ADMINISTRATIVE LAW II

PREPARED BY DATIUCE DIDACE LWABUGIRWA

Phone:+255 685 563 704.
Email:[email protected]

DEFINITION OF JUDICIAL REVIEW

Is the power of which is given to the high court of law to review the actions of the executive, judicial
and legislative branches or is the special elite in public law by which the high court exercises
supervision over inferior courts, tribunals and other public bodies. Judicial review is one of the checks
and balances in the separation of powers: the power of the judiciary to supervise the legislative and
executive branches.

Case;-
Marbury v. Madison, 1

Facts
On his last day in office, President John Adams appointed two justices of the peace and sixteen new
circuit court justices for the District of Columbia under the Organic Act. The Organic Act was an
attempt by the Federalists to take control of the federal judiciary before Thomas Jefferson took office.
The commissions(mission or job) were signed by President Adams and sealed(secured) by acting
Secretary of State John Marshall (who later became Chief Justice of the Supreme Court and author of
this opinion), but they were not delivered(provided or furnished) before the expiration of Adams’s term
as president. Thomas Jefferson refused to honor the commissions, claiming that they were invalid
because they had not been delivered by the end of Adams’s term.

William Marbury (P) was an intended recipient of an appointment as justice of the peace. Marbury
applied directly to the Supreme Court of the United States for a writ(court order) of mandamus to
compel Jefferson’s Secretary of State, James Madison (D), to deliver the commissions. The Judiciary
Act of 1789 had granted the Supreme Court original jurisdiction to issue writs of mandamus “…to any
courts appointed, or persons holding office, under the authority of the United States.

Held:- It was held that Marbury has a right to the commission, The Supreme Court has the authority to
review acts of Congress and determine whether they are unconstitutional and therefore void. The law
grants Marbury a remedy as the very essence of civil liberty certainly consists in the right of every
individual to claim the protection of the laws whenever he receives an injury. One of the first duties of
government is to afford that protection.

LEGAL PROVISION IN THE CONSTITUTION OF TANZANIA

Article 30 of constitution of United Republic of Tanzania (cap. 2)

(3) Any person claiming that any provision in this Part of this Chapter or in any law concerning his
right or duty owed to him has been, is being or is likely to be violated by any person anywhere in the
United Republic, may institute proceedings for redress in the High Court.

Article 64 of constitution of United Republic of Tanzania (cap. 2)

(5) Without prejudice(injury, harm) to the application of the Constitution of Zanzibar in accordance
with this Constitution shall have the force of law in the whole of the United Republic, and in the event
any other law conflicts with the provisions contained in this Constitution, the Constitution shall prevail
and that other law, to the extent of the inconsistency with the Constitution, shall be void.

Section 17 of the law reform (fatal accidents and miscellaneous Provisions) act

1 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803)

(1) The High Court shall not, whether in the exercise of its civil or criminal jurisdiction, issue any of
the prerogative writs of mandamus, prohibition or certiorari.
(2) In any case where the High Court would but for subsection (1) have had jurisdiction to order the
issue of a writ of mandamus requiring any act to be done or a writ of prohibition prohibiting any
proceedings or matter, or a writ of certiorari removing any proceedings or matter into the High Court
for any purpose, the Court may make an order requiring the act to be done or prohibiting or removing
the proceedings or matter, as the case may be.
(3) No return shall be made to any such order and no pleadings in prohibition shall be allowed, but the
order shall be final, subject to the right of appeal therefrom conferred by subsection (5).

THE ROLE OF THE COURT IN CONTROLLING ADMINISTRATIVE POWER

Judiciary review is one of the controversial(disputable, debatable) issues in administrative law. This is
because of judiciary review is characterized by continuous tension between opposing idea of the
government and the idea of judicial control. The tension ensures that even the blandest case of judicial
review is in a notably political in a world sense.

BASES OF JUDICIAL REVIEW

1. Ultra vires
Is a Latin phrase meaning "beyond the powers". If an act requires legal authority and it is done with
such authority, it is characterized in law as intra vires ("within the powers"). If it is done without such
authority, it is ultra vires. Acts that are intra vires may equivalently be termed "valid" and those which
are ultra vires "invalid".

Ultra Vires acts can also be defined as any excessive use of corporate power that has been granted.
These acts cannot be legally defended in court. They will, in fact, leave the corporation vulnerable to
lawsuits by employees or other parties

Relevant case:-

Marbury v. Madison, 2

Facts
On his last day in office, President John Adams appointed two justices of the peace and sixteen new
circuit court justices for the District of Columbia under the Organic Act. The Organic Act was an
attempt by the Federalists to take control of the federal judiciary before Thomas Jefferson took office.
The commissions (mission or job) were signed by President Adams and sealed (secured) by acting
Secretary of State John Marshall (who later became Chief Justice of the Supreme Court and author of
this opinion), but they were not delivered (provided or furnished) before the expiration of Adams’s
term as president. Thomas Jefferson refused to honor the commissions, claiming that they were invalid
because they had not been delivered by the end of Adams’s term.

William Marbury (P) was an intended recipient of an appointment as justice of the peace. Marbury
applied directly to the Supreme Court of the United States for a writ (court order) of mandamus to

2 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803)

compel Jefferson’s Secretary of State, James Madison (D), to deliver the commissions. The Judiciary
Act of 1789 had granted the Supreme Court original jurisdiction to issue writs of mandamus “…to any
courts appointed, or persons holding office, under the authority of the United States.

Held
It was held that Marbury has a right to the commission, The Supreme Court has the authority to
review acts of Congress and determine whether they are unconstitutional and therefore void. The law
grants Marbury a remedy as the very essence of civil liberty certainly consists in the right of every
individual to claim the protection of the laws whenever he receives an injury. One of the first duties of
government is to afford that protection.

2. Rule of law
The rule of law is the legal principle that law should govern a nation, as opposed to being governed by
arbitrary decisions of individual government officials. It primarily refers to the influence and authority
of law within society, particularly as a constraint upon behavior, including behavior of government
officials.3 The concept was familiar to ancient philosophers such as Aristotle, who wrote "Law should
govern".4

Rule of law implies that every citizen is subject to the law, including law makers themselves. In this
sense, it stands in contrast to an autocracy, collective leadership, dictatorship, or oligarchy where the
rulers are held above the law.

The rule of law is an ambiguous term that can mean different things in different contexts. In one
context the term means rule according to law. No individual can be ordered by the government to pay
civil damages or suffer criminal punishment except in strict accordance with well-established and
clearly defined laws and procedures. In a second context the term means rule under law. No branch of
government is above the law, and no public official may act arbitrarily or unilaterally outside the law.
In a third context the term means rule according to a higher law. No written law may be enforced by
the government unless it conforms with certain unwritten, universal principles of fairness, morality, and
justice that transcend human legal systems.

Rule of law has three major meanings;-

a) Supremacy of the law- The First meaning of the Rule of Law is that 'no man is punishable or can
lawfully be made to suffer in body or goods except for a distinct breach of law' established in the
ordinary legal manner before the ordinary courts of the land. It implies that a man may be punished for
a breach of law and cannot be punished for anything else. No man can be punished except for a breach
of law. An alleged offence is required to be proved before the ordinary courts in accordance with the
ordinary procedure.

Article.107B. Independence of the Judiciary

In exercising the powers of dispensing justice, all courts shall have freedom and shall be required only
to observe the provisions of the Constitution and those of the laws of the land.

b) Equality before the law- The Second meaning of the Rule of Law is that 'no man is above the
law'. Every man whatever be his rank or condition is subject to the ordinary law of the realm and
3 “Civil Affairs and Rule of Law”, Dudley Knox Library
4 Aristotle,Politics 3.16
amenable to the jurisdiction of the ordinary tribunals.

Article.13.-Equality before the law

(1) All persons are equal before the law and are entitled, without any discrimination, to protection and
equality before the law.

c) Predominance of legal spirit- The Third meaning of the rule of law is that the 'general principles
of the constitution are the result of judicial decisions' determining file rights of private persons in
particular cases brought before the Court.

Article 107A Authority of dispensing justice

(1) The Judiciary shall be the authority with final decision in dispensation of justice in the United
Republic of Tanzania.
(2) In delivering decisions in matters of civil and criminal matters in accordance with the laws, the
court shall observe the following principles, that is to say -
(a) impartiality to all without due regard to ones social or economic status;
(b) not to delay dispensation of justice without reasonable ground;
(c) to award reasonable compensation to victims of wrong doings committed by other persons, and in
accordance with the relevant law enacted by the Parliament;
(d) to promote and enhance dispute resolution among persons involved in the disputes.
(e) to dispense justice without being tied up with technicalities provisions which may obstruct
dispensation of justice.

3. Common law (also known as case law or precedent) is law developed by judges through decisions
of courts and similar tribunals that decide individual cases, as opposed to statutes adopted through the
legislative process or regulations issued by the executive branch.5

A "common law system" is a legal system that gives great precedent weight to common law,6 so that
consistent principles applied to similar facts yield similar outcomes.7 The body of past common law
binds judges that make future decisions, just as any other law does, to ensure consistent treatment. In
cases where the parties disagree on what the law is, a common law court looks to past precedential
decisions of relevant courts.

GROUNDS OF JUDICIAL REVIEW

In this the following case Lord Diplock identified three broad grounds for judicial review namely
Illegality, Irrationality and Procedural impropriety;-

Council of Civil Service Unions v. Minister of State for Civil Service. 8

Facts
The Government Communications Headquarters (GCHQ) is a British intelligence agency that provides

5 Lloyd Duhaime. "Common Law Legal Definition".

6 Washington (State) Probate, s.v. "common law", 8 Dec. 2008:,
7 Charles Arnold-Baker, The Companion to British History, s.v. "English Law" (London: Loncross Denholm Press,
2008), 484.
8 (1985) AC 374
signals intelligence to the British government and armed forces. Prior to 1983 its existence was not
acknowledged, despite the fact that it openly recruited graduates. Following a spy scandal in 1983, the
organisation became known to the public, and the government of Margaret Thatcher decided a year
later that employees would not be allowed to join a trade union for national security reasons. The
Minister for the Civil Service is a position held ex officio by the Prime Minister.
This was enforced through an Order in Council, an exercise of the Royal Prerogative (rights, remedies).
Despite an extensive publicity campaign by trade unions, the government refused to reverse its
decision, instead offering affected employees the choice between £1,000 and membership of a staff
association or dismissal. Those employees dismissed could not rely on an industrial tribunal, as they
were not covered by the relevant employment legislation. As such, the Council of Civil Service Unions
decided judicial review was the only available route.

The decision to ban workers at GCHQ from trade union membership had been taken following the
meeting of a select group of ministers and the prime minister rather than the full Cabinet. This is not
unusual, even in relation to high-profile decisions: a decision was similarly taken to authorise the Suez
operation of 1956 and the decision to transfer the ability to set interest rates to the Bank of England in
1997

Held;- It was held that the employees of GCHQ had a right to consultation, and that the lack of
consultation made the decision invalid.
In Court of Appeal it was held that judicial review could not be used to challenge the use of the Royal
Prerogative(rights). They decided that as the determination of national security issues is an executive
function and it would be inappropriate for the courts to intervene.

In Tanzania, the three mentioned grounds above for judicial review are the one practiced here as in the
case of

Lausa Alfan Salum and 116 others v. Minister for Lands Housing Urban Development and National
Housing Corporation. 9

And he had this to say:-

“Broadly speaking, prerogative orders of certiorari and Prohibition may be issued in certain cases,
either to quash a decision made in the course of performing a public duty or to prohibit the
performance of a public duty, where the injured party has a right to have anything done, and has no
other specific means of, either having the decision quashed or the performance of the duty prohibited,
when the obligation arises out of the official status of the party or public body complained against
....had an imperative legal duty of public nature which they had to perform in their official capacity. In
my considered view, any of their actions or decisions is challenge-able;-
firstly, if it is tainted with illegality, that is, the power exercised is ultra vires and contrary to the law.
Secondly, if it is tainted with irrationality, that is, the action or decision is unreasonable in that it is so
outrageous in its defiance of logic or of accepted moral standards that no sensible person who had
rightly applied his mind to the matter to be acted upon or to be decided could have thus acted or
decided.
Thirdly, if the action or decision is tainted with procedural impropriety, that is, failure to observe
basic rules.”

1. Illegality, Error Of Law Or Excessive Jurisdiction.

9 1992 TLR 293 (HC)

This means the power exercised is ultra vires and contrary to the law. In principle judicial review
is limited to a review of the lawfulness or legality of a decision or action by a public body, the court
however does not review the merits of a decision, courts ensure that public bodies act legally within
their powers.
i.e. intra vires and the principles of natural justice are observed in making decisions by these bodies.10
Illegality is extended to include:-
 Excessive jurisdiction,- Excess of Jurisdiction is a court's acting beyond the limits of its power,
usually. in one of three ways: (1) when the court has no power to deal with the kind of matter at
issue, (2) when the court has no power to deal with the particular person concerned, or (3) when
the judgment or order issued is of a kind that the court has no power to issue.
 Errors of law,- It occurs when the decision-maker has misunderstood or misapplied a statute, for
example, by applying the wrong criteria, or asking the wrong question. In practice this often
occurs because the decision-maker has failed to read or understand the statute
 failure to fulfill a statutory duty, acting for an improper purpose, delegating discretionary
powers unless permitted by law, failing to take into account all relevant considerations, fettering
discretion, and interference with fundamental rights.

Error of law simply means any misdirection in law that would render the relevant decision ultra vires
and a nullity. For example in the case of;-

Anisminic Ltd v Foreign Compensation Commission11

Facts
As a result of the Suez Crisis (difficulty, danger) some mining properties of the appellant Anisminic
located in the Sinai peninsula were seized (grabbed) by the Egyptian government before November
1956. The appellants then sold the mining properties to an Egyptian government-owned organisation
called TEDO in 1957.

In 1959, a piece of subordinate( lower in rank) legislation was passed under the Foreign Compensation
Act 1950 to distribute compensation paid by the Egyptian government to the UK government with
respect to British properties it had nationalised. The appellants claimed that they were eligible (entitled)
for compensation under this piece of subordinate legislation, which was determined by a tribunal (the
respondents in this case) set up under the Foreign Compensation Act 1950.

The tribunal, however, decided that the appellants were not eligible for compensation, because their
"successors in title" (TEDO) did not have the British nationality as required under one of the provisions
of the subordinate legislation.

Issues;-
 Whether the tribunal had made an error of law in construing the term "successor of title" under
the subordinate legislation.
 Even if the tribunal had made an error of law, the House of Lords had to decide whether or not
an appellate court had the jurisdiction to intervene in the tribunal's decision. Section 4(4) of the
Foreign Compensation Act 1950 stated that:
"The determination by the commission of any application made to them under this Act shall not

10 As per Laws J in the case of R v. Secretary of State ex p Mahmood [2001]

11 [1969] 2 AC 147
 be called into question in any court of law". This was a so-called "ouster clause".

Held;- By a 3-2 majority, the House of Lords decided that section 4(4) of the Foreign Compensation
Act did not preclude the court from inquiring whether or not the order of the tribunal was a nullity, and
accordingly it decided that the tribunal had misconstrued (misinterpret) the legislation (the term
"successor in title"), and that the determination by the defendant tribunal that the appellant did not
qualify to be paid compensation was null, and that they were entitled to have a share of the
compensation fund paid by the Egyptian government.

Made it clear that all errors of law are now subject to judicial review and thus cleared doubt as whether
errors of law by an inferior court, or tribunal or public authority „within jurisdiction‟ (which were not
reviewable) could be subject to review.

In Tanzania Illegality is well explained in the case of;-

Said Juma Muslim Shekimweri v Attorney-General12

Facts
Where the applicant sought an order of certiorari to bring up and quash a decision of the President of
the United Republic `retiring' the applicant, an immigration officer, in the public interest. It appeared
that the applicant had been employed by the Government of Tanzania for some years without having
been subjected to any disciplinary sanction. The applicant had read a newspaper report of his dismissal
for allegedly receiving bribes. About two months later the applicant received a letter informing him of
his retirement.

Held:- The common law principle that a civil servant was dismissible at pleasure of the President was
not part of the law of Tanzania; That the letter informing the applicant of his retirement cited
provisions of law which were incompatible and this had caused the applicant considerable
embarrassment; Standing Order F35 which provided that all appointments were at the pleasure of the
President was invalid as it was in conflict with the provisions of art. 22 and 36(2) of the Constitution;
The only legislative provision which permitted the compulsory retirement was paragraph (d) of section
8 of the Ordinance which would be utilized only for the purpose of facilitating improvements in the
organization of the department to which the civil servant belonged. It was clear that the applicant's
removal had not been sought on these grounds.

Sheikh Mohammed Nassor Abdallah v. Reganal police commander of Dar es salaam (1985) TLR

2. Irrationality

This means the action or decision is unreasonable in that it is so outrageous(excessive), Unlike

illegality and procedural impropriety, the courts under this head look at the merits (the strict legal right)
of the decision, rather than at the procedure by which it was arrived at or the legal basis on which it was
founded. The question to ask is whether the decision "makes sense". In many circumstances listed
under "illegality", the decision may also be considered irrational.

Irrationality is extended to include;-Unreasonableness, Failure to exercise discretion, Irrelevant

consideration, Mala-fide (bad faith), Fettering discretion, Acting under dictation. whereby is the

12 1997 TLR 3 (HC)

criterion of fairness and justice in statutory interpretation processes, especially in constitutional law,
Proportionality exists as a ground for setting aside administrative decisions in most continental legal
systems and is recognised in England.

By irrationality as a ground for judicial review it is associated with what is referred to as Wednesbury
unreasonableness in the case of;-

Associated Provincial Picture Houses Ltd. v Wednesbury Corporation13

Facts
In 1947 Associated Provincial Picture Houses was granted a license by the Wednesbury Corporation in
Staffordshire to operate a cinema on condition that no children under 15 were admitted on Sundays.
Associated Provincial Picture Houses sought a declaration that such a condition was unacceptable and
outside the power of the Corporation to impose.

Held;-The court held that it could not intervene (interfere) to overturn the decision of the defendant
simply because the court disagreed with it. To have the right to intervene, the court would have to
conclude that:
 In making the decision, the defendant took into account factors that ought not to have been
taken into account, or
 The defendant failed to take into account factors that ought to have been taken into account, or
 The decision was so unreasonable that no reasonable authority would ever consider imposing it.
The court held that the decision did not fall into any of these categories and the claim failed.

This ground has been used to uphold constitutionalism as it prevents powers from being abused by, for
example, exercising a discretion for an improper purpose or without taking into account all relevant
considerations. In doing so, courts have been in return protecting human rights. In the case of

R v. Ministry of Defense ex p Smith 14

Facts
The court reviewed a decision to discharge a number of individuals from the army on the basis of their
homosexuality. The basis for the decision was that the presence of homosexuals in the armed forces
would have a substantial and negative effect on the operational effectiveness of the armed forces.

Held
The court of appeal affirmed the decision of the government and developed the principle of anxious
scrutiny(observation). But the case was again referred to the European Court of Human Rights as Smith
v. United Kingdom (no.1) [1999] where it was held that there had been violation of right to private life
and the right to an effective remedy. The court held that the irrationality test in judicial review
provided an insufficiently effective means of scrutiny (critical observation or examination) in the
circumstances.

It suffices to say that the test for irrationality in uncertain because if the basis is human rights, what is a
human right in Tanzania may not necessarily be a right in Europe. If refer such a case to Tanzanian
courts, the approach and decision could be different as homosexuality is itself illegal.

13 [1948] 1 KB 223
14 [1996]
 Regina -v- Barnsley Metropolitan Borough Council15

Facts;-
The applicant applied to have quashed the decision of the local council to exclude him from trading in
the market and to revoke his right to have a stall.

Held: He succeeded on the grounds that the decision had been taken in breach of the rules of natural
justice. the right of a stall holder to have access to the market was conferred by common law, and could
only be taken away for just cause and then only in accordance with the principles of natural justice.

3. Procedural Impropriety.

This means is a failure on the part of a public authority to act in accordance with the
requirements of procedural fairness (ultra vires), procedural rules and basic rules of natural
justice. A decision suffers from procedural impropriety if in the process of its making the procedures
prescribed by statute have not been followed or if the 'rules of natural justice' have not been adhered to.

Kinds of procedural impropriety:-

A. Statutory procedures

An Act of Parliament may subject the making of a certain decision to a procedure, such as the holding
of a public hearing or inquiry, 16 or a consultation with an external adviser. Some decisions may be
subject to approval by a higher body. Courts distinguish between "mandatory" requirements and
"directory" requirements. A breach of mandatory procedural requirements will lead to a decision being
set aside for procedural impropriety.

R v Secretary of State for Social Security, Ex parte Association of Metropolitan Authorities and
anor; 17

The Secretary of State, before making the Housing Benefit (General ) Amendment Regulations 1992,
failed to comply with the duty imposed by s 61(7) of the Social Security Act 1986, to consult with such
organisations as the applicants, the AMA and Hackney LBC. Although the applicants were entitled to a
declaration to that effect, no useful purpose would be served by revoking the regulations and
accordingly the court refused to quash the regulations or declare them ultra vires and the regulations
remain in force.

B. Breach of natural justice

The rules of natural justice require that the decision maker approaches the decision making process
with 'fairness'. What is fair in relation to a particular case may differ. As pointed out by Lord Steyn in18
"the rules of natural justice are not engraved (cut) on tablets of stone."
15 ex parte Hook; CA 1976
16 Jackson Stansfields v Butterworth
17 QBD (Tucker J); 3 July 1992.
18 Lloyd v McMahon [1987] AC 625
Below are some examples of what the rules of natural justice require:-

i) The rule against bias (Nemo judex in causa sua) This means that “no man is to be a judge in his
own cause”.

The first basic rule or principle of natural justice which states that - nobody may be a judge in his own
case. Any person who makes a judicial decision - and this includes e.g. a decision of a public authority
on a request for a license - must not have any personal interest in the outcome of the decision. If such
interest is present, the decision maker must be disqualified even if no actual bias can be shown, i.e. it is
not demonstrated that the interest has influenced the decision. 19 The test as to whether the decision
should be set aside is whether there is a "real possibility [of bias]", as established in Gough v Chief
Constable of the Derbyshire Constabulary [2001],20 which dropped the 'fair minded observer' part of
the test.21

The rule is very strictly applied to any appearance of a possible bias, even if there is actually none:
"Justice must not only be done, but must be seen to be done".22
Therefore this maxim falls in rules againt bias, whereby bias can be taken in different forms as
follows;-
 Personal Bias - Occurs when there exists some relationship between the deciding authority and
the parties which incline him favorably or unfavorably on the side of one of the parties before
him.

 Pecuniary Bias - is a bias in which any financial interest, however small, with or related to the
parties, would vitiate administrative action.

 Subject-matter bias - The deciding officer is directly or indirectly related to the subject-matter
of the case.

 Departmental bias - itself becoming the adjudicating authority would negate the concept of
fairness in the administrative proceeding.

 Preconceived notion bias - The deciding officer has a preconceived notion, feeling, liking or
disliking in regard to the subject matter which forces him to give a specific judgment.

*In bias there is extreme end in judicial review , the court will look on the appearance of bias because it
is difficult to judge bias in a case, as in a case the concern is not actual bias but the appearance of it.

Kinds of test of bias

 Whether the facts assessed by the court gave rise to a real likelihood of bias.
 Whether a reasonable person would have a reasonable suspicious (doubtful) of bias.

Relevant case;-

19 R v Bow Street Magistrates

20 Gough v Chief Constable of the Derbyshire Constabulary [2001] 4 ALL ER 289
21 Magill v Porter [2002] AC 347
22 R v Sussex Justices, ex parte McCarthy, [1924] 1 KB 256, [1923] All ER 233
 Regina -v- Gough (Robert)23

Facts
The defendant had been convicted of robbery. He appealed, saying that a member of the jury was a
neighbour to his brother, and there was therefore a risk of bias. This was of particular significance as
the defendant was charged with conspiracy with that brother to commit burglaries. The juror had sworn
an affidavit that she had not known of the connection.

Held: The appeal was dismissed. The House set out the test for bias. The test for bias in a juror where
apparent bias was alleged, was whether there was a real danger that the defendant had been denied a
fair. trial.
Lord Woolf said: ‘It must be remembered that except in the rare case where actual bias is alleged, the
court is not concerned to investigate whether or not bias has been established. Whether it is a judge, a
member of the jury, justices or their clerk, who is alleged to be biased, the courts do not regard it as
being desirable or useful to inquire into the individual’s state of mind. It is not desirable because of the
confidential nature of the judicial decision making process. It is not useful because the courts have long
recognised that bias operates in such an insidious manner that the person alleged to be biased may be
quite unconscious of its effect.

R v Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte24

Facts
Pinochet was accused by a Spanish judge of torture, a crime under international law which can be
prosecuted in any country under the doctrine of universal jurisdiction. The Spanish judge faxed an
INTERPOL arrest warrant to London and Pinochet was arrested later that evening. Pinochet's lawyers
argued that as Pinochet was head of state at the time of the alleged crimes he was immune from the
jurisdiction of British courts. The Divisional Court ruled Pinochet had state immunity.

Held:- A key passage of the judgment reads:

The development of international law since the Second World War justifies the conclusion that by the
time of the 1973 coup
d’état (final decision), and certainly ever since, international law condemned genocide, torture, hostage
taking and crimes against humanity (during an armed conflict or in peace time) as international crimes
deserving of punishment. Given this state of international law, it seems to me difficult to maintain that
the commission of such high crimes may amount to acts performed in the exercise of the functions of a
Head of State.

By a 3–2 majority (Lord Nicholls, Lord Hoffmann and Lord Steyn against Lord Slynn and Lord Lloyd)
the House of Lords ruled that Pinochet did not have state immunity.

ii) The right to a fair hearing. (Audi alteram partem) "no man is to be condemned unheard".

Fair hearing means that an individual will have an opportunity to present evidence to support his or
her case and to discover what evidence exists against him or her.

23 HL 1993
24 3 WLR 1,456 (H.L. 1998)
In Criminal Law, when an individual is arrested, a fair hearing means the right to be notified of the
charge being brought against him or her and the chance to meet that charge.

Whether or not a person was given a fair hearing of his case will depend on the circumstances and the
type of the decision to be made. The minimum requirement is that the person gets the chance to present
his case. If the applicant has certain legitimate expectations, for example to have his license renewed,
the rules of natural justice may also require that they are given an oral hearing and that their request
may not be rejected without giving reasons.25 Where the decision is judicial in nature, for example a
dismissal of an official in punishment for improper conduct, the rules of natural justice require a
hearing and the person questioned must know the case against them and be able to examine and object
to the evidence.

The right of fair hearing has various components:-

1. A notice - A party likely to be affected by the decision should be given an adiquate notice and
sufficient time to prepare . The notice should contain the charges , particular of the charges in a
language capable of being understood by a person. If time given for preparation is too short or
not sufficient the decision may be declared nullity.

Case;-

Nkomo v. Administrator Natal26

Facts
An illiterate hospital workers were given 48 hours over a weekend to prepare written representation
concerning their proposed dismissal.

Held;- the period was found to be inadequate in the circumstances then the decision was declared
nullity.

2. Viva voce - is a Latin phrase literally meaning "with living voice" or "oral hearing" but most
often translated as "by word of mouth." This means the other party has the right to be given
documents which are presented and right to question as the nature of hearing. Where there is
demand of fairness also requires oral hearing.

3. Disclosure and discovery - Individual must prove of information and reason that underline the
impending decision. The detail information is required depending on the seriousness of the
case.

4. Legal representative - A personal representative with legal standing (as by power of attorney
or the executor of a will). Licensed attorneys have the authority to represent persons in court
proceedings and in other legal matters. When hiring an attorney, a careful consumer considers a
number of variables, including the nature and importance of the case, the attorney's fee and
payment arrangement, personal chemistry with the attorney, and the attorney's reputation.

Relevant cases;-

25 McInnes v Onslow-Fane [1978] 1 WLR 1520

26 (1991) 12 INJ 521
 Ridge v. Baldwin 27

Facts
The Brighton police authority dismissed its Chief Constable (Charles Ridge) without offering him an
opportunity to defend his actions. The Chief Constable appealed, arguing that the Brighton Watch
Committee (headed by George Baldwin) had acted unlawfully (ultra vires) in terminating his
appointment in 1958 following criminal proceedings against him

Held; The House of Lords held that Baldwin's committee had violated the doctrine of natural justice.
The court held that a police authority's decision to dismiss a chief constable was procedurally
unfair in that it failed to provide the applicant with a proper opportunity to challenge allegations
made against him. Lord Denning says
“what fairness demands will depend upon the nature of the individual‟s interests, the impact of the
decision, whether the decision is preliminary or final, the subject matter of the decision, the terms of
any relevant statutory provisions and all the circumstances of the case.”
28
Mohamed Jawad Mrouch v Minister for Home Affairs

Facts
The court observed the application in respect to non observance of principles of natural justice. The
Applicant arrived in Tanzania during the course of 1987 and was subsequently granted a `Residence
Permit Class 'A' No.004307', issued on 14 September 1990. Renewed on 16 September 1993, the
permit was to remain current until 12 September 1994. In the interim, however, it was canceled by the
Director of Immigration Services and duly confirmed by the Minister for Home Affairs, on 2 December
1993. In a letter to the Applicant, the Director advanced that `the power conferred upon me under s.15
(2) of the Immigration Act No.8 of 1972' constituted the reason for the cancellation of the Applicant's
permit. The Applicant's counsel contended that the unstated reason for the cancellation of the permit
was due to certain criminal charges pending against the Applicant, and that the effect of such
cancellation was that the Applicant, as persona non grata in the Republic, could not clear his name by
defending the charges. The Applicant accordingly sought the invalidation of the cancellation of the
permit on account of the alleged bias of the Minister and also on the basis that the Applicant was
punished' unheard.

Held;- He Applicant learn of the cancellation of his permit from a third party, since he was himself out
of the country at the time of cancellation and the letter of cancellation was served upon his son.

Once a permit is granted to an immigrant, he has the right to remain in the Republic until such permit
expires. If, however, the permit should be revoked during its currency, the immigration authorities have
a duty to give reasons for such revocation and to afford the affected person the opportunity of being
heard, prior to a final decision being taken.

Discretionary powers must be exercised fairly, and this requires adherence to the rules of natural justice
which include the right to be heard. There is nothing in Section 15(1) of the Immigration Act which
ousts that right.

Although the Applicant had a legitimate expectation of remaining in the country until the expiry of his
permit, that expectation could have been justifiably extinguished if, and only if, he had been given an
27 [1964] AC 40
28 1996 TLR 142 (HC)
opportunity of making representations to the authorities.

In the result, the following orders of certiorari are made: the Director's decision, cancelling the
Applicant's permit is quashed; the Minister's decision, confirming the Director's decision of
cancellation, is quashed; and the Minister's order of deportation of the Applicant is quashed. A
mandamus is issued, ordering the Director to restore `Residence Permit Class `A' No.0043607' to the
Applicant forthwith.”

iii) Duty to give reasons - (Nullum arbitrium sine rationibus) This means that "the right to
reasons for the decision".

Unlike many other legal systems, English administrative law does not recognize a general duty to give
reasons for a decision of a public authority. 29 A duty to give reasons may be imposed by statute. Where
it is not, common law may imply such a duty and the courts do so particularly with regard to judicial
and quasi-judicial decisions.30

Importance of giving reasons;-

1. It satisfy the affected individual, brings justice and fair treatment.
2. It improves the quality of decision making
3. It also protects the administration from appeal or other challenges
4. It is what is needed by the court and other review board to determine the decision.

Relevant cases;-
Said Juma Muslim Shekimweri V. Attorney-General31

Facts
Where the applicant sought an order of certiorari to bring up and quash a decision of the President of
the United Republic `retiring' the applicant, an immigration officer, in the public interest. It appeared
that the applicant had been employed by the Government of Tanzania for some years without having
been subjected to any disciplinary sanction. The applicant had read a newspaper report of his dismissal
for allegedly receiving bribes. About two months later the applicant received a letter informing him of
his retirement.

Held:- The common law principle that a civil servant was dismissible at pleasure of the President
was not part of the law of Tanzania; That the letter informing the applicant of his retirement cited
provisions of law which were incompatible and this had caused the applicant considerable
embarrassment; Standing Order F35 which provided that all appointments were at the pleasure of the
President was invalid as it was in conflict with the provisions of art. 22 and 36(2) of the Constitution;
The only legislative provision which permitted the compulsory retirement was paragraph (d) of section
8 of the Ordinance which would be utilized only for the purpose of facilitating improvements in the
organization of the department to which the civil servant belonged. It was clear that the applicant's
removal had not been sought on these grounds.

29 R v Secretary of State for the Home Department Ex p Doody [1993] 3 All ER 92

30 Doody (above), R v Civil Service Appeal Board Ex p Cunningham [1991]4 All ER 310
31 1997 TLR 3 (HC)
 Associated Provincial Picture Houses Ltd. v Wednesbury Corporation32

Facts
In 1947 Associated Provincial Picture Houses was granted a license by the Wednesbury Corporation in
Staffordshire to operate a cinema on condition that no children under 15 were admitted on Sundays.
Associated Provincial Picture Houses sought a declaration that such a condition was unacceptable and
outside the power of the Corporation to impose.

Held;-The court held that it could not intervene(interfere) to overturn the decision of the defendant
simply because the court disagreed with it. To have the right to intervene, the court would have to
conclude that:
 In making the decision, the defendant took into account factors that ought not to have been
taken into account, or
 The defendant failed to take into account factors that ought to have been taken into account, or
 The decision was so unreasonable that no reasonable authority would ever consider imposing it.
The court held that the decision did not fall into any of these categories and the claim failed.

In Tanzania this rule is a constitutionally which provides forms of the basis for procedural impropriety
especially under article :-
13(6) To ensure equality before the law, the state authority shall make procedures which are
appropriate or which take into account the following principles, namely:
(a) When the rights and duties of any person are being determined by the court or any other agency,
that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the
decision of the court or of the other agency concerned.33

R v Higher Education Funding Council ex p Institute of Dental Surgery 34

Facts
Grants to educational institutions were based on an assessment of their research quality by the Funding
Council. A college applied for judicial review of their assessment, contending the council acted
unfairly in giving no reasons for its rating.

Held
The Court found no ground for requiring the council to give reasons.
Sedley J considered the advantages and drawbacks of a duty to give reasons. He distinguished between
cases where the nature and impact of the decision itself call for reasons as a routine aspect of
procedural fairness, and other cases where some trigger factor is required to show that, in the
circumstances of the particular decision, fairness demands reasons. This case fell into the latter
category, but the rating was not so aberrant in itself to call for an explanation.

4. Legitimate Expectation
It applies to the situation where a person has an expectation or interest in a public body retaining a
long-standing practice or keeping a promise.

32 [1948] 1 KB 223
33 the Constitution Of The United Republic Of Tanzania
34 [1994] 1 WLR 242
 Schmidt v. Secretary of State for Home Affairs 35

Facts
The applicant was an alien who had been given live to enter in United Kingdom for the purpose of
studying Scientology for a limited period of time, ones that period came to an over Mr Schmidt applied
for an extension of Visa but The Secretary of home affair refused due to the British Government,
having been convinced that Scientology was socially harmful, rejected their applications for extension
of their stay in this country. And Mr Schmidt was not given the right to make representation. Mr
Schmidt sort a declaration the ought to be afforded hearing.

Held: The Home Secretary had power under the Aliens Order 1953 to refuse aliens permission to land
or to extend their time of stay and he had acted in the interest of society.

There being no right of entry or extension of stay, questions of interference with rights and of the
applicability of rules of natural justice did not arise, because his act was administrative.

Obiter, per Lord Denning MR: The Home Secretary should, in exceptional circumstances, listen to
reason as to why he should not apply a certain policy. He said according to the case of Ridge v.
Baldwin which shows that administrative body may be bound to give a person who is affected by the
decision an opportunity of making representation.

Another relevant case:-

Council of Civil Service Unions v Minister of State for Civil Service. 36

Facts
The Government Communications Headquarters (GCHQ) is a British intelligence agency that provides
signals intelligence to the British government and armed forces. Prior to 1983 its existence was not
acknowledged, despite the fact that it openly recruited graduates. Following a spy scandal in 1983, the
organisation became known to the public, and the government of Margaret Thatcher decided a year
later that employees would not be allowed to join a trade union for national security reasons. The
Minister for the Civil Service is a position held ex officio by the Prime Minister.
This was enforced through an Order in Council, an exercise of the Royal Prerogative. Despite an
extensive publicity campaign by trade unions, the government refused to reverse its decision, instead
offering affected employees the choice between £1,000 and membership of a staff association or
dismissal. Those employees dismissed could not rely on an industrial tribunal, as they were not covered
by the relevant employment legislation. As such, the Council of Civil Service Unions decided judicial
review was the only available route.
The decision to ban workers at GCHQ from trade union membership had been taken following the
meeting of a select group of ministers and the prime minister rather than the full Cabinet. This is not
unusual, even in relation to high-profile decisions: a decision was similarly taken to authorise the Suez
operation of 1956 and the decision to transfer the ability to set interest rates to the Bank of England in
1997

Held;- It was held that the employees of GCHQ had a right to consultation, and that the lack of
consultation made the decision invalid.
In Court of Appeal it was held that judicial review could not be used to challenge the use of the Royal
35 [1969] CA
36 (1985) AC 374
Prerogative(rights). They decided that as the determination of national security issues is an executive
function and it would be inappropriate for the courts to intervene.

Applicability Of Legitimate Expectation

The doctrine of legitimate expectation must have made of the fallowing;-

1. Adequate (enough, sufficient) statement of law or fact
2. The statement must be within the officers or other representative delegated.
3. The person dealing with that officer or representative rely all the statement to his detriment
(damage).

5. Doctrine of Proportionality

The concept of proportionality is used as a criterion of fairness and justice in statutory interpretation
processes, especially in constitutional law, as a logical method intended to assist in discerning the
correct balance between the restriction imposed by a corrective measure and the severity of the nature
of the prohibited act.
This concept requires that in killing a mosquito we don't use a hummer.

Relevant case:-

Regina -v- Barnsley Metropolitan Borough Council, ex parte Hook; 37

Facts
The applicant applied to have quashed the decision of the local council to exclude him from trading in
the market and to revoke his right to have a stall.

Held: He succeeded on the grounds that the decision had been taken in breach of the rules of natural
justice. the right of a stall holder to have access to the market was conferred by common law, and could
only be taken away for just cause and then only in accordance with the principles of natural justice.

REMEDIES AVAILABLE UNDER JUDICIAL REVIEW

If an application for judicial review is successful the following remedies are available. It should be
noted that these remedies vary from country to country.

A. THE PREROGATIVE ORDERS (MANDAMUS, PROHIBITION AND CERTIORARI) 38

 Mandamus is an order from the High Court commanding a public authority or official to
perform a public duty (Mandatory order).

Edward Mlaki Liston Matemba v. The Region Police Commander39

Facts
37 CA 1976
38 section 17 of CAP 310.
39 Civil Application No. 38 of 1979
There was an allegation that the applicant's two vehicles were involved in transporting smuggled
(illegal) goods. The Regional Police Commander of Kilimanjaro Region, pursuant to the instructions of
the Secretary to the Regional Security Committee, arrested and detained the vehicles. The applicant
was later summoned (ordered) to appear before the Region Security Committee where he denied the
allegations. He was told that he would be informed of the outcome but that was not done. The vehicles
remained in police custody though no criminal charges were preferred against him.

Held;-The High Court held that in the absence of any pending criminal matter the respondents had no
power to detain the applicant's vehicles, and an order of mandamus was issued to release the vehicles.

 Prohibition is an order from the High Court preventing a public authority or official to perform
a public duty (Prohibiting order).

Festo Barege and 794 others v. Dar es Salaam City Council.40

Facts
The applicants were residents of one of a district of Dar es Salaam where the City Council dumped
waste and refuse which attracted swarms of flies. When the rubbish was set on fire, a lot of smoke and
foul smell was produced and inconvenienced the neighborhood. The applicants applied for orders of
certiorari to quash the decision of the City Council of dumping waste; prohibition, to stop the City
Council from continuing that nuisance; and mandamus, to compel the respondent to discharge its
functions properly by establishing and using an appropriate site.

Held;- The application was granted by the High Court. A number of findings were made: One, the City
Council's action was ultra vires the Local Government (Urban Authorities Act, 1982. Two, the action
was contrary to the City's Master plan. Three, it was not a statutory duty of the respondent to create
nuisance but to stop it and avoid to endanger the residents‟ health. Four, Article 14 of the Constitution,
which guarantees the right to life and its protection by the society was breached.

 Certiorari is an order from the High Court to quash decision by a public authority inferior
courts or tribunals to perform certain public duty or where there has been an excess of
jurisdiction or an ultra vires decision; a breach of natural justice; or an error of law. By setting
aside a defective decision, certiorari prepares the way for a fresh decision to be taken (Quashing
order).

Palm Beach Inn Ltd and Another v. Commission for Tourism and Two Other41,

Facts
Where the second applicant, Ms. Naila Majid Jiddawy, was operating a tourist hotel, on the eastern
coast of the Island of Zanzibar. The first respondent's employees ordered the closure of the hotel,
canceled her business license, and ordered her to vacate the premises for good. The applicants
challenged those three orders in the High Court of Zanzibar which made a number of findings: One, the
respondents exceeded their powers in closing the hotel and revoking the applicant's license. Two, the
respondent's actions were ultra vires. Three, the deportation order served on the second applicant
deprived her of freedom of movement. Four, the applicants were denied the right of a hearing in spite

40 Civil Cause No. 90 of 1991, High Court of Tanzania at Dar es Salaam

41 High Court of Zanzibar Civil App. No 30 of 1994
of their demands to know what were their faults.

Held;- Orders of certiorari were granted to quash the 2nd respondent's decisions to close the hotel and
canceling the license. A prohibition order was also issued to restrain the 2nd respondent from
purporting to act as the Commission for Tourism while no commissioners had been appointed.

B. OTHER REMEDIES

In this category the remedies include;-

 Injunctions - An injunction is a court order that requires somebody involved in a legal action to
do something or refrain from doing something.
 Declarations - A declaration is a statement of the legal position in the matter before the court.
The court may simply declare that an administrative action or decision is valid or not. A
declaration lacks coercive power as the case has been in Tanzania with High court declaring
some statutes null and void and wait for responsible authority to rectify the situation.
 Damages - Damages may be awarded with any of the applied orders above but an applicant
may not seek damages.

DISTINCTION BETWEEN JUDICIAL REVIEW AND APPEAL

 An appeal is concerned with the merits of the decision while judicial review is concerned with
the legality and procedure of the decision.
 Appeal starts from the district court to the Court of Appeal depending on the nature of the case
but it is only the High bestowed (granted right) with powers to receive and hear application for
judicial reviews.
 Appeal is a constitutional right to a person aggrieved (unfairly treated) by a certain decision
either by the court or a tribunal or a quasi judicial tribunal or even of an administrative agency
while judicial review is a privilege at the discretion of the High Court to grant leave or refuse.
 The court in appeal have the power to determine whether a decision was right or wrong and if
wrong it is generally permitted to substitute its own decision for the erroneous one. By
contrasting judicial review the High Court is limited to a supervisory role i.e. decision and
decision making process. If the High Court finds the decision being flawed then it may quash
the decision but it will then be for the decision maker to reconsider the decision.
 In appeal there is no application for leave except that when the appeal is from the High Court to
Court of Appeal on matters of law but in judicial review leave is a mandatory procedural requirement
unless the High Court chooses to waive the requirement where it deems necessary like issues of
urgency.

SCOPE OF JUDICIAL REVIEW

Judicial review is generally regarded as a public law remedy and it is only available where an issue of
public law is involved. The judicial review is only available against public bodies in only public law
matters, Therefore judicial review to be applied is that the body must be public entrusted with functions
to perform for the benefit of the public and not for the benefit of private profit.
Amenability (Accountability) To Judicial Review
The decision complained of must have been taken by a public body, i.e. a body established by statute or
otherwise exercising a public function.

R v. Panel on Take-overs and Mergers, ex parte Datafin plc 42

Facts
The Panel on Take-overs and Mergers is the City of London's self-regulating mechanism for dealing
with mergers and acquisitions. The applicant complained about the conduct of their competitors in a
takeover bid and were unhappy with the Panel's decision. When it was refused leave to seek judicial
review by the High Court, it appealed to the Court of Appeal.

Issue
The main issue facing the Court was whether to review the decision of a Panel set up under private law
using the standards usually applied in administrative law.

Held;- The Court of Appeal held that the powers exercised by the Panel (regulating take-overs and
enforcing a code of conduct on them) were essentially in the domain of public law and formed part of
the Government's scheme to regulate the City. Those affected had no choice but to submit to the Panel's
jurisdiction. As a result, the Panel had the duty to act judicially and its decisions could be checked by
means of judicial review. On the merits however, the Court found no ground to quash the disputed
decision.

OUSTER CLAUSE OR EXCLUSION CLAUSE

Ouster clauses - Are provisions in the statute which limit or exclude all review jurisdiction from the
court e.g:- the decision of the minister is final decision can not be challenged, for instance in FIFA the
body requires that any person not agreed by the decision should not use the court of law rather he
should use the mechanisms established by the said organisation or institution.

Legal effect of ouster clause - Also ouster clauses may be constitutional or legislative i.e in Tanzania
once electoral commission mentioned the winning part no one can challenge it to court.

Relevant case:-

Anisminic Ltd v Foreign Compensation Commission43

It was held that a determination is not really determination if a tribunal exceeds its jurisdiction, the
basic philosophy is that once administrative wrong doing in decision the ouster clause can not protect a
functional discretion.

Taylor (formerly Kraupl) -v- National Assistance Board;44

It was held that where the statute provides that the decision of the tribunal or minister is final, the
42 [1987] QB 815
43 [1969] 2 AC 147
44 CA 1951
finality is only on appeal but not reviewed to the High court.

Constitution ouster clauses - These are ouster clauses which contained in the constitution. These
should be interpreted using the purposive approach but not literally approach.
Under Article

LOCUS STAND

In law, locus stand means the right to bring an action to be heard in court, or to address the Court on a
matter before it. Locus stand is the ability of a party to demonstrate (show) to the court sufficient
connection to and harm from the law or action challenged to support that party’s participation in the
case.

For example, in the United States, a person cannot bring a suit challenging the constitutionality of a
law unless the plaintiff can demonstrate that the plaintiff is (or will be) harmed by the law. Otherwise,
the court will rule that the plaintiff “lacks standing” to bring the suit, and will dismiss the case without
considering the merits of the claim of unconstitutionality. In order to sue to have a court declare a law
unconstitutional, there must be a valid reason for whoever is suing to be there. The party suing must
have something to lose in order to sue unless they have automatic standing by action of law.

Relevant case:-

Gouriet -v- Union of Post Office Workers;45

Facts:
The claimant sought an injunction to prevent the respondents calling on its members to boycott
(protest) of mail to South Africa. The respondents challenged the ability of the court to make such an
order.

Held: The wide wording of the statute did not mean that the courts had, in effect, limitless powers to
grant interlocutory injunctions whenever they thought it convenient to do so. As to the exceptional
nature of the power to invoke the assistance of the civil courts in aid of the criminal law, there must be
something more than infringement before the assistance of civil proceedings can be invoked and
accorded for the protection or promotion of the interests of the inhabitants of the area.

Causes of Lucas standi:-

Standing exists from one of three causes:

1. The party is directly subject to an adverse effect by the statute or action in question, and the
harm suffered will continue unless the court grants relief in the form of damages or a finding
that the law either does not apply to the party or that the law is void or can be nullified. This is
called the "something to lose" doctrine, in which the party has standing because they directly
will be harmed by the conditions for which they are asking the court for relief.

2. The party is not directly harmed by the conditions by which they are petitioning the court for

45 HL 26-Jul-1977
 relief but asks for it because the harm involved has some reasonable relation to their situation,
and the continued existence of the harm may affect others who might not be able to ask a court
for relief. In the United States, this is the grounds for asking for a law to be struck down as
violating the First Amendment, because while the plaintiff might not be directly affected, the
law might so adversely affect others that one might never know what was not done or created
by those who fear they would become subject to the law – the so-called "chilling effects"
doctrine.

3. The party is granted automatic standing by act of law.46 Under some environmental laws in the
United States, a party may sue someone causing pollution to certain waterways without a
federal permit, even if the party suing is not harmed by the pollution being generated. The law
allows them to receive attorney's fees if they substantially prevail in the action. In some U.S.
states, a person who believes a book, film or other work of art is obscene may sue in their own
name to have the work banned directly without having to ask a District Attorney to do so.

Relevant case:-

Regina -v- HM Inspector of Pollution and Ministry of Agriculture, Fisheries and Food, Ex Parte
Greenpeace Ltd;47

Facts
A campaigning organisation was challenging an official decision which, if stayed, would have adverse
(prevent) financial implications for a commercial company (British Nuclear Fuels PLC) which was not
a party to the proceedings. Brooke J had refused a stay.

Held: The appeal failed. The variation of the terms for nuclear waste site testing was lawful. A
responsible body with a bona fide (real) concern about the subject matter of the proceedings may be
regarded as being more than a mere “busy body.”(gossip).

Regina -v- Inland Revenue Commissioners, ex parte the National Federation of Self-Employed and
Small Businesses Ltd; 48

Facts
The Commissioners had been concerned at tax evasion of up to £1 million a year by casual workers
employed in Fleet Street. They agreed with the employers and unions to collect tax in the future, but
that they would not pursue (chase) those who had evaded taxes in the past. The Federation challenged
the concession (compromise). The Revenue said it did not have standing to make the challenge.

Held: It was relevant to consider the strength of the case that the Commissioners were acting beyond
their powers. The Board are charged by statute with the care, management and collection on behalf of
the Crown of income tax, corporation tax and capital gains tax.

46 Lee, Evan; Mason Ellis, Josephine (December 3, 2012). "The Standing Doctrine's Dirty Little Secret".
Northwestern Law Review 107: 169.
47 CA 30-Sep-1993
48 HL 9-Apr-1981