Illegality and unreasonableness

Question 1

What are the three types of error of fact that are susceptible to judicial review?

Answer 1

The three types of error of fact that are susceptible to judicial review are precedent facts, no evidence for a fact, and ignorance or mistake of an established fact.

Question 2

What was the significance of the case R (Rogers) v Swindon NHS Primacy Care Trust & Secretary of State for Heath [2006] EWCA Civ 392?

Answer 2

The case was important as it dealt with the availability of breast cancer treatment on the NHS. The applicant successfully argued that the policy adopted by Swindon PCT was irrational because it provided funding for some women in the eligible group and not others, based on exceptional circumstances.

Question 3

What was the outcome of the case Roberts v Hopwood [1925] AC 578?

Answer 3

In the case of Roberts v Hopwood [1925] AC 578, the House of Lords held that a local authority had failed to consider a relevant factor when increasing wages for its low-wage workers above the market rate. Despite the local authority’s desire to better the workers’ conditions, the court deemed that it had not taken into account the interests of ratepayers, which the court considered to be a relevant factor as well.

Question 4

What is the purpose of the ground of review called ‘illegality’?

Answer 4

The ground of review called ‘illegality’ is designed to ensure that the exercise of power is confined within the limits given to the Executive, which are normally prescribed by the governing legislation.

Question 5

What is the Carltona principle and why was it established?

Answer 5

Government ministers, and some other public office holders, are permitted to delegate their discretion to sufficiently senior officials within their own departments, so long as accountability remains with the minister or the office holder who has the statutory power

Question 6

What is a precedent fact and how does it relate to judicial review?

Answer 6

A precedent fact is an initial finding of fact that determines the decision-maker’s power. It relates to judicial review because if a decision-maker’s power to decide on a particular matter depends on making an initial finding of fact, the court can review the decision based on that factual issue.

Question 7

What are the sub-categories of illegality?

Answer 7

The sub-categories of illegality include simple illegality (ultra vires), errors of law, errors of fact, abuse of discretion, and retention of discretion.

Question 8

What is the difference between ‘simple illegality’ and ‘errors of law’?

Answer 8

Simple illegality refers to a decision that goes beyond the boundaries of legal power given to the body concerned. Errors of law involve the decision-maker making a mistake regarding a question of law, such as misinterpreting the meaning of words in a legislative provision.

Question 9

What is the ‘no evidence rule’ in relation to errors of fact?

Answer 9

The ‘no evidence rule’ refers to a situation where a finding of fact, on which a decision is based, is supported by no evidence at all. If this occurs, the courts have the authority to overturn the decision.

Question 10

What is the concept of ‘improper purpose’ in decision-making?

Answer 10

The concept of ‘improper purpose’ in decision-making refers to the idea that a decision-maker should only use a power given to them by Parliament for the purpose for which it was given. If a decision-maker uses their powers for a different purpose, it is considered illegal.

Question 11

What are the sub-classes of unreasonableness in the context of the Wednesbury test?

Answer 11

The sub-classes of unreasonableness in the context of the Wednesbury test are: material defects in the decision-making process, oppressive decisions, decisions that violate constitutional principles, and decisions that are inconsistent or uncertain.

Question 12

What is the significance of ignorance or mistake of an established fact in judicial review?

Answer 12

Ignorance or mistake of an established fact can be a ground for judicial review if it has affected the evaluation of a decision. It must have given rise to unfairness and played a material part in the tribunal’s reasoning.

Question 13

What are the main classes or areas of unreasonableness identified by the courts in the context of judicial review?

Answer 13

The main classes or areas of unreasonableness identified by the courts in the context of judicial review are: (A) Material defects in the decision-making process, which can include wrongly weighing up relevant factors and failure to provide a comprehensive chain of reasoning; (B) Oppressive decisions; and (C) Decisions that violate constitutional principles. It is important to note that there may be overlap between these classes in practice.

Question 14

What is the Wednesbury unreasonableness test and how did it originate?

Answer 14

The Wednesbury unreasonableness test is a ground of challenge in judicial review that focuses on whether a public body has acted unreasonably. The test gets its name from the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680. Under this test, if a decision is so unreasonable that no reasonable authority could have come to it, the courts can interfere. The test examines whether the decision is one that a reasonable authority could reach.

Question 15

What is the four-part test for a finding of unfairness in relation to ignorance or mistake of an established fact?

Answer 15

The four-part test for a finding of unfairness in relation to ignorance or mistake of an established fact includes: (1) there must have been a mistake as to an existing fact, (2) the fact or evidence must have been established and objectively verifiable, (3) the appellant or their advisors must not have been responsible for the mistake, and (4) the mistake must have played a material part in the tribunal’s reasoning.

Question 16

What are the exceptions to the reviewability of errors of law?

Answer 16

The exceptions to the reviewability of errors of law include cases where the error of law is not decisive to the decision, where the decision-maker is interpreting some special system of rules, and where Parliament has expressly provided that the decision of a judge at first instance is final. Additionally, superior courts, such as the High Court, will not entertain an application for judicial review of a superior court for error of law.

Question 17

What is abuse of discretion in relation to judicial review?

Answer 17

Abuse of discretion refers to a decision-maker misusing their statutory power by failing to take a relevant consideration into account, taking an irrelevant consideration into account, or using the power for an improper purpose.

Question 18

What was the outcome of the case R v Barnsley MBC, ex parte Hook [1976] 3 All ER 452?

Answer 18

In the case, the decision of a local authority to remove Hook’s market trading license because he had urinated in a side street after the market had closed was quashed. The decision was deemed excessive and had a disproportionate impact on the claimant and his livelihood. The House of Lords also found the decision to be ‘Wednesbury unreasonable’, although it was not necessarily illogical or immoral.

Question 19

What is the concept of ‘fettering of discretion’ in decision-making?

Answer 19

The concept of ‘fettering of discretion’ in decision-making refers to when a public body acts in a way that hampers its own ability to properly exercise a discretionary power. This can occur when a public body decides not to consider exercising a power at all or when it adopts rigid or blanket policies that decide the outcome of a particular case in advance.

Question 20

What are some examples of material defects in the decision-making process that can lead to unreasonableness?

Answer 20

Material defects in the decision-making process that can lead to unreasonableness include wrongly weighing up relevant factors and failure to provide a comprehensive chain of reasoning. For example, in the case of West Glamorgan CC v Rafferty [1987] 1 All ER 1005, the local authority placed more weight on the delay in reclaiming land than on the effects of eviction on the travellers and the impact on others affected by trespassing. This was found to be unreasonable.

Question 21

What was the decision in the case R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 1 AC 513?

Answer 21

In the case of R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 1 AC 513, the Home Secretary had fettered his own discretion by refusing to consider whether to bring into force the statutory criminal injuries compensation enacted in the Criminal Justice Act 1988. The House of Lords held that the Home Secretary had a continuing obligation or discretion to consider bringing it into force and could not bind himself not to exercise that discretion.

Question 22

What are the qualifications to the general principle that all errors of law are potentially reviewable?

Answer 22

The qualifications to the general principle that all errors of law are potentially reviewable include cases where the error of law is not decisive to the decision, where the decision-maker is interpreting some special system of rules, and where Parliament has expressly provided that the decision of a judge at first instance is final. Additionally, superior courts, such as the High Court, will not entertain an application for judicial review of a superior court for error of law.

Question 23

What are the three categories of considerations that decision-makers may have in relation to retention of discretion?

Answer 23

The three categories of considerations that decision-makers may have are: (1) considerations clearly identified by the statute as mandatory factors, (2) considerations clearly identified by the statute as prohibitory factors, and (3) discretionary factors that decision-makers can choose to take into account themselves.

Question 24

What is the concept of ‘decisiveness’ in relation to errors of law?

Answer 24

In relation to errors of law, ‘decisiveness’ refers to whether the error concerned would have made a difference to the decision. If the error of law is not decisive, it may not be reviewable.

Question 25

What is the significance of the implied purpose in decision-making?

Answer 25

In decision-making, the courts may imply a purpose by construing the statute as a whole. While some statutes clearly indicate their purpose, in many situations, the courts have to interpret the statute to determine its purpose. For example, in Congreve v Home Office [1976] QB 629, the implied purpose of the power to revoke television licenses was not to raise revenue but to ensure that licenses were not wrongfully used or obtained.

Question 26

What is the margin of appreciation in relation to retention of discretion?

Answer 26

The margin of appreciation refers to the decision-maker’s freedom to decide which considerations should play a part in their reasoning process. As long as the decision-maker has taken other relevant and appropriate considerations into account, it is not unlawful for them to address discretionary factors.

Question 27

What are the consequences of failing to take into account mandatory or prohibitory factors in decision-making?

Answer 27

Failing to take into account mandatory factors or taking into account prohibitory factors in decision-making is considered unlawful. Decision-makers are required to comply properly with the statutory duties given to them by Parliament.

Question 28

How has the original Wednesbury standard been modified by the judiciary?

Answer 28

The original Wednesbury standard, which set a high threshold for unreasonableness, has been modified in some situations by the judiciary. This demonstrates how the common law can respond and evolve to protect rights and other fundamental interests. The courts have recognized the need to protect rights and have responded by allowing a lower threshold for unreasonableness in cases involving fundamental or human rights.

Question 29

What is the Wednesbury standard and how does it apply to decisions relating to social and economic policy?

Answer 29

The Wednesbury standard refers to a very high threshold for reviewing decisions relating to social and economic policy. Courts give a higher degree of deference to decision-makers in such circumstances, applying a lower intensity of review. This means that the original Wednesbury standard continues to apply in this area.

Question 30

What factors determine whether the courts will intervene in decisions relating to social and economic policy?

Answer 30

The courts are generally reluctant to review decisions relating to social and economic policy and give a higher degree of deference to decision-makers in such cases. However, the courts may intervene in fairly exceptional circumstances or if it is established that the decision-maker has abused their power. The courts consider matters of social and economic policy to be political judgments for the decision-maker and the House of Commons, not for the judges.

Question 31

Under what circumstances are the courts more willing to exercise a more intense degree of scrutiny when assessing the reasonableness of a decision?

Answer 31

The courts are increasingly willing to exercise a more intense degree of scrutiny when assessing the reasonableness of a decision in circumstances involving fundamental or human rights. This heightened standard of review became known as ‘sub-Wednesbury’. The courts recognize that the most fundamental of all human rights is the individual’s right to life, and decisions that may put an applicant’s life at risk call for the most anxious scrutiny.

Question 32

Exceptions to reviewability of errors of law?

Answer 32

Where the error of law is not decisive to the decision.
Where the power granted is so imprecise that it is capable of being interpreted in a wide range of different ways, the courts will not necessarily quash a decision just because they would have come to a different view from that of the decision-maker on what the law requires.
hey may also be unwilling to review a decision made by an inferior court on the basis of an error of law where Parliament had expressly provided that the decision of a judge at first instance was to be final. They will also not entertain an application for judicial review of a superior court, such as the High Court, for error of law (see Re Racal Communications Ltd [1981] AC 374).

Question 33

There are three types of error of fact which are susceptible to judicial review?

Answer 33

• Precedent Facts
• No evidence for a Fact
• Ignorance or Mistake of an Established Fact

Question 34

Whichone of the following statements is incorrect?

In Attorney General v Fulham Corporation the court held that the local authority had acted ultra vires when it used a power, allowing it to establish washhouses for residents to do their laundry, to instead provide a service where residents paid the local authority to do the laundry for them.

A public body will have acted ultra vires where it used a power to do something that was not authorised by that power, unless it can be shown that the action in question was reasonably ancillary to the power.

In the case of ex parte Witham, the court was satisfied that the court fee was lawful, as there was a clear power in the relevant statutory instrument, allowing the Lord Chancellor to increase court fees as he saw fit.

The principle of legality can be seen as an extension of the ultra vires principle.

The courts have described a public body acting beyond the boundaries of its statutory powers as acting ‘outside the four corners of the Act’.

Answer 34

In the case of ex parte Witham, the court was satisfied that the court fee was lawful, as there was a clear power in the relevant statutory instrument, allowing the Lord Chancellor to increase court fees as he saw fit.

Correct. This summary of the case is not accurate. The court held that the Lord Chancellor’s power had to be interpreted in the light of the constitutional right of citizens to access the courts and therefore that the Lord Chancellor had exceeded his powers when increasing the court fee.

Question 35

What is the proportionality standard?

Answer 35

The proportionality standard provides that a public law action or decision must be carried out in a way that is no more than is necessary to achieve the cited legitimate aim.

Question 36

‘super-Wednesbury’ review?

Answer 36

to denote areas of policy decision-making which are deemed to be political and not within the proper ambit for judicial review, other than in fairly exceptional circumstances.
The question before the court was whether it could intervene to quash the Environment Secretary’s guidance to local authorities, setting public spending limits. It was alleged that the Secretary of State had acted unreasonably. This guidance had been approved by a resolution of Parliament, however, and so was seen by the court to have had the ‘seal of democratic approval’. Lord Scarman said:
‘Unless and until a statute provides otherwise, or it is established that the Secretary of State has abused his power, these are matters of political judgement for him and for the House of Commons. They are not for the judges.’

Question 37

When will the proportionality approach be used?

Answer 37

When human rights and fundamental rights are involved

Question 38

When can fettering of discretion occur?

Answer 38

(a) acting under the dictation of another (Public authorities cannot act under the dictation of another person or body.); or
(b) applying a general policy as to the exercise of discretion in too strict a manner.