Ultra Vires II (L3)

Question 1

What should you note when reading judicial review cases?

Answer 1

• What practical benefit is the claimant/pursuer seeking from going to court?
• What is the legal status of the rule that the decision-maker is acting under?
• Whether (if statutory) the provision is a power or a duty?
• Whether the decision-maker has any discretion. If so, how broad or narrow is that discretion?
• Is the claimant/pursuer challenging only the decision itself or also the rule under which it has been made?

Question 2

Does the making of an error of law by a decision-maker automatically render that decision unlawful: WHAT WAS THE HISTORICAL APPROACH?

Answer 2

Historically, the answer was no, it does not.
Courts used to apply a distinction between errors of law which were beyond jurisdiction (ultra vires) and those which were within jurisdiction (intra vires).

Question 3

Does the making of an error of law by a decision-maker automatically render that decision unlawful: WHAT DID ANISMINIC SAY ABOUT THIS?

Answer 3

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.

The English courts moved away from the distinction so that errors of law usually rendered decisions unlawful.

Question 4

How did the Scottish courts respond to Anisminic?

Answer 4

Continued to apply the distinction between errors of law which were beyond jurisdiction and those which were within jurisdiction even after Anisminic:
Watt v Lord Advocate 1979 SC 120.
O’Neill v Scottish Joint Negotiating Committee for Teaching Staff 1987 SLT 648.

Question 5

Why did the Scottish courts position change in the 2010s?

Answer 5

Eba v Advocate General [2011] UKSC 29, [2012] 1 AC 710.
R (Cart) v Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663.

Question 6

When can legislation be judicially reviewed?

Answer 6

Challenge the validity of subordinate legislation made under an Act of Parliament e.g. under the HRA.

Challenge the validity of legislation made by the devolved assemblies e.g. asps.
Can be made under the HRA or under the HR provisions of the devolved statutes.

Question 7

Under what grounds can UK subordinate legislation be judicially reviewed?

Answer 7

Challenges to subordinate legislation made under Acts of Parliament may be made on substantive or procedural grounds.

Question 8

When is a substantive challenge made to subordinate legislation?

Answer 8

A substantive challenge is made where the content or effect of the legislation is ultra vires the enabling Act of Parliament.

Daymond v South West Water Authority.
Malloch v Aberdeen Corporation 1973 SC 227.

Question 9

When is a procedural challenge made to subordinate legislation?

Answer 9

A procedural challenge is made where the legislation has been enacted without following the procedures prescribed in the enabling Act.

Several cases concern statutory consultation requirements:
Agricultural Training Board v Aylesbury Mushrooms [1972] 1 All ER 280.
R v Secretary of State, ex parte AMA [1986] 1 ALL ER 164.