4. JUDICIAL REVIEW: ILLEGALITY

Question 1

ILLEGALITY

Answer 1

Def: Acting beyond one’s powers (ULTRA VIRES)

There are several types of illegality:

• SIMPLE ILLEGALITY
• ERRORS OF LAW
• ERRORS OF FACT
• RELEVANT AND IRRELEVANT CONSIDERATIONS
• ABUSE OF DISCRETION
• – improper purpose/fettering discretion
• UNLAWFUL DELEGATION

Question 2

I: SIMPLE ILLEGALITY

Answer 2

Def: acting illegally (ultra vires)

An action is illegal; where it is beyond the decision maker’s statutory power
- actions that are necessary, consequent or incidental to a power will not be ultra vires. (Westminster v London and North West Railway)

EGs: A council providing a laundry service as opposed to a simple facility for residents to be able to clean their clothes was ultra vires (AG v Fulham Corporation). Opening and reading letters was beyond the power granted to governors to monitor correspondence between prisoners and solicitors (R v SoS HD ex p Leech (No. 2)). Charging excessively high court fees was ultra vires (R v Lord Chancellor ex p Witham)

Question 3

I: ERRORS OF LAW

Answer 3

GR: ALL errors of law are reviewable (Anisminic; R v Privy Council ex p Page)
EX 1: where the error of law has NO EFFECT on the decision’s outcome
EX 2: where the decision relates to a special system of rules (ex p Page; Re Racal Communications)
EX 3: where the meaning of the statute is vague and/or capable of broad interpretation (R v Monopolies Commission ex p South Yorkshire Transport)

Question 4

I: ERRORS OF FACT

Answer 4

There are three types of error of fact:

NO EVIDENCE FOR A FACT

• RULE: a decision must be supported by evidence
• EGs: no evidence for the poor condition of houses (Coleen Properties v Minister of Health and Local Government). No evidence for the detrimental effect of reintroducing grammar schools (SoS Education v Tameside MBC)

PRECEDENT OF FACT

• Def: a fact that must be correct BEFORE a decision can be made.
• EGs: error as to an immigrant’s status (R v SoS HD ex p Khawaja). Error as to the status of land (White v Collins)

MISTAKE OR IGNORANCE OF AN ESTABLISHED FACT
- Def: where the factual basis for a decision is WRONG
— eg preference of some evidence over other evidence without justification (R v CICB ex p A; E v SoS HD)
REQ (E v SoS HD)
- the MISTAKE must be as to an EXISTING fact
- the fact/evidence must have been ‘ESTABLISHED’ (contentious and OBJ verifiable)
- appellant must NOT have been responsible for the mistake
- mistake must have played a MATERIAL, though not necessarily decisive, part in the tribunal’s reasoning.

Question 5

I: RELEVANT AND IRRELEVANT CONSIDERATIONS

Answer 5

Relevant considerations must be taken into account whilst irrelevant considerations must be disregarded.

Where the statute provides guidance this should be considered. Three types of factors can exist in a statute (ex p Fewings)

• PROHIBITORY: factors which must NOT be considered
• MANDATORY: factors which MUST be considered
• DISCRETIONARY: factors which MAY be considered

EGs

• Consideration of public opinion in setting the tariff for a murderer was IRRELEVANT, whilst relevant considerations, such as the murderer’s future development, had not been considered (R v SoS HD ex p Venables)
• failure to consider the effect of increasing public sector worker’s wages on taxpayers (Roberts v Hopwood)
• the resources available to an authority CAN be a relevant factor (R v Gloucester CC ex p Barry)
• Generally, a court will NOT intervene in decisions where the use of resources is in dispute (R v Criminal Injuries Commission Board ex p P), UNLESS it is able to clearly determine that resources are NOT a relevant consideration (R v East Sussex CC ex p Tandy)

Question 6

I: ABUSE OF DISCRETION

Answer 6

IMPROPER USE: a power granted by statute must be used for the PURPOSE INTENDED BY STATUTE
EGs: Using a power to enforce councillors’ ethical views (R v Somerset CC ex p Fewings). Refusing to exercise a discretionary power for improper reasons (Padfield v Minister of Agriculture). Revocation of TV licenses of individuals who hand purchased them early (Congreve v Home Office). Subsidising the transport with council money (Bromley LBC v Greater London Council)

RETENTION OF DISCRETION (fettering)
A decision maker must NOT fetter its discretion by refusing to exercise it (R v SoS HD ex p Fire Brigades Union)

Policies on the exercise of discretion

• A decision maker is free to adopt a policy on how it exercises its discretion provided that the policy does not:
• – amount to a blanket ban (R v NW Lancashire HA ex p A), OR
• – be too INFLEXIBLE (R(Corner House REsearch) v Director SFO). The policy maker’s mind must be kept ‘ajar’ (R v SoS Environment ex p Brent)
• cases must be considered on an individual MERITOCRATIC basis (R(Luton BC et al) v SoS Education; R v SoS HD ex p P and ex p Q). If so, even strict policies may be permitted (British Oxygen v Board of Trade)
• Policies must be enforced GENUINELY and with due consideration of each application (R v Warwickshire CC ex p Collymore)
• The duty to exercise one’s discretion may be overruled by national security concerns (R(Corner House Research) v Director SFO)
• HR cases must be considered individually and on the basis of proportionality (R v SoS HD ex p P and ex p Q)

Question 7

I: UNLAWFUL DELEGATION

Answer 7

GR: authority CANNOT be delegated (Lavender v Minister of Housing; Barnard v National Dock Labour Board)

• EX 1: where the delegation takes place within the minster’s own department (Carltona v Commissioner of Works) or civil servants in certain circumstances (R v SoS HD ex p Oladehinde)
• – where a fundamental issue is at stake, a minster CANNOT delegate his authority below a junior minister (ex p Doody)
• EX 2: Where delegation is expressly or impliedly authorised by statute (DPP V Haw)
• – Where the power to delegate is implied by statute, the office holder may delegate any NON-FUNDAMENTAL functions (R(CC of West Midlands Police) v Birmingham Justices)