JR 2- ILLegality and unreasonableness Flashcards
WHAT is the illegality ground of review?
decision maker must understand correctly the law that regulates his decision making powers and must give effect to it.
what are the categories of illegality?
- simply illegality.
- errors of law.
- errors of fact.
- Abuse of discretion
- retention of discretion.
how can an error of law be scrutinised by JR?
all errors of law are potentially reviewable. but
1. where error of law is not decisive to the decision. but for the error concerned, decision would have been different.
- where the decision maker is interpreting some special system of rules, courts are often unwilling to intervene.
- 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.
what are the three types of error of fact which are susceptible to JR?
precedent facts- jurisdiction depended on it making an initial finding of fact.
no evidence for a fact
ignorance or mistake of an established fact.
what are the two ways in which a public body can abuse their discretion?
- failing to take a relevant consideration into account or taking an irrelevant consideration into account.
- using the power for an improper purpose.
How can the courts retain their discretion?
where the decision maker:
- fetters their discretionary power by failing to exercise the power at all.
- fetters the power by applying a policy rigidly or in a blanket fashion.
- unlawfully delegates the power.
what is the Carltona principle?
contrary rule that a minister is allowed to delegate his or her discretion to officials within the department even if statute does not expressly say so.
But the minister remains politically accountable to Parliament for the decision.
what is Wednesbury unreasonableness?
Another ground of challenge is that a public body has acted unreasonably/irrationally.
Decision which is one which a reasonable authority could reach- HIGH THESHOLD.
decision is so outrageous and defiant of logic that no sensible person could have arrived at it.
what are the three main classes of unreasonableness?
a) material defects in the decision-making process.
b) oppressive decisions- decision imposes excessive hardship or represents an infringement of rights which is deemed unnecessary.
c) decisions that violate constitutional principles- makes inconsistent or uncertain decisions.
how can material defects in the decision making process (unreasonable) be split into two areas?
a) wrongly weighing up relevant factors.
b) failure to provide a comprehensive chain of reasoning= irrationality.
are there any decisions that the courts are reluctant to review?
relating to social and economic policy.
(super-wednesbury)
are there any decisions that the courts exercise a more intense degree of scrutiny?
decisions that affect fundamental rights.
(sub-wednesbury)
can a public body delegate discretionary powers?
Only if it is explicitly allowed by statute.
