Case Study 3: Revoking Minibus Licences Without a Hearing
In the fictional state of St. Aubyn, the Public Transport Act provides that the Licensing Authority 'may grant, refuse, suspend or revoke a licence as it thinks fit'. The Authority adopts an unpublished policy: any operator with more than two outstanding traffic convictions will lose a licence. It revokes the licences of 14 minibus operators without a hearing. One is Merle, who has three unpaid parking tickets, not convictions, and an appeal pending against one ticket. The Authority gives no reasons. The Minister tells a newspaper that Cabinet approved the policy and that the Authority 'has no choice'. Merle's livelihood depends on the licence; she has operated the route for 11 years. She seeks judicial review and also threatens a constitutional motion alleging breach of due process and protection of property. The Authority argues that the words 'as it thinks fit' exclude judicial review and that it must follow Cabinet policy.
1. Identify the grounds of judicial review available to Merle and assess the Authority's claim that the statutory words exclude review.
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Judicial review is concerned with legality, rationality and procedural fairness. Merle can argue illegality because the Authority has fettered its discretion by applying an unpublished policy rigidly. A statutory discretion must be exercised case by case; policy may guide but not dictate. The Authority also acted under the dictation of Cabinet, which is a further illegality if the Minister's statement reflects the real decision. It misunderstood the facts if it treated unpaid parking tickets as convictions. Procedural impropriety arises from the failure to give Merle a hearing before revoking a licence on which her livelihood depends. Irrationality may arise because revoking an 11-year route licence for three unpaid tickets is disproportionate. The words 'as it thinks fit' confer a wide discretion but do not oust judicial review. There is no privative clause, and even such a clause would not protect decisions that are ultra vires or unfair. The Authority must exercise its own discretion.
2. Does Merle have a legitimate expectation of a hearing, and is there a duty to give reasons?
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A legitimate expectation may be procedural or substantive. Merle has 11 years of operation and no prior hearing; that history may create an expectation that she will be consulted or warned before revocation. The statutory power affects her right to earn a livelihood, so the common law duty to hear her (audi alteram partem) applies. The duty to give reasons is not universal at common law, but it may be implied where a decision affects rights, where the statute requires it, or where reasons are necessary for effective judicial review. The constitutional guarantee of due process may also require reasons. The Authority's refusal to give reasons strengthens the procedural impropriety ground. A hearing would have allowed Merle to show that her tickets were not convictions and that an appeal was pending. The Authority should at least have given her notice and an opportunity to make representations.
3. Advise on the relationship between judicial review and the constitutional motion, and on separation of powers.
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Judicial review and a constitutional motion are different. Judicial review asks whether the decision is lawful, rational and procedurally fair; a constitutional motion asks whether a constitutional right has been breached. Courts usually require a claimant to use the ordinary remedy of judicial review first, unless it is inadequate. Merle should probably proceed by judicial review; a constitutional motion may be struck out as an abuse if it duplicates the same complaints. Separation of powers matters because the court will not substitute its own view of the merits for the Authority's. It can quash the revocation and order a lawful hearing. Cabinet may set policy, but the Authority must apply the statute. The Minister's statement does not make the policy law. The court's role is to police the legal limits of the power, not to decide whether the route should be licensed.