Grounds for JR - Illegality Flashcards
What are the three grounds for judicial review?
- Illegality
- Procedural Impropriety
- Irrationality/Unreasonableness
What is the principle of illegality?
This ground for review states that a decision maker may only act so long as they do not transgress the limits of their powers.
What may limit the administrative power of a decision maker?
Administrative power is limited by;
- Express terms of a statute;
- Implied terms of a statute;
- General principles like natural justice and reasonableness.
What are the four different heads of illegality?
- Doing an act with no legal authority
- Errors of law
- Failure to retain discretion by;
(a) improper delegation of decision making
(b) fettering of discretion - Abuse of discretion by;
(a) using a power for an improper purpose
(b) taking into account irrelevant considerations or ignoring relevant ones
(c) frustrating a legitimate expectation
What are two examples of simple illegality - doing an act with no legal authority?
- Attorney General v Fulham Corporation
2. Laker Airways v Dept of Trade
How was simple illegality shown in Attorney General v Fulham Corporation?
Fulham Corp was empowered to provide facilities for local people to wash their own clothes. They set up a commercial washing service, whereby people could bring in their clothes and the Council would wash them for them ( for a charge). Thus acting outside their authority - ultra vires.
How was simple illegality shown in Laker Airways v Dept of Trade?
Laker Airways had been granted a licence by the Civil Aviation Authority (“CAA”) under statutory authority. The Secretary of State had power to issue guidance to the CAA as to its duties. As a result of a change in Government, and consequent change in policy, the SS issued “guidance” to the CAA as he was entitled to; the guidance, however instructed them to revoke Laker’s licence.
What is an error of law?
An error of law occurs where a public authority fails to correctly construe the legal authority under which it acts - thus acting outside its authority.
What is the example of an error of law?
Anisminic Ltd v Foreign Compensation Commissioners
How was an error of law shown in Anisminic Ltd v Foreign Compensation Commissioners?
The FCC, in considering a claim for compensation by Anisminic Ltd over a forced sale of its property, misinterpreted the rules governing its powers, by assuming that it had to be shown that the successor in title was a British national. It therefore denied Anisminic compensation. According to the House of Lords, on the correct reading of the statute, Anisminic did not have to prove that the successor in title was also a British national, provided Anisminic was a British company.
Does any error of law result in a decision being held to be unlawful?
Yes - in the case of Anisminic Lord Reid said - “The question is not whether they made a wrong decision but whether they inquired into and decided a matter which they had no right to consider.”
Does every error of law take a body outside its jurisdiction?
Yes - in the case of R v Lord President of the Privy Council, ex parte Page Anisminic was approved - it was said that ‘Parliament had only conferred the decision-making power on the basis that it was to be exercised on the correct legal basis; a misdirection in law in making the decision therefore rendered the decision ultra vires’
What further reinforced the idea that all errors of law took authorities outside their jurisdiction?
In the case of Boddington v British Transport Police it was said that “… Anisminic … extend[ed] the doctrine of ultra vires, so that any misdirection in law would render the relevant decision ultra vires and a nullity…”
Are there any exceptions to the position that all errors of law take authorities outside of their jurisdiction?
Yes - as shown in the case of R v Lord President of the Privy Council, ex parte Page;
- Where the error of law is not relevant to the decision challenged.
- Decision made by an inferior court if legislation stipulates that the decision of such court is final.
- Specialist areas (e.g. where courts may lack expertise).
What was the significance of the case of Edwards v Bairstow in regards to whether an error of law takes an authority outside of their jurisdiction?
In this case a further instance in which a decision may not take a decision-maker outside of their jurisdiction was established.
What key distinction was made in the case of Edwards v Bairstow?
In this case a distinction was drawn between (a) the interpretation of law and (b) the correct application of law to the facts. It was said that an incorrect interpretation would taint a decision with illegality but an application of the law to the facts in a way different to the courts expectations wouldn’t necessarily make the decision illegal - provided the conclusion is within the range of conclusion open to a reasonable decision maker.
What is an error of fact?
As oppose to an error of law, an error of fact involves a mistake by the decision maker as to the factual content to which the relevant law is applied.
What was the courts traditional approach to errors of fact?
(1) Traditionally errors of fact were only reviewable where either;
(a) the error related to a fact that was jurisdictional.
Jurisdictional: Where the decision maker can enter into an enquiry only if the particular fact exists. Or;
(b) no evidence at all for the decision reached.
What was the alternative means by which courts may typically have addressed an error of fact?
The alternative was to treat errors of fact as a failure to have regard to a relevant consideration - the true facts.
Which case developed the modern approach adopted by the courts in relation to mistakes of fact?
In the case of E v Secretary of State for the Home Department the Court of Appeal held it no longer necessary to characterise the error as a failure to have regard to relevant considerations.
In the case of E v Secretary of State for the Home Department how was the new, modern approach to mistakes of fact laid out?
In this case Carnwath LJ said a claimant must show;
(i) a mistake as to a existing fact (including a mistake as the availability of evidence);
(ii) the fact or evidence must be uncontentious and objectively verifiable;
(iii) the claimant/the claimant’s lawyers must not have been responsible for the mistake; and
(iv) the mistake must have played a material part in the tribunal’s reasoning.
In order to justify a finding of illegality for mistakes of fact.
What is the consequence of a finding of illegality?
If a decision is found to be illegal the decision is void ab initio.
What is failure to retain discretion?
Failure to retain discretion occurs when a public body either;
(a) wrongfully delegates or transfers power, or;
(b) fetters discretion by over-rigid adherence to policy
Why is there a presumption against the delegation of power/authority under the failure to retain discretion branch of illegality?
The general rule that the body to which power has been delegated by Parliament may not itself delegate power is based on the desire to maintain parliamentary intention and ensure accountability.
Are there any exceptions to the presumption against delegation of power/authority in relation to the failure to retain discretion?
Yes, further delegation may be permitted in cases where legislation explicitly permits this.
Which case demonstrates a failure to retain discretion through improper delegation?
Barnard v National Dock Labour Board - here the claimants were suspended by the port manager not by the Dock Labour Board (the correct body under the Dock Workers Regulation of Employment Scheme).The Board cannot just ratify port manager’s decision.
At most all it can do is take recommendations from port manager. Therefore there was an improper delegation of power.
