Illegality Flashcards
Define illegality
1st ground of judicial review - Lord Diplock GCHQ case
When a public body has acted ultra vires (exercised a power it doesn’t have - beyond powers)
Rationale: a public body cannot determine the limits to its own powers
Error of law
Traditional view if public body made error in law about the extent of its power its decision is quashed
‘Jurisdictional error’ - if public body did have power but made an error of law ‘within jurisdiction’ its decision would normally stand
Anisminic case
FCC (foreign compensation commission) decision couldn’t be called into question by any court of law
Hols = ouster clause where it didn’t apply to FCC decisions taken outside of jurisdiction
What falls under the illegality ground?
- error in interpreting the law - failing to act in accordance with statutory purpose or acting for an improper purpose
-failing to take into account relevant considerations/acting on irrelevant considerations - fettering of discretion
Error in interpreting law
Question of law generally for courts to determine as objective assessment with a reasonable legislature
‘Reasonably incidental’ powers = powers not necessarily covered in statute
Attorney general v Fulham corp - a statute gave Fulham corp power to provide a wash house for residents but council introduced a new scheme for residents to have their clothes washed by council employees, HoLs stated there’s no implied authority to enable council to wash clothes for others
South Yorkshire transport - monopolies and mergers commission = power to investigate mergers affecting ‘a substantial part of the UK’, a public transport company sought JR on ground the commission was investigating a merger that only affected S. Yorkshire - argued this isn’t a ‘substantial part of UK’ - courts sometimes need to decide on jurisdiction as legislation can be vague but the courts recognise the discretion given by parliament
Error of fact
Courts = reluctant to review decisions based on mistake of fact as JR about legality of a decision and courts shouldn’t substitute judgement on matters where primary decision matter has expertise
EXCEPTION: jurisdictional fact: condition that must be met for statutory power to be exercised - fact whose existence determines whether the body has power to decide a certain matter
Croydon case - children act 1959 imposed duty on local auth. To provide accommodation for a child, dependent on determining the age - SC found this was a fact whose existence could be verified if disputed (someone with no docs or ID)
The E case - 4 conditions that must be met regarding a mistake of fact giving rise to unfairness
E came to UK from Egypt and applied for asylum but got rejected, new evidence of possible torture and incarceration if go back to Egypt but this wasn’t submitted to court - new evidence not being submitted = error of fact and gives rise to unfairness
- Mistake must be as to an existing fact
- The fact must be established (objective not contentious)
- The applicant or his advisers must not be responsible for mistake
- Mistake must have played a material (although not necessarily a decisive part) in the decision makers reasoning
Improper purposes
Padfield principle: when parliament confers discretion on the body, it gives discretion for a purpose - interpret AoP as a whole and this is the courts job
Porter case: acts of improper purposes - Head of Westminster CC decided to sell council flats in marginal wards (owners more likely Tory than tenants) and decision was unlawful as decided by auditor and JR occurred- court held decision = improper purpose - lord bingham = distinction between exerting public powers partly for an electoral advantage and that being your sole motivator (this was the case)
Interpreting statutory purpose can be contentious
World development movement case (WDM) - s.1 overseas development and cooperation act 1981: power to provide aid ‘for purpose of promoting the development or maintaining the economy of a country or territory outside the UK or the welfare of its ppl’
Rose LJ - if parl intended to confer power to disburse money for unsound developmental purposes, it could be expected to say so expressly
WDM allows gov to aid countries for development purposes - Secretary of State wanted to aid Malaysia to construct dam (costly so not good idea) - court saw as an improper purpose as waste money BUT absence of explicit purpose - lord laws in fewings case stated no such thing as a statue that has no purpose
Relevant/irrelevant considerations
Fewings case - 3 types considerations:
1. Identified in the statute as considerations to which regard must be had
2. Identified in the statute as considerations to which regard must not be had
3. Considerations to which the decision maker may have regard
Mandatory: must be taken into regard regulated by legislation or policy - “have regard” or “have due regard”
Policy as relevant consideration = munjaz case
Mental health act 1983 requires the SoS to prepare a code of practice for how hospitals should treat patients with mental health problems - HoLs held that although this guidance not binding, it has ‘great weight’ and hospitals should only depart from it with ‘great care’ and only if it had given a ‘cogent reasoned justification’ for doing so
Public sector equality duty
S.149 equality act 2010 requires public authorities to exercise their functions having ‘due regard’ to the need to: (a) eliminate discrimination, harassment etc that is prohibited by or under this act (essentially about protected characteristics e.g. sex, race, religion)
Discretion as to weight given to relevant considerations: Tesco stores case - ‘provided that the planning authority has regard to all material considerations it is at liberty to give them whatever weight the planning authority thinks fit or no weight at all.’
Irrelevant considerations
wheeler case - South Africa = apethaid regime (segregated country) so sports ppl and teams boycotted SA but Leicester rugby allowed 3 ppl to be selected for SA and Leicester CC decided to stop them from raining on ground - motivation = promote good race relations under race relations act 1979 - HoLs held decision = irrelevant considerations as no evidence of rugby club improper conduct or infringement of law - therefore legally irrelevant factors taken into account
Somerset CC banned stag hunting with dogs on land acquired - acquired land on basis of statute and statute stated usage of land for benefit or development of area - council stated hunting = morally wrong
Permissible (relevant) considerations
Considerations that MAY be taken into account
Barry case - how far its possible for auths to take cases based on financial constraints (limited budgets) - chronically sick and disabled persons act 1970 place local auths to provide welfare to meet needs to certain ppl and disabilities - Barry = filed and used to be provided with cleaning and laundry services but taken due to budget cuts - HoLs = local auths justification for cutting service = relevant consideration but lord lloyd dissented as it was wrong since it was reducing needs
Tandy case - HoLs held resources weren’t relevant consideration - education act 1996 laid duty on councils and local auths to are arrangement for suitable full and part time education for children of compulsory school age - suitable eduction = defined in act - stated context matters
Fettering discretion
Decision makers need to strike balance between consistency and legal certainty and responsiveness to individual circumstances - when authority has policy and sticks robotically to it
Kynoch case - port of London authority allegedly fettered discretion (court held it hadn’t) - distinguish between cases where decision maker has adopted a policy and sticks to it having heard what applicant has to say and when decision maker doesn’t hear applicant
British oxygen case - board = stated power to make grants for new equipment but policy of not giving grants if items are below £25 - HoLs held not fettering discretion
