Constitutional and Administrative Law: Judicial Review - Illegality (1)

Illegality: Definition: Decision-maker must correctly understand the law regulating their decision-making powers and must give effect to the law (i.e. misinterpretation or wrongful application of public law powers) (GCHQ [1985] per Lord Diplock). Possible Categories for Illegality:1. Simple ultra vires: Acting beyond / exceeding legal powers (Fulham Corporation [1921]; Ex parte Witham [1997])2. Wrongful delegation of power: Public law powers should not be unlawfully delegated (Vine [1957]); Gov't ministers typically confer power on officials to take decisions on their behalf (Carltona [1943]; Barnard v National Labour Dock). 3. Improper purpose (Non-Jurisdictional Error)Power should be used for proper and lawful purpose (Congreve [1976]).

4. Abuse of Discretion (Non-Jurisdictional Error) Public law discretion should not be fettered (British Oxygen [1971]). Relevant factors must be considered (Singh [1986]). Irrelevant factors must not be taken into consideration (Venables [1997]). 5. Excess of Jurisdiction (Jurisdictional Error) Courts will generally not interfere with mistake of fact unless a precedent fact (White and Collins [1939]) or there is a lack of supporting evidence (Ashbridge Investments [1965]). Today, courts will intervene in order to rectify mistakes of law (Anisminic [1969]). 6. Breach of ECHR HRA s.6 requires public bodies to act in accordance with ECHR (Purdy [2009]).

Simple Ultra Vires: Acting beyond and exceeding legal powers. Concept associated with Parliamentary intention and actions not authorised by statute. CASE: Attorney-General v Fulham [1921] Statutory powers - D established laundry - customers took clothes to washhouse - employees washed clothes. HELD: Ultra vires - not authorised by statutes - in fact authorised creation of facilities for people to use themselves - laundry was a completely different enterprise. CASE: Leech [1993] Prison Act 1952 s.47(1) - Home Secretary could make rules for managing prisons. Prisoner sought JR of prison rules permitting governor to read letters - stop any letter of inordinate length or objectionable. Violated right of correspondence with legal advisor? HELD: Ultra vires - could not have been Parliament's intention to impede prisoner's right of access to courts (via legal advisor).

CASE: Roberts v Hopwood [1925] Local authority raised its minimum wage - failed to consider interests of rate payers. HELD: Authority acted outside the powers conferred by statute (Metropolis Management Act 1855 s.62). Concerns - could leg'n reflect the political attitude of the times in which it was passed? There were no 'socialist' controlling government bodies. CASE: Cure & Deeley Ltd [1962]Regulation considered ultra vires of the Finance (No 2) Act 1940 - purported to confer judicial powers onto commissioners - ousted jurisdiction of the courts.CASE: Ahmed v HM Treasury [2010]Supreme Court quashed the Terrorism (United Nations Measures) Order 2006 as being ultra vires United Nations Act 1946 s.1.

Excess of Jurisdiction:Whether a local authority is empowered to provide a service or exercise a discretion. In terms of jurisdiction it is possible for a public body to make: Mistake of fact; or Mistake of law Mistake of Fact:In JR proceedings, courts will not interfere when a body makes a mistake of fact, because: Specific public body has been conferred with the responsibility of determining facts; Judges are experts in law, not facts. JR overwhelmed with cases involving public bodies that had made factual errors. JR not amenable to investigating disputed facts. There are some exceptions: Precedent Facts Facts with no supporting evidence

Precedent Facts: Definition: Precedent / Jurisdictional fact in that its existence is necessary in order for the public body to act. Certain facts must be correctly established before the body can act, as these facts are central to the decision-makers' power. CASE: Khawaja [1984] Existence of power to detain an individual (with intention to deport) under the Immigration Act 1971 depended upon him being an 'illegal entrant'. Sufficient / adequate evidence to justify and support immigration officer's belief that entry into UK had been illegal. Executive / gov't had to prove to the court the facts that immigration officer relied on. CASE: White and Collins [1939] Local authority not permitted to compulsorily purchase land which was part of a park - land factually held to be part of the park - compulsory purchase order quashed.

Facts with no Supporting Evidence:Where there is no evidence supporting certain facts, or decision-maker reached unreasonable conclusion on the evidence, the court may interfere with the decision (Ashbridge Investments [1965] per Lord Denning). CASE: E v SSHD [2004] In what circumstances can and should the courts interfere with an administrative decision-maker’s assessment of its own jurisdiction? Unfairness and error of law Four criteria: 1. Mistake as to existing fact, including availability of evidence 2. Fact ‘established’ ie uncontentious and objectively verifiable 3. Appellant/advisers not responsible for mistake 4. Mistake played material (but not necessarily decisive) part in reasoning.

Mistake of Law:A body may misinterpret its legal powers by misunderstanding the statutory provisions which enable it to act.CASE: Anisminic [1969] Commission charged under statute with determining compensation claims for property seized or destroyed during the Suez Crisis 1956. C appeared to satisfy criteria for compensation - sold property to Egyptian organisation, claim for compensation was rejected. Foreign Compensation Act 1950 s.4 - Commission decisions could not be questioned by courts of law - 'ouster clause'. Commission misconstrued its responsibilities - had asked whether the successor in title to Anisminic's property was British, rather than simply: was the applicant British? Commission had gone outside its jurisdiction - ouster clause did not apply - Commission had not made a 'determination'.

Questions presented by Anisminic: Did not decide definitively that error of law is always jurisdictional. Implications of error of law reasoning - barred effective application of ouster clause removing JR (Gilmore [1957]). Still some resistance to their use (Al Fayed [1997] – procedural fairness grounds not ousted) Exceptions such as time limit clauses e.g. Smith v East Elloe [1956]; Ostler [1977].

Other Cases:CASE: Page v Hull University Visitor [1993] Education - University - Visitor's jurisdiction - Dismissal of lecturer - Claim that dismissal ultra vires university statutes - Whether visitor's decision amenable to judicial review - Whether dismissal intra vires statutes. CASE: Cart v Upper Tribunal [2011] Review of refusal of Upper Tribunal to allow appeal from Lower tribunal Significant recognition of internal hierarchical structure of tribunal system, review not totally excluded but limited to narrow grounds – (1) important point of principle or practice, or (2) other compelling reason, following ground for second tier appeal permission. Policy argument: Should courts always correct any error of law? Or should specialised bodies and decision-makers be given more autonomy – at least if legislative text not unambiguous, and a reasonable interpretation is adopted?

Illegality (Introduction)

Simple Ultra Vires

Excess of Jurisdiction (I)

Excess of Jurisdiction (II)

Questions on Anisminic