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12 Jud. Rev. 1 (2007)

handle is hein.journals/judire12 and id is 1 raw text is: [2007] JR

Judicial Review: Trends and Forecasts
Rabinder Singh QC*
Matrix Chambers; Visiting Professor of Law, LSE
1. Public law in the early twenty-first century appears to be in a state of transition. In large
part it has roots going back decades, indeed centuries, in the common law. There are
features of it which would have been recognisable 30 years ago, perhaps even 100 years
ago. There are other features which are significant developments and refinements of
earlier doctrine; and some emerging trends that would have been regarded as hereti-
cal by an earlier generation, in particular those brought up in the Diceyan tradition of
Parliamentary sovereignty.
Fettering of discretion
2. The recent case of R (Kilby) v Basildon District Council [2006] EWHC 1892 (Admin)
[2006] HLR 46 (McCombe J) revisited the long-standing problem of to what extent a
public authority can use its powers to constrain its own freedom of action for the
future. There are two potentially conflicting principles which most of the time appear
to sit alongside each other without too much difficulty in practice. First, there is the
fundamental doctrine that an authority cannot fetter its own discretion, for example by
contract. Secondly, there is the obvious point that even a public authority must be able
to enter into contracts in order to perform its statutory functions. This recent decision
of the High Court emphasises that an authority cannot fetter its statutory power to
vary a secure tenancy agreement. Sections 102 and 103 of the Housing Act 1985 pro-
vided for three specific ways in which a tenancy could be varied and not otherwise. A
clause purporting to limit the authority's power to vary was therefore an unlawful fet-
ter of the authority's discretion. Such a clause was void from the outset and could not
therefore give rise to a legitimate expectation on the part of the tenant that the limita-
tion would be complied with by the authority.
Abuse of discretion/improper purpose/legitimate expectation
3. The highly publicised case of R (S and others) v Secretary of State for the Home Department
[2006] EWCA Civ 1157 (2006) The Times, 9 October concerned the so-called Afghan
hijackers (they had in fact had their convictions for the offence of hijacking quashed in
earlier criminal proceedings). Although the first instance decision of Sullivan J ([2006]
EWHC 1111 (Admin)) caused a political and media frenzy about the Human Rights
Act, the case itself had relatively little to do with that Act (in so far as it did, it concerned
the meaning of in accordance with the law, on which see below). The decision that
the claimants could not be deported for the time being because there was a real risk
to their lives (a decision that there would be a breach of Art. 2 of the European
Convention on Human Rights (ECHR)) had in fact been taken by the Immigration
Appellate Authority in 2004 and was not itself the subject of these judicial review pro-
ceedings. The case did, however, throw up some interesting applications and refine-
ments of well-established principles of public law.

* Thanks to Julie Albrektsen for research assistance in preparing this article.

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