Judicial Review: DISCRETIONARY POWER Flashcards
Discretionary power
DEF: the power to choose
If executive has discretion, the law does not require particular decision.
‘[D]iscretion … is most at home in referring to powers delegated within a system of authority to an official or set of officials, where they have some significant scope for settling the reasons and standards according to which that power is to be exercised, and for applying them in the making of specific decisions.’ - DJ Galligan, Discretionary Powers (Clarendon Press 1986)
Liversidge v Anderson [1942]
Lord Atkin’s dissent is the current understanding for JR
important excerpts -
“more executive minded than the executive”
“amid the clash of arms, the laws are not silent”
Lord Atkin’s dissent:
‘I view with apprehension the attitude of judges who … show themselves more executive minded than the executive. … In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.’
Atkin’s approach was dissenting here but by the 1960’s his was the more popular approach.
TWO OPTIONS FOR COURT INTERPRETATION OF DISCRETIONARY POWER
‘narrow’ ultra vires:
- Use statutory interpretation to determine the scope of the administrative power
‘wide’ ultra vires:
- In addition (to the ‘narrow’ ultra vires approach) apply general principles of administrative law developed by the courts.
Padfield v Minister of Agriculture, Fisheries and Food [1968] (?)
PADFIELD PRINCIPLE: the Minister cannot so use his discretion as to frustrate the objects of the statute which gives him that discretion - Lord Reid.
PADFIELD ILLEGALITY: ie the Courts approach to discretionary powers, common law limits of discretionary powers. (Padfield did not codify all of this, it was already a concept prior, but the gist of the issue) - what is outside the scope of discretion is illegal (ultra vires)
Judicial Review can now be brought to address discretionary powers. - see Lord Reid below.
Lord Reid:
‘Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act, the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court.’ - the issue is then justiciable.
COMMON LAW CONSTRAINTS ON DISCRETIONARY POWER
discretion that has:
Procedural Impropriety:
- taken into account an irrelevant consideration (or failed to take into account a mandatory relevant consideration);
- acted for an improper purpose;
Illegality:
- unlawfully delegated their discretion; - exception to ministers.
- unlawfully fettered their discretion (e.g., by following an over-rigid policy laid down in advance); or
Irrationality:
- made a decision that is Wednesbury unreasonable or irrational.
***(PERGAU DAM CASE) R v Secretary of State for Foreign Affairs, ex party World Development Movement [1995] 1 WLR 386
FACTS:
- Margaret Thatcher reached an aid-for-arms deal with Malaysia.
- In return for financial assistance from the UK, Malaysia would buy British fighter aircraft.
- In 1993, the Foreign Secretary committed £234 million to build the Pergau dam.
- The National Audit Office, among others, considered the UK’s funding of the dam to be a waste of money.
- WDM sought judicial review.
HELD:
- The Overseas Development and Co-operation Act 1980, s 1:
- ‘The Secretary of State shall have power, for the purpose of promoting the development or maintaining the economy of a country or territory outside the United Kingdom, or the welfare of its people, to furnish any person or body with assistance, whether financial, technical or of any other nature.’ (Argued that the project did not meet these demands)
The court quashed the Foreign Secretary’s decision.
Rose LJ:
‘[I]t is, as it seems to me, a matter for the courts and not for the Secretary of State to determine whether, on the evidence before the court, the particular conduct was, or was not, within the statutory purpose.’
The statutory power in s 1(1) of the Act to provide assistance for the purpose of promoting development did not include economically ‘unsound developmental purposes’.
***R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60, [2009] 1 AC 756 (?)
PRINCIPLE:
To suspend investigations on the ground of threats from a foreign government is within the scope of discretion of the Director of the Serious Fraud Office to investigation corruption under s1(3) Criminal Justice Act 1987
FACTS:
- SFO (serious fraud office) started investigating alleged corruption by BAE systems in negotiating Ks w Saudi Arabia.
- UK gov warned Director of SFO that the investigation would damage commercial and intelligence-sharing relations between UK and Saudi
- Following threats for Saudis, SFO Director decided to stop the investigation.
HELD:
DC- held that the Director unlawfully surrendered to the threat.
HL - overturned DC
Lord Bingham said court should ask:
- ‘whether, in deciding that the public interest in pursuing an important investigation into alleged bribery was outweighed by the public interest in protecting the lives of British citizens, the Director made a decision outside the lawful bounds of the discretion entrusted to him by Parliament.’
Lady Hale:
- ‘The only question is whether it was lawful for [the Director] to take [the threat and national security risk] into account. … Put like this, it is difficult to reach any other conclusion than that it was indeed lawful for him to take this into account.’
It was for the Director to balance the various relevant considerations.
CRITICISM OF CORNER HOUSE CASE
PROFF ADAM TOMKINS:
- their Lordships should have held that the Director had taken into account an irrelevant consideration
PROFF SIR JEFFREY JOWELL QC:
- their Lordships gave insufficient weight to a relevant consideration.
- (surprising that the HL encourages the view that the rule of law is on par with any other ‘relevant consideration’
What is JR of administrative action?
Def: Legal action brought by an applicant against a public body (executive only)
Consider how the following constitutional principles inform the role of courts in judicial review of administrative action:
a) the sovereignty of Parliament;
b) the rule of law; and
c) separation of powers;
PS -
- Making sure that decisions are made in a way that parliament would have wanted them to.
- Respects and reenforces parliamentary sovereignty by giving effect to parliamentary acts.
- Might actually limit parliamentary sovereignty sometimes (Anisminic)
- Uses rules developed through common law to help interpret parliamentary acts (never been formally approved by P).
- Parliament can always add clauses or pass another act that would expressly or impliedly repeal a judicial decision.
RULE OF LAW:
- Supports judicial review as a way of legal accountability - fairness, lack of arbitrary,
- Dicey’s RoL everyone is equal under the law: sure, but JR is only applicable to gov.
- Bingham: all equal under law unless there is objective difference between (ie gov granted more power and thus held to JR).
- JR fulfils principle in Entick v Carrington
SEPARATION OF POWERS:
- Statutes treat each of the powers differently, and bestow certain powers upon some and not others.
- ex: Statutory Instruments Act 1946 distinguished instruments that were legislative and those that were executive in nature. Crown Proceedings Act 1947 states Crown is not liable for acts of any person discharging responsibilities of judicial nature.
Why is the GCHQ case considered so important? Why did the House of Lords decide not to intervene with the decision challenged in the GCHQ case?
- It further determined the scope of judicial review- specifically in regards to minister (court will not intervene to review decisions of ministers where national security outweighs other matters…)
- Executive action from common law or prerogative power was not immune from review but requirements of national security outweighed those of fairness, which was a matter for the executive to weigh and decide (because not regarding to jurisdictional facts - see Lady Hale in A v Croydon London Borough Council [2009]
How do the courts draw the boundary between what is judicially reviewable and what is not?
Jurisdiction prior, but now all concepts which have a legal element may be judicially reviewable - Lord Diplock in Anisminic
On what grounds can a judicial review application be made? How do you understand each of these grounds? - and what is the Authority?
GCHQ identified 3 grounds:
Irrationality:
Procedural impropriety:
Illegality:
