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.