Chapter 2: Illegality Flashcards
The fundamental principle of Administrative Law is that a public body is not entitled to act in excess of its powers, or ‘ultra vires’.
Illegality is the ground of review which reflects this traditional doctrine. It is designed to ensure
that the use of power by the executive is confined within the limits set for it. These are normally
prescribed by the governing legislation.
GCHQ, Lord Diplock observed that:
By “illegality” as a ground for judicial review, I mean that the decision-maker must understand
correctly the law that regulates his decision-making powers and must give effect to it.
1.1 Categories of illegality
Illegality is a broad notion, which is by no means limited to a basic examination by the court of
whether a power exists. For example, a decision-maker may have acted within the power
conferred but, in coming to a decision, did not take into account a material consideration. This
would render the decision illegal as a result.
There are seven sub-categories which have been identified within the concept of illegality:
- Simple illegality (ultra vires)
- Errors of law
- Errors of fact
- Relevant and irrelevant considerations
- Improper purpose
- Fettering discretion
- Unlawful delegation
Note. Authors employ different categorisations when discussing what amounts to illegality.
- Simple illegality - the doctrine of ultra vires
The term ‘ultra vires‘ is often used as a generic phrase relating to any decision which is tainted by
illegality. However, it was traditionally used in a narrower sense, referring to a decision that goes beyond the boundaries of legal power given to the body concerned.
Hypothetical Example
A 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. Likewise, if the Secretary of State for Health were to pass regulations governing the deployment of the armed forces, this too would be declared ultra vires in the simple or pure sense.
2.1 Early case law
Attorney General v Fulham Corporation [1921] Ch 440
The case of Attorney General v Fulham Corporation [1921] Ch 440, provides a clear example of
the principle at work. A local authority had the power to provide washhouses for residents to wash their clothes in. This was 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. The court held that the local
authority had acted ‘outside of the four corners of the Act’ when setting up this service
Reasonably incidental
However, a public body will not have acted unlawfully if did something that was reasonably
incidental to or consequent upon a power that it did have. For example, the House of Lords held in Westminster Corporation v London & North-West Railway [1905] AC 426 that a 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
2.2 The principle of legality
You will recall from constitutional law that the 1990s saw the emergence of a so-called principle of legality. The courts took an approach to statutory interpretation, which presumed that Parliament did not
intend to authorise the infringement of fundamental or ‘constitutional’ rights, without very specific statutory authorisation. This is a more involved concept than the issue of simple ultra vires. However, it can be seen as an extension of the same theme.
R v Secretary of State for the Home Department, ex parte
Leech (No 2) [1994] QB 198
This approach was first adopted in R v Secretary of State for the Home Department, ex parte
Leech (No 2) [1994] QB 198 and is particularly associated with Lord Hoffmann’s judgment in the
case of R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115.
Another example can be found in R v Lord Chancellor, ex parte Witham [1997] 2 All ER 779, where
the court held that the parent Act did not authorise the Lord Chancellor to set court fees at such a high level that access to the courts, a fundamental right, was effectively denied. The statutory
instrument setting the fees was therefore declared to be ultra vires the Act.
- Errors of law
Errors of law are a natural extension of the ultra vires doctrine. This is a broad concept, but typically involves the decision-maker making a mistake regarding a question of law, for example by misinterpreting the meaning of words in a legislative provision
Early judicial review cases
In early judicial review cases in this area, an error of law was only reviewable if it involved a
question of jurisdiction, ie in determining whether a legal power arose in the first place. However, following a case we have considered before, Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, such distinctions were removed.
Anisminic
In Anisminic, the House of Lords ruled that the Foreign Compensation Commission (FCC) had misunderstood the rules of the compensation scheme it was supposed to be implementing. Such an error of law meant that the decision had to be quashed.
3.1 Exceptions to reviewability of errors of law
The House of Lords’ decision in R v Lord President of the Privy Council, ex parte Page [1993] 1 All
ER 97 has subsequently confirmed that all errors of law are potentially reviewable
Nevertheless, there are some qualifications to this general principle:
- Where the error of law is not decisive to the decision. By ‘decisive’, it is meant that, 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 a university. This was the issue in ex parte Page itself.
Unwilling to review a decision
They may also be unwilling to review a decision made by an inferior court on the basis of an error of law where Parliament had expressly provided that the decision of a judge at first instance was to be final. They will also not entertain an application for judicial review of a superior court, such as the High Court, for error of law (see Re Racal Communications Ltd [1981] AC 374).
Where the power granted is couched in terms, which are so imprecise, that it is capable of
being interpreted in a wide range of different ways.
R v Monopolies Commission, ex parte South Yorkshire Transport Ltd [1993] 1 All ER 289, t
The House of Lords considered how to interpret the phrase ‘a substantial part of the United Kingdom’. Lord Mustill observed that ‘substantial’ accommodates a wide range of meanings and warned of the dangers of attaching a spurious degree of precision on an inherently imprecise word.
His view was that the wording was so broad and imprecise that different decision-makers might reach differing conclusions when applying it to a given case. He held that the court should not intervene unless the decision-maker’s conclusion was irrational.
(Note, the potential overlap between error of law and the JR ground of unreasonableness.)
3.2 Recent case law
R (Forge Care Homes Ltd) v Cardiff and Vale University Health Board [2017] UKSC 56
It was found that the Health Board had misinterpreted s 49 of the Health and Social Care Act 2001.
Amounting an error of law
The case concerned the funding of care for residents in care homes who required a mixture of
NHS-funded care and local authority means-tested care with contributions payable by the
resident or their family. It was held that the Health Board’s application of the rules under s 49 had been too restrictive.
The NHS funds should also have covered care provided by registered nurses that was ancillary to or closely connected with the nursing care that had to be provided by the NHS. This amounted to an error of law, therefore.
- Errors of fact
The courts’ decisions in this area were, in the past, quite complex and confusing. The courts were
traditionally resistant to challenges based on an allegation that the decision-maker had made a mistake of fact, as this was perceived as being too much of an interference in the proper territory of the executive. However, some types of challenge have been considered by the courts and, in more recent years,
this basis of review has become more widely accepted, if not commonplace.
There are three types of error of fact which are now susceptible to judicial review:
- Precedent facts
- No evidence for a fact
- Ignorance or mistake of an established fact
4.1 Precedent facts
These were the first type of factual error to be reviewed by the Administrative courts. They occur
where a decision-maker’s power to decide on a particular matter – its jurisdiction to do so – depends upon it making an initial finding of fact. This is known as a precedent (or jurisdictional) fact.
White and Collins v Minister of Health [1939] 3 All ER 548,
The Court of Appeal held that it could review the local authority’s decision to compulsorily purchase a piece of land on the basis that the determination of a key factual issue went to whether the decision-maker had the necessary power in the first place.
White and Collins v Minister of Health [1939] 3 All ER 548
Under the relevant statute, the local authority’s powers of compulsory purchase were dependent on the land in question not being ‘parkland’. It mistakenly failed to appreciate’ however, that the land it had purchased was actually part of a park. The Court of Appeal accordingly quashed the
decision
R v Secretary of State for the Home Department, ex parte Khawaja [1984] AC 74
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 Secretary of State in order for the relevant statutory power to detain him to arise.
4.2 No evidence for a fact
The second kind of factual error, which can amount to illegality, relates to the so-called ‘no
evidence rule’. If a finding of fact, on which a decision is based, is supported by no evidence at all, the courts have felt able to overturn the decision based on it. The first clear case on this point was Coleen Properties v Minister of Health and Local Government.
Key case: Coleen Properties v Minister of Health and Local Government [1971] 1
WLR 433 Fact
Facts: The case concerned a decision to make a compulsory purchase order (CPO) on a property, as the local authority wanted to re-develop the adjacent area. An inspector’s report had stated, however, that it was not ‘reasonably necessary for the satisfactory development or use of the cleared area to acquire the property’.
Key case: Coleen Properties v Minister of Health and Local Government [1971] 1
WLR 433 Judgement
Held: The court found that the Minister had confirmed the decision without any evidence to
challenge the finding made in the inspector’s report. He had therefore erred, and the CPO was set aside.
4.3 Ignorance or mistake of an established fact
The law on error of fact, aside from jurisdictional challenges and the ‘no evidence rule’, has
advanced more slowly. However, accompanied by a degree of controversy, there has been a
gradual movement in the direction of a more general ground of review based on errors of what have become known as established facts.
Secretary of State for Education v Tameside MBC [1977] AC 1014
It was recognised that factual
mistake, described by Scarman LJ in the Court of Appeal as ‘misunderstanding or ignorance of an established fact’ and by Lord Wilberforce in the Lords as acting ‘upon an incorrect basis of fact’,
could be a basis for judicial review
Tameside
The Education Secretary halted the reintroduction of grammar schools which had been proposed by the newly elected local authority. He had believed that the re-introduction would lead to educational chaos and undue disruption for children. The House of Lords concluded that the Secretary of State had either misunderstood or was not informed as to the nature and
effect of the professional educational advice available to the local education authority and had
wrongly jumped to conclusions. This case has also been seen to represent a no evidence for a fact
error on the part of the Secretary of State.
R v Criminal Injuries Compensation Board (CICB), ex parte A [1999] 2 AC 330
Four of the law lords accepted (obiter) that a mistake of fact could found a ground for review.
