Lecture 15 PDF

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LECTURE 15: THE SUBSTANTIVE GROUNDS FOR JUDICIAL REVIEW – (i) ILLEGALITY and (ii) IRRATIONALITY CRITICAL ANALYSIS POINTS: 1. The three substantive grounds (including procedural impropriety from LECTURE 16) are one examinable topic, without the procedural hurdles in LECTURE 14. 2. The three grounds of judicial review are not discrete, and naturally overlap. 3. The ground of illegality means generally ‘to act outside of one’s powers’. This may take many forms. The key to applying the case law is to match the material facts of the problem with the facts of the supporting cases as closely as possible. 4. The ground of irrationality is based on the ‘reasonable authority’ – not the ‘reasonable man’ or what the judge may think is reasonable – this test upholds the doctrine of separation of powers. 5. ‘Proportionality’ is not a separate ground, but it can be used to prove irrationality. 6. Human rights are not a separate ground, but are also a claimable head on the judicial review claim form.

The three substantive grounds As we discovered in the last lecture, judicial review is a two-part process. LECTUREs 15 and 16 focus on the second part – the substantive grounds or ‘heads’ of judicial review. This LECTURE deals with the first two: illegality and irrationality; and the next deals with the third: procedural impropriety. Human rights – a potential fourth ground? Due to relatively recent developments in human rights law, the judicial review claim form now has a separate box for ‘human rights claims’. A working knowledge of the ECHR articles would be useful here – see LECTUREs 10 and 11. As Lord Diplock specified in the GCHQ case, the three grounds of judicial review are not actually discrete as there will be overlap between them. THE FIRST GROUND - ILLEGALITY: Generally, illegality means to act outside one’s powers bestowed normally by statute (therefore ‘outside of the law’). The following sub-divisions are all examples of illegality and there will be naturally some overlap between the sub-divisions. When dealing with these sub-divisions in a problem question, it is best to consider the facts of the problem and match them as closely as possible to the case law. 1. Simple ultra vires

This means that the public authority acted without having any power at all to do what it did. For example: Attorney-General v Fulham Corporation [1921] 1 Ch 440 – 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. It simply had no power to do this. However, a public authority will not have acted unlawfully if did something that was reasonably incidental to or consequent upon a power that it did have - this will be a matter of fact and degree. For example: Westminster Corporation v London & North West Railway [1905] AC 426 – a power to build public lavatories could also be used to build a subway under a road to access those lavatories. Attorney-General v Wilts United Dairies (1921) 37 TLR 884 – a public body can ONLY raise taxes if is specifically permitted by statute to do so – see Art 6 Bill of Rights 1688. 2. Error of Law This arises where the public authority has simply misinterpreted the legislative rules under which it purported to act - Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. 3. Error of fact Some of the circumstances in which factual determinations have been reviewed include: Where the factual finding was perverse or there was no evidence to support it (e.g. Edwards (Inspector of Taxes) v Bairstow [1956] AC 14). Where a precedent fact is at issue - this is where a factual situation must exist before the public authority can act (i.e. if X situation exists then the public authority can do Y). For an example of this, see Khawaja v Secretary of State for the Home Department [1984] AC 74 The Court of Appeal in E v Secretary of State for the Home Department [2004] QB 1044 held that a decision can be challenged on the ground that there has been a mistake of fact giving rise to unfairness. This includes mistakes caused by a misunderstanding or ignorance of an established and relevant fact. Whilst not seeking to lay down a precise code, it held that the ordinary requirements for this were as follows: (i) There must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. (ii) The fact or evidence must have been established in the sense that it was uncontentious and objectively verifiable. (iii) The claimant (or his advisers) must not been have been responsible for the mistake.

(iv) The mistake must have played a material but not necessarily decisive part in the public authority's reasoning. 4. Unlawful delegation A power must be exercised by the public authority upon whom it has been conferred and by no-one else. That authority cannot delegate its powers to anyone else unless it has expressly or impliedly been authorised to do so by legislation. For example, in Barnard v National Dock Labour Board [1953] 2 QB 18, the National Dock Labour Board was required by legislation to delegate all appropriate functions to local dock boards. One local dock board passed a resolution which effectively gave its powers to suspend dock workers to the port manager. This was held to constitute an unlawful delegation of the local dock board’s powers. There are some exceptions to this, the most significant of which are: (i) A public authority exercising administrative functions will often be able to delegate preliminary tasks such as fact finding exercises to other persons or seek recommendations from them. But the authority must still reach the final decision itself; (ii) The Carltona principle: Powers and duties that have been conferred on a government minister or his department may be exercised, on his behalf, by the civil servants within his department without the minister himself having to be personally involved (Carltona Ltd v Commissioners of Works [1943] 2 All ER 560); (iii) This principle has since been expanded in R (Chief Constable of West Midlands) v Birmingham Justices [2002] EWHC 1087 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; (iv) Section 101 of the Local Government Act 1972 authorises a local authority to arrange for its functions to be discharged by its committees or officers or other local authorities. 5. Fettering Discretion The basic principle here is that a public authority must not refuse to exercise its powers or unlawfully impose limits on its freedom to act under those powers. This does not mean that a public authority cannot introduce its own internal policies or rules to guide and regulate its own decision making. But it does mean that the authority must be prepared to keep an open mind and to make exceptions to those rules or policies where appropriate (See R v Port of London Authority, ex parte Kynoch Ltd [1919] 1 KB 176. So, for example, in British Oxygen Company v Board of Trade [1971] AC 610, the rejection of an application for a grant in accordance with a policy not to make grants for items of less than £25 each was held to be lawful as the Board had fully considered the application.

In contrast, in R v North West Lancashire Health Authority [2001] 1 WLR 277 , a health authority’s policy not to fund gender reassignment surgery was held to have fettered its discretion. Although the policy allowed for an exception where there was an overriding clinical need, the health authority had applied the policy in a way that prevented anyone from availing themselves of the exception in practice. 6. Relevancy In reaching a decision, a public authority must ensure that it takes into account all considerations that are relevant for that decision. It must also ensure that it does not take into account any irrelevant considerations. Failure to do so will render the decision unlawful. For example, in R v Secretary of State for the Home Department, ex parte Venables [1998] AC 407, the House of Lords held that, in determining the length of time that the killers of Jamie Bulger had to stay in prison before they became eligible for parole, the Home Secretary could take into account public confidence in the justice system but could not take into account public petitions, public opinion or campaigns organised by newspapers. He was exercising a function akin to a judge in a criminal court. Exception: A decision will not be unlawful if it was insignificant or operated in favour of the claimant: R v Inner London Education Authority, ex parte Westminster City Council [1986] 1 WLR 28 per Glidewell LJ. 7. Improper purpose A public authority can only use its powers for the purpose for which they were conferred by the empowering legislation. For example, in Webb v Minister of Housing and Local Government [1965] 1 WLR, a local authority that had powers to construct and maintain coastal defences could use them to acquire land to build an access road to the defences but not to acquire that land for the purpose of incorporating a promenade into the scheme. This example is similar to ‘simple ultra vires’. But what if the power was used for two purposes, one of what was lawful and the other unlawful? The basic rule is that if an authorised purpose is the primary or dominant purpose or materially influenced the decision but not if was an incidental purpose (see e.g. R v Inner London Education Authority, ex parte Westminster City Council [1986] 1 WLR 28). However… In Porter v Magill [2002] 2 AC 357, a Conservative local authority adopted a policy under which it sold council houses and flats to owner occupiers. This was targeted at particular areas. It transpired that the real objective of this policy was to secure more Conservative voters in marginal wards. The House of Lords upheld a decision of the district auditor that this was unlawful. Lord Bingham explained that:

“Councillors do not act improperly of unlawfully if, exercising public powers for a public purpose for which such powers were conferred, they hope that such exercise will earn the gratitude and support of the electorate and thus strengthen their electoral position. The law would indeed part company with the realities of party politics if it were to hold otherwise. But a public power is not exercise lawfully if it exercised not for a public purpose for which the power was conferred but in order to promote the electoral advantage of a political party. The power at issue at the present case is section 32 of the Housing Act 1985, which conferred on local authorities to dispose of land held by them subject to conditions specified in the Act. Thus a local authority could dispose of its property; subject to the provisions of the Act, to promote any public purpose for which such power was conferred, but could not lawfully do so for the purpose of promoting the electoral advantage of any party represented on the Council.” NB. The difference between Webb and Porter is, therefore, the degree of impropriety displayed by the authority. The judiciary will also ensure that a public authority does not use its powers for a purpose that they deem to violate standards of good administration (see e.g. Wheeler v Leicester City Council [1985] AC 1054 – punishing a rugby club that had done nothing wrong in law). It has been emphasised that the principle that a public authority must not use its powers for an improper purpose applies even if the power is framed in terms that appear to give the authority complete freedom of action: In Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, a committee of investigation was empowered to investigate and report on a complaint relating to the milk marketing scheme ‘if the Minister… so directs .’ The Minister had refused to direct the committee to investigate a complaint made by south eastern dairy farmers. He claimed that the power gave him absolute discretion. The House of Lords held that the purpose of this power, viewed in the context of the legislation as a whole, was to ensure that the scheme was not operating in a manner that was contrary to the public interest. The minister’s reasons for refusing to refer the complaint frustrated this purpose. THE SECOND GROUND - IRRATIONALITY Even where a decision remains within the scope of the legislative scheme, it may be unlawful because it is “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it.” See also Secretary of State for Education v Tameside Council [1977] AC 1014 – Lord Diplock observed that ‘unreasonable conduct’ is ‘conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt.’ Rationality was formally known as Wednesbury unreasonableness. This derived its name from the case of Associated Picture Houses v Wednesbury Corporation [1948] 1 KB 223. The Wednesbury Corporation had power to grant licences for the opening of cinemas on Sundays ‘subject to such conditions as the authority think fit to impose ’. The corporation

imposed a condition in a Sunday licence that no children under 15 should be admitted to the cinema, something that the applicant considered irrational and unreasonable. Lord Greene MR commented that: “...It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind. I think Mr. Gallop [the applicant] in the end agreed that his proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really meant that it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether. If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy of this kind. Some courts might think that no children ought to be admitted on Sundays at all, some courts might think the reverse, and all over the country I have no doubt on a thing of that sort honest and sincere people hold different views. The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. It is the local authorities that are set in that position and, provided they act, as they have acted, within the four corners of their jurisdiction, this court, in my opinion, cannot interfere.” The key to the test of unreasonableness is that the authority will be judged by the standard of the ‘reasonable authority’ – not the reasonable man, or what the judge may think is reasonable. If that was the case, the judge would be in the position of supervising executive action – a result which would conflict with our separation of powers doctrine. Is the standard set too high? See R v Home Secretary ex p Brind [1991] 1 AC 696 where Lord Ackner stated: “ This standard of unreasonableness, often referred to as the irrationality test, has been criticised as being too high. But it has to be expressed in terms which confine the jurisdiction exercised by the judiciary to a supervisory as opposed to appellate jurisdiction.” Note, however, that the threshold can be flexible. It will be particularly high, making it harder for the decision to be found unlawful, in areas such as economic policy. In R v Secretary of State for the Environment ex p Hammersmith LBC [1991] 1 AC 521 , Lord Bridge held that the decision “was not open to challenge on gourds of irrationality short of the extremes of bad faith, improper motive or manifest absurdity.” Proportionality: Proportionality as a concept comes from the German legal system. It means that actions taken by public bodies should not result in actions or decisions which cause a greater degree of interference with the rights or interests of individuals than is required to deal with the state’s objective.

Proportionality was rejected as its own head of judicial review in R v Home Secretary ex p Brind [1991]. However, if an authority is found to have acted disproportionally, it may serve as evidence of irrationality instead....