Discretion & Judicial Review Flashcards
What is the Carltona Principle?
Carltona v Commissioner of Works
FACTS- The appellant argued wartime regulations which impacted its workforce were ineffective because they had been implemented by an employee of the Ministry and not the minister themselves (as a holder of delegated power he could not delegate this further)
OUTCOME- The act was not deleagted, it was an act of the minister themselves . Doctrine recognises that in practice no minister could possible carry out all the legal duties required. Where a statute grants a power to SoS, the court will treat the decision of a departmental official as being one made by the SoS
What does the recent case of R v Adams say about the Carltona principle?
FACTS- Mr Adams sought to have his conviction quashed on the basis that the interim custody order for his detention had been unlawfully made by a junior minister
OUTCOME- The Carltona principle did not apply on the facts, the SoS was required personally to consider the make of an ICO
* Where statutory power must be exercised by a specified person this is matter of interpretation
* Factors include the language and framework, the gravity of consequences
What is the leading case on improper purposes?
Padfield v Minister of Agriculture
FACTS- The claimants argued prices to be paid for their milk should be increased. The minister refused to appoint a committee to investigate due to the difficulty if it was found in favour of the claimants. The CoA held the minister’s discretion could not be challenged
OUTCOME- The ministers reasons for refusing to appoint a committee would frustrate the purpose of the act. Judicial review can now address discretionary powers
‘It should be used to promote the policy and objects of the act’
What was said in the case of R v Lewisham LBC, ex parte Shell?
Improper Purposes
FACTS- The local authority decided to boycott Shell due to aparthied in South Africa. Shell argued this to be ultra vires because an improper/irrelevant factor had put influence on the decision
OUTCOME- The decision was invalid, a council cannot exercise beyond its statutory powers and cannot do so to punish or pressure a body
What is the significance of relevant and irrelevant considerations?
A public authority that does not act on relevant considerations is not genuienly doing what it was given power to do (Endicott)
What are the two different types of considerations that can be made?
- Mandatory, i.e. ones the authority HAS to consider
- Non-mandatory, i.e. ones that can be taken into account but don’t have to be
What happened in the case of Bromley LBC v GLC
FACTS- The GLC issued a supplementary precept to all London Councils to reduce public transport prices. Bromley challeneged this on the basis it was beyond their statutory power
OUTCOME- The GLC in exercising its power had failed to consider its fiduciary duty to ratepayers. A mandate from the electorate is an irrelevant consideration, whereas the fiduciary duty is a relevant one
What happened in the case of Tesco Stores v Secretary of State for the Environment?
FACTS- Tesco offered to fully fund the building of a new road if they were granted permission to build a superstore. The secretary refused and Tesco appealed saying he had ignored a material consideration
OUTCOME- The offer was not ignored, but given little weight. A planning authority, provided it has regard to all material contributions, is a liberty to give them what ever weight they think
What happened in the case of R (Corner House Research) v Director of Serious Fraud?
FACTS- The director stopped investigating Saudi Arabia after a threat to pull out of terrorism deals that would risk British lives. Corner House sought review that this should not have influenced his decision
OUTCOME- Directors decision was lawful. He is independent of the Crown, and what he thought right was valid. It did not amount to a surrender. The question was whether the decision was one which the director was lawfully entitled to make, and he was
What is meant by Wednesbury unreasonableness?
A decision so unreasonable that no reasonable decision maker could have ever come to it (Associated Provincial Picture House v Wednesbury Corporation)
What does the case of R v Chief Constable of Sussex, ex parte International Trader’s Ferry tell us about Wednesbury unreasonableness?
When the rights involved are not ‘absolute’, when resources are finite, and when rights involved are competing, the courts will be slow to assess a decision as unreasonable
What does the case of Kennedy v Charity Commission say about the standard of review in Wednesbury?
It is inappropriate to treat all cases of judicial review under a ‘general but vague principle of reasonableness’ courts must look for the ‘underlying tenet or principle’ which should determine its approach in different circumstances
What happened in the case of Secretary of State for Work & Pensions v Johnson?
FACTS- The Welfare Reform Act 2012 and subsequent regulations made provisions of how universal credit should be awarded, the respondent argued application of these to be irrational and discriminatory
OUTCOME- The regulations produced an arbitrary and harmful impact on the claimants. Succeed on ‘irrationality’ but found the challenge to be Wednesbury unreasonableness
(high threshold of Wednesbury in this case)
