JR - Illegality Flashcards
What is the illegality ground of review for JR?
- reflects doctrine of ultra vires ie public body acts beyond its powers
- ensures exercise of power is confined to its limits
What are the five categories of illegality?
a) simple illegality (ultra vires)
b) errors of law
c) errors of fact
d) abuse of discretion
e) retention of discretion
What is simple illegality?
Going beyond legal power given to body being challenged
When will a public body not be acting ultra vires even though there was no express conferred power to do said act?
When they do something reasonably incidental to or consequent upon a power that it did have
What is the principle of illegality in relation to statutory interpretation?
Courts assumed Parliament does not intend to authorise infringement of fundamental or ‘constitutional’ rights and cardinal principles of rule of law unless it had given very specific statutory authorisation
Eg increase of court fees to high level was ultra vires as breached fundamental right of access to courts
What is illegality by error of law?
Where the decision-maker makes a mistake regarding a question of law eg by misinterpreting words of legislative provision so coming to the wrong decision
What exceptions are there to the general principle that errors of law are potentially reviewable?
- if error of law if not decisive to decision ie decisive = but for the error of law, the decision would have been different
- if error of law relates to special system of rules, courts reluctant to intervene eg status of old universities
- if error of law argued due to decision of inferior court where parliament has expressly provided decision of first instance judge to be final
- higher courts will not be subject to JR for error of law
- if power granted is so imprecise that capable of multiple interpretations, courts will not quash decision just because they would interpret law differently
What is illegality by error of fact?
Where decision-maker has made a mistake of fact when deliberating on a decision
What three types of error of facts are susceptible to judicial review?
- precedent facts
- no evidence for a fact
- ignorance or mistake of an established fact
What is error of fact due to precedent facts?
Decision-maker’s power to decide depended on initial finding of fact and they were wrong as to that finding of fact
What is error of fact due to no evidence for a fact?
If finding of fact on which decision is based, is supported by no evidence at all.
When can decision be challenged on error of fact due to ignorance or mistake of an established fact?
Ignorance or misunderstanding can be challenged on basis that decision was a result of acting upon incorrect basis of fact.
To be challengeable decision must give rise to unfairness. Unfairness will arise when:
- must be mistake as to an existing fact, including mistake as to availability of evidence
- the fact or evidence must have been established in the sense it was uncontentious and objectively verifiable
- appellant must not have been responsible for the mistake
- mistake must have played a material part in the tribunal’s reasoning
What is illegality due to abuse of discretion?
When decision-make misuse their statutory power by:
- failing to take a relevant consideration into account
OR
- taking an irrelevant consideration into account
When will there be illegality due to abuse of discretion in relation to failing to take a relevant consideration into account?
- when decision makers fail to take a relevant consideration into account (mandatory factors) or
- take into account an irrelevant consideration (prohibitory factors)
What are relevant considerations?
- consideration expressly or impliedly identified by statute as considerations which regard must be had (mandatory factors)
- consideration identified by statute that must not be considered (prohibitory factors)
- considerations which the decision-maker may have regard to if in his judgment and discretion he thinks it is right to do so (discretionary factors)
