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Jr Illegality Notes

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? ?? ? Ground from Lord Diplock, GCHQ: 'By 'illegality' as a ground for JR, I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it'.
? ?? ? Sub-categories: o (1) True ultra vires---simply illegality o (2) Errors of Law o (3) Errors of fact o (4) Abuse of discretion:
? Relevant & Irrelevant considerations
? Improper purpose o (5) Retention of discretion:
? Fettering discretion
? Delegation of discretion (1) True ultra vires---simple illegality
? AG v Fulham Corporation, 'outside the four corners of the Act'. o Re laundry, Fulham Corp, had statutory authority to provide laundry facilities, but set up laundry service for payment.
? But lawful if power necessarily linked to power given in Act, 'reasonably incidental': Westminster Corp v L&NW Railway: if action is reasonably incidental to, or consequent upon, a power that it does have ? lawful (re Westminster Corp, had legislative power to build a public toilet; had to build access to toilet). o So a power can be impliedly authorised.
? Development of constitutional rights and legality principle: principle of statutory interpretation in 1990s which presumed Parliament didn't intend to authorise infringement of fundamental/'constitutional' rights. o Ex p Leech: re prison rules permitting interception of letters including with lawyers; interfered with a constitutional right (free flow of information between client/solicitor); to have power to interfere with constitutional rights, must be expressly given in statute or necessary implication (necessary = purpose of Parliament/function of public body cannot be achieved without the right being infringed). o R v Lord Chancellor, ex p Witham: challenge scale of court fees set by Lord Chancellor? denied fundamental right (access to courts) = ultra vires, didn't have power to set a court fee for purpose not envisaged by the Act. o Approach endorsed by HL: Ex p Pierson; Ex p Simms.
? HRA appeared to supersede this attempt to develop common law framework of protection of fundamental rights, but still can be a powerful tool + recent development of 'common law constitutionalism' as a source of protecting fundamental rights: 1

o R (Afnufrijeva) v SSHD: HL used principle of legality re asylum seeker's entitlement to Income Support ending---could only end once communicated t to the asylum seeker. o HM Treasury v Ahmed (2010): re ground of illegality? UN Act 1946 didn't authorise making of orders permitting freezing of assets of persons reasonably suspected of being involved in terrorism ? led to Parliament passing Terrorist Asset-Freezing Act 2010. (2) Errors of Law
? ?? ? EXAM HINT: is there an ambiguous term in the statute? Has DM misinterpreted the law?
??? ?Early on in JR cases---error of law only reviewable if involved a question of jurisdiction (i.e. whether a legal power arose in the first place).
? ?? ? All errors of law are reviewable ? Anisminic v FCC, re company with assets in Egypt, nationalised after Suez---UK allowed such companies to claim compensation; Anisminic not granted compensation; error of law: Commission had misunderstood rules of scheme it was implementing. o Re the Foreign Compensation Committee had misinterpreted the term 'successor in title' in the legislation---decided Anisminic not eligible for compensation because their 'successors in title' did not have British nationality as required in legislation. o [despite ouster clause].
??? ?Confirmed in Ex p Page.
? ?? ? 3 exceptions: o (1) When error not decisive to the decision (i.e. whether 'but for' the error, the decision would have been different, if multiple reasons). o (2) when a special system of (private) rules apply
? Ex P Page (statutes of a university)
? Also (controversial)---extended, Re Racal Communications: decision made by an inferior court, where deemed that Parliament had expressly provided that the decision of judge at first instance = final. o (3) where power granted is so imprecise, is capable of broad interpretation in a range of ways:
? Decision won't be quashed just because court would have come to different view to D-M.
? R v Monopolies Commission, ex p South Yorkshire Transport:
? Monopolies Comm blocked merger, on ground that South Yorks Transport would have a 'substantial part' of the market. HELD: 'substantial' can have wide range of meanings, imprecise word, broad.

2 ??

The interpretation of Monopolies Commission was 'within the permissible field of judgment' (Lord Mustill)---
court will only intervene if DM's interpretation was 'irrational' (overlap with unreasonableness). SO look for words with broad interpretation, eg 'adequate'/'substantial' etc

(3) Errors of fact
? [[CAUTION re fact-based challenges: Separation of Powers? Beyond judicial control?]]
? (a) Precedent facts/ 'jurisdictional facts':
? DM's power depended on making an initial finding of fact to trigger the power.
? White & Collins v Minister of Health: o Local authority had power to compulsorily purchase land, but only if the land was not 'parkland'. Authority mistakenly failed to realise land was parkland. Precedent fact wrong =
open to JR.
? R v SSHD, ex p Khawaja o Power to detain, only if they are an 'illegal entrant'---
was a precedent fact to trigger the power, was reviewable.
? Powers of this kind are rare, normally body given wide discretion into whether certain facts exist.
? (b) 'No evidence' fact (Coleen; Mahon)
? 'no evidence' to support a factual finding.
? Coleen Properties v Minister of Health: Minister wanted to destroy buildings, because 'not fit for habitation'---no evidence to support this.
? SoS Education v Tameside MBC
? Mahon v Air New Zealand, Lord Diplock: decision 'must be based upon some material that tends logically to show the existence of facts consistent with the finding'.
? (c) Ignorance or mistake of an 'established' fact (E v SSHD)
? SoS Education v Tameside MBC: obiter---an erroneous fact might be reviewable. Lord Wilberforce. Re SoS erroneously believed the reintroduction of grammar schools proposed by local authority would disrupt pupils' education, no evidence to support this.
? R v Criminal Injuries Compensation Board (CICB), ex p A: 4 of HL (obiter) accepted mistake of fact can be ground for JR. re inaccurate evidence about findings of a medical examination given to CICB by a policewoman, to determine whether A had suffered injuries she claimed as result of rape.
? Definitive case, E v SoS Home Dep, Carnwath LJ---JR can be sought on basis of mistaken fact: o E an asylum seeker from Egypt, Muslim Brotherhood---
claim to asylum rejected on basis of factual errors (Home Sec


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