Illegality Flashcards
How does Lord Diplock define Illegality in GCHQ …
‘the decision making must understand correctly the law that regulated his decision- making power and must give effect’
What are the elements that form the ground of illegality occurs?
1) Simple ultra vires
2) Unlawful delegation/ discretionary powers
3) Improper purpose
4) Failure to take into account a relevant consideration
5) Fettering
Discretionary Power…
- 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
Case on Discretionary Powers
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.
Simple Ultra Vires - outside the scope of discretionary powers
The public authorities has made the decision that the literal language of the statute doesn’t allow them to make.
Case on Simple Ultra Vires
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.
Improper Purpose
Cannot use statutory powers for improper purpose/motive. The purpose/motive is to be judged according to legislation.
Cases on Improper Purpose
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
Fettering Discretion-
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,
Cases on Fettering ..
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..
What is abdication?
Instead of the decision maker making decision, chose to follow decision of another decision maker.
Cases on Abdication..
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.
Define dictation …
Decision make doesn’t apply own mind to decision, as they’re ordered or forced by 3rd party to exercise discretion in certain way.
Cases on dictation
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
Irrelevant Consideration
When making decisions under the statute, PA must take account of all relevant considerations and exclude all irrelevant considerations,
Cases on Irrelevant Consideration
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.
Delegation Principle
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.
Case on Delegtion
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
Expecation to Delegation
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.
Cases on Expectation to Delegation
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.
