Illegality - judicial review

Judicial review

A supervisory check where courts ensure that decisions made by public authorities conform to the correct legal procedures.

What does the term "ultra vires" mean?

The acts done beyond the legal power or authority of a public body.

According to Lord Diplock, which three broad categories can judicial review grounds be classified under?

They are: illegality, irrationality, and procedural impropriety.

Who are the typical parties involved in a judicial review action?

the decision maker (e.g. a public authority) and the aggrieved individual.

How does parliamentary sovereignty relate to judicial review?

They respect the principle that Parliament determines decision-making conditions, hence judges must not interfere by replacing decisions with their own and ensure that public authorities do not exceed the powers granted by Parliament.

How is "illegality" defined?

‘the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it...' by Lord Diplock

Barnard v National Dock & Lavender v Ministry of Housing

“dont delegate discretion“ - Decision-making authority should be exercised by those to whom it was originally conferred

Key exceptions to delegation are:

1. as a decision by an official within their department can be recognised as a decision in the name of the minister

2. If it is decided it was parliaments intention for the minister to use their delegated power in that specific way (e.g., local authorities to committees under the Local Government Act 1971).

Carltona Ltd v Commissioners of Works [1943] exception?

Established decisions made by a department junior official can be attributed to the relevant minister, meaning that not all delegation is unlawful.

Explain the issue in R v Adams [2020] directly related to illegality

Challenged a decision from the 1970s where a custody order was issued by a junior official rather than the secretary of state. Held: due to their momentous nature of the decision, it mustve been made by a senior official to comply with parliamentary intention

Laker and World Development Movement

Decision-makers must exercise their power consistently with the purpose for which it was granted

R v Home Secretary ex parte Venables [1998]

Home Secretary’s decision to set a 15-year sentence for two children who had committed murder, but the public authority had taken into account irrelevant considerations here,.

Cases for an improper purpose :

1. R v Richmond Council, ex parte McCarthy and Stone Ltd 

2. R (Public Law Project) v Lord Chancellor [2016]

3. Wheeler v Leicester City Council [1985] 

R v Richmond Council, ex parte McCarthy and Stone Ltd

There was a challenges from the local planning authority charging £25 for an informal application consultation. There was no statutory basis for the council to establish this therefore it was deemed illegal

R (Public Law Project) v Lord Chancellor [2016]

The court said that the ministers decision to try and introduce a residency test was unlawful because it was ultra vires as s9 was not in contemplation of parliament for a minister to exercise their power in that way.

Wheeler v Leicester City Council [1985]

The case showed that the City Council wrongly banned Leicester Rugby Club from using a ground based on an irrelevant factor (players’ participation in a tournament in South Africa), misusing its allocation power for an improper purpose.

Barnard v National Dock Labour Board

A public authority cannot delegate its statutory power to another party without express authorisation, in this case, dismissing workers without proper board involvement.

Why is the "illegality" ground considered the judges' "safe ground" in judicial review?

Judges are generally comfortable assessing decisions on their legal merits and correctness, avoiding where judicial interference might infringe on the authorities discretion.

What role do specific procedural requirements play in the judicial review process?

The Senior Courts Act 1981 and court rules details requirements, which ensure that applications for judicial review are properly made. They act as a safeguard to verify that public bodies, adhere to legal frameworks preserving the rule of law.

What remedies are available in judicial review proceedings?

Remedies can include quashing orders, prohibiting orders, mandatory orders, declarations, or injunctions.