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1st Class PQ on Collateral Challenge
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If the Regulations were duly approved, it is unlikely he would have a defence. If they werenot approved by House of Lords, it is likely he will have a defence.
REQUIREMENTS
Following Boddington, a collateral challenge may be successfully argued if an individual
is charged under a bye-law where that bye-law is ultra vires and therefore a nullity. In
orthodox theory, an unlawful administrative act is ultra vires and hence void ab initio per
Anisminic. However, to limit administrative chaos inter alia, collateral challenge is not
always available. Adam (A) must thus show that the bye-law was illegal and that, bearing
in mind the availability of appeal, it would nevertheless be unreasonable to grant him the
defence.
ILLEGALITY
The criteria that the Minister for Climate Change used to help meet the targets set out in
Schedule 2 of the Carbon Emissions (Reduction) Act 2010 appear to be intra vires. He has
the power to make any Regulation which is ‘necessary or expedient’. ‘Expedient’ gives the
Minister wide latitude. Given the wide latitude afforded to the Minister, only judicial
review of the Regulations on reasonableness grounds rather than correctness grounds
would lie.
REASONABLENESS OR CORRECTNESS?
Typically, questions of fact are only reviewable on a reasonableness basis even though all
questions of law are jurisdictional per Anisminic. We can apply Baroness Hale’s approach
from R (A) v Croydon LBC. There, she said the question of whether or not someone was a
child had a clear meaning: is this person over 18 or under 18? As such, this question could
be decided by the court for itself without intruding upon the rightful discretion of the
lawfully-appointed decision-maker: it was a question where there was ‘one correct
answer’. However, this is not the case here: ‘expedient’ means the Regulation taken must
in some way further the purpose of reducing carbon emissions. However, such a decision
requires careful policy considerations: there are clear policy questions in what is a
sensible, effective or fair way to cut emissions. This is hence more like South Yorkshire
Transport where jurisdiction turned on the meaning of ‘a significant part of the UK’: it
was unclear what exactly this meant. It was uncertain if this was a question of geographic
extent or population level, and in any case what would be the relevant cut-off point in
either land mass or number of people. As any figure the court could have derived would
have been arbitrary in some sense, only reasonableness review could lie.
Similarly, whether or not A’s carbon footprint was ‘excessive’ is a term best left to the
discretion of the decision-maker.
NOT UNREASONABLE
In deciding what is ‘expedient’, therefore, the court can only use Wednesbury
unreasonableness as ‘expedient’, like ‘significant’, has no singular, clear-cut meaning. It is
possible to come to a range of reasonable answers as to what this means. A policy of
denying car licenses to individuals with an excessive carbon footprint is not ‘so
unreasonable that no reasonable decision-maker could have taken it’: one can see a logic
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