Judicial Review Lecture 3
Alan Davenport
Track/Slide 2
The first of the two categories of procedural impropriety I’m going to deal with is a breach in express statutory requirement. In the majority of times this will be a statutory requirement to consult. The first example is the case that’s colloquially known as the Aylesbury Mushrooms case. The Agricultural, Horticultural and Forestry Industry Training Board v. Aylesbury Mushrooms [1972] 1 All ER 280. This is about mushroom growing and, as you will appreciate, it is a fairly lucrative operation. In this case the Industry Training Board had failed to consult Aylesbury Mushrooms before it made the decision. Now the statute under which the decision was made quite clearly said that consultation should be carried out. So what was the court going to say? The court said this. Because the Agricultural, Horticultural and Forestry Industry Training Board had failed todo what the statute told it to do, the decision it made would not apply to Aylesbury Mushrooms. It would apply to all those bodies it had consulted but it would not apply to Aylesbury Mushrooms. So we’ve got a pragmatic solution there because clearly if the courts are not going to, if you like, punish bodies for failing to fulfil statutory requirements, there’s very little incentive for them to do so, where to do so is inconvenient. However, to have annulled the whole decision on the basis of a lack of consultation with one body would have prejudiced the needs for good administration and would have caused administrative chaos. So it took a pragmatic decision with a lack of consultation with Aylesbury Mushrooms affected the decision as it applied to them but not the decision as it applied to other people who had been consulted. Bear in mind that very much as the CCSU case, there would have been an option for the Agricultural, Horticultural and Forestry Industry Training Board to go back, consult Aylesbury Mushrooms as they were supposed to, and then make exactly the same decision. So again it’s the limits of judicial review that have to be noted here but again it’s a fairly pragmatic decision, so everybody’s reasonably happy.
Now a similar case was R v. Brent LBC ex p Gunning, which is (1985) 84 LGR 168. Now in Gunning we are dealing with the very vexed issue of closure and/or reorganisation of schools, which if you live in certain areas of the UK at the moment, you know is a very very vexed issue. Now in Gunning what the court ruled is this. If parents were not given a statutory right to be consulted and there was no express statutory requirement to consult them, the court would imply such a requirement because of the importance of the decisions to the parents and their offspring. So even where there isn’t an express statutory requirement, councils particularly have to be very careful because if they don’t take on board some of these implied requirements, they could be in trouble. So it’s just an example there where although there was no express statutory requirement, the court felt that because there was such an important issue at stake, a procedural requirement should in fact be implied, that of consultation. Again it’s a requirement of consultation. That means you let people have a chance to put forward their views. There’s no actual obligation to take any notice of consultation but there is an obligation to listen and be seen to be listening.
Now the third case, R v. S of S for Social Services ex p AMA with the Association of Metropolitan Authorities. Now this is deals with the issue of housing benefit, which is a public benefit given to people on low incomes or people on benefits already. Now under the law at the time, before making any new regulations on housing benefit, the Secretary of State for Social Services was under a statutory obligation to consult the Association of Metropolitan Authorities. Well in this case he didn’t. For whatever reason we don’t know. But the fact remains when it came to court the Association of Metropolitan Authorities were arguing there was a statutory requirement to consult and the Secretary of State for Social Services had quite simply failed to fulfil it. Here the court agreed. So we might think “Well that’s great”. However this is where we run into a problem. And this is where we run into something that relates back to what I said in the first lecture. All the court was prepared to do was actually give a declaration that these regulations had been made without consulting the AMA and in fact the AMA should have been consulted. They did not invalidate the regulations, again because as in the previous point, it would have caused administrative chaos. So the only sanction was a declaration to a body that it should have been consulted but there was no actual sanction in terms of the regulations themselves because they remained the same. So you might wonder if you are in the AMA what was the point? You have a declaration that says the Secretary of State for Social Services failed to follow a statutory procedure and that’s it. You have a declaration. Well, wonderful, what can I do with that declaration? The answer I’m afraid is very little. So all they could do is declare they should have been consulted because of administrative chaos. So the here the Secretary of State for Social Services had effectively got away with failing to comply with the statutory requirement and if you do allow people to do that, it makes one wonder why they have statutory requirements in the first place and why you can call them requirements. But that’s just some examples then of breach of express statutory requirements as procedural impropriety.