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Judicial Review: Illegality

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GCHQ- Lord Diplock identified three grounds for judicial review:
1. Illegality
2. Unreasonableness/Irrationality
3. Procedural Impropriety
(Note- fourth one legitimate expectation and possible fifth one- Human Rights)
What does the ground for judicial review, illegality, concentrate on?
Ensuring that the exercise of power is confined within the limits prescribed by the governing legislation
What did Lord Diplock say in GCHQ about illegality?
"By "illegality" as a ground for judicial review, I mean that the decision-maker must understand correctly the law that regulates his decision-making powers and must give effect to it."
What are the 5 sub-categories of illegality to discuss?
1. Simple illegality (basically the ultra vires approach)
2. Misinterpreting the law (not really understanding your power)
3. Abuse of discretion, which includes irrelevant/relevant considerations and improper purpose (taking into account the wrong things, or actually using it for the wrong purpose)
4. Retention of discretion, which includes fettering of discretion through adoption of a rigid policy, and delegation
5. Error of fact (for years simple factual errors were not allowed for judicial review)
What does the doctrine of ultra vires mean?
ACTING BEYOND YOUR POWER
The traditional, more narrow sense, referred to a decision that goes beyond the boundaries of legal power given to the body concerned. A hypothetical example would be a police officer arresting a person for parking on a yellow line; there is simply no power of arrest in such a situation.
Attorney General v Fulham Corporation
Ultra vires
Does it "come within the four corners of the act"?
A local authority had the power to provide washhouses for residents to wash their clothes. This was held not to empower it to set up a laundry service in which residents paid employees of the authority to wash their clothes for them.
The court argued Fulham Corporation had acted ultra vires
Westminster Corporation v London & North West Railway
A public body will not have acted unlawfully if did something that
was reasonably INCIDENTAL to or consequent upon a power that it did have.
House of Lords held here that a power to build public LAVATORIES could also be used to build a SUBWAY under a road to access those lavatories
What did the 1990s see the emergence of?
The ultra vires approach mutated into the principle of legality.
What is the principle of legality?
A principle of statutory interpretation which presumed 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 parte Leech (No.2)
Leech
Concerned prison rules permitting the INTERCEPTION OF LETTERS to and from a prisoner, including correspondence with his lawyers. Interfered with constitutional right.
The interference could only be authorised by express words in the statute or by necessary implication. That necessary implication could only arise where the purpose of Parliament could not be achieved without the right being infringed or the function of the public body could not be discharged without it. Even if this was satisfied, the right could still not be infringed to any greater extent than was necessary in order to achieve the statutory objective. The Court of Appeal in Leech accepted that, by necessary implication, the Prison Act 1952 authorised some screening of correspondence passing between a prisoner and a solicitor. But the prison rules, made under the authority of that statute, were too wide in permitting all letters to and from a prisoner to be read.
The authorised intrusion had to be the minimum necessary to ensure that the correspondence was in truth bona fide legal correspondence.
R v Lord Chancellor ex p Witham
Principle of legality used to challenge the scale of COURT FEES (set at £500) set by the Lord Chancellor (to encourage people to use other dispute resolution methods)
Witham sought judicial review of the Lord Chancellor's decision in setting the court fees. He argued that his right of access to the court was being denied by the scale of fees and the court's refusal to waive them. It was held that the Act did not authorise the Lord Chancellor to set fees at such a level that access to the courts, a
fundamental right, was denied. The instrument was declared to be ultra vires the Act.
Lord Steyn comment from R v Secretary of State ex p Pierson?
"... unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law. And the rule of law enforces minimum standards of fairness, both substantive and procedural."
Facts of ex p Simms?
A simple ban which prevented any prisoner speaking to journalists professionally and without discrimination was unlawful
What did lord Hoffman say in ex p simms?
"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."
What impact did the HRA 1998 have on the development of the principle of legality?
Has partly superseded this development and has made the judiciary much less willing to expand its remit beyond that established at the time the HRA came into force
Which case shows that the principle of legality has still been a powerful tool from time to time, post HRA 1998?
R (on the application of Anufrijeva) v Secretary of State for the Home Department. Regulations provided that an ASYLUM seeker's entitlement to income support was to end on the date on which the claim for asylum was determined.
The House of Lords used the principle of legality to hold that the Regulations were to be interpreted as bringing the entitlement to Income Support to an end only once the determination of the asylum claim had been communicated to the asylum seeker
How did the Supreme Court use the principle of legality in HM Treasury v Ahmed?
The power under the United Nations Act 1946 to make Orders in Council to give effect to U.N. Security Council resolutions did not authorise the making of orders that permitted the ASSETS of persons reasonably suspected of being involved in terrorism to be frozen.
Acted illegally (note, we don;t say ultra vires now)
(Parliament responded to the judgment by enacting the Terrorist Asset-Freezing (etc) Act 2010.)
What does the error of law sub-category of legality typically mean?
Not understanding the law
Typically involves the decision-maker making a mistake regarding a question of law, for example by giving an interpretation to a word
that it is not capable of bearing.
Which case swept away the traditional approach to error of law, namely it was only reviewable if it involved a question of jurisdiction?
Anisminic v Foreign Compensation Board:
Originally only mistakes which went to the heart of the decision were reviewable but this case changed this)
What was the facts and decision in Anisminic?
Anisminic was a company, which had had assets in Egypt nationalised after the Suez conflict. UK legislation allowed such companies to claim compensation from the Commission, subject to certain conditions. The Commission ruled that Anisminic failed to satisfy these conditions.

The House of Lords, however, ruled that this was an error of law because the Commission had misunderstood the rules of the scheme. Such an error meant that the decision had to be quashed.
ANY ERROR OF LAW CAN RESULT IN THE DECISION BEING NULLIFIED AND THE DECISION BEING MADE AGAIN
What House of Lords decision confirmed that all errors of law are reviewable?
R v Lord President of the Privy Council ex p Page
What are the qualifications to the general principle in Lord President of the Privy Council ex p Page?
1. NOT DECISIVE- Not decisive to the decision- 'but for'- if they feel that the issue is not really effecting the decision

2. SPECIALIST RULES decision-maker is interpreting some special system of rules,
Courts are often unwilling to intervene, for example, with statutes of a
University. (This affected the actual decision in ex p Page). Or decisions of inferior courts- Re Racal Communications Ltd (whole statutory system set up for communications area)

3. OR WHERE RULES CAPABLE OF DIFFERENT MEANINGS Where the power granted is so imprecise that it is capable of being interpreted in a wide range of different ways, the courts will not always quash a decision just because they would have come to a different view on what the law requires from that of the decision maker. R v Monopolies Commission ex p South Yorkshire Transport Ltd ('a substantial part of the United Kingdom')
Errors of fact
Courts were for years reluctant to step in on
Because EOF is a floodgates issue
If you start to argue over errors of fact, things will never get done
What are the three types of error of fact?
1. Precedent fact (what is your power? What triggers that power? If trigger is getting a fact correct? And you get that wrong then that is a breach)
2. No evidence for a fact (Why have you made that decision? No evidence- flawed process)
(first two were the only ones used for years- classic ways)
3. Mistake or ignorance of an established fact (established in the last 10 years) Judges have been cautious in this area
They are meant to be reviewing THE WAY the decision has been made and this is getting close to reviewing WHY- the distinction between appeal and judicial review
exp Khawaja
Precedent fact:
The minister- home secretary had the power to deport illegal immigrants- they had to get the fact they were an illegal immigrant right
Precedent fact is something you need to get right FIRST before you make a decision
Facts which are process led as the next part of the decision depends on getting the fact right
White and Collins v Minister of Health
Precedent fact:
Clssic traditional case
The Council had the power to purchase land as long as it was not designated park land
Have to get whether the land is designated park land
They made a mistake and bought DLPL and that was a breach of their power
A and Others
Precedent fact:
In order to detain people, pending deportation, you had to have an emergency threatening the life of the nation before you could derogate
Lord Hoffman dissented, saying there is no such emergency
Coleen Properties v Minister of Health and Local Government
No evidence:
Tower Hamlets were clearing some land
Coleen Properties owned a property on that street
Marked for destruction even though it was a perfectly good property
Surveyors said that is in good condition
Tower hamlets said it is on a couple of bad streets- we are clearing it
They had no evidence for their decision- that was a breach
They could not exercise their decision because they hadn't shown evidence for their decision
Secretary of State for Education v Tameside MBC
In 1970s part of the labour manifesto was to get rid of grammar schools and replace with comprehensive
Manchester BC had been late on this and hadn't replaced Manchester grammar with a comprehensive
Case brought against them
When the secretary of state was asked what is your evidence that the non-removal of the grammar school would have an injurious effect on the education of the children- no evidence for this
Tameside
The court did talk about simple errors of fact
'acting upon an incorrect basis of fact could be basis for review'
R v Criminal Injuries Compensation Board (CICB) ex p A
A, was a woman who had been sexually assaulted and raped
Applied to the CICB for compensation- and given her a nominal amount
They had not really looked at the medical evidence documenting her injuries
Instead they looked at the opinion from a police officer- which had been disparaging about her claim
CICB gave all the weight to the opinion of the police and not to the medical evidence
That was an error of fact
Her Judicial Appeal was successful
E v Secretary of State for the Home Department
E was a member of the Muslim brotherhood and for many years was banned in Egypt
E fled to the UK and was seeking asylum
There was a lot of evidence that if he was sent back he might be at risk
The Gov. ignored this evidence- again simple error/breach of fact
NOW THE IGNORANCE OF FACT IS ESTABLISHED GROUND
What did Carnwath CJ state in E v Secretary for the Home Department?
"In our view time has come to accept that a mistake of fact giving rise to an unfairness is a separate head of challenge in an appeal on a point of law"- simple errors of fact will now be established for review- probably been influenced by HRA 1998
In E v SOS Department, what was said as to when they will review on simple errors of fact?
TEST
Judges pointed out that not all EOF will be reviewable
Error of fact reviewable if:
1. Mistake as to an existing fact
2. Fact or evidence must have been established (a fact that is uncontentious-objectively identifiable- not prone to different opinions) (in E, here is the evidence as to how the Muslim Brotherhood is being treated)
3. Appellant or advisors must not be be responsible for the mistake
4. Mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning
Assura Pharmacy
Approach taken in E v SOS Dept. is applied
Relevant/irrelevant considerations
In order to make decisions decision-makers will be given guidance in statutes- in reaching your decision here is your check list (usually in statute)
DM must have regard to relevant factors and ignore irrelevant factors
START BY INTERPRETING STATUTE (statute is not always explicit on this)
R v Somerset County Council ex p Fewings
Simon Brown LJ said there are 3 types of factors which will usually be found in statutes:
1. Mandatory - Yes
2. Prohibitory - No
3. Discretionary - Possible- may decide are important
ex p Fewings
Somerset Council had banned the hunting of male deer on their land
They could do this, they had the power but they had ade a mistake
They said they were banning it because of MORAL reasons- they did not have the power to do that
Morality was no mentioned in the statute
If they had said they were banning on environmental grounds they could have done that- as in statute
HAVE TO STAY IN RUBRIC GIVEN IN STATUTE
R v Secretary of State for the Home Department ex p Venables and others
Relevant/irrelevant considerations
Venables and Thomson- killers of James Bulger
They were sentenced and initially it was Michael Howard- the Home Secretary who set the tariff- at least 20 years and possibly even higher
He said he was mindful of the public revulsion and opinion of the case
Venables sought judicial review of the fact the Home Secretary had taken public opinion into account when setting the tariff so high
Question for the court was whether the Home Secretary should be keeping an eye on what the public are thinking
The court said there are other factors to take on board- the development of the children, their rehabilitation
Judges had differing views
What were the opinions of Lord Goff & Steyn in ex p Venables?
Contextualised and looked at the whole statute
The statute is designed to give the Home Sec a power but that power must be exercised judicially- he must act like a judge, look at the case on its merits and must DISREGARD PUBLIC AND POLITICAL views
Lords Goff, Hope and Steyn in Venables?
Public petition and clamour were irrelevant
Lords Brown-Wilkinson and Lloyd in Venables?
Lord Brown-Wilkinson and Lloyd disagreed and said NO EVEN judges would look at the public interest in this case
Lord Browne-Wilkinson, Hope and Woolf in Venables?
In addition the Home Secretary had failed to take into account relevant factors such as their future progress and development
Difference should be taken account of sentencing children and adults
Decision in Venables?
Decision: it was wrong for the HS to set the tariff in the way that he had and the judges placed a lower tariff
(the case did finally end up in the ECtHR on the grounds that it is a breach of Article 6 to be making judicial decisions like this)
Roberts v Hopwood
What can you and what can you not look at?
This was Poplar Local Borough Council (progressive left wing coucil in 1920s)
They gave their workers what they described as a 'living working wage', which was far greater than the average
Successful judicial review against the local authority because they had not taken into account the views of the rates payers
Didn't look at relevant factors
R v Gloucester County Council ex p Barry
Can resources be a relevant factor? Broadly- Yes
BROADLY THE COURTS BACK OFF- WE CANNOT MAKE THE RESOURCES JUDGMENT- NOT IN OUR JURISDICTION
R v Criminal Injuries Compensation Board ex p P
Can resources be a relevant factor? Broadly- Yes
The court said we are ill equipped to make these decisions
R v East Sussex County Council ex p Tandy
Courts can intervene if we think resources is not a major issue
R (on the application of SB) v Head Teacher and Governors of Denbigh High School
A discussion as to whether or not human rights are a relevant factor for a decision-maker to have regard
If you take on the wrong issues- can now lead to an Article 6 ECHR case- link between HR and JR
Abuse of discretion/Improper purpose
Statute will tell decision-makers WHAT their powers are and WHY those powers exist
Padfield v Minister of Agriculture
Very famous JR case
Concerned the Milk Marketing Board- set up by Gov.
Padfield sent a complaint to the relevant person responsible for the MMB who was the Minister of Agriculture
The Minister did not deal with the complaint- shelved it
Padfield said WHY did you not deal with my complaint
The Minister said 'I have discretion' and I am exercising my discretion and so I am not investigating your complaint
The reason he did not want to deal with the complaint was because he was responsible
He abused his power- he had the power to deal with the complaint and he abused this by not dealing with the complaint to hide his own culpability
HE ABUSED HIS DISCRETION
What did Lord Denning say in Rossminster?
Implied purpose
The reason why the statute exist is so that rule of law will be upheld HL disagreed with him on that
Congreve v Home Office
Implied Purpose: have to try and work out why statute is there
Concerned a TV license
Did not say in the statute WHY the license existed
Congreve was one of many who bought their license in advance of the increase
The Home Office said anyone who bought these early will be void
You have to buy them and pay the increase
Congreve sought the JR of that
Courts questioned- what is the purpose of the TV license?
They said the purpose is to support public broadcasting
Had they done that by paying for their license- yes
Court said the Home Office were acting in a way which was malicious
To make them buy the new license at the new rate was a tax and they did not have the power to do that
R v Somerset CC ex p Fewings
R v Somerset CC ex p Fewings (above) can also be viewed as
a case of improper purpose. The purpose of the power to control land was not to enforce the ethical or political concerns of the local councillors
Bromley LBC v GLC
What was the improper purpose in this case?
1980s - Borough of Bromley challenged the 'fairs fair' policy (Ken Livingstones) GLC tried to lower fares. Failure to take into account what was a relevant consideration, partly construed from the Act itself:
"ordinary business principles"- for London transport to run on business lines- to support itself- rather than being subsidised significantly by the GLC
Retention of discretion- fettering
Breach- for potential JR to fetter your discretion
Most decision makers are given discretion by statutes
The issue with discretion- fettering?
Policies- the policy will perhaps have a check list
The problem is- if those policies are too strict- they have fettered their discretion
Problem if- applied too harshly and too rigidly
R v Secretary of State for the Home Department ex p Fire Brigades Union
Minister attempted to fetter his discretion
He said he was not going to bring in the statutory scheme
He was going to bring in his own scheme
The court said he did not have the power to do that
It would have been thwarting the intention of Parliament
The creation of policies potentially create JR cases
BUT policies are necessary to allow decisions to happen
R v Secretary for the Environment ex p Brent LBC
You can have policies but you must keep your- mind must be kept ajar- to unusual or exceptional cases
British Oxygen v Board of Trade
The courts said you must consider unusual situations
Rigid policies may be allowed if evidence not applied rigidly
R v Warwickshire County Council ex p Collymore
Warwickshire County Council said they do have a policy but they also consider decisions- peoples applications- they said they had considered 300 appeals
Courts said- hang on- you have looked at 300 appeals AND REJECTED EVERYONE- your policy is too strict
YOU HAVE SHUT YOUR EARS TO THE APPLICANT
R v North West Lancashire Health Authority ex p A
Concerned 3 people who wanted to have gender reassignment surgery
They asked their local health authority and they said no- we do not use our resources on gender reassignment- BLANKET POLICY
Blanket rejection
The court said no- you cannot take such a blanket policy
They were able to prove that in at least 2 of these cases the individuals were close to suicide because of the blanket rejection
R (on the application of Corner House Research) v Director of the Serious Fraud Office
This concerned the pulling of the investigation into the Saudi Arabian situation by the Serious Fraud Office
The Court said there that the court had not carried out correctly and used their policy too strictly
R (Luton BC, Nottingham CC, Waltham Forest LBC, Newham LBC, Kent CC and Sandwell MBC) v Secretary of State for Education
Concerned the pulling of the schools for the future funding
There was a successful appeal- cases should be considered on their merits you cannot have a BLANKET POLICY
R v Secretary of State for the Home Department ex p P and ex p Q
Human rights and fettering of discretion
Blanket policies can engage human rights
Female prisoners who have children in prison will automatically have their children taken away and put into care
The court said that is a breach of human rights- not the policy itself but the automatic/blanket nature is the breach
Not saying can't have child taken away- automatic policy is the breach
Again because one of the women was close to suicide who was having her child taken away
Disproportionate
Retention of discretion: Delegation
Basic Presumption: DM cannot delegate
If you have been given power in a statute it is a breach to delegate
Barnard v National Dock Labour Board
Decision-making powers had been delegated to the National Dock Labour Board who in tun delegated the powers to someone else in the board- that was a breach
Lavender v Minister of Housing and Local Government
Classic case:
Power belonged to the Minister of Housing and Local Government
In fact the decision had been made by the Minister of Agriculture- this was a breach
DM cannot delegate their statutory powers to someone else
Carltona v Commissioners of Works
EXCEPTION TO PRESUMPTION- that statutory powers to DM should not be delegated
Presumption is completely unworkable
During WW2 the Minister had land to buy up land for the war effort
The minister doesn't have the ability/resources to check every decision
So he delegated the power to the commissioner of works
The court said that is an OK delegation- 2 reasons- Lord Green
1. Delegation remains in the department/office-
2. ok downstream delegation is fine because the Minister is ultimately responsible to Parliament for how his department is running-practical requirement- devolution of responsibility)
IF YOU DELEGATE OUTSIDE THAT IS AN ILLEGAL DELEGATION
Put shortly, therefore, there is a simple chain of command. Civil servants are accountable to Ministers who are accountable to Parliament, whose Members are accountable to their constituents.
R v Secretary of State for the Home Department ex p Oladehinde
Delegation is allowable if it goes downstream
It is entirely possible for immigration decisions to be made not by the Minister but by Immigration officials
R (Chief Constable of West Midlands Police) v Birmingham Justices
To permit an office holder, such as a Chief Constable, to discharge all but the most important of his functions through suitable subordinates, such as police officers, for whom he is responsible and answerable.
DPP v Haw
Divisional Court has confirmed that where an office, such as
that of Chief Constable, is created by statute and the responsibilities of the office created by statute are such that delegation is inevitable, there will be an implied power to delegate
R v Secretary of State for Home Department ex p Doody
Caveat to Carltona exception- limits to the exception
Even if you delegate in your department it might be that there is a line you cannot go beneath
This case concerned sentencing- court said sentencing powers should not go beneath a junior minister to a civil servant
Fundamental rights not below a junior minister
What two bases did Lord Greene found the Carltona principle?
Lord Greene founded his principle on two bases: Ministerial responsibility and the impracticability of a minister exercising such multifarious functions to act himself in every case