Illegality and Irrationality

Question 1

The key principle of illegality- description + case law

Answer 1

The decision maker must understand the law that regulates his decision- Padfield 1968

Question 2

What makes a decision, in breach of the Padfield 1968?

Answer 2

-ultra vires
-improper purpose
-irrelevant considerations
-fettering discretion
-improper delegation

Question 3

Simple ‘ultra vires’

Answer 3

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

Question 4

Using powers for improper purpose/motive

Answer 4

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

Question 5

Taking irrelevant factors into consideration

Answer 5

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

Question 6

Fettering discretion-restricting

Answer 6

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

Question 7

The non-delegation principle- if an Act of Parliament gives a person a power, only they can use that power

Answer 7

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

Question 8

What is the Carltona Principle? -exception to the non-delegation rule

Answer 8

DPP v Haw 2007- Carltona Doctrine/principle- can delegate certain decisions, as long as he remains overly responsible for their actions

Question 9

What is the Wednesbury Principle?- irrationality

Answer 9

Wednesbury 1948- unreasonableness test
So unreasonable, that no reasonable person would come to it.

Question 10

Define ‘irrationality’ as a ground of JR

Answer 10

‘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

Question 11

Examples of successful irrationality cases

Answer 11

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

Question 12

Unreasonabless as an umbrella term

Answer 12

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

Question 13

Red vs Green Light- Sub v Super Wednesbury

Answer 13

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

Question 14

Bifurcation and the future of unreasonabless/irrationality as a ground of review

Answer 14

irrationality is not used in Human Rights Cases- replaced by proportionality
Keyu- is it time to get rid of Wednesbury?