Illegality Flashcards
GCHQ
The decision maker must understand correctly the law that regulates his decision making power and give effect to it (Diplock)
AG v Fulham Corporation
Ultra vires - ‘outside the four corners of the Act’
Westminster Corporation v L&NW Railway
Implied statutory authority if action is necessary or consequential to the exercise of statutory authority
Ex parte Leech
Interference with a constitutional fundamental right has to be expressly and unambiguously stated in the statute
Ex parte Simms
Interference with freedom of expression has to be unambiguously expressed by Statute
Ex parte Witham
Interference with access to justice has to be unambiguously expressed by Statute
Anufrijeva
Interpretation of Statute to give effect to fundamental rights - could only end entitlement once claimant was informed of decisions
Ahmed
Freezing assets not authorised in the United Nations Act
Anisminic
Error of law - incorrectly interpreted compensation scheme it was administering
Ex parte Page
All errors of law are theoretically reviewable
Courts will not intervene if special system of private rules
Ex p South Yorkshire Transport
Will not review decisions if power is capable of broad interpretation, only if irrational
White & Collins
Failed to establish precedent fact - park land was not subject to CPO
Ex p. Khawaja
Must determine illegality of entrance before detention
Coleen Properties
No factual basis for clearing order decided on basis
Mahon v Air New Zealand
Finding of fact must be based upon some material that tends logically to show the existence of facts consistent with the finding
Tameside MBC
Obiter - mistake of established fact could be judicially reviewed
CICB, ex parte A
Mistake as to established fact was judicially reviewable
E v SoS Home Department
1) Mistake as to existing fact
2) Fact must be established
3) Applicant not responsible for mistake
4) Mistake need not play a decisive role, just material role
Ex parte Fewings
Improper purpose - morality not purpose of statute
Three types of considerations
1) Mandatory - must be taken into account
2) Prohibitory - must not be taken into account
3) Discretionary - must be exercised lawfully
Must have regard to all relevant considerations (including discretionary)
Roberts v Hopwood
Poplar BC had not considered views of rate payers in increasing minimum wage
Ex parte Barry
Local authority’s consideration of their own resources was a relevant factor
CICB ex parte P
Court is ill-equipped to deal with competing claims on public purse
Ex parte Tandy
Resources will not always be considered relevant - overlap with unreasonableness (weighting of considerations)
Bromley LBC v GLC
Increase in rates was an irrelevant consideration
Ex parte Venables and Thompson
Public revulsion was an irrelevant consideration
HS needed to act judiciously - needed to consider potential for rehabilitation
Padfield v Minister for Agriculture
Improper purpose - used statutory powers of discretion to protect himself from complaints
Congreve v Home Office
Revocation of licences was improper use of statute to gain more money
Miranda
Stopping and searching journalist to access material was improper use of Terrorism Act
Ex parte Brent LBC
Decision makers may have strict policies but must keep their minds ‘ajar’ to exceptional circumstances
British Oxygen v Board of Trade
Strict policies are allowed as long as they are not applied strictly and individual cases are decided on their own merits
Ex parte Collymore
Flexibly worded policy was applied to strictly as to fetter the decision maker’s discretion
Court will not automatically accept that the decision maker has not shut its ears to the application
Ex parte Fire Brigade’s Union
HS could not implement a stricter policy on compensation against the intention of Parliament
Ex parte A, D and G
Strict application of policy regarding gender reassignment surgery
Corner House Research
Decision maker must retain their discretion unless only course available
Ex parte P and ex parte Q
Where a policy interferes with HR - must be flexible
Barnard v National Dock Labour Board
Decision maker cannot delegate their power
Lavender v Ministry of Housing
Governmental departments must not delegate to one another - messes up accountability
Carltona Principle
May delegate within governmental department, unless expressly prohibited by statute
Ex parte Olahinde
Fundamental issues (sentencing, deportation) should not be delegated below level of junior minister
West Midlands Police
Extended Carltona principle to office holders (e.g. police)
DPP v Haw
Carltona Principle must be exercised in regard to the seriousness of the decision and the seniority of the delegate
Bourgass
Overriding importance of political and legal accountability - decision by prison authorities to solitarily confine inmates unlawful due to insufficient link to ministry to ensure sufficient degree of responsibility and accountability
