#15509 - Jr Illegality - GDL Constitutional and Administrative Law

Illegality

• Ground from Lord Diplock, GCHQ: ‘By ‘illegality’ as a ground for JR, I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it’.

• Sub-categories:

  • (1) True ultra vires—simply illegality

  • (2) Errors of Law

  • (3) Errors of fact

  • (4) Abuse of discretion:

    • Relevant & Irrelevant considerations

    • Improper purpose

  • (5) Retention of discretion:

    • Fettering discretion

    • Delegation of discretion

(1) True ultra vires—simple illegality

• AG v Fulham Corporation, ‘outside the four corners of the Act’.

  • Re laundry, Fulham Corp, had statutory authority to provide laundry facilities, but set up laundry service for payment.

• But lawful if power necessarily linked to power given in Act, ‘reasonably incidental’: Westminster Corp v L&NW Railway: if action is reasonably incidental to, or consequent upon, a power that it does have lawful (re Westminster Corp, had legislative power to build a public toilet; had to build access to toilet).

  • So a power can be impliedly authorised.

• Development of constitutional rights and legality principle: principle of statutory interpretation in 1990s which presumed Parliament didn’t intend to authorise infringement of fundamental/’constitutional’ rights.

  • Ex p Leech: re prison rules permitting interception of letters including with lawyers; interfered with a constitutional right (free flow of information between client/solicitor); to have power to interfere with constitutional rights, must be expressly given in statute or necessary implication (necessary = purpose of Parliament/function of public body cannot be achieved without the right being infringed).

  • R v Lord Chancellor, ex p Witham: challenge scale of court fees set by Lord Chancellor denied fundamental right (access to courts) = ultra vires, didn’t have power to set a court fee for purpose not envisaged by the Act.

  • Approach endorsed by HL: Ex p Pierson; Ex p Simms.

• HRA appeared to supersede this attempt to develop common law framework of protection of fundamental rights, but still can be a powerful tool + recent development of ‘common law constitutionalism’ as a source of protecting fundamental rights:

  • R (Afnufrijeva) v SSHD: HL used principle of legality re asylum seeker’s entitlement to Income Support ending---could only end once communicated t to the asylum seeker.

  • HM Treasury v Ahmed (2010): re ground of illegality UN Act 1946 didn’t authorise making of orders permitting freezing of assets of persons reasonably suspected of being involved in terrorism led to Parliament passing Terrorist Asset-Freezing Act 2010.

(2) Errors of Law

• EXAM HINT: is there an ambiguous term in the statute? Has DM misinterpreted the law?

• Early on in JR cases—error of law only reviewable if involved a question of jurisdiction (i.e. whether a legal power arose in the first place).

• All errors of law are reviewable Anisminic v FCC, re company with assets in Egypt, nationalised after Suez—UK allowed such companies to claim compensation; Anisminic not granted compensation; error of law: Commission had misunderstood rules of scheme it was implementing.

  • Re the Foreign Compensation Committee had misinterpreted the term ‘successor in title’ in the legislation—decided Anisminic not eligible for compensation because their ‘successors in title’ did not have British nationality as required in legislation.

  • [despite ouster clause].

• Confirmed in Ex p Page.

• 3 exceptions:

  • (1) When error not decisive to the decision (i.e. whether ‘but for’ the error, the decision would have been different, if multiple reasons).

  • (2) when a special system of (private) rules apply

    • Ex P Page (statutes of a university)

    • Also (controversial)—extended, Re Racal Communications: decision made by an inferior court, where deemed that Parliament had expressly provided that the decision of judge at first instance = final.

  • (3) where power granted is so imprecise, is capable of broad interpretation in a range of ways:

    • Decision won’t be quashed just because court would have come to different view to D-M.

    • R v Monopolies Commission, ex p South Yorkshire Transport:

    • Monopolies Comm blocked merger, on ground that South Yorks Transport would have a ‘substantial part’ of the market. HELD: ‘substantial’ can have wide range of meanings, imprecise word, broad.

    • The interpretation of Monopolies Commission was ‘within the permissible field of judgment’ (Lord Mustill)—

    • court will only intervene if DM’s interpretation was ‘irrational’ (overlap with unreasonableness).

    • SO look for words with broad interpretation, eg ‘adequate’/’substantial’ etc

(3) Errors of fact

• [[CAUTION re fact-based challenges: Separation of Powers? Beyond judicial control?]]

• (a) Precedent facts/ ‘jurisdictional facts’:

• DM’s power depended on making an initial finding of fact to trigger the power.

• White & Collins v Minister of Health:

  • Local authority had power to compulsorily purchase land, but only if the land was not ‘parkland’. Authority mistakenly failed to realise land was parkland. Precedent fact wrong = open to JR.

• R v SSHD, ex p Khawaja

  • Power to detain, only if they are an ‘illegal entrant’—was a precedent fact to trigger the power, was reviewable.

• Powers of this kind are rare, normally body given wide discretion into whether certain facts exist.

• (b) ‘No evidence’ fact (Coleen; Mahon)

• ‘no evidence’ to support a factual finding.

• Coleen Properties v Minister of Health: Minister wanted to destroy buildings, because ‘not fit for habitation’—no evidence to support this.

• SoS Education v Tameside MBC

• Mahon v Air New Zealand, Lord Diplock: decision ‘must be based upon some material that tends logically to show the existence of facts consistent with the finding’.

• (c) Ignorance or mistake of an ‘established’ fact (E v SSHD)

• SoS Education v Tameside MBC: obiter—an erroneous fact might be reviewable. Lord Wilberforce. Re SoS erroneously believed the re-introduction of grammar schools proposed by local authority would disrupt pupils’ education, no evidence to support this.

• R v Criminal Injuries Compensation Board (CICB), ex p A: 4 of HL (obiter) accepted mistake of fact can be ground for JR. re inaccurate evidence about findings of a medical examination given to CICB by a policewoman, to determine whether A had suffered injuries she claimed as result of rape.

• Definitive case, E v SoS Home Dep, Carnwath LJ---JR can be sought on basis of mistaken fact:

  • E an asylum seeker from Egypt, Muslim Brotherhood—claim to asylum rejected on basis of factual errors (Home Sec ignored a report (‘established fact’) indicating that members of Muslim Brotherhood would be in danger if not granted asylum).

  • Test:

  • (1) Mistake as to existing fact (including mistake as to availability of evidence on a particular matter)

  • (2) fact/evidence must be ‘established’ (i.e. uncontentious and objectively verifiable).

  • (3) applicant (or his representatives) not responsible for the mistake

  • (4) The mistake played a material (though not necessarily decisive) part in the reasoning.

(4)—Abuse of discretion (a) ---Relevant/Irrelevant considerations

• EXAM HINT: is there a discretionary power in the statute; has DM omitted express or implied relevant factors/consider irrelevant factors.

• Unlawful decision if: took account of irrelevant considerations or failed to take account of relevant considerations.

• R v Somerset CC, ex p Fewings:

  • Re Somerset CC banning stag hunting----moral/ethical grounds = irrelevant consideration.

  • (1) Mandatory factor DM must TIA

    • [[if doesn’t take into account = ultra vires, not complying properly with statutory duties]].

  • (2) Prohibitory factor DM must not TIA.

  • (3) Discretionary factor DM may have regard to, ‘margin of appreciation’.

    • Role of Admin court to determine what factors relevant/irrelevant.

• Egs of abuse:

  • Fewings: moral/ethical considerations = irrelevant re banning stag hunting, unlawful, Act was about managing land for ‘the benefit, improvement or development of their area’.

  • Failing to consider relevant factor:

  • Roberts v Hopwood: local authority, increased wages for its low-wage workers above market rate, and paid women the same as men failed to consider a relevant factor, the interests of ratepayers. Had been guided by ‘some eccentric principles of socialistic philanthropy, or by a feminist ambition’ (Lord Atkinson). And policy was an irrelevant consideration.

  • Bromley LBC v GLC: re GLC ‘fares fair’ policy, slashed price of tube fares, funded with 1pm raise on rates. HELD: GLC failed to consider relevant consideration, interest of rate-payers—was effectively a tax, not within their power.

  • Considering irrelevant factor: R v Home Sec, ex p Venables and Thompson, 3/2 majority HL said public interest was an ‘irrelevant consideration’ for Home Sec deciding tariff.

    • Re sentencing a youth.

    • Lords Goff & Steyn: Home Sec, in setting tariffs, is carrying out a judicial function so shouldn’t be swayed by public opinion, irrelevant consideration, Home Sec misdirected himself in ‘giving weight to irrelevant considerations’ (Steyn).

    • Lords Goff, Hope, Steyn: public interest/petitions/clamour/press was irrelevant. Goff: ‘should he take into account public clamour ... he will be having regard to an irrelevant consideration’.

    • Lords Browne-Wilkinson and Woolf: public interest can be considered, Home Sec can regard ‘broader considerations of a public character’ than for ordinary sentencing function, which he can discover from media coverage & petitions (B-Wilkinson).

    • Lords Browne-Wilkinson, Hope and Woolf: HS had failed to take into account...