Public Law, Assessment Example

Permissibility for Making a Claim

The three governing bodies to the three sports are can legally make claims for judicial review because each of them has a ‘standing’ in their respective cases. The governing body for lacrosse, ice hockey, and angling each oversees all the decisions that directly affect the players and the officials of the respective sports, which translates to sufficient interests in the disputed grant program.

Should the court assess all facts and legal issues preceding the judicial review, they will prove: i) strength and significance of the grounds of challenge-  the governing bodies will be held accountable for how they use the grant money, and through this, they gain significant interest in the case; ii) proximity to the decision made by the public office- it is the governing bodies that applied for the grant money, and this gives them preeminence in the decisions involving the rejected money; iii) the lack of an alternative strategy- the decision for issuing grants by the minister cannot be appealed. Consequently, the governing bodies for all the three sports the authorization to move ahead with their search for judicial reviews because of the lack of inclusion of any legal complaints, private prosecutions, or any other statutory mechanism.

Potential Grounds for Challenge

The Governing Body for Angling

The sport’s governing body for angling can seek judicial review on the premise of procedural impropriety. When applying for the issuance of the grant money, the governing body for angling demonstrated sufficient evidence that they had a strategy for attracting new participants. In so doing, they had met one of the two primary requirements that had been emphasized by the secretary of state as a requirement for qualifying for the grants. The governing body for Angling also provided evidence showing that it has a sufficient number of participants involved in the sport in England and Wales. The law of England imposes baseline standards for determining procedural fairness, one of which is the need to adhere to the provisions of natural justice[1]. Accordingly, the governing body for angling had met all the primary requirements put forth by the secretary of state for Digital, Culture, Media, and Sports on the Power, and thus had qualified for the grant.

Conversely, the secretary of state, in what seemed like a deliberate bias, failed to accredit the grant to the angling sports for reasons undisclosed to the affected party. The move by the secretary of state to withhold the grants from the governing body for angling is an outright breach to the first pillar of procedural impropriety. A claimant has the legal position to claim for a judicial review if the ruling against them or the decision by a public office was made with an element of bias[2]. There is no possible explanation from the secretary of state on why the civil office would decline the issuance of grant money to a fully qualified applicant, except that the office is biased in its decision making. The secretary of state failure to present their grounds for rejecting the application makes the case open to great deal speculation, one being that the secretary of state is secretly hating on angling, for which reason she is blocking their grant application – the decision, in this case, constitutes procedural unfairness on the grounds of personal bias. Alternatively, it is arguable that the secretary of state overlooked the very requirements put forth by his office and went ahead to deny the qualified applicant- in this case, the decision constitutes procedural unfairness because it contradicts natural justice.

Secondly, the governing body for angling can seek judicial review on the premise of legitimate expectations. This line of defense is allied to procedural impropriety.  The secretary of state had highlighted two key requirements for accessing the grant money, both of which have been met sufficiently by the governing body for angling.  The governing body for angling can, therefore, bank on legitimate expectation as a discreet ground for claiming their judicial review[3] because they had been given an expectation that the ministry would provide access to sports grant through an express statement from the secretary of state for Digital, Culture, Media, and Sports. The possibility of using legitimate expectation is further supported by the case law from Online Casebook, which states that ‘legitimate expectation’ is applicable when there is evidence of a promise or routine practice in the specific potion under question.[4] A similar premise for judicial review can be seen in the challenge face by the UK government to do away with the ‘Building Schools for the Future’ (BSF) program. The claim was successful because the government made a decision without carrying out extensive consultations with the local authorities. Now, the local authorities that expressed their commitment to constructing new schools under the BSF program, made a claim saying that they expected the government would consult them before making a decision[5]. The decision by the court considered the BSF program as previously being run as a partnership between the local government and the central government. Therefore the local governments’ argument of legitimate expectation to be consulted was enough to convince the court to rule that project-specific decisions of that sort could not be made lawfully unless some prior consultation had been made.

The Governing Board for Ice Hockey

The governing body for ice hockey could also make their claim on the premise of procedural impropriety.  Both the two pillars of procedural impropriety are contextually applicable in ice hockey’s case because the secretary’s office was not just biased in their ruling but also failed to give the governing board right to be heard. The element of bias comes from the fact that the secretary of state bases his decision from the UK Winter Olympics Board, which was explicitly biased towards sports with local participants only. This, even though the secretary of state did not specify that the nationality of the participants expected to be part of qualifications for the grant – he only stated that the sports should have a least 5000 participants.

Again, the secretary of state claimed that the participants in ice hockey were less than 5000, which was not rue considering that the governing body presented the total number of players as 7500. Regardless of making such an error, the secretary of state did not give room for the governing body for ice hockey to explain their situation, implying that the ministry deprived the climate of their right to be heard. There are several case laws from which the governing body for ice hockey can reference to their advantage. The struggle by the government on building the ‘High Speed 2’ rail link in 2013 is one such example, applying the ‘right to be heard’ under procedural impropriety. The non-profit organizations which opposed this project opposed the construction, stating that they were not properly consulted on the compensation they would receive for the property that would be destroyed. The court determined that the government did not provide sufficient information to the consultees on the real consequences of the proposed construction and therefore had failed to give a room for the claimants to respond appropriately[6].

Third, the governing body can cite error in law as a ground for its judicial review claims. A critical analysis of the secretary of state’s decision reveals that he was influenced by an external public authority- the UK Winter Olympics Board (UWOB). The decision was made following the advice of the UWOB, implying that the secretary of state delegated its power to an external entity without the legal ability to do so.  Essentially, the decision was illegal because secretary of state acted outside his constitutional mandate[7].

The Governing Body for Lacrosse

The governing body for lacrosse can base their claim for judicial review on both illegality and irrationality. Regarding illegality, the decision to decline or approve of the grant application should be made by the secretary of state but not the civil servants from the department. The decision was, therefore, made by a public authority acting without the legal ability to do so[8].

Regarding irrationality, the decision to decline this application was made without a reasonable evidence of a lack of diversity in the sport.[9] Also, the initial requirements by the secretary of state did not cite the diversity of the participants as a requirement for the issuance of the grant. The rationale for declining the application by the governing board for lacrosse was, therefore, so unreasonable to be sustainable.

Remedies for the Judicial Review Proceedings

The governing body for angling could receive the remedy of a mandatory order. The mandatory order will require the secretary of state to review the selection criteria and give proper reasons for failing to grant the grant money to the angling sports when in fact the governing body presented sufficient evidence to prove that they are qualified.

The governing body for ice hockey could receive the remedy of a prohibitory order. The decision to make deny the issuance of grant to ice hockey was made following recommendations from an external body which did not have a legislative mandate to influence decisions in the issues of state. As such, the court could restrain the external body from infringing on matters outside its jurisdiction so that the secretary of state can make an independent decision based on his own evaluation.

The governing body for lacrosse stands the chance of getting a remedy of quashing orders. The decision to reject their application was not made by the secretary of state, and this makes it invalid all together because the senior civil servant acted outside the responsibilities given to it by the legislation.

The Principle of Separation of Powers

The Principle of Separation of Powers is founded on the assertions made by a French Political Thinker called Montesquieu in 1748[10]. He asserted that power could not be concentrated in one government institution or person, and if that happens, then there may arise arbitrary governance. To ensure that the citizens live in liberty, the powers in the government must be divided among different institutions, entities, or individuals to ensure that these people constantly check on one another.  Separation of powers is readily evident in most modern governments, such as the US, where separate authority is vested upon the three arms of the government.  Accordingly, this principle emphasizes that a single individual must not be given authority in more than one arm of the government. Also, each of the arms of the government should be able to operate independently as per their respective functions.

The three arms of government are “the executive, judiciary, and legislature.” They are meant to remain divided at all times to limit the chances of tyranny[11]. Accordingly, no branch is allowed to exercise the power of the other, and no person can share membership of any two branches at the same time- this makes it possible for the system to have checks and balances.

The checks and balances eliminate arbitrary because the division of powers creates levels of oversight for each arm of the government. The regulation ensures accountability of different arms of the government. It gives the judiciary the power to revoke legislative and executive decisions if they are unconstitutional. The very nature of the system means that there is transparency in most of the government decisions. For example, a cabinet in the elected post may be summoned by the judiciary to make detailed accounts for its expenditure. Through this, the government officials are constantly wary of the scrutiny that awaits them in case they make the wrong decisions. Consequently, those holding public offices are more likely to avoid the abuse of power. Separation of powers is different from devolution, which involves the granting of statutory obligation from the central government to the sub-national governments. The leaders in devolved territories have the constitutional authority to make legislation to their specific areas.

In the UK, there is no clear separation of powers like the case of the US. Instead, it is governed by a partially undocumented constitution that permits fluidity in the power arrangement[12].  The UK does not focus on an absolute separation of powers but instead opts for a compromise where some of the government functions can be delegated amongst selected institutions of the state.  Consequently, the authorities granted to the courts, the parliament, and the government is closely intertwined.  The legislature and the executive nearly form a complete union of powers, which Nail Paperworth viewed as the secret of the UK administrative law.

The executive in the UK system comprises of the government, the crown, the Prime Minister, and the Cabinet ministers. The role played by the executive is majorly focused on the formulation and implementation of the policies. The legislature also called the parliament, is made up of the crown, the House of Commons, and the upper house of the Lords.  The judiciary is comprised of judges, personnel holding judicial offices in the tribunals, and magistrates in the magistrate courts[13]. The crown makes all the senior judicial appointments in the UK.

The separation of the legislature from the executive

The executive, the legislature, and other common law jurisdictions are closely related. A majority of the ministers and the prime minister are also members of the parliament and sit in the house of the commons. The executive, therefore, extends its presence into the parliament, which is in itself the legislature.  It is arguable that the close integration of the legislature and the executive provides efficiency and stability in the UK government because the system intentionally advocates for efficient operations rather than for fear of tyranny.  Take, for instance, the case of the prime minister. The premier heads both the executive and is also the head of majority party which occupies the legislature. This renders more freedom to the executive than would be the case for a president in a system like the US, where the president does not sit in the parliament. To limit the degree of control that the executive has on the parliament, there is a limit to the ministerial seats in the House of Commons.

The separation of the legislature from the judiciary

The Disqualification Act of 1975 bars the judges from vying for elective parliamentary posts[14]. These judges are, instead, expected to interpret the law in line with the intentions of the legislature. The judges can also create common laws, called the judged-made-laws.  Judges can also be removed from office by disciplinary proceedings in the parliament, but when a judge holds a higher office, they can only be removed by resolutions from both houses. The UK judges are subordinate to the parliament and stand no chance of changing the integrity of the acts of parliament[15]. There is, however, close cooperation of the judiciary and the legislature that enables the parliament to give credit to the judge-mad laws by not rejecting them.

The separation of the executive from the judiciary

The judiciary scrutinizes the executive to ensure that the legality the government actions are constituent with the scope of power granted to the executive by the permanent. In cases of judicial reviews, the judges are expected to be immune to government and parliamentary influences.

References

Benwell, R. and Gay, O., 2011. The Seperation Of Powers. [online] Agora-parl.org. Available at: <https://www.agora-parl.org/sites/default/files/sn06053.pdf> [Accessed 18 July 2020].

‘Grounds For Judicial Review’ (Lewisnedas.co.uk, 2018) <https://lewisnedas.co.uk/newsroom/blog/public-law/grounds-for-judicial-review.html> accessed 18 July 2020

Online Casebook, 2012. Council Of Civil Service Unions And Others V Minister For The Civil Service [1984] 3 All ER 935; [1985] AC 374.. [online] Oup-arc.com. Available at: <https://oup-arc.com/static/5c0e79ef50eddf00160f35ad/casebook_43.htm> [Accessed 18 July 2020].

Thompson Reuters Practical Law, ‘(Buckinghamshire County Council And Others) -V- Secretary Of State For Transport’ (Uk.practicallaw.thomsonreuters.com, 2013) <https://uk.practicallaw.thomsonreuters.com/Document/I3B2B8C80935111E28BC1CB3F16A9CAC6/View/FullText.html?transitionType=Default&contextData=%28sc.Default%29&comp=pluk> accessed 18 July 2020

[1] ‘Grounds For Judicial Review’ (Lewisnedas.co.uk, 2018) <https://lewisnedas.co.uk/newsroom/blog/public-law/grounds-for-judicial-review.html> accessed 18 July 2020

[2]. ibid.

[3] ‘Grounds For Judicial Review,’ 2018

[4] Online Casebook, 2012. Council Of Civil Service Unions And Others V Minister For The Civil Service [1984] 3 All ER 935; [1985] AC 374.. [online] Oup-arc.com. Available at: <https://oup-arc.com/static/5c0e79ef50eddf00160f35ad/casebook_43.htm> [Accessed 18 July 2020].

[5] Online Casebook, 2012.

[6] Thompson Reuters Practical Law, ‘(Buckinghamshire County Council And Others) -V- Secretary Of State For Transport’ (Uk.practicallaw.thomsonreuters.com, 2013) <https://uk.practicallaw.thomsonreuters.com/Document/I3B2B8C80935111E28BC1CB3F16A9CAC6/View/FullText.html?transitionType=Default&contextData=%28sc.Default%29&comp=pluk> accessed 18 July 2020

[7] ‘Grounds For Judicial Review’, 2018

[8] ibid

[9] ibid

[10] Benwell, R. and Gay, O., 2011. The Separation Of Powers. [online] Agora-parl.org. Available at: <https://www.agora-parl.org/sites/default/files/sn06053.pdf> [Accessed 18 July 2020].

[11] ibid

[12] Benwell, R., and Gay, O. 2011

[13] Benwell, R. and Gay, O. 2011

[14] Benwell, R. and Gay, O. 2011

[15] ibid