JR 2 - Illegality and unreasonableness

Question 1

Do courts question both primary and secondary legislation re JR?

Answer 1

No. Ccourts do not normally review primary legislation (as this would clearly be a breach of parliamentary sovereignty).

Primary Legislation = AOPs
Secondary Legislation = subordinare/delegated legislation

Question 2

What are the four grounds of judicial review?

Answer 2

1. Illegality
2. Unreasonableness
3. Procedural impropriety
4. Legitimate expectation

JR claims can also be made under breach of ECHR / retained EU law

Illegality and unreasonableness are considered substantive grounds; whereas procedural impropriety reviews the procedure followed in arriving at a decision

Question 3

What is illegality?

Answer 3

If an action is beyond the powers of the public body in question, because powers either do not exist, or they are exceeded/abused

Question 4

What are the 5 sub-categories of illegality?

Answer 4

1. Simple illegality (ultra vires)
2. Errors of law
3. Errors of fact
4. Abuse of discretion
5. Retention of discretion

Question 5

Can public bodies act without legal authority?

Answer 5

No

R v Richmond – developers consulted with planning officers of Richmond before deciding whether to apply for planning permission. They were charged for informal consultation. HL ruled against Richmond, saying that charges for pre-application planning advice was ultra vires.

Question 6

What is the rule against delegation?

Answer 6

Decision making powers cannot be delegated/sub-delegated

Vine v Labour Board – Dock Workers Order gave labour boards power to take disciplinary action against dock workers. Labour board appointed committee who decided terminated Vine’s employment. Held that the decision was void because local board could not delegate their duty to a separate committee.

Question 7

What are the 2 exceptions to the rule against delegation?

Answer 7

1. Carltona Principle
2. Local Government Act 1972

Question 8

What is the Carltona principle?

Answer 8

Government ministers sub-delegating decision making powers to civil servants in their department is allowed.

This is an exception to the rule against delegation.

Carltona v Commissioners of Works –factory argued that its requisition was invalid as it was signed by civil servant in minister’s dept, not the minister himself.

Question 9

What is s.101 of the Local Government Act 1972?

Answer 9

Local authorities may delegate decision making powers to committees, sub-committees or individual officers, provided they make a formal resolution to do so

Question 10

When will a public body have ‘fettered’ its discretion?

Fetter = restrict

Answer 10

When it has acted in a way that hampered its own ability to properly exercise a discretionary power e.g. not exercise power at all

E.g. ex parte Fire Brigades Union - Home Sec fettered own discretion by refusing to consider whether to bring into force statutory criminal injuries compensation enacted in CJA - the statutory power to set date for implementation of tha Act imposed a continuing obligation/discretion ob Sec to bring it into force

Question 11

What are the 2 ways discretion can be fettered?

Answer 11

1. Acting under the dictation of another; or
2. Applying a general policy as to the exercise of discretion in too strict a manner (ie: rigid)

Question 12

Can public bodies act under the dictation of another person or body?

Answer 12

Nope

Lavender v Minister of Housing – Minister of Housing rejected L’s planning permission application to extract sand and gravel from high-grade agriculture land based on views of Minister of Agriculture. Court found for L – decision of Housing Minister was based on another minister’s objection.

Question 13

Can public authorities form their own policies to help them take consistent decisions?

Answer 13

Yes –as long as they’re not undertaken in a way which fetters discretion.

British Oxygen v Minister of Technology [1971]: Ministry formulated policy awarding grants for capital expenditure for items costing at least £25. BO bought oxygen cylinders worth £4,000,000, but each individual cylinder was only £20. Held: Ministry should consider every individual case and not apply policies over-rigidly.

“Anyone who has statutory discretion must not shut his ears to an application and must always be willing to listen to anyone with something new to say”

Question 14

True or False: Public bodies will be acting illegaly if they use powers for an improper or unauthorised purpose?

Answer 14

True

Congreve v Home Office –TV license cost due to be increased from 12 to £18. Many people bought licenses before increase. Home Office recorded who they were and asked to pay difference. CA held their action to be unlawful.

Question 15

What are the two tests to consider when there are dual purposes?

Answer 15

1. Pimary purpose test
2. Material influence test

Question 16

What if a public authority arrives at a decision based on ** dual purposes,** one of which is relevant to the purpose of power it is exercising and the other which is irrelevant?

Answer 16

Where there are dual purposes, provided the permitted/authorised purpose is the ‘primary purpose’ the decision is not ultra vires

Question 17

What is the material influence test?

Answer 17

Was the authority pursuing an unauthorised purpose which materially influenced the making of its decision?

Eg: R v ILEA. ILEA mounted a campaign costing 651,000 concerning governments proposals on rate-capping, limiting amount it could raise in local taxation and spend on education. ILEA aimed to achieve 2 purposes:

1. Give information about rate capping (authorised)
2. Persuade public to support ILEA’s views (unauthorised)

The second purpose materially influenced the first, and therefore was held to be illegal.

Question 18

Example of irrelevant considerations

Answer 18

1. Potential embarrassment the minister would face
2. Considering factors outside the scope and purpose of an Act (eg: pursuing environmental objectives not envisiaged by an Act)

Question 18

What considerations must a public authority take/ignore?

Answer 18

Take into account all relevant considerations, and ignore all irrelevant considerations

Question 19

When will a policy be deemed to fetter discretion?

Answer 19

When adopting a rigid/blanket policy to the effect that outcome of a particular case is decided in advance without proper discretion in response to individual factors

I.e. mind must be kept open

Question 20

What is simple illegality? (doctrine of ultra vires)

1st sub-category

Answer 20

Refers to a decision that goes beyond the legal boundaries of a legal power given to a body

E.g. police officer arrests someone in a situation in which there is no power to arrest

Question 21

Will a public body have acted unlawfully if it does something reasonably incidental to a power that it has?

E.g. power to build public lavatories - can a public body build a subway under a road that was necessary to access those lavatories?

Answer 21

No - would not have acted unlawfully

Question 22

What does the principle of legality refer to?

Answer 22

A presumption that PARL did not intend to authorise the infringment of fundamental/constitutional rights of the rule of law unless it had given specific statutory authorisation

I.e. broader concept than just simple ultra vires

ex parte Witham - applicant sought J of Lord Chancellor’s decision in setting such a high court fee - held that act did not authorise them to set fees so high to effectively deny access to courts (a fundamental right) - the instrument therefore declared to be ultra vires

Question 23

What does ‘errors of law’ refer to?

2nd sub-category

Answer 23

Decision-maker makes mistake regarding a Q of law e.g. misinterpreting the meaning of words in legislative provision

E.g. misunderstanding the rules of a scheme meanrt a decision made based on them should be quashed

Question 24

Are errors of law always amendable to JR?

Answer 24

Yes –confirmed in Anisminic

Question 25

What are the 3 exceptions to errors of law?

I.e. when will the court not review errors of law?

Answer 25

1. Error of law is not decisive (same decision would have been reached anyway)
2. Decision-maker is interpreting a special system of rules (e.g. statutes of an old university, where PARL deems a decision to be final, superior court decision)
3. Where power granted was so imprecise that it is capable of being interperted in many different ways (e.g. interpreting what the word ‘substantial’ could mean)

Question 26

What are the 3 types of ‘errors of fact’ which are susceptible to JR?

3rd sub-category

Answer 26

1. Precedent / jurisdictional facts
2. No evidence for a fact
3. Ignorance or mistake of an established fact

Courts were traditionally resistant to make challenges based on allegation that decision-maker made mistake of fact - was perceived as being too much an interference in proper territory of executive

Question 27

What is no evidence for a fact?

Type of error of fact susceptible to JR

Answer 27

Where a finding of fact on which a decision is based is supported by no evidence at all

E.g. Coleen Properties - Minister’s report, containing decision that it was not reasoably necessary for satisfactory development or use of cleared area to acquire property, was based on no supporting evidence

Question 28

What is ignorance or mistake of an established fact?

Type of error of fact susceptible to JR

I.e. where decision-maker’s power did not depend on initial finding of fact and cannot rely on no evidence rule

Answer 28

Where an established fact (inc availability of evidence), which is material to the decision, is ignored or misunderstood

E.g. Tameside - Education Sec halted re-introduction of grammar schools believing that re-introduction would lead to educational chaos/disruption - HOL concluded that he had wrongly jumped to conclusions and either misunderstood/was not informed as to nature and effect of professional educational advice available **)

Question 29

Which type of errors of fact are less amenable to JR?

Answer 29

Non-jurisdictional errors of fact (ie: ignorance/evidence) of – courts will defer to the decision of public body

Question 30

What is the 4 part test for ignorance or mistake of established fact?

Answer 30

1. Mistake as to existing fact (inc availability of evidence)
2. Fact/evidence must have been established (uncontroversial and verifiable)
3. Appellant must not have been responsible for the mistake
4. The mistake must have played a material (not decisive) role in reasoning

Question 31

What are the 3 types of considerations to be (not) taken into account?

Answer 31

1. Mandatory factors - must take into account (by virtue of statute expressly or impliedly)
2. Prohibitory factors - must not take into account
3. Discretionary factors - decision-maker can chooose to taken into account (subject to reasonableness)

e.g. Venables and Thompson - sentenced child killers to sentences longer than recommendations of judges
* Failed to take into account welfare of sentenced children
* Wrongly took into account emotive public petitions (public clamour) about the individual case

Question 32

What is improper purpose?

Answer 32

Decision-maker using powers given to it by PARL for purposes other than for the purposes it was given to them; in accordance with the intentions of the statute that conferred the power

E.g. Padfield - Minister had power to direct investigation but did not because he believed he could be embarassed by an unfavourable report – held to be illegal

Question 33

What happens when the statute does not clearly indicate a purpose for which it grants power?

Answer 33

The courts can imply a power by construing the statute as a whole

E.g. Congreve - implied purpose of power to revoke TV licences was not to raise revenue but to ensure such licences were not wrongfully used or obtained (so Congreve should not have had licence revoked merely because he bought it before fees increased)

Question 34

When will a (rigid) policy be allowed to stand?

Answer 34

When there is evidence that exceptional individual cases could or have been decided on their merits - but cannot merely say it has ‘shut its ears to the application’

E.g. ex parte Collymore - policy on student grants was worded flexibly but had never resulted in an appeal despite 300 appeals against refusal was held to have been unlawful fettering

Question 35

What is the general rule on delegating discretion?

Answer 35

Not normally allowed to delegate unless statutes expressly allow - otherwise will be unlawful delegation of discretion

Lavender - refusal of application for planning permission was challenged after Minister of Housing had abdicated decision to Minister of Agriculture

Question 36

What is the Carltona principle and how is this reconciled with the unlawful delegation of discretion?

Answer 36

• Carltona principle = the recognition it would not be practical for a GOV minister to personally make all the decisions they are empowered to make, so they are allowed to delegate discretion to civil servants even if statute does not expressly say so
• The minister remains politically accountable to PARL for that decision - so must be a person of suitable seniority

Question 37

What is the Wednesbury test?

Unreasonableness hereon

Answer 37

Court can undertake a review (re reasonableness of a decision) where a decision on a competent matter is so unreasonable that no reasonable authority could have come to it (requires something overwhelming)

I.e. Not for court to interfere just bc it holds a diff view on policy

E.g. Short - a red-haired teacher being dismissed just because she had short hair

Wednesbury – owners of cinema were granted a license on the condition that no one under 15 could be admitted. Owners challenged decision – held to be unreasonable.

Question 38

What does ‘irrationality’ mean in reasonableness context?

Reformulation of Wednesbury test (not a replacement)

Answer 38

A decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person could have arrived at it

Question 39

What are the 3 main classes of unreasonableness?

Answer 39

1. Material defects in decision-making process
2. Oppressive decisions
3. Decisions that violate constitutional principles

Significant overlap

Question 40

What are ‘material defects in the decision-making process’ refer to and what are the two kinds?

1st class of unreasonableness

Answer 40

Defects not faulty in terms of illegality but are serious enough to render a decision flawed
1. Wrongly weighing-up relevant factors
2. Failure to provide a comprehensive chain of reasoning; ‘irrationality’

Question 41

What is meant by ‘wrongly weighing up relevant factors’?

Answer 41

When a decision is made that a reasonable individiual/body would not have made taking account of the necessary consideration

Cross-over with illegality

Duffy - appointment of prominent loyalist proponents to a body set up to resolve disputes relating to marches - decision which a reasonable Sec of State could not have made - appointments unlawful

Question 42

What is meant by a ‘failure to provide a comprehensive chain of reasoning’?

Answer 42

Where a decision is so unreasonable as to verge on the irrational

This sub-category is often described as irrationality

E.g. Fielder Estates - decision for a fresh inquiry re planning application after one had already been closed was not logical as the objector’s views could have been considered in writing

Rogers - availability policy of NHS breast cancer treatment that could provide funding for some women (in relevant eligible group) but not others on basis of exceptional circumstances was irrational

Question 43

What are oppressive decisions?

2nd class of unreasonableness

Answer 43

A decision imposing excessive hardship or representing an infringement of rights which is deemed unecessary

Considered to be oppressive and therefore unreasonable

E.g. Wheeler - a ban on Leicester Rugby Club from using the Council’s ground for its matches was introduced because 3 players intended to play in SA during apartheid regimee - was deemed unreasonably punitive (also found to be Wednesbury unreasonable)

Norney - refusal to refer cases of five IRA prisoners to Parole Board until tariff expired meant they would have served many months longer than if referrals made in advance - held to be unlawful and oppressive

Question 44

What are decisions that violate constitutional principles?

3rd class of unreasonableness

Answer 44

Decisions that contradict the rule of law; are not consistent and not sufficiently certain

Held to be unreasonable as they represent arbitrary decision-making

McCartney - tariff sentence set for Irish Republican for attempted murder of a policeman was set at a much higher level than others who committed more serious crimes of a similar type; action of Home Sec was inconsistent with treatment of other similarly affected persons so was Wednesbury unreasonable

Question 45

What is meant by intensity of review?

Second important issue of unreasonableness (after sub-classes)

Answer 45

The degree to which the court will scrutinise the decision under dispute

Practical manifestation of sep of powers checking executive action

Question 46

What subject matter in executive decisions will be scrutinised more and less closely?

Answer 46

• More = decisions affecting fundamental/human rights
• Less = broader questions of policy

Fundamental rights traditionally seen as something courts under duty to protect cf policy of democratically elected officials

Question 47

What is institutional competence?

Answer 47

Describes how courts are more experienced, knowledgeable and skilled in assessing questions on rights (over policy)

So they should and are better at it

Question 48

How high/low does Wednesbury set the standard of review?

Answer 48

Very high - ‘so unreasonable that no reasonable authority could have come to it’

Notably high/exceptional level of unreasonableness must be found

But has been modified in some situations…

Question 49

What intensity of review applies to decisions on social and economic policy?

Answer 49

Lower; high deference - original high threshold of Wednesbury continues to apply area of political decision-making e.g. budgeting

‘super-Wednesbury’ applies to political judgements

Nottinghamshire CC - Env Sec’s guidance to local authorities setting spending limits had been approved by PARL resolution so court could not intervene - had the ‘democratic seal of approval’

Question 50

When can the court intervene in matters of high policy?

Answer 50

When bodies/individuals act very irrationally (in spite of evidence)

E.g. Javed - CoA held minister acted irrationally by making a SI, that went against an abundance of evidence of the contrary, designating Pakistan as a country where in general there is no risk of persecution

Question 51

When will courts be willing to exercise a more intense degree of scrutiny?

‘sub-Wednesbury’

Answer 51

Issues concerning fundamental or human rights

Question 52

Will a heightened scrutiny virtually guarantee a successful unreasonableness challenge?

Answer 52

No! Especially if the decision is supported by a significant body of opinion in PARL

E.g. Smith - dismissed from Army because of sexuality - reviewed by court with intense degree of scrutiny and found to have a profound effect on their rights as human beings - still failed; policy could not be classed as irrational at the time as was supported by a significant body of PARL

Question 53

What is the difference between sub- and super-wednesbury standard?

Summary of intensity of review

Answer 53

• Sub-Wednesbury standard - high intensity review for fundamental rights
• Super-Wednesbury standard - low intensity review for social and economic policy

Question 55

Is proportionality a ground of review in public law?

Means employed by decision-maker to achieve a legitimate aim must be no more than is strictly necessary

Answer 55

Under contention - Wednesbury unreasonableness has been preferred but has been suggested proportionality (with a higher intensity of review) should replace it

Wednesbury criticised as only very extreme degree can bring administrative decision in scope of judicial invalidation

Question 56

What does illegality, as a ground of review, ensure?

Answer 56

That exercise of power is confined within the limits given to the Executive prescribed by governing legislation

Ultra vires; not entitled to act beyond powers!