Protection of Rare Animals Act 2014 - Essay Example

Public Law Public Law Section of the (fictional) Protection of Rare Animals Act confers on the Secretary of State for the Environment the power to designate an area of countryside as a protected area after consulting whoever she sees fit and having regard to the need to protect rare species of animals. Once an area is designated a protected area, section 2 prohibits access to the area unless a permit has been obtained from the Secretary of State.  The Secretary of State (Joanna) decides to consult local residents about whether to designate Jesmond Forest as a protected area by holding a public meeting. She places a notification about the forthcoming meeting (to be held on April 7th) in the Jesmond Times newspaper on April 4th. At the meeting, Joanna is told about the Wilton rabbit that lives in the forest, and so she decides to designate it as a protected area.  Advise the following: (a) The Access to the Countryside Association (ACA), who claim that they should have been consulted and were not; that the consultation process was, more generally, inadequate; and that the Wilton rabbit is found throughout the North East and is not rare. Pursuant to the Protection of Rare Animals Act, the Secretary of State is under no obligation to consult any particular group of people when it comes to decision making. The Act gives her discretionary powers regarding who to consult with prior. However, it is important that ACA looks at the provisions of the Act and consider what it says with regard to the required period of notice and if the proceedings are governed by strict rules of presentation of evidence. If the legislation is silent on those matters, the rules of natural justice require that adequate notice be given and person(s) with special interest in the decision be given an opportunity to be heard. According to American Iron & Steel Institute v. Environmental Protection Agency1, adequacy of notice can be determined by the fact that it fairly notifies any interested parties so that they can have an opportunity to air their views. However, inadequacy of the notice given does not automatically invalidate the final rule on grounds that the final rule adopted is different from the original proposal. This was as held in the above mentioned American Iron and Steel case. If it happens that the decision maker adopts a final rule that substantially differs from the original proposal, the courts will take it upon itself to analyze the adequacy of the original notice in a two part test. The first is whether the final rule can be considered a logical outgrowth arising from the original proposal, the notice and suggestions from the rule making process. The second test is whether interested parties were dully appraised and given a fair chance to comment and air out their views regarding the topic at hand. That being said, three days appears to be a relatively short time to allow all parties who may be interested in the decision making process to be properly appraised. Pursuant to the adequacy test mentioned above, therefore, this particular process failed to meet the required threshold as interested parties like ACA were not given a chance to comment and air out their views. Principles of Administrative law also require that in decision making, all relevant factors have to be considered. Considering matters that are irrelevant or ignoring those that are relevant provides an avenue for application of judicial review.  In Re Pecko-Wallsend2, the court mentioned that “The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action” In this instance, the Secretary of State seemingly ignored the fact that the Wilton Rabbit is fairly common throughout the North East and could therefore not be classified as a rare animal. Failure to consider this fact led her into making an inappropriate decision that should be amenable to judicial review. (b)Rob, who seeks to enter Jesmond Forest to harvest jimjam plants. Joanna has rejected his application in line with her policy never to grant applications that harm plant life in forests, as this will inevitably affect animal life. Rob complains that she refused to consider an independent scientific study that shows that his operation will have no impact upon the Wilton rabbit. Administrative law requires that persons in position of power provide written reasons as to why they have arrived at certain decision. In the same breath, there has to be evidence or such other material to justify the making of such a decision. For instance, Justice Finn in the Australian case of Minister for Immigration and Multicultural Affairs v Yusuf3, mentioned that it is not just sufficient to issue reasons, the reasons given must sufficiently address the relevant matter(s) in question. In the case at hand, the Secretary of State seems not to have given any sufficient reasons as to why Rob’s application to harvest jimjam plants has been denied. Merely stating that it will affect both plant and animal life without supporting the decision with any evidence in that regard is a defeat to the principles of natural justice. In the doctrine of relevant and irrelevant facts, administrative law requires that all matters that are deemed relevant to the case at hand be considered and all those that are deemed irrelevant be excluded from the decision making process. Ideally, statutory law ought to outline what is to be considered or not with regard to issues surrounding what the statue addresses. Therefore in this instance the Protection of Rare Animals Act 2014 ought to have outlined the relevant and irrelevant factors. In the rare instance that the statute is silent on the matter, discretion lies with the decision-maker (the Secretary of State). However, this discretion is not absolute; it is subject to a few rules. One of the rules requires her to properly apply her mind in the law. Therefore, the most reasonable thing expected of her would be to study the independent scientific study Rob brought to her. This is because, in the absence of outlined relevant and irrelevant factors, it qualifies as a relevant fact that she is obligated to consider in her decision making. This report could be proof that his harvesting of the Jimjam plants will bear no negative effect on animal life. Failure to do so makes her decision unfair and therefore amenable to judicial review. Judicial review has also been accepted in instances where the decision maker decides to use inflexible policies and apply it to every case. It is expected that decision makers will often need to look at the merits of specific cases and exercise their discretions accordingly. In as much as finding evidence along these lines is not easy, one way of going about it would be to prove that no applicant has won any such case within a period of time4. (c)Kevin, who is a highly respected ornithologist, who applies for a permit in order to view nightingales (a rare forest bird) in their natural habitat. Joanna had stated at a Bird Watchers Convention held in May that she would grant any permit to enter a prohibited area that is requested for the purpose of viewing rare birds. Despite this public statement, Kevins application is rejected. Kevin can apply for judicial review on grounds of legitimate expectation. Legitimate expectation while not a right, is a relief, benefit or remedy that may arise from an established practice or given promise. It will give Kevin locus standi in the judicial review proceedings. The main idea behind the doctrine of estoppel is to hold public authorities on their own word when they make promises to members of the public. It has been equated to entering into a contract and reneging on it is tantamount to breach of contract. This is in itself unfair to those who relied on the said promise. Legitimate expectation mitigates the effects of the high threshold of proving Wednesbury unreasonableness when referring to decisions of public bodies. For remedy under the doctrine of legitimate expectation to arise, Diplock, LJ stated, inter alia, that the decision of the authority must affect the applicant by depriving him of an advantage or benefit in which he was assured by the decision maker would not be withdrawn either without giving the person proper reasons or allowing them to be heard. This was in the case of Council of Civil Service Unions & Ors. Vs. Minister for the Civil Service5. Further, in a leading case in the matter, the court held that "when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as the implementation does not interfere with in its statutory duty"6. It is however important for Kevin to realize that simply because a person who is entitled to make representations fails to do so does not, just by itself, prevent public bodies from changing their policies to mirror any change in circumstances; even if this means reneging on an earlier promise made or a way of conducting previous undertakings. This right to make changes may be liable to a fairness test to determine whether or not estoppel or legitimate expectations ought to arise. In this case, Joanna’s promise does not interfere with her statutory duty if it was to be implemented. Further, there is no indicated change in circumstances that would have warranted the Secretary of State’s earlier made promise. Therefore, the rule of estoppel is bound to prevent her from going back on her promise to allow bird watchers enter a prohibited area for that purpose. Bibliography Attorney General of Hong Kong v. Ng Yuen Shiu, [1983] 2 AC 629, [1983] 2 All ER 346, [1983] 2 WLR 735, (99 LQR 499), United Kingdom: Privy Council (Judicial Committee), 21 February 1983, available at: http://www.refworld.org/docid/3ae6b6963c.html [accessed 4 March 2015] ‘568 F2d 284 American Iron and Steel Institute v. Environmental Protection Agency | OpenJurist’ accessed 5 March 2015 ‘Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6 (22 November 1983)’ accessed 5 March 2015 ‘Grounds of Review’ accessed 5 March 2015 ‘Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others; 1986 | Swarb.co.uk’ accessed 5 March 2015 Read More