Judicial Review: The Ground of Illegality

Overview of Judicial Review Claims

• Judicial Review (JR) claims are categorized into several stages involving admissibility, substantive grounds, and available remedies.
• Admissibility and Procedural Hurdles:   - 1. Public law.   - 2. Public Authority.   - 3. Standing.   - 4. Time.   - 5. Ouster Clause.
• Substantive Review Grounds:   - 1. Illegality.   - 2. Irrationality.   - 3. Procedural Impropriety.
• Available Remedies:   - Damages.   - Quashing order.   - Mandating order.   - Prohibiting order.   - Declaration.   - Injunction.   - Clarification of a question of law.

The Three Substantive Grounds for Judicial Review

• The three substantive grounds were formally articulated by Lord Diplock in the landmark case of Council of Civil Service Unions & Others v Minister for the Civil Service [$1985$], commonly referred to as "the GCHQ case."
• These grounds include:   - Illegality: The focus of the current study.   - Irrationality: Also known as Wednesbury unreasonableness.   - Procedural Impropriety: Concerning the fairness of the decision-making process.

The Ground of Illegality: Definitions and Scope

• General Principle: Public authorities must act within the scope of their legal powers. They are prohibited from doing anything that the law does not allow them to do or expressly forbids.
• Lord Diplock's Definition (GCHQ): "By ‘illegality’ as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.‑
• Categories of Illegality:   - Acting ultra vires.   - Making an error of law.   - Making an error of fact.   - Making an unlawful delegation.   - Fettering discretion.   - Failing to take relevant factors into account before making a decision.   - Using powers for an improper purpose.

Specific Categories of Illegality: Ultra Vires

• Definition: "Ultra vires" is a Latin phrase meaning "outside the power." An action is ultra vires where a public authority has acted in a way the law does not allow or prohibits.
• Attorney General v Fulham Corporation [$1921$]:   - Under the Baths and Wash-Houses Acts $1846$ – $1878$, Fulham Corporation (a Local Council) had the power to establish "baths, wash-houses, and open bathing spaces."   - The Corporation attempted to set up a fee-charging laundry service for residents.   - The House of Lords (HoL) held this was ultra vires because the legislation only granted power to provide facilities for people to wash their own clothes, not to operate a commercial laundry business.
• R (Elgizouli) v Secretary of State for the Home Department v Information Commissioner and others [$2020$] UKSC $10$:   - This case concerned the way power is exercised.   - The UK government used prerogative powers to assist the US government by sending data on the applicant, Elgizouli.   - The UK government failed to obtain assurances from the US that the death penalty would not be applied if he were found guilty.   - The UK Supreme Court (UK SCt) unanimously held the government acted unlawfully because the decision failed to comply with the Data Protection Act $2018$.

Illegality: Errors of Law

• Description: This occurs when a public authority wrongly believes that a statute or the Common Law entitles them to act in a certain way based on a misunderstanding of the law.
• Anisminic Ltd v Foreign Compensation Commission [$1969$] UKHL $1968$:   - Anisminic Ltd sought compensation for property damaged during the Suez Crisis in $1956$ under the Foreign Compensation Act (FCA) $1950$.   - The Foreign Compensation Commission (FCC) rejected the claim.   - The FCC argued that $s.4$ of the FCA contained an "ouster clause" preventing challenges to its decisions.   - The House of Lords held that no such ouster clause existed for this decision. The FCC's refusal to hear the challenge was based on an error of law, constituting illegality.

Illegality: Errors of Fact

• Description: Decisions may be declared illegal if based on a mistake regarding facts, especially when powers are only triggered by specific factual conditions.
• Khawaja v Secretary of State for the Home Department [$1984$] AC $74$:   - Public authorities used powers under the Immigration Act $1971$ to detain "illegal entrants."   - Mr. Khawaja was detained on suspicion of being an illegal entrant.   - It was later revealed he was not an "illegal entrant."   - Therefore, the statutory power could not be used against him. The detention was based on an error of fact (mistaken belief) and was unlawful.

Illegality: Unlawful Delegation of Power

• Description: It is unlawful for a public authority to delegate its powers to someone else unless the law expressly permits it.
• Barnard v National Dock Labour Board [$1953$]:   - Under the Dock Works (Regulation of Employment) Order $1947$, the National Dock Labour Board (NDLB) was required to delegate powers to Local Dock Labour Boards (LDLBs).   - One LDLB attempted to delegate its disciplinary powers to a manager of a particular port.   - The Court of Appeal (CoA) held this was an unlawful delegation as the LDLB lacked the legal authority to pass those powers to a manager.
• The Carltona Doctrine and Exceptions:   - This doctrine is an exception: Government ministers may delegate powers to civil servants within their departments.   - This presumption can be rebutted. For example, powers intended for personal exercise by a Minister cannot be delegated to a junior minister.   - R v Adams [$2020$] UKSC $19$: The decision to detain Gerry Adams in $1973$ was held to be wrongfully delegated to a junior minister.   - Delegation is also unlawful if the power is given to an independent office-holder rather than a subordinate civil servant.   - R (Bourgass) v Secretary of State for Justice [$2015$] UKSC $54$: It was held that power was wrongly delegated to a prison governor to authorize the continued segregation of a prisoner beyond an initial $72$ hours.

Illegality: Fettering of Discretion

• Definition: To "fetter" means to restrict or constrain. This occurs when a public authority limits its own discretion, effectively disabling its ability to use power as intended by law.
• Padfield v Ministry of Agriculture, Fisheries and Food [$1968$] AC $997$:   - Milk producers complained about low prices set by the Milk Marketing Board (MMB) to the Minister for Agriculture.   - Under $s.19$ of the Agricultural Marketing Act $1958$, the Minister had discretionary power to direct a committee to investigate complaints.   - The Minister refused and stated he would never use this power under any circumstances.   - The House of Lords held this total refusal to use discretion was an illegality.
• R v Waltham Forest London Borough Council ex p Baxter ($1988$):   - Councillors voted in line with a "party whip" to increase tax rates at a council meeting after previously voting against it in a prior private meeting.   - The issue was whether following the whip meant they fettered their discretion.   - The CoA dismissed the appeal. Sir John Donaldson MR noted that while councillors can give weight to party policy, they must not abdicate personal responsibility or "vote blindly."
• R (Blundell) v SoS for Work and Pensions ($2021$):   - Under $s.24$ of the Criminal Justice Act $1991$, the Secretary of State (SoS) could deduct funds from universal credit benefits to pay court-imposed fines.   - The maximum deduction was $30\%$.   - The SoS policy was to always enforce the maximum $30\%$ regardless of individual financial hardship.   - This was held to be a fettering of discretion.

Illegality: Relevancy and Considerations

• Description: Public authorities must consider all relevant factors and ignore irrelevant ones when making decisions.
• R v Secretary of State for the Home Department, ex parte Venables [$1998$]:   - The Home Secretary set a minimum sentence for minors (the killers of a $2$-year-old boy) under the Criminal Justice Act $1991$.   - The judge recommended $8$ years, but the Minister set it at $15$ years due to public outrage.   - The HoL held the decision was unlawful because public opinion was an irrelevant consideration.
• R v Somerset County Council ex p Fewings ($1995$):   - Under $s.120(1)(b)$ of the Local Government Act $1972$, the Council had power to manage land for the "benefit, improvement or development of their area."   - The Council banned stag hunting based solely on the argument that it was cruel.   - Laws J held the resolution was unlawful because moral repulsion alone was an irrelevant consideration for the specific statutory power, though moral arguments are not always universally irrelevant.

Illegality: Using Powers for Improper Purposes

• Description: Powers granted by Acts of Parliament must only be used for the purposes for which they were conferred and in the public interest.
• Porter v Magill [$2001$] UKHL $67$:   - Westminster City Council used powers under $s.32$ of the Housing Act $1985$ to sell council houses.   - While selling houses was legal, the Council did so specifically to increase the likelihood of people voting for the Conservative Party.   - The House of Lords held this was an improper purpose and therefore unlawful.
• R (Palestine Solidarity Campaign Ltd) v SSCLG [$2020$] UKSC $16$:   - Claimants challenged guidance issued by the Minister for Communities and Local Government regarding boycotts of Israel.   - They argued the Minister lacked power to tell fund administrators what to invest in and was trying to enforce foreign/defence policy illegally.   - The Supreme Court ruled the minister acted for an improper purpose.