Ws 2 grounds for review
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This document discusses key principles of administrative law in the Caribbean context. It covers several topics: 1) Grounds for judicial review including jurisdiction, illegality, irrationality, and procedural fairness. 2) Errors of law made by public authorities including misinterpretation of statutes and failure to comply with statutory requirements. 3) How public authorities exercise discretionary powers including the need for decisions to be reasonable and not fettered or made in bad faith. 4) Standards of review applied by courts, particularly Wednesbury unreasonableness and the increasing use of proportionality.
Ws 2 grounds for review
- 2. Barbados AJA s 4; TT JRA s 5(3) Public law not about rights per se but rather about wrongs/misuses of public power (AG St Christopher v Reynolds: retired inspector of Police detained unlawfully, no grounds for review) Must show: Person/body under legal duty to act a certain way Decision made was lawful Decision not UV 1) Jurisdiction Where do powers come from (discretionary powers court may second guess) Scope of the powers Have they acted illegally (UV, irrational, proportionate) Additional grounds: Deprivation of legitimate expectation Absentee of statutory basis 3/5/2014 2
- 3. B. Errors of law: AJA 4(j); JRA 5(3)(j) 1) Introduction JR=legality of decision Error in law amounts to: Purporting a non existent law (Stanislaus v AGTT_ magistrate prescribing a sentence that did not exist in law 5 years instead of 3) Misinterpretation of statute Legal basis upon which decision was made 2) Statutory interpretation Check what the law is Interpret the scope Interpret application (Cable Bahamas v PUC: PUC to establish standard of technology to use not the type) 3) Service Commissions: Subject to review 3/5/2014 3
- 4. 4) Fundamental rights and freedoms Must consider whether there is an infringement on rights Must distinguish between substantive errors and procedural for the purposes of due process (Ali v AGTT) 5) Mistaken view of law Error on the face of it court may require Error on a complaint or indictment does not amount to an error in law and is not a ground for JR (Andrews v DPP – mistaken view of law not a ground for review) 6) Interim Relief Judge makes error in granting relief where an issue exist (Belize Water services v AG – judge erred in law in holding that there was an arguable case) 7) Reasons: will be dealt with later on C. Error of fact 1) Errors of law and facts: 3/5/2014 4
- 5. Considers jurisdiction and form as bases of quashing decision of PA because: Misunderstanding of legal terms by the PA in making decision Incorrectly evaluate facts in determining its power Re Doyll Insurance Company – registrar interpreted the law wrongly and there was no causal link between behaviour and the purported consequential loss. 2) no evidential basis – error of law/fact no factual basis for decisions made by the PA (Bovell v COP –no evidence to support the decisions made neither in law or reasoning). D) Subjectivity Manner in which discretion is exercised: Did it consider the relevant matters Was it reasonable and fair (usually affects areas where licenses are granted) 3/5/2014 5
- 6. Burroughes v Katwaroo: COP having wide discretion to revoke gun licenses if he thinks fit – must include reasonability) E) Non compliance with statutory requirement PA did not confer with statute that conferred power equal unlawful decision Cases: Arawak trustee Co Ltd v Holden: Bank inspector has statutory authority to inspect personal and confidential files to facilitate the performance of his function not for mere suspicion Mossell Ltd v Office of Utilities Regulation: Minister operated outside the scope of his power when it issued a specific instead of general direction regarding rates fixing. F) Mandatory/Directory Mandatory requirement: non observance leads to invalidity of the action and result in it being void (directory is the opposite) 3/5/2014 6
- 7. 1) Old approach Old approach was rigid and kept in line with the procedure Whether the requirement that was not complied with was mandatory or directory Where legislation is not explicit courts decide considering: Statutory intention(construction of statute) Holding condition ineffective or rigid Importance of the condition Prejudice of rights, public interest Cases: Barrow v Hoyte: the effect of statute where a Christian mission is to hold meetings annually_ deemed mandatory Biggs v COP: minister’s duty to lay SI before parliament for negative resolution-mandatory 3/5/2014 7
- 8. 2) Modern approach: Whether the statutory requirements were mandatory/directory Court now exercises discretionary element because Statutory requirement not intended to fetter the purpose of the law. Charles v JLC: whether or not adhering to time limits for disciplinary action fetter the purpose of investigations. (Wang case was employed-avoid the use of rigid classification such as mandatory/directory consider whether legislature intended that the legislation be complied with; if so, did they intend that a failure to adhere to time to deprive the legislature from making a decision) 2) Retention of Discretion A) Introduction Discretion a legal power not a duty Legislation confers the power 3/5/2014 8
- 9. Consideration must be given to Nature of discretion Presumed intention of parliament Who should exercise the power How should it be exercised? (reasonably, good faith, proper grounds, must not be abused) (EXP Thompson: though cabinet exercise its power it must be done discretionary) PA does not have unfettered discretion Court still maintains a reluctance to interfere with policy providing the above things are realized. B) retention of discretion 1. General Discretion conferred on PA by: statute, usually contains a proviso 3/5/2014 9 Discretion must be exercised in an open mind
- 10. Cases: Bahadur v AG TT: license suspended as a result of manslaughter charge. Upheld, no need for oral hearing, act empowered and provide reason. Bahamas Air Traffic union v Bahamas government: suspending of air traffic controllers for investigation purpose was unlawful and the PS was unreasonable and arbitrary in his decision 2) Constitutionality of Discretion: Presumption: legislation confers discretion and a decision may amount to going against the constitution (Bellot v AG Dominica: refusing permission for a march fell within the discretion of the minister who was responsible for public order-not necessarily unconstitutional 3) FA license 3/5/2014 10
- 11. Burroughs v Katwaroo: revocation of FA license “if he thinks fit” wide discretion that must be administered within reason Narayinsingh v COP TT: revocation on the basis of house search…unfair and outside of the scope of the power that discretion endowed, oral hearing not necessary however written procedure acceptable Difference between the two cases: Katwaroo employed an objective test and court did not wish to trample on powers of COP Naraysingh: reasoning was not sufficient fair and without evidence 4) Liquor license Usually policy based but court examines the exercising of the powers on the basis of the impact of the livelihood of the applicant or legitimate interest of the holder. 3/5/2014 11
- 12. (Butler & Sands v Licensing authority: license refused because shares was transferred – unlawful because of misinterpreting the power of the statute. 5 )Immigration Powers to expel or refuse entry (must exercise within reason done not be arbitrary (ExP Shafer: VP was revoked , court upheld and said the law intended that any permit can be revoke by the IO extension the Minister (Criticism: ventose does not agree-indicating that it is wrong precedence as decisions of the PA is not absolute and the court took a restrictive approach) 6 ) Telecommunication: concerns the issuing of license and the exercise in discretion (Digecell Ltd V Telecom Regulations –unfair and inconsistent terms in the laying of applications for license…deemed unreasonable and inconsistent) 3/5/2014 12
- 13. 7) Environmental : same issues of when exercising discretion must not be arbitrary, must be within reason. (fisherman & Friends case: EMA was not arbitrary nor did not act illegal in issuing license) C) Abdication Per/Pa with authority to make decision cannot abdicate there responsibility (Bell v COP: COP was found not to have abdicate his responsibility when he forwarded appeal to GG, appeal was laid wrongly ) D) delegation: PA cannot delegate its powers unless There is a provision for it Reasonable implication of circumstances Ramdatt v PSAB: COP delegation of responsibility to the assistant commissioner was lawfully, mode of executing duty of the PSC 3) Abuse of power: 3/5/2014 13
- 14. a. Introduction PA must not fetter discretion Must not act in bad faith, but consider all relevant consideration Must exercise discretion reasonably b. Fettering discretion Sticking to policy with no flexibility, no independent judgement – too much rigidity (granting a lic should be examined on its own merits) Maharaj v Statutory Service commission: decision to appoint an officer was fettered by the objection of the PM without any objective reasoning Campbell v COP TT: applicant seeks promotion says points system fettered discretion of COP and goes against the regulations, court did not agree 3/5/2014 14
- 15. Determining whether decision fettered: Read and interpret the law What is the scope of the power What is the object of the law How far did the decision go (check fact pattern) c. Improper purpose Statutory power must be exercised for the purpose for which it was intended Determining general purpose: Interpret statute (discern scope, power purpose, objective) Glean from the facts the purpose of the particular exercise Construe the power How was the power used 3/5/2014 15
- 16. Did it fall within the scope Not allowed to operate UV Francois v AG St Lucia: parliament did not act improper in the guaranteeing of a refinancing loan as it fell with capital and recurrent expenditure Crutchfield, Re Belize: Immigration on the face of it did not operate on improper purpose but rather for a duality of purpose where the dominant purpose must be determined in an deportation case d. Bad faith Must exercise good faith(reasoning must be legitimate) Bad faith (acting on unreasonable grounds) includes: dishonesty, fraud, intention to spite Pleadings must be specific and must be proven (evidentiary base) 3/5/2014 16
- 17. Andrews v DPP: DPP did not act in bad faith to discontinue a rape case…it amounted to an abuse of process (a busybody) Ag St Lucia v Kenny Anthony: court found that cabinet had acted in bad faith in including a dwelling house a description among a villa that they had granted a tax exemption, belonging to a sitting minister-tampering with the administration of justice. e. Irrelevant Consideration (Barbados AJA s 4(g); TT JRA s5(3)(g) Considering materials that ought not impact the decision and has no bearing on the subject matter (Astephan v AG Dominica-consideration given to treaty for trading in OECs before granting an import licence when Dominica had not signed on to it) Stepping outside of the powers conferred (Texaco Caribbean v Minister: law was correct, included relevant 3/5/2014 17 consideration
- 18. Tutorial 21.2.13-case study 4 Standard of review a. Introduction Court must be mindful of its role Having a pragmatic approach in ensuring fairness/rationality in the review b. Wednesbury reasonableness Means: decision was unreasonable when it was so absurd that no reasonable authority could have come to that conclusion (Lord Dennning – Council of Civil Service Union v Minister of the Public Service) Unreasonableness – established as an independent head of wrong doing Wednesbury is wide test Requires overwhelming evidence Limbs include irrelevant consideration, unreasonableness (Bishop v HM corner – coroner was not unreasonable to draw the conclusion of the decease that he did as his findings are based on facts) 3/5/2014 18
- 19. c. Proportionality Measures must not be more than is necessary to get the 3/5/2014 desired result Usually used in relation to human rights (Defreitas – locus for proportionality test: legislative objective, measure to achieve that and means used to impair right must not be no more than is necessary) Element of the test was missing (R v Oakes introduce the balance of the interest of society and the individuals/groups) Wednesdbury took blows from this because some deems that test to be too narrow and this one more expansive (Benjamin v AG Antigua) Caribbean courts have applied Wednesbury test with a degree of proportionality Criticism of Wednesbury: scope not expansive because it only apply when the decision was absurd and this gave undue deference to PA to the detriment of persons whose rights were implicated 19
- 20. Proportionality practiced in the Caribbean (Northern Jamaican Conservation v Natural Resources Conservation Authority- proportionality is more refined technique…but not a separate ground and is used in addition with other admin law rules without trespassing in the domain of the executive) 3/5/2014 20