#17230 - Jr Illegality - GDL Constitutional and Administrative Law

One of the three grounds of JR proposed by Lord Diplock in GCHQ Case [1985]: illegality, irrationality and procedural impropriety.

• Generally achieved on grounds of ultra vires. Lord Diplock: “the decision maker must understand correctly the law that regulates his decision-making powers and must give effect to it.”

Courts have assumed the role of limiting the powers of public bodies. E.g. Localism Act 2011, which gave limited vested power to public bodies.

• This applies to all with the exception of the Queen in parliament which beyond the confines of EU law may do whatever it pleases.

Forsyth’s critique: ‘Of Fig Leafs and Fairy Tales’

• Divides critics into three schools before rebutting

  • 1) Those that say ultra vires cannot be the basis of review

    • The Datafin case and others. It what it did because it wanted to – there were no vested powers

    • There are few cases here, these rest not on ultra vires but the courts traditional power to prevent monopolies.

  • 2) Those who say that it is not the basis of review

    • Review has become so sophisticated and complex that to maintain that it is a vindication of parliaments intentions is wholly fictional. Courts therefore either promulgating norms of good administration or seizing power for themselves.

  • 3) Those who say that it should not be the basis for review, inc. Lord Woolf and Laws J

    • Want review to be put on a statutory footing. With the result that statute itself would become subject to review. It is currently not.

    • This would lead to collision of legislature and courts.

• The analytical difficulty is this: what an all powerful Parliament does not prohibit, it must authorise either expressly or impliedly.

  • To abandon ultra vires is to challenge the supremacy of Parliament.

    • Intra vires and ultra vires as mutually exclusive concepts - 'there is no grey area'.

    • Intra vires and ultra vires are collectively exhaustive - a decision can't be anything but UV or IV.

Academic responses to UV:

• Craig argues the development of JR over time indicates that it has nothing to do with parliamentary intention.

• Laws – UV is a ‘fig leaf’ we know it is a judicial creation, judges should not be allowed to hide behind any pretence to the contrary.

• Oliver – JR doesn’t extend to statutory powers? No reason for this under UV, therefore UV is at least an incomplete explanation.

• Craig – Ouster clauses are often circumvented, cannot be giving effect to the will of parliament by undermining it.

Express and Reasonable incidental powers:

• AG v Fulham Corporation [1921] – FC had the power under statute to build public washrooms, which it did, it also set up a laundry service, which it did not have the power to do.

  • Ultra vires, clear and simple.

• ex parte McCarthys [1991] – council had power to determine planning applications. Council also held meetings with intending developers to give advice. Intended to reduce the amount of time sifting through poor planning applications. Charged for the meetings.

  • HoL held that holding of meetings and giving of advice was reasonably incidental to the handling of planning applications.

  • However charging for this advice was ‘incidental to the incidental’ and therefore illegal.

Pre 1969 errors of law were divided into two categories:

• 1) Errors on the face of the record (the document that embodied the authority’s decision).

  • Could always be dealt with.

• 2) Errors not on the face of the record

  • Jurisdictional errors could be dealt with.

  • Non-Jurisdictional errors could not be dealt with.

These distinctions were removed in the case of

• Anisminic v Foreign Compensation Commission [1969] – A UK mining group lost assets in Egypt when they were nationalised by Egyptian government.

  • The Foreign Compensation Act 1950 reflected an international agreement to provide compensation. The FCC misinterpreted the rules and found Anisminic was ineligible. JR declaration successful.

  • Lord Reid: JR where a tribunal “has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity.”

In principle therefore all errors of law are reviewable.

• Three exceptions identified in ex parte Page [1993]:

  • 1) Where the error of law is not decisive to the decision.

  • 2) Where the decision maker is interpreting a special or technical system of rules, or Parliament has declared the first instance decision would be final. (see Re Rascal below)

  • 3) Where the power granted is capable of broad interpretation. In ex parte South Yorkshire Transport [1993] the reference was to a power over a’ substantial part of the UK’

  • Re Racal Communications [1981] – question of reviewability of High Court Judge, 1) Administrative tribunals (e.g. FCC) presumption of reviewability.

    • Rarely legal professionals and therefore reasonable that they should be submitted to legal supervision.

  • 2) Inferior Courts: no presumption either way, case by case.

  • 3) High Court Judges: legal experts therefore irrebuttable presumption against review.

In principle ouster clauses can limit reviewability.

• See Anisminic discussion in part 1.

• Possible to construct a clause which would not be admissible to review, e.g. Asylum and Immigration Bill 2004:

  • “No court shall have any supervisory or other jurisdiction whether statutory or inherent in relation to the tribunal

  • Lord Woolf complained until the Gov withdrew the clause.

• Privacy International v Investigatory Powers Tribunal [2017 -on appeal in SC], CA held there was a successful ouster clause.

• Partial Ouster Clauses, that work by limiting time for applications to less than 3 months are also usually successful: ex parte Ostler [1977]

• Court generally holds partial ouster clauses to be effective (keeping powder dry)

Wrongful Delegation comes under the head of Illegality:

• Where a power or a duty has been delegated there is a presumption that it may not be delegated further

• Barnard v National Dock Labour Board [1953] – Set up by parliament to delegate certain powers to local dock labour boards. London DLB further delegated disciplinary powers to port manager who used to lay off certain workers.

  • Held unlawful.

• Carltona v Commissioner of Works [1943] – Food factory owner received requisitioning notice signed by assistant secretary of Commissioner of Works.

  • Held no wrongful delegation, practical necessity required some delegation.

  • Minister is allowed to delegate discretion to civil servants within department.

Abdication and fettering of discretion

• This relates to discretionary powers only.

• Julius v Lord Bishop of Oxford (1880) – Lawful for Bishop to investigate complaints against clergymen.

  • HoL held that this was a discretion not a duty. Though words can sometimes be used to create a duty.

• An exercise of discretion must be real, if it is not real it has been fettered and that amounts to illegality.

• Lavender & Son v Minister of Housing [1970] - Applicants had sought planning permission for sand and gravel extraction. Refused. Minister made it clear he would refuse whenever the minister of agriculture objected. MoA objected.

  • Held this amounted to a fettering of discretion.

• nb This is close to wrongful delegation.

• British Oxygen v Minister of Technology [1971] – Minister said it was his policy not to award grants for expenditures of less than 25. BO bought 4million of cylinders at 20e. Lost appeal. Lord Reid explained the extent to which policy can govern:

  • A minister must be free to make decisions in line with his adopted policy, but what he must not do is to close his ears. Therefore must listen to any case made for an exception to the policy.

Abuse of discretion comes under the heading of illegality however it is often referred to in the sub-head of unreasonableness and abuse of power.

Associated Provincial Picture Houses v Wednesbury Corporation [1948] – LA had power to permit cinemas to open on Sundays subject to it imposing various conditions, in this case that under-15s were not allowed in.

• Held this was not an abuse of discretion, but Lord Greene MR obiter stated that statutory discretion will be illegal where:

  • It has Improper Purpose

  • Is based on Irrelevant Considerations

• These overlap (an improper consideration is irrelevant)

Improper Purpose: A statutory discretion must not be used to thwart the purpose for which it was granted.

• Padfield v Ministry of Agriculture [1968] - minister had power to refer complaints about a milk marketing scheme to a committee. Minister claimed he had absolute discretion, and wanted to avoid embarrassing appeal.

  • Held that the statute was not intended to permit the Minister to exercise power in this way. As a result of this, no public authority can ever claim to have unlimited discretion.

  • Lord Reid: Parliament’s intention is determined by reading the act as a whole.

• Congreve v Home Office [1976] – Minister increased TV...