Forms of Illegality

Question 1

Forms of Illegality- Section (1):

Answer 1

• Wide Range of Wrongs
• Public Sector Equality Duty (PSED)

Question 2

Wide Range of Wrongs

Answer 2

*Simple ultra vires: Acting beyond legal authority.

• Frustration of the purpose of the law: Preventing the intended outcome of legislation.
• Unlawful delegation: Improperly assigning authority.
• Abuse of discretion - improper purpose:
  Misusing authority for the wrong reasons.
• Abuse of discretion - irrelevant considerations: Using irrelevant factors in decision-
  making.

Question 3

Public Sector Equality Duty (PSED)-Section (2):

Answer 3

• Legal Framework
• PSED in Practice

Question 4

Public Sector Equality Duty (PSED)- Legal Framework

Answer 4

• Applies to both public and private organizations.
• Public sector duty includes eliminating
  discrimination, advancing equality, and fostering
  good relations.
• Continuous duty before and after the Equality Act 2010.
• Not a duty to achieve results but to have due regard to eliminate discrimination.

Question 5

PSED in Practice

Answer 5

• Illustrated by the Elias case regarding POW compensation scheme.
• Early cases like BAPIO Action Ltd and C. v. SS Justice highlighted PSED.
• Conditions for PSED include awareness, prior consideration, and continuous exercise. * No requirement to prioritize non-discrimination over other factors.

Question 6

Irrationality in Judicial Review- section (3):

Answer 6

• Definition of Irrationality
• Application of Irrationality Test
• Case Law Examples

Question 7

Definition of Irrationality

Answer 7

• Decision so outrageous in defiance of logic or moral standards that no sensible person could have made it.
• Judges should be well-equipped to identify such decisions.
• Involves excluding irrelevant factors and proper legal direction.
• Illustrated by examples like the red-haired teacher case.

Question 8

Application of Irrationality Test

Answer 8

Varied intensity of application depending on context.

• Judicial review question: extent of court interference in other branches’ decisions.
• Different levels of scrutiny: Anxious scrutiny vs. Deference.
• Margin of appreciation greater in national security and policy matters.

Question 9

Case Law Examples

Answer 9

• R v. Ministry of Defence: Heightened scrutiny in fundamental rights cases.
• R v. Radio Authority: Refusal of political advertisement deemed outrageous.
• R v. Secretary of State for the Environment: Council designation deemed absurd.
• Rare successful challenges like Duffy (FC) and R (D and Ano) cases.

Question 10

Challenges and Precedents- Section (4):

Answer 10

• Howard v. Home Secretary
• R(K) v SS Work and Pensions

Question 11

Howard v. Home Secretary

Answer 11

• Distinct approach for Windrush generation justified.
• Application of good character requirement deemed irrational.
• Court of Appeal reversal and Supreme Court decision.

Question 12

R(K) v SS Work and Pensions

Answer 12

• Decision to recover benefits deemed irrational due to flawed reasoning.
• Comparison with unpublished DMGW case study.
• High threshold for irrationality challenges.

Question 13

Irrationality Assessment and Comparison- Section (5):

Answer 13

• Irrationality vs. Proportionality
• Due Regard vs. Wednesbury

Question 14

Irrationality vs. Proportionality

Answer 14

• Proportionality for human rights, irrationality for other cases.
• Flexibility in application based on rights at issue.
• Comparison of intensity of scrutiny between the two.

Question 15

Due Regard vs. Wednesbury

Answer 15

• Varying levels of regard depending on circumstances.
• Two-stage assessment: due regard and balancing with other factors.
• Quality of equality impact assessment influences the process.