Tutorial 2: Discretion

Question 1

Lord Brightman in Chief Constable of the North Wales Police v Evans (1982)

Answer 1

“Judicial review is concerned not with the decision but with the merits of the decision making process”

Question 2

Associated picture houses v Wednesday Corporation (1948)

Material Facts

Answer 2

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.

Question 3

2 Strands in judges reasoning?

Answer 3

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.

Question 4

Wednesbury Ground of review

Answer 4

So unreasonable that it is a decision no reasonable body could have come to

Question 5

4 reasons for deference given in Kruse v Johnson (1898) Lord Russel

Answer 5

1) Legal allocation of power
2) Expertise
3) Political responsibility
4) Processes available to decision maker that aren’t available to the court.

Question 6

Not enough that courts would have decided differently, to justify intervention decision must have been outside the bounds of a reasonable decision maker?

Answer 6

Lord Bingham in R v Home Secretary ex p Hindley 1998

Question 7

Core rational for judicial review

Answer 7

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.

Question 8

List of Wednesbury Principles’: substantive features that make an exercise of power unlawful

Answer 8

• error of law
• irrelevant considerations
• absurd use, no reasonable decision maker would have done this
• bad faith

Question 9

Discretion

Answer 9

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.

Question 10

Varieties of discretion

Answer 10

• express
• implied
• subjective
• inherent
• prerogative powers
• resultant

Question 11

Express discretion

Answer 11

law maker states they have discretion.

Question 12

Implied Discretion

Answer 12

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).

Question 13

Grant of power in subjective terms

Answer 13

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’.

Question 14

Inherent Discretion

Answer 14

Essential power for the body to carry out its function, typically involved a degree of discretion.

Question 15

Prerogative power is discretionary

Answer 15

and so must be exercised reasonably

Question 16

Resultant discretion

Answer 16

due to vagueness of direction leaves a choice of how you comply.

Question 17

All discretion must be exercised responsibly

Answer 17

Or else will be grounds for review

Question 18

Gerry Cottle’s Circus Ltd V Edinburgh material facts

Answer 18

• Circus company applied for licence but refused as had performing animals in show

Question 19

Decision in Gerry Cottle’s Circus Ltd V Edinburgh City Council

Answer 19

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

Question 20

R v North and East Devon Health Authority ex part Coughlan

material facts

Answer 20

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

Question 21

Court of Appeal’s decision in R v North and East Devon Health Authority ex part Coughlan

Answer 21

• 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.

Question 22

3 cases where legitimate expectation found

Answer 22

1) change of policy
2) No consultation
3) Promise having the character of a contract

Question 23

Change of policy

Answer 23

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.

Question 24

No consultation

Answer 24

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.

Question 25

Promise having the character of a contract

Answer 25

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.

Question 26

R (Rotherham Metropolitan Borough Council and Secretary of State for Business, Innovation and Skills (2015)
Material Facts

Answer 26

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.

Question 27

R (Rotherham Metropolitan Corough Council and Secretary of State for Business, Innovation and Skills (2015) )
Grounds of review

Answer 27

• Irrational decision based on irrelevant considerations
• ## interfered with EU right so proportionality must be shown

Question 28

R (Rotherham Metropolitan Borough Council and SoS for Business, Innovation and Skills 2015)
Irrelevant consideration ground of review

Answer 28

• 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

Question 29

Primary concern of judges when deciding R (Rotherham Metropolitan Borough Council Sos for Business, Innovation and Skills) 2015 ?

Answer 29

• Scope of discretion

- level of intensity the court was right to subject the decision on a sensitive matter such as funding to

Question 30

Differences between ‘improper purposes’ (Gerry Cottle’s) and ‘irrelevant considerations’ (Rotherham MBC) ?

Answer 30

• 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.

Question 31

Does judges scrutiny intensity depend on the subject matter or the ground of review?

Answer 31

Subject matter

but easier under improper purposes as suggests arbitrary action, harder to claim irrelevant considerations

Question 32

Effect of Gerry Cottle?

Answer 32

Increased accountability as pushed councils to give reasonable and legitimate backing for decisions

Question 33

Abuse of power =

Answer 33

frustration of a legitimate aim

Question 34

2 types of legitimate expectation

Answer 34

1) Substantive

2) Procedural

Question 35

What type of expectation was Coughlan an example of?

Answer 35

Substantive

Question 36

What does a procedural expectation look at?

Answer 36

The way the decision was made

• consultation
• access to information
• allowance for legal representation
• much easier to establish than substantive expectation

Question 37

What do you need to do show to have a substantive expectation?

Answer 37

• clear unambiguous promise
• to small number of people
• to do something specific

Coughlan

Question 38

Define deference

Answer 38

a requirement of comity that depends on justiciability, process impact and the value of second guessing by an independent decision maker.

Question 39

3 principle reasons for allocating power to admin body

Answer 39

1) expertise
2) political responsibility
3) effective porcess

Question 40

Facts ECJ apply when reviewing discretionary decisions of the EU Institutions

Answer 40

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)

Question 41

Where are these principles of the ECJ to be found?

Answer 41

The Treaty in the Functioning of Eu

Question 42

Roth (2003) Laws LJ gave 4 principles that would guide the courts on discretion

Answer 42

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.