Proportionality Law in England and Wales Essay

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fictional case of Amit and his dream to sell pies out of a converted red London bus. There is apparently at least one other bus that operates in much the same way and it is operating without a problem. However, the same governing body that approved that bus has said no to Amit. When he tries to get a reason for the disapproval, he is not given one. He is similarly shut down when he tries to appeal the decision. The author of this report will assess whether the relevant governing body, that being the Wivenchester District Council, is behaving as it should when it comes to the denial and the explanation thereof. There will also be a discussion of whether Amit has a viable claim when it comes to acting against the Wivenchester District Council for the way that they have handled the decision and whether they have complied with the relevant laws. There is also question as to whether the law itself is acceptable in its form and function. The second part of this report will talk about the concept of proportionality and how/whether it is adopted as a common law ground of judicial review in both England and Wales. While the law typically works well for everyone involved, laws that are poorly written, enforced in a biased way or enforced in an uneven way can create a disservice to a lot of people.

Part I -- Amit vs. WDC

As noted above, Amit has encountered a number of problems when it comes to opening his food bus. Even so, it would seem that he has a number of grounds to appeal and fight for his food bus because the manner in which the Wivenchester District Council is handling the matter up to and including no explanation for why the denial was issued, no chance for appeal and the possible conflict of interest between the chairman and one of Amit's rivals, just to name three big ones. The first problem with the denied application that will be looked into is the fact that there is no definitive reason or explanation given for the denial (Weinstein 2015). Indeed, the Wivenchester District Council has the right to review the licensing application and deny it if the application or the person making is not up to snuff with the relevant laws and standards. However, those laws and standards should be clearly defined. Unless the Food Act of 2001 leaves this discretion entirely up to the people on the council (unlikely), then there has to be a specific reason why Amit's application would be denied. Beyond that, Amit has every right to know why the license application was denied so that he can remediate the deficiency (or deficiencies), argue that he is not deficient if he truly believes he is not and so forth. In short, the Wivenchester District Council has to have a reason to deny his claim and Amit has a right to know what that reason is. Making Amit appeal (even if he could) to find this out is a huge waste of time and money for the Wivenchester District Council because those reasons should be defined and explained before any appeal is even considered (Croddy, Degelman, Doggett & Hayes 1997).

As already alluded to above, the fact that an appeal is rejected outright is also not acceptable. If the Food Act of 2001 says that no appeals are allowed, that would technically suffice in many situations. However, it can absolutely be argued that an appeal process can and should be in place and it perhaps should also be argued that the party that hears the appeal of Amit should not be the Wivenchester District Council. In fact, it should be another party and for more than reason. First, asking the Wivenchester District Council to hear the same case twice is kind of pointless. The odds that the same party would come to a different conclusion about the same matter is extremely unlikely unless Amit omitted something from his application, something was otherwise wrong with the application or something along those lines. Given the details of the story, that is probably not the problem. Indeed, the bigger problem is that Amit is being given no amount of due process to rectify what he feels to be the wrong decision. This would hold true even if there were no perceptions about conflict of interest, which is an issue but has not been fully covered yet (Steinbrook, Kassirer & Angell 2015).

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Even at a high level, the fact that the chairman of the Wivenchester District Council is friendly with someone that is subject to the licensure decisions of that board is very tricky from an ethical standpoint. At the very least, the chairperson should recuse himself or herself from any and all situations that involve that person given the connection that they clearly have outside of the professional environment of the Wivenchester District Council and the decisions that they make. At a lower level, there is and should be a legitimate question about whether the fact that the chairperson is friendly with a rival (or even just a competitor) of Amit is grounds for that chairperson not being fit to sit for any such decision that involves Amit, the rival or anyone else in their network of friends (Calabro & Torchia 2011). Truly, the chairperson should disassociate themselves from the rival of Amit or, at the very least, allow for an appeal to a group or person that does not involve the chairperson. Indeed, any appearance of impropriety is just as bad (if not worse) than actual impropriety itself because it tends to undermine the legitimacy (perceived or actual) of the Wivenchester District Council (Johnson 2015).

With all of that being said, the questions from this assignment that are mundane to Amit shall be answered with due haste. First, while Amit is not really able to prove that the decision made was about the connection to the rival, the lack of context with the decision that was made not to mention the scuttling of any appeal makes for very improper appearance. For that reason alone, Amit should be able to demand a specific reason why his van was deemed "unfit" for licensure and there should be an appeal allowed for that does not involve any power from the chair that has the ostensible (or at least possible) conflict of interest (Clark 2014). For a chairperson to associate with a licensed person like that is extremely unwise on its face and that alone is going to sink the Wivenchester District Council if they try to argue against a further appeal for Amit. Even if that apparent or possible conflict of interest was not in play, the lack of due process and explanation that Amit has been receiving needs to be explained and fleshed out. If the Wivenchester District Council is not acting in accordance and based on the requirements of the Food Act of 2001, they should be made to do so. If the law does not define or allow for such due process and specific explanations for decisions made, the law should be retooled so as to include this. Saying "no," giving no reason and not allowing for any appeal, conflict of interest or not, is terrible governance and that law should be struck down on constitutional grounds if at all possible if the proper frameworks and so forth to require that are not firmly in place. If the law does have those frameworks and the Wivenchester District Council is not adhering to them, it would literally call of their decisions into question and the conflict of interest just makes it worse (Berggren, Bjornskov & Lipka 2015).

As for part B of the question, the refusal letter says that the Wivenchester District Council is "not satisfied that the mobile vending unit is fit for purpose." That explanation, if one could call it that, is entirely too vague. If there are elements of the Food Act of 2001 that explain why Amit's cart was not deemed fit, those statutes and provisions should be specifically cited and why Amit's van does not comply with those laws. For example, if there were not proper sanitation stations in the van and that is required by the law, that could be pointed to. Even so, Amit asked for an explanation and was given the terse response "we cannot elaborate further." This is not acceptable for a government body to say or express. If they have a valid reason to deny the license such as too many licenses being issued, Amit's license application not being acceptable or something else along those lines, that would be fine (Bruhn 2011). However, the Wivenchester District Council is a governmental body and they do not get the liberty to just say "no" with no explained and valid reason. Unless there is an overarching reason why transparency in their answer is not possible or practical, they.....

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