Illegality

Question 1

Name what Lord Diplock said in the GCHQ case (1985) about judicial review.

Answer 1

‘Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, 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’. That is not to say that further development on a case by case basis may not in the course of time add further grounds […]
By ‘illegality’ as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, by those persons, the judges, by whom the judicial power of the state is exercisable.’
‘By ‘irrationality’ I mean what can now be succinctly referred to as ‘Wednesbury unreasonableness’. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and expertise should be well equipped to answer, or else there would be something badly wrong with our judicial system…. ‘Irrationality’ by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.
I have described the third head as ‘procedural impropriety’ rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice’

Question 2

What are the four sub topics of illegality?

Answer 2

1. Interpreting and applying the statute
2. Restraining Discretionary Power
3. Relevant and irrelevant considerations
4. Improper purpose

Question 3

What three things fall under interpreting and applying statute?

Answer 3

1. ultra vires
2. errors of law
3. law v fact

Question 4

What two cases are relevant to errors of law? Why

Answer 4

1. Anisminic Ltd v Foreign Compensation Commission (1969) - argued that all errors of law made by decision makers are in theory suitable for judicial review
2. Jones v First-tier Tribunal (2013) - If you classify everything as a legal question in the Anisminic style that means a question of fact (which should be for decision maker) are always subject to review.

Question 5

What two cases are relevant to law v fact?

Answer 5

1. R (A) v Croydon LBC (2009) - How do you define a child in need? The Supreme Court this is an objective question. Child – for the courts, definition of ‘in need’ – discretion of local authorities.
2. R (Ghai) v Newcastle City Council (2010) - The court said there needed to be a defining of the word ‘building’ which is not clear in the legislation – therefore, the court has a caution role to play. What Ghai suggested was not completed excluded therefore went back to local authority to resolve it.

Question 6

What four things fall under discretionary powers?

Answer 6

1. Self-created policy
2. Failure to exercise discretion
3. Unlawful sub-delegation
4. Acting under dictation

Question 7

Name three advantages of discretionary powers given to the Court.

Answer 7

1. Flexibility
2. Adjustment
3. Efficiency

Question 8

Name two disadvantages of discretionary powers given to the Court

Answer 8

1. Abuse of Power

2. Inconsistency

Question 9

Describe self-created policy.

Answer 9

Where Ministers create a policy to meet the discretion they have.

Question 10

What two cases are relevant for self-created policy?What two different types of situations were distinguished in R v Port of London Authority, ex p Kynoch (1919)? (under self-created policy). Which one do the Courts require a Minister to do?

Answer 10

1. R v Port of London Authority, ex p Kynoch (1919) - a. Refusal to acknowledge application at all and b. Have a particular policy but are always willing to listen to an application. This situation is necessary.
2. British Oxygen Co v Board of Trade (1971) - ‘The general rule is that anyone with a statutory discretion must not shut his ears to an application…There may be cases where the Board should listen to arguments against the policy…what it must not do is refuse to listen at all…a large authority may have had to deal already with many similar applications and then it will have evolved a policy so precise that it could be called a rule. There can be no objection to this, provided the authority is always willing to listen to anyone with something new to say.’

Question 11

Describe unlawful sub-delegation.

Answer 11

1. ‘delegatus non potest delegare’ principle – where a power is delegated it cannot be delegated further.
2. Carltona principle: expresses the idea that, in United Kingdom law, the acts of government departmental officials are synonymous with the actions of the minister in charge of that department.
3. The case law recognises that in some cases it is necessary for power to be delegated (for administrative convenience for example), however the Court may state it is up to the person who is explicitly given the power.

Question 12

What three cases are relevant for unlawful sub-delegation? Explain.

Answer 12

1. Ellis v Dubowski (1921) - delegated the power to another body.
2. Millis v London County Council (1925) - took recommendations from another, experieinced body but made the decision itself so was not unlawful delegation.
3. Re Neill (2009) - Chief Constable passed the power of dismissal very far down so was going against Parliament’s intention.

Question 13

What two cases are relevant for acting under diction?

Answer 13

1. H Lavender & Sons v Minister of Housing and Local Government (1970) - the minister of housing only said no because the minister of agriculture said no - this was not acceptable. However, this made the ministers more wise - see next.
2. Murphy (2004) - stated that the minister of health only advised the department, the final decision was ours.

Question 14

What is being taken into account when deciding whether a consideration is relevant or not? What case does this come from?

Answer 14

R v Somerset CC ex p Fewings (1995) -

1. mandatory factors - those which must be taken into account
2. prohibitory factors - those which must not be taken into account
3. Those factors which the decision-maker may have regard if, in his judgment, he thinks it is right to do so

Question 15

Name three cases which are relevant for relevant considerations. Explain.

Answer 15

1. Tesco Stores Ltd v SoS for the Environment (1995): ’It is for the courts, if the matter is brought before them, to decide what is a relevant consideration. If the decision maker wrongly takes the view that some consideration is not relevant and so has no regard to it, the decision cannot stand and he must be required to think again. But it is entirely for the decision maker to attribute to the relevant consideration such weight as he thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense.’
2. R (Venables) v SoS for Home Department (1998) - public opinion is irrelevant.
3. R (Shoesmith) v OFSTED (2011) - public confidence is important.

Question 16

How distinct are the three grounds of judicial review?

Answer 16

Both illegality and irrationality are substantive grounds which leads to a substantial overlap between these two, whereas procedural impropriety is a procedural ground. However, overlap does occur between all of them, as Lord Irvine LC said in Boddington v British Transport (1998) the categories are ‘not watertight compartments because the various grounds for judicial review run together. The exercise of power for an improper purpose may involve taking irrelevant considerations into account, or ignoring relevant considerations; and either may lead to an irrational result. The failure to grant a person affected by a decision a hearing, in breach of principles of procedural fairness, may result in a failure to take into account relevant considerations.’ Despite Lord Diplock’s attempt at classifying the grounds of review, it has been argued by Elliot and Thomas that this, nor any other attempts, have been wholly satisfactory. This is because the grounds of review, being nuanced and subtle, are not susceptible to being clearly summarised or exhaustively defined. They take shape in the context in which they are applied.

Question 17

Can we speak of the Westminster Parliament acting illegally?

Answer 17

Westminster Parliament’s obligations are self-imposed. Parliament has told the courts when they can intervene for Parliament’s legislation – The Human Rights Act 1998 and the European Communities Act 1972. Due to the principle of parliamentary sovereignty, Parliament cannot act illegally outside of these two statutes. However, in Jackson (2005) Lord Steyn stated that parliamentary sovereignty comes from the common law and judicial review will never be able to be abolished. He also suggested that the courts may review the validity of Westminster Parliament but only in the most extreme circumstances. However, Parliament cannot be said to act illegally under Diplock’s grounds of review.

Question 18

Can we speak of the Northern Ireland Assembly and the other devolved assemblies acting illegally? What case does this come from?

Answer 18

The Northern Ireland Assembly can be said to be acting illegally when they: legislate on reserved and excepted matters, breach EU law, breach the ECHR or discriminate. According to Axa (2011) it was held that on common law grounds the court will not rule out judicial review but will only use it very rarely because the courts must respect the Assembly’s authority. This applies to all the devolved governments. However, there has been no such example yet.

Question 19

Profile the case of Re McComb (2003)

Answer 19

Facts: McComb applied for a taxi driver’s licence from the Department of Environment. In his application form he disclosed that he had been convicted of conspiracy to cause explosions and had been sentenced to 30 years imprisonment, however, he had been released early under the terms of the Good Friday Agreement. McComb’s application was refused because of his conviction, stating that he was not a fit and proper person to hold a taxi driver’s licence. It is required that the fit and proper test must take into account all legal and relevant considerations. The decision to refuse the licence was upheld on appeal to the Recorder of Belfast (County Court), and this decision was challenged in the judicial review proceedings. The applicant argued that a distinction should be made between prisoners released under the Agreement and other prisoners and that the decision had failed to take into account the fact that his release from prison was contingent upon the Sentence Commissioners being satisfied that he would not be a ‘danger to the public’.
Issue(s): Did they take the relevant considerations into account?
Decision: The Court declared that the decision was wrong and must be retaken in light of the requirements of the ruling.
Reasoning: They did not take into account McComb’s release under the 1998 Act. Kerr J accepted that the ‘fit and proper’ test was different from the ‘danger to the public’ formulation but that the determination of the Sentence Commissioners was a relevant consideration that should have been taken into account. The judge moreover referred to the Belfast Agreement, which the Recorder had described as ‘aspirational only’. Citing Lord Hoffman’s comments in Robinson, Kerr J disagreed with the Recorder’s assessment of the importance of the Agreement and concluded that, ‘particular attention should be paid to the fact that a prisoner released under the terms of the Northern Ireland (Sentences) Act 1998 has been adjudged not to be a danger to the public’.

Question 20

Profile the case of Re De Brun and McGuinness’ Application (2001).

Answer 20

Facts: The Belfast Agreement established a North-South Ministerial Council to allow consultation and cooperation on matters of mutual interest between Northern Ireland and the Republic of Ireland. The First Minister (David Trimble) and deputy First Minister (Seamus Mallon) are required to make nominations to the North-South Ministerial Council. Mr Trimble declined to nominate both Ms de Brun and Mr McGuiness. The First Minister was of the view that “such an approach will be likely to persuade Sinn Fein to use any influence it may have to secure decommissioning of paramilitary arms in accordance with the Belfast Agreement”.
Issue(s): Was the First Minister acting ultra vires?
Decision: The Court declared the decision to be wrong and stated that the decision must be retaken with the relevant considerations.
Reasoning: The First Minister may not use his powers under section 52 of the 1998 Act to exert pressure on Sinn Fein in the manner that he has sought to do, since that is extraneous to the purpose of the section. I will therefore make a declaration that his refusal to nominate the applicants on the grounds stated by him is unlawful. In consequence, the First Minister will be required to perform his obligation under section 52. As I have already said, he must conscientiously seek to agree with the deputy First Minister nominations for the sectoral meetings which will meet the cross-community requirements of the section. It does not follow that he must nominate the applicants.He must have regard to the intention of the legislature and the provisions of the Agreement to the effect that, normally, the Minister with executive responsibility for the matters to be discussed at the meeting of the North-South Ministerial Council should be nominated but he is not bound to conclude that the applicants are the only possible nominees. In deciding upon the Ministers to be nominated, he must be guided by the requirements of the section and must focus upon the suitability of the candidate(s) rather than on any political objective (other than the fulfilment of the purpose of section 52) that he may wish to achieve. Subject to these constraints, he is at liberty to nominate Ministers who meet the requirements of section 52 and who are suitable to carry out the functions that are required of them in the Council.