what is illegality? (incl. case)
GCHQ (Lord Diplock) - ‘the decision-maker must understand correctly the law that regulates his decision-making powers and must give effect to it’
ultra vires (in illegality)
when a decision-making body acts outside of/beyond its jurisdiction
what is an error of law?
the decision-maker has misread or misunderstood its legal powers; a failure to correctly apply the law (treated as a ‘jurisdictional error’)
when can an error of law be reviewed? (incl. cases x2)
Anisminic and Page - all errors of law can be called into review
what are the exceptions to questioning an error of law? (incl. 2 cases)
- when the error of law had no effect on the outcome of the decision
- when the decision-maker is interpreting a technical or special system of rules (e.g. Page)
- where the power granted is capable of a broad interpretation (ex parte South Yorkshire Transport)
what is an error of fact?
when the decision-maker has the wrong facts or interpreted the facts incorrectly
what are the requirements of an error of fact giving rise to unfairness? (incl. case)
- E v SSHD
1. the mistake must be as to an existing fact (including availability of evidence on the matter)
2. the fact must be ‘established’ (and thus ‘objective’ and not ‘contentious’)
3. the applicant or his advisers must not have been responsible for the mistake
4. the mistake must have played a material (although not necessarily decisive) part in the decision maker’s reasoning
when may abuse of discretion be reviewed in JR?
- irrelevant considerations have been ignored/taken into account
- exercised that discretion for an improper purpose
- fettered their discretion
- improper delegation of discretion to someone else
what are the different factors in relevant/irrelevant considerations?
- mandatory
- irrelevant/prohibitory
- permissible/discretionary
mandatory considerations (incl. case)
- factors that must be taken into account as required by legislation or by policy
- statutory duty to “have (due) regard” to something
- Tesco - if it is established that the decision-maker has taken the relevant factor(s) into account, the decision as to what weight to give it falls within the decision-maker’s discretion (subject to reasonableness review)
mandatory duty - public sector equality duty (incl. legislation + case)
- s.149 Equality Act 2010 - public authorities must have ‘due regard’ to eliminate discrimination (and similar conduct) and advance equality of opportunity
- Brown - equality duty must be considered at the time a decision is made and not as an afterthought or ‘tick-box’ exercise
irrelevant considerations (incl. cases x3)
- Wheeler - decisions are unlawful if a ‘legally irrelevant factor’ has been taken into account
- Fewings - the council made a decision to ban stag hunting on moral, rather than administrative grounds; morality was considered to be irrelevant to the nature of the council’s powers
- Venables - SSHD took public outrage into account when setting the sentence tariff for a child murderer; held was irrelevant and decision was quashed
permissible considerations (incl. cases x2)
- Barry - public funding and availability or resources can be a relevant factor in decisions
- Tandy - whether resources may be taken into account will depend on statutory context
what is an improper purpose?
- when a power is granted by statute, any discretion granted to the decision-maker must be used for the purpose that the statute intended
- this purpose can be expressly stated or implied
improper purposes (cases x2)
- Padfield - the purpose of an Act ‘must be determined by construing the Act as a whole’; a role for the courts (Duport Steels v Sirs)
- Porter (Lord Bingham, [21]) - public powers cannot be used to promote the electoral advantage of a political party
what happens when there is an absence of explicit purpose? (incl. case)
- Fewings - decision-maker still bound to ascertain and apply the aims intended by the act
- Laws J - the decision-maker ‘is at risk of using powers to an end for which they were never given’ if there is a misunderstanding of statutory purpose
what is fettering of discretion? (incl. cases x3)
- ex parte Fire Brigades Union - if the decision-maker has been granted a discretion, he must exercise that discretion, and not refuse to exercise it
- ex parte Collymore - when implementing policies the decision maker must give due consideration to each individual application
- British Oxygen - strict policies are allowed, providing that there is evidence that individual cases have been decided on their merits; decision-maker must not ‘shut his ears’ to application and must be ‘willing to listen’ (Lord Reid)
when can a decision-maker adopt and implement policies (in regards to fettering discretion)? (incl 2 cases)
- R v NW Lancashire HA ex parte A - if the policy does not amount to a blanket ban
- R (Corner House Research) v Director of SFO - if the policy is not too inflexible
academic commentary - what truly is an ‘error of law’?
- Williams - courts have extended the subground of error of law into reviews of discretion (instead of merely correcting the error)
- by clarifying that ‘error’ is only confined to actual mistakes rather than discretionary decisions, it would contribute towards the clarity of the doctrine
- it would also lead to less unnecessary judicial interference
academic commentary - is public opinion ever a relevant consideration?
Nehushtan + Davidson - the government took public opinion into account when deciding the quarantine policy. Factors which should be taken into account in determining whether public opinion is a relevant consideration:
1. subject matter
2. nature of the decision
3. impact of the decision on protected HRs
4. obedience by the public
5. factors which shaped the public’s opinion
6. public opinion + trust
