2) Illegality Flashcards

Question

R v SoS for Home Department, ex parte Khawaja

Answer 1

The court found that it could review the factual question of whether the claimant was an **illegal entrant**. This had to be shown by the SoS to give rise to the power to detain.

Answer 2

Coleen Properties v MoH and Local Government

Answer 3

Finding of fact in which a decision is based is not supported by any evidence, then can overturn the decision | Errors of fact

Answer 4

The case concerned a decision to make a CPO on a property. LA wanted to re develop the adjacent area- **but "not reasonably necessary**" for the satisfactory development or use of the cleared area to acquire the property.

Answer 5

Minister had confirmed the decision without any evidence to challenge the finding made in the inspectors report. CPO set aside. ## Footnote Illegality - mistake of fact - no evidence

Answer 6

SoS for Education v Tameside MBC

Answer 7

Education Sec halted reintroduction fo grammar schools, believed this would lead to education in chaos and disruption. No evidence or fact / jumped to conclusions

Answer 8

Four of the law lords accepted obiter that **a mistake of fact could be a ground for review**

Answer 9

Inaccurate findings from medical exam, determining whether injuries were from rape. Whilst this case was determined on the basis of breach of natural justice rules - found that could have been decided on mistake

Answer 10

Established conclusively that judicial review can be sought on the basis of mistaken fact. **Mistake of fact, giving rise to unfairness.** **Must give rise to unfairness.**

Answer 11

It must have caused **unfairness**.

Answer 12

1) Mistake of **existing fact** 2) Fact or evidence must have been **established** 3) Appellant **must not have been responsible** 4) Mistake must have played a **material (not decisive) part in decision makers reasoning**.

Answer 13

Must have been uncontentious and objectively verifiable.

Answer 14

Decision makers can act unlawfully if they fail to take into account relevant considerations, or take into account irrelevant considerations

Answer 15

* Ex Parte Fewings * Ex Parte Venables and Thompson

Answer 16

1) Mandatory factors 2) Prohibitory factors 3) Discretionary factors

Answer 17

Those expressly or impliedly identified by the statute to which regard **must** be had.

Answer 18

Those identified by the statute to which regard **must not** be had.

Answer 19

Those which a decision maker **may** have regard to in their judgment and discretion is right to do so.

Answer 20

Yes. Extending **ultra vires**, the **decision makers are not complying** with the statutory decision makers given to them.

Answer 21

Yes, so long as not acting unlawfully.

Answer 22

This is the role of the court Full and Proper construction of statutory regime and interpretative guidance

Answer 23

Home Secretary set minimum tarrif sentences at 15 years each, 5 years longer than Lord Chief Justice recommendations ON review HS tariffs quashed for acting in **quasi-judicial** capacity and taking into account **emotive/public clamour** Failed to take into account the welfare of the setnenced children

Answer 24

Local authority failed to consider a relevant factor when increasing wages for low wage workers to above the market rate. **No regard to interests of ratepayers**

Answer 25

LA's paucity of resources = relevant factor in assessing needs of disabled persons, Chronically Sick and Disabled Persons Act 1970 May not always be the case - depends on the construction of the statute

Answer 26

Councils decision to reduce home tuition for a child unable to attend school for health reasons **because of fianacial constraints** was quashed by the law lords. Under the Education Act 1993, the local authority must determine suitable provision with regard only to the educational needs of the child.

Answer 27

There is an overlap with unreasonableness, may quash on these grounds as they relate to the weighing of or competing of relevant factors

Answer 28

Decision maker ought to only use a power given to it by Parliament for the purpose that it was given that power. eg **Ex Parte Fewings** - regulating land use was not to enforce ethical / political concerns for local councillors.

Answer 29

Minister refused to refer a complaint to committee of investigation, as he believed he would be embarrassed by unfavourable report - despite having the power. Discretion was for a wrongful or improper purpose

Answer 30

No the courts have the power to **imply a purpose**

Answer 31

The **Implied purpose** of the power to revoke TV licenses was not to raise revenue, but to ensure licenses were not wrongfully used / obtained. Congreve's licenses should not have been revoked because he had bought it before the licence fee increase.

Answer 32

Powers used for police in Terrorism Act 2000 s7 were **not carried out for the purpose of statute**, to determine whether the person stopped and questioned was involved in acts of terrorism. Believed powers instead was being **misused to access the material** believed to be held. ## Footnote Illegality - Improper purpose

Answer 33

Public body acts in a way that **hampers its own ability to properly exercise a discretionary power**. Most basic way is where it effectively decides not to exercise this power at all.

Answer 34

Parliament created a statutory criminal injuries compensation scheme. The relevant provisions only came into force on such a day as the SoS may appoint. Home Secretary later stated that the statutory scheme would not be brought into force, and a new scheme would be used instead. **HS could not bind himself not to exercise the discretion by introducing an inconsistent scheme, using prerogative powers**

Answer 35

Courts will not allow a decision maker to "bind" or "fetter" it's discretion by **adopting a rigid or "blanket" policy** so that the outcome is decided in advance, or without proper exercise of discretion

Answer 36

" The Minister is entitled to have in mind his policy. To the extent the reference to keeping an open mind does not mean an empty mind. **His mind must be kept ajar**" | Fettering of discretion

Answer 37

BoT had a policy of not awarding grants on items bought that individiually cost less than £25. Item bought = £20 Policy was in BoT's discretion, not to be overwhelmed by trivial applications. Evidence that BoT had considered the application carefully **Not unlawful**

Answer 38

Policy on student grants although flexibly worded, had never resulted in an award, despite 300 appeals. Unlawful fettering of discretion as LA had applied policy inflexibly.

Answer 39

Refused gender reassignment on the basis of an overly rigid application of policy. **Did not consider applicants individual circumstances** | Fettering of discretion

Answer 40

SoS cancelled funding for the project, "Building Schools for the Future" While minister was entitled to adopt rules each individual project should have been considered on its own merits, **Instead was applied rigidly.** **Court asked that the matters were considered with an open mind**

Answer 41

Where a public body is empowered to make a decision by an Act of Parliament the general rule is that it is **not normally allowed to delgate** that discretion to another body or person. This would be contrary to the intention fo parliament.

Answer 42

Refused Lavender's application to grant PP to develop land for use as a quarry after hearing objections from the Minister of Agriculture. Decision was challenged on **grounds of abdication of decision.**

Answer 43

1) Statutory Exceptions 2) Common Law exceptions

Answer 44

s101, LGA 1972 Some statutes will expressly allow the decision maker to delegate decision-making powers to someone else. **s101 of the Local Government Act 1972**: Authorises LA to arrange for their functions to be carried out by committees, council officers or another LA

Answer 45

Where discretion is conferred on a gov minister, the courts will presume, in the absence of evidence to the contrary, that the **minister is allowed to delegat**e discretions to officials in his department, even if the statute doesnt expressly say so. **MInister remains politically accountable**

Answer 46

When an office such as Chief Constable is created by statute and the responsibilities of office are such that delegation is inevitable there will be an **implied power to delegate** Although must be delegated to **an appropriate level of seniority** | Carltona Principle Extended

Answer 47

Court accepted that a public office holder such as a Chief Constable, could discharge all but the most important of their functions through **suitable subordinates** for whom they are **responsible and answerable** | Carltona Principle Extend

Answer 48

Decision to deport immigrants could be made by Immigration Inspectors as they were civil servants. **Decision to deport must be taken by a person of suitable seniority at the Home Office, for whom the HS accepts responsibility** | Carltona Principle Extend

Answer 49

Removal for solitary confinement wihtout SoS authority. Not delegation as **not sufficiently close link** between prison and authority. | Carltona Principle Extend

Answer 50

Fewings Venables and Thompson

Answer 51

Congreve Fewings Padfield

Answer 52

* Fire Brigades Union - abdication of power * Brent; British Oxygen; Collymore

Answer 53

Carltona Oladehinde s101 LGA