ILLEGALITY Flashcards
What is Illegality?
Illegality was described in regards to the decision maker understanding correctly the law that regulates his decision making powers and must give effect to it.
In what case was Illegality defined?
CCSU v. Minister for Civil Service (GSHQ)
By who was Illegality described?
Lord Diplock
What are the grounds of Illegality
- Ultra Vires
- Irrelevant Consideration
- Improper Purpose
- Fettering Discretion
What is Ultra Vires?
Ultra Vires is the notion that a government body’s decision is unlawful because the
body has attempted to exercise a power it doesn’t possess. In other words, the government body has gone beyond the four corners of the act – that label is obviously inappropriate if the limits of a prerogative power are in question.
What are the two cases which describe the meaning and usage of Ultra Vires?
- Attorney General v. Fulham Corporation
- R v Richmond-Upon Thames Council ex parte McCarthy and Stone
What is the main point in Attorney General v. Fulham Corporation (UV)
Fulham case settled a facet of illegality doctrine that a policy would be intra vires, even if it didn’t fall squarely within the scheme of the act if it was ‘incidental to, or consequent upon, those things which the legislature has authorized.
What is the main point in In R v Richmond-Upon Thames Council ex parte McCarthy and Stone (UV)?
In R v Richmond-Upon Thames Council ex parte McCarthy and Stone the House of Lords held that the imposition of the charges was unlawful. Such a charge was neither incidental to the planning function of the local authority, nor could a charge be levied on the public without statutory authority. The council has misconstrued its powers and accordingly acted ultra vires.
What should be taken into consideration when discussing Ultra Vires Doctrine?
Parliamentary supremacy
RECAP (Nature of Law)
What is meant by Parliamentary Supremacy? (Diecy principles)
- Parliament can legislate on any subject matter it wishes
- No Parliament can be bound by any previous Parliament, nor can a Parliament
pass any Act that will bind a later Parliament - No other body has the right to override or set aside an Act of Parliament.
Parliamentary Supremacy in relation to Ultra Vires Doctrine
As the two principles do not concern the judicial review matter the third one is to be
taken in consideration. It is said that no other body can override an Act of Parliament,
therefore if the Parliament grants power through any way it wishes (e.g. SI; By Laws; Council Orders etc.). delegated powers must not go beyond the powers granted in the Act. If a body was granted such powers and it goes beyond it, Parliament’s interests are
not satisfied as any other body could go beyond the powers that were granted.
What is meant by Irrelevant Consideration
A subsidiary or secondary purpose being pursued may – if it dictates the
decision making process – invalidate that process. Here attention is turned to situations where an authority fails to take account of relevant considerations, or take into account irrelevant consideration which materially affects the decision reached, and may be held to acting ultra vires.
Name a case that contains the ground of Irrelevant Consideration
Roberts v Hopwood
What is the main point in Roberts v Hopwood
in Roberts v Hopwood, the local authority decided to pay higher wages that the national average and to pay men and women equally. The court held that the council was pursuing a policy of ‘philanthropic socialism’ which was inconsistent with its duties to its ratepayers.
What is meant by improper purpose?
The essential point to remember, when referring to improper purpose, is that the heart of the matters lies in whether discretionary powers has been exercised lawfully or not, irrespective of the headings under cases may be grouped.
Name a case where improper purpose is describe
R v Somerset County Council ex parte Fewings
What is the main point in R v Somerset County Council ex parte Fewings?
R v Somerset County Council ex parte Fewings shows the boundaries between irrelevant consideration and improper purpose. The CA held that the Council’s mind
had not been directed to relevant statutory provisions, and it had not considered as it
was required to do, whether a ban of hunting would be for the general public benefit.
The activity in question is permissible under an existing law and it cannot be banned
because of the ethical objections of the Council, stated Law J.
What is meant by Fettering Discretion?
The rule against fettering of discretion rests on the presumption that – except in situations where a clear statutory or common law rule obliges a government body to reach one and only one particular decision – decision-makers must give a reasonable consideration on an individual basis as to how a power should be exercised or a duty discharged. Thus, I a public body has been given powers then it must not interfere with the discretion of choices that it was given. Meaning that the rules must apply to each and all without any fetter. A public body could fetter a discretion in several ways: by delegating power to another body or by setting a policy and refusing to consider exception on individual cases.
Name two cases with a reference to Fettering Discretion
- R v Chief Constable of North Wales Police ex parte AB
- R v Secretary of State for the Home Department ex parte Simms
What is the main point in R v Chief Constable of North Wales Police ex parte AB?
the court of appeal considered it that the policy of the North Wales police to disclose
information to members of the public concerning the presence of a former paedophile
offender was not unlawful. In this particular case the public body, police, has not adopted any policy of blanket disclosure, rather they looked at the merits of the case and accordingly had not fettered its discretion. (Policy matters)
What is the main point in R v Secretary of State for the Home Department ex parte Simms?
where the applicants were convicted of murder and they had been refused permission to apply against their conviction. The defendant had tried to achieve justice through the press, however, the Home Secretary adopted a policy that the offenders must not be interviewed with a view of publishing on the basis that such publicity could undermine the prison control and discipline. A different approach has been taken as Lord Steyn concluded that on the grounds of proportionality and human rights the reason of why prisoners are not allowed to access the press undermine the fundamental rights. (Policy Matters)
