error of law
if a body makes an error of law, its decision would be quashed
but if body had the powers to act but made an error of law within its jurisdiction, decision would stand
Anisminic case
what is illegality
‘the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it’
- Lord Diplock, GCHQ
when he does not do this - acts illegally
types of illegality
error in interpretating the law
acting for an improper purpose
failing to take account of relevant considerations or acting on irrelevant considerations
fettering of discretion
‘interpretation’
an objective assesment of the meaning which a reasonable legislature would be seeking to convey
- case of O
‘reasonably incidental’ powers
AG v Fullham - a public body only has the powers that arise from the statute, and those are reasonably incidental for what is provided in the statute
South Yorkshire Transport
‘so imprecise that different decision makers, might reach different conclusions’
courts may substitute their own interpretation for that of the primary decision maker
but only when the interpretation is so aberrant as to be irrational
error of fact
courts are reluctant to review errors of fact because role of judges is to review, not make a decision
Bubb v Wandsworth
The E case
exception to errors of fact not being reviewable
- mistake must be as to an existing fact
- fact must be established
- applicant must not have been responsible for this mistake
- mistake must have played a material part in decision makers reasoning
R v Croydon
exception when a jurisdictional fact
acting for improper purposes
Padfield - a body must act within the powers conferred on it by parliament, these powers are not absolute
cases for improper purpose
Porter - a public power is not exercised lawfully if it is exercised not for a public purpose for which the power was conferred but in order to promote the electoral advantage of a political party
Roberts v Hopwood - council would fail in duty if they were guided by feminist/social principles
WDM - ‘if Parliament had intended to confer a power to disburse money for unsound developmental purposes, it could have been expected to say so expressly
absence of an explicit purpose
courts must still identify the purpose
R v Somerset
3 types of considerations
- identified in the statute as considerations to which regard must be had - mandatory
- identified in statute as considerations to which regard must not be had - prohibitory
- considerations to which the decision maker may have regard - permissible
mandatory considerations - policy
government advice or policy, even if non binding, may be regarded as relevant considerations
Muniaz - although this guidance was not binding, hospitals should give such guidance ‘great weight’ and only depart from it with ‘great care’
what happens if ignores considerations
illegality
how much weight should be given to mandatory considerations
Tesco Stores - must have regard to all material considerations, at liberty to give them whatever weight they see fit
where no weight is given
Client Earth - gave no weight, but did not mean it had not been taken into account
public sector equality duty
s149 Equality Act - have due regard to eliminate discrimination etc
equality must be considered at the time decision is made - Brown
irrelevant considerations
Wheeler v Leicester
‘…when Parliament confers general discretionary powers on public authorities it cannot in general be taken to have contemplated that such discretions can be exercised by taking into account the lawful views of those affected’
- if these factors have been taken into account, this is unlawful as a legally irrelevant factor has been taken into account
permissible considerations
relating to public authorities, limited resources may be relevant - R v Gloucestershire CC
resource considerations are not always relevant - will depend on statutory context
- Tandy
rationale for fettering of discretion
decision makers must strike a balance between consistency and responsiveness to individual circumstances
flexible policy or rigid rule??
Kynoch - wide discretion between situations where a decision maker has made a general policy but still listens to the other persons argument and when decision maker has made their mind up in advance and so refuses to hear applications
British Oxygen - authority must always be willing to listen to anyone with something new to say (always mention this when referring to FD)
Hippolyte
- ‘It is important that the general discretion which Parliament has conferred on the [Home Secretary] should be capable of being exercised in a holistic way, having regard to all the circumstances of an individual application.’
