Public II 2 Grounds for Judicial Review 1 and 2

Illegality

A public body is not entitled to act in excess of its power or ultra vires

Sub-categories of Illegality

Simple Illegality (Ultra Vires), Errors of Law, Errors of Fact, Relevant and Irrelevant Considerations, Improper Purpose, Fettering Discretion and Unlawful Delegation

Simple Illegality

Where a body acts outside of the boundaries of its legal power

Attorney General v Fulham Corporation

Local authority was acting “outside the four corners of the Act” by setting up a laundry service where residents had to pay to use the washhouses

Westminster Corporation v London & North-West Railway

Public body will not have acted unlawfully if it did something which was reasonably incidental to or consequent upon a power it did have ie building a subway to access the lavatories it had built

Principle of Legality

Court takes an approach to statutory interpretation presuming that Parliament did not intend to authorise the infringement without very specific authorisation

R v Lord Chancellor, ex parte Witham

Court held that the parent act did not authorise the Lord Chancellor to set court fees at such a high level to restrict a fundamental right to access the courts

Error of Law

Typically involves a decision maker making a mistake regarding a question of law, for example by misinterpreting the meaning of words in a legislative provisiom

Anisminic v Foreign Compensation Commission

House of Lords ruled that the FCC misunderstood the rules of the compensation scheme so the decision was quashed

R v Lord President of the Privy Council, ex parte Page

All errors of law are potentially reviewable

Exceptions to reviewability of errors of law

where the error of law is not decisive to the decision, where the decision maker is interpreting some special system of rules and where the power granted is couched in terms which are so imprecise that is is capable of being interpreted in a wide range of ways

Re Racal Communications Ltd

Court will not entertain an application for judicial review of a superior court for error of law

R v Monopolies Commission, ex parte South Yorkshire Transport Ltd

Court held that they should not intervene where wording is imprecise unless the decision maker’s conclusion is irrational

R (Forge Care Homes Ltd) v Cardiff and Vale University Health Board

Found that the Health Board has misinterpreted the Health and Social Care Act 2001 and their decision amounted to an error of law

Types of Errors of Fact

Precedent Facts, No evidence for a fact and Ignorance or mistake of an established fact

Precedent Facts

Where a decision maker’s power to decide on a particular matter depends upon it making an initial finding of fact

White and Collins v Minister of Health

The court quashed a decision to buy an area of parkland as the authority was mistaken and did not believe it to be parkland

R v Secretary of State for the Home Department, ex parte Khawaja

Court found it could review the fact of whether the claimant was an “illegal entrant” in order to allow the Secretary of State to detain him

No evidence for a Fact

If a finding of fact on which the decision is based is supported by no evidence at all, the courts have felt able to overturn the decision based on it

Colleen Properties v Minister of Health and Local Government

Court overturned a Minister’s decision as it was made without any evidence

Secretary of State for Education v Tameside MBC

The Secretary of State had either misunderstood or was not informed of an established fact regarding grammar schools so the court quashed his decision

R v Criminal Injuries Compensation Board, ex parte A

Law Lords accepted that mistake of fact could be a ground for review as the court did not see the examination report which would have changed their decisions

E v Secretary of State for the Home Department

Established that for ignorance or mistake of fact to be reviewable, it must have caused unfairness

Test for mistake or ignorance causing unfairness (E v SSHD)

There must have been a mistake as to an existing fact, the fact or evidence must have been “established”, the appellant or his advisors must not have been responsible for the mistake and the mistake must have played a material, but not necessarily decisive, part in the decision

Relevant and Irrelevant Considerations

Decision makers can act unlawfully if they fail to take a relevant consideration into account or take into account an irrelevant consideration

R v Somerset County Council, ex parte Fewings

Court found that there a three kinds of considerations for a decision-maker: Mandatory, Prohibitory and Discretionary Factors

Mandatory Factors

Those expressly or impliedly identified by the statute to which regard must be had

Prohibitory Factors

Those identified by the statute to which regard must not be had

Discretionary Factors

Those to which the decision-maker may have regard if in their judgment and discretion it is right to do so

R v Secretary of State for the Home Department, ex parte Venables and Thompson

Home Secretary’s decision to set the boy’s tariffs at 15 years but the decision was quashed as irrelevant factors were taken into account such as public clamour

Roberts v Hopwood

Courts failed to consider a relevant factor when increasing wages of low wage workers, the interests of ratepayers, and so the court quashed the decision

R v Gloucester County Council, ex parte Barry

Court held that local authority’s consideration of its own paucity of resources was a relevant factor in a decision

Improper Purpose

A decision maker ought only to use a power for the purpose Parliament intended

Padfield v Minister of Agriculture

Minister refused to refer a complaint for investigation as he believed it would be embarrassing but the House of Lords held this to be unlawful as it was use of discretion for wrongful or improper purpose

Congreve v Home Office

The power to revoke tv licenses was not to raise revenue but to ensure they were not wrongfully used/ obtained so this use was not lawful

Miranda v Secretary of State for the Home Department

Court ruled in favour of the police detaining Miranda under the Terrorism Act to obtain materials as they could detain those “concerned in the commission, preparation or instigation of acts of terrorism”

Fettering of Discretion

If a public body has acted in a way that has hampered its own ability to proper exercise its power, it would have fettered its discretion

R v Secretary of State for the Home Department, ex parte Fire Brigades Union

Home Secretary had fettered his discretion by introducing a scheme inconsistent with prerogative powers

R v Secretary for the Environment, ex parte Brent

“the minister is entitled to have in mind his policy. To this extent the reference to keeping an open mind does not mean an empty mind. His mind must be kept ajar”

British Oxygen v Board of Trade

Where a body considers a case carefully, a policy will not be seen to fetter discretion

Ex parte Collymore

Where a policy is applied to inflexibly, this will amount to fettering of discretion

R v North-West Lancashire Health Authority, ex parte A, D and G

Court held that refusal of gender reassignment without considering individual circumstances due to a rigid policy was fettered discretion

R (Luton BC and others) v Secretary of State for Education

Court quashed Minister’s decision to cancel funding for school building project as he had followed the rigid rules too literally and not considered the individual merits

Unlawful delegation of discretion

Where a public body is empowered to make a decision by an Act, the general rule is that they cannot delegate that discretion to another body or person

Lavender v Minister of Housing and Local Government

After hearing objections from the Minister of Agriculture, the Housing Minister refused Lavender’s application. This was seen as unlawful delegation

The Carltona Principle

A government minister may delegated discretion to civil servants within their department and but is still politically accountable

R (Chief Constable of West Midlands Police) v Birmingham Justices

Court accepted that a public office holder such as a Chief Constable could discharge all but the most important of their functions through suitable subordinates

DPP v Haw

Court held that an official using implied delegation of power should be of an appropriate level of seniority

R v Secretary of State for the Home Department, ex parte Oladehinde

Court held that the immigration officers could use the delegated power of deportation provided they were of suitable seniority

R (Bourgass) v Secretary of State for Justice

Court held that Justice Secretary could not delegate powers to the prison service as there was not a sufficiently close link

Unreasonableness - Roberts v Hopwood

A person must, by the use of his reason, ascertain and follow the course which reason directs.

Associated Provincial Picture Houses Ltd v Wednesbury Corporation

Established the Wednesbury Test

The Wednesbury Test

“if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere”

Classes of Unreasonableness

Material defects in the decision-making process, Oppressive Decisions and Decisions that violate constitutional principles

Material defects in the decision-making process

Defects that are not faulty in terms of illegality but are serious enough to render a decision flawed such a wrongly weighing up relevant factors or failure to provide a comprehensive chain of reasoning

R v West Glamorgan CC ex parte Rafferty

Case for the court wrongly weighing-up relevant factors for unreasonableness

Re Duffy

Decision to appoint two prominent loyalists to the Parades Commission of Northern Ireland was found not to be reasonable

R v Secretary of State for Environment, ex parte Fielder Estates

Secretary’s decision to reopen inquiry to allow objector to present his views was so unreasonable as to verge on the irrational as the views could have been written

R v Secretary of State for Health, ex parte Luff

Decision to deny rights to adopt to a seriously ill man was held to be not irrational as there were multiple viewpoints considered

Bank Mellat v HM Treasury (No 2)

Court held that ruling out the bank for its alleged connections with Iran’s nuclear programme was unreasonable as it singled them out from many potentially connected organisations

R(DSD and NBV) v The Parole Board

Court held that not initially probing evidence was not irrational but failing to carry out further investigations was irrational

Oppressive Decisions

Where a decision imposes excessive hardship or represent infringement of rights which is deemed unnecessary

Wheeler v Leicester City Council

Decision to punish the rugby club for the actions of its players regarding an unofficial tour of South Africa during apartheid was unreasonably punitive and an oppressive decision

R v Secretary of State for the Home Department, ex parte Norney

A decision on IRA members and life in prison was deemed oppressive as it was contrary to the principles of common law and the ECHR

R v Barnsley MBC, ex parte Hook

Decision to remove Hook’s market trading license for urinating in a side street after hours was deemed oppressive

Decisions that violate constitutional principles

In order to uphold the rule of law, decisions made by public bodies should be consistent and rules should be sufficiently certain

R v Secretary of State for the Home Department, ex parte McCartney

Decision to punish IRA member McCartney more seriously than others who had committed similar crimes was found to violate the principle of Rule of Law

Elements to Intensity of Review

Constitutional Entitlement and Institutional Competence

Constitutional Entitlement

The courts tend to be reluctant to interfere with the decisions of democratically elected officials on questions of policy

Institutional Competence

Fundamental rights are seen as something the courts should protect however the courts are less prepared to interfere with high policy matters

Broad Social and Economic Policy Questions

Courts are reluctant to review decisions relating to social and economic policy

Nottinghamshire County Council v Secretary of State for the Environment

Court coined the phrase super-wednesbury to denote areas of policy decision making which had deemed to be political and not within the proper ambit of judicial review

R v Cambridge District Health Authority, ex parte B

Decisions about how a limited budget is allocated is not something a court should make, withstanding the compelling factual circumstances

R v Secretary of State for the Home Department, ex parte Javed

Court held that the Minister acted irrationally making a statutory instrument designating Pakistan as a country of no risk of persecution despite an abundance of evidence to the contrary

Decision affecting fundamental rights

Judicial review will be to a higher level of scrutiny where fundamental rights are affected, this is known as “sub-wednesbury”

Bugdaycay v Secretary of State for the Home Department

Courts are entitled to a more rigorous examination where the most fundamental right is at risk: the right to life

R v Ministry of Defence, ex parte Smith and Others

Where a policy has been debated and approved by parliament, the courts will be unlikely to approve a challenge

R (Rogers) v Swindon NHS Primary Care Trust & Secretary of State for Health

Courts will allow for rigorous scrutiny even if a human rights claim has not been specifically raised

Doctrine of Proportionality

The means employed by the decision maker to achieve a legitimate aim must be no more than is necessary to achieve that aim

R v Secretary of State for the Home Department, ex parte Brind

Orthodox view of proportionality is that unless it is incorporated into domestic law, it cannot be applied in the domestic courts

R (Daly) v Secretary of State for the Home Department

Challenged the orthodox view on proportionality and suggested the Wednesbury decision was an unfortunate, retrogressive decision

R (Alconbury) v Secretary of State for the Home Department

Suggested that it was time to recognise proportionality as an established principle of administrative law

Association of British Civilian Internees - Far East Region v Secretary of State for Defence

Whilst recognising proportionality, court suggested it was for the Supreme court to dispose of Wednesbury’s unreasonableness test

Pham v Secretary of State for the Home Department

Proportionality viewed as a more forensic and precise legal test than Wednesbury and could be applied with a varying degree of intensity

Keyu v Secretary of State for Foreign and Commonwealth Affairs

Suggested that a replacement of Wednesbury with proportionality should be sanctioned by a full panel of the UKSC

Youssef v Secretary of State for Foreign and Commonwealth Affairs

Appeared to accept the need for an authoritative view of the usage of proportionality in administrative law