2 Flashcards
(19 cards)
the grounds of JR
illegality
irrationality
procedural impropriety
(Lord Diplock GCHQ)
ultra vires
the decision is ultra vires when a public body exercises a power it does not have
illegality
“the decision maker must understand correctly the law that regulates his decision making power and must give effect to it
GCHQ - diplock
error of law - traditional view
if a public body power to act but made an error of law “within jurisdiction”, its decision would normally stand
errors of law new view
Anisminic appeared to treat all errors of law as jurisdictional
later cases confirmed this interpretation
“any error of law made by an administrative body in reaching its decision can be quashed” (Page case)
what falls under illegality
error in interpreting the law
failing to act in accordance with statutory purpose or acting for improper purpose
failing to take account of relevant considerations or acting for irrelevant considerations
fettering of discretion
questions of law
generally for the courts to determine
rationale: expertise, independence, consistency
interpretation “involves an objective assessment of the meaning which a reasonable legislature
interpretation involves an objective assessment
south yorkshire transport
monopolies and mergers commission had power to investigate mergers affecting “a substantial part of the united kingdom”
sought JR on the basis south yorkshire was not substantial
argued commission lacked jurisdiction
error of fact
court reluctant to review decisions based on mistake of fact
JR is about legality of decision and courts should not substitute judgment on matters which the primary decision maker has expertise
jurisdictional fact
a condition that must be met for the statutory power to be exercised
Improper purposes
Padfield principle- “parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act”
Acting for improper purposes - Porter
decision to sell of council flats in marginal wards - owners will vote tory
auditor certified that expenditure was unlawful
“but a public power is not exercised lawfully if it is exercised not for a public purpose for which the power was conferred but in order to promote the electoral advantage of a political party”
Interpreting statutory purpose
judicial construction of statutory purpose can be contentious
statute gave council the power to pay wages “as it may think fit”
council decides to pay workers a minimum wage
HL held that the wages were excessive
Absence of explicit purpose
unless the acts true purpose is correctly understood the decision maker, who is parliaments delegate, is at risk of using powers to an end for which they were never given to him (Fewings)
categories of consideration
- those considerations identified in the statute as considerations to which regard must be had
- those considerations identified in the statute as considerations to which regard must not be had
- those considerations to which the decision maker may have regard
(Fewings)
mandatory considerations
considerations that must be taken into account because required by legislation or by policy
statutory duty to “have regard or “have due regard” to something
policy as relevant consideration
government advice or policy even if non binding may be regarded as relevant consideration
public sector equality duty
Section 149 equality act 2010 requires public authorities
to exercise their functions “having due regard” to the need to multiple things to increase equality
fettering discretion
decision makers need to strike balance between consistency and legal certainty and responsiveness to individual circumstances
