JR - Illegality and Unreasonableness Flashcards
(28 cards)
What does the ground of illegality represent?
The traditional doctrine of ultra vires - a public body cannot act outside its powers
Name the five sub-categories of illegality
Simple illegality - ultra vires
Errors of law
Errors of fact
Abuse of discretion
Retention of discretion
When will a court not consider an act ultra vires?
If it did something that was reasonably incidental to / consequent upon a power that it did have
What is the legality principle?
The approach that Parliament did not intend to authorise the infringement of fundamental or constitutional rights, unless given very specific statutory authorisation.
Illegality: What is an error of law?
Decision maker has made a mistake regarding a question of law e.g. misinterpreted a legislative provision
What are the three main qualifications to the principle that all errors of law are potentially reviewable?
1) if the error of law is not decisive e.g. but for the error concerned, the decision would have been different
2) if the decision maker is interpreting some special system of rules
3) where the power granted is so imprecise that it is capable of being interpreted in a wide range of different ways
When may courts not be willing to review errors of law above and below the Administrative Court in the hierarchy of the court system?
Above - no JR for the High Court on an error of law
Below - if Parliament has expressly provided that the decision of a judge at first instance was to be final
What are the three types of error of fact which are susceptible to JR?
Precedent facts
No evidence for a fact
Ignorance or mistake of an established fact
Illegality - errors of fact - what is an example of a precedent fact error?
A decision based on the fact that someone is an illegal entrant - if it is found that they are not in fact an illegal entrant
When will it be said that there is no evidence for a fact?
If the finding of a fact, on which a decision is based, is supported by no evidence at all, courts will feel as if they are able to overturn it
When will ignorance or mistake of an established fact be found?
A lack of basis of evidence - not necessary no evidence at all, but no basis for an opinion.
When will ignorance or mistake of a fact be reviewable? What is the test for this?
Only if it has given rise to unfairness
- Mistake as to an existing fact
- Fact or evidence must have been established
- Appellant or advisors must not have been responsible for the mistake
- Mistake must have played a material part in the tribunals reasoning
What constitutes an abuse of discretion?
1) Failing to take a relevant consideration into account OR taking an irrelevant consideration into account
2) Using the power for an improper purpose
What are the three kinds of considerations which may present themselves to a decision maker?
Mandatory considerations - considerations confirmed by statute
Prohibitory factors - things you cannot consider under statute
Discretionary factors - things the decision maker is able to exercise discretion regarding
When will a decision be considered to be made for an improper purpose?
If made not in accordance with the intentions of the statute which conferred it - statutes may not be explicit but they can confer a purpose
When does a decision maker fail to retain discretion?
Fettering discretion
Unlawful delegation of discretion
When is a public body seen to have fettered its discretion?
When a public body decides not to consider exercising a power at all
Adopting a rigid / blanket policy so that the outcome of any case is decided in advance
Mind must be kept ajar to any prospect or possibility
a firm policy is ok - as long as there is always a prospect that a specific case might be decided differently
When is a decision delegated unlawfully?
Courts will presume that delegation is permitted, unless statute expressly says that it is not
Minister remains politically accountable, however
When will a decision be found unreasonable?
If a decision is so unreasonable that no reasonable authority could ever have come to it, then courts can interfere
What are the three main categories of unreasonableness?
Material defects in the decision making process
Oppressive decisions
Decisions that violate constitutional principles
What two categories are there within the first category of unreasonableness?
Material defects in the decision making process can be divided up into the following:
- Wrongly weighing up relevant factors
- Failure to provide a comprehensive chain of reasoning [often described as irrationality]
What constitutes an unreasonably oppressive decision?
An infringement of rights which is deemed unnecessary
Example: imposition of a penalty for legal behaviour
When might a decision be unreasonable on the grounds that it violates a constitutional principle?
If decisions are not consistent or sufficiently certain
What issue also arises if a decision is being challenged on grounds of unreasonableness?
The intensity of the review
