Public Law Part B

Judicial review can only be brought about against public bodies or bodies performing public function.
There are four grounds on which judicial review may be sought. This includes illegality1, irrationality2, procedural impropriety3 and ‘breach of human rights’4 granted under Human Rights Act 1988.
One key aspect where illegality has been considered by the courts is the exercise of discretionary powers by a decision maker. Lord Greene in the important case Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) summed up the questions the court will consider as follows: “The exercise of...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.”

In Padfield v Ministry of Agriculture, Fisheries and Food (1968), Lord Reid held: “Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act, the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court.”

Illegality, as a ground for judicial review, requires the decision maker to have failed correctly to understand the law and/or to apply it: Council of Civil Service Unions v Minister for the Civil Service (1985). When exercising discretion, a decision maker must take into account all matters which they are required to consider as stated in the statute: Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948).

The ground of irrationality is sometimes also referred to as ‘Wednesbury’ unreasonableness. This was made by Lord Greene in Associated Provincial Picture Houses v Wednesbury Corporation (1948): “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.” Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service (1985) developed the definition, stating that irrationality: “...applies to 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 it.” Thus, the test for a successful judicial review application on grounds of irrationality is that the decision maker made a decision that was so unreasonable that no reasonable decision maker could have come to it.

The Human Rights Act 1998 has introduced another ground for judicial review i.e. the alleged breach of Human Rights, the interpretative attitude of the judiciary is however supported by the concept of necessity and proportionality. That is to say that in reviewing the matter involving the limitation of convention right as a necessity to abstain from extreme consequences the courts must seek the proportionality of the act taken in face of the legitimate aim; Steel v United Kingdom. Thus it has provided another ground for judicial review besides Wednesbury principles. However, the courts have confined the proportionality approach to that of matters involving impressions against convention rights only; R (Daly) v Secretary of State for the Home Department.

This limitation may involve interference from another statute, R v A. The courts would then involve almost the same approach that whether it interfered with a convention right. If there was interference then the courts must look into the legitimate aim of the legislation and to that the court must seek whether the interference was proportional to the legitimate aim. If the courts find out that the statute interfered with the rights of an individual then they may issue a declaration of incompatibility under s.4 where the legislation stands inconsistent with them. The s.8 of the act empowers the courts to award damages within their statutory power to the party aggrieved due to breach of convention rights.

Therefore, it now need be seen that which one of these grounds is likely to be satisfied given the facts at hand. The issues in the current situation are that upon attending the disciplinary meeting:
John was not allowed to call witness
He was not allowed to cross examine the other party
The examination was not allowed because
He was not allowed to have someone to represent him
Panel in reaching the decision did not exclude Mr James rather kept him with themselves

From the face of the facts, it appears that John was not heard properly. He was not allowed to present his case and the hearing of the disciplinary committee represented a formality before expelling the student. Therefore, the appropriate course would be to take action for judicial review on grounds of alleged breach of human rights; the right being the right to fair trial.

European Court of Human Rights ruled that if a trial is to be conducted by some board other than the court then it must also comply with the Convention Rights. In this regard the board must completely be independent and impartial. If this is being compromised then it will give rise to liability.5 And the person so affected is entitled to appeal on grounds of breach of human rights.6 Therefore, since the disciplinary hearing was conducted by the board and the board did not allow John to present his case properly therefore this represents the breach of John’s right of fair trial.

It need also be established that the School is a public body for the purpose of review under the Human Rights Act 1998. It is unlawful under the section 6 of the Human Rights Act 1998 for a public authority to act in a manner which is inconsistent with the European Convention on Human Rights.7 This means that the public authorities must also act in compliance with the Convention Rights. Thus, if a body which is a public body acts in a manner which is not in compliance with the Convention rights then its action can be challenged in the court.
The question then arises that what amounts to ‘public authority’. A terse definition is given by the subsection (3) of the section 6 that public authority includes a court or a tribunal or any person who performs function of a public nature. This has then been expanded upon by the courts. The courts generally held a body to be a public one by having regard to:

The characteristics of the body or the function it performs8
Any person or organization entrusted with authority under statute of the Parliament9
Controlled by state10 proximity of relationship between the private body and the delegating public authority11
Exercising such powers entrusted by the state which the private bodies do not exercise12
Private body exercising public functions13

Therefore, it appears that even if a body which is not purely public i.e. not created under the statute of the parliament if has any of the ingredients mentioned immediately above is likely to be regarded as a public body. Here in the current situation the school represents the traits of a public body as it was so closely related to the public functions of local council that it was actually part of being one.

Besides, the fact that the (fictitious) statute allows the authority to expel the students “as they think fit” does not necessarily mean that it can escape the eyes of the law particularly the requirements to be in line with the convention rights. Thus, this would also be brought within the notice of the court that the statute awards too discretionary and arbitrary power which contravenes the rights of the students. The Act by virtue of s.3 empowered the courts to interpret the primary legislation in line with the convention rights and issue a declaration of incompatibility under s.4 where the legislation stands inconsistent with them. The s.8 of the act empowers the courts to award damages within their statutory power to the party aggrieved due to breach of convention rights.