judicial review part 5 Flashcards
council of civil unions v minister for the civil service 1985- grounds for JR
introduced 3 grounds the judges will look at to assess whether the decision is lawful or not
-illegality
-irrationality
-procedural impropriety
- illegality
-the decision-maker must understand the law that regulates his decision-making and must give effect to it
(must act within the 4 corners of his powers)
- absence of statutory authority- the decision or action exceeds the powers granted by parliament
- various misuses/abuses of discretionary powers
a.failure to exercise a discretion
b. wrongful use of discretionary powers - jurisdictional review- errors of law and fact
- human rights
absence of statutory authority
public bodys must first read statute to decide whether this is something parliament wanted/intended for them to do/ willing to allow them to do
-the PB has undertaken activities for which they have no legal authority
-attorney general v fulham corporation 1921- Bath and washhouses act said PB should set up baths and washhouses, built commercial laundrette, laundrette not covered by act so exceeded authority
-Bromley lodnon borough council v greater london council 1983- london borough council cutting train ticket prices by 25%, not empowered to do so due to promise in manefesto that so exceeded authority (political)
-R v sos for the home department 1994- authorised scrutiny of all prisoner correspondance, authorisation did not cover scrutinising correspondance with solicitors so unlawful
various misuses/abuses of discretionary powers
discretion- allows ministers the flexiblity to get the job done using common sense to act in the best interest
(a)failure to exercise a discretion
-unlawful delegation (if powers have been delegated to someone, it is them who must perform the duty and not delegate further)
-Barnard & others v national dock labour board 1953- national board delegated disiplinary powers to port manager, not within their discretionary powers to delegate so ultra vires
-carltona v commissioners of works 1943- sub-delegation not always unlawful if it stays within the same body that is authorised by parliament, civil servant acting for minister was lawful as they are not required to do all work just overall responsibility, can decide whos doing what
-fetterring of discretion, public body does not exercise its discretion but allows itswlf to follow another bodys discretion instead (blanket policies, stating this is the way they always decide)
-AG ex rel tilley v wandsworth london borough council 1981- refusing council housing for all families intentionally homeless, must at all times in every case consider how to exercise their discretion and how to perform their duties (such as children)
various misuses/abuses of discretionary powers cont
(b)wrongful use of discretionary powers/improper purpose
-abuse of discretion- going beyond what parliament intended you to do, taking things into account to make decision which you should not have
-congreve v home office 1976- improper purpose of powers
-wheeler v leicester 1985- cant take politics into account for decisions, cricket club engaged with south africa banned from using venues, unlawful
-roberts v hopwoof 1925- wanting to be model employer but not authorised acts
-must take into account relevant & exclude irrelevant consideration
-tescos stores ltd v sos for the environment 1995- did the council take into account the relevant considertaions of the sliproad?, not for the courts to decide, just for them to decide whether they used their discretionary powers properly (limits to the power of the judiciary), only interfere when he acts unreasonably
errors of law and fact
-if you misinterpret or misunderstand the scope of your powers/the intention of parliament your decision must not be allowed to stand
-anisminic 1969
-white & collins v minister of health 1939- misread statute that stated could not buy land that formed a park, garden or pleasure ground but did so
-slight mistakes but decision overall still in the rules set by parliament, court might not interfere
Human rights
HRA 1998- unlawful for a public authority to act incompatibly with a convention right
if this happens the court may interfere
however if parliament asks them to do something that violates these rights, they must do so as not doing so would be going against their discretion
- irrationality
decisions made by public bodies that are irrational or unreasonabe should not be allowed to stand
-associated provincial picture house v wednesbury corporation 1948- first introduced the grounds of unreasonableness/irrationality
-2 types of unreasonableness:
1. general
2. strong or wednesbury
general unreasonableness
the verdict if anything in illegality goes wrong
strong/wednesbury unreasonableness
despite doing eveything correctly they have come up with a conclusion which is so unreasonable that no reasonable authority could ever have come to it
-CCSU v minister for the civil service 1985- updated definition of a decision so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind could have arrived at it (the exception not the norm)
-high threshold because of the seperation of powers
interpretations:
-blackhouse v lambeth london borough council 1972- raised the rent on 1 property from £8 to £18,000, court said not illegal as raised rent but unreasonable
-chief constable of sussex ex parte international traders ferry 1999- police stopped policing protest due to time was reasonable due to limited resources
-wheeler v leicester city council- 1985 unreaonable to ban sport ground who engaged whith african team
-r v sos for the home depratment ex parte brind 1991- not giving terrorists platforms to speak, dubbing important speech of those related to the groups, court decided was reasonable
wednesbury unreasonableness continued
R v Ministry of defence ex parte smith 1996
(wednesbury is the exception not the rule)
sir bingham- the greater the political content the more remote the knowledge of the judiciary for right and wrong so the more hesitant the court will be when interefering
-the more substantial the interference with human rights, the more the courts will require by way of justification before it si satisfied that the decision is reasonable
problems with wednesbury unreasonableness:
smith & grady v UK 2000- if the threshold is so high that hardly any decisions will be made in favour of the aggreved individual, especially in cases of human rights, then there is a clash of interests
-why HRA introduced convention rights and proprotionality to british JR
proportionality
no general test
however HOL used proportionality for cases that are not british but the privy council is involved
but not binding precedent (cases with EU lae and the HRA)- R v sos for defence 2003
-assuming that the aim is a legitimate one, the meas used to achieve that legitimate aim must be in porportion when one balances what is being lost or restricted in attempting to meet the aim
- procedural impropriety
2 approaches
a. narrow interpretation- failure to adhere to procedural requirements
b. broader interpretation- the rules of natural justice have been broken (e.g listen to the other side, right to a fair trial, non-one is judge in their own case)
a. failure to adhere to procedural requirements
2 potential secnarios
-breach of mandatory rules
agricultural, horticultural and forestry industry training board v aylesbury mushrooms 1972- required to consult everyone involved, did by letter that never arrived to people so did not fulfill requirement as need to do more
-breach of directory rules (more vague)
coney v choyce 1975- should give notice to those involved in changing public school system, forgot 2 schools, minor technical mistake and majority of notices given out, public notice is more vague and general so not breached,
-here not every mistake will be a breach
most important to consider whether the overall objective was achieved/interest of individuals effected?
-R v Immigration appeal tribunal 2000- no right to visa so right to be heard not violatd and PB does not need to give reasons
b. the rules of natural justice have been broken
common law rules developed to ensure that PA take decisios and actions in a manner thats fair and transparent
the basic rules that underpin the working of PBs, the judiciary and everything in between, regulate how the PBs interact with us
-Ridge v Baldwin 1964- dismissed acquitted chief constable, employer failed to observe natural justice by not informing of the complaint and no hearing his side of the story
-Mcinnes v onslow- fane 1978- boxing license stopped after 4 years with no reason, no right to know why as something was not taken away just refused a new one
-lloyd v McMahon 1987- failure to offer an oral hearig despite full written representation was sufficient as the right to be heard can just be written not oral
