Problem Question Example 1: Law

Title: Constitutional & Administrative Law

Source: British Academic Written English corpus

Course tutor’s note: We do not know what the actual question was – we assume that the student
was being asked to consider cases X, Y, and Z, and determine where there was a legal case to
answer, and what the procedure would be.

Procedural Issues

Before considering the substantive arguments for judicial review, there are a number of procedural
issues to address. The Exclusivity Principle [1] requires that claims for judicial review be brought by
judicial review procedure [2] rather than ordinary civil procedure. Although the special judicial
review procedure has been criticised [3], and the Exclusivity Principle diluted [4], it is still considered
an abuse of process to avoid the procedural protections afforded to public bodies under judicial
review [5].

Firstly, is the school disciplinary panel susceptible to review? Only 'public bodies' can be judicially
reviewed. Statutory powers are presumptively public [6]. A state school is a classic governmental
body with statutory source [7] and public functions. The decisions are suitable for judicial review as
they adversely affect the individuals concerned [8].

Secondly, permission to apply for judicial review requires: Standing: in order to avoid the courts
becoming lobby grounds, judicial review is restricted to those with a 'sufficient interest' [9] in
challenging the decision. The decision must affect the applicant's rights or interests [10]

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Arguable case: The merits of the case are considered at the permission stage as well as during the
substantive hearing. Although justified to filter out frivolous claims [17], this can lead to a fusion of
questions of standing with issues of merits [18], which might more appropriately be considered at a
later stage. Again the discretionary nature of judicial decision-making makes it difficult to predict
whether the applicants would be adjudged as having arguable cases, however, these are allegations
of serious administrative errors based on well-structured grounds of review.

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Substantive Issues

If the applicants overcome these procedural hurdles, their substantive arguments will be tested.
From the start the court will take into account the remedy being sought, as this is relevant to the
balancing of public and private interests which is central to judicial review. As the decisions in this
case are easily reversible, the prerogative quashing order may be appropriate. Alternatively, they
could seek a mandatory order of readmission [20], or, if X and Z have already found a new school,
they may simply desire a declaration of unlawfulness.
Case X

On automatic expulsion for a second positive test for cannabis, X argues: That it was unfair for the
panel not to consider a medical report suggesting that the drug may have remained in his system
since the first test. This raises issues of illegality and irrationality as well as procedural impropriety.
In relation to procedural impropriety, 'fairness' is often used synonymously with 'natural justice' [21]
when the decisions are made in an everyday administrative context such as this. The term is flexible
[22].

In a broad sense it requires a balancing of the individual interests at stake, the benefits to be gained
by following the correct procedure and the costs of complying. The protection applies to decision-
making which affects the rights and interests of individuals [23], therefore the panel's power to
expel X, impacting on a very important interest [24], is subject to these rules. It remains to be
considered whether the rules of fairness have been breached. In refusing to consider the medical
report, it is arguable that X was denied a fair hearing.

A duty to provide a hearing applies whenever an individual may suffer detriment as a result of a
decision [25], and is most stringently applied where the sanction imposed would deprive a person of
his livelihood [26] - a close analogy can be drawn with expulsion from school, which has long-term
effects on education and career. As the requirements of a fair hearing vary according to the
circumstances [27], an oral hearing and strict rules of evidence may not apply [28] For reasons of
time and cost, judicial review procedure places limits on the exploration of disputed factual matters.
Therefore, X's broad entitlement to a hearing may not extend as far as the right to introduce the
medical report.

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Case Y

Suspended for a term after a positive test for cannabis, Y alleges that the panel was biased because:
Y had previously made a complaint about the behaviour of one of the teachers. Y can argue that this
teacher would not provide her with a fair and impartial hearing. There is no need to show actual
victimisation [59]; appearance of bias is enough [60]. Porter v Magill [61] requires the reviewing
court to consider whether, having regard to relevant circumstances, the fair-minded and impartial
observer would consider that there was a 'real possibility' of bias. We would need to know more
about the circumstances of the complaint and Y's relationship with this teacher. For example, how
long ago was the complaint made? How serious a complaint was it? The fact that the complaint was
dismissed is not necessarily relevant as the very fact that Y complained may be perceived as giving
rise to animosity on the part of the teacher.

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Appeal

If an appeal process is available, an application for judicial review will usually, although not always
[88], only be granted if this avenue has been exhausted [89]. If there is an appeal, lower standards
may be expected of the original decision-maker [90]. Procedural defects may be considered 'cured'
by an appeal [91]. In Y's case, a hearing before an impartial Local Authority board may 'cure' any
initial bias. In X's case, a full rehearing may be necessary in order for the procedure as a whole to be
considered fair. For Z, the Local Authority may present the same problem of financial bias. In all 3
cases, the existence of an appeal presents a powerful argument to impose a duty to give reasons for
the decisions [92] as it would be difficult to frame an effective appeal without reasons.