Illegality Flashcards
GCHQ [1985]
The modern definition is given to us in the GCHQ [1985] AC 374 case that we looked at last week. The GCHQ case, for the purpose of this lecture, is only relevant for that fact. In the case it outlines the three types of judicial review grounds that you could have in this country. There are three of them that you could have at common law.
There is common-law judicial review, and then human rights judicial review.
So, the three grounds that you could have at common law are as follows:
Illegality
irrationality – sometimes also referred to as unreasonableness.
Procedural impropriety/natural justice
Quote by Lord Diplock:
“…one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality”, the second “irrationality” and the third “procedural impropriety”.”
So, at common law then, Lord Diplock in the case GCHQ establishes that there are three categories on which you can make a claim.
Attorney General v Fulham Corporation
“narrow ultra vires”
How is this illegal? We know that parliament has passed a law – the Bath and Wash Houses Act, which permitted the Fulham Corporation to establish a wash house. The Fulham Corporation instead set up a laundry whereby employees would wash the clothes on behalf of the people who they charged. So, Parliament said set up a wash house, but they actually set up a launderette. Therefore, they acted ultra vires – outside their powers. The only power that they could have done was establish a bathhouse, and had they done that they would have acted intra-vires and it would have been fine.
This is the most basic form of judicial review.
The issue was whether the Council had expressly or impliedly the power to conduct the operation that it is conducting, and in this case holding the launderette.
simple ‘ultra vires’
Easiest. Has the body done something which the act/legislation does not permit it to do?
‘unlawful delegation’
If a statute says that it gives power to so and so (a particular person) to go and do something, the question has to be asked if whether they are allowed to make someone else do that for them.
Meaning, if it says that the local council shall build wash houses, and then the local counsel sells the power to build wash houses to the local Tesco, and they want to build it to make money for them… That is what we are looking at there.
‘Irrelevant considerations’
if you take into account irrelevant considerations when making a decision your decision will be illegal. Meaning, for example, if you are making an application for your benefits – welfare – and you come in and I say I’m not going to give it to you because you support Portsmouth football club, then you can say that person made a illegal decision because they took into consideration ‘irrelevant considerations’. There are many of these cases that we are going to look at in the next hour about where a public body had been given a particular power to make a decision and they decided the outcome based on something else that they think rather than based on the law – they have taken into account an irrelevant consideration.
‘improper purpose’
Meaning, if you use a particular power, but for the wrong purpose – not for the purpose that it was intended for you to use it. So, for example, some of you obviously record these lectures on your phones or laptops. That is perfectly fine. However, if I went on to eBay next week and found you selling those lectures on eBay I wouldn’t be fine with it because you are using it for an improper purpose. The reason why I let you record these lectures is because it benefits you when you’re revising for the exams. The license does not extend to you selling them or giving access to people that do not do this course. So that is an example of “improper purpose” – where a public body has been given a particular power and they use it for the wrong purpose and they go beyond the reason why they were given that power.
“fettering discretion”
(British Oxygen Case) – is the hardest one to understand. Sometimes a statute will give a politician or public body discretion as to when they do something, or how they go about doing something. But just because they have been given discretion does not mean that they can ignore doing that thing entirely. If Parliament passes a law that says that you will do something, or that you will listen to someone, or you will take into consideration something, you must actually do that. You cannot fetter (meaning, give away) your discretion to do something – you cannot fetter your discretion. It sounds abstract, but when we come back to a case in the next hour you will see what it means.
Padfield v Minister of Agriculture, Fisheries and Food [1968]
(Fettering Discretion)
concerned the Agricultural Marketing Act 1958 to regulate the milk market, which concern the selling and buying of milk. Farmers in the Southeast complained that they were not getting a fair price for their milk. The 1958 Act allowed for the committee of investigation to consider complaints, if the minister so directed.
Section 19(3)(b) stated that the committee shall “be charged with a duty, if the minister in any case so directs, of considering, and reporting to the minister on… Any complaint made to the minister as to the operation of any scheme…”
This means it was very discretionary. The minister had a wide discretionary power here. What the minister did was that he refused to refer any complaint, particularly any complaint made by the farmers in the Southeast.
Lord Reid stated in his judgment that “Parliament must have deferred the discretion with the intention that it should be used to promote the policy and object of the act, the policies and objects of the act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the minister… uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons agreed were not entitled to the protection of the court.”
So the Act was the Agricultural Marketing Act. Its aims and policies were to set their prices for milk across the UK.
Section 19(3) gave the minister the discretion to call boards to look into complaints. He was deciding never to call any board to look into the complaint. Therefore, Lord Reed said that that was not your power. Your power is to pick and choose, but you must choose sometimes when it is a legitimate complaint. If you don’t choose, and in our view your decision not to choose runs counter to the aims of that Act, then you would be held to have acted illegally because you don’t have the discretion to make that decision.
British Oxygen Company Ltd v Minister of Technology [1971]
(Fettering Discretion)
In this case the Board of Trade, which is under the supervision of the Minister of Technology, have the power to grant money for new equipment. The Board, however, had a policy that it would not hear grants if the new equipment cost less than £25. So, obviously the British Oxygen Company put an application in for £4 million worth of cylinders, which each cost £20 – making them each individually less than £25. Thus, the application was refused.
It was held by Lord Reid that “anyone who has a public power and is given statutory discretion must not shut his ears to an application. There may be case where an officer or an authority ought to listen to substantial arguments that are reasonably presented urging a change policy. What the authority must not do is refuse to listen at all (fettering discretion). But a ministry, or a large authority, may have to deal already with a multitude of similar applications and then they will almost certainly have evolved the policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say.”
So because they had a policy that they wouldn’t ever consider an application of things worth 25 pounds or less, they didn’t even consider whether or not there is any merit behind granting British Oxygen this grant. They closed their ears to it. They didn’t want to hear about it.
So the court said that that was wrong. You don’t have to agree with them, but you should at least consider the application and see whether or not you believe it to have any merit.
So fettering discretion is when a public body closes its ears to any reasons offered by individuals. It should not do that. It should at least listen.
This is because the statute that gave the power did not prescribe this 25 pound limit. It was a decision made up by the people who had been given the power. The statute said here’s some money, decide how it is given out. So discretion is given to the board of trade. The board of trade then drafted some rules about how they give that money out. The board of trade decide not to give any application, or even consider them, if the cost of the equipment contained less than 25 pounds per item. So they then refused to listen to this application. The court said that was an illegal choice because it fettered the discretion. So fettering discretion is one fault.
Barnard v National Dock Labour Board [1953]
(Unlawful Delegation of Power)
the power was given to the local labour board. The local labour board in this case did not want to decide on cases, so the manager of the Port took over the decision-making process.
It was held by the court that the port manager couldn’t make these decisions on his own because the power that had been conferred by Parliament to the local labour board could not be sub delegated to the port manager. Thus, this was an unlawful delegation of power to the port manager.
This is a good case example of if a problem question says that an act of Parliament gives somebody power but then they go and give that power to somebody else. You would know in this case that can’t happen because of Barnard v National Dock Labour Board – it says that when you give the power to somebody else without parliament’s consent then it is an unlawful delegation of power.
Carltona Ltd v Commissioner for Works [1943] – ‘The Carltona Principle’
Now, the Carltona Principle is very straightforward, except for the fact that it is an exception.
if a Minister of a government is given a particular power – for example, the Minister of the government has the power to negotiate and do things regarding the European Union…the Secretary of State for Exiting the European Union.
If these individuals wish to delegate powers given to them by Parliament to officials within their department, meaning other politicians – so there is a Secretary of State for Health, but then there is probably a Minister for Nursing, a Minister for Doctors…
The big boss of the department – the Secretary of State – can if he or she chooses to delegate powers to other members of the government, or to members of the civil service.
So, in a problem question if it says that the Minister of State in so and so has delegated the power to the minister of state for blah blah blah, then you will say that the principle in Barnard v National Dock Labour does not apply. Instead, the Carltona Principle applies. That a minister of state may delegate their powers to another minister or government official.
Lord Greene: “constitutionally, the decision of… An official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority”.
That translates very simply: a minister can make anyone who works for the government to do something for him, and the government and minister remains accountable for that person’s actions.
Lavender & Son Ltd v Minister of Housing and Local Government [1970]
(Abdicating Discretion)
the Minister of Housing did not grant an application for a building because he deferred to the Minister of Agriculture’s decision not to allow gravel extraction. He was fettering his discretion to the Minister of agriculture. The Minister of agriculture had no statutory power to make this decision.
This is similar to asking mom if you could do something and she says to ask dad instead.
So in this case somebody asked the Minister of housing if they could build a particular thing, but the minister of housing doesn’t want to make the decision even though he has the power, so he says to ask the Minister of agriculture. But the minister of agriculture has no legal power to make that decision, and therefore is abdicating the discretion to the wrong person.
Wheeler v Leicester City Council [1985]
(Improper Purpose)
Leicester city Council had the power to ban sports clubs from using its facilities. This was a power relating to paying facilities, and so forth.
Leicester city Council banned Leicester Rugby Club from using its facilities. Why? Because three members of the club played rugby in South Africa during apartheid.
The Club refused to condemn or scorn the players who decided to go to South Africa and play. The Council said it made the decision, therefore, to ban the rugby club because it took serious concern about the racial relations within the city.
There was a national policy of the time where we did not engage with South Africa as a sporting country. For many years South Africa did not play rugby or cricket because nations of the world decided that so long as they had apartheid they would not play games against them. It wasn’t until apartheid had ended that we all went back to playing sports with South Africa.
Lord Templeman, however, found that “The Council could not seek to use its statutory powers a management or any other statutory powers for the purposes of punishing the club when the club had done no wrong”.
What is meant by this is that the statutory framework that allowed them to control the facilities mentioned nothing about race relations, and it mentioned nothing about the Council’s ability to deny clubs the use of its facilities based on moral or other grounds.
Consequentially, it was held that the Council, by deciding to ban them on these moral racial grounds – in other words, political grounds – had acted illegally because it had considered an improper purpose for using its powers, which were about management and finance, and ensuring that the facilities were properly used. And its improper purpose was imposing its political viewpoint on the rugby club.
Porter v Magill [2002]
(Improper Purpose)
London had a lot of council housing – housing that was rented out to people. People that live in council houses tend to vote for Labour, and people who tend to live in bought houses tend to vote for Conservatives.
Dame Shirley Porter was the leader of Westminster City Council. She was a Tory. She had the choice of where to sell council properties to public companies in order for them to go on and sell to people who could afford to live in those houses.
Now, the way in which she decided which houses to sell was that she looked at all of the seats in Westminster – all of the different boroughs – to see which seats were most closely contested between conservatives and labour. Thinking that if she sold off council houses in those particular seats, those seats would then become strongly conservative, and the conservatives would win.
She had the power to sell the houses. That was not up for dispute. But, on making the decision on which houses to sell, what do you think was her improper purpose here? What was she trying to achieve? She was trying to rig the elections. That was the improper purpose of her decision to sell particular houses.
Her decision was held to be illegal because it was for an improper purpose. She was selling them for political motivation of ensuring that the conservatives continually won the elections in Westminster.
So that is improper purpose then.
Here the conclusion from the judge was that the exercised power was not for the public purpose for which the power was conferred, but in order to promote the electoral advantage of a particular party.
She used her power to sell the houses that belong to the council, not to promote home ownership but as an underhanded way of promoting a political party.
We would say that this was indirectly discriminate.
If I post a job advert saying I will only hire a person who is over 6 feet tall, who is that discriminatory against? Women.
We don’t have to prove malice. If we can see that something has occurred and we can see that it has been used for the wrong purposes then that is it.
We don’t have to prove bias or the purpose, but if it exists that is enough.
Mayor of Westminster v London and North Western Railway Company [1905]
(Improper Purpose)
The mayor of Westminster had a power under the Public Health (London) Act 1891 to build public toilets. The mayor of Westminster, at the same time, wanted a subway station to be built in Westminster. So he used the money from the public toilets act to build toilets, but he built them underground, so he also used the money at the same time to build a subway – i.e., the entrance to the station, and so forth.
The London and North Western Railway Company didn’t like this because the steps leading to the toilets encroached upon the company’s land. They argued that the mayor effectively built the subway as well as a toilet, and this was an encroachment on their power – they did not have the power to do this.
But it was held to be lawful because its main purpose was still for building toilets. Even if there was a side effect – an improper effect, which was the building of the subway – it was still okay.
It is accepted that public authorities may sometimes have other motives for building something. But so long as the primary motive is still the proper purpose, a commonsense and reasonable approach must be taken to considering whether it is legal or illegal.
So, on the one hand you could contrast the Mayor of Westminster against the Porter v Magill, because in Porter v Magill the improper purpose had overridden the proper purpose. Whereas with this case the proper purpose was still the main purpose of the building project.
