Tutorial 2: Discretion Flashcards
Lord Brightman in Chief Constable of the North Wales Police v Evans (1982)
“Judicial review is concerned not with the decision but with the merits of the decision making process”
Associated picture houses v Wednesday Corporation (1948)
Material Facts
Associated picture houses v Wednesday Corporation (1948) saw a challenge to a condition on licensing of cinemas by a local authority that said no one under the age of 15 was permitted into a picture house on a Sunday. Both cases looked to the use of discretionary power by a public authority with the argument that they acted in the public interest. Both unsuccessful challenges.
2 Strands in judges reasoning?
1) generally judges shouldn’t quash public authorities decisions on grounds that they are unreasonable. 2) their are certain forms of unreasonableness that the courts can intervene on.
Wednesbury Ground of review
So unreasonable that it is a decision no reasonable body could have come to
4 reasons for deference given in Kruse v Johnson (1898) Lord Russel
1) Legal allocation of power
2) Expertise
3) Political responsibility
4) Processes available to decision maker that aren’t available to the court.
Not enough that courts would have decided differently, to justify intervention decision must have been outside the bounds of a reasonable decision maker?
Lord Bingham in R v Home Secretary ex p Hindley 1998
Core rational for judicial review
was the decision so bad that no one in the position of the initial decision maker could have in good faith have presented it as an acceptable use of discretion.
List of Wednesbury Principles’: substantive features that make an exercise of power unlawful
- error of law
- irrelevant considerations
- absurd use, no reasonable decision maker would have done this
- bad faith
Discretion
decision maker has a choice to make
but must act responsibly and not arbitrarily.
Means having a choice that must be used for public good and decision made reasonably.
Varieties of discretion
- express
- implied
- subjective
- inherent
- prerogative powers
- resultant
Express discretion
law maker states they have discretion.
Implied Discretion
law maker implies by saying authority ‘may’ do something or has the power to do something without saying how or when or why. Here common law may supply the decision of the lawmaker and supplant limits (Cooper v Wandsworth Board of Works (1863).
Grant of power in subjective terms
Law maker says that decision of authority is to prevail. (Wednesbury)
In legislation the words ‘thinks is acceptable’ are taken to mean ‘has legitimate grounds to impose’.
Inherent Discretion
Essential power for the body to carry out its function, typically involved a degree of discretion.
Prerogative power is discretionary
and so must be exercised reasonably
Resultant discretion
due to vagueness of direction leaves a choice of how you comply.
All discretion must be exercised responsibly
Or else will be grounds for review
Gerry Cottle’s Circus Ltd V Edinburgh material facts
- Circus company applied for licence but refused as had performing animals in show
Decision in Gerry Cottle’s Circus Ltd V Edinburgh City Council
Ultra Vires: went beyond discretion, ignored purpose of the act.
Factors relied upon were irruption.
Improper purpose- not intent of statute.
- their exception were irrational
R v North and East Devon Health Authority ex part Coughlan
material facts
SUBSTANTIVE LEGITIMATE EXPECTATIONS
- Coughlan, very disabled, several representations made to her that she would be able to live out the rest of her days at her care home.
- It was then deemed too expensive and shut down.
Sought judicial review on grounds that representations had led to legitimate expectations
Court of Appeal’s decision in R v North and East Devon Health Authority ex part Coughlan
- weighed importance t her against the cost to health Authority.
- Said they had been unfair, offered her no alternative accommodation.
- Distinguished this from situation where no express promise made. If only made assurances that patients would be treated in line with current policy then would only be subject to Wednesday Unreasonableness.
3 cases where legitimate expectation found
1) change of policy
2) No consultation
3) Promise having the character of a contract
Change of policy
if expectation that they will be treated in line with current policy. Then judicial review limited to Wednesbury unreasonableness. This category when sizeable mounts of population and pure policy decision.
No consultation
induced through promise or practice legitimate expectation that there will be consultation.Needs overridding reason to justify consultation not having occurred if legitimate expectation has occurred.
Promise having the character of a contract
Promise or practice leads to legit expectation. Confined to a few individuals.
Coughlan is example of this/
Needs sufficient reason to act out with expectation.
R (Rotherham Metropolitan Borough Council and Secretary of State for Business, Innovation and Skills (2015)
Material Facts
Challenge to Sos decision on allocations of EU funds to different parts of the UK.
- Argued calculations failed to treat like regions alike and unlike regions differently.
- Supreme Court said decision lawful.
R (Rotherham Metropolitan Corough Council and Secretary of State for Business, Innovation and Skills (2015) )
Grounds of review
- Irrational decision based on irrelevant considerations
- ## interfered with EU right so proportionality must be shown
R (Rotherham Metropolitan Borough Council and SoS for Business, Innovation and Skills 2015)
Irrelevant consideration ground of review
- look at corner house decision too
- some things should be considered and some shouldn’t, both sides should be considered.
- Room for discretion, within limits decision maker can decide what to take into account and what not to
Primary concern of judges when deciding R (Rotherham Metropolitan Borough Council Sos for Business, Innovation and Skills) 2015 ?
- Scope of discretion
- level of intensity the court was right to subject the decision on a sensitive matter such as funding to
Differences between ‘improper purposes’ (Gerry Cottle’s) and ‘irrelevant considerations’ (Rotherham MBC) ?
- improper purposes looks to intentions and effects of action
- irrelevant considerations looks at the basis of that decision and whether it should have been taken.
Does judges scrutiny intensity depend on the subject matter or the ground of review?
Subject matter
but easier under improper purposes as suggests arbitrary action, harder to claim irrelevant considerations
Effect of Gerry Cottle?
Increased accountability as pushed councils to give reasonable and legitimate backing for decisions
Abuse of power =
frustration of a legitimate aim
2 types of legitimate expectation
1) Substantive
2) Procedural
What type of expectation was Coughlan an example of?
Substantive
What does a procedural expectation look at?
The way the decision was made
- consultation
- access to information
- allowance for legal representation
- much easier to establish than substantive expectation
What do you need to do show to have a substantive expectation?
- clear unambiguous promise
- to small number of people
- to do something specific
Coughlan
Define deference
a requirement of comity that depends on justiciability, process impact and the value of second guessing by an independent decision maker.
3 principle reasons for allocating power to admin body
1) expertise
2) political responsibility
3) effective porcess
Facts ECJ apply when reviewing discretionary decisions of the EU Institutions
1) lack of competences (in UK= UV)
2) infringement of purpose (in Uk this would be fairness/due process)
3) Infringement of treaty pr any relevant law (illegality)
4) Misuse of power (Abuse of power)
Where are these principles of the ECJ to be found?
The Treaty in the Functioning of Eu
Roth (2003) Laws LJ gave 4 principles that would guide the courts on discretion
1) greater deference to Acts than decision of exec or subordinate measure
2) More scope to balance where convention needs balance to be struck
3) Greater deference is due to the democratic powers where the subject-matter was peculiar within their constitutional responsibility
4) more deference if in expertise of decision maker, less if in expertise of court.
