Judicial review-illegality and unreasonableness Flashcards
Define illegality as a ground of judicial review.
Illegality is the ground of review which reflects the traditional doctrine of ultra vires, which occurs when a public body acts outside of its legal authority or in breach of a legal requirement.
Define the sub-category of simple illegality and provide an example.
The term ‘ultra vires’ is often used as a generic phrase relating to any decision which is tainted by illegality. For example, a police officer arresting a person for parking on a yellow line when there is no power of arrest in such a situation.
Define the sub-category of errors of law and provide an example.
Natural extension of the ultra vires doctrine. Typically involves the decision-maker making a mistake regarding a question of law e.g. misinterpreting the meaning of words in legislation.
What are the three types of errors of fact that come under illegality?
- Precedent facts
- No evidence for a fact
- Ignorance/mistake of an established fact
Outline ‘precedent facts’ as a type of errors of fact and provide an example.
When a decision-maker’s power to decide on a particular matter depended on it making an initial finding of fact.
White and Collins v Minister of Health (1939): local authority had statutory powers to compulsorily purchase land but these powers were dependent on the land not being ‘parkland’ therefore their decision could be reviewed.
Outline ‘no evidence for a fact’ as a type of errors of fact and provide an example.
If a finding of fact, on which a decision is based, is supported by no evidence at all, the Courts have felt able to overturn a decision based on it.
Coleen Properties v Minister of Health (1971): minister’s decision to compulsorily purchase a property had been made without any supporting evidence to challenge the finding in an inspector’s report that it wasn’t necessary .
Outline ‘ignorance or mistake of an established fact’ as a type of errors of fact.
Judicial review can be sought on the basis of a mistaken fact which has affected the evaluation of a decision. For the ignorance or mistake to be reviewable, it must have given rise to unfairness.
Define the sub-category of abuse of discretion and what are the two ways this ground of judicial review can arise?
This concerns the decision-maker misusing their statutory power by either:
-failing to take a relevant consideration into account OR taking an irrelevant consideration into account
-using the power for an improper purpose
If given discretionary powers, how must decision-makers exercise that discretion?
Decision-makers must exercise that discretion and not ‘fetter’ or restrict themselves.
When is a public body seen to have fettered its discretion?
A public body is seen to have ‘fettered’ its discretion when it has acted in a way that hampered its own ability to properly exercise a discretionary power.
What is the Carltona principle?
This principle recognises that it would not be practical or efficient for one government minister to make all the many decisions they are empowered to make.
Where discretion is conferred on a government minister, the Courts will presume in the absence of evidence to the contrary, that the minister is allowed to delegate their discretion to civil servants within the department (even if statute does not expressly say so) however the minister does remain politically accountable.
What is the general rule regarding the delegation of discretionary powers by a public authority to a separate body/organisation?
This is generally not permitted unless explicitly allowed by statute.
Define Wednesbury unreasonableness as a ground of judicial review.
A reasoning or decision is Wednesbury unreasonable (or irrational) if it is so unreasonable that no reasonable person acting reasonably could have made it (Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948).
In what circumstances does unreasonableness apply to a public law decision, refer to the definition formulated in the GCHQ case?
Unreasonableness applies to a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.
What are the three main classes/areas of unreasonableness that have been identified by the Courts?
- Material defects in the decision-making process e.g. wrongly weighing up relevant factors, failure to provide a comprehensive chain of reasoning
- Oppressive decisions-where a decision imposes excessive hardship/infringement of rights
- Decisions that violate constitutional principles-decisions made by public bodies should be consistent and rules should be sufficiently certain. Decisions that contradict these principles can be held to be unreasonable as they represent arbitrary decision-making.
