made in successful judicial review Section 5 (1)(a) of the AJA of Barbados for It

proceedings is a quashing order.

quashing unlawful acts and Section 8(1)(a) of T&T for an order of certiorari.

operates to quash a decision already made, it will quash the offending decision and render it retrospectively null. If the court makes a quashing order it can send the case back to the original decision maker directing it to remake the decision in light of the
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courts findings. (Section 9. Barbados Act) The court can also take the decision itself where there is no purpose served by remitting the matter to the initial decision maker. (Section 15(3)(a) T&T Act) Failure to make a decision where time limitation applies Judicial review for person adversely affected may make application for such failure for the unreasonable delay in making decisions under Section 15(1) of the T&T Act. Failure to make a decision where the law sets time limits would invoke judicial review for persons adversely affected who can make application for failure to decide even if the time has expired under Section 15(2) of the T&T Act. In Ex.P London Electricity Joint Committee Co., Atkin LJ said, wherever anybody of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the Kings Bench Division exercised in these writs. It will apply to quash any decision of a public law nature. It cannot be used to challenge a decision of a superior court. Rights broadly interpreted to include personal security, traditional property interest and a persons continued membership in a profession. However, requirement to act judicially is no longer applicable since Ridge Baldwin and OReilly v Mackman. What grounds will it be granted? PROHIBITING ORDER is similar to a quashing order in that it prevents a tribunal or authority form acting beyond the scope of its powers.(Section 5(1)(b) of AJA) and (Section 8(1)(a) of T&T Act) The key difference is that a prohibiting order acts

prospectively by telling an authority not to do something in contemplation. Examples of where prohibiting orders may be appropriate includes stopping the implementation of a decision in breach of natural justice, or to prevent a local authority licensing indecent films, or to prevent the deportation of someone whose immigration status has been wrongly decided.
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Prohibition is prospective in impact, stopping the person from continuing with something that would be in excess of jurisdiction. As seen in Gairy v AG, the HC had ordered D to be compensated for the unlawful deprivation of his property. The amount was to be determined by an arbitrator. The government requested a four month adjournment for them to be briefed and obtain an evaluation report. The adjournment was granted. The appellant sought an adjournment because he was not fully prepared. The three month adjournment was denied and subsequent request for one month was refused. It was held that the appellant had more than ample time to have prepared itself and that their unreadiness to proceed was based on other reasons than actually preparing the case. As a result, there was no breach by the trial judge of the right to adjournment. If the court makes a quashing order it can send the case back to the original decision maker directing it to remake the decision in light of the courts findings. (Section 9. Barbados Act) The court can also take the decision itself where there is no purpose served by remitting the matter to the initial decision maker. (Section 15(3)(a) T&T Act) It will apply to quash any decision of a public law nature. It cannot be used to challenge a decision of a superior court. Rights broadly interpreted to include personal security, traditional property interest and a persons continued membership in a profession. However, requirement to act judicially is no longer applicable since Ridge Baldwin and OReilly v Mackman. What grounds will it be granted? MANDAMUS (MANDATORY ORDER) it compels public authorities to fulfil their duties. Whereas quashing and prohibition orders deal with wrongful acts, a mandatory order address wrongful failure to act. A mandatory order is similar to a mandatory injunction as they are orders from the court requiring an act to be performed. Failure to comply is punishable as a contempt of court. Section 5(1) of the AJA for requiring the performance of a public duty, including a duty to make a decision or determination or to her and determine any case. Section 8(1)(a) of T&T

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For mandamus to lie, there must be a public duty owed to the applicant. The duty must be of a public as opposed to a private character. individual or group of individuals. The duty must be owed to an

It will be issued where the tribunal has made a

jurisdictional error, and thereby declined to exercise a power that it ought to exercise. It can be used to correct a mistaken exercise of discretion. It is also available in cases of irrelevant consideration, improper purposes, fettering of discretion and misuse of power. Padfield and Camacho cases. The traditional approach was that the claimant seeking mandamus must have made a specific demand to the defendant that they perform the relevant duty. It is doubtful today whether this formalistic requirement will be insistent on now. Mandamus is a discretionary remedy. It may be refused by the courts on various grounds such as

need for constant supervision, willingness of the public body to comply voluntarily, public inconvenience or chaos and impossibility or practical or legal reasons. Wide discretionary powers and limited resources are usual factors that will influence the courts decision to grant mandamus. Example of where a mandatory order might be appropriate include: compelling an authority to assess a disabled persons needs, to approve building plans, or to improve conditions of imprisonment. A mandatory order may be made in conjunction with a quashing order, for example, where a local authoritys decision is quashed because the decision was made outside its powers, the court may simultaneously order the court to remake the decision within scope of its powers. PRIVATE LAW REMEDIES INJUNCTION is an order made by the court to stop a public body from acting in an unlawful way. Less commonly, an injunction can be mandatory, that is, it compels a public body to do something. Where there is an imminent risk of damage or loss, and other remedies would not be sufficient, the court may grant an interim injunction to protect the position of the parties before going to a full hearing. If an interim in

injunction is granted pending final hearing, it is possible that the side which benefits
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from the injunction will be asked to give an undertaking that if the other side is successful at the final hearing, the party which had the benefit of the interim protection can compensate the other party for its losses. claimant is legally aided. Section 5(2)(e) AJA, having regard to remedies mentioned in (1), the court may grant in addition or alternatively an injunction. Section 8(1)(b) of T&T. Section 15(3) of T&T, court may grant an order directing the parties to do, or refrain from doing, any act or thing, the doing, or the refraining from doing, of which the court considers necessary to do justice between the parties. Section 10(1) of the AJA provides that where a person brings proceedings alleging that any person is not entitled to act in a public office, the court may, if satisfied that proceedings are justified, grant an injunction restraining that person from acting in the public office, and the court may, if it thinks fit, declare the office to be vacant. Section 18 of T&T It prohibits certain actions from being done and may command the performance of certain actions. It may act as an interim while the rights are being determined and may be perpetual for at the end of the action and conclusively determines the respective rights and liabilities of the parties. An injunction can be granted to prevent a public body from committing a private wrong, restrain a public body from acting unlawfully, restrain implementation of an unlawful decision and enforce a public duty, if they are not too vague (mandamus). In Jaundoo, the court cannot grant a mandatory injunction against the crown. This case was overruled by Gairy, where it was stated that the court has and must be ready to exercise, power to grant effective relief for contravention of a protected constitutional right. In interpreting and applying the constitution of Grenada today the protection of guaranteed rights is a primary objective, to which the traditional rules of the common law must so far as necessary yield. The board cannot regard Jaundoo as an accurate statement of the modern constitutional law applicable in Grenada.
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This does not happen where the

DECLARATION is a judgment by a Administrative court which clarifies the respective rights and obligations of the parties to the proceedings, without actually making order. Unlike the remedies of quashing, prohibiting and mandatory order the court is not telling the parties to do anything in a declaratory judgment. For example, if the court declared that proposed rule by a local authority was unlawful, a declaration would resolve the legal position of the parties in the proceedings. Subsequently, if the authority were to proceed ignoring the declaration, the applicant who obtained the declaration would not have to comply with the unlawful rule and the quashing, prohibiting and mandatory orders would be available. Section 5(2)(d) of the AJA having regard to remedies mentioned in (1), the court may grant in addition or alternatively a declaratory judgment. Section 8(1)(b) of T&T.

Section 15 (3)(b) of T&T, court may grant an order declaring the rights of the parties in relation to the making of the decision. Original remedy the court will declare what rights the parties have, for example, under a contract or over land. Supervisory remedy the remedy will control acts or decisions made by other bodies, such as declaring the attachment of certain conditions to the grant of a licence to be invalid. So the courts can declare invalid certain action by public authorities in pursuant to their supervisory role and then, if necessary, to pronounce on the parties rights in pursuance of the original role. It applies to administrative decisions or orders, subordinate legislation, scope of public law obligations imposed by a public duty etc, effect is to render a decision challenged retrospectively invalid or void ab initio. The court may refuse to grant relief in the instant case, and use the opportunity to clarify the law in the area Ex. P Datafin. DAMAGES are available as a remedy in judicial review in limited circumstances. Compensation is not available merely because a public authority has acted unlawfully. For damages to be available there must be either: (a) a recognized private law cause of action such as negligence or breach of statutory duty or; a claim under European law or the human rights act 1998.

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There is no entitlement to compensation for unlawful administrative action. To recover damages, a recognized cause of action must be pleaded namely negligence, breach of statutory duty, false imprisonment or trespass and misfeasance in public office. Section 5(2)(d) of the AJA, having regard to remedies mentioned in (1), the court may grant in addition or alternatively - damages in money. Section 8(4) of T&T Section 4 of the T&T provides that a court may grant damages to an applicant if it is included in the claim form, and the applicant could have been awarded damages when the application was made. Damages in tort and contract, damages for breach of

fundamental rights and vindicatory damages for breach of constitutional rights. In Maharaj v AG, section 6 of the constitution was intended to create a new remedy for the contravention of constitutional rights without reference to existing remedies; that the word redress in its context bore its ordinary meaning of reparation or compensation, including monetary compensation. Although the claim was not a claim in private law for damages for tort, but was a claim in public law for compensation, that compensation should be measured in terms of the deprivation of liberty, including consequential loss of earnings and recompense for the inconvenience and distress suffered during detention. In Inniss, vindicatory damages awarded in Ramanoop for breach of

fundamental rights extended in Inniss for breach of other provisions of the constitution. Not to punish the executive, but to vindicate the infringed right. RESTITUTION Section 5(2)(d) of the AJA having regard to remedies mentioned in (1), the court may grant in addition or alternatively restitution. Section 8(5) of the T&T Act. Woolwich Equitable Building Society, the justice underlying Woolwichs submission is, I consider, plain to see. The revenue has made an unlawful demand for tax. The taxpayer is convinced that the demand is unlawful, and has to decide what to do. It is faced with the revenue, armed with the coercive power of the state, including what is in practice a power to charge interest which is penal in its effect. In addition, being a reputable society which alone among many building societies is challenging the
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lawfulness of the demand, it understandably fears damage to its reputation if it does not pay. So it decides to pay first, asserting that it will challenge the lawfulness of the demand in litigation. Now, Woolwich having won that litigation, the revenue asserts that it was never under any obligation to repay the money, and that it in fact repaid it only as a matter of grace. There being no applicable statute to regulate the position, the

revenue has to maintain this position at common law. Stated in this stark form, the revenues position appears to me, as a matter of common justice, to be unsustainable; and the injustice is rendered worse by the fact that it involves, the revenue having the benefit of a massive interest free loan as the fruit of its unlawful action. I turn form the particular to the general. Take any tax or duty paid by the citizen pursuant to an unlawful demand. Common justice seems to require that tax be repaid, unless special circumstances or some principle of policy require otherwise; prima facie, the taxpayer should be entitled to repayment as of right. Instead, as we have seen, there developed common law actions for the recovery of money paid under a mistake of fact, and under certain forms of compulsion. What is now being sought is, in a sense, reversal of that development, in a particular type of case; and it is said that it is too late to take that step. To that objection, however, there are two answers. The first is that the retention by the state of taxes unlawfully exacted is particularly obnoxious, because it is one of the most fundamental principles of our law enshrined in a famous constitutional document, the Bill of Rights that taxes should not be levied without the authority of parliament; and full effect can only be given to that principle if the return of taxes exacted under an unlawful demand can be enforced as a matter of right. The second is that, when the revenue makes a demand for tax, that demand is implicitly backed by the coercive powers of the state and may well entail unpleasant economic and social consequences if the taxpayer does not pay. In any event, it seems strange to penalize the good citizen, whose natural instinct is to trust the revenue and pay taxes when they are demanded of him. There is likewise no dispute that DMG is entitled to compensation for

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breach of statutory duty or by way of restitution of tax unlawfully demanded under the principle established in this case. RETURN OF PROPERTY Section 5(2)(g) of the AJA, having regard to remedies mentioned in (1), the court may grant in addition or alternatively an order for the return of property, real or personal. Section 8(5)(d) of T&T Act. LIMITATIONS Delay Section 8 AJA may refuse relief where there has been unreasonable delay in making the application. Section 11(2) of T&T NO PRACTICAL PURPOSE SERVED for example where licence expired on a challenge to its validity or where activity challenged had ceased. NO HARM claimant may have suffered no prejudice by the unlawful act of the public authority. FINANCIAL REMIFICATIONS court take this into account in determing whether or not the public authority has acted unlawfully see legitimate exp. MOTIVE not relevant in judicial review proceedings, as long as the claimant, has standing and the court can decide whether the act of the public authority is unlawful. Section 8 of AJA and Section 11 (2) of T&T SUBSTANTIAL HARDSHIP TO OR SUBSTANTIALLY PREJUDICE THE RIGHTS OF ANY PERSON. DETRIMENTAL TO GOOD ADMINISTRATION.

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