Summary
Summary public law
- Module
- Public Law
- Institution
- University Of Winchester (UoW)
Summary of 6 pages for the course Public Law at UoW (illegality)
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1. The grounds of judicial ReviewIntroduction
- When a public body acts ultra vires - they are acting beyond legal powers
- This is very broad
- Instead, the focus is really on more specific ground of judicial review as developed by the courts
- These grounds are:
1) Illegality
2) irrationality/ wednesbury unreasonableness
3) Procedural impropriety
Council of civil service unions v minister for the civil service (1985) AC 374 - “GCHQ case”
Lord Diplock, ‘GCHQ’ - ‘My Lords, I see no reason why simply because a decision-making power is derived
from a common law and not a statutory source, it should for that reason only be immune from judicial review.
Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by
which the development has come about, one can conveniently classify under
three heads the grounds upon which administrative action is subject to control by judicial review. The first
ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’. That is not to say
that further development on a case by case basis may not in the course of time add further grounds…’
- Illegality, GCHQ
“By ‘illegality’ as a ground for judicial review I mean that the decision-maker must understand correctly the law
that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a
justiciable question to be decided, by those persons, the judges, by whom the judicial power of the state is
exercisable”.
- Irrationality, GCHQ
By ‘irrationality’ I mean what can now be succinctly referred to as ‘Wednesbury unreasonableness’ . It applies
to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible
person who had applied his mind to the question to be decided could have arrived at it. Whether a decision
falls within this category is a question that judges by their training and expertise should be well equipped to
answer, or else there would be something badly wrong with our judicial system.... ‘Irrationality’ by now can
stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review
- Procedural Impropriety, GCHQ
I have described the third head as ‘procedural impropriety’ rather than failure to observe basic rules of natural
justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is
because susceptibility to judicial review under this head covers also failure by an administrative tribunal to
observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is
conferred, even where such failure does not involve any denial of natural justice’
Illegality
- Lord diplock
- There is no one definitive way to categorise the different elements of illegality
- They merge and overlap each other
- Sargent J at 454-455
- The issue was whether “the Council has, either expressly or impliedly power to conduct the operation
which it is conducting. In my judgement, neither expressly or impliedly, under the Acts on which it
relies, has it that power”.
- Essentially the courts will interpret the legislation granting the power to the public body and then
determine whether the action is within the scope of the power, either expressly or impliedly.
- The fairly incidental rule
Illegality and Discretion
, Discretion;
- Discretion is necessary for government
- KC Davis, “discretionary justice; a Preliminary Inquiry;
- “a public officer has discretion whenever the effective limits on his power leave him free to make a
choice between possible courses of action or inaction.
- Advantages;
- Flexibility
- Purposive rather than legalistic
- Adjust to unforeseen circumstances
- Disadvantages;
- Citizen at the mercy of the administrator
- Inconsistent decisions
- Time consuming
- Potentially allows government to offload difficult and politically contentious policy choices on
administrators
Judicial review is critical for controlling the discretionary power of public authorities
The courts will expect that discretion is used in accordance with the principles of judicial review and comply
with all three grounds
Two main legal techniques to control discretion
Checks after the decision has made through complaints
Adoption of rules which can structure the discretion of confine it
Benefits;
- Help create certainty and uniformity of result
- Be more efficient
- Can creat rights and expectations
DIsadvantages;
- Less flexibility, more rigid
- Less account taken of individual circumstances
Discretion is not unrestricted - Padfield
- Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997
- The Agricultural Marketing Act 1958, regulated milk marketing scheme.
- Farmers in the South-East complained that they were not getting a fair price for their milk.
- The 1958 Act allowed for committee of investigation to consider complaints, if the Minister so directed.
- S19 (3) committee of investigation shall
- … (b) be charged with the duty, if the minister in any case so directs, of considering, and reporting to
the minister on… any complaint made to the minister as to the operation of any scheme…
- Essentially the minister has discretion about referring complaints. The minister refused to refer the
complaint.
- “Parliament must have conferred the discretion with the intention that it should be used to promote the
policy and objects of the Act, the policy and objects of the Act must be determined by construing the
Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not
possible to draw a hard and fast line, but if the Minister… so uses his discretion as to thwart or run
counter to the policy and objects of the Act, then our law would be very defective if persons agreed
were not entitled to the protection of the court”. - Padfield v Minister of Agriculture, Fisheries and Food
[1968] AC 997, Lord Reid at 1030
Discretion must not be fettered
- To prevent the same type of decisions being made from fresh again and again, a public body is likely to
have internal policy guidelines to speed up decision making
- However a policy cannot become a binding, rigid rule
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