Grounds for JR - illegal, irrational, Convention rights

Question 1

GCHQ case

Answer 1

Lord Diplock laid out three types of ground for JR:

1. Illegality
2. Irrationality
3. Procedural impropriety

Also important to remember s6 HRA 1998

Question 2

Associated Provincial Picture Houses v Wednesbury Corporation

Answer 2

IRRATIONALITY Wednesbury unreasonableness - no reasonable authority could ever have come to that decision

Question 3

Short v Poole Corporation

Answer 3

IRRATIONALITY Example of clear cut case of irrationality - red haired teacher fired for hair colour

Question 4

Secretary of State for Education v Tameside Metropolitan Borough Council

Answer 4

IRRATIONALITY Tory council tried to convert some state schools to grammar schools, Labour Education minister tried to claim irrational, but court said was not that clear cut - both grammar and state schools had potential of being reasonable

Question 5

Mixnam v Chertsey Urban District Council

Answer 5

ILLEGALITY Ulterior purpose - local authority could grant licences to caravan parks to regulate their environmental impact but the LA used the licenses to protect tenants, an ulterior purpose to the legislation and so illegal by being ultra vires

Question 6

Sydney Municipal Council v Campbbell

Answer 6

ILLEGALITY Ulterior purpose - LA were using compulsory purchase orders to purchase land and not use it, speculating it would rise in price, then selling it on. Liable for JR as this was not what the CPO legislation was designed for

Question 7

Secretary of State for Home Department, ex parte Venables and Thompson

Answer 7

ILLEGALITY Irrelevant considerations - Home Secretary had considered public opinion in the sentencing of the killers. Could do so in setting tariffs generally but not in specific cases, it was an irrelevant consideration

Question 8

Roberts v Hopwood

Answer 8

ILLEGALITY Irrelevant considerations - LA paid a living wage and pay men and women equally (revolutionary in 1925) 0 set an example to community. But had not considered relevant issues (ratepayer value for money) and HAD considered irrelevant ones (setting example, advancing equality)

Question 9

Lavender v Minister for Local Government

Answer 9

ILLEGALITY Failure to exercise discretion - unauthorised delegation - wanted permission to extract gravel from agricultural land. Local Govt Minister refused as wouldn’t do so unless Agriculture Minister agreed but this was an unauthorised delegation as one ministry was allowing another to make decisions for them

Question 10

Carltona Ltd v Commissioners of Works

Answer 10

ILLEGALITY Failure to exercise discretion - unauthorised delegation - exception that decisions cannot be delegated for civil servants

Question 11

Home Secretary ex parte Oladehinde

Answer 11

ILLEGALITY Failure to exercise discretion - unauthorised delegation - exception that decisions cannot be delegated for immigration inspectors

Question 12

Port of London Authority ex parte Kynoch Ltd

Answer 12

ILLEGALITY Failure to exercise discretion - adoption of

policy - decision making body cannot “shut its ears” to an applicant with something new to say

Question 13

British Oxygen Co Ltd v Minister of Technology

Answer 13

ILLEGALITY Failure to exercise discretion - adoption of
policy - where there are many numerous applications to consider in a short space of time, an inflexible policy may be more acceptable so that decision-making can be rationalised

Question 14

Attorney General v Wandsworth London Borough Council, ex rel Tilley

Answer 14

ILLEGALITY Failure to exercise discretion - adoption of
policy - where individual circumstances are of paramount importance (e.g. here, taking children into local authority care), policies are much less acceptable

Question 15

Secretary of State for Home Department, ex parte Jammeh and Others

Answer 15

ILLEGALITY Failure to exercise discretion - adoption of
policy - policy was refusal of work permits to asylum-seekers awaiting their asylum decision but this meant they would be destitute so the policy wasn’t acceptable

Question 16

Dorset County Council (Beeson)

Answer 16

s6 HRA 1998 breach - independent panel deciding whether there was a deliberate deprivation of assets wasn’t independent enough from the local authority

Question 17

Peck v UK, Hatton v UK

Answer 17

Strasbourg notes that UK’s JR is not adequate as the threshold for irrationality and illegality is too high. EU jurisprudence, not the Wednesbury test, must therefore be applied in cases that come under the HRA 1998.

Question 18

Association of British Civilian Internees, Far East Region v Secretary of State for Defence

Answer 18

Where there are no EU law issues, the Wednesbury test remains valid

Question 19

Padfield v Minister of Agriculture, Fisheries and Food

Answer 19

ILLEGALITY - even if the statute suggests minister has absolute discretion, this is untrue as no discretion is beyond JR. Courts can look at text AND intention of statute

Question 20

E v Home Secretary

Answer 20

ILLEGALITY error of fact is its own ground for JR (and defined what an error of fact is, including a mistake that isn’t the fault of the claimant, that is uncontentious and was material to the earlier decision)

Question 21

Re Findlay

Answer 21

ILLEGALITY irrelevant considerations - to be a consideration, court must be under a legal obligation to consider it. The test for this is whether it would be Wednesbury unreasonable NOT to consider it

Question 22

Porter v Magill

Answer 22

ILLEGALITY improper purpose - selling council houses to please tory voters (electoral advantage is an improper use of statutory powers)

Question 23

R v Derbyshire City Council ex parte Times Supplements

Answer 23

ILLEGALITY improper purpose - rare example of bad faith. Education authorities refused to advertise in newspapers owned by Rupert Murdoch - vindictive

Question 24

Bromley v GLC

Answer 24

ILLEGALITY breach of fiduciary duties - local authorities to taxpayers

Question 25

R v Richmond Council ex parte McCarthy and Stone

Answer 25

ILLEGALITY - no charge can be levied on the public without express statutory authority

Question 26

R v Secretary of State for Home Dept ex parte Simms

Answer 26

ILLEGALITY - fettering a discretion. Blanket ban on prisoners speaking to journalists did not consider any possible exceptions

Question 27

Couglan

Answer 27

LEGITIMATE EXPECTATIONS - moved Miss Couglan despite express assurances she had a home for life

Question 28

Nadarajah

Answer 28

LEGITIMATE EXPECTATIONS - the test is proportionality rather than reasonableness