ILLEGALITY Flashcards
Illegality was defined as a substantial ground in what case and by whom?
GCHQ: Lord DIPLOCK: ‘by illegality i mean that the decision-maker must understand correctly the law that regulates his decision-making powers and must give effect to it’.
What are the grounds for which a decision may breach per illegality?
- SIMPLE ILLEGALITY.
- ERROR OF LAW.
- ERROR OF FACT.
- IRRELEVANT CONSIDERATION.
- IMPROPER USE OF DISCRETION: fettering, delegating or improper purpose.
Simple illegality is commonly known as what?
Acting ultra vires: AG v FULHAM.
Will not breach is reasonably consequent of power: WESTMNSTER v NW RAIL.
What is an error of law?
Misinterpreting or misreading a statute that grants legal powers.
When is an error of law reviewable?
ANISMINIC; need not be at the heart of the decision.
PAGE: all errors reviewable but not if completely not decisive to the decision, if it involves a special system of rules, OR:
as in EXP YORK TRANSPORT: there is possibly a broad interpretation of powers: ‘substantial’ for instance, and a minister is at liberty to interpret as they wish.
What types of fact can an error be made of?
- PRECEDENT FACTS: facts required to make the decision; KHWAJA: must know an immigrant is there illegally before deporting/ WHITE v COLLINS: land to be brought not parkland.
- EVIDENTIAL FACTS: COLEEN PROPERTIES: no evidence to say ‘fit’ for demolition, TAMESIDE: grammar schools.
developed into:
- MISTAKE/IGNORANCE OF ESTABLISHED FACT: E v SOS.
Mistake/ignorance as to an established fact was elaborated on by Lord CARNWORTH in which case?
E v SOS H/D: they are mistakes of fact giving rise to unfairness. They are reviewable if satisfy four criteria:
- Mistake of an existing fact (not the possibility that the factual circumstances may alter).
- The fact must be able to be objectively established: uncontentious and verifiable.
- The mistake must not be at all the fault of the applicant.
- It must have played a material role in the decision.
e. g. R v CICB exp A: not using medical evidence for rate of medical compensation.
Exp FEWINGS categorises types of consideration into what?
Prohibitory, Mandatory and Discretionary.
If only use discretionary it may be unlawful.
In exp VENABLES there was judicial dispute as to the home secretary taking into account the discretionary consideration of public opinion; what did each judge think?
GOFF, HOPE & STEYN: public opinion is irrelevant.
B-W & lloyd: disagreed, even judges look at it.
B-W & WOOLF: he should have looked at other factors as well; rehabilitation/development.
Are resources relevant consideration?
R v GLOUCESTER CC: yes.
But not always: R v EAST SUSSEX.
When looking at improper use of discretion, what should first be considered?
The express intention of parliament during drafting: PADFIELD.
When will discretion be considered fettered?
BRENT: if there is a rigid policy that prevents or restricts is exercisability.
BRITISH OXYGEN v BOT: decision makers should not limit their discretion by not exercising broadly.
COLLYMORE: no policy but would here applications; all 300 rejected.
R v NW LANCASHIRE HA: blanket bans breach.
If involves a HR breach, may increase chance of success: R v sshd EXP Q.
When is delegation unlawful?
General rule: LAVENDER v MOH & LC: power should be exercised by those it is given to.
BARNARD v NDLB; cannot delegate.
However: CARLTONA: can remain within the department if practically necessary.
BUT: DOODY: limits carltona: cannot be below a junior minister if concerns a persons fundamental rights.
When is discretion considered to have been used for ‘an improper purpose’?
If there is an ulterior motive for the decision:
PADFIELD v MO AGRICULTURE: afraid of bad publicity.
EXP WHEELER: banned rugby grounds because some members had gone to south africa during apartheid.
CONGREVE: tv licenses.
