Judicial Review: Illegality, Ultra Vires Principle Flashcards
(8 cards)
Grounds for Judicial Review & Authority
Lord Diplock’s List in GCHQ case:
Illegality:
‘By “illegality” … I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it…’
Irrationality:
‘By “irrationality” I mean what can now be succinctly referred to as ‘Wednesbury unreasonableness”. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’
Procedural Impropriety:
‘…depends on the subject matter of the decision, the executive functions of the decision-maker … and the particular circumstances in which the decision came to be made.’
***(GCHQ) Council of Civil Service Unions v Minister for the Civil Service[1985] AC 374
PRINCIPLE:
Court will not intervene to review decision of a minister where requirements of national security outweigh other matters.
FACTS:
Since 1947 staff employed at GCHQ had been permitted to be members of trade unions
Dec 1983 the Minister, with no prior consultation, peremptorily altered the conditions of service, forbidding membership of a union.
Applicants sought JR on ground of unfairness due to failure to consult.
HELD HL: dismissed the appeal
1) executive action based on CL or use of prerogative power was not immune from review.
2) BUT requirements of national security outweighed those of fairness (which was a matter for the executive to weigh and decide)
Traditional Theory of Judicial Review
the courts will review government decisions, and quash decisions that are outside the government’s jurisdiction (i.e., ‘ultra vires’);
but the courts will not review the merits of the case, and will not quash decisions that are within the government’s jurisdiction (i.e., ‘intra vires’).
- jurisdiction = scope of power
***Anisminic Ltd v Foreign Compensation Commission [1969]
Principle:
LORD DIPLOCK’S PRESUMPTION
Facts:
- When deciding who would recieve funds from land sold to Egypt, Foreign Compensation Act 1950 contained eligibility criteria: property owner or successor in title must be British
- Anisminic was decided to be ineligible.
- Anisminic sought JR - claiming FCC misinterpreted eligibility criteria in FCC Act.
HOWEVER in the 1950 Act s 4(4) :
‘The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.’ - This is known as an ‘ouster’ clause (or a ‘privative’ or ‘preclusive’ clause).
Held:
HL: in favour of Anisminic:
FCC made a jurisdictional error - the Commissions ‘determination; was in fact no determination but only a ‘purported determination’;
- Ouster clause did not prevent court from correcting jurisdictional errors (COURTS COULD INTERVENE BC LORD DIPLOCKS PRESUMPTION)
Lord Diplocks Presumption:
‘[Anisminic] proceeds on the presumption that … Parliament intends to confine [an administrative agency’s] power to answering the question as it has been so defined: and if there has been any doubt as to what that question is, that is a matter for courts of law to resolve in fulfilment of their constitutional role as interpreters of the written law and expounders of the common law and rules of equity.’
Basically all questions of law should be for the Court to determine (fall w/in the court’s jurisdiction)
Lord Morris’s dissent:
‘[The Commissioners] were at the very heart of their duty, their task and their jurisdiction. It cannot be that their necessary duty of deciding as to the meaning [of the eligibility criteria] would be or could be followed by the result that if they took one view they would be within jurisdiction and if they took another view they would be without’ (at 189).
COMMENT: I think that this does not mean that one view is good and the other is not- Diplock is just saying that their decision is not a FINAL determination - that it is subject to review and in that sense is purported, AND in any case all matters of law are w/in the jurisdiction of the courts to comment on if a claim arises.
Error of Facts
Mere error of fact (unlike mere error of law) is not a ground of review.
BUT - Exceptions are:
- E v Home Secretary
error of fact giving rise to unfairness AND uncontentious and objectively verifiable. - R (A) v Croydon LBC [2009]
some ‘jurisdictional facts’ can be corrected by the courts even if not objectively verifiable (e.g., R (A) v Croydon LBC [2009] UKSC 8).
E v Home Secretary [2004]
- The court will quash IF;
- there is an error of fact that gives rise to unfairness AND
- is ‘uncontentious and objectively verifiable.
R (A) v Croydon London Borough Council [2009] UKSC 8
principle - helps determine difference of jurisdictional fact vs facts that need to be determined by local authority
Lady Hale:
The question whether a person is a child is a ‘jurisdictional fact’ for the court to determine.
The question whether a child is in need is to be determined by the local authority as it ‘requires a number of different value judgments’.
R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport [1993] 1 WLR 23:
principle:
The Courts are capable of determining scope of legislation even if the determination itself is vague (as was in the case necessarily intended to leave commission with discretion).
is an example of the Courts coming to their own definitions in order to justify scope or discretion.
Issue: determination of the scope of the term “a substantial part” in S64(3) Fair Trading Act 1963
Lord Mustill:
-The meaning of this criterion (‘a substantial part’) is for the court, even if ‘opinions might legitimately differ’.
-The correct meaning is that the criterion is vague.
-The vague criterion leaves (was intended to leave) the Commission with discretion.
