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BFL001 Constitutional administrative law assignment

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BFL001 Constitutional administrative law assignment

BFL001 Constitutional administrative law assignment

Judicial Review

Judicial Review is a form of court proceeding, usually in the Administrative court, in which the judge reviews the lawfulness of a decision or action, or a failure to act, by a public body exercising a public function. It is only available where there is no other effective means of challenge. Judicial review is concerned with whether the law has been correctly applied, and the right procedures have been followed. In order to succeed the claimant will need to show that either a public body is under a legal duty to act or make a decision in a certain way and is unlawfully refusing or failing to do so or, a decision or action has been taken by a public body that is beyond the powers it is given by the law.

When creating a public body, legislation will often define duties, limits of power, and prescribe the reasoning a body must use to make decisions. These provisions provide a means for a decision to be found unlawful. In addition, the Human Rights Act 1998 provides that law must be interpreted and public bodies must act in a manner compliant with the European Convention on Human Rights. There are also common law constraints on the decision-making process of a body.

Judicial review is about the supervision of administrative decision making. It can be a fast, effective way to convince a public body to reconsider a decision or force them to take action they should be taking. The court’s decision must be followed, and one judicial review case can make a difference to many other people.

In this case, the challenge is based on an allegation that an unlawful decision has been made by the public body and there is no adequate alternative remedy available with an individual. Thus, one needs to understand the basis wherein the decision can be termed as unlawful and the grounds of the same will be enumerated in the later sections.

In this case, Lenny applies for a grant to cover the cost of a computer and receives a letter from the Vice Chancellor stating that the Bruddersfield University’s policy is not to entertain applications for grants only loans and that in the Vice Chancellor (“VC”)’s view, funding should not be granted for computers as they can be used for non-academic gaming.

Law

In law, locus standi means the right to bring an action, to be heard in court, or to address the Court on a matter before it. Locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case.advice to Lenny/Student Union is as follows if she is still interested in pursuing a grant to cover the cost of computer is by way of enquiring if the decision made by the VC by way of a reply letter is valid and appropriate under the discretionary powers granted to him/her under the (Imaginary) Assistance for Higher Education Act 2019 (“AHE Act”).

First step is since she is a student and a person without any financial means, she should as Woolf CJ stated in the case of Cowl v Plymouth City Council to issue a letter of appeal to VC to revisit and reconsider his decision, “failure to issue a letter before claim and/or seek to use alternative dispute resolution procedures might: (1) result in costs penalties and/or (2) result in the exercise of the court's discretion, to refuse some/all of the remedies sought.‘This case ... makes it clear that the lawyers acting on both sides of a dispute of this sort are under a heavy obligation to resort to litigation only if it is really unavoidable.”

Independent adjudication

Prior to proceeding for JR , Lenny could be advised to take up the matter to the Office for Independent Adjudication (OIA) for matters concerning University students as decided and advised in the case of R v St George’s.The OIA is a suitable alternative remedy to judicial review and is itself judicially reviewable. As such, the lower court (Hickinbottom J) was wrong to issue stays in respect of two students who had applied for judicial review against their universities pending the outcome of their OIA complaints. If uncertain as to the proper approach, a student could put the university on notice of their future intention to seek judicial review in the event of an unsatisfactory OIA outcome. Another case is the University of London and R v University of Leicester, where to resolve the matter as a first step.

If Lenny is not sure on whether to pursue JR, he should write to the university to put them on notice of the complaint and intention to pursue JR, so that if the OIA procedure does not provide what he wants, he will have protected his position in respect of limitation. If Lenny still fails then Lenny should know that by way of judicial review which comes under public law that a judge is summoned to look into the legality of the decision made by the VC. Here Lenny holds a burden of proving that VC had made an unlawful decision, and that Bruddersfield University is a public body coming under the purview of public law (Zahid vs Manchester University)and lastly there is no alternate remedy available for Lenny.

On a cursory glance of the decision made by VC it looks like he is within the powers granted to him under the AHE Act because it provides “on such terms and subject to such conditions as he thinks fit” and “any person who satisfies the VC that such assistance is required in order to complete..”

Hence as a VC he would have been assumed to have evaluated Lenny’s request in using his discretionary powers under the AHE Act in arriving at a decision against Lenny.

Under the law the established grounds for judicial review which are available to Lenny are illegality, irrationality, procedural unfairness and incompatibility with the European Convention on Human Rights (“EU Law”).

By looking at the facts, my advice is that:-

(i) there doesn’t seem to be any act of illegality or VC acting outside the powers;

(ii) there doesn’t seem to be any act of irrationality and/or proportionality on the decision of VC (Wednesbury unreasonableness”) The test for this being- whether a decision “is so unreasonable that no reasonable authority could ever have come to it”.

She could try to assert that (i) VC’ s decision not to entertain applications for grant only loans is not acceptable because AHE Act indicates “such hardship grants loans or other assistance, whether financial or otherwise’ , On this ground she has a chance of succeeding in showing VC was irrational and the policy of the University abused. In addition Lenny’s could indicate that refusal for not granting for computers as they can be used for non-academic gaming could amount to irrationality and unfairness. However these grounds will not be justifiable because children these days are hooked up with computer gaming and VC does not want to encourage it. It is also difficult to enforce if these Computers are being used for gaming.

(iii) Lastly, procedural unfairness, wherein a public body ought to act fairly and impartially. Elements of financial interest, conflict of interest etc. Here there doesn’t seem to be any unfairness or noncompliance of procedures indicated under the AHE Act by the VC;

Here Lenny’s basic rights are not affected and she is merely exercising an avenue to get a computer on a grant from University. The main difference between a grant and a loan is repayment. A loan requires you to repay the money you borrow, whereas a grant does not. Grants are, essentially, a gift. In other words, they're non-repayable. An example of a case is R (Tigere) v Secretary of State for Business, Innovation and Skills was a 2015 judgment of the Supreme Court of the United Kingdom concerning student loans in the United Kingdom. The case was brought on behalf of Tigere by Public Interest Lawyers who argued that the policy was an infringement of Tigere's right to education under Article 2 of the First Protocol of the European Convention on Human Rights. This provision reads "no person shall be denied the right to education" and the negative formulation does mean that there is no automatic entitlement to public support. However Tigere argued that this ought to be read in line with Article 14 of the Convention that states her rights "shall be secured without discrimination on any ground".

If you want to argue that a decision was incorrect, judicial review may also not be best for you. There are prerogative Orders, quashing orders, prohibitory orders, mandatory orders and the equitable remedies of injunctions and declarations are all discretionary. They are not automatically granted, and it will be decided whether, in the circumstances of the case, it would be appropriate to grant them. There are alternative remedies, such as appealing against the decision to a higher court.

Looking at the above Lenny/Student Union should refrain from pursuing JR as the losing party has to pay the costs of the other side, a student faces a risk of costs in any event. So JR is not an easy option, but students may see it as having an authority, rigour and independence from universities that they do not.

In the United Kingdom we have an unwritten constitution, hence in its absence, the Rule of law is required and essentially means government under the purview of law and protection of rights and freedoms of people.

In England, Professor A.V. Dicey developed a concept on rule of law from Edward Coke’s concept in a classic book ‘Introduction to the Study of The Law Of The Constitution’ published in the year 1885. Dicey’s theory of law formed from three concepts of principles. These three concepts are:

(i) No man could be lawfully interfered or punished by the authorities except for breaches of law established in the ordinary manner before the courts of land (Supremacy of Law).

This indicates that in England, nobody can be thrown into the jail if no law has been broken. Unless a law is broken, neither a person nor his or her goods can be lawfully made to suffer. Society is ruled by law. The governments can only do things that are authorised by or within the law. It means the rule of law is contrasted with every system of government based on the exercise by person in authority of wide arbitrary or discretionary powers of constraint.

(ii) No man is above the law and everyone, whatever his condition or rank is subject to the ordinary laws of the land.

This means that everyone is equal and not based on classes if they break the law. Everyone will be charged equally to the same law and be subject to the same law courts. Governments and citizens will obey the same law and no specialty will be given to anyone.

(iii) The result of the ordinary law of the land is the constitution.

The rule of law indicates that the general principles of the constitution are the result of judicial decisions of the courts in England. Rights such as the right to speak in public, freedom to organize a public meeting and right to vote are guaranteed by a written constitution in most countries but in England, it is not so. Those rights are the result of judicial decisions in cases which have actually arisen among the parties. The consequence of the rights of every individual are the source but the constitution is not. Therefore, Dicey emphasized the importance of the role of the courts of law as guarantors of liberty.

In addition to the above the reason behind the existence of Separation of Powers is that when a group or person has a huge amount of power, they can become dangerous to the society and citizens. If a single group shared all three powers, they would be a dictatorship and have unlimited power. They could do anything they like without being questioned. The Separation of Power is a method of reducing the amount of power in any group’s hand, hence making it harder to abuse and used in a wrong method.

The recent case of Serdar Mohammed v Ministry of Defence (2017) had set off an intense debate on the rule of law. The issue on whether the human rights of Serdar as stated in European Convention of Human Rights had been breached was being debated. The Court of Appeal stated that Serdar who was an Afghan suspect was detained illegally by British Forces before handing him over to Afghan authorities in 2010. However, in the appeal, The Supreme Court ruled that Serdar’s detention was not in breach of the Article 5 of European Convention of Human Rights which is the right to liberty and security. The issue of whether the practice of the rule of law is still effective in the United Kingdom has been raised once again.

The European Communities Act 1972 provided a mechanism through which European Union law could be incorporated into British law without further legislation from Parliament, specifically s2(1) and s2(4) give effect to EU law in the UK. The EU expects a high level of deference from it’s Member States, and this is reflected by section 3 of the Act, which allows the judiciary to take into account European Court of Justice (ECJ) rulings, and could be presented as authorising a transfer of judicial alliance from the UK Parliament to the ECJ.

The supreme power

Sovereignty means the supreme power within the state. The supreme power in Great Britain lies with the Parliament. Hence sovereignty of Parliament (or supremacy of parliament) is a cardinal principle of the British constitutional law and political system. The principle implies that the British Parliament can make, amend, substitute or repeal any law. De Lolme said “The British Parliament can do everything except make a woman a man a woman”. The Parliament can also make constitutional laws by the same procedure as ordinary laws. In other words, there is no legal distinction between the constituent authority and the law making authority of the British Parliament. The parliamentary laws cannot be declared invalid by the judiciary as being unconstitutional. In other words, there is no system of judicial review in Great Britain.

On the other hand, Sir Ivor Jennings would equate the Rule of Law with democracy as understood by the liberal tradition. It demands in the first place the powers of the Executive should not only be derived from the law as V.A Dicey said, but also they should be limited by law. This means that every political authority , except perhaps parliament, is subject to considerate limitations. Liberal and democratic principles require that all government powers, except those of Parliament, should be reasonably precise laws. There should also be equality before the law, that is, that among equals the law should be equal and should be equally administered, that like should be treated alike - without distinction of race, tribe, colour, religion, wealth, social status, or political influence. The limits of police power should be rigidly defined and liberty. Sir Ivor Jennings concludes that the Rule of Law is only a synonym for law and order, then it is characteristic of all civilised states.

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