Judicial Review Lecture 2

Alan Davenport

Track/Slide 3

The first case I want to look at then is Padfield v. the Ministry of Agriculture, Fisheries and Food, commonly known as MAFF. Now in Padfield the issue was whether a minister had correctly refused to refer a matter to a committee, given that the statute appeared to give him carte blanche and unfettered discretion as to whether or not the matter was reviewed. This is what the court said. The court in Padfield said two things which are vitally important for you as judicial review students. Firstly where a statute of discretion is conferred on a public body and the discretion gives no real guidance as to how it is to be used so it’s just very wide – the minister may do as he or she sees fit, then the courts will assume that the discretion is to be exercised in accordance with the policy and objectives of the Act which actually grants that discretion. So there is a limit there. You have to exercise the power in the terms of the policy and objectives of the Act to be followed. In this case they decided the policy and objectives of the Act would have made the minister refer the matter, had he not been politically motivated. So this policy and objectives presumption is one you should be aware of. The second thing they said was this. In Padfield the minister had refused to give any reasons for the decision that had been taken and the court ruled that in those circumstances it was open to a court to infer that where a public body would not give reasons for it’s decision, it had no good lawful reasons and thus the decision would be quashed. So if there’s any hint that’s provable to any sort of reasonable level that a public body’s been acting for political rather than legal reasons, the courts will be very quick to quash their decisions.

Two more cases I’ll look at now will show you exactly what I mean. The first is Wheeler v. Leicester City Council [1985] 2 All ER 1106. The genesis of this is in fact a tour by British Lions, which is players from the home four nations, to South Africa. This all actually starts with a rugby tour. Three Leicester Rugby Club members were invited to be members of this tour party. Now if you anything about Rugby Union, you know it’s a very high profile tour. Now bear in mind at the time Rugby Union was an amateur game, so these were three members of a members club. Now Leicester has a very high ethnic minority population and Leicester City Council thought that if the players were to go to South Africa, which at the time was ruled on an apartheid basis and which was subject to the Gleneagles Agreement, which was a discouragement from having sports and links, then this might cause race relations problems within Leicester. The Council has a statutory duty under the Race Relations Act to promote good race relations in its area. So what the council effectively did was told the club that if the players went on tour the club would be punished because they would not be allowed to use Leicester City Council facilities for a year. Now bear in mind at the time their training and practice pitches were Leicester City Council pitches so we can see it’s got a great effect on the possible future of the club. The players went and the council attempted to ban the club.

Now Wheeler, who you may know as the former England captain and these other people who had been invited on the tour challenged Leicester City Council’s use of its race relations power to ban the club from their pitches and this is what the House of Lords said by a 4-1 majority. The House of Lords ruled that the council had clearly been motivated by political reasons. They applauded the fact of course that the council was trying to do its best in terms of race relations, which is clearly a very important issue. However, they pointed to three factors, which said that the council couldn’t use its Race Relations Act powers effectively to ban the club. The first one was this. The players were members of a private members club. The club had actually no contractual employment relationship with them and could not force them to do anything. The club could advise them but at the end of the day if the players decided that they were going to go on tour, the court and the club had no way of stopping them. Secondly, whatever people thought of apartheid at the time, it was not unlawful for the players to go on tour.

So the first thing is the club can’t stop them anyway. The second is they’re not actually breaking any laws. Had it been unlawful, then the council may well have had a more firm ground to stand on. The third thing they said was this. Whatever the council’s race relations duties, they couldn’t use them to impose a way of thinking on people. And that’s what they effectively said they were doing here. Now if you read the report, you’ll see that Lord Templeman indeed equates the acts of Leicester City Council to Nazi Germany actions in that they are expecting people to display what he called zeal for a public body’s objective. Now I think he’s gone too far with his use of language there, but quite clearly the point is well made. The council can’t use legal powers to punish people for not agreeing with them on an issue where the law says that you are entitled to have more than one view. But they were acting for political reasons and the decision to ban the club was quashed.

Now a similar political motivation was seen in the Fewings case, R v. Somerset County Council ex p Fewings [1995] 1 All ER 513. This concerned stag hunting in the Quantocks. As you will know from recent publicity about fox hunting, any form of hunting creates quite a lot of political controversy. Now when the new party was elected to Somerset County Council, they decided they didn’t want the stag hunting going on. But how were they actually going to stop it. Well the council has statutory duties to manage and maintain council land. They tried to argue that hunting was damaging the council land on which it took place in the Quantocks, so what they were going to do was ban it under this power. Now Fewings, who was one of the people interested in the hunt, challenged this, arguing that whilst you might applaud the stopping of hunting, that was a political decision and the council’s legal power was to maintain and promote the welfare of the land. Clearly, you couldn’t show that hunting was doing sufficient damage to say it was going against the welfare and the maintenance of the land, so it was clearly a political decision. And again the Court of Appeal, very much as the House of Lords in Wheeler, recognized that the Somerset Council motivations were fairly laudable, i.e. they were trying to prevent something they saw as undesirable, but again because hunting was a lawful activity and because there was no damage that could be shown, the statute they were trying to use was being used politically and simply couldn’t be used for the objective to be achieved. But again, if we look back to the Bromley case, you can see that Somerset County Council are quite clearly wanting to achieve their manifesto commitments so one has to be careful here a) what you promise obviously and b) that the law and the legal and political elements to a decision cannot ever be crossed. That’s much easier for me to say than for you to actually do in practice. These give you three examples where the courts rule you are acting for political reasons that’s invalid. They’re not commenting on your political reasons and whether they’re good or bad. They’re simply saying you have a legal power so you exercise it for legal reasons, not political reasons.