Review of Discretion II (L5)

Question 1

What is the ground of improper purpose?

Answer 1

Administrative decisions may be subject to review where it was taken to further an improper purpose.

Question 2

What is the improper purpose doctrine?

Answer 2

Basic rule — an authority must not use a discretionary power for purposes that are incompatible with the reasons it was given the power.
Purpose may be explicitly stated in the statute or may be implied.

The proper purpose of a statute is a matter of law for judges to decide.

Justification for this ground of review — Parliamentary sovereignty (ensuring Parliament’s will is carried out); safeguarding the rule.

Question 3

How does Ashley v Magistrates of Rothesay (1873) 11 M. 708, (1874), 1 R (HL) 14 demonstrate the improper purpose doctrine?

Answer 3

The magistrates had power to vary the opening hours for public houses prescribed by Parliament, for particular localities within the burgh.

The magistrates imposed an earlier closing time for a specially defined area which included all the hotels, inns and public houses in the burgh.

In effect, the magistrates used their powers to make exceptions for particular areas to effect a general reduction of opening hours throughout the burgh.
Held ultra vires.

Question 4

What did Lord President Inglis call the situation in Ashley in the Inner House?

Answer 4

“A mode of defeating the words of the Act of Parliament by an ingenious contrivance“.

Question 5

How does the case of Municipal Council of Sydney v Campbell [1925] AC 339 (Privy Council) demonstrate express purpose?

Answer 5

Power to purchase compulsorily land to improve the city.
Council purchased the claimant’s land.
Held the Council had purchased the land for profit, not improvement to the city.
Council’s actions were not for the purpose authorised.

Question 6

What did Laws J say about implied purpose in R v Somerset County Council ex parte Fewings [1995] 1 ALL ER 513?

Answer 6

“Where a statute does not by express words define the purposes for which the powers it confers are to be exercised, the decision-maker is bound nevertheless to ascertain and apply the aims intended, since no statute can be purposeless: and therefore unless the Act’s true purpose is correctly understood the decision-maker, who is Parliament’s delegate, is at risk of using powers to an end for which they were never given him. If he does so, he exceeds his authority as surely as if he transgresses the plainest statutory language”.

Question 7

How is the case of Congreve v Home Office [1976] QB 629 an example of implied purpose?

Answer 7

TV licenses increased price. Many renewed licenses early to avoid increased charge.

Home Secretary threatened to revoke licenses and make Congreve (and others) pay new fee.

Revocation for the purpose of extracting a higher fee was not a purpose authorised by the statute.

Question 8

How did Lord Reid define purpose in Padfield v Minister for Agriculture, Fisheries and Food [1968] AC 997?

Answer 8

(p1030).
Intention of Parliament is for the discretion to be used to promote the policy and objects of the Act.

Policy and objects are determined by construing the Act as a whole.

Construction is always a matter of law for the court.

Question 9

How does the case of R v Somerset County Council ex parte Fewings [1995] 1 WLR 1037 show the authority acting for a political purpose?

Answer 9

Council banned stag hunting on its land using discretionary powers granted for the “benefit, improvement or development of the area” (Local Government Act 1972, s120(1)(b)).

Council’s decision to ban hunting was based on ethical considerations.

Court held the decisions to be unlawful because the council had failed to take account of the purpose of the statute and had not acted to promote the benefit of the area.

Question 10

How do planning cases demonstrate the improper purpose doctrine?

Answer 10

Licensing and planning powers may not be used to further the public interest unless that purpose is within the objects of the statute.

Question 11

Which planning cases demonstrate the improper purpose doctrine?

Answer 11

Pyx Granite Co Ltd v Minister of Housing and Local Government [1958] 1 ALL ER 625.

Hall & Co Ltd v Shoreham by Sea UDC Council [1964] 1 ALL ER 1.

R v Hillingdon London BC, ex parte Royco Homes [1974] 2 ALL ER 642.

Question 12

Why is the case of R v Hillingdon London BC, ex parte Royco Homes [1974] 2 ALL ER 642 useful as an improper purpose doctrine planning case?

Answer 12

A local authority granted planning permission to build blocks of flats subject inter alia to the condition that the dwellings first be occupied by persons who were on the council waiting list.

Held this condition was ultra vires as its purpose was in effect to transfer part of the authority’s duty as housing authority to the developer.

Question 13

What is acting for mixed purposes?

Answer 13

In some cases, there may be several purposes to which an authority is using its discretionary power.

Basic principle = acting based on mixed purposes is lawful as long as the dominant purpose matches that of the statute.

Westminster Corporation v London and North Western Railway Co [1905] AC 426.

Question 14

What does it mean to say that purpose constrains discretion?

Answer 14

Determining purpose of a statute is a matter of law for the court, not the initial decision-maker.
Once the purpose of a statute has been determined, the scope of a discretion is significantly constrained.
The improper purpose doctrine is a potentially powerful and non-deferential ground of review.

Question 15

What is the ‘relevance’ ground of review?

Answer 15

Basic rule: public authorities must take relevant considerations into account and must ignore irrelevant considerations.

Consideration = something that a decision-maker might take into account in a way that might affect the decision.
It can be a general consideration (e.g. the purpose of the decision-making power as in Padfield).
Or it can be one of the facts of the particular case.

Question 16

What actually are ‘relevant’ considerations?

Answer 16

Factors explicitly identified in the governing statute or clearly implied as relevant by the governing statute must be taken into account.
But statutes frequently do not specify exhaustively the factors which are to govern decision making.
Courts, therefore, have to determine whether the considerations which have influenced a decision are consistent with the statutory scheme in question.

Padfield v Minister of Agriculture, Fisheries and Food [1968] A.C. 997.

Question 17

What did Lord Greene say in Wednesbury about the relevancy doctrine?

Answer 17

“If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely,… the authority must disregard… irrelevant collateral matters.”
Associated Provincial Picture Houses v Wednesbury Corporation [1948].

Question 18

How does Re Findlay demonstrate required or permitted matters in terms of relevance?

Answer 18

Home Sec’s policy restricted circumstances where prisoners could be released on license.
Claimant argued parole board should have been consulted.
Argued the Home Secretary failed to take account of parole board’s view.

The statute did not require the parole board to be consulted (even though he could have done so had he wanted to.

Question 19

In Re Findlay, a quote from the New Zealand case of CREEDNZ Inc v Governor General [1981] 1 NZLR 172 was adopted…

Answer 19

“…It is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the court holds a decision invalid… It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision”.

Question 20

What was situation in the Padfield case?

Answer 20

Legislation allowed for a complaint to be referred to a committee, the minister refused to do so.
Politically sensitive issue: higher prices for one region, would mean less for another.

Committee of investigation has a duty ‘if in any case the minister so directs’ of reporting on ‘any complaint made to the minister as to the operation of the scheme’.

Question 21

What are the key points to take from the Padfield case?

Answer 21

No discretion is unfettered and lawful exercise is constrained by policy and objects.

Determining the purpose of a statute constrains discretion and sets the parameters for relevance.

Purpose and relevance are, therefore, intimately connected.

Question 22

How do courts decide the relevance of a consideration?

Answer 22

Importance of the consideration.
Nature of the decision-making function.
The nature of the statutory scheme.
Underlying objectives of the scheme or policy.

Question 23

How does R v East Sussex County Council ex parte Tandy [1998] AC 714 demonstrate when financial considerations are NOT relevant?

Answer 23

Local authority had a duty to provide suitable education.
Girl could not go to school for medical reasons.
Home tuition was provided for her for 5 hours a week, which was later reduced to 3 due to budget cuts.

Duty of the local authority was to provide ‘suitable education’. Statute stated the education must be based on the child’s needs, not available funds.
Therefore, resources are not a relevant consideration in fulfilling the duty.

Question 24

How does R v Cambridge Health Authority ex parte Barry [1997] AC 584 demonstrate when financial considerations ARE relevant?

Answer 24

Health authority refused treatment to 9 year old girl.
Under the statutory scheme the Health Board had discretion about how to distribute resources amongst competing needs in fulfilling its duties in this area.

Financial considerations were therefore relevant in this case.

Question 25

Which cases demonstrate that financial considerations are still an area of difficulty in terms of relevance?

Answer 25

R (McDonald v Royal Borough of Kensington and Chelsea [2011] UKSC 33, 2011 4 All ER 881.

R (KM) v Cambridgeshire CC [2012] UKSC 33, [2012] 3 All ER 1218.

Question 26

What are the limits to relevancy review?

Answer 26

Weight sgiven to relevant factors is a matter for the decision-maker subject to review for unreasonableness and court will not substitute its own judgment on appropriate weight to be given to relevant factors.

However, this distinction may be blurred by terms of statute itself.

A number of statutes oblige decision-maker to have ‘due regard’ to specified matter e.g. Public Sector Equality Duty (PSED) which has provoked much litigation.
Under the Equality Act 2010 – e.g. McHattie v South Ayrshire Council 2020 [CSOH] 4.
PSED applies to a wide range of statutory functions.