Illegality and Irrationality Flashcards
The key principle of illegality- description + case law
The decision maker must understand the law that regulates his decision- Padfield 1968
What makes a decision, in breach of the Padfield 1968?
-ultra vires
-improper purpose
-irrelevant considerations
-fettering discretion
-improper delegation
Simple ‘ultra vires’
Fulham Corporation v Attorney General 1921-washhouse/ laundry- use of public funding
R (Public Law Project) v Lord Chancellor 2016- changing who is allowed to receive legal aid in unlawful
Using powers for improper purpose/motive
Wheeler v Leicester City Council 1985- punishing a club for failure to discipline a player
Porter v Magill 2001- sell council homes to attract Conservative voters
Taking irrelevant factors into consideration
Padfield 1968- minister’s political reputation
Venables and Thompson 1998- the judge conducted a petition for the judgment, since this was a widely publicized case
R (Kebede) v Newcastle City Council 2013- failed to take a statute into consideration
Fettering discretion-restricting
British Oxygen 1971- government funding, rejected due to a policy restricting the discretionary power
R (Adath Yisroel Burial Society) 2018- investigation of suspicious death, however some religions require burial within 24 hrs
The non-delegation principle- if an Act of Parliament gives a person a power, only they can use that power
National Dock Labour Board 1953- discretionary powers were delegated to the Local Port Manager- ILLEGAL
R (Bourgass) v SS Justice 2015- solitary confinement in prisons- decision delegated to the prison governor, although must be approved by secretary of state- ILLEGAL
What is the Carltona Principle? -exception to the non-delegation rule
DPP v Haw 2007- Carltona Doctrine/principle- can delegate certain decisions, as long as he remains overly responsible for their actions
What is the Wednesbury Principle?- irrationality
Wednesbury 1948- unreasonableness test
So unreasonable, that no reasonable person would come to it.
Define ‘irrationality’ as a ground of JR
‘Stand alone’ ground of review- ‘high bar’ for the claimant- doesn’t succeed very often
Lord Diplock in GCHQ- no sensible person who applied his mind to the question would arrive at such decision
Examples of successful irrationality cases
R (Rogers) v NHS 2006- irrational to not define ‘exceptional circumstances’
R (Javes) 2001- irrational to list Pakistan as ‘safe’, having info from SSHD
Ex parte Hook 1976- denying a trader their license because he urinated in public
Unreasonabless as an umbrella term
Lord Mance in Kennedy v Charity Commissioner 2014- it is inappropriate to treat all cases of JR under a general but vague principle of reasonableness
Red vs Green Light- Sub v Super Wednesbury
Sub Wednesbury- red light- courts get involved
Bugdaycay 1987- deportation case
Ex parte Smith 1995- homosexuals in army- HRA didn’t exist yet
Super Wednesbury- green light- courts take a passive approach
Nottinghamshire City Council v Secretary of State for the Environment 1986- challenge for budgets- politically sensitive matters
Bifurcation and the future of unreasonabless/irrationality as a ground of review
irrationality is not used in Human Rights Cases- replaced by proportionality
Keyu- is it time to get rid of Wednesbury?