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Flashcards in Judicial Review - Illegality Deck (68):

What is illegality?

- The ground of review
- That most closely reflects the courts' preoccupation with the traditional doctrine of ultra vires.


What does the court JR of illegality ensure?

- that exercise of power is confined within limits of executive power,
- which are normally prescribed by the governing legislation


In which case was "illegality" defined, and by who?

- Lord Diplock


How was "illegality " defined by Lord Diplock in the case of GCHQ?

- decision- maker must understand correctly the law
- That regulates his decision-making powers and
- Must give effect to it.


Is illegality a narrow notion?

- No
- Illegality is a broad notion
- Not limited to a bare examination by the court
- Of whether a power exists
- decision-maker may have acted within the power conferred but, in coming to its decision, did not take into account a material consideration. This would render the decision illegal as a result.


What are the 5 sub categories of illegality?


Retention of discretion, which includes fettering of discretion through adoption of a rigid policy, and wrongful delegation of power

Simple illegality

Abuse of discretion, which includes irrelevant/relevant considerations and improper purpose

Misinterpreting the law

Error of fact
(make a diagram of this)


Explain the subsection of Illegality that is

Simple illegality: what does the term Ultra vires often mean?

generic phrase relating to any decision which is tainted by illegality.

hypothetical example would be a police officer arresting a person for parking on a yellow line, when there is simply no power of arrest in such a situation. The arrest would therefore be declared ultra vires


Explain the subsection of Illegality that is

Simple illegality: what happened in the case of AG v Fulham Corporation?

- Clear example of ultra vires principles at work
- LA had power to provide washhouses for residents to wash their clothes .
- Later held >> not to empower it to set up a laundry service in which residents paid employees of the authority to wash their clothes for them.


Will a public body have acted unlawfully if it did something that was reasonably incidental to / consequent upon a power that it did have?

- No
- Westminster Corporation v London & North West Railway


Explain the subsection of Illegality that is

Simple illegality: what happened in the case of Westminster Corporation v London & North West Railway

- power to build public lavatories could also be used to build a subway under a road that was necessary in order to access those lavatories.


When did the principles of "legality" start to emerge?

- The 1990s


What happened in the case of R v Secretary of State for the Home Department, ex parte Leech (No 2)

- Similar to the case of Daly in Article 8

- prison rules permitting the interception of letters to and from a prisoner, inc. correspondence with lawyers.
- Held: this interfered with constitutional right to the "free flow of communications between a solicitor and a client about contemplated legal proceedings".
- Court of Appeal in Leech accepted that, by necessary implication, the Prison Act 1952 authorised some screening of correspondence passing between a prisoner and a solicitor.
- But prison rules, made under the authority of that statute, were too wide in permitting all letters to and from a prisoner to be read.
- Authorised intrusion had to be the minimum necessary to ensure that the correspondence was actually bona fide legal correspondence.


What happened in the case of R v Lord Chancellor, ex parte Witham?

- Challenging the scale of court fees set by Lord Chancellor.
- Witham >> wanted to sue for defamation
- fee was set at £500 and he was unemployed. He asked for waiver of the fee,
- Local court held that it had no power to do so under the statutory instrument.
- JR of decision in setting court fees.
- Argued that his right of access to the court was being denied by the scale of fees and the court's refusal to waive them.
- Held - the Act did not authorise the Lord Chancellor to set fees at such a level that access to the courts, a fundamental right, was denied.
- Instrument was declared to be ultra vires the Act

WITH (am) extortionate court fees


What happened in the case of R (Anufrijeva) v SOSHS?

- Regulations provided that an asylum seeker's entitlement to Income Support would end on the date on that claim for asylum was determined.
- Principle of legality was used, to hold that regulations were to be interpreted as bringing the entitlement to Income Support to an end only once the determination of the asylum claim had been communicated to the asylum seeker


What happened in the case of HM Treasury v Ahmed?

- Principle of legality employed
- Held: power under UN Act 1946, DID NOT authorise making of order, to permit the assets of people
- Who are reasonably suspected of being involved in terrorism to be frozen
- Parliament responded >> enacted the Terrorist Asset-Freezing etc. Act 2010


What happened in the case of R(Public Law Project) v Lord Chancellor?

- Interesting: example of government acting outside the power that it had been given by Parliament and also, in a more general sense, offending the broader constitutional principle of legality
- Held:
Lord Chancellor had acted beyond the scope of s. 9(2)(b) of the Legal Aid, Sentencing and Punishment of Offenders Act (2012) by introducing, through subordinate legislation, a 12 month residence qualification for all seeking to obtain civil legal aid. The Supreme Court (per Lord Neuberger) additionally invested its finding with some degree of constitutional significance:


What are "errors of law"

- When the law is misinterpreted
- Broad concept
- Involves the decision-maker making a mistake regarding a question of law, for example by giving an interpretation to a word that it is not capable of bearing.


Errors of law:

What happened in the case of Anisminic v Foreign Compensation Comission?

- Brit company was nationalised after the Suez conflict
- Such companies entitled to Statutory compensation
- FCC > company in question was not entitled to compensation
- House of Lords held that this was an error >> FCC had misunderstood the rules of the statutory compensation scheme
- Decision had to be quashed >> despite ouster clause


Errors in law - Misinterpreting the Law

What happened in the case of R v Lord President of the Privy Council, ex parte Page

- Confirmed that all errors are law, are potentially reviewable

1. When error of law is not decisive to the decision >>(but for the error of law the decision would have been difference)
2. Decision maker interpreting some special system of rules e.g. with statutes of university (Page) can be extended to a decision made by an inferior court - controversially. (Re Rascal)
3. When power granted is so imprecise >> is capable of being interpreted in a wide range of different way. (Ex Parte South Yorkshire Transport - reference was made to "a substantial part of the UK")


What does "error of law" mean?

- Decision maker
- Has misread its legal powers


What is the general rule of errors of law?

- They are always reviewable


What has happened following the case of R (Client Earth) v Secretary of State for the Environment, Food and Rural Affairs?

- SOS has erred in law on two further aspects of the duties and obligations contained in Art. 23.
- In its findings in Client Earth (No. 2) v SOS for the Environment/Food/Rural Affairs
- the court found: there were errors when fixing projected compliance dates
- and in presenting too optimistic a model for future emissions of nitrogen oxide.


What are the general rules surrounding Errors of Fact?

- Errors of fact are not reviewable
- Unless they fall within one of the 3 categories >>
1. Precedent fact
2. No evidence
3. Mistake or ignorance of an established fact


What is the exception to "Errors of fact" which CAN be reviewed:


- JR allowed where the decision maker
- Made decision based on initial finding of fact
- Which then later turns out to be incorrect
- This applies, when a fact must be established before a power can be used.

Ø R v SOS ex parte KHAWAJA


What is the exception to "Errors of fact" which CAN be reviewed:

PRECEDENT FACT: what happened in the case of White v Collins?

- LA had power
- To compulsorily purchase land
- That was NOT "parkland"
- When it attempted to purchase a park
- It was held, to have made a mistake in its assessment of that land


What is the exception to "Errors of fact" which CAN be reviewed:

PRECEDENT FACT: what happened in the case of R v Secretary of State ex parte Khawaja?

- There was an error as to the claimant's status as illegal immigrant
- Power to detain illegal entrant was worded objectively in the relevant statute.
- These kind of powers are rare


What is the exception to "Errors of fact" which CAN be reviewed:


- This is when a decision-makers finding is not supported by any evidence at all
- It will be reviewable
- Courts have felt able to overturn the decision based on it



What is the exception to "Errors of fact" which CAN be reviewed:


- There was no evidence
- For ministers claims regarding the poor condition of housing


What is the exception to "Errors of fact" which CAN be reviewed:


- There was no evidence
- For the alleged detrimental effect
- Of reintroducing grammar schools in the country


What is the exception to "Errors of fact" which CAN be reviewed:

MISTAKE/ ignorance of an established fact?

- You have to check whether the factual basis of the decision, is actually incorrect.
- 4 requirements have to be me (E v SOS HD)

1. Mistake as to existing fact
2. Fact / evidence must have been established i.e. proven and objectively verifiable
3. Claimant/ his advisor must not be responsible for the mistake - not his fault the decision-maker was confused
4. Mistake must have plated a material part in the decision makers reasoning

Ø R v Criminal Injuries Compensation Board ex parte A


What is the exception to "Errors of fact" which CAN be reviewed:

MISTAKE/ ignorance of an established fact?

What happened in the case of E v SOS HD?

- Brought must needed clarification to this ground of review
- However and seems to have established conclusively than JR can be sought on the basis of a mistaken fact

- E was member of banned organisation (Muslim Brotherhood)
- Claimed that if he was going to be deported - he would be tortured
- Evidence supported this
- So decision to deport him was quashed.

There was a factual assumption that the degree of minor involvement would not make him liable to discrimination - this assumption was undermined by subsequent reports, serious risks of detention and possible torture.


What is the exception to "Errors of fact" which CAN be reviewed:

MISTAKE/ ignorance of an established fact?

What happened in the case of R V Criminal Injuries Compensation Board, Ex Parte A?

- When deciding the compensation available for a rape victim
- CIC Board prioritised a Police womans report
- Which said that the victim was exaggerating her injuries
- And ignored the Dr report
- Decision to award her minimal compensation was quashed.
- Stated that mistake of fact could form the basis for JR claim >> decided the case on alternative basis of a breach of the rules of natural justice >> comments were obiter only.


Considerations taken into account in decision making - what happened in the case of R v Somerset County Council ex parte Fewings?

- Decision to ban stag hunting >> unlawful
- 3 kinds of considerations should be made: Simon Brown LJ

1. Mandatory factors
a. Decision maker MUST consider these

2. Prohibitory factors
a. Decision makers MUST NOT consider these >> clearly unlawful

3. Discretionary factors
a. Decision maker has the discretion to choose whether to consider these

- In this case the council banned stag hunting
- On the grounds that it was immoral
- However "morality" >> prohibitory factor
- So the decision was quashed
- Council had not considered other mandatory factors such as environmental issues


Considerations taken into account in decision making - what happened in the case of Roberts v Hopwood?

- Local authority failed to consider a relevant factor
- When increasing wages for its low-wage workers above the market rate.
- House of Lords held >> despite local authority's desire to better workers' conditions - had no regard to the interests of ratepayers
- These interests were deemed by the court to be a relevant factor, when coming to its decision.


Considerations taken into account in decision making - what happened in the case of R v Gloucester County Council, ex Parte Barry?

- Whether a local authority or decision-maker is entitled to take into account resources as a relevant factor in reaching a decision
- Has been the subject of many cases
- Majority decision >> held that the local authority's consideration of their own resources was a relevant factor.


What happened in the case of R v Criminal Injuries Compensation Board, ex parte P?

- Considered that the court was ill-equipped to deal with decisions concerned with balancing competing claims on the public purse


Will resources will always be considered relevant factor? Which case is this discussed in?

- No, not always considered relevant
- R v East Sussex County Council, ex parte Tandy


Explain the Public Sector Equality Duty?

- Introduced through section 149 Equality Act 2010
- Takes the form of a duty on the part of public authorities, when reaching a decision, to have proper regard to the need to eliminate discrimination, and advance equality of opportunity, between those with and without a relevant ‘protected characteristic’
- obligation therefore imposes a duty on public bodies to take into account these requirements, which could be described as a generic relevant consideration


Explain the principle of "improper purpose?"

- Decision maker should only use a power given to it by parliament
- For the purpose for which it was given that power
- Decision maker acts illegally if he uses powers, for a different purpose
• Ex Parte Fewings
• Padfield v Minister of Agriculture


What happened in the case of Ex Parte Fewings?


- Bingham and Swinton Thomas LJ
- Viewed the issues in terms of improper purpose
- Court determined that the purpose of the power to regulate land use in that case
- Was not to enforce ethical / political concerns
- Of the local councillors about the cruelty of stag hunting


What happened in the case of Padfield v Minister of Agriculture

- Minister refused to refer a complaint to a committee of investigation
- He believed he could be embarrassed by an unfavourable report,
- Despite the fact that he had a power to direct such an investigation.
- House of Lords held that this decision was unlawful because he was exercising his discretion not to refer, for a wrongful or improper purpose.
- Sometimes statute will clearly indicate the purpose for which it is granting power >> but many times will have to imply a purpose (Congreve v Home Office)


What happened in the case of (Congreve v Home Office)?

- Implied purpose of the power to revoke TV licenses
- Was not to raise revenue
- But was more to make sure that they were not being wrongfully used
- Decision to revoke Congreve license because he had bought it prior to the license fee increase >> was quashed

Con a TV >> CON = wrongfully used / obtained


What was the improper purpose in the case of Bromley LBC v GLC?

- There were new fare
- They said that the GLC failed to take into account some considerations that came into the London Transport Act
- Direction - that transport acts should be run economically + efficiently
- This represented a failure to obtain certain mandatory considerations


What happened in the case of Miranda v SOSHD?

- Allegation that the powers used by the police in the Terrorism Act 2000, Sch 7,
- Were not carried out for the purpose laid down in the statute >>
- namely to determine whether the person stopped and questioned was 'concerned in the commission, preparation or instigation of acts of terrorism'.
- Accusation made by the claimant that the dominant purpose of the stop was in fact to obtain access to the material that was believed to be held by him was rejected by the court,
- On what Laws LJ maintained was a proper construction of the Terrorism Act 2000, Sch 7. This view was largely upheld by Lord Dyson MR


What happened in the case of (R (Rights of Women) v Lord Chancellor)

- Applicants’ case >> that regulations had been unlawfully introduced by the Lord Chancellor
- Because they had the effect of frustrating the statutory purpose of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’).
- Had been done by prescribing the acceptable types of supporting evidence of domestic violence far too narrowly
- Thus excluding many women who ought to have been eligible for legal aid under the terms of LASPO


What is the "fettering of discretion?"

- If the decision-maker has been granted discretion
- He must exercise that discretion
- And not refuse to exercise


R V SOSHD ex parte Fire Brigades Union


What happened in the case of R v Secretary of State for the Home Department, ex parte Fire Brigades Union?

- Held the >> Home Sec fettered his discretion
- By refusing to consider whether to bring the statutory criminal injuries compensation scheme into force.
- HoL>> held: statutory power to set a date for the implementation of the 1988 Act
- Imposed a continuing obligation or discretion on the Secretary of State to consider bringing it into force.
- So he could not bind himself not to exercise that discretion by introducing an inconsistent 'tariff' scheme, which is what he had done using prerogative powers


Fettering of discretion: what happened in the case of R (Corner House Research) v Director of the Serious Fraud Office?

- The decision maker can adopt and implement policies
- And is free to do so
- Provided the policy is not too inflexible
- Duty to exercise discretion may be trumped by national security concerns.
- SFO Director - halt investigations into bribery allegations re to arms contracts w/Saudi Arabia = unlawful.
- Held: Director ceased to exercise the power to make independent judgement, given to him by Parliament
- Yielding to a threat (allegedly) made by rep of the Saudi Government to PM's staff re future contractual arrangements.
- Submission to threat >> only lawful when demonstrated there was no alternative course open to the decision-maker (not case here!)
- Held: director was entitled to decide that the public interest in pursuing an important investigation into alleged bribery was outweighed by wider public considerations of national security and diplomatic interests


Policies - fettering of discretion: how do decision makers often adopt polices?

- In relation to the exercise of their discretionary power
- Courts will not let decision maker bind / fetter discretion
- By adopting a rigid / blanket policy
- So that the outcome of particular case is decided in advance / without proper consideration


What happened in the case of R v SOS for environment re the fettering of discretion?

- "Ministers mind must be kept ajar"
- But sometimes firm policies are allowed


Give a case example of when a strict / firm policy is allowed?

- British Oxygen v Board of Trade


What happened in the case of British Oxygen v Board of Trade in relation to allowing a strict policy?

- Strict policies allowed
- As long as there is evidence that individual cases have been decided on their merits
- Here: Ministry policy was that they would not make grants for anything that cost less than £25
- British O2 brought lots of cylinders at £20 each - did not qualify for grant
- Held: policy was within the Boards discretion otherwise would have lots of trivial applications
- Over period of years >> cost reached £4mill
- Held: the ministry could not "shut his ears" and must be "willing to listen"
- Evidence that British Oxygen board application had been considered carefully
- Had not acted unlawfully.


Will the courts automatically accept an assurance by a decision-maker that it has 'not shut its ears to the application'? What is the case example of this?

- R v Warwickshire County Council, ex parte Collymore


What happened in the case of R v Warwickshire County Council ex Parte Collymore?

- Courts wont just accept an assurance by a decision maker
- That it has not shut its ears to the application
- Court concluded that there had been unlawful fettering of discretion
- In situation where a policy on student grants had never actually resulted in a grant
- Despite 1000s of applications being made
- When implementing policies >> decision maker must give due consideration to each individual application.


What happened in the case of R (Luton BC, Nottingham CC, Waltham Forest LBC, Newham LBC, Kent CC and Sandwell MBC) v Secretary of State for Education?

- Cancellation of funding for the project "building schools for the future"
- court >> SOS was entitled to adopt rules
- Each individual project should have been considered on its own merits,
- After careful consultation with each of the claimants.
- Instead, rules had been applied in a rigid way
- The SOS was asked by court to reconsider the position of each of the claimants with an 'open mind'.


How do Human Rights link with Fettering of Discretion?

- If policy interferes with human rights
- Need special care in its operation
- Because it must comply with proportionality principle
- This requires flexibility when looking at certain cases.
- R v SOSHD ex Parte P & Q


Human rights and fettering of discretion:

What happened in the case of R v SOSHD ex Parte P & Q?

- Held: policy of requiring children living with female prisoners to be taken into care at the age of 18 months
- Should not have been applied to Q.
- Because child had formed very strong bond with mother & need to prevent harm to the child
- Was not outweighed by the need for prison discipline.
- Decision to remove child into care was disproportionate and interfered with her rights under the ECHR, art 8


What is unlawful delegation of discretion?

- Where public body is empowered to make a decision by parliamentary act
- General rule is that decision maker is not usually allowed to delegate that discretion to someone else
- This would be contrary to parliaments intention
- As they expressed in their statute


What happened in the case of Bernard v National Dock Labour Board?

- National Dock Labour Board was required by legislation to delegate all appropriate functions to local dock boards.
- So >> no question of the National Dock Board's delegation of its powers to the local dock boards being unlawful
- As it had been authorised to do so by legislation.
- 1 local dock board passed a resolution that effectively gave its powers to suspend dock workers to the port manager instead.
- Held: Constituted an unlawful delegation of the local dock board's powers


What happened in the case of Lavender v Minister of Housing and Local Government?

- Minister of Housing and Local Government refused Lavender's application for planning permission to develop land for use as a quarry,
- After hearing objections from the Minister of Agriculture.
- Decision challenged on the grounds that Minister of Housing & Local Government effectively abdicated his decision to the Minister of Agriculture.
- House of Lords held - minister had wrongly delegated his discretion


Will some statutes expressly allow the decision maker to delegate decision making?

- Yes, it will
- E.g. Local Government Act 1972 section 101
- Lets LA's arrange their functions to be carried out by committees / council officers
- Or by another LA


What is the Carltona Principle?

- This is one of the exceptions to the delegation of discretion.
- When discretion is conferred on a minister, he can delegate that discretion to officials within his department
- Even if statue does not expressly say so
- Official >> his alter ego.
- This person will step into the ministers shoes, act in his name
Though the minister will stay politically accountable for the decision

Can delegate discretion, to ministers within his department

DDTO within department
To his "alter ego"


Which case does the Carltona principle take its name from?

- Carltona v Commissioners of Works
- This principle applies to delegation within central government
- Delegation in local government >> regulated by Section 101 Local Gov Act.


What happened in the case of R v Secretary of State for the Home Department, ex parte Oladehinde?

Carltona Principle

- Court considered whether SOS had power to delegate > Immigration Inspectors, responsibility for issuing notices of intention to deport aliens.
- Oladehinde: "Parliament could not have intended such a significant delegation".
- Decisions may be taken by Home Office officials but not by Immigration Inspectors.
- House of Lords held - Immigration Inspectors are civil servants, they come under the Carltona principle
- Therefore there had been lawful delegation by the minister


In which case was the Carltona principle expanded?

- R (Chief Constable of West Midlands Police) v Birmingham Justices
- Permit office holder e.g. CC to discharge all but most important of his functions
- through suitable subordinates, such as police officers, for whom he is responsible and answerable


When will the Carltona Principle not apply?

- Where statute, expressly/ by necessary implication
- Makes it clear that power must be exercised by the minister in person
- Not clear if any limitations will be implied by common law though!


What happened in the case of DPP v Haw?

- Said Carltona principle should require that the official exercising power is at appropriate level with regard to the nature of the power that is in question.
- The courts also continue to put significant store by the importance of the constitutional rationale underlying the Carltona principle
- Namely the need for sufficient degree of accountability to apply in the relationship between the Secretary of State and the relevant official making the decision.


What happened in the case of R (Bourgass) v SOS for justice?

- Held: decision by prison authorities to submit individual inmates
- To long periods of solitary confinement
- Was unlawful on the basis that there needs to be a sufficient degree of accountability

- Prison rule 45(2) requirement re person not being removed for more than 72h without the authority of the SOS
- Attempt by prison service to claim that it could take action without approval by dept. official >> dismissed by court
- On the basis that there was insufficiently close link between prison authorities and the ministry
- To ensure the necessary degree of responsibility and accountability