Martina Venneuck:

From ombudsmen lecture

So if it doesnt fit into illegality, irrationality, or if its not HR then this may be wise
to advice ur client to seek the ombudsmen

- And some cases refuse to follow the ombudsmens decision

PCA 1967 Look straight into the ACT esp S5 para 2. (Bring it up and look
at the statutory bar for problem Q)

(dealing with powers of the parl commissioner) the ombs must fit in with the
landscape of admin jusdtice, so it was decided that the ombs must not look at the
case, that could or has been try in a tribunal and so they have no jurisdiction here

or any action that has remedy in proceedings of court of law such as JR, the
ombs has no jurisdiction and cant look at your complaint

S5 sub para V, there is a discretion of when the bar is applied. The ombs will
look at a complaint if it isnt reasonable to expect the complainant to resort to
these other remedies the the ombs would say okay I will look at it. It is
impossible to gain compensation or to achieve good result elsewhere and so we
will disapply this bar. So this can be used in very narrow circumstance.

Thus, there is controversy

- Important to think about the time limits in Problem Question

So in problem questions, they want brief crisp advice. No reform discussion.


Talk about what the law is, what are the time limits, what is maladministration, and
what remedy you can get from the ombs

Has to do with
delay,
maladministration,
rudeness,
if they lose correspondence, or keep records tidy
so its all bad administration
rude or unhelpful on the phone

(not successful to JR for lost letters, but to go to the ombs u can argue that they
are going against the principles of good administration)

so the ombudsmen is an avenue to explore in the problem question

also, to address the ombs via the MP, impt.

Internal complaint mechanisms, where is my letter? - important for problem
question

Craig, p. 945 (or Craigon restitution) on how to recover payments on an unlawful legal
basis

General Approach:

In virtually deal with the issue of time limit altogether
If similar
I would advice my client to file an action to the ombudsmen through the Parliamentary
Commissioner Act

No need for a lengthy intro

Go straight into the scenario

Three stage procedure

identify relevant issue Look for keywords procedure i.e procedurally might have to
do with reasons, hearings, consultations

Then look for more substantive issues human rights, ultra vires, something is
disproportionate, illegal with or within jurisdiction

Is this what should be done? Is this how countries deal with these issues?

Then decide what to do about

Need to use primary sources (Statute law and show which sections)

(PCA 1967 S5)
Or how human rights operate in UK.

Declarations of incompatitbility or remedies in the HRA.

Remedies
What can you ask for?
Quashing
Taking a new
Or compensation (not much statute law here, but there is case law, so
sometimes may be look at a duty of care)
Could be misfeasance of public office intentionally trying to hurt someone (so
talk about 3 rivers).

Once youve applied the law, then tell us what advice to give client

-is there a lot to be paid by hra remedy? Do courts pay a lot but in greenfield,
they wont pay very much, so using the mirror principle, meaning the awards
at the lower side, so use case law but we can try this or that or another.
- is it a good idea to go thru difficultuies of neg.

Hullair:
The first client to advise was Hullair, which had not been
consulted prior to the adoption of the Regulations and also faced
a significant penalty due to the discovery of some nail clippers
that its security search had not located. There were 3 issues here
that might have been considered, one which need not have been
analysed in any great detail as it was straightforward, and two
more that had a greater level of complexity.
1. The first issue to consider was that of consultation. Hullair had
not itself been consulted before the Regulations were
promulgated, despite the fact that the statute required
consultation with relevant parties. The argument here was over
a statutory duty to consult (there does not appear to be an issue
of legitimate expectation) and the correct case law to consider
was that of Aylesbury Mushrooms and associated authorities the
only real point for analysis was whether or not the SoS had
breached the statute in his failure to consult Hullair. Many
candidates wrote a great deal about the Gunning criteria etc. and
issues on the adequacy of consultation. It is difficult to see how
this is relevant given that no consultation had taken place! Extra
credit was given for an observation that if Hullair was a member
of a trade body or association of airlines that had been consulted,
the SoS might argue that Hullair had been validly consulted.
Many candidates wrote only about consultation, and wrote at
great length on the adequacy of consultation etc., which was
largely a waste of words as it was not

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particularly relevant. The pertinent legal issue could have been
dealt with very
concisely.
The second issue, which was spotted by only relatively few
students, was an issue of jurisdiction. It was at least
arguable that the SoS did not have the power to impose the
penalty on Hullair because the Regulations gave the SoS
power to impose penalties where dangerous items were
found. There seems to be a legitimate point that nail
clippers may not be a dangerous item if this is the case
then the SoS was potentially acting ultra vires in imposing
the penalty. Credit would have been given for identifying
this point, with further credit given for citation of relevant
case law on jurisdiction and jurisdictional fact.
The third point that might have been considered here was
whether or not the penalty imposed on Hullair was ultra
vires as it was irrational or disproportionate. Many students
identified this point, but then did not deal with it well. It is
possible that Hullair had a claim at common law, based on
cases such as Wednesbury, Hook and others. There was also
a very strong argument that Hullair may have been able to
invoke the protection of the HRA 1998 Article 1 of the
First Protocol to the ECHR give a right to the protection of
private property and the confiscation of the aeroplane is
arguably a breach of that provision. There are domestic
cases such as International Transport Roth on similar points
(except in Roth, it was lorries that were confiscated) and
there is a wealth of case law in the European Court of
Human Rights. It was notable that very few people had
engaged in research on this issue, so authority cited here
was often poor.
Finally, there was an issue of whether the failure to allow
Hullair to make representations before the fine was
imposed was a breach of the principle of natural justice.
This was a simple issue that didnt really need a lot of
analysis, cases such as Ridge v. Baldwin, Anderson or Lloyd
v. McMahon (amongst many others) would suggest that this
would be a breach of the principle of natural justice. Extra
credit would have been given for those who considered the
HRA and Article 6 ECHR implications of such a failure, too



(b) The Professional Players Union (PPU) informs you that it was not
consulted prior to the adoption of the Code of Practice on
stadium safety. The PPU was consulted prior to the adoption of
the Code of Practice on the behaviour of supporters and players,
but it is aggrieved that it was given only 1 week to respond to
the consultation, and although the PPU put forward many
objections to the proposed Code of Practice, none of its
concerns appear to be addressed in the final version adopted by
the FSA. The PPU is aggrieved by both consultation exercises.


The PPU:

The PPUs situation was entirely focused on the issue of
consultation. There were two distinct issues here, and many
students did not deal with the question well because they did not
discern adequately between the two. First, there was an issue in
relation to the failure to consult the PPU in relation to the Code of
Practice on stadium safety and then there was an issue as to the
adequacy of consultation in relation to the Code of Practice on the
behaviour of supporters and players. Note that the FSA was
subject to a statutory duty to consult in relation to both of these
Codes of Practice, so lengthy discussions of legitimate
expectation to consultation would not have received credit, as
they merely demonstrated a misunderstanding of the issue. The
only possible exception to this was where a candidate speculated
about the possibility of a legitimate expectation to consultation
in the case of the Code of Practice on stadium safety, though
there was nothing to suggest the existence of such an expectation
in the problem scenario. As such, the likely issues were as
follows:
In the case of the Code of Practice on stadium safety, the
question was whether the PPU ought to have been
consulted. There was no real correct answer to this it was
possible to argue both that it was unreasonable not to
consult the PPU and that it was reasonable not to consult
the PPU. Either approach was fine, provided the relevant
law, which was the Aylesbury Mushrooms case and allied
case law, were considered. Many students took a very hard
line on this issue, suggesting that the PPU could not
possibly have a role in stadium safety without any analysis
of the arguments this received less credit.
The second issue to consider was the adequacy of consultation
in relation to the Code of Practice on the behaviour of
supporters and players. In essence, this required the
application of the Gunning criteria. The pertinent issues
were as follows:
The PPU were unhappy that a limited time had been given
for response consideration ought to have been given
to the case law such as Lee, Dredger and Port Louis
Corp. in order to determine the legality of this. On its
face, 1 week is unlikely to be sufficient in light of this
case law.
The PPU were also unhappy that their responses did not
seem to be reflected in the final policy adopted by the
FSA. Here, there ought to have been consideration of
the relevant case law on the obligation to take account
of responses, including cases such as Rollo and Baker.
Some students raised the excellent point that there
might be a link between the requirement that
consultation is at a formative stage and the duty to
take account of responses. There was evidence of
some good research here when this issue was raised
and authorities were cited.
Credit would have been awarded for reasonable
discussion of other elements of the Gunning criteria,
such as the duty to provide sufficient information
where this was raised.
If you ultimately advised the PPU to bring a claim for judicial
review (which would have been a reasonable possibility)
then credit would have been given for an assessment of the
standing requirements for groups with citation of
appropriate case law. This would have been fine whether
delivered as a part of your advice to the PPU, or as a
freestanding analysis of standing requirements.

Zucchinio and Leven Rovers:
This scenario was by far the most complex of those under
consideration. There were two clients here, though both had very
similar concerns. The quality of answers to this scenario varied
considerably some students showed both superb knowledge
and research skills in finding relevant case law, while others did
not really appreciate the human rights issues that were at stake.
One of the purposes of this scenario was to test students ability
to separate a number of different issues and analyse each of them
separately. Some students did this very well, while others simply
dealt with the issues as a swirl of points, without really
considering them separately. It was undoubtedly better to dissect
the issues here. There was a fundamental distinction between
substantive and procedural challenges that ought to have been
made, and then within the substantive challenges, further
distinctions were also possible. The issues that might have been
addressed are as follows:
1. Both Zucchinio and Leven Rovers had the potential to
challenge the procedure through which penalties were imposed
upon them. In Leven Rovers case, there is some argument that
the duty to give reasons was breached, as beyond the fact that the
fine was imposed for failure to control their supporters (which is
self- evident from the context) no further reasons were given for
the level of the fine etc. Credit would have been given for a
discussion of the case law, which might have included, Doody,
Murray or Stefan. In Zucchinios case, even though reasons were
given, there was no endeavour to justify the length of the ban. It
might have

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been possible to challenge this on grounds that the reasons were
not adequate reference to Tofik or the Lothian and Borders Police
cases would have gained particular credit here. Both Zucchinio
and Leven Rovers could have challenged the lack of a hearing,
perhaps using Ridge v. Baldwin or Anderson, and there is also a
reasonably strong argument that the refusal of legal
representation was unlawful in a case with such serious
consequences. Although Enderby Town seems to be a case in
point against the idea of legal representation, it was possible to
argue that later cases, particularly in the context of Article 6
ECHR, might point towards a need to allow such representation
where penalties are relatively serious. Credit would have been
given where relevant analysis of these issues was offered.
In Zucchinios case, it was possible to argue that the provision
of the Code of Conduct that ...no player shall express
themselves in a manner that might incite offence amongst a
clubs supporters was unlawful per se. The argument here
would have been that such a broad prohibition was
contrary to Art. 10 ECHR and therefore could not stand.
Domestic case law such as Brind, Simms, Prolife Alliance and
ADI could have been used to support such an argument.
Some students gained further credit for research into and
citation of relevant authorities from the European Court of
Human Rights. This argument was a reasonable one, but
may not have been successful as it could be argued that
although the provision is broad, the application of it could
have been undertaken in such a way as to render it
Convention compliant. Further credit would have been
obtained by noting that Zucchinio might have been able to
bring a claim under s. 7 of the HRA 1998 directly, rather
than via a claim for judicial review.
A further challenge that Zucchinio might have brought
concerned the application of the provision of the Code of
Conduct. Even if the provision itself could be considered to
be lawful, it was possible to argue that the application in
Zucchinios case was a disproportionate interference with
his Article 10 right to freedom of expression. Similar case
law authorities to those mentioned in point 2 could have
been considered to support such a proposition. Even if the
imposition of a penalty could have been justified in
Zucchinios case, it could have further been argued that the
level of that penalty was disproportionate. Cases such as
Hook, Benwell and International Transport Roth could have
been used to support this point. As in scenario 2, there
could have been a direct action here under s. 7 HRA 1998.
Leven Rovers were in a slightly different situation. The club
faced a 500,000 fine for failure to control their
supporters. Some students ran this together with
Zucchinios situation and suggested that there could be an
Article 10 issue here. This is just plausible, but would have
needed particular justification. More likely, however, would
be that Leven Rovers would endeavour to challenge such a
large fine as being unreasonable (i.e. Wednesbury
unreasonable) or disproportionate (in the sense of Hook or
Benwell) for what was a relatively minor incident. If you
took this line, it was incorrect to argue that the club could
bring its claim via s. 7 HRA 1998 they would need to
bring the claim via ordinary judicial review procedure.
Brian and the Fairground Operators Association (FOA):
Brian and the Fairground Operators Association required advice
on the issue of consultation. There was a statutory duty to
consult in the statute, and the Fairground Operators Association
had been consulted, so the core issue here was really one of



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whether or not the consultation that was undertaken was
adequate. The major points for consideration are as follows:
A number of students discussed the Aylesbury Mushrooms case
law and whether or not the RSA had a duty to consult. This
was not really relevant, as the RSA had consulted, so it was
safe to assume the RSA believed that it was under a duty to
consult the FOA.
There were 2 core issues that needed to be addressed first
was whether or not an adequate amount of time had been
given to the FOA to respond to the consultation and second
was whether or not the FOAs response had been
adequately considered.
In relation to the issue of the time limit, there is a great
deal of case law. As the promulgation of the rules did
not seem to be urgent, the case law (Port Louis,
Dredger etc.) would suggest that 1 week is unlikely to
be a sufficient timescale. A number of students also
used the relevant Code of Practice on government
consultation to support the argument, which was
good.
The second issue, whether or not the FOAs response had
been adequately considered, is more vexed. Cases
such as Baker and Rollo suggest that responses must
be considered, but of course that doesnt mean they
should be adopted! Credit would have been given for
discussion of relevant case law, although it may have
been difficult for the FAO to pursue a successful claim
on this ground.
The FAO and Brian perhaps had some issues with standing
(although as the FAO had been consulted, these were
hardly pressing) and credit would also have been given for
consideration of the fact that the FAO may well have been
an unincorporated association, which perhaps poses
difficulties in relation to standing and costs.
Another possible route for Brian and the FAO may have been to
complain to the PCA regarding maladministration in the
promulgation of the relevant policy. This was not an
unreasonable route to suggest. Credit was given for
consideration of whether the PCA had jurisdiction (we have
no information on whether the RSA was added to Sched. 1
of the PCA Act 1967) and there would have been further
credit for a consideration of the process and any relevant
authorities from the PCAs case work.