A more recent version of these Grounds Of Review notes – written by Cambridge/Bpp/College Of Law students – is available here.
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Grounds of Review _______________________________________________________ Illegality R v Somerset CC ex parte Fewings (above) per Laws J - local authorities must have positive power to act whilst everything which is not forbidden is allowed for the individual However the Localism Act 2011 gives a general competence to local authorities and curtails this principle
? Forsyth: ultra vires is not really a basis for review, but rather a "fig leaf" (Sir John Laws) for judicial control of good administration
Express & reasonably incidental powers: R v Richmond LBC ex parte McCarthys & Stone Council had power to determine planning applications. But they also provided advice to intending developers & charged Held: the advice was incidental, but the charging was not. It was too far stretched from their positive authority Error of law: Errors of law on the face of the record were reviewable, and also those which were a matter of analysis & argument but which were non-jurisdictional, but not jurisdictional matters (i.e. within their competence) Anisminic British government set up a Commission to decide compensation for property confiscation in Egypt. Applicant applied & turned down due to error of law Held: success - removes the strict distinction between jurisdictional & nonjurisdictional errors & focus on unreasonableness Re Rascal Communications per Lord Diplock:
- Administrative tribunals - rebuttable presumption that errors are reviewable
- Inferior courts - no presumption
- High Court - irrebuttable presumption that it is not reviewable
Ouster clauses: Anisminic (above) per Lord Reid: ouster clauses are interpreted as narrowly as possible - S.4 Foreign Compensation Act 1950 had a natural meaning but it didn't extend to immunity
HL urged Parliament to drop the ouster clause of the Asylum & Immigration Bill and they did Wrongful delegation: Carltona v Commissioner of Works Notice requisitioning applicant's factory signed by secretary of the Commissioner Held: freedom to delegate as this was practically necessary - however the commissioner remained constitutionally responsible Fettering of discretion: Lavender & Son Minister for Housing & Local Government had a policy that he would always refuse planning permission where the Minister for Agriculture refuses Held: this was a fettering of discretion & minister should make up his own mind British Oxygen v Minister of Technology British Oxygen applied for a grant but was refused as the Board said it would not consider an application for less than PS25 Held: the minister was free to have the policy but he had to be prepared to listen to an application to disapply the policy
Unreasonableness/Irrationality Wednesbury Wednesbury gave permission to open cinemas on Sundays but imposed restriction on children under 15 Held: per Lord Greene, that though this was a reasonable, the court could review a decision for unreasonableness where:
- In making the decision, the defendant took into account factors that ought not to have been taken into account, or
- The defendant failed to take into account factors that ought to have been taken into account, or
- The decision was so unreasonable that no reasonable authority would ever consider imposing it.
Improper purposes: Padfield Minister chose not to refer complaint to milk marketing committee Held: rejecting minister's argument that he had a perfect discretion, Lord Reid held that discretion must be used in line with Parliamentary objectives & even a perfect discretion does not amount to a discretion not to use it Congreve v Home Office
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