ACTING FOR A PROPER PURPOSE

ADMINISTRATIVE LAW

ACTING FOR A

PROPER PURPOSE .

Robert Musumeci

ADMINISTRATIVE LAW

Contents 1 Introduction 2 Locating the purpose of legislation

3 Acting for an improper purpose 01 Appointment of experts 4 Conclusion 02 Power to make corrections

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ADMINISTRATIVE LAW

Biography

Dr Robert Musumeci obtained a PhD in Law from the University of Malta with his dissertation entitled ‘Judicial Interpretation of Maltese development planning law.

Eliciting the added value’ after having been previously selected by the same University for the prize of Best Doctor of Laws Thesis Award in 2016 for his work entitled ‘The Development Planning Act 2016 – A critical Appraisal’. Prior to being admitted to the Maltese Bar, Dr Musumeci had graduated as a perit in 1997 and then moved on to also obtain a Masters Degree in Conservation Technology in Masonry Buildings in 2004. He is a former chairperson of the Building Industry Consultative Council (BICC) and was later appointed as a government consultant in the reform which led to Malta Environment and Planning Authority’s demerger, the establishment of the Lands Authority, the introduction of a regulatory framework for Estate Agents, the drafting of the constitutional amendments pertaining to the Gender Balance in Parliament Reform and the setting up of the Building Construction Authority. Dr Musumeci lectures planning law and administrative law at the University of Malta. He also authored the book ‘Selected Principles of Maltese Planning Law’ (Kite Publications, 2021). Dr Musumeci is the first to hold warrants to practice both as a lawyer and a perit in Malta.

ADMINISTRATIVE LAW

1

Introduction

Powers are conferred by Parliament to public authorities for a specific purpose. It is, thus, sensible to argue that authorities may exercise such powers only in furtherance of that purpose. It is acknowledged, however, that a power could be exercised by an authority for a purpose which is different from what Parliament would have envisaged. When this happens, the act of the authority will continue to stand for as long as no challenge is brought before the courts or a quasi-judicial body and declared unlawful.1 The aim of this paper is to show how the purpose of a law could be established and then what public authorities should seek to ensure compliance with any such purpose.

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Locating the purpose of legislation

As a start, the purpose of a statute is to be inferred from the meaning borne by the words used in the legislation itself, regardless of any intention that the lawmakers might have had when debating the law in Parliament. 2 Another important thing to keep in mind is that the language is to bear its ordinary meaning in the general context of what the statute intends to achieve. Laws should not be interpreted in a manner that yields absurd outcomes or creates gross injustices even if full regard is to be given to everything that is written.

Laws may be written in such way that one might run around with the impression that the public authority is conferred with almost unlimited leeway when it comes to exercising its powers. If we were to take the Lands Authority Act3 as an example, Article 7(c) establishes the purpose of the Lands Authority as follows: ‘[…] to administer in the most ample of manners and make best use of all the land of the Government of Malta and all land that form part of the public domain […]’

From a reading of the said provision, one might think that the Lands Authority is conferred with unlimited discretion when it comes to managing public land. However so, when Article 7(c) is then read in conjunction with Article 31 of the Government Typically, an ultra vires administrative act could be challenged before an ad hoc Tribunal (as with decisions from the Environment and Resources Authority that can be appealed before the Environment and Planning Review Tribunal or expropriation cases that can be appealed before the Land Arbitration Board) or the Administrative Review Tribunal (as with certain administrative acts falling under the Authority for Transport in Malta Act, Chapter 499 of the Laws of Malta). When such remedy is not available in the law, the option is to make a challenge for judicial review in terms of Article 469A of the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, before the Civil Court (First Hall).

2 As Lord Reid said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613: 'We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used.'

3 Chapter 563 of the Laws of Malta.

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Lands Act,4 it emerges very clearly that the Authority is able to dispose of public land within a set of strict parameters set out in the said Article 31.5 The ‘purpose’ of a statute may, therefore, not derive from one single legal disposition since the legislator’s intentions may take different dimensions when you read through different laws.

When locating the purpose of a statute, one should also take cognizance of any ‘obvious material matter’ which any reasonable man is bound to be conscious of, notwithstanding the law being silent on such matter. Admittedly, this is not always an easy a task as one might purport it to be. The misuse of a written provision in the course of decision-taking is far simpler to detect than ignoring something which should have been materially obvious to the reasonable mind.

Ultimately, it is good to note that there could be situations in which an administrative decision rests on a number of purposes, some of which are proper and some of which are not. In such case, it would appear that when the powers which are exercised for proper purposes are lawful and those for improper purposes are subsidiary and merely consequential, the decision is still considered to be lawful. At least, this is what the Supreme Court of Ireland concluded in Cassidy v Minister for Industry and Commerce.6 This was a case where the Minister for Industry and Commerce had the power to regulate the maximum price of alcoholic drinks but chose to control prices through informal arrangements with publicans. When Dundalk-based publicans refused to abide by these arrangements, the Minister used his power to impose maximum prices in that area only. The court held that although the order was made in order to cow the publicans into re-joining the voluntary scheme, this was very much secondary to the goal of maintaining price stability which was authorised by statute, thus rendering the decision lawful.

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Acting for an improper purpose

3.1 Not taking considerations

into

account

all

mandatory

One way of ‘acting for an improper purpose’ is when the public authority fails to take into account all relevant mandatory considerations that are either statutorily expressed or those that should have been ‘materially obvious’ for any reasonable decision-maker not to ignore despite the law being silent.

As we have seen, inferring that a decision is contrary to the express wording of a law Chapter 573 of the Laws of Malta.

For example, Article 31 provides that public land can, in certain instances, only be disposed of after the issuance of a public tender.

6 Cassidy v Minister for Industry and Commerce [1978] IR 297.

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should be fairly straightforward. For example, it should not have been difficult for the Environment and Planning Review Tribunal to realize that approving an edge development with a 1.5 metre side curtilage on the side of the Outside Development Zone ran counter to what was expressly provided in the applicable policy since any such development had to have a side curtilage of at least 3 metres. Still, the Tribunal went on to approve the development because it felt that a width of 1.5 metres was regarded to be sufficient. The Court’s decision to annul the Tribunal’s ruling came as no surprise since the latter’s actions undermined the purpose of the law when it chose to disregard the statutory 3 metre rule.7 On the other hand, there is no hard and fast rule that indicates what ought to be ‘materially obvious’ when the law is silent. In the case of R (DSD & Anor) v The Parole Board of England and Wales,8 a certain John Worboys had been convicted of serious sexual offences and given an indeterminate sentence for public protection.

Notwithstanding so, he was later released by the Parole Board after making an excuse that his violence was triggered by a breakup of a relationship in 2004. Subsequently, the release was challenged by a number of victims on the basis that the Parole Board failed to undertake further inquiry into the circumstances of Worboys conduct. The victims claimed that the Board had evidently ignored the fact that nearly 80 victims had come forward and given stories about attacks from Worboys before 2004. As a reaction, Worboys’s case was remitted to the Parole Board for fresh determination before a differently constituted panel because the Board had failed to have any regard to his previous conduct. Although there was nothing in the law to suggest that previous reports had to be taken into account, the High Court improvised a new doctrine in the sense that anything that was obviously material to the outcome of the decision must have had to be taken into account. In a nutshell, the releasing of information regarding the 80 victims was, in the eyes of the High Court, a ‘material obvious matter’ of which regard had to be taken despite the law being silent. That being said, there is no objective test with which what ought to be ‘materially obvious’ is sensed by one and all.

Even so, it must be kept in mind that not every instance where a factor to be taken into account has been ignored will justify a decision being set aside. This is particularly so when ignoring some factor would still have played no material role in the outcome of the case due to the weight which would have been given to it.9

3.2 The taking considerations

into

account

of

irrelevant

Public authorities are also required to exclude from their mind any factor, or factors, that are ‘irrelevant’ to the scope of the pertinent legislation under which they are 50/2019 Paul Caruana et vs L-Awtorita tal-Ippjanar et, Court of Appeal (Inferior) 15 July 2020.

R (DSD & Anor) v The Parole Board of England and Wales [2018] EWHC 694.

9 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40.

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operating. Things could, however, get a little more complex when decision-makers might run with the idea that they have unlimited discretion on the basis that they can exercise a power ‘as deemed expedient’ or ‘as deemed relevant’ or ‘as deemed fit’.

In the case of development planning legislation, for example, one might be prone to think that everything under the sun could be considered as a ‘material consideration’ that could influence the outcome of a planning application because Article 72 (2)(d) of the Development Planning Act10 requires decision-makers to pay regard to any material consideration which they deem ‘relevant’ without defining ‘material considerations’. With situations like this, an applicant might argue that his personal financial situation or health condition should weigh on the outcome of his planning application whereas a planner would probably contend that such considerations lie outside the scope of good planning. But which of the mentioned positions is correct since the law does not provide a definition of ‘material considerations’? The answer to that is to find out whether personal financial situations and health conditions fit within the purpose and objectives set out in the Development Planning Act; that is, the legislation under which planning applications are determined.

One of the landmark cases that illustrates this notion of ‘irrelevant considerations’ very clearly is the Blue Sisters judgment.11 This case, which takes us back to the political turmoil of the 1980s, was concerned with the renewal of a hospital licence. The Blue Sisters hospital was run by a charitable order of Irish nuns who had offered medical services in Malta since 1910, and when the hospital licence came for renewal the thenMinister for health thought that he could rely on a disposition found in the Medical and Health Ordinance12 that allowed him ‘to impose any condition he may deem expedient’. On that basis, the Minister instructed that the licence was to be renewed on condition that not less than 50 percent of the beds be made available free of charge to the government. In essence, this meant that anything up to 100 percent could be made available to the government. When the said condition was subsequently challenged before the Maltese courts by the nuns, who already had financial difficulties to run the hospital as things stood, the actions of the Minister were found to be tantamount to the use of the Medical and Health Ordinance as an oppressive tool to attain extraneous aims beyond ensuring health standards as provided in that Act. The 1985 case in the names Wheeler v Leicester City Council13 is also relevant to theme of ‘taking irrelevant considerations’. It was a time when South Africa was an apartheid regime14 and sports people all over the world had refused to play competitive sport in South Africa against all whites teams in a joint effort to put national pressure to end apartheid among South Africans, reinstating full political and civil rights to the black majority. Leicester Council joined the effort in favour of opposing sporting links with Chapter 552 of the Laws of Malta.

675/80 Prime Minister vs Sister Luigi Dunkin, Civil Court (First Hall) 26 June 1980.

12 Medical and Kindred Professions Ordinance, Chapter 31 of the Laws of Malta.

13 Wheeler and others v Leicester City Council [1985] 2 All ER 1106 (HL).

14 Apartheid was a system of legislation that upheld segregationist policies against non-white citizens of South Africa.

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South Africa. Notwithstanding so, the local rugby club15 did not seek to dissuade three of its players touring with the national side that went ahead to join a rugby tour in South Africa. The Council retaliated by suspending the club from making use of the open recreational area within its territory on the basis of the Open Spaces Act 1906 and the Public Health Act 1925, both which gave it specific powers to determine who should be entitled to use recreational grounds and on what terms. Further to the Council’s decision, the club made a challenge before the Court of Appeal because of the unfair manner in which the council set about obtaining its objective. On its part, the Council based its defence on it having statutory discretion under the Open Spaces Act 1906 and the various Public Health Acts to pay regard to what it thought was in the best interests of race relations as specifically provided under s71 of the Race Relations Act 1976. At first, the Court of Appeal had refused judicial review of the council’s decision to ban the club from playing at the ground which it owned. When the case was however taken to the House of Lords,16 the learned Lords held for the Club. While the Council’s views on the need for the council to distance itself from bodies who hold important positions and who do not actively discourage sporting contacts with South Africa were considered to be ‘sincere’, the manner in which the council set about obtaining its objective was seen to be dictated by ‘irrelevant considerations’ and its decision was set aside.

3.3 Fettering discretion One other way of acting for an improper purpose is when a public authority adopts policies that preclude it from considering the merits of a particular case. It should be remembered that policies are designed to strike a compromise between unregulated discretion and rigid rules. While it is true that policies are required to be applied with uniformity in order to save time and promote certainty, public authorities are nonetheless expected to pay regard to the merits of the individual case and listen to anyone with something new to say.

The leading case on this subject is the British Oxygen case17 in which the Board of Trade had a discretionary power to give grants to help firms with capital expenditure under the Industrial Development Act 1966 s 13(1). A policy was adopted not to give grants for items under £25, but British Oxygen claimed that the policy adopted by the Board was too rigid. Indeed, British Oxygen Company manufactured medical gases that were kept in cylinders that individually cost £20 although, in total, it spent four million pounds on the cylinders. British Oxygen took their case to Court, claiming that it should still have been given grants by the Board of Trade even though an individual cylinder costed under £25 as required by policy. On its part, the Court held in favour of British Oxygen since officers ought to listen to reasonable calls for changes in policy. Indeed, Lord Reid held that the circumstances in which discretions are exercised vary enormously and the

Leicester Rugby Football Club.

Wheeler and others v Leicester City Council [1985] 2 All ER 1106 (HL).

17 British Oxygen Co Ltd v Minister of Technology [1971] AC 610.

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general rule is that anyone who has to exercise a statutory discretion must not shut his ears to an application. The reasoning behind this judgment is that there could be times when, if applied rigidly, discretionary powers would undermine the statutory objectives.

Having said so, it must be said that the permissive approach ushered in by the Oxygen case has paved the way for increasing judicial regulation grounded on rigid administrative rules18 without the possibility for decision-makers to adjust themselves according to different scenarios.

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Conclusion

A public authority is therefore bound to first make sure to correctly detect the purpose of the law after probing into the facts of the case. This is achieved by delving into the entire legal text, including any implied dispositions that ought to be ‘materially obvious’ to any reasonable decision maker.

The next step is for the decision maker to ensure that the discretionary power conferred on him is exercised limitedly for such purpose and nothing else. For that to happen, the decision maker must seek to ensure that: (i) no explicit or implied legal provisions that are materially obvious in the context of what is being assessed are ignored from the decision equation; (ii) irrelevant considerations driven by some extraneous interest are completely left out from the decision equation; (iii) the blind application of policies without paying regard to the individual case, taken in the context of the purpose of the Act under which the policy was enacted, are avoided.

Aileen McHarg, ‘Administrative Discretion, Administrative Rule-making, and Judicial Review’ (2017) 70(1) Current Legal Problems 267.

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