Judicial Review - Illegality
Definition: "By illegality as a ground for JR, I mean that the decision-maker must understand correctly understand the law that regulates his exercises his power and must give effect to it" per Lord Diplock in GCHQ.
Types of illegality:
2. Errors of Law
Errors of law are reviewable (R v Hull University ex parte Page), even if there is an ouster clause (Anisiminic v Foreign Compensation Commission).
3. Errors of Fact
Precedent facts (jurisdiction facts) must be correctly ascertained before power can be used. E.g. If there is a power to deport an alien, he can only be deported if it can be shown he is an alien.
Errors of fact are not generally reviewable UNLESS the mistake involves precedent facts (White & Collins v Ministry of Health, ex parte Khawaja) OR there is no evidence to support the supposed fact (Tameside MBC v SoS for Education).
In R v Criminal Injuries Board ex parte A, A made a claim for rape & buggery. The CIB made the decision based on evidence that a policeman “made up”. The case went to the HL. Lord Slynn stated orbiter that errors of fact may amount to errors of law. Other lords agreed.
3. True Ultra Vires
Definition: "If a decision-maker exercises his powers outside the jurisdiction conferred ... he is acting ultra vires and therefore unlawfully " per Lord Browne-Wilke. Cases: R v Lord Chancellor ex parte Witham.
4. Incorrect Consideration of Relevant/Irrelevant Factors
Statute may specify which factors are relevant or irrelevant, BUT some factors may be disretionary.
"decision-makers have a margin of appreciation within which ... he may decide just what considerations should play a part in his reasoning process" per Simon Brown LJ in R v Somerset CC ex parte Fewings
Cases: ex parte Venables, ex parte Asif Khan, Roberts v Hopwood, ex parte P.
5. Improper Purpose
If a decision-maker uses his powers for a purpose other than that for which it was given under statute, he acts ultra vires. The purpose may be express (ex parte Fewing) and implicit (Congreve v Home Office)
Cases: ex parte Fewing, Padfield v Minister of Agriculture, Congreve v Home Office, R v Talbot BC exp Jones.
6. Improper Delegation of Discretion
The basic presumption is that discretionary power cannot be delegated (Lavender v Minister of Housing & Local Government) EXCEPT situations covered by the Cartlona Principle.
6.1 The Carltona Principle
If discretion is conferred on a minister, it can be delegated within his department even though the statute does not say so (Carltona v Works Commissioners, ex parte Oladehinde). The extent of allowed delegation will vary. If fundamental rights are at stake, then delegation may not be allowed (ex parte Doody BUT ex parte Oladehinde)
"Constitutionally the decision of such an officier is the decision of the Minister; the Minister is respsonsible to Parliament" per Lord Greene MR
7. Fettering of Discretion
Ever application should be looked at on a 1-1 basis, but in reality, policies are used to make decisions.
Policies must pursue the aims of statute (exp Fire Brigades)
Courts have "no objection (to a policy) ... provided that the authority is always willing to listen to anyone with something new to say" per Lord Ried
9. Human Rights and Fettering
If a policy interfers with HR, then it must be proportionate.
Cases: R v SoS for Home Office exp P & exp Q, Lindsay v Commissioner of Customs & Excise, R v SoS for Home Department ex parte Daly.
British Oxygen v Board of Trade - BOT claimed that they considered applications, but acted as is policy was a rule. HELD: BOT acted properly.
Carltona v Works Commissioners - The policy of levying rate payers to pay for lower fair on London Transport was unfair to rate-payers (who did not all use London Transport) London Transport should be run as a commercial enterprise.
Carltona v Works Commissioners - Requisition order was not made by Work Commissioner, rather than ...
Congreve v Home Office - TV licences increases were announced. Congreve bought his licence early. The licence was revoked. The courts ruled that the purpose of the revocation was to ensure that licence were not wrongly obtained, not to raise revenue.
Lavender v Minister of Housing & Local Government - The Minister for Housing & Local Government had wrongly delegated his responsibility to the Minister for Agriculture.
Lindsay v Commissioner of Customs & Excise - Regulations re seizure of tabacco for personal use were illegal.
Kynoch v Port of London Authority - "has in substance shut its ears to the application which were made to it".
NW Lanchashire HA ex parte A - policy was to rank operations. treansexual operations did not recieve priority. Policy was OK but there was a need to allow for "exceptional circumstances", where "exceptional circumstances" is not defined.
Padfield v Minster of Agriculture - The minister refused to refer a complaint for investigation because it might embarrass him.
R v Lord Chancellor ex parte Witham - the LC has the power to set court fees. Fees were set to discourage people from going to court. Court ruled that the LC was not authorised to behave in this way. "The right to a fair trial .., is as near as an absolute right as any I can envisage". Clear words in the Act would be required before access could be reduced.
R v SoS for Home Department ex parte Venables - Statute allows the HS to consider retribution, revenge deterrence, protection of society when considering tariff. Public opinion is not a relevant factor.
R v Somerset CC ex parte Fewings - Stag hunting banned because it was regarded as immoral. Somerset required to control land for benefit of residence. Other factors were ignored. HELD: The decision was wrong.
R v Talbot BC ex parte Jones - divorced wife (a local councillor) put at the top of the council housing waiting list.
R v SoS for Home Department ex parte Asif Khan - refused adoption after fulfilling published criteria. Agency had limited there own pwers by specifying criteria.
R v SoS for Home Department ex parte Doody - The HS could not delegate decision re tariffs below junior minister.
R v SoS for Home Department ex parte Fire Brigades - HS attempted to use his discretion to bring in his own compensation scheme rather than the statutory one.
R v SoS for Home Department ex parte Khawaja - It was a matter of fact for the courts to decide whether Khawaja was an illegal immigrant. Officials had not established that this was the case.
R v SoS for Home Department ex parte Oladehinde - Decision to deported legally made by immigration inspector (not HS)
R v SoS for Home Department ex parte P - 'A' grade offender denied application to be reclassified as class 'B' offender. P was severly ill - escape was not an option.
R v SoS for Home Department ex parte P & ex parte Q - policy was to remove 18 month old babies from mothers in prison and put them into care.
R v Warwickshire CC ex parte Collymore - over 300 appeals made to Collymore , all of which failed. Court decided that Warwickshire CC had "shut their ears" .
Roberts v Hopwood(1920s) - Poplar BC had the power to set wages. Poplar paid high wages, but in doing so ignored the interets of the rate payers.
Tameside MBC v SoS for Education - Tameside MBC claimed that Grammar schools harmed education. Court ruled there was no evidence for this.
White & Collins v Ministry of Health - A local authority had power to compulsorily purchase land, but not if it was parkland. The authority had failed to realise that the land in wuestion was part of a park.