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Illegality
• Illegality most closely reflects the courts’ preoccupation with ensuring
public bodies do not act ultra vires
Fenwick (Text, Cases and Materials on Public Law and Human Rights, 2003) –
categories of illegality
1. Simple illegality
2. Misinterpreting the law
3. Error of fact
4. Abuse of discretion, including irrelevant/relevant considerations
5. Improper abuse
6. Retention of discretion, including fettering of discretion through adaption
of a rigid policy
7. Wrongful delegation of power
© Liam Porritt 2020 2
Simple illegality (ultra vires)
• Ultra vires often used broadly in relation to all illegal decisions
• However, originally = going beyond the boundaries of legal power
• Attorney General v Fulham Corporation – local authority had power to
provide washhouses for residents to wash their clothes; setting up of paid
laundry service = ultra vires
• Westminster Corporation v London & North West Railway – not unlawful if
doing something reasonably incidental or consequent upon a power:
power to build public lavatories also gave power to build a subway under
a road to give access
Constitutional rights and the principle of legality
• Presumption that Parliament did not intend to authorise the infringement
of fundamental or ‘constitutional’ rights and cardinal principles of the
rule of law without specific statutory authorisation (R v Secretary of State
for the Home Department, ex p. Leech (No 2))
o Prison rules permitting interception of letters to and from prisoners, inc. with
lawyer
o Constitutional right = free flow of correspondence between solicitor and client
o Such an interference would only be authorised by
§ Express words
§ Necessary implication
• Purpose of parliament could not be achieved
without the right being infringed; or
• Function of public body could not be discharged
without it
o + must not be infringed to any greater extent than necessary to
achieve the statutory objective
o Prisoner Act 1952 – authorised some screening of prisonersolicitor correspondence but prison rules too wide ~ authorised
intrusion must be the minimum necessary to ensure that the
correspondence is bona fide legal correspondence
• R v Lord Chancellor, ex p. Witham – challenge to scale of court fees set by
LC under legislative powers; £500 fee deemed to be ultra vires, as Act did
not authorise the setting of fees such that access to the courts, a
fundamental right, was denied
• Approach endorsed in R v Home Secretary ex p. Pierson and R v Home Secretary, ex p.
Simms
© Liam Porritt 2020 3
• HRA 1998 – has not brought an end to the use of this framework; ‘common law
constitutionalism’ has come to the fore as a source of protection of fundamental rights (R
(Anufrijeva) v Secretary of State for the Home Department [2004])
o Regulation: asylum seeker’s entitlement to Income Support to end on date on
which claim for asylum determined
o HoL: entitlement ended once determination of claim had been communicated to
asylum seeker
• HM Treasury v Ahmed – United Nations Act 1946 power to make Orders in Council to
give effect to the UN Security Council resolutions ≠ authorising making of orders
permitting assets of persons reasonably expected of involvement in terrorism to be
frozen
• R (Public Law Project) v Lord Chancellor [2016] – courts will intervene where
government acting outside power given by parliament (Parliamentary Supremacy) ~ LC
had acted beyond scope of s 9(2)(b) Legal Aid, Sentencing and Punishment of Offenders
Act 2012, by introducing 12-month residence qualification of seeking to obtain vivil legal
aid
© Liam Porritt 2020 4
Errors of law – misinterpreting the Law
• All errors of law are examinable by the courts (i.e. now no longer the case
that errors of law are only reviewable where there is a question of
jurisdiction) (Anisminic v Foreign Compensation Commission)
o This case is also an example of an invalid ouster clause purporting
to put decisions of the Commission beyond question by the court
• Confirmed, subject to some qualifications (R v Lord President of the Privy
Council, ex parte Page):
a) Error of law must be decisive for the courts to intervene, i.e. ‘but
for’ the error, the decision would have been different
b) Where the decision maker interprets a special system of rules,
courts are unwilling to intervene (e.g. statutes of a university –
Page)
c) Ditto where it is expressly provided for by Parliament that a firstinstance decision is to be final (Re Racal Communications Ltd)
d) Where power granted is imprecise, the courts will not necessarily
quash a decision because it would have come to a different view ~
courts only to intervene where decision irrational = overlap
between error of law and unreasonableness (R v Monopolies
Commission ex p South Yorkshire Transport Ltd)
Ø ‘a substantial part of the UK’ = ‘substantial’ is wide and
precision should not be here attached
• Flawed interpretation found in R (Client Earth) v Secretary of State for the Environment,
Food and Rural Affairs
• Ditto R (Forge Care Homes Ltd) v Cardiff and Vale University Health Board [2017] – health
care board’s application of legislation requiring that the NHS pay for health care but not
social care = too restrictive in not paying for ancillary care provided by nurses
© Liam Porritt 2020 5
Errors of Fact
• Traditionally resistant to challenges based on an allegation that the
decision-maker had made a mistake of fact when deliberating on a
decision
• However, there is an increasing acceptance of JR challenges on this basis
Precedent Facts (Jurisdictional Facts)
• Where decision maker’s power to decide on a particular matter depends
on initial findings of fact
• White and Collins v Minister of Health
o Local authority with statutory powers to compulsorily purchase
land, which is not parkland
o Failure of local authority to realise that White’s land was park land
o CoA has jurisdiction to review as the factual issue went to whether
the decision maker had power in the first place
• R v Secretary of State for the Home Department, ex p Khawaja – power to
detain ‘illegal entrants’ = obligation to first show that someone is an
illegal entrant, a fact reviewable by the courts
• NB the courts will intervene where there is an objective question of fact,
but are less likely to intervene where there is a subjective question
involving the discretion of the decision maker
No evidence for a fact
• If the finding of a fact on which a decision is based is supported by no
evidence at all, the courts have felt able to overturn the decision (Coleen
Properties v Minister of Health and Local Government)
o See Secretary of State for Education v Tameside, a more debatable
application of this idea
Ignorance or mistake of an established fact
• Prior reluctance to permit reviews of existence of facts: R v Hillingdon
London Borough Council, ex p Puhlhofer, Lord Brightman: the courts must
leave the decision as to the existence of a fact to the public body to whom
Parliament has entrusted decision-making power, except where such a
body is clearly acting perversely
• Secretary of State for Education and Science v Tameside BC – Scarman LJ:
‘misunderstanding or ignorance of an established fact’ / Lord
Wilberforce: acting ‘upon an incorrect basis of fact’ = ground of JR
o Case re: reintroduction of grammar schools
o Evaluation of facts is for decision maker
o Existence of facts + whether they are taken into account is for
courts = has decision been made upon a proper self-direction, or
upon other facts which ought not to have been / which ought not
to have had such an extensive bearing on a decision
© Liam Porritt 2020 6
• R v Criminal Injuries Compensation Board (CICB), ex p A – case regarding
incorrect evidence given by policewoman as to whether A’s injuries were
caused by rape ~ HoL (Lord Slynn): mistake of fact could form the basis of
JR claim (obiter, as case decided on the alternative basis of a breach of the
rules of natural justice)
• E v Secretary of State for the Home Department [2004] – JR can be
brought on the basis of mistaken fact; Carnwath LJ:
o Rights of immigrants to asylum
o Decision on appeal that the courts can intervene in appeals on a
point of law / judicial review cases (applying to both, as both are
concerned with points of law, rather than fact) as regards
ignorance or mistake of an established fact, especially where the
parties share an interest in co-operating to achieve the
correct result (e.g. CICB case)
• Criteria for finding of unfairness (on the basis of mistake/ ignorance to an
established fact):
i. Mistake as to an existing fact, including a mistake as to the
availability of evidence on a particular matter
ii. Fact or evidence must have been “established” in the sense that it
was uncontentious and objectively verifiable
iii. The appellant must not have been responsible for the mistake
iv. The mistake must have played a material (not necessarily decisive)
part in the tribunal’s reasoning
© Liam Porritt 2020 7
Considerations to be taken into account in decision making
R v Somerset County Council, ex parte Fewings
• Brown LJ – three categories of consideration for decision maker
1. Considerations to which regard must be had according to statute
(‘mandatory’ factors) – unlawful not to take these into account
2. Considerations to which regard must not be had according to
statute (‘prohibitory’ factors) – unlawful to take these into
account
3. Considerations to which the decision maker may have regard in
his judgment and discretion (‘discretionary’ factors) – not
unlawful to take into account, as long as
a. Not irrational
b. Alongside other relevant and appropriate considerations
• The stance of the courts as regards the morality of hunting deer are
irrelevant, but the jurisdictional ability of the council to make a decision
to ban hunting, and whether it did so on grounds that are lawful
o Statute prescribes that the prohibition may only be made where it
is for the benefit of the county council area
o Animal welfare, social considerations and ethical grounds can be
factors (discretionary) in the making of a decision, but this was to
the ignorance of the mandatory factor of the need for a ban to
benefit the area
o Personal views may be taken into account, but this must not be the
predominant basis of a decision to the neglect of the statutory
provision / the need to relate personal views to the statute
R v Secretary of State for the Home Department, ex parte Venables and Thompson
• 2 applicants convicted of murder of two-year-old Bulger, aged 10 ½
• Sentencing at her Majesty’s pleasure under s 53(1) Children and Young
Persons Act 1933; HS set ‘penal element’ of boys sentences (under s 35
CJA 1991) at 15 years, 5 years longer than LCJ and 7 years longer than
trial judge suggested = lawful by HS?
• Lord Browne-Wilkinson: HS had failed to take into account as relevant
factors in the sentencing the:
o Welfare of the children (necessitated by s 44(1))
o The desirability of reintegrating them into society
o The importance of factoring in the maturation of the children
through their formative years
• These were all elements that Parliament had intended to be taken into
consideration when creating a mandatory sentence of detention during
Her Majesty’s pleasure
© Liam Porritt 2020 8
• Lord Steyn: HS was unlawful in taking into account the public outcry at
the brevity of the sentencing and the media campaign to have the
sentences increased
o The HS to act in the same way as would a sentencing judge
o The HS must ignore a newspaper campaign designed to encourage
a particular sentence in a specific case in order to uphold the RoL
o The HS may take into account the general consideration of
§ Public confidence in the criminal justice system
§ Public morality and opinion as to the judicial attitude
to a crime
Accounting for resources and financial impact
• Roberts v Hopwood – Local authority failed to account for impact of
increasing wages on ratepayers (employers) as well as on the workers
• R v Gloucester County Council, ex parte Barry – consideration of resources
is a relevant factor in assessing the needs of a disabled person
• R v Criminal Injuries Compensation Board, ex p P – Court ill-equipped to
deal with decisions concerned with balancing competing claims on public
purse
• R v East Sussex County Council, ex p Tandy – reduction due to resources in
weekly hours of home tuition provided to a child unable to attend school
quashed
o Proper construction of the Education Act 1993 – only the
educational needs of the child should be accounted for
o This overlaps with unreasonableness – weighing of competing
factors here was disproportionately focused on resources
Public sector equality duty
• PSED, s 149 Equality Act 2010 – public authorities, when reaching a decision, must have
proper regard to the need to eliminate discrimination between those with and without
protected characteristics (Ch 2 of the Act) ~ described as generic relevant consideration
• ‘Bedroom tax’ cases, e.g. R (A) v SSWP – Lady Hale + Lord Carnwath: breach of PSED for
woman in sanctuary scheme because of severe risk of domestic violence; majority of SC:
SoS had properly considered potential impact of housing benefit cap
© Liam Porritt 2020 9
Improper purpose
• Decision maker must only use a power given to it by Parliament for the
purpose for which it was given that power
• Considerable overlap here with taking into account relevant / irrelevant
findings
o Fewings – Bingham MR and Thomas LJ viewed issue mainly in
terms of improper purpose: purpose of power to regulate land use
was not to enforce the ethical or political concerns of the local
councilors about animal cruelty
• Padfield v Minister of Agriculture – minister refused to refer a complaint to
a committee of investigation because he feared embarrassment by an
unfavourable report despite his having the power to direct such an
investigation; HoL: exercise of discretion not to refer for an improper
purpose
• Purpose of statute inferred by construing statute as a whole
o Congreve v Home Office – power to revoke TV licences not to raise
revenue but to ensure such licences were not wrongfully used
o Bromley LBC v GLC –Greater London Council under obligation to
conduct transport services on business principles, having regard
to the fiduciary duty owed to ratepayers (tax payers), when
proposing to fund a 25% reduction to tube and bus fares
• Miranda v Home Secretary – (ECHR case on stop and search powers) – argument that
searches not used for purpose of preventing terrorism rejected, but it was made
• R (Rights of Women) v Lord Chancellor – regulations unlawfully introduced by LC b/c
effect of frustrating the statutory purpose of the Legal Aid, Sentencing and Punishment
of Offenders Act 2012, by prescribing too narrowly the degree of violence required to get
legal aid
© Liam Porritt 2020 10
Fettering of discretion
• Decision makers must exercise their discretion and not ‘fetter’ or restrict
themselves
• R v Secretary of State for the Home Department, ex p Fire Brigades Union –
HS fettered discretion by refusing to consider whether to bring the
statutory criminal injuries compensation scheme into force
o Power to set date for implementation imposed continuing
obligation to consider bringing it into force
o He could not bind himself not to exercise that discretion by
introducing an inconsistent tariff scheme using prerogative
powers (also contrary to Parliamentary supremacy)
• R (Corner House Research) v Director of the Serious Fraud Office
o SFO director’s decision to halt investigations into allegations of
bribery in relation to Saudi arms deal
o Administrative court: fettering of power to make independent
judgment by yielding to threat ~ yielding to a threat only lawful
when demonstrated that no alternative
§ Especially here, where important that Director maintain
rule of law and investigate such allegations
o Reversed by HoL: consulted ambassador and AG, who advised and
he made a decision ≠ fettering, and relevancy of considerations of
national security was deemed great
© Liam Porritt 2020 11
Policies
• Decision-makers often adopt policies, but these must not fetter discretion
by being rigid or blanket policies
• R v Secretary for the Environment, ex p Brent LBC – Minister entitled to
have in mind his policy ~ ‘an open mind does not mean an empty mind’
• British Oxygen v Board of Trade – policy may be acceptable if there is
scope for some exercise of discretion and deciding of individual cases
o Policy of not awarding grants for purchase of items < £25; BO
bought a number of items at £20 each
o This blanket threshold was necessary to avoid being overwhelmed
with trivial applications
o The Board had considered this individual application and decided
that the grant ought not be awarded
• R v Warwickshire County Council ex p Collymore – policy merely worded as
allowing discretion will not be sufficient, if there is not actual exercise of
discretion
o Student grants = no awards, in spite of wording that discretion
would be used to assess applications, despite 300 appeals against
refusal
• R v North West Lancashire Health Authority ex p A, D and G – 3 transsexuals not entitled
to gender reassignment under rigid policy
• R (Luton BC, Nottingham CC, Waltham Forest LBC, Newham LCB, Kent CC and Sanwell
MBC) v Secretary of State for Education – cancellation of funding for ‘Building Schools for
the Future’ projects on basis of rigid rules; however, discretion should have been
exercised to consider each project on own merits
Unlawful delegation of discretion
• Public body empowered to make decision by Act = delegation prohibited
• Barnard v National Dock Labour Board – NDLB delegated appropriate
functions to local dock boards; one local dock board passed resolution to
give powers to suspend dock workers to port manager = unlawful
• Lavender v Minister of Housing and Local Government – Minister of
Housing refused planning permission for quarry after hearing objections
from Minister of Agriculture = effectively abdicated his decision to MoA =
unlawful delegation
• Statutes do expressly allow decision makers to delegate decision making, e.g. Local
Government Act 1972, s 101 – local authorities can arrange for their functions to be
carried out by committees or by council officers or by another local authority
© Liam Porritt 2020 12
The Carltona Principle
• In the absence of evidence to the contrary, there is a presumption that a
minister is allowed to delegate discretion to civil servants within his
department (even where no express mention in the statute) ~ officials
deemed to be minister’s alter ego
o Minister retains Parliamentary accountability for decisions taken
by officials
• Carltona v Commissioners of Works – Lord Greene MR: the multifarious
nature of the duties imposed on ministers necessitates delegation within
their departments to responsible officials
• R v Secretary of State for the Home Department, ex parte Oladehinde – Immigration
Inspectors are civil servants and thus fall under the Carltona principle, able to issue
notices of intention to depart aliens, delegated by the Home Secretary
• R (Chief Constable of West Midlands Police) v Birmingham Justices – an office holder, such
as Chief Constable, may discharge all but the most important of his functions
through suitable subordinates for whom he is responsible and answerable
o Confirmed DPP v Haw – implied power to delegate where offices are created by
statute, with delegation inevitable
Limits to Carltona
• Does not apply where statute, expressly or by necessary implication,
makes it clear that the power must be exercised by the minister in person
• It is not clear if common-law limitations might be implied
o DPP v Haw – suggestion that the seniority of the official exercising
a power should be appropriate to the nature of the power
o R (Bourgass) v Secretary of State for Justice – courts keen to maintain
accountability of SoS + relevant officials: decision by prison authorities to
submit inmates to long periods of solitary confinement = unlawful, as the
requirement of the consent of the SoS for detainments longer than 72 hours
(Prison Rule 45(2)) cannot be delegated to the Prison Service compromises
accountability

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