JR Problem Question - Grounds for Review - Irrationality

Question 1

What is the fifth issue to be addressed in a JR PQ?

Answer 1

Grounds for Review - Are there grounds for Judicial Review?

Question 2

What are you required to establish in the fifth key issue of a JR PQ?

Answer 2

At this stage, you are simply looking to determine whether the decision being challenged amounts to either;

(i) illegality,
(ii) procedural impropriety, and/or
(iii) irrationality/unreasonableness.

Question 3

What is the key question for the illegality ground for review?

Answer 3

Has a body acted Illegally?

Question 4

What must the courts be convinced of before finding a body to have acted illegally?

Answer 4

The court will have to satisfy itself that the decision maker acted beyond their jurisdictional limits - for our purposes, ‘jurisdictional limits’ can be understood to refer to the ambit of power of the decision maker with regard to the relevant issue.

Question 5

What are the six potential ways that a decision maker can be determined to have acted illegally/unlawfully?

Answer 5

1. Simple Illegality
2. Errors of Law
3. Mistakes of Fact
4. Failure to retain discretion
5. Abuse of discretion
6. Frustrating a substantive legitimate interest (Illegality or Procedural Impropriety)

Question 6

What is simple illegality?

Answer 6

This is when the decision maker has deliberately/explicitly acted in a manner which exceeds their jurisdiction on the given issue.
Authority - Attorney General v Fulham Corporation

Question 7

What are errors of law?

Answer 7

This is when the decision maker, acting in good faith, misinterprets the limits of the powers vested in them and consequently believes they were acting lawfully, but where they actually decided on issues beyond their jurisdiction.
It does not necessarily relate to deliberate efforts to exceed jurisdictional limits.

Question 8

What needs to be considered when determining whether there has been an error of law?

Answer 8

(a) the purpose of the statute where the authority/power of the decision-maker originates (if relevant) and;
(b) the actual language used to describe/express the ambit of the decision makers powers.

Question 9

What is the significance of the actual language used to describe the ambit of the decision makers power?

Answer 9

Is this language vague/ambiguous - can it be construed to mean different things? If so there is a greater chance of an error of law
Authority - Anisminic Ltd v Foreign Compensation Commission

Question 10

What is the general rule following a finding of an error of law?

Answer 10

If it is established that the interpretation of the ambit of vested powers amounts to a misinterpretation it will result in the court finding that the decision maker exceeded their jurisdictional limits – and thus acted illegally/unlawfully
Authority - Anisminic and;
R v Lord President of the Privy Council ex parte Page

Question 11

What is the exception to the general rule following a finding of an error of law?

Answer 11

If the error in question is determined to have been non-decisive to the decision which is being challenged (no bearing on the decision that was originally reached), then the decision itself may not be found to have been unlawful.
Authority - R v Lord President of the Privy Council ex parte Page

Question 12

What are mistakes of fact?

Answer 12

Mistakes of fact occur where the decision maker has acted within their jurisdictional limits in the first instance, however, their application of the law (e.g. their legal authority) is based upon a factual mistake (resulting in the decision maker applying their vested powers incorrectly).

Question 13

What theoretical example illustrates the mistake of fact ground for judicial review?

Answer 13

The Home Secretary may correctly determine/interpret his power to detain illegal entrants, but if he is misinformed of a relevant factual consideration (say he is told a legal entrant was actually an illegal one) he may consequently apply his power unlawfully by detaining a legal entrant.

Question 14

What are the four key questions to consider when seeking to determine a mistake of fact, arising from the case of E v Secretary of State for the Home Department?

Answer 14

1. Is there evidence of a mistake in relation to an existing fact (e.g. something which was previously acknowledged)?
2. Is the fact (or evidence) in question objectively verifiable (e.g. is it uncontentious)? (The more subjective the harder to prove a decision was made in error).
3. Does responsibility for the mistake rest with either the claimant or the claimants’ legal representation? (If so it cannot be relied upon to render the decision being challenged unlawful).
4. Did the mistake clearly play a material (e.g. determining) part in the decision makers original decision? (But for this error, is it feasible that the decision maker would have reached a different decision/would they have been lawfully required to do so?)

Question 15

What is a failure to retain discretion?

Answer 15

Failure to retain discretion occurs when a decision-makers discretion has been unlawfully utilised, there are two different forms failure to retain discretion can take.

Question 16

What are the two different types of failure to retain discretion?

Answer 16

1. Wrongful delegation or transfer of discretion

2. Fettering discretion by over-rigid adherence to policy

Question 17

What is wrongful delegation or transfer of discretion?

Answer 17

A body to which parliament has delegated power may not itself subsequently delegate this power.
Authority - Barnard v National Dock Labour Board

Question 18

What are the exceptions to the rule of wrongful delegation or transfer of discretion?

Answer 18

A body may further delegate power where explicitly permitted to do so via statute, or, in the case of Ministers’, where it is logical that the adequate fulfilment of their duties will require delegation to Civil Servants - the Carltona Principle.

Question 19

What is fettering of discretion by over-rigid adherence to policy?

Answer 19

Here the unlawful conduct relates to a decision-makers refusal or inability to operate within the full ambit of their jurisdiction due to unnecessarily strict adherence to policy.
Authority - British Oxygen Co Ltd v Minister of Technology

Question 20

What is a theoretical example of fettering of discretion by over-rigid adherence to policy?

Answer 20

If the Home Secretary sought to utilise his discretionary power to detain illegal entrants exclusively against those arriving/originating from certain countries (due to governmental guidance on immigration policy) this would represent a failure to make full use of these powers (e.g. fettering of discretion).

Question 21

What is abuse of discretion?

Answer 21

This is where a decision-makers discretion is exercised unlawfully by either using their powers in pursuit of an improper purpose or by acting on the basis of irrelevant considerations (or the refusal to countenance relevant ones).

Question 22

What is using a power for an improper purpose?

Answer 22

Discretionary power is delegated to decision-makers for the fulfilment of specific purposes/objectives. As such, utilising these powers for purposes other than those clearly/explicitly provided for by the relevant statutory provision will result in the decision-maker acting unlawfully.

Question 23

What will the courts consider when determining whether a decision-maker has acted in pursuit of an improper purpose?

Answer 23

The relevant court will firstly refer to the purpose of the statute itself where the discretionary powers are derived.

Question 24

What is the courts stance on the room for ulterior motives behind the exercise of discretion?

Answer 24

The courts do not suggest decision-makers can never be seen to be acting lawfully when their decisions have ulterior motives or are taken in pursuit of multiple objectives. Indeed, so long as the overriding (e.g. ‘dominant’) purpose behind the decision/action (e.g. the primary motive for acting) is a lawful one, then the decision-maker will have acted lawfully.
Authority - Miranda v SSHD

Question 25

What is the concept of taking into account irrelevant considerations or failing to take into account relevant ones?

Answer 25

Here a decision-maker has acted unlawfully by basing their decision on considerations they were not authorised to take into account, or by failing/refusing to do the opposite, prior to acting.

Question 26

What are the generally accepted 3 types of consideration decision-makers may or may not take into account?

Answer 26

(i) Mandatory: regarding issues the relevant statutory provision stipulates must be taken into account;
(ii) Prohibited: regarding issues the relevant statutory provisions stipulates cannot be taken into account; and
(iii) Discretionary: regarding issues the decision-maker may take into account
Authority - R v Somerset CC ex p. Fewings

Question 27

What are legitimate expectations?

Answer 27

Legitimate expectations relate to ‘some benefit or advantage’ an individual was ‘legitimately’ entitled to expect to be either (a) granted to them, (b) continued (c), and/or not have withdrawn prior to consultation (in accordance with reasonable justification for doing so).
Authority - Lord Diplock in CCSU v Minister for Civil Service

Question 28

What forms can legitimate expectations take, and what impact does this have upon the ground for review they fall into?

Answer 28

These expectations can take both substantive and procedural forms (and thus fall under either illegality or procedural impropriety).

Question 29

What is the key distinction/characterisation of the term ‘legitimate expectations’?

Answer 29

The term itself – ‘legitimate expectation’ - is meant to relate only to promises/decisions which a claimant is reasonably entitled to expect in the circumstances (rather than what they may actually have expected.
Authority - Re Findlay

Question 30

What is the first consideration of the court when attempting to determine whether a legitimate expectation exists?

Answer 30

1. A legitimate expectation will only arise from ‘clear, unequivocal, and unambiguous language’ - How reasonable was it for the claimant to believe that an express, actionable (e.g. fulfillable) promise had been made by the relevant decision-maker?
   Authority - R v North and East Devon Health Authority, ex parte Coughlan

Question 31

What is the second consideration of the court when attempting to determine whether a legitimate expectation exists?

Answer 31

2. The expectation must be based upon either a promise made by, or practice relating to, the entity (i) lawfully responsible for fulfilling it and also (ii) possessing the power to grant it at the time in which the promise was made.
   Authority - R (Bloggs 61) v Home Secretary

Question 32

What is the third consideration of the court when attempting to determine whether a legitimate expectation exists?

Answer 32

3. The detrimental consequences of the claimants’ reliance upon the alleged legitimate expectation (e.g. the harm they have suffered by acting upon this promise) can also influence the approach the court will take (although this in and of itself is unlikely to be determinative – e.g. enough on its own to satisfy that a legitimate expectation has been unlawfully frustrated).
   Authority - ex parte Begbie

Question 33

What is an additional consideration the courts may take into account when attempting to determine whether a legitimate expectation exists?

Answer 33

In the absence of a clear, express promise, well-established (e.g. well-known) practice may also give rise to a legitimate expectation that this practice will continue unless clear indication has been given by the relevant decision-making body that such practice is subject to imminent change.
Authority - GCHQ Case

Question 34

Which type of legitimate expectation will ground a judicial review action under the heading of illegality, if/when frustrated?

Answer 34

Substantive Legitimate Expectations

Question 35

What are substantive legitimate expectations?

Answer 35

These relate to circumstances wherein an individual has an expectation that a certain outcome will be reached (e.g. where a particular benefit will be either given or continued).

Question 36

What can substantive legitimate expectations arise from?

Answer 36

Substantive legitimate expectations can arise either from (i) an express promise (e.g. an expression which is ‘clear, unequivocal, unambiguous’), as well as from the continuation of accepted practice.
Authority - R v Secretary of State for the Home Department ex parte Khan

Question 37

What is the relationship between the frustration of substantive legitimate expectations and other public interests?

Answer 37

The frustration of such a legitimate expectation will, bar the existence of some other important factors whereby such frustration is deemed to be acceptable - e.g. in matters of overriding public interest
Authority - ex party Coughlan
Or in cases where it is known that general policy is being changed
Authority - R v Secretary of State for the Home Department ex parte Hargreaves.