Illegality

Question 1

How does Lord Diplock define Illegality in GCHQ …

Answer 1

‘the decision making must understand correctly the law that regulated his decision- making power and must give effect’

Question 2

What are the elements that form the ground of illegality occurs?

Answer 2

1) Simple ultra vires
2) Unlawful delegation/ discretionary powers
3) Improper purpose
4) Failure to take into account a relevant consideration
5) Fettering

Question 3

Discretionary Power…

Answer 3

• When powers have been delegated to the executive and they are free to delegate in the ways they want.
• Public authority with discretion powers must exercise those power to further rather than undermine the AOP that gave rise to the discretionary power

Question 4

Case on Discretionary Powers

Answer 4

Padfield v Minister for Agriculture Food and Fisheries

All powers must be exercised according to the purpose and the objective of the legislation and according to Parliament’s intention.

Question 5

Simple Ultra Vires - outside the scope of discretionary powers

Answer 5

The public authorities has made the decision that the literal language of the statute doesn’t allow them to make.

Question 6

Case on Simple Ultra Vires

Answer 6

Fulham Corporation v AG
statutory power to establish ‘washhouses’- under the legislation it meant they could provide facilities, not services, Corporation ended providing services as they wanted to pay council employees to wash clothes.

Question 7

Improper Purpose

Answer 7

Cannot use statutory powers for improper purpose/motive. The purpose/motive is to be judged according to legislation.

Question 8

Cases on Improper Purpose

Answer 8

Padfield - shows public authorities have to use powers to Parliament’s intention, if used for another purpose, it’s improper.

Fewings - powers used it was designed for, used to insert moral belief instead of good faith regulations of hunting

Question 9

Fettering Discretion-

Answer 9

Being exercised according to the purpose of the act, the decision maker’s discretionary powers must not be fettered and shouldn’t be restricted so that decision-makers are no longer exercising their discretion.

May adopt a policy to how power can be exercised – ensures consistency in decision making. Risk policy can be a fixed rule,

Question 10

Cases on Fettering ..

Answer 10

British Oxygen Company v Ministers of Technology -
OUTCOME-
Public Authorities are allowed to adopt a policy but it can’t be applied rigidly to everyone’s application..

Question 11

What is abdication?

Answer 11

Instead of the decision maker making decision, chose to follow decision of another decision maker.

Question 12

Cases on Abdication..

Answer 12

Lavender Ltd v Minister of Housing and Local Government – decision maker acted directly on influence of third party.

However,
doesn’t mean decision maker can’t take account of other decisions; Audit Commission v Ealing Council.

Question 13

Define dictation …

Answer 13

Decision make doesn’t apply own mind to decision, as they’re ordered or forced by 3rd party to exercise discretion in certain way.

Question 14

Cases on dictation

Answer 14

Corner House v Director of Serious Fraud Office –

C argued Director’s decision unlawful, because didn’t exercise powers independently but surrendered powers to a third party, Saudi Arabian Government. HoL rejected, held Director reached his own conclusion after consulting relevant people within government

Question 15

Irrelevant Consideration

Answer 15

When making decisions under the statute, PA must take account of all relevant considerations and exclude all irrelevant considerations,

Question 16

Cases on Irrelevant Consideration

Answer 16

R v SSHD ex p Venables –
HS’s decision unlawful = irrelevant consideration of public opinion on the questionnaire in the newspaper as HS influenced by it should’ve set in Quasi-judicial way.

Question 17

Delegation Principle

Answer 17

If an Act Of Parliament or secondary legislation grants statutory power to Public Authorities, the presumed intention of Parliament is for that PA to exercise it; PA can’t delegate authority to another.

Delegation is only lawful if authorised by statute.

Question 18

Case on Delegtion

Answer 18

Barnard v National Dock Labour Board –

The national dock labour board delegated power to local portmen which were illegal as the statutory power only allowed him. this undermined intention of the Parliament board needed to exercise power

Question 19

Expecation to Delegation

Answer 19

Carltona Principle- Unless powers delegated by a government minister to civil servant within own department for who’s action minister maintain responsibility and takes account of.

Question 20

Cases on Expectation to Delegation

Answer 20

DPP v Haw;
Haw extended principle to Commissioner of Met Police, not the government minister, who could delegate duty to the superintendent. The delegation was necessarily implied by Parliament. Accepted civil servants working in executive agency fall within principles.

In contract s R (Bourgass) v SS Justice
Power was delegated to the prison governor but it was unlawful as the prison was not a civil servant thus power couldn’t be delegated.