Illegality

Question 1

What are the key principles of illegality?

Answer 1

• The decision maker must underatnd correctly the law that regulates their power
• The primary decision maker must act within the ‘four corners’ of their powers (usually discretionary)
• It is unlawful to use legal powers for a purpose it was not intended for

Question 2

What case did this come from? Give a summary of the case

Answer 2

**Padfield v Minister for Agriculture, Food and Fisheries (now DEFRA) [1968] **
* Section 19 Agricultural Marketing Act 1958: complaints about the system of milk marketing may be sent to a committee of investigation at the ministers discretion
* Minister chose NOT to submit the complaint - this is fine but the reason behind it was not
* Did it to preserve his own political reputation - he was fearful about negative publicity
* HoL stated that this was a frustration of the ‘objects and purpose’ of the relevant legisalation

Question 3

What are the decisions that breach the Padfield principles?

Answer 3

• Simple ultra-vires: outside the ‘four corners of their power
• Used (or not) discretionary powers for an improper purpose
• Took into account irrelevant considerations, or failed to take account of relevant ones
• Adhere to a policy so rigid it ‘fetters’ their discretion

Question 4

What did the Padfield Principles do?

Answer 4

It set out the features of illegality

Question 5

What is ‘simple’ ultra vires? Give some case law examples to explain

Answer 5

**Fulham Corporation v Attorney General (1921) **
* Statutory power given to the corporation to have a washhouse for the local community - they established a laundry instad by charging people to do their washing
* It was held that these were not the same thing and thus a breach of power

**R(Public Law Project) v Lord Chancellor (2016) **
* Public law project - charity aimed to teach public about public law
* Sept 2013 LASPO ; piece of legislation implemented by the Lord Chancellor to inhibit access to legal aid
* Only people that were UK residents were eligible, excluding those wanting leave to remain, refugees, asylum seekers and illegal immigrants trying to legalise their status

Held :
* Unanimous agreement that the chancellor did not have this power
* The power to vary or omit services covered by legal aid does not allow the Lord Chancellor to govern who is eligble for legal aid in the first place

Question 6

What does “using powers for an improper purpose or motive” mean?

Answer 6

If a statutory power has not been used for the reason it was created

Question 7

What are some case law examples of this ground?

Answer 7

**Wheeler v Leicester City Council (1985) **
* LCC suspended rugby club for using local playing field because they did not follow the rules to not associate with South Africa due to the Apartheid

Held:
* The statue given to the council to govern recreational facilities did not allow the Council to ban the club from playing on their fields - cannot prohibit someone because you do not like it

**R v Somerset County Council ex parte Fewings (1995) **
* Council decided to ban stag hunting

Held:
* The reason for this was because of the councilor’s personal dislike for it but it had to be because there was a benefit to the local area

**Porter v Magill (2001) **
* Conservative politician decided to sell off homes
* This was acceptable but the process needs to be meticulous and needs to take into consideration homeless people and those waiting for homes
* But did this for political gain as it was a policy appealing to conservative voters

Held:
* HoL stated that this was an improper use and they do not like the perversion or the hindering of the electoral process as it hinders democracy

Question 8

What does “Taking account of consideration irrelevant to the statutory purpose” mean?

Answer 8

Factoring irrelevant evidence

Question 9

Use case law examples to explain this ground of review

Answer 9

• Padfield v Minister for Agriculture, Food and Fisheries
• **R v Secretary of State for the Home Department, ex parte Venables and Thompson (1998) **
• Two boys murdered a child and detained to juvenile prison - at the point of release the Home secratary decided to give them an extra 5 years to total 15 years in prison
• He believed they should be treated as adult offenders because his attention to the petitions he was getting from the general public and he failed to consider the relevance of their signoficant improvement and development in prison
• The petitions were an irrelevant consideration to the issue surrounding the release as he was supposed to look at the offederes themselves not outside opinion

Held:
* By a bare majority the HoL said that he did not have the power to do this

**R v Secretary of State for the Home Department, ex parte World Development Movement (1995) **

• Secretary of State gave £234 m of foreign aid to the malay government despite opposition stating this was a waste of time
• The decision was taken on the basis of a deal done with the Malay government with £1.3bn worth of British arms

**Held: **
* The decision was made with the irrelevant consideration of the deal with the Malay government and not because it was an effective use of resources or it would have a benefit to the country

**Porter v Magil (2001) **- shows how a relevant consideration (policy to encourage home ownership) turns into an irrelevant one ( political ambition)

Question 10

What is the relevance of the economic cost to the taxpayer of a public body decision? Use a case law example to explain

Answer 10

The economic cost to taxpayers is always likely to be considered relevant and the impact that the action has on the public purse is incredibly important

Example of this: Health & Safety Executive v Wolverhampton City Council [2012]

• WCC granted planning commission for 4 student accomodation units next to a liquified gas department
• Commission gave permission but the wider council wanted to recisind
• But in recinding they asked the court the financial impact this would have

Held:
* Court said yes that a PB should take into consideration the financial consequences of its action - the planning had to go ahead

Question 11

What are the outweighing factors to this rule? Give a case law example

Answer 11

Statutory Factors as seen in the case **R(Kebede) v Newcastle City Council (2013) **

• local authorities have a duty to make grants for educational expenses
• Two claimants were brothers who had formerly been in care –> get special consideration
• The brothers coud not get funds to attned university despite having discretionary leave to remain
• Upon asking the local council for these funds the council refused for the sake of considering their resources

Held:
* The courts stated that because they had a duty to make grants, the council must give those funds to meet their universty fees
* Council have no room to think about resources

**Public Sector Equality Duty : S 149 Equality Act 2010 **

• contains a provsision that a public body must be sensitive to remove any unlawful discrimination
• This act contains specific protected charateristics

Question 12

What is “‘fettering’ discretion”? Give a case law example

Answer 12

Where the rules are so strict it doesn’t allow adaptability in the discretion and decision making of a minister

British Oxygen v Minister of Technology [1971] : **the key case on this rule! **

* British Oxygen apply for government funding for which they are eligible but their individual costings of £20 per unit fall outside a policy that says only bids with unit prices of £25+ will be considered

* The rule is that you must not ‘shut your ears’ (Lord Reid) to an application

**R (Adath Yisroel Burial Society) v HM Senior Coroner for Inner North London [2018] **: ‘cab rank’ rule not appropriate for a coroner

• Flexible policies or those with the capacity to be flexible are OK: **DJ v Welsh Ministers [2019] ** : policy clearly allowed for exceptions to be made

Question 13

What is the non-delegation principle?

Answer 13

The idea that a minister must not delegate their power

In general, if an Act of Parliament gives x a power only they can use it as seen in the cases of :

**Barnard v National Dock Labour Board [1953] **

**Vine v National Dock Labour Board [1957] **

Question 14

What are the Carltona principle?

The case is : Carltona v Commissioner of Works [1943]

Answer 14

A minister may delegate their power

• Ministers aren’t required to exercise their discretion in every single case but they are responsible for the person it has been delegated to and what they do
• A minister can delegate to a civil servant within their own department which they hold responsibility for
• BUT a minister cannot delegatat their power too far

Question 15

Give a case law example of a ministers power not being delegated too far

Why was this the case?

Answer 15

**DPP v Haw (2007) **
* Haw was a peace campaigner conducting continous demonstration against govt policy in Iraq - people joined him
* April 2005: Serious and Organised Crime Act came into force, containing provisions imposing conditions on public demonstrations
* Legislation allowed Met Police Commissioner entitled to impose conditions on anyone who applied for authorisation for demonstration
* July 2005 Parl Square (where Haw was protesting) was included in the areas where conditions can be imposed
* Year later Police Super Intendant authourised conditions to be imposed on Mr Haw’s demonstration ; could not freely wander and limits on the amount of people that could join him
* He was found ro break 4 of the 7 conditions that were imposed on him
* Sought JR stating that the rules could not be implemented by a police Super Intendant

Held:
* Courts found that subordinate could exercise the authority to impose those conditions and could use the Commissioners statutory powers provided that what was being done was **sufficiently mandatory ** - **the Super Intendant could not have decided policy on the conditions themselves but was able to impose certain conditions **

Question 16

Give a case law example of a ministers power being delegated too far

Why was this the case?

Answer 16

**R(Bourgass) v SS Justice (2015) **

	▪ Rule 45 of the prison rules says that : solitary confinement can be invoked for purposes for keeping discipline, stopping riots  and unrest for prisoners best interest
	
	▪ But if it longer than 72 hours then it has to be authorised by the Secretary of State  
	
	▪ In this case; solitary confinement was authorised by the prison manager and the court holds that this is delegating too far 
	
	It is not that Carltona doesn't apply to the Sec of State's power but rather it doesn't allow for his power to be delegated that far 
	
	Court talks about the secretary of State's authorisation as some sort of safeguard, external scrutiny of a prison's decision that is necessary to prevent abusing prisoners and their rights

Question 17

True or False:
Parliament can eclude the Carltona principle through express statutory language

Answer 17

TRUE

Question 18

Powers are not to be dictated to - what does this mean? Give a case law example

Answer 18

This means that you should not wait for the use of a power authorised to you - kind of frustrating the point of that power

H Lavender and Sons v Minister for Housing and Local Government [1970]

	▪ There had been application to extract sand and gravel and [] in a protected area, the area was under the protection of the minister of Agriculture 
	
	▪ The minister of Housing in his letter of refusal- stating that he had a policy of not releasing these areas for mineral extraction unless the minister of agriculture was not opposed to it 

Held: 
	▪ In the courts view, it’s the Minister for Housing that should be exercising this power but he's allowing himself to be dictated to by the Minister for Agriculture - not allowed

Question 19

What was the case that allowed powerd to be dictated?

Answer 19

**Audit Commission v London Borough of Ealing [2005] **

	▪ Audit Commission with a duty to produce a report on the performance of local authorities exercising their functions
	
	▪ Ealing states that what the Audit commission is doing is not fulfilling its duty because it is allowing judgement on them to be passed to somebody else : Commission for Social Care Inspectorate
	
	▪ Audit commission had taken and accepted the commission's judgement of how Ealing was administering its social services and its functions and used those scores

Held:

▪ The Courts stated that there was no unlawful delegation because the Audit Commission and the Commission of Social Care were agreed on the framework for assessing performance and the Audit Commission was using that same framework 

The Commission of Social Care Inspectorate was also a statutory body and was in the same parameters as the audit commission in performing its function

Question 20

How far can a minister delegate their power?

Answer 20

To a civil servant within their own department for whose actions the minister maintains responsibility