Judicial Review - Illegality and irrationality

Question 1

CCSU v Minister for Civil Service (1984)

Answer 1

Acts done under the royal prerogative can be subject to JR (unless they are inherently political)

(But in this case, national security trumped the claimants’ legitimate expectation of being consulted)

The employees of GCHQ had a legitimate expectation that they would be consulted before a change in their ability to join trade unions; however, national security outweighed this legitimate expectation

Question 2

What are the seven headings of illegality in the ULaw course?

Answer 2

(1) Acting beyond powers
(2) Fettering discretion
(3) Unlawfully delegating
(4) Using power for improper purpose
(5) Taking account of irrelevant considerations or failing to take account of relevant considerations
(6) Error of law
(7) Error of fact (sometimes)

Additional: frustrating purpose of statute

Question 3

Attorney-General v Fulham Corporation (1920)

Answer 3

Example of ultra vires: A public body can’t do things that it hasn’t been given the power to do by a statute

A statute gave the power to public bodies to set up baths and washhouses for people to use; but not to run a laundry business in which council employees would do the washing

Question 4

R (McCarthy and Stone (Developments) Ltd) v Richmond-upon-Thames LBC (1992)

Answer 4

Example of ultra vires: Council charges a fee for pre-application planning advice, but has no authority in statute to do so

Question 5

Vine v National Dock Labour Board (1957)

Answer 5

Example of unlawful delegation: NDLP has power of disciplinary action, but hands investigation of an employee over to a committee

Question 6

What are the exceptions to the rule against delegation?

Answer 6

(1) Carltona principle (civil servants can make decisions for ministers)

(2) Local Gov’t Act 1972 s101: Councils can delegate, if they do so by formal resolution

Question 7

R v Adams (2020)

Answer 7

The Carltona principle doesn’t apply when statute clearly states that the Minister themselves must make the decision, and this wouldn’t impose an excessive burden on them

Question 8

What are the two ways of fettering discretion?

Answer 8

(1) Blanket policy / shutting ears to applicant
(2) Following decision of another / being dictated to

Question 9

Lavender v Minister of Housing and Local Gov’t (1970)

Answer 9

Example of fettering discretion by handing decision-making power to someone else

Lavender wanted to expand his quarry. The Minister for Housing had the power to decide his application, but just went with the decision of the Minister for Agriculture, which was unlawful

Question 10

R (Corner House Research and Campaign Against the Arms Trade) v Director of Serious Fraud Office (2009)

Answer 10

Example of (non-)example of being dictated to: A public body with a discretionary power can’t have its decision dictated to it, e.g. by national government

The OFS withdrew its investigation into BAE Systems re Saudi Arms Deal after gov’t told it of serious security concerns if it continued. In this case it’s held the OSF didn’t have this dictated to it, but it would have been unlawful if it had

Question 11

British Oxygen v Minister for Technology (1971)

Answer 11

Example of fettering discretion by way of a blanket policy: A public body that has set out a policy for exercising its discretion cannot “shut its ears to an applicant” who doesn’t qualify under the policy

Question 12

Roberts v Hopwood (1925)

Answer 12

Example of taking account of irrelevant considerations: here, “socialist philanthropy” and “feminist ambition” from Council paying its workers a fair wage

Also of failure to take account of relevant considerations: here, labour market wage levels, and value for money for ratepayers

Question 13

Padfield v Minister for Agriculture (1968)

Answer 13

Example of taking account of irrelevant considerations: Minister has discretion to investigate complaints about Milk Distribution Board - but doesn’t investigate farmers’ complaints because if it’s upheld, he might have to actually do something

Question 14

Congreve v HO (1976)

Answer 14

Example of improper purpose: People take out new TV licences in advance of fee increase - HO threatens to revoke them if they don’t pay fee, but this isn’t what its power of revocation is for

Question 15

Wheeler v Leicester City Council (1985)

Answer 15

Public bodies cannot act for an improper purpose

Leicester CC took away a licence from Leicester RFC after three players went on a tour of apartheid South Africa; the Council was not entitled to use this action to punish the club

Question 16

Porter v Magill (2001)

Answer 16

Public bodies cannot act for an improper purpose: Conservative councillors tried to sell off housing stock to increase the number of homeowners in the Council (who’d more likely vote Tory)

Question 17

RM v Scottish Ministers (2012)

Answer 17

Example of frustration of the purpose of a statute: Failure to make the regulations needed to get a tribunal up and running

Mental Health (Care and Treatment) (Scotland) Act 2003 created a tribunal for appealing detention decisions, but ministers failed to make the regulations around how this appeal could be lodged. This was unlawful by frustrating the statute’s purpose

Question 18

R (Rights of Women) v Lord Chancellor (2016)

Answer 18

Example of frustrating the purpose of a statute: Legal Aid regulations were brought in which were so onerous they frustrated clause allowing victims of DV continued access

LASPO greatly restricted legal aid, but preserved it for women suffering DV in cases against the perpetrator; but by requiring evidence of DV in the last 24 months, it excluded many women in this circumstance, frustrating Parliament’s purpose

Question 19

Westminster Corporation v LNWR (1905)

Answer 19

Dual purposes - “primary purpose test”

Local authority builds toilets in a way that creates an underpass - it has authority to create the toilets, but not build an underpass. Held the toilets were the “primary purpose”, so it’s ok

Question 20

R v Inner London Education Authority (1986)

Answer 20

Refinement of law on dual purposes to use “material influence” test instead of “primary purpose”

Authority spends money informing about rate-increases, which is ok, but also uses it to persuade public it’s a bad policy, which isn’t - held the latter purpose had a “material influence” so the action was unlawful

Question 21

What are the two tests which are relevant when a body’s action has “dual purposes”?

Answer 21

“Primary purpose” test (Westminster Corp v LNWR (1905))

“Material influence” test (R v ILEA (1986))

Question 22

When can an “error of fact” be a ground of JR?

Answer 22

(1) When the error is “jurisdictional” - it goes to the root of whether the power exists in the first place

(2) When it’s a mistake about a clear, undisputed, objectively verifiable fact that causes unfairness

Question 23

R (Khawaja) v SSHD (1984)

Answer 23

An error of fact can be a ground of JR if it goes to the root of whether the decision-maker’s power exists in the first place (it’s “jurisdictional”)

Here, the error is about whether a person is an illegal entrant

Question 24

E v SSHD (2004)

Answer 24

An error of fact can be a ground of JR when it’s an uncontentious, objectively verifiable fact, and it has created unfairness

The fact must have existed at the time and the person must not be responsible for the mistake

Here, the error was to not allow two reports to be admitted in an asylum appeal which clearly showed risk