Illegality Flashcards
Illegality (types)
1 simple illegality
2 errors of law - misrepresenting the law
3 errors of fact
4 relevant and irrelevant considerations
5 abuse o discretion - improper purpose
6 retention of discretion - fettering of discretion (свобода действий)
7 unlawful delegation of discretion
errors of fact
- precedent facts
- no evidence for a fact
- ignorance/mistake of an established fact
simple illegality - ultra vires (cases)
Westminster Corp v London & North West Railway AG v Fulham exp Leech (no2) - constitutional rights ex p Witham - constitutional rights
errors of law - misrepresenting fact (cases)
Anisminic v FCC
exp Page
exp South Yourkshire Transport (limitation on principle)
Limitation on errors of law
- where error of law isn’t decisive to the decision, i.e. but for the error concerned, the decision would have been different
- where the d-m is interpreting some special system of rules, courts are often unwilling to intervene
- where the power granted is so impresice that it is capable of being interpreted in a wide range of different ways. the courts won’t always quash the decision just because they would have come to a different view on what the law requires from that of d-m (exp South Yourkshire Transport)
errors of law - misrepresenting fact
when decision maker makes a mistake regarding question of law
errors of fact
- precedent facts
- no evidence for a fact
- ignorance or mistake of an established fact
discretion
errors of fact: precedent facts +cases
where power to decide depends upon making an initial finding of fact
White&Collins v Minister of Health
exp Khawaja
errors of fact: no evidence for a fact +case
а finding of fact is supported by no evidence at all
Coleen Properties vMonister of Health and Local Government
errors of fact: ignorance or mistake of an established fact (cases)
SS for Education v Tameside MBC
(In the Tameside area, local concil took decision to bring with scheme all schools under a comprehensive umbrella where every child would be let in and not selected like in Grammar schools. SS halt the introduction of grammar schools, as he had believe that re-introduction would led to a chaos.
Issue: Whether SS decision that it would lead to educational chaos can be challenged. Lord Wilberforce: ‘The statue has been framed, ‘if SS satisfied’. This decision must be made on basis of certain facts, and while that is for SS, seeing whether those relevant facts are present and taken into account is job for court.
Held: SS fundamentally misdirected himself, proposed actions of new council not unreasonable (makes sense, because they agreed to partly implement new scheme but in more phased a manner).
E v SSHD
(mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law. Although no precise code could be laid down, the ordinary requirements for a finding of unfairness were:
1) that there had been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter;
2) the fact or evidence had to have been ‘established’ in the sense that it was uncontentious and objectively verifiable; 3) the appellant, or his advisers, had not to have been responsible for the mistake;
4) the mistake had to have played a material, although not necessarily decisive, part in the tribunal’s reasoning.
Relevant and irrelevant considerations (cases)
ex p Fewings - dec to ban stag hunting was unlawful
*factors which must be taken ino account (were ignored)
* factors which must not be taken into account (these were considered)
* factors which may be regarded (PA has a degree of discretion)
Roberts v Hopwod - local authority failed to consider relevant factorwhen increasing wages for its low-wage workers above the market rate.
ex p Venables
abuse o discretion - improper purpose
dec maker ought only use a power iven to it by P. for the purpose of for which it was given the power
ex p Fewings - purpose of the power to control land wasn’t to enforce the ethical/political concerns of the local councillors
Padfield v Minister of Agriculture - minister refused to refer a complaint to a committee of investigation, because he believed he could be embarrassed by an unfavorable report. The court held that this decision was unlawful. it was an exercised discretion for wrong/improper purpose
Congreve v HO - implied purpose of the power to revoke TV license wasn’t to raise revenue but to ensure that such licenses were not wrongfully used or obtained.
retention of discretion - fettering the discretion
if given discretion dec maker must exercise that discretion and fetter themselves
ex p Fire Brigades Union - HS has fettered its discretion by refusing to consider whether to bring statutory criminal injuries compensation scheme into force
ex p Brent LBC - court won’t allow dec maker to adopt rigid or blanket policy by fettering discretion
ex p Collymore - unlawful fettering of discretion . policy on student’s grants though worded flexibly had never in fact resulted in award
unlawful delegation of discretion
discretion isn’t normally allowed to delegate.
Barnard v National Dock Labour Board - def delegated his functions to local dock boards (under the law), the latter delegated to the port manager who fired the workers. this delegation was unlawfull
Lavender v Min of Housing& Local Government - min heard objections of Min of Agriculture and refused L’s application for planning permission to develop land. it was unlawful delegation to min of Agriculture
unlawful delegation of discretion: The Carltona principle
where the decision is conferred on a minister, the courts will presume, in the absence of evidence to the contrary, that the minister is allowed to delegate discretion to officials ithin his department - even though the statute doesn’t expressly say so. (Carltona v Commissioners of Works)
ex p Oladehinde hether the SS had the power to delegate to Immigration Inspectors the power to issue a notice of intention to deport aliens. Held: as Immigration Inspectors are civil servants they come under the Carltona principle and therefore their had been lawful delegation by the Minister
