Illegality Flashcards
Different types of illegality
(1) Simple Illegality - true ultra vires
(2) Errors of Law
(3) Errors of Fact
(4) Relevant and Irrelevant considerations
(5) Abuse of discretion
(i) Improper purpose
(ii) Fettering discretion
(6) Unlawful Delegation
Simple illegality - definition
Acting illegally ultra vires. A decision is illegal where it goes beyond the boundaries of their statutory power - L Diplock, GCHQ
Simple illegality: Examples of illegal actions
- Council providing a laundry service rather than a simple washing facility (AG v Fulham Corporation)
- Opening and reading letters beyond the power granted to governors to monitor correspondence between prisoners and solicitors (R v SOS HD ex p Leech (no. 2))
- Charging excessively high court fees (R v Lord Chancellor ex p Witham)
- Asylum seeker’s benefits can only be stopped when the decision is communicated to them, not when the decision was made (R (Anufrijeva) v SOS HD)
- Freezing personal assets of someone suspected of being involved in terrorism when this power did not exist (HM Treasury v Ahmed)
Errors of law
Where the decision maker has misinterpreted/misunderstood the law/rules (Anisminic v Foreign Compensation Commission (FCC))
Generally all errors of law are reviewable (R v Privy Council ex p Page)
3 exceptions to errors of law
Exception 1: where the error of law has no effect on the decision
Exception 2: where the decision maker is interpreting some special system of rules
Ex: university statutes (R v Privy Council ex p Page)
Exception 3: The statute is so imprecise that it is capable of broad interpretation
Ex: The word ‘substantial’ imprecise enough that different decision-makers might reach differing conclusions when applying it to the facts (R v Monopolies Commission ex p South Yorkshire Transport)
Errors of fact: what are the 3 types?
Precedent fact
No evidence rule
Mistake or ignorance of an established fact
Errors of fact: precedent fact definition
Where the decision maker’s power to decide is dependent on an initial finding of an objective fact. If this fact is not found the power cannot be used.
Errors of fact: precedent fact examples
- In order to deport someone as an illegal immigrant it must first be established that they are an illegal immigrant (R v SOS HD ex p Khawaja)
- Local authority only had statutory power to purchase a certain type of land. Not possible to exercise this power in relation to a different type of land (White and Collins v Minister of Health)
Errors of fact: No evidence rule definition
A finding of fact must be supported by evidence (Coleen Properties v Minister of Health)
Errors of fact: No evidence rule examples
- No evidence for the poor conditions of houses (Coleen Properties v Minister of Health)
- Decision not to re-introduce a grammar school based on the claim that it would hinder pupils. No evidence for this claim, decision reviewed (SOS Education v Tameside MBC)
- Finding of fact ‘must be based upon some material that tends logically to show the existence of facts consistent with the finding’ - Mahon v Air New Zealand.
Errors of fact: mistake or ignorance of an established fact - meaning, and when does this occur?
Where the factual basis of the decision is wrong
This will occur where there is a failure to consider all of the evidence or some evidence is given preference over other evidence without justification (R v CICB ex p A) S of S for Education v Tameside MBC
Errors of fact: mistake or ignorance of an established fact: criteria for a mistake to be reviewable
E v SOS HD
There must be a mistake as to an existing fact
The fact or evidence must have been ‘established’
The appellant or advisors must not have been responsible for the mistake, and
The mistake must have played a material (though not necessarily decisive) part in the tribunal’s reasoning
Relevant and irrelevant considerations meaning
The decision maker must regard relevant matters and disregard irrelevant ones
Where statute provides guidance this should be considered
Relevant and irrelevant considerations: what are the factors that can exist in statute? Which ones must the decision maker take into account?
(Ex p Fewings):
Mandatory factors - Factors the decision maker must take into account
Prohibitory factors - Factors he must not take into account
Discretionary factors - Factors he may have regard to if he thinks it is right. This gives a margin of appreciation to the decision maker
Decisions failing to take account of 1 and 2 are illegal
Relevant and irrelevant considerations: examples
Consideration of public opinion in setting the tariff for a murderer was an irrelevant consideration while relevant considerations, such as the murderer’s future development, had not been considered (R v SOS HD ex p Venables)
Failure to consider the effect of increasing public sector worker’s wages on taxpayers (Roberts v Hopwood)
The authorities’ consideration of their own resources may be a relevant factor (R v Gloucester County Council ex p Barry). Generally, however, the court will not intervene in decisions where the use of resources is in dispute (R v Criminal Injuries Compensation Board ex p P) unless it is able to clearly determine that resources are not a relevant consideration (R v East Sussex CC ex p Tandy)
Bromley LBC v GLC - similar. Ken livingston introduced transport policy: “Fares fair” policy. Bromley challenged, failed to take into account, should be run economically and efficiently, in line with business etc.
