Illegality

Question 1

How was illegality defined by Lord Diplock in GCHQ?

Answer 1

“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.

Question 2

What are the sub-categories of illegality?

Answer 2

True ultra vires
Errors of law
Errors of fact
Abuse of discretion (relevant and irrelevant considerations / improper purpose).
Retention of discretion (fettering / delegation).

Question 3

What is true ultra vires about?

Answer 3

Extent of the decision maker’s power should be restricted to what Parliament has set out in the legislation.

Question 4

ex p Leech?

Answer 4

prison rules permitting interception of letters to and from prisoners including legal correspondence could only be authorised by express words or necessary implication. The Prison Act 1952, by implication authorised some screening of correspondence but the rules were too wide in permitting all letters to be read.

Question 5

R v Lord Chancellor ex p Witham?

Answer 5

The administrative court invalidated the Chancellor’s secondary legislation which increased fees payable for issuing claims in court. The court decided his powers were outside those granted to him under the parent act.

Parliament could not have intended to legislate to restrict access to justice to such a degree.

Question 6

R (Public Law Project) v Lord Chancellor?

Answer 6

Local council were held to have acted beyond the scope of the legal aid, sentencing and punishment of offenders Act 2012 by introducing a 12-month residence qualification for all seeking to obtain civil legal aid through subordinate legislation.

Question 7

What did Lord Neuberger decide with regard to subordinate legislation in (Public Law Project)?

Answer 7

Subordinate Legislation will be held by a court invalid, if it has the effect, or is made for a purpose, which is ultra vires , outside the scope of the statutory power pursuant to which it was made. In declaring subordinate legislation invalid, the court is upholding the supremacy of Parliament over the Executive

Question 8

What is the distinction between jurisdictional and non-jurisdictional errors?

Answer 8

J = errors in relation to whether a public body has the legal authority to decide upon a matter.

NJ = public body makes a mistake about the nature of the powers it has.
BOTH are reviewable (Anisminic

Question 9

What was the error in Anisminic?

Answer 9

A non-jurisdictional error of law. The FCC had misunderstood the rules of compensation scheme as they thought they were supposed to check whether business had been sold on after it was originally nationalised by the Egyptian regime.

In reality they had to establish whether the business was British owned at the time of the nationalisation.

Question 10

What are the three exceptions which make an error of law not unlawful?

Answer 10

(ex p Page)

1. when error is not decisive.
2. where a special system of private rules apply.
3. where power granted is capable of broad interpretation.

Question 11

Give an example of category 3 exception from ex p Page (error of law that is not unlawful).

Answer 11

R v Monopolies Commission ex p SYT: substantial was not defined in the statute - therefore the DM’s powers involved discretion and the court should not get involved and substitute its own decision for the commissions.

Question 12

Give an example of a category 2 exception.

Answer 12

Re Racal Communications Ltd: where it is deemed that Parliament had expressly provided that the decision of a judge at first instance was to be final.

Question 13

What are the three sub-categories of errors in fact?

Answer 13

precedent fact: DM’s power to decide on a particular matter depends upon making an initial finding of fact.

no evidence fact: factual finding not supported by evidence.

established fact:

Question 14

White & Collins v Minister of Health?

Answer 14

CPO of any land other than, park, garden or leisure ground was permitted. Some parkland was CPO’d and therefore it was not lawful as it was a mistake as to precedent fact.
(if court did not have ability to review jurisdictional preconditions, minster could have acted without checks on his actions).

Question 15

R v SoSHD, ex parte Khawaja?

Answer 15

Mistake as to precedent fact: lawful to detain a person if they were ‘an illegal entrant’. Court could review the facts to ensure the person was an illegal entrant.

Question 16

No evidence fact case?

Answer 16

Coleen Properties v Minister of Health: CPO power was only to be exercised where land contained slum dwelling sea there was reasonably a need for the area to be redeveloped. Court quashed the decision as there was no material evidence to justify the need for redevelopment.

Question 17

SoS for Education v Tameside MBC?

Answer 17

Mistake of established fact.
Tories took over council and reversed policy of comprehensive education. Education secretary in london (labour) intervened using statutory powers to overrule the new council as he was concerned about the disruption of the last-minute change back to Grammar Schools on local children. He had not appreciated the nature of local professional educational advice or the strength of feeling for grammar schools to be retained.

Question 18

R c CICB, ex parte A

Answer 18

obiter comments that a mistake of fact could form the basis of a review.

Question 19

E v Home Secretary facts?

Answer 19

Home Secretary assumed that an Egyptian national’s ‘relatively minor involvement’ with a Muslim Brotherhood would not make him liable to persecution. This assumption turned out to be incorrect as there was a serious risk of detention and torture. Decision to remove Mr. E from Immigration Appeal was quashed.

Question 20

E v Homes Secretary principle?

Answer 20

For a mistake of fact to be deemed unlawful it must:
- be a mistake as to an existing fact.

• the fact / evidence must be established.
• the applicant must not be responsible for the mistake.
• the mistake must have played a material part in the decision made (though need not be conclusive).

Question 21

What was the ground in Roberts v Hopwood?

Answer 21

Not taking a relevant consideration into account.

Poplar increased minimum wages to employees but failed to consider the interest of local ratepayers.

Question 22

Gloucester County Council, ex parte Barry?

Answer 22

local authority’s consideration of their own resources is a relevant factor.

Question 23

What had the court failed to take into account in R v HS ex p Venables?

Answer 23

s 44(1) of the Children and Young Person’s act 1933 with stated the court must consider the welfare of the child. Tariff decision needed to be flexible and enable SoS to take into account progress of the child and his development.

implied relevant consideration was the age of the defendants.

Question 24

What had the court taken into account in Venables?

Answer 24

Media and public clamour (NB he would have been entitled to take into account informed public opinions of those informed by all the material facts.)

Question 25

What was wrong with the minister of Agriculture’s decision in Padfield v Minister of Agriculture?

Answer 25

He had abused his discretion by improper purpose as he had let political considerations influence his judgement (did not want to refer complaints on for fear of being embarrassed by an unfavourable report).

Express intention in guidance.

Question 26

What was the issue in Congreve v Home Office?

Answer 26

Several people bought their TV licenses in advance when the govt announced they were increasing the fee. The Home Office tried to use its statutory powers to revoke the new licenses but the purpose of the statute was to revoke licenses that had been breached, not merely purchased early.

Implied purpose of the act.

Question 27

What was the improper purpose in R (rights of women) v Lord Chancellor?

Answer 27

prescribing acceptable types of supporting evidence of domestic violence far too narrowly and excluding many women who ought to have been eligible was held to frustrate the statutory purpose of the Legal Aid Sentencing and Punishment of Offenders Act 2012.

Question 28

ex Brent LBC?

Answer 28

Can have a general policy in mind but must keep mind ‘ajar’ to the possible need to respond to individual circumstances if they arose.

Question 29

British Oxygen v Board of Trade?

Answer 29

May have a strict policy and not fetter discretion, provided it is clear that individual cases have been taken on their merits.

Question 30

ex p Collymore?

Answer 30

Policy on student grants was worded flexibly but had never resulted in an award despite 300 appeals against refusals. Courts need proof that discretion is being exercised.

Question 31

R (Luton BC) v SoS for Education?

Answer 31

SoS, in cancelling funding for a school building project was held to have fettered his discretion as he had not considered each case on its merits.

Question 32

R (Corner House Research) v Director of SFO?

Answer 32

The SFO’s director had exercised his discretion in deciding that national security interests (In not continuing the investigation) outweighed the public interest in pursuing the investigation. The House of Lords held that the SFO is entitled to a wide discretion, which can include choosing to defer to the govt’s view.

Question 33

What must be considered in fettering of discretion if the policy concerns human rights?

Answer 33

need for special care as it must comply with principle of proportionality.

(R v SoS for the Home Dept, ex parte P & Q. - policy of taking children of female prisoners into care aged 18 months should not have been applied to Q as the child had formed a strong bond with mother so need to prevent harm to child outweighed need for prison discipline).

Question 34

Can a decision maker delegate?

Answer 34

Lavender v Minister for Housing - minister for housing was not allowed to take advice from the minister of Agriculture when making a decision about planning permission.

Barnard v National Dock Labour Board (unlawful delegation of a local dock board giving powers to suspend dock workers to the port manager).

Question 35

What about the Carltona principle?

Answer 35

permitted for a Minister to delegate within his department as he still remained accountable to Parliament for the exercise of the power. This is even if the statute says ‘the minister shall….’

Question 36

What falls within the Carltona principle?

Answer 36

R v HS ex p Oladehinde: immigration inspectors can issue notices of intention to deport aliens.

R (Chief Constable of West Midlands Police) v Birmingham Justices: chief constable can discharge all but most important functions to subordinates.

Question 37

DPP v Haw?

Answer 37

office such as chief constable created by statute there is an implied power to delegate.

Subject to requirement that seniority of the official exercising a power should be of an appropriate level having regard to the nature of power in question.

Question 38

R (Bourgass) v SoS for Justice?

Answer 38

Carltona principle does not apply where statute makes clear the power must be exercised by the minister in person.

Question 39

No evidence fact?

Answer 39

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”.

Question 40

what is another delegation exception?

Answer 40

s. 101 Local Government Act 1971
Local authority can delegate decision making responsibilities to sub committees within councils

–> interests of efficiency.

Question 41

What is the general principle in fettering of discretion?

Answer 41

ex parte Fire Brigades Union

If DM given power they should not restrict it by refusing to exercise their discretion.

Question 42

What was the ground in Bromley LBC v GLC?

Answer 42

failure to observe mandatory considerations.
Fares fair policy of subsidised public transport in london. Ken Livingstone did not take into account the direction in LTA 1969 to run local transport economically and efficiently in line with ordinary business principles.