Illegality Flashcards
Datafin
Private bodies a governmental function (Datafin) Test Would a public body take its place? -> yes it’s a private body – public function - Amenability
Ex P percival
Regulatory bodies are preforming governmental functions - Amenability
Ex P aga Khan
Npt sporting regulations- Amenability
Ex P Wachman
Not religious associations - Amenability
O’Reilly v Mackman
The exclusive principle: you cannot assert a public law right against a public body with a private law action; the judicial review process exists to ensure that public bodies are protected
Fleet street cauals
Standing
To have standing in Judicial Review, you must be able to distinguish yourself from all others who can claim an interest. Must have sufficient interest
Ex P venebles
Standing occurs for individuals who are directly effected
Rees Mogg
Standing - Lord Rees Mogg, individual was not affected by EU’s acceptance into the EU
RE Bulger
Standing - Father of a son that died was not directly effected in the sentencing of his killer
Rose theatre
Incorporation does not increase standing; if no individual member has standing, the group will not have standing
Although a legal or financial interest is not required, not every person can enforce a public duty
Greenpeace
Standing - Reputation, expertise, membership size
World Development movement
group of standing o -> Importance of the issue: Merits, ROL at stake
Anisminic
No effect if not clear and precise, Ignore full ouster clause - Ouster Clause
Elloe
Partial that effect time limits allowed - Ouster Clause
AG v Fulham
Simple Illegality -> Decision maker acts outside the act
Westminister v London NW
Actions that are necessary, incidental does not count
Ex P Simms
Parliament can not legistlate inconsistent with Constitutional rights
Simms convicted or murder and claimed innocence. Received help from journalists and was interviewed on several occasions. Blanket ban by HS to use information from prisoners. Court held the ban to be unlawful
Witham
Excessively high fees an example of Ultra vires
AG v Fulham
Ultra vires
Does it “come within the four corners of the act”?
A local authority had the power to provide washhouses for residents to wash their clothes. This was held not to empower it to set up a laundry service in which residents paid employees of the authority to wash their clothes for them.
The court argued Fulham Corporation had acted ultra vires
Anisminic
Foundations used by decision maker are wrong
Page
not all errors of law are reviewable only those where decision maker makes mistake as to the nature of his decision making
South Yorkshire transport
When power granted is capable of wide interpretation - Error of Law
Ex P Khawaja
Precedent fact:
The minister- home secretary had the power to deport illegal immigrants- they had to get the fact they were an illegal immigrant right
Precedent fact is something you need to get right FIRST before you make a decision
Facts which are process led as the next part of the decision depends on getting the fact right
Coleen Properties
No evidence:
Tower Hamlets were clearing some land
Coleen Properties owned a property on that street
Marked for destruction even though it was a perfectly good property
Surveyors said that is in good condition
Tower hamlets said it is on a couple of bad streets- we are clearing it
They had no evidence for their decision- that was a breach
They could not exercise their decision because they hadn’t shown evidence for their decision
Mistake of an established fact
R v CICB
Ex P Fewings
Improper purpose -> Power granted by the statute must use the purpose intended by the statute. Examples of improper purpose in the cases- a. Using power to enforce ethical views (Ex P Fewings)
Padfield v MoA
Refusing to exercise a discretionary power
Congreve
Revocation of TV licensces to those who had purchased them early
Bromley LBC v Greater London Counc
Subsidizing transport with council money
Fire Brigaides UnioN
Retention (Fettering) of discretion -> Must not fetter his discretion by refusing to exercise it
a. Amount to a blanket ban (R v NW Lancashire)
Be too inflexible thuse keep mind Ajar (Ex P Brent
examples of fettring of discression
Luton BC: Cases must be considered on an individual basis
British oxygen: must be evdidence of eventuality
Collymore: Policy must be enforced genuinely and with due consideration for each application
Lavender
Authority can not be delegated
Cartona Principle
unless it happens I the ministers own dept
Doody
Where fundamental issue is at stake not below Jr Minister
DPP v Shaw
Where delegation is implied or authorized by statute
Ex P fewings
Where delegation is implied or authorized by statute
Examples of Relevant and irrelevant consideration
o Roberts v Hopwood: Failure to consider the effects of increasing public sector workers wages on taxpayer rather than considering the social implications
o Bromley v GLC: Authprity did not take relevant consideration of ordinary buisness principles
o Venebles: Home secretary took public clamour into account, which was a irrelevant consideration
o Barry: resouces available to a decision-maker can be relevant
