Purposes of Judicial Review + Ultra Vires Principle (L2) Flashcards
What is an ‘appeal on the merits’?
Allows you to challenge any aspect of a decision.
What are the different aspects of a decision which may be challenged through JR?
Mistake in law.
Mistake in fact.
Wrongly exercised discretion.
In the GCHQ case, what are the classifications of grounds of review which Lord Diplock set out?
Illegality.
Irrationality.
Procedural impropriety.
What are the grounds of review under Lord Diplock’s ‘illegality’ category?
Substantive ultra vires.
Relevant/irrelevant factors.
Irrationality.
Proper/improper purpose.
Legitimate expectation (substantive).
Surrendering discretion.
Fettering discretion.
Unauthorised delegation.
Proportionality (HR/retained EU only).
What is the ultra vires principle?
When a public body acts beyond the limits imposed by the statute [or other law] that conferred the power it acts unlawfully.
Which two cases were cited as examples of the ultra vires principle?
D&J Nicol v Dundee Harbour Trustees 1915 SC (HL).
McColl v Strathclyde Regional Council.
What does it mean to say the ultra vires principle is qualified by the ‘implied powers’ rule?
A public authority’s powers are not limited to what is expressly stated in the statute, but also include matters incidental to or consequential upon the things expressly authorised.
How does the case of Graham v. Glasgow Corporation 1936 S.C. 108 demonstrate a narrow sense of ultra vires?
Glasgow Corp had a duty to provide schools for children in the area. Printed its own stationary.
Held Corp were not acting unlawfully here, as they had a duty to provide education, providing its own stationary can be seen as an implied power under this.
What is the distinction between substantial ultra vires and procedural ultra vires?
In a case based on substantive ultra vires, the content or effect of the decision is challenged.
Whereas, in a case based on procedural ultra vires, the decision is challenged because of the procedure that has been followed to make it.
How do the cases of London and Clydeside Estates Ltd. v. Aberdeen District Council 1980 S.L.T. 81 and R v Immigration Appeal Tribunal ex parte Jeyeanthan [2001] 1 WLR 354 (CA) demonstrate different approaches to procedural ultra vires?
London and Clydeside:
On judicial review the certificate was held to be invalid because of the procedural defect it contained.
Jeyeanthan:
On a further appeal it was held, that this error did not invalidate the Secretary of State’s application for leave to appeal.
What is the courts’ general approach to procedural ultra vires?
In deciding how to deal with a procedural breach, courts weigh the seriousness of the breach, its effect on the aggrieved party and its consequences.
What did Lord Woolf suggest in Jeyeanthan as an approach to procedural ultra vires?
Test for determining the effects of a failure to comply with a procedural requirement was not whether the requirement was mandatory or directory, but rather, what were the consequences of non compliance.
Purpose of procedures was to further the interests of justice and this could only be addressed by a detailed examination of the requirement in issue.
What is the effect of failure to follow procedures designed to inform a person of their rights?
More likely to lead to invalidity (London and Clydeside Estates).
