Public Law L5 - JR - Illegality Flashcards
(24 cards)
What is the fundamental principle of Administrative law? (2)
Ultra vires - a public body is not entitled to act beyond or ultra vires its powers.
What is illegality? (2)
It is the ground of review, which reflects the traditional doctrine of ultra vires. It is designed to ensure that the exercise of power is confined within the limits given to the Executive, which are normally prescribed by the governing legislation.
What sub-categories can illegality be split into? (5)
- Simple illegality / ultra vires
- Errors of law
- Errors of fact
- Abuse of discretion
- Retention of discretion
What is simple illegality / ultra vires? (2)
Where the decision-maker acts ‘outside all four corners of the Act, and is used as a generic phrase relating to any decision which is tainted by illegality.
Key cases for simple illegality / ultra vires? (3)
Attorney General v Fulham Corporation 1921 and Westminster Corporation v London & North West Railway 1905 and R v Lord Chancellor, ex parte Witham 199.
What is errors of law and example? (2)
Where the decision-maker makes a mistake concerning a question of law.e.g. it misinterprets the meaning of a statutory power.
Key case for Errors of law? 91)
Anisminic Ltd v Foreign Compensation Commission 1969.
What did the House of Lords decide in R v Lord President of the Privy Council, ex parte Page 1993? (4)
All errors of law are potentially reviewable but there are three main exceptions:
- Where the error of law is not decisive to the decision. Decisive means but for the error concerned the decision would have been different.
- Where the decision-maker is interpreting some special system of rules, courts are often unwilling to intervene, for example, with statutes of an old university.
- Where the power granted is so imprecise that is capable of being interpreted in a wide range of different ways, the courts will not necessarily quash a decision just because they would have come to a different view from that of the decision-maker on what the law requires
What are errors of fact? (3)
- Precedent facts: initial findings of fact which determine the decision-maker’s power.
- No evidence for a fact: ‘no evidence rule’ - the finding of fact is not supported by evidence. C
- Ignorance or mistake of an established fact: an established fact, which is material to the decision, is ignored or misunderstood. This is applied if a factual finding does not relate to jurisdiction or cannot be seen in terms of the ‘no evidence rule’ to challenge a decision, reached after an evaluation, in which there has been an incorrect interpretation of fact.
What is discretion? (1)
It is effectively the freedom of choice that decision-makers have within the powers given to them by statute.
What is abuse of discretion? (3)
Where the decision-maker:
- Fails to take into account a relevant consideration.
- Takes an irrelevant consideration into account.
- Uses the statutory power for an improper purpose.
What can the first and second category of considerations in relation to abuse of discretion be called and what is the penalty? (2)
Mandatory factors - not complied with will be unlawful.
What is the third category of considerations also called and what is the penalty? (2)
Discretionary factors - as long as these considerations are not irrational, it will not be unlawful for the decision-maker to address these factors, as long as he or she has taken other relevant or appropriate considerations into account aswell.
What is the key case for relevancy of considerations?(1)
R v Somerset County Council, ex parte Fewings 1995.
What is improper use? (2)
A decision-maker ought to only use a power given to it by Parliament for the purpose for which it was given, if it doesn’t it has acted illegally. There is a significant overlap with taking into account relevant / irrelevant considerations.
What is the key case for the overlap between improper use and relevant / irrelevant considerations? (1)
Padfield v Minister of Agriculture, Fisheries and Food 1968.
What is retention of discretion? (3)
Where the decision-maker:
- Fetters their discretionary power by failure to exercise the power at all.
- Fetters the power by applying a policy rigidly or in a blanket fashion.
- Unlawfully delegated the power.
When is a public body seen to have ‘fettered’ discretion? (4)
When it acts in a way that hampers its own ability to properly exercise a discretionary power, for example, a public body decides to not consider exercise a power at all. Or when public decision-makers adopt polices in relation to the exercise of their discretionary power. The courts will not allow a decision-maker to ‘bind’ or ‘fetter’ its discretion by adopting a rigid or blanket policy, so that the outcome of a particular case is decided in advance, or without proper exercise of discretion in response to individual factors.
What is the key case for fettering of discretion? (1)
R v Secretary of State for the Home Department, ex parte Fire Brigade Union 1995.
Key case for fettering of discretion and power by applying policy rigidly? (1)
R v Secretary for the Environment, ex parte Brent 1983.
What did the case of British Oxygen v Board of Trade 1971 provide? (1)
The courts have allowed policies to stand provided there is evidence that exceptional individual cases could or have been decided on their merits.
What did the case of , R v Warwickshire County Council, ex parte Collymore 1995 and R v North-West Lancashire Health Authority, ex parte A, D and G 2000 provide? (1)
The courts will not, however, automatically accept an assurance by a decision-maker that it has ‘not shut its ears to the application.
What is the general rule when a public body is empowered to make a decision by an Act of Parliament? (2)
The general rule is that a decision-maker is not normally allowed to delegate that discretion to someone else, Lavender v Minister of Housing and Local Government 1970.
What will some statutes allow and an example? (2)
The decision-maker to delegate decision-making powers to someone else - s.101 Local Government Act 1972 authorises local authorities to arrange for their functions to be carried out by committees or by council officer or another local authority.
