Contents

Intro - GROUNDS FOR JUDICIAL REVIEW – Illegality..............................................................................2

SIMPLE ULTRA VIRES.............................................................................................................................2
RELEVANT AND IRRELEVANT CONSIDERATIONS....................................................................................2
IMPROPER PURPOSE.............................................................................................................................3
ILLEGALITY UNDER A FIDUCIARY DUTY..................................................................................................4
BAD FAITH.............................................................................................................................................4
FETTERING OF A DISCRETION................................................................................................................5
WRONGFUL OR UNAUTHORISED DELEGATION.....................................................................................6
ERRORS OF LAW....................................................................................................................................7
ERRORS OF FACT....................................................................................................................................9
ONEROUS CONDITIONS.......................................................................................................................10
ILLEGALITY UNDER HRA.......................................................................................................................12
Intro - GROUNDS FOR JUDICIAL REVIEW – Illegality
 Has the decision-maker acted beyond their powers?
 If u have then u have acted illegally
 Lord Diplock in GCHQ classified the grounds of JR into three headings:
o Illegality
o Irrationality
o Procedural impropriety
o Proportionality – after HRA
 What is illegality?
o Illegality is a broad basis for evaluation that encompasses a wide variety of potential
violations by public authorities.
o Being legal/acting legally, “ …the decision-maker must understand correctly the law
that regulates his decision-making power and give effect to it” (per Lord Diplock)
[this is the meaning of legality not for illegality]
o Illegality definition: Illegality happens when the decision-maker does not understand
the law. Does not regulate the power in accordance with the law
o There are subgrounds under illegality that can co-exist (improper purpose, bad faith
etc)

SIMPLE ULTRA VIRES

o When the officials go beyond their legal power, they are behaving in ultra vires; this
is a fundamental premise of administrative law.
o This essentially means that a decision maker (minister/gov dept) made a decision
which it does not have the right to make
o You have exceeded the boundaries – did more than what was authorized to do – u
did smthg that u have no authority to make
o the idea that you cannot exercise powers that have not been conferred on you
o Anything in excess of the power given = ULTRA VIRES
o Case: AG v Fulham Corporation [1921]
 The most prominent application of the principle is when a governmental
entity engages in actions for which it possesses no legal power to do so.
Attorney General v Fulham Corporation [1921] exhibits this type of unlawful
behaviour.
 FC were given a power to provide free wash house services. But FC charged
people and this money would go back to FC and not gov. this was ultra vires
bec u weren’t supposed to charge. P said do it for free. Them charging have
gone beyond the statute
o Case: R (Bancoult) v SOS for Foreign and Commonwealth Affairs [2001]

RELEVANT AND IRRELEVANT CONSIDERATIONS

o Decision-maker has either:
 failed to take into account relevant considerations OR (ignoring the good)
 formed a decision on the basis of irrelevant considerations (focusing on the
bad)
o case: Roberts v Hopwood [1925]
  the statute told the council to pay their employees such wages as the
council may think fit
 they decided to pay their employees higher than the average
 they were paying their male and female workers equally (this was deemed
ultra vires)
 the courts found that the council failed to take into account a relevant
consideration. There was a failure to consider something that was relevant.
The salary comes from tax payers. Burden on the tax payers if all councils
get more money.
 Council thinks that everyone should be paid equally – this was deemed
irrelevant
o Case: R v East Sussex CC ex p Tandy [1998]
 Tandy was a schoolgirl but she was homeschooled provided by the state.
She had X number of hours but bec of financial constraints, they had to
reduce her hours.
 Ur relevant factors r only related to schooling and education not money. If
money not enough, find it somehow. them saying that I’ll give u less hours is
based on financial factor. This is ultra vires bec they took into acc smthg that
is irrelevant
 If a decision maker takes into account both relevant & irrelevant
considerations, the question would be whether the irrelevant ones influence
the final decision
 Which was the most influential factor? – the determining factor
 Case: R v Broadcasting Complaints Commission ex p Owen [1985]
o They have a responsibility to allow ppl to broadcast. If u get
1 hour, everyone else gets 1 hour.
o Owen says that he was given too little air time
o Reason: Owen supports terrorists
o What was relevant: prevent negative ideologies to spread
(this took priority)

IMPROPER PURPOSE
o The use of power for the wrong intention is illegal. Malice or dishonesty on the part
of a public authority are examples of unethical objectives.
o When you are accusing someone, you are alleging that they have not followed the
purpose of the powers
o they basically exercised their power with the wrong purpose
o u have to know the proper purpose of the powers (by looking @ the name or the
provision of the statute)
o definttion: where the E didnt follow the purpose of the statute
o Powers of executive body/tribunals are mostly provided by statute, however, the
purpose of which the power is granted is often absent in the statute itself. Hence,
the courts will often ‘infer’ such purposes onto the exercise of public power implicit
in the statute
o U have to determine the meaning of the statute
o Remember that the grounds of JR are not exclusive & one ground can often
intertwine with others, more so for the ‘improper purpose’ subheading
  a decision which is made with improper purpose often contains irrelevant
considerations
 bec u hv taken into acc smthg that is irrelevant, u hv deviated from the true
purpose of the statute
 it pushed u further from the aim
 so, one sub-ground can cause another sub-ground
 very commonly linked with relevant and irrelevant considerations
o Cases: Congreve v Home Office [1976]
 cost a TV license will increase from 12 pounds to 18 pounds
 home office called everyone who paid 12 pounds to pay another 6 pounds
 is that okay? A: No
 they paid the correct amount already. U cannot change the amount and
then ask the people to pay again
 Congreve said im not paying the 6 pounds. The home office took away the
license.
 Home office have acted illegally. The courts found out that they increase to
gain profit. That is not the right purpose. The home office were trying to
profit of the people who already paid
 The court held that threatening a person for money is an unethical act.
 Very commonly linked with relevant and irrelevant consideration
 Where there is a failure to consider smthg that is relevant, this could lead to
improper purpose

ILLEGALITY UNDER A FIDUCIARY DUTY

o Fiduciary – linked to finance (financial interest)
o Exercise of public power involves the allocation and usage of public funds
o if a public body exercises power using public funds, then they have a ‘fiduciary duty’
towards tax-payers
o if theres are tax issue in the PQ
o These kind of situations often arise whereby:
 there’s a duty to provide a service, and
 regards must be had as to the interest of taxpayers, who provide the funds
for the service
o When the first point conflicts with the second point, the courts will have to strike a
balance between what constitute ‘fiduciary duty’
o Case: Roberts v Hopwood [1925]
 They paid more money to employees
 This is an issue here bec it involves tax payers’ money
 They broke their fiduciary duty to the tax payer
 They were trying to do the right thing but ended up breaking fiduciary duty

BAD FAITH
o Bad intentions, selfish reasons, personal reasons
o Someone has done something so wrong
o This is a ground for JR when the claimant feels that the public body intentionally
abused its power and acted in bad faith towards the claimant
 o However, it must be noted that bad faith is a ground which rarely succeeds on its
own, in Cannock Chase Disctrict Council v Kelly [1978] Megaw LJ said:
 “ …[bad faith] always involves a grave charge. It must not be treated as a
synonym for an honest mistake… ”
o Nonetheless, as bad faith inevitably involves irrelevant consideration / improper
purpose, a case that fails on bad faith can still succeed on the other grounds
o Bec of taking into acc smthg irrelevant, u have therefore acted in bad faith bec of A,
u acted in B. so there is causation
o Bad faith doesn’t exist on its own. It exists bec u either took into acc smthg that is
irrelevant, u acted with improper purpose – therefore, u have acted with selfish
reasons for ur own personal self interests
o Case: R v Derbyshire CC ex p Times Supplements [1990]
 local council had a working relationship w Times
 one day, they decided to not use Times anymore bec Times had criticized
about the council's people
 Times said that council stopped using bec of bad faith
 court held that the council cant just stop due to an article bec thr was nthg
wrong w the article

FETTERING OF A DISCRETION
o Fetter – limit
o Discretion – flexibility
o when Parliament gives a local authority or a government minister or ministry
powers, They give them a discretion
o So fettering of discretion - we're talking about where your choice has been limited.
o You limit it. (you have been given a choice, but you limit it yourself and that is wrong
because when you have a discretion, ure supposed to be given a choice. U are
supposed to be flexible)
o E.g. of fettering my discretion
 X got hospitalised on Sunday
 I said idc and that X needs to submit his assignment tmrrw
 That is me fettering my discretion. That is me not being flexible and not
being fair because this person has been hospitalized because they're ill. They
didn't ask to be ill.
o In plain words, fettering of a discretion means that a decision maker was ‘so fettered
by a policy/promise that it is as if s/he is not making a decision at all’
o The difficulty in fettering of a discretion comes from the fact that formulating
policies are often within the powers and duties of the public body
o Also, a promise made by public authority if broken, could give rise to the ground of
legitimate expectation
o Case: British Oxygen v Minister of Technology [1971]
 Minister is the executive body. He had a statutory power to avoid industrial
grants. To filter out, he said there will be an application process. He said
wow so many so he filter again. He will only award to those involved
machinery and that each machinery costs at least 25 pounds each
 Our applicant supplies oxygen tanks. They wanted to invest 4 million in
oxygen machines. Each cylinder costs 20 pounds.
  The issue is that each machine cost 20 pounds and the minister said that
each machine must cost at least 25 pounds so he denied their application on
that basis. Applicant asked for JR
 Court held that even though u hv the right to come up with ur own policy, u
cannot be so rigid as to not consider this kind of cases.
 Applicant had a good proposal. you had the discretion to allow this
application, but you didn’t. You limited yourself so much to the point where
it was as if you had no choice at all
o Not always applicable in a problem question unless you can make the argument
that's somewhere there was a discussion involved and that discussion was being
limited or restricted severely, not always will you find it in a problem question. So
just like fiduciary duty, this is one of the rare ones not to say that it won't ever find
it, but it's considerably rare compared to the others.

WRONGFUL OR UNAUTHORISED DELEGATION

o I hv all the power but I choose to give nady the power to do smthg. Can nady
delegate the power to someone else?
o General rule: when statute confers power on an individual / body, the power should
NOT be delegated unless delegation is authorized by law (i.e. provided for by statute
itself)
 If P by way of a statute, has given you a specific power, either as an
individual or a statutory body, the power should not be delegated unless
that delegation is authorized by the law.
 But take note that not all delegations are unlawful.
 For example, NADHRATUL is the Minister of Health. Can she do everything
by herself?
 No, she can delegate to her subordinates. She's the minister. She's the head
of her little department or big department. So you get to decide. Oh, OK.
Yeah. I want my deputy to do this. I want my. I want Jamie to do that. I want
VISHALLEN to do this. Can, if you're all in the same department, that is a
form of authorized delegation. Because you're not. It's not leaving KKM’s per
view. It's not leaving their health ministries. They help ministries jurisdiction.
 It is impossible for a minister to personally exercise everything. one man or
one woman can't do everything on their own.
 also is a recipe for disaster if you give all the power to one person.
 It could be dictator.
o Not all delegations are unlawful
o E.g. courts won’t hold that a minister must personally exercise each and every
power
o It is accepted that, where a statute confers powers on ministers, these powers are
exercisable on his behalf by the personnel of his department – So even though the
statute may say the Minister of Health is authorized to do XY and Z, basically the
statute is saying the Minister of Health has the authority to delegate within his
department, but within his or her portfolio
 Local Government Board v Arlidge [1915] – “a minister cannot do everything
himself ”
  Carltona v Works Commissioners [1943] – “it cannot be supposed that the
particular statutory provision meant that in every case the minister in
person should direct his mind to the matter”
o Case: Barnard v National Dock Labour Board
 What happened here was that the statute in question delegated disciplinary
powers. Keyword here is disciplinary. so the power to punish the people to
the national dock labour board.
 So the statute authorised the respondent to have disciplinary powers. What
happened later on was that the Labor Board, the respondent, then sub
delegated it to a manager. Somebody who works within their board, a
manager.
 So Parliament gave the Labor board disciplinary powers.
 The disciplinary board then sub delegated it to one person (a manager)
 And this was held to be unauthorized delegation because the power
belonged to the board as a whole, not one person, not two people, but the
panel, the entire board.
 The statute did not give the authority to delegate it to someone else. The
statute gave them the authority to discipline people as they see fit. That’s
the only power. Statute didn’t give the power to transfer it over to
somebody else just bec ure lazy
 disciplinary powers in this case could only be exercised by the respondent,
the national dock Labor Board. No one else. So in this case there was clear
cut, unauthorized or wrongful delegation
o Vine v National Dock Labour Board
 Board was given the power. Board passed it over to another person. Cannot
do that unless the statute tells you that you can, you cannot do this thing.
o R v Race Relations Board ex p Selvarajan
 Silver Rajan was accusing somebody of racially discriminating against him
 He lodged a complaint to the race relations board to investigate his
complaint. To see if his complaint was right or wrong, had any merit, so the
race relations board was supposed to consider his complaint.
 What happened after that was that the race relations board sub delegated
their fact finding responsibility to a committee. still within the race Relations
board, but they sub delegated it. They said we will make the final decision.
But you guys go on a fact-finding mission. Go and investigate. Go and gather
the evidence that I need to make a final decision.
 Final decision was still being made by the board. Whether Silverajan’s
complaint was meritorious or otherwise, but the fact finding responsibility
was delegated to someone else.
 Do you think that delegation off the fact finding responsibility was
authorized or unauthorized? A: Authorised
 It was authorized because that court said it's OK. You are only delegating the
fact finding.

ERRORS OF LAW
o An error of law committed by the authority is outside the scope of its power and will
be deemed void by the courts.
o A county council's policy to outlaw deer shooting across its region was held to go
beyond the scope of the committee's jurisdiction, and the policy was overturned [R v
Somerset CC, ex p Fewings [1995]. These examples demonstrate how the decision
maker is required to understand the scope of their authority and to act within it.
o usually happens when you have the right information. Your facts are all correct but
you misapplied the law. You applied the wrong law. You misinterpreted the law. You
made a legal mistake.
o errors of law are always judicially reviewable because when you make a legal
mistake that throws the validity of your decision into question.
o JR is concerned with the legality of a decision – hence errors of law automatically
renders a decision reviewable
o What is an ‘error of law’? Many manifestations
 Wrong interpretation of a word with legal meaning e.g. ‘accommodation’
 Has there been a legal exercise of power in relation to the objectives of the
legislation?
 did you apply the law correctly with regards to the objectives, the
outcomes of the law?
 Has discretion been properly exercised?
 Did you exercise proper discretion?
 Have relevant considerations been taken into account?
 Have irrelevant considerations been excluded from the decision-making
process?
o If an authority is to act intra vires, it must conduct itself according to a correct
interpretation of the law
o Case: Perilly v Tower Hamlets Borough Council
 The council had the power to give licenses to stall holders
 Perily applied for a license to run a specific stall
 This application was considered by the respondent, Tower Hamlets Byron
Council.
 They made a mistake here. They thought that they could only give or
authorized licenses based on the sequence of how they received the
applications. So for example, let's say Darwin, MANISHA, asra, nady and
Joanne had given me a license. Darwin's first, Joanne says last. So the Tower
council at the Tower Hamlets Borough Council thought they were doing the
right thing. First come first serve. If you give it to me. If your application
reaches me first, I will consider yours 1st and we go from there.
 But this was held to be an error of law. here the issue was a bit more
complex than that. Perily wasn't applying for the license for the first time.
He’s not a first time licensee applier. He was essentially taking over his
mothers stall
 So. Mom ran the store for 30 years, 30 plus years. She died. She transferred
over the stall to her son, so she had been holding the license for 30 plus
years.
 So he was like, I already held the license for 30 over years through my
mother. Now it's just being transferred to me. Same license, same stall. Just
different person is running the stock that it's the same thing. So he felt that
 you should not have entertain other applications before my because I had
held this license for 30 years, so it's quality over the sequence.
 So here, there was an error of law. They thought that everyone should have
their applications assessed on a first come first serve basis and not on who
held the license for longer basis. So it was a legal mistake.
o Anisminic Ltd v Foreign Compensation Commission
 Landmark case!!
 This case essentially is the authority to tell you that any errors of law are
automatically judicially reviewable. Any legal mistake can be judicially
reviewed.
 Court realized that there is more to legal mistakes than just going beyond
your powers. There is misinterpreting the law. There is not knowing what to
do properly, not just going beyond, doing less also is an issue. you may have
made a mistake there, so they decided to enlarge the category of illegality to
even encompass all legal mistakes for as long as that mistake is legal in
nature, it is judicially reviewable.
 This case is landmark in that sense because it extends a legal mistake
beyond the boundaries of ultra vires. beyond the boundaries of nearly
exceeding once powers
o R v Monopolies and Mergers Commission ex parte South Yorkshire Transport Ltd
 Under the Act, the secretary of state had the power to refer merging of
companies to MMC
 The MMC said that they will consider any merger if 25% of those services
are being supplied to a substantial part of the UK
 Issue: define substantial? What does that mean? How big is substantial?
 Court held that substantial is vague so they preferred to go with MMC’s
definition of substantial
 This case tells u that certain words may be questionable

ERRORS OF FACT
o Courts don’t want to get involved with factual mistakes. If there is a factual mistake.
Chances are that’s for the public body to sort out on its own. Courts will only get
involved if the factual mistake is so bad that the decision was affected because of
that.
o The situation for error of fact is not as straight forward as error of law, and the
courts would not so readily interfere in JR as with error of law
o This attitude is seen in Lord Scarman in R v Barnet LBC ex p Nilish Shah
o [1983]:
 ◦ “If [a decision maker] gets the law right… the question of fact… is for the
authority, not the court, to decide.”
o Error of fact – court trying to determine whether the facts of the case ‘fit’ with the
interpretation of the statute
o Only a mistake of fact central to the decision-maker’s power of decision =
reviewable
o R v Hillingdon London Borough Council ex parte Pulhofer
 A statute gave the council a duty to provide accommodation for homeless
people
  Issue: what kind of accommodation
 HoL had to interpret the meaning of accommodation and said that as long it
is suitable
 This is one example of a case where judges do not want to be too precise.
They do not want to tell the London Borough Council these is. This is exactly
what I mean by suitable accommodation must have this, this, this, this and
this because they know - Separation of powers. I don't get to tell you what
to do with regards to how you authorize.
o E v Secretary of State for the Home Department
 Applicant claimed that the immigration appeal tribunal made a mistake.
 If applicant were sent back home, they would’ve been at risked.
 In this case they didn't take into account that the applicants would be at risk
if they were sent back home and the judicial review called said yes, this is
correct. This would have affected your final decision if the Appeal Tribunal
had known that you would have been at serious risk account, they would
not have set you back home. So that is a mistake of fact. Central to their
decision making power

ONEROUS CONDITIONS
o Onerous – meaning: huge obligation
o Onerous + Conditions = the requirements that one needs to satisfy are too
much/difficult
o A decision may also be unreasonable and unlawful if conditions attached to it are
difficult or impossible to perform
 You’re basically saying that I don't mind you setting me conditions. But these
are too much these are too high. No one can meet these conditions. No one
should have to meet these conditions. So sometimes onerous conditions can
be linked under irrationality because we're saying that the conditions are
too much, they make no sense. Too taxing, too impossible to perform, so
really is unreasonable. So they kind of linked together
o This ground of illegality has sometimes been classified under the ground of
irrationality
o Onerous conditions can only be used if you find that the decision has requirements
attached to them, has certain conditions. If the decision doesn't come with any
conditions, no strings attached, you cannot use this sub ground. There must be
conditions involved. No conditions means this is irrelevant.
o Pyx Granite Co Ltd v Ministry of Housing and Local Government
 You know when you want to build buildings, houses, any other types of
buildings. You cannot simply build. You need to ask for permission.
 You can't just simply say, oh, here's my land, I'm going to build upon it. You
need to have permission. You know, you need to show the authority, your
plans and all that, and they need to authorize it.
 Pyx Granite Company was judicially reviewing the Ministry of Housing and
Local Government because they asked for permission to build a specific
building. So they filed their application. They ask for permission, the ministry
said yes, OK, we will give you your permission on condition. OK. There was a
 condition that they needed to fulfill and the condition was this - You are
allowed to build your building whatever it is you want to build, provided that
you build a road next to it, a public road next to your building. So you have
to pay for the road yourself, and it's a public road so everyone has access to
it. People, cars, lorries, anything can use that road.
 Think about it this way, you want permission to build a building and you said
that you will pay for it BUT now the gov is saying that you also need to build
a road next to it
 So here they took the ministry to court and the court agreed and said these
conditions were unreasonable. These conditions were onerous.
 planning conditions “must fairly and reasonably relate to the
permitted development” and “must not be so unreasonable that it
can be said that Parliament clearly cannot have intended that they
should be imposed”
o meaning: This road had nothing to do with their building.
o So if it seems like there is a trend here, onerous conditions is very much linked to
when you apply to build a house or build a specific building, and the authority says
yes, you can build your house subject to these conditions. So you getting that license
that permission comes with strings attached, but you are trying to say that these
strings are too difficult for me to perform. And I should not have been allowed. I
should not be subjected to these kind of conditions.
o Director of Public Prosecutions v Haw
 This concerns freedom of expression (Article 10)
 Mr Hall wanted to do was to have a public demonstration.
 In the UK these are allowed. OK, you can have protests, you can
have demonstration, you can have parades when you go over there
you will see all sorts
 So back then, anti war sentiments were very, very strong in the UK because
a lot of them didn't agree with going to war in Iraq and Afghanistan. So Mr
Hall is one of them. He wanted to have this public protests. Police said can
but theyre going to impose 7 different conditions on Mr Hall.
 Mr Hall was not happy with these conditions, so he challenged it. He said
these conditions were too onerous, so we're going to be looking at whether
these conditions are onerous or not
 Mr Hall used arguments under Article 10 and Article 11 of the ECHR. He
wanted the freedom to express his views on.
 The war in Iraq, and he also wanted to assemble at Parliament Square
alongside other people who were anti war. So they said, fine, OK here your 7
conditions.
 7 conditions: (some)
 Size of protest: not be more than 3 metres in height and width
 Must be an organised protest
 Protestors cannot have any things on them that might be used to
conceal weapons
 Court said that for parades and protests, u can impose conditions only if
they are reasonable
  This case tells you that it’s okay to impose conditions for as long as they
make sense

ILLEGALITY UNDER HRA

o section 3 of HRA, which says that so far as it is possible to do so, all primary and
secondary legislation must be red and given effect in a way which is compatible with
the ECHR
 that means, every single public body, has to follow the ECHR.
o You can use Section 3 and also section 6 if you remember what Section 6 says.
Section 6 talks about the HRA says that all public bodies are bound by the HRA
except Parliament.
o No matter what decisions that you would take into account. You must follow the
Human Rights Act. 'cause, no matter who you are, whether you're a local authority,
a government minister or ministry, the Human Rights Act applies to you in its
entirety. 'cause you're the executive. You don't have parliamentary serenity, best
protecting you. You are subject to the HRE.
o R (Begum) v Headteacher & Governors of Denbigh High School
 Begum was a muslim high school student. She wanted to wear a jilbab.
 The school said, OK, we we only have two options for you. Either you where
the normal school budget, which is the blouse and skirt if you are a girl, but
you she didn't want to wear skirt because it's short or you wear something
called a salwar kameez.
 The school said - until you wear what we say you were to wear - either the
normal school uniform or the salwar kameez, you cannot come to school.
 OK, so she refused to come to school. She filed a complaint, a judicial review
complaint using article 9. Freedom of thought, conscience and religion
because she opposed the normal school uniform. Because it wasn't Sharia
compliant. She wanted to dress according to her beliefs. But the school not
allowing her to dress this way, she felt, was a violation of her freedom to
believe what she wanted to believe and trust the way that manifested that
belief.
 The way the school argued was we don't mind if you are a Muslim, be the
Muslim you want to cover your head, you want to wear the salwar kameez,
it's fine because at least we can still see your face. That was the issue. They
didn't want her to wear articles of clothing that can consume anything
objects.
 So they use the good old national security argument. We are concerned
about the security of our students.
 It sounds very, very racist. But really, u cant tell who is under the veil.
 The HRA must always be respected and considered. Every executive decision
must abide by the HRA and if you don't, then there is a problem. But here
there wasn't any violation. Because they were able to show I'm restricting
her rights for a very good reason.