JR 2 - Illegality and unreasonableness Flashcards
(42 cards)
What are the four grounds of judicial review?
- Illegality
- Unreasonableness
- Procedural impropriety
- Legitimate expectations
What does illegality, as a ground of review, ensure?
That exercise of power is confined within the limits given to the Executive prescribed by governing legislation
Ultra vires; not entitled to act beyond powers!
What are the 5 sub-categories of illegality?
- Simple illegality (ultra vires)
- Errors of law
- Errors of fact
- Abuse of discretion
- Retention of discretion
What is simple illegality? (doctrine of ultrav vires)
1st sub-category
Refers to a decision that goes beyond the legal boundaries of a legal power given to a body
E.g. police officer arrests someone in a situation in which there is no power to arrest
Will a public body have acted unlawfully if it does something reasonably incidental to a power that it has?
E.g. power to build public lavatories - can a public body build a subway under a road that was necessary to access those lavatories?
No - would not have acted unlawfully
What does the principle of legality refer to?
A presumption that PARL did not intend to authorise the infringment of fundamental/constitutional rights of the rule of law unless it had given specific statutory authorisation
I.e. broader concept than just simple ultra vires
ex parte Witham - applicant sought J of Lord Chancellor’s decision in setting such a high court fee - held that act did not authorise them to set fees so high to effectively deny access to courts (a fundamental right) - the instrument therefore declared to be ultra vire
What does ‘errors of law’ refer to?
2nd sub-category
Decision-maker makes mistake regarding a Q of law e.g. misinterpreting the meaning of words in legislative provision
E.g. misunderstanding the rules of a scheme meanrt a decision made based on them should be quashed
What are the 3 exceptions to errors of law?
I.e. when will the court not review errors of law?
- Error of law is not decisive (same decision would have been reached anyway)
- Decision-maker is interpreting a special system of rules (e.g. statutes of an old university, where PARL deems a decision to be final, superior court decision)
- Where power granted was so imprecise that it is capable of being interperted in many different ways (e.g. interpreting what the word ‘substantial’ could mean)
What are the 3 types of ‘errors of fact’ which are susceptible to JR?
3rd sub-category
- Precedent facts
- No evidence for a fact
- Ignorance or mistake of an established fact
Courts were traditionally resistant to make challenges based on allegation that decision-maker made mistake of fact - was perceived as being too much an interference in proper territory of executive
What is a precedent fact?
Type of error of fact susceptible to JR
Where decision-maker’s power to decide on a particular matter (their jurisdiction) depended on an initial finding of fact; the precedent fact
White and Collins - statutory power allowed compulsory purchase of land if the land was not ‘parkland’ - landowner objected to compulsory purchase on grounds local authority had mistakenly failed to realise that land was part of park - CoA could review decision because determination of factual issue went to whether decision-maker had necessary power in the first place
What is no evidence for a fact?
Type of error of fact susceptible to JR
Where a finding of fact on which a decision is based is supported by no evidence at all
E.g. Coleen Properties - Minister’s report, containing decision that it was not reasoably necessary for satisfactory development or use of cleared area to acquire property, was based on no supporting evidence
What is ignorance or mistake of an established fact?
Type of error of fact susceptible to JR
I.e. where decision-maker’s power did not depend on initial finding of fact and cannot rely on no evidence rule
Where an established fact (inc availability of evidence), which is material to the decision, is ignored or misunderstood
E.g. Tameside - Education Sec halted re-introduction of grammar schools believing that re-introduction would lead to educational chaos/disruption - HOL concluded that he had wrongly jumped to conclusions and either misunderstood/was not informed as to nature and effect of professional educational advice available **)
What is the 4 part test for ignorance or mistake of established fact?
- Mistake as to existing fact (inc availability of evidence)
- Fact/evidence must have been established (uncontroversial and verifiable)
- Appellant must not have been responsible for the mistake
- The mistake must have played a material (not decisive) role in reasoning
What are the two ways in which a decision-maker can abuse their discretion?
4th sub-category
Discretion = freedom of choice they have within powers given to them by statute
- Failing to take a relevant consideration into account/taking irrelevant consideration into account
- Using the power for an improper purpose
Lots of overlap between the 2
What are the 3 types of considerations to be (not) taken into account?
- Mandatory factors - must take into account (by virtue of statute expressly or impliedly)
- Prohibitory factors - must not take into account
- Discretionary factors - decision-maker can chooose to taken into account (subject to reasonableness)
e.g. Venables and Thompson - sentenced child killers to sentences longer than recommendations of judges
* Failed to take into account welfare of sentenced children
* Wrongly took into account emotive public petitions (public clamour) about the individual case
What is improper purpose?
Decision-maker using powers given to it by PARL for purposes other than for the purposes it was given to them; in accordance with the intentions of the statute that conferred the power
E.g. Padfield - Minister had power to direct investigation but did not because he believed he could be embarassed by an unfavourable report
What happens when the statute does not clearly indicate a purpose for which it grants power?
The courts can imply a power by construing the statute as a whole
E.g. Congreve - implied purpose of power to revoke TV licences was not to raise revenue but to ensure such licences were not wrongfully used or obtained (so Congreve should not have had licence revoked merely because he bought it before fees increased)
What are the two ways in which decision-makers will fetter or restrict themselves if given discretionary powers? (Retention of discretion)
5th sub-category
- Fettering of discretion
- Unlawful delegation of discretion
When will a public body have ‘fettered’ its discretion?
Fetter = restrict
When it has acted in a way that hampered its own ability to properly exercise a discretionary power e.g. not exercise power at all
E.g. ex parte Fire Brigades Union - Home Sec fettered own discretion by refusing to consider whether to bring into force statutory criminal injuries compensation enacted in CJA - the statutory power to set date for implementation of tha Act imposed a continuing obligation/discretion ob Sec to bring it into force
When will a policy be deemed to fetter discretion?
When adopting a rigid/blanket policy to the effect that outcome of a particular case is decided in advance without proper discretion in response to individual factors
I.e. mind must be kept open
When will a (rigid) policy be allowed to stand?
When there is evidence that exceptional individual cases could or have been decided on their merits - but cannot merely say it has ‘shut its ears to the application’
E.g. ex parte Collymore - policy on student grants was worded flexibly but had never resulted in an appeal despite 300 appeals against refusal was held to have been unlawful fettering
What is the general rule on delegating discretion?
Not normally allowed to delegate unless statutes expressly allow - otherwise will be unlawful delegation of discretion
Lavender - refusal of application for planning permission was challenged after Minister of Housing had abdicated decision to Minister of Agriculture
What is the Carltona principle and how is this reconciled with the unlawful delegation of discretion?
- Carltona principle = the recognition it would not be practical for a GOV minister to personally make all the decisions they are empowered to make, so they are allowed to delegate discretion to civil servants even if statute does not expressly say so
- The minister remains politically accountable to PARL for that decision - so must be a person of suitable seniority
What is the Wednesbury test?
Unreasonableness hereon
Court can undertake a review (re reasonableness of a decision) where a decision on a competent matter is so unreasonable that no reasonable authority could have come to it (requires something overwhelming)
I.e. Not for court to interfere just bc it holds a diff view on policy
E.g. Short - a red-haired teacher being dismissed just because she had short hair
