Irrationality/Abuse of Discretionary Powers

Question 1

What is included under irrationality?

Answer 1

• Delegation/Dictation
• Fettering of discretion
• Legitimate Expectations
• Improper purpose/irrelevant considerations
• Wednesbury/proportionality

Question 2

What is the rule against delegation?

Answer 2

If a statute gives a public agency power to exercise discretion then the public agency must not delegate this power - Robert Walker, J. in Ealing LBC v Audit Commission [2005]

Question 3

What is the Carltona Principle?

Carltona v Commissioner of Works [1943]

Answer 3

Delegation within departments is acceptable.

Civil servants can act on behalf of ministers as v busy.
Requisition of factory for war effort.

Question 4

ex parte Olahinde [1991]

Answer 4

Decision on deportation taken by mid-ranking officer in immigration dept not the SoS for Home Dept.
Allowed - not practical for SoS to take all decisions.

Question 5

Cinema case that shows rule against delegation

Answer 5

Ellis v Dubowski [1921]
LA had power to licence showing of films, said no licence unless approval from BBFC.
Actions delegated to BBFC.

Question 6

Case showing limits of rule against delegation

Answer 6

Mills v LEC [1925]
Film lacks approval of BBFC. LA approach is no showing unless approval of BBFC OR express approval of London City Council.
This okay - BBFC didn’t have final arrangement.

Question 7

It is unlawful to make a decision conditional on another’s approval. (Dictation).

Answer 7

Lavender v Minister of Housing and Local Government [1970]
Planning permission to use quarry for gravel. Min for Agriculture opposed. Min of Housing to decide on it but won’t allow if Min of Agr opposed (but nothing to do with it!)

Question 8

The non-fettering principle

Answer 8

You may adopt guidelines/policies but not rigid rules that fetter the exercise of discretion.
Where prepared to alter in exceptional circumstances this is seen as acceptable and as policy.

Question 9

It is okay for large departments to develop a precise policy as long as the authority is always willing to listen and to make exceptions if appropriate. (Fettered discretion)

Answer 9

British Oxygen Co Ltd v Minister of Technology [1971]
Minister’s resolve to make no machinery grants for cost of less than £25 lawful when denied BO the grant spending £4mil on £20 cylinders.
Have to listen to people’s application so that you can make an exception to policy or change it if a bad one.

Question 10

As long as allow for exceptional circumstances a policy will not be seen as rigid by HoL. (Fettered discretion).

Answer 10

Findlay v SoS for the Home Dept. [1984]
Change of parole policy for serious offenders - only a few months before release. Certain murderers 20yrs, subject to exceptional circumstances.
HoL held that not rigid policy.

Question 11

Example of improper use of power - dishing out penalties for TV licence

Answer 11

Congreve v Home Office [1976]
Increase in price of TV licence, cheaper to buy new licence before old one expired. Home Office threatened revocation unless extra paid. Improper use of power. Power to fine normally explicit in legislation.

Question 12

ex parte Fewings [1995]

Answer 12

Local gov act empowers council to acquire land for purposes incl. “the benefit, improvement or development of their area”. Somerset banned deer hunting on their land.
Issue: any action taken by LAs must be positive law i.e. for benefit, improvement of area.
Majority decided that unlawful - too much weight on ethical considerations without relating to benefit rather than test of positive law.

Question 13

Unlawful for decision maker to automatically adopt someone else’s view (Dictation)

Answer 13

High v Billings (1903)

Question 14

Irrelevant considerations case: statutory power could only be used to promote economically sound development.

Answer 14

ex parte World Development Movement [1995]
Foreign secretary power to promote the development/maintaining of an overseas country.
Financial assistance offered to Malaysia for construction of Pergau Dam (part of deal for purchase of fighters from M by PMs).
Proposed to proceed with aid despite a report concluding that project economically in-viable.
Past practice in dept. had always encouraged sound economic development.

Question 15

Irrelevant considerations: the Home Secretary, when controlling murder sentences, could not treat children the same as adults nor take into account public views.

Answer 15

ex parte Venables.
James Bulger murderers - age 10. Given indefinite sentence. Judge recommended 10 yrs, Home Secretary increased to 15.
Took account of the policy applied to adults and petitions from the public.
Majority decided this was unlawful - there is a distinction and acting in judicial capacity.

Question 16

The Wednesbury Test of Irrationality

Answer 16

“if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it”

Lord Greene

Question 17

Problems with the Wednesbury Test

Answer 17

It’s a statement of conclusion, not a test - doesn’t tell what to look for.
Produces unpredictable outcomes
No framework for analysis - don’t know how to apply
Doesn’t deal with intensity of review - ex parte Smith, greater intensity of review in HR cases.

Question 18

Facts of Wednesbury

Answer 18

Imposed condition of no children in cinema on Sunday under 15. Context of 1940s.

Question 19

Armed forces policy that cannot join if homosexual defended by CoA as not irrational!

Answer 19

ex parte Smith [1996]
Challenged rationality of policy - illustrated other forces in the world do not do that. HRA issue - private life.
Goes to ECtHR who deem a HRA issue and deem Wednesbury scrutiny not sufficient.
In ECtHR test of proportionality used for HR issues but in UK use Wednesbury and irrationality is a v high barrier.

Question 20

Wheeler v Leicester City Council [1985] - unreasonableness.

Answer 20

English Rugby Union tour to South Africa (apartheid) ft some of Tigers players.
Council has statutory duty to promote good race relations - asks Tigers to issue statement condemning participation. Not issued.
Council stops club from using training pitch in response.
Held to be unreasonable by the court.

Question 21

New school of thought for Wednesbury unreasonableness - irrational on basis that flawed logic.
Debate about 5th London airport.

Answer 21

Medway Council [2002]
Debate over 5th London airport v another runway at Heathrow.
Gatwick excluded due to agreement with local council that wouldn’t expand until 2016.
Medway council being considered and bring case challenging consultation and irrationality of exclusion of Gatwick.
Court upholds argument - reasoning behind exclusion is flawed as overrules everyone else and by time build may have expired.

Question 22

The suggestion of proportionality to replace Wednesbury

Answer 22

ex parte Hook
Market trader lost licence for public urination.
Court held not rational but a proportional penalty.

Question 23

The courts have rejected the idea of proportionality - ban on words spoken by ‘terrorist’ supporters in N.I.

Answer 23

ex parte Brind [1991]
Could dub film, but not broadcast direct speakers.
Journalist’s association argued breach of freedom of expression and disproportionate.
Rejected by HoL:
-proportionality involves working out merits of cases
-politicians elected for that
-judges not qualified to make such decisions

Question 24

Proportionality Test

Answer 24

(i) is the legislative objective (or policy) sufficiently important to justify limiting a fundamental right?
(ii) are the measures designed to meet the legislative objective rationally connected to it?
(iii) is the means used to impair the right or freedom no more than is necessary to accomplish the objective?

Question 25

R (Daly) v SoS for the Home Dept. [2001]

Answer 25

Concern that as prisoners not in cell during search officers could read legal correspondence which is confidential.
Human rights issue as well as a blanket ban.
Use proportionality test, not proportional. Policy too inflexible and rigid. Lawyer-client privilege must be protected.

Question 26

If make a promise should stick to it - creates a legitimate expectation.

Answer 26

ex parte Coughlan.
Promise home for life. Promise for a substantive benefit.
Upheld legitimate expectation:
-explicit promise
-made to small group of people/her
-affects her greatly
-and no over-riding public interest (wasn’t that NHS couldn’t afford to maintain facility or competing interest)

Question 27

Criteria for a legitimate expectation

Answer 27

• a representation (a statement or something outwards, not internal policy doc)
• to a defined group
• detrimental reliance (for substantive benefit cases, not a requirement but a consideration)
• whether there is an overriding public interest

Question 28

Representation for legitimate expectation must be unequivocal

Answer 28

British Civilian Internees case [2003]
Compensation for those interned by Japanese during WWII.
Definition of British not worked out in advance. Claim failed as not unequivocal or clear.
At least 700 effected.

Question 29

ex parte US Tobacco [1992]

Answer 29

Legitimate expectations: moral commitment to one company should not prevail over the public interest.
Production plans to produce snuff in Scotland, request money for funding from Dept. of Trade & Industry.
Debate in Dept. of Health bans oral snuff across UK - reversal of previous approach.
US Tobacco challenged - promised.

Question 30

Nadarajah [2005] - criteria for when public interest overrides legitimate expectation.

Answer 30

Criteria:
-if public body has a legal duty contrary
-the change must be a proportionate response (having regard to legitimate aim in public interest)
Asylum case - Home Sec wants to depart from policy in place at time. Courts concern over how to principle this.

Question 31

Bancoult [2008]

Answer 31

Judicial review of the prerogative - can review but national security/foreign relations prevent in this case.
No legitimate expectation - lacked clear and unambiguous promise.

Majority:
Legit exp - no clear promise as depended on feasibility study to be done, overriding public interest (defence) and no detrimental reliance.
Rationality - Gov considered issues of public resources and security and diplomatic interests of crown

Question 32

Non-justiciable aspects of the Royal Prerogative

Answer 32

GCHQ - no reason why, in principle, that exercise of prerogative powers is not reviewable. Some categories not:
-making of treaties
-defence of the realm
-the prerogative of mercy
-the grant of honours
-the dissolution of Parliament
-appointment of ministers 
(Not an exhaustive list)