Grounds of Judicial Review (I): Illegality

Question 1

Historically, what was ultra vires and judicial review like?

Answer 1

• Narrow judicial review (not very much power of it)
• Starting point: traditional idea of ultra vires = “outside the power”
• Key to the rule of law {Entick v Carrington}

Question 2

What happened to judicial review during the 1960s?

Answer 2

• Court’s mission: modernisation; sweeping away “unnecessary” restrictions and technicalities
• Search for broad principles and applying them (not specific details)

Question 3

What is modern judicial review? (Tomkin’s definition)

Answer 3

“A significant characteristic of modern judicial review law is that it possesses a remarkable degree of judicial discretion”

Question 4

Based on Lord Diplock in the case of GCHQ, what are the three heads/grounds of review?

Answer 4

• Illegality
• Irrationality
• Procedural impropiety

Question 5

What is the broad definition of illegality? (Tomkins)

Answer 5

“The decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it” (courts deciding power used)

Question 6

What are the “routes” of illegality?

Answer 6

• “Simple” illegality
• Errors of law/fact
• Failing to retain discretion
• Abuse of discretion

Question 7

What can we learn from the case of A-G v Fulham Corporation [1921]?

Answer 7

• Issue: Is creating a charged laundry service within the power to create a wash-house?
• Law: Interpreting the Act, considering the legal definition of a “wash house”
• Conclusion: ultra vires = setting up a laundrette is outside the power given

Question 8

What can we learn from the case of Roberts v Hopwood [1925]?

Answer 8

• Issue: Did the council have the power to set this generous waste?
• Conclusion (Lord Atkins): No, outside power, wages should match the services given (value for money) and money given were gifts to women instead

Question 9

What can we learn from the case of White and Collins v Minister of Health [1939]?

Answer 9

• Law: in Housing Act 1936, land forming “part of any park” cannot be purchase (due to buying land as part of manor estate)
• Conclusion: it is a park under legal meaning and therefore cannot be purhcase

Question 10

Therefore based on the cases, what is simple illegality?

Answer 10

• Determining what the power actually is
• Statutory interpretation and what the Act “really” means
• Not always a simple or obvious task

Question 11

What is an error of law?

Answer 11

• Misinterpretation of the law and using this bad interpretation to make a decision
• Error must have affected the decision {ex parte page [1993] case}
• Relevant case: Anisminic

Question 12

What is an error of fact?

Answer 12

• Proper interpretation of the land and power
• BUT a mistake as to the facts that existed has meant that it has been misapplied
• Practical ultra vires logic: correct power + mistaken situation = mistaken application of power = outside the power

Question 14

What is the traditional position of the error of fact? {Devlin J in ex p Zerek [1951]}

Answer 14

• Error of fact cannot be a ground of review
• JR is a supervisory jurisdiction, not an appeal to revisit the content of the decision

Question 15

How was error of facts developed?

Answer 15

• Acceptance in cases where the fact is a necessary precondition for the power to be valid
• Now, mistake of fact is its own sub-category (based on elements)

Question 16

Based on the case of E v Sec of State [2004], what are the elements to prove for mistake of fact?

Answer 16

• Mistake as to an existing fact
• Fact must be objectively verifiable (beyond reasonable doubt)
• Claimant must not themselves be responsible for the mistake
• Mistake must play material part in decision (but not necessarily decisive)

Question 17

The first category of ‘Failures to Retain Discretion’ is Fettering discretion. What is this?

Answer 17

• Feterring -> restricting/imprisoning your decision
• You’re limited to your ability to freely make a decision on individual merits
• Do not “shut your ears” to possibility of making exceptions

Question 18

Regarding fettering discretion, what can we learn from the case of Lavender & Son [1971]?

Answer 18

• Minister of Housing refused to approve planning permission unless the Minister for Agriculture agreed (limiting own decisions)
• Considered unlawful

Question 19

The first category of ‘Failures to Retain Discretion’ is Wrongful Delegation. What is this?

Answer 19

• Giving the decision to someone else
• Courts: this is unlawful, you cannot hand your own power to someone else {Barnard v National Dock Labour Board [1953]}

Question 20

An exception to Wrongful Delegation is the Carltona Principle. What is this?

Answer 20

• Principle: Civil servants in govt departments acting in same name as Ministers {Carltona case}
• Delegation is acceptable as Secretary of State is responsible for Parliament (accountability is still there)

Question 21

The first category of Abuses of Discretion is ‘Using a power for an improper purpose’. What is this?

Answer 21

• Doing something for a reason that is not proper (outside the powers that is intended)
• Important for courts to establish what the proper purpose was (look at text of the Act and circumstances passed)
• Relevant case: Porter v Magill [2001]

Question 22

The second category of Abuses of Discretion is ‘relevant and irrelevant considerations’. What is this?

Answer 22

• Taking into account irrelevant considerations {Roberts and Ex Parte Veneables cases}
• Or failing to take into account relevant considerations
• How to distinguish: look into legislation and purpose of power
• Obligation: take considerations into account, following from will of statute