The National Transport Standards Commission (NTSC), a public law body, is empowered by statute to monitor public transport throughout the UK. NTSC has the following powers and duties under the statute
1.a duty to consult with bus operators and with the public with a view to preparing reports for government and on the basis of those reports licences are granted.
2.To divide the country up into regions with each region having a Director who is responsible for the day to day management of the region.
3.To enter into contracts with individual bus companies and to establish a basis for providing grant aid and subsidies to those companies.
4.To ensure that companies provide safe bus services and to this end to phase out buses over 15 years old over a period of 5 years. Compensation to those operators is to be provided. The statute states that “any decision of the NTSC on this matter shall be final”
5.To set up a committee to whom complaints about the service can be addressed.
· The area of law for examination is Administrative Law or Judicial Review of Executive. Primary Legislation has delegated power to NTSC and defined those powers. The important legal question regarding public bodies relates to whether actions taken and decisions made are within the powers delegated by Parliament and conform to the rules of natural justice.
· Initial research consisted of reading A Carroll[1] and H Barnett [2] to gain an overview of the topic.
· Established that relevant case books include (insert)
· Conducted web search. For an overview of judicial review seeURL[3] and the URL[4] proved useful in that it provided details on The New Rules on Procedural Requirements
Note: 1.There are several relevant text books and case books on the area to be discussed. It is not necessary to research all. It might be advisable to read a basic text initially ie Butterworths Core Text Series Constitutional and Administrative Law or a text that sets out the major points of law relevant to the topic. It is then appropriate to read a more detailed account.
2.It may also be appropriate to do a general web search to acquire a general overview of the topic. This wll often depend on the topic to be researched.
Consider the following
(i) George is the Director of the Midlands region and has been employed for 5 years by NTSC. It has always been the practice of the Board of NTSC to discuss with him changes to his working practices and problems in relation to his area of responsibility. Last week he was informed that he was to be relocated to head office and that certain management benefits removed. Advise George.
· This matter relates to the lack of consultation by NTSC
· Established that procedural propriety, the third ground of challenge laid down by Diplock in Council for Civil Service Union v Minister for the Civil Service [5] includes both the failure to observe procedural rules laid down in statute and a failure to observe the rules of natural justice. Researched procedural ultra vires in statute but confirmed from problem facts given that there is no statutory duty to consult with Directors in these circumstances..
· Read the relevant section in A Carroll[6] on the rules of natural justice and in particular “the right to a fair hearing”. Noted the requirements involved to satisfy a fair hearing and the fact that these will depend on all the circumstances.
· Read the case of Ridge v Baldwin in Allen and Thompson[7] Noted that the decision was clear that the applicant should have been informed of the grounds on which the Committee proposed to proceed and given him a proper opportunity to present his case. What amounts to fairness will depend on the effect on an individual’s rights. In George’s case relocation and the loss of certain management benefits may not amount to a substantial loss of rights. More detail on the exact loss of benefit is needed.
· Considered the implications of the concept of “legitimate expectation” on George’s position. Read the relevant section in A Carroll and H Barnett. Noted that a legitimate expectation can arise on the basis of past practice or established policy.
· Researched the case of Council for Civil Service Union v Minister for the Civil Service at Current Legal Information[8]. The House of Lords ruled that were it not for the issue of national security the court would have upheld the appellant’s legitimate expectation to be consulted as the practice of consultation had been established since GCHQ had been formed.
· Further relevant cases include R v Liverpool Corp., ex parte Liverpool Taxi Fleet Operators Association and R v North and East Devon Health Authority, ex parte Coughlan 1999[9]. In the latter case a promise given to patients that they could live “for life” at a home for the severely disabled raised a legitimate expectation that they would not be transferred elsewhere.
· In conclusion George may be able to establish a right to be consulted on the basis of promises made and previous policy.
(ii) The Snail Co. complete the process of registration but discover after 5 months that they have been refused grant aid. They proceed by way of judicial review to challenge the decision but are told that this is not a public law matter. Advise the Snail Co
· The first issue relates to the Public/ Private law divide.
· Clearly NTSC is a public law body. Read A.Carroll[10]. The established procedure for an action against a public law body is judicial review.The early cases show that ordinary actions taken against public bodies were considered to be an abuse of process.
· Read the case of O’Reilly v Mackman1983 in Allen and Thompson[11]. The case confirmed the consequences of using ordinary procedure to challenge the decisions of a public body. The prisoners were left without a remedy because the time limits for judicial review had passed and they had proceeded by way of writ which was considered to be an abuse of process.
· Established the need to make a distinction between private and public law issues and the fact that cases can involve public and private law issues. Read the case of Roy v Kensington and Chelsea and Westminster FPC[12]. Noted that the litigant had private law rights arising from the contractual relationship he had with the FPC, a public law body.
· And so on.
(iii) NTSC submit a report which is highly critical of the Northern region. They neither consult with the operators nor members of the public. Swift Ltd are refused a licence on the basis of the report. Advise Swift Ltd
(iv) NTSC propose the imposition of conditions on all bus companies, one of which is that buses should be painted green. Advise Bill who is one of the operators.
(v) NTSC impose a charge on all companies which register with them. Furthermore they also to set up a network of garages which operators must use for servicing vehicles. Advise
(vi) The Antique Co. are told that the buses they run which are 16 years old will be taken immediately out of service. When they propose to challenge the decision of NTSC they are told that the decision is final and cannot be challenged by review
(vii) Members of the Southern region wish to make complaints and suggestions to the committee. They are told that all matters will be dealt with by the executives of NTSC. Advise the Southern region operatives.
(viii) GoPublic, a voluntary organisation committed to the improvement of public transport and having several thousand members seeks to challenge a policy decision of NTSC. They have been advised that they may not have locus standi. Advise.
[1] Constitutional and Administrative Law 3rd Edition Chapters 14-[1]1
[2] Constitutional and Administrative Law Chapters 26- 27
[3] http://www.publiclawproject.org.uk/simpleguide.html#11
[4] http://webjcli.ncl.ac.uk/2000/issue5/cornford5.html
[5] Civil Service Union v Minister for the Civil Service 1984 AC 374
[6] Constitutional and Administrative Law 3rd Edition Chapters 14-[6]1
[7] Cases and Materials on Constitutional and Administrative Law.
[8] http://www.smlawpub.co.uk
[9] Barnett Constitutional and Administrative Law Chapter 27
[10] Chapter 17 Exclusivity.
[11] Cases and Materials on Constitutional and Administrative Law 7th Edition
[12] Barnett Constitutional and Administrative Law Chapter 26
Credit:ivythesis.typepad.com
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