Illegality

Question 1

Types of Illegality

Answer 1

Illegality found where authority was found to be Ultra Vires: or going beyond their power.

Padfield v Minister of Agricult (1968) codified a list of possible illegalities which may be brought for judicial review: (did not create the list)

improper purspose:
- ex parte World Development Movement Ltd (1995)

unlawful delegation
- main exception against ministers (presumption they a

fettering of discretion
- British Oxygen

relevant/irrelevant considerations
- Padfield v Secretary of Agriculture, Fisheries [1968]?
- R (Corner House Research) v Director of the Serious fraud Office [2009]

error of law/fact
- Anisminic v FCC [1969]
-

Question 2

Irrelevant Considerations

Answer 2

Padfield v Minister of Agriculture, Fischeries and Food [1968]
- must exercise full discretion (take all relevant considerations and exclude irrelevant ones)

• HL ruled minister had taken into consideration irrelevant considerations and acted for improper purpose.
• R (Corner House Research) v Director of the Serious Fraud Office [2009]
• HL said Q is whether public policy outweighs irrelevant consideration. - said it is for the Director to strike balance (becase it is public policy)

Question 3

Fettered Discretion

Answer 3

British Oxygen
- Unfettered discretion authority: - where decision maker adopts a policy as to the exercise of a discretion but applies it in an over-rigid manner.

Question 4

Error of Law/Fact

Answer 4

ERROR OF FACT:
R(A) v Croydon Borough Council [2009]
Lady Hale:
- question of whether a person is a child is ‘jurisdictional fact’
- question whether child in need is to be determined by local authority as it needs a number of different value judgments.

Error of law:
Anisminic v Foreign Compensation Commission [1969]
- held they made an error of law (beyond their jurisdiction) - this also allowed to circumvent an ouster clause bc if the law was an error then it was only a purported decision.

Ex parte Venables:
where authority misunderstands their duty (ie duty provided by law (statute or prerogative), misdirection by itself renders decision unlawful.

Question 5

narrow ultra vires vs wide ultra vires

Answer 5

Wide ultra vires:
- where Courts will ‘read in’ where it was not state in statute but added as an effect of statutory interpretation World Development Movement

Question 6

Unlawful Delegation

Answer 6

Carltona Ltd v Commissioners of Works [1943] (find another less contentious one)
Authority for unauthorised delegation of Government

Carlota principle:
powers and duties conferred on Minister may properly be exercised by officials for whom the minister is responsible to Parliament or by a junior minister.

Question 7

Improper Purpose

Answer 7

Westminster Corporation v London and North Western Railway Co
- TEST: In order to make a case of bad faith (improper purpose) courts must establish what the dominant purpose of the decision was - if improper then unlawful
- In order to make out improper purpose it must be shown that the goal of the discretionary power conferred (in the case it was creating public conveniences [not public subways]) was not really the force behind the action.

• It is difficult in practice to categorise a case as either irrelevant consideration or improper purpose - but doing so matters at stage of considering remedial effect of unlawful decision and whether it should be quashed

Porter v Magill:
- council’s powers must be used for purpose for which they were conferred.