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![[1995] 3 Web JCLI](../../images/thisissu.gif)
Stag Hunting, Irrelevant Considerations and Judicial Review
Robert Thomas
Postgraduate Student,Department of Law, University of Nottingham
< LLXMRT@ccn4.ccc.nottingham.ac.uk>
Copyright © 1996.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press
Ltd.
Summary
Contents
The Facts and The Decisions
In 1974 the respondent, Somerset County Council, appropriated land, Over Stowey Customs Common, which had been used by a hunt, the Quantock Staghounds, since the 1920s. The possibility of banning the hunting of stags had been entertained by the council from 1986 onwards. In 1993 a report had been completed which urged the council to come to a decision on the basis of ethics, animal welfare and social considerations. The council's environment committee had passed a resolution to permit the hunting to continue. In August 1993 the matter went to a meeting of the full council. By 26 votes to 22 the resolution was changed to the effect that stag hunting was to be banned on the land. The main thrust of the debate which had preceded the vote concentrated on the morality and immorality of hunting. Laws J found ([1995] 1 All ER 513, 515j) that the resolution had been passed, in whole or at least in large part, because the majority found stag hunting to be morally repulsive. The applicants, as representatives of the hunt, applied for judicial review of the resolution. On behalf of the council it was argued that Local Government Act 1972 s 120(1)(b), which had not been considered during the councillors' debate, gave it the power to make the resolution. That section provides:
"For the purposes of...(b) the benefit, improvement or development of their area, a principal council may acquire by agreement any land, whether situated inside or outside their area."
The applicants argued that the council had taken account of an irrelevant consideration, the moral issue of hunting, which the section did not cover. At first instance Laws J found that the moral issue was necessarily an irrelevant consideration for the language of the section was not wide enough to allow the councillors' own subjective moral perceptions to influence the making of the resolution. The resolution was therefore quashed. On appeal the Court of Appeal, by a majority, upheld the decision at first instance but employed significantly different reasoning. The case raises important issues of judicial review: irrelevant considerations, the democratic legitimacy of the council and the adequacy of the present grounds of judicial review to deal with political protest by public authorities. These will be dealt with in turn.
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Irrelevant Considerations
To appreciate the different reasoning employed by Laws J and the Court of Appeal it is necessary to examine the premises from which they began. Laws J was keen to emphasise that judicial review was not an appellate jurisdiction in which the court could substitute its view for that of the public authority. With the controversial issues raised by the case and judicial review receiving greater amounts of (largely uninformed) publicity, it was important that the basis for the intervention of the court be clearly explained. Laws J began from the fundamental principle of the common law which provides that a public authority, unlike a private person or body, does not have an unfettered discretion to act as it pleases. The rule of law demands that a public authority only make a decision or adopt a course of conduct if it can find positive law to justify it (see the comments of Lord Atkin, giving the opinion of the Privy Council, in Eshugbayi Eleko v Officer Administering the Government of Nigeria [1931] AC 662, 670). Laws J ([1995] 1 All ER 513, 524j) put the point well:
"It is in this sense that it [a public authority] has no rights of its own, no axe to grind beyond its public responsibility: a responsibility which defines its purpose and justifies its existence. Under our law, this is true of every public body. The rule is necessary in order to protect the people from arbitrary interference by those set in power over them."
The law of judicial review has developed judicially created doctrines to ensure that public authorities keep within the law, and thus safeguarding the efficacy of the rule of law. In the locus classicus Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 228 Lord Greene MR set out the principles upon which the courts legitimately can interfere with administrative decisions. A failure by a public authority to have regard to matters which ought to have been considered, which is to be derived either expressly or by implication from the statute under which it purports to act, will be an abuse of its discretion. Similarly, if certain matters are considered, which from the subject matter and the general interpretation of the statute are held by the court to be irrelevant, then this will amount to a defect in the decision-making process. Lord Greene MR also set out the head of challenge known as Wednesbury unreasonableness: a decision which is so unreasonable that no reasonable authority could have arrived at it (for a recent examination of this head see Walker 1995). In Padfield v Ministry of Agriculture, Fisheries and Food [1968] AC 997, the House of Lords held that a public authority must not act so as to frustrate the policy and purposes of the statute under which it acts. Every statute has a purpose for which Parliament gave the public authority power to act in the public interest. A decision which frustrates this purpose, ie a decision made for an improper purpose, will be as contrary to law as if it were to conflict with express statutory language. Padfield is little more than a reformulation of the Wednesbury principles for a public authority which adopts a decision for an improper purpose will have failed to exercise its discretion according to law for it would either have failed to have regard to relevant considerations or taken account of irrelevant considerations. Such questions are 'hard-edged' because the court can correct the public authority concerning such questions though it is not for the court to decide how much weight a particular consideration or purpose should be given provided that it may be had regard to.
Having approached the matter thus Laws J went on to decide whether the councillors were entitled to have regard to their moral views on hunting under the terms of the power. In his view Laws J concluded that the statutory language was not broad enough to allow subjective moral views to form the basis of a the resolution. It was necessary, thought Laws J, for the ban on hunting to be objectively justified as it interfered with the lawful activity of the hunt. As the section did not expressly allow moral views to be taken account of or to form the basis of a resolution, as happened here, it was not objectively justified in law. The court would presume against a body having the power to restrict personal freedom unless express statutory language conferred the power to the body for it to impose its moral views upon others. The fundamental principle of the common law which Laws J discussed was that a public authority could only act within the powers it had been given, whilst a private person could do anything which it is not prohibited by law.
The Court of Appeal disagreed with this construction of s 120(1)(b) and did not adopt an approach similar to that of Laws J. Rather the matter was treated as a piece of statutory interpretation alone. All three members of the Court of Appeal, Sir Thomas Bingham MR, Simon Brown and Swinton Thomas LJJ, agreed that s 120(1)(b) had been construed too narrowly by Laws J. Sir Thomas Bingham MR thought that as the statutory language was broad, it would be placing an unwarranted restriction upon the provision to hold that the moral argument was necessarily irrelevant to the exercise of the power. Simon Brown LJ stated that for his own part, he considered the moral argument to be necessarily relevant; a disregard of which may have led to criticism of the decision-making process. Sir Thomas Bingham MR stated that the acceptance of the moral argument by the council in making the resolution was not an attempt to regulate the moral opinions of the stag-hunters. In the opinion of Simon Brown LJ it was inappropriate to speak in terms of a manifest restriction of freedom, as Laws J had done, because the hunt required a licence to conduct its activities. Both of these last two comments tend towards a view of the resolution as not being an interference with the freedom of the hunt. However, they are both somewhat overstated. The council was not attempting to enforce a particular moral code upon the hunt. It was seeking to prevent a lawful activity because of the subjective moral views of its majority. Had the council not thought hunting to be morally repulsive, the resolution would not have been made. In effect the council was telling the hunt to either give up its activity or be banned. It is therefore difficult to state that the council was not attempting to control the morals of the hunt. With regard to Simon Brown LJ's comment, many activities may be carried out by virtue of a licence and the interference with which may impinge upon personal liberty. For example, passports are required for overseas travel. Administrative acts concerning the issue of passports have been judicially recognised as concerning the rights of individuals and their freedom to travel (R v Secretary of State for Foreign and Commonwealth Affairs ex parte Everett [1989] QB 811, 820D per Taylor LJ). The absence of a statutorily conferred right or the existence of a system of regulation cannot therefore logically deny the freedoms of the individual to do as they please provided that it is not prohibited by law.
The Court of Appeal held that the moral argument fell into the category of considerations which may be had regard to if the public authority thinks it right to do so ([1995] 3 All ER 20, 28a, 32e). As it was not prohibited by the statutory power it was clearly a permissible consideration. The fundamental difference in approach between the Court of Appeal and Laws J is that stag-hunting was not seen as being a lawful activity in the absence of a statutorily conferred right. Simon Brown LJ commented obiter that his judgment may have been otherwise had the right to hunt been conferred by statute (ibid, 33c). What the Court of Appeal did here involved a sleight of hand as to why the stag hunting was not a lawful activity unless prohibited by law. The major principle of the common law that Laws J went to lengths to explain was ignored by the Court of Appeal. However, the appeal was dismissed nonetheless because the council had failed to address its mind to the terms of s 120(1)(b) when making the resolution. The Master of the Rolls did not consider this to be a mere formal omission:
"In the absence of legal guidance, it was not, I think, appreciated that personal views, however strongly held, had to be related to the benefit of the area."(ibid, 29a)
Swinton Thomas LJ agreed; the failure of the councillors to consider the statutory power led to the resolution being quashed. Simon Brown LJ dissented in this point. In his view the statutory power mirrored the common law constraints on public decision-making that public authorities act in the public interest, which the councillors did not lose sight of. Where exactly the majority of the Court of Appeal derived such a requirement from is unclear. To adopt a ground of review based upon the failure of a public authority to have considered the statutory constraints under which it acts, although its decision might otherwise be lawful, is a potentially far-reaching ground. Many public decisions are made without legal advice and would be challengeable under this ground. This may not be a bad thing in itself, however, neither precedent or principle would appear to support such a development. As Laws J ([1995] 1 All ER 513, 523g) stated:
"[T]he facts that they [the councillors] were neither aware nor advised of section 120(1)(b) has no bearing in logic upon the question whether in the result they acted within its limits."
If a public decision is legal then it can remain as such despite the absence of legal guidance although this legality may be more by luck than judgment. Whilst regard to the legal constraints might produce better decision-making, and so is to be encouraged, for it to become a ground under which decisions can be challenged would appear to have little merit.
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Democratic Legitimacy
Before both Laws J and the Court of Appeal it was argued that the use of a statutory power by a democratically elected body deserved to be paid due respect by a court reviewing the exercise of that power. The democratic nature of the council, it was argued, entailed a greater legitimacy and so the resolution was to be benevolently viewed by the court. Slattery v Naylor (1888) 13 App Cas 446, 452-3 and Kruse v Johnson [1898] 2 QB 91, 97 were relied upon to support this argument. Both of these cases concerned challenges to the reasonableness of by-laws. In the latter case Lord Russell CJ had stated:
"[W]hen the Court is called upon to consider the by-laws of public representative bodies clothed with ample authority which I have described, and exercising that authority accompanied by the checks and safeguards which have been mentioned, I think the consideration of such by-laws ought to be approached from a different standpoint. They ought to be supported if possible."
It is important however to see the distinguishing features between this dictum and the immediate case. Kruse v Johnson was a challenge to the reasonableness of a by-law made under a wide discretionary power upon which formal safeguards existed: the by- laws were not to take effect until the Local Government Board had confirmed them. However, in Fewings the challenge was not to the reasonableness of the resolution but as to whether the council had the legal authority to take account of the moral arguments against hunting. This is a 'hard-edged' question upon which the court can substitute its view for that of the council for the court is the only body who can make determinations upon the law. Furthermore, there were no safeguards which the resolution had to pass. The only safeguard, as Laws J recognised ([1995] 1 All ER 513, 529c), was for the court to decide whether the council acted within its jurisdiction or not. Sir Thomas Bingham MR also rejected this argument, ([1995] 1 All ER 20, 29b-c) though Swinton Thomas LJ appears to have thought it well founded (ibid, 36c).
It is not surprising that the argument did not succeed for it would lead to less rigorous standards of legality being applied to public authorities due to their democratic credentials. Some may argue in favour of decisions being made by elected bodies rather than unelected judges. This, however, betrays a failure to appreciate the function of judicial review which is to ensure public decisions are justified in law. If a public authority could set the limits to its own power or the exercise of those powers were to be more deferentially reviewed by the courts by virtue of the democratic nature of the public authority, the efficacy of the rule of law which judicial review serves to protect would be hampered. In X Ltd v Morgan Grampian Ltd. [1991] 1 AC 1, 48 Lord Bridge stated:
"In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament and the sovereignty of the Queen's courts in interpreting and applying the law."
For a court to adopt a favourable interpretation of a democratically elected body's power without express statutory authority would ultimately serve to undermine the sovereignty of the courts to decide questions of law and the sovereignty of Parliament. As only the courts can declare public decisions invalid. A rule of interpretation which pays regard to the democratic nature of the body by adopting less rigorous standards of legality could lead to decisions which are outside the powers conferred by the statute under which they are made, and hence unlawful. The rejection of this argument therefore ensures the strength of judicial review as a mechanism for the efficiency of the rule of law. This is not to deny that the democratic nature of the public authority body will be relevant when a Wednesbury challenge is mounted, as was recognised by Lord Scarman in Nottingham County Council v Secretary of State for the Environment [1986] AC 240, 247E-G and Lord Bridge in R v Secretary of State for Environment ex parte Hammersmith and Fulham London Borough Council [1991] 1 AC 521, 597E-H.
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Political Protests
Fewings is one of the most recent in the long line of cases concerning public authorities and political protest including Wheeler v Leicester City Council [1985] AC 1054, where the House of Lords held that the council could not punish people for their lawfully held views, and R v Coventry City Council ex parte Phoenix Aviation [1995] 3 All ER 37, where the Queen's Bench Divisional Court quashed the decisions of three councils to ban trade in live exports because the councils had allowed themselves to be influenced by the unlawful protests of animal rights activists. Cram (Cram 1995, p 215) has argued that the approach adopted by the courts to deal with the issues that arise in such cases is inadequate in two ways. First, the standards used to test the legality of such decisions have resulted in different judicial responses. Different judges use different tests, such as irrelevant considerations or improper purposes or Wednesbury unreasonableness (Associated Provincial Pictures Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). This, Cram argues, results in uncertainty. However, this criticism is of little force. If a public authority acts for an improper purpose then this will also be an irrelevant consideration. It may be that this results in a decision which is so absurd that no reasonable authority could have come to it. What is important for the public authority is whether the decision is upheld or not. These tests do overlap to a great extent as was recognised in Wednesbury itself [1948] 1 KB 223, 229. There Lord Greene MR instanced the example given by Warrington LJ in Short v Poole Corporation [1926] Ch 66, 90-91 of a school teacher being dismissed due to having red hair. Such a decision could be unreasonable because it took account of irrelevant matters (hair colour is not relevant to fitness to teach) or was so unreasonable that no reasonable authority could have come to it. What the public authority is concerned about is whether its decision can stand and, if not, whether it can arrive at the same result after amending it's decision-making process. As the tests do overlap and judges tailor their application of them to the case before them, it is an empty criticism to state that uncertainty has been caused by what is sometimes little more than a semantic difference. Certainly the substantive decisions have not turned on whether irrelevant considerations, improper purposes or Wednesbury unreasonableness have been used.Secondly, Cram states that judges may have found it difficult to prevent their intuitive feelings on the merits of an impugned decision influencing their decision. Certainly criticisms to this effect have been levelled at the courts dealing with politically controversial cases. However, can this be substantiated? Laws J has both judicially, [1995] 1 All ER 513, 515d-j, and extra-judicially (Laws 1994) explained that despite the politically controversial nature of a challenged decision, the courts must review it, if called upon to do so, within the limits of their supervisory jurisdiction. See also Sir Thomas Bingham MR at [1995] 1 All ER 20, 24g- j. There is no evidence to suggest that any hostility was shown by the courts towards animal welfare activists in either Fewings or Phoenix Aviation solely due to their beliefs. Accusations of the judiciary being politically partisan have to be fully substantiated if they are to be accepted.
It may then be thought that Cram's criticisms command superficial appeal. However, there is some interest in examining the solution he proposes, even though it amounts to a solution for something which is not a problem at all. Cram's alternative approach for the courts to adopt is the French public law doctrine of the neutrality of the public service. This doctrine demands that public authorities cannot use discretionary powers to discriminate against others due to their political views. Public authorities should instead adopt a politically neutral position. Cram claims that this doctrine would prevent discriminatory conduct such as the banning of stag hunting in Fewings, and prevent the courts from being accused of political partisanship. The introduction of legal concepts from other jurisdictions cannot, however, be neatly adopted without more because it would appear suitable to do so. Boyron (1992, p 238) comments:
"Such concepts cannot be viewed in isolation, but are integrally related to the whole theoretical framework which exists within a particular legal system. If the proposed 'transplant' does not take into account the framework into which it is integrated, the graft could be rejected or could lead to endless problems."
The principle of neutrality of the public service would have no place in English administrative law for there is no concept of the public service (Bell 1995, pp 72-73). This would serve to frustrate the operation of the doctrine in English law. Furthermore, it would have little utility in the type of case where Cram states that it would have its most obvious application, ie where a public authority has no legislative power to pursue its own political campaign. Such a case would be struck down as a simple example of an unlawful decision due to a lack of power to pursue such a course, which was the basis of the decision of Laws J However, the alternative approach suffers from a more fundamental problem. Cram provides no argument as to why public services or public authorities should act in a politically neutral manner, apart from arguing that it would resolve the problems Cram identifies with the present approach of the courts to such issues. Public authorities can do anything which they are legally empowered to do. The cited cases are examples of nothing more than that the public authorities in those cases did not have the power to legally justify their actions. The cases say nothing about whether or not public authorities should have the power to act in such ways. To claim that the courts in those cases seemed to disapprove of such action, and therefore the principle of neutrality should be adopted, is therefore implausible. In Fewings the resolution was disapproved of by the court at first instance because an irrelevant consideration was taken into account. In Phoenix Aviation the court disapproved of the local authorities' decisions to ban live animal exports from the ports because they had allowed themselves to be influenced by the unlawful conduct of the demonstrators. In neither case did the court base its decision upon the fact that the public authorities' action had politically discriminatory results or that public authorities should, as a matter of principle, act in a politically neutral way. To advocate the adoption of a principle of neutrality of the public service without providing a reasoned justification for doing so is not only unconvincing but potentially dangerous: if adopted it could lead to courts inquiring into the merits of administrative decisions which judicial review serves to guard against. Although the doctrine of the neutrality of the public service may be a useful comparator through which the English case law can be better understood, its adoption as a principle of judicial review would cause more problems than it would solve and prove to be unnecessary in any event.
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Conclusion
Judicial review is a function of the legality of the lawfulness of administrative decisions and of the competing demands of administrative decision-making. Every application made is a test not only of the legality of the public decision but of the limits of the courts inherent supervisory jurisdiction. Having established that judicial review can serve to protect the freedom of private individuals to do as they please unless otherwise prohibited by law, it was mistaken for the Court of Appeal to treat the issue of the moral argument concerning hunting as no more than a question of statutory interpretation.
Bibliography
Bell, J (1995) 'English Law and French Law - Not So Different' 48 Current Legal Problems Part 2: Collected Papers 63.
Boyron, S (1992) 'Proportionality in English Administrative Law: A Faulty Translation?' 12 Oxford Journal of Legal Studies 237.
Cram, I (1995) 'Public Authorities, Political Protest and Judicial Review' 24 Scots Law Times 213.
Laws, Sir John (1995) 'Law and Democracy' Public Law 72.
Walker, P (1995) 'What’s Wrong With Irrationality?' Public Law 556.