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Jr Illegality Notes

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One of the three grounds of JR proposed by Lord Diplock in GCHQ
Case [1985]: illegality, irrationality and procedural impropriety.
o Generally achieved on grounds of ultra vires. Lord Diplock:
"the decision maker must understand correctly the law that regulates his decision-making powers and must give effect to it."
Courts have assumed the role of limiting the powers of public bodies. E.g. Localism Act 2011, which gave limited vested power to public bodies.
o This applies to all with the exception of the Queen in parliament which beyond the confines of EU law may do whatever it pleases.
Forsyth's critique: 'Of Fig Leafs and Fairy Tales'
o Divides critics into three schools before rebutting
 1) Those that say ultra vires cannot be the basis of review
 The Datafin case and others. It what it did because it wanted to - there were no vested powers
 There are few cases here, these rest not on ultra vires but the courts traditional power to prevent monopolies.
 2) Those who say that it is not the basis of review
 Review has become so sophisticated and complex that to maintain that it is a vindication of parliaments intentions is wholly fictional. Courts therefore either promulgating norms of good administration or seizing power for themselves.
 3) Those who say that it should not be the basis for review, inc. Lord Woolf and Laws J
 Want review to be put on a statutory footing. With the result that statute itself would become subject to review. It is currently not.
 This would lead to collision of legislature and courts.
o The analytical difficulty is this: what an all powerful
Parliament does not prohibit, it must authorise either expressly or impliedly.
 To abandon ultra vires is to challenge the supremacy of
 Intra vires and ultra vires as mutually exclusive concepts - 'there is no grey area'.
 Intra vires and ultra vires are collectively exhaustive - a decision can't be anything but UV
or IV.
Academic responses to UV:
o Craig argues the development of JR over time indicates that it has nothing to do with parliamentary intention. 

o Laws - UV is a 'fig leaf' we know it is a judicial creation,
judges should not be allowed to hide behind any pretence to the contrary.
o Oliver - JR doesn't extend to statutory powers? No reason for this under UV, therefore UV is at least an incomplete explanation.
o Craig - Ouster clauses are often circumvented, cannot be giving effect to the will of parliament by undermining it.
Express and Reasonable incidental powers:
o AG v Fulham Corporation [1921] - FC had the power under statute to build public washrooms, which it did, it also set up a laundry service, which it did not have the power to do.
 Ultra vires, clear and simple.
o ex parte McCarthys [1991] - council had power to determine planning applications. Council also held meetings with intending developers to give advice. Intended to reduce the amount of time sifting through poor planning applications. Charged for the meetings.
 HoL held that holding of meetings and giving of advice was reasonably incidental to the handling of planning applications.
 However charging for this advice was 'incidental to the incidental' and therefore illegal.
Pre 1969 errors of law were divided into two categories:
o 1) Errors on the face of the record (the document that embodied the authority's decision).
 Could always be dealt with.
o 2) Errors not on the face of the record
 Jurisdictional errors could be dealt with.
 Non-Jurisdictional errors could not be dealt with.
These distinctions were removed in the case of

Anisminic v Foreign Compensation Commission [1969] -
A UK mining group lost assets in Egypt when they were nationalised by Egyptian government.
 The Foreign Compensation Act 1950 reflected an international agreement to provide compensation. The
FCC misinterpreted the rules and found Anisminic was ineligible. JR declaration successful.
 Lord Reid: JR where a tribunal "has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity."
In principle therefore all errors of law are reviewable.
o Three exceptions identified in ex parte Page [1993]:
 1) Where the error of law is not decisive to the decision.
 2) Where the decision maker is interpreting a special or technical system of rules, or Parliament has declared the first instance decision would be final. (see Re
Rascal below)

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