on 23-Jul-2016 (Sat)

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#freedom-of-person #human-rights #public

Question

A defendant’s silence could be taken into account where there was other strong evidence against him

Answer

Murray (John) v UK

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#law #negligence #nervous-shock #tort

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the House of Lords nevertheless adopted and approved the McLoughlin criteria in the decision of [case] which is now the leading case in this area with regards to secondary victims. The criteria to be taken into account when considering whether a duty of care is owed include:
1. whether the claimant has suffered a recognised psychiatric illness;
2. foreseeability of the psychiatric damage;
3. the relationship between the claimant and ‘the victim’;
4. proximity in time and space; and
5. manner of perception.
In addition, as an overarching consideration, the court will always take into account whether it is fair, just and reasonable for a duty to be imposed.

Answer

Alcock v Chief Constable of South Yorkshire [1991] 4 All ER 907

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#law #negligence #nervous-shock #tort

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there was no duty of care owed by the defendants to the viewers of TV

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#jr #law #public

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A 'quashing order' (formerly certiorari), [...];

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quashing the impugned decision

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#jr #law #public

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A 'prohibitory order' (formerly prohibition), [...]

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preventing a public body from acting or continuing to act ultra vires or unreasonably or unfairly;

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#jr #law #public

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A 'mandatory order' (formerly mandamus), [...]

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compelling the public body to perform a public law duty imposed by law

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#jr #law #public

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A declaration, which is [...]

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a statement of the legal position. This does not question the exercise of the power

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#jr #law #public

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An injunction, [...]

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ordering a party to perform, or refrain from performing, a specific act

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#jr #law #public

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was therefore accepted

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#jr #law #public

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allowing public law decisions to be challenged

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#jr #law #public

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the connection between the individual and the issue is not a personal or immediate one

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#jr #law #public

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the rule of law

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#jr #law #public

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A former editor of The Times newspaper, who had frequently written about EU membership, was held to have standing to challenge the signing of the Treaty of European Union ('the Maastricht Treaty') because of his 'sincere concern for constitutional issues'.

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#jr #law #public

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A former editor of The Times newspaper, who had frequently written about EU membership, was held to have standing to challenge the signing of the Treaty of European Union ('the Maastricht Treaty') because of his 'sincere concern for constitutional issues'.

Answer

R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees- Mogg [1995] 1 W.L.R. 386

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#jr #law #public

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Lord Reed commented on the balance of considerations to be taken into account by the court as follows:

'In many contexts it will be necessary for a person to demonstrate some particular interest in order to demonstrate that [...]. Not every member of the public can complain of every potential breach of duty by a public body. But there may also be cases in which any individual, simply as a citizen, will have sufficient interest to bring a public authority's violation of the law to the attention of the court, without having to demonstrate any greater impact upon himself than upon other members of the public. The rule of law would not be maintained if, because everyone was equally affected by an unlawful act, no one was able to bring proceedings to challenge it.'

Answer

he is not a mere busybody

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#jr #law #public

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Lord Reed commented on the balance of considerations to be taken into account by the court as follows:

'In many contexts it will be necessary for a person to demonstrate some particular interest in order to demonstrate that he is not a mere busybody. Not every member of the public can complain of every potential breach of duty by a public body. But there may also be cases in which any individual, simply as a citizen, will have sufficient interest to bring a public authority's violation of the law to the attention of the court, without having to demonstrate any greater impact upon himself than upon other members of the public. The rule of law would not be maintained if, [...]'

Answer

because everyone was equally affected by an unlawful act, no one was able to bring proceedings to challenge it.

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#cases #illegality #judicial-review #public

Question

The classic definition of illegality was given by [...] in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 where he said

‘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.’

Answer

Lord Diplock

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#cases #illegality #judicial-review #public

Question

The classic definition of illegality was given by Lord Diplock in [case] where he said

‘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.’

Answer

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

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#cases #illegality #judicial-review #public

Question

The classic definition of illegality was given by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 where he said

‘By "illegality" as a ground for judicial review I mean that [...]’

Answer

the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.

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#cases #illegality #judicial-review #public

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precedent (jurisdictional) facts

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#cases #illegality #judicial-review #public

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facts with no supporting evidence (where one is entitled to conclude no evidence had been adduced, because none exists)

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#cases #illegality #judicial-review #public

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mistake of facts

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#cases #illegality #judicial-review #public

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E v Secretary of State for the Home Department [2004] QB 1044

Answer

Facts: The case was brought by foreign nationals seeking asylum. Their claims were rejected and they appealed to the Immigration Appeal Tribunal on the basis of factual errors made by the decision maker. The Tribunal decided it could not hear their claims in relation to mistakes of fact. This was probably correct under the law governing the jurisdiction of the Tribunal, but the Court of Appeal was asked to consider whether or not the mistake of fact that the appellants wished to challenge could be raised as a free- standing claim, entirely separate from the statutory requirements which would preclude it. The Court of Appeal answered in the affirmative and indicated this would also apply to mainstream judicial review cases.

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#cases #illegality #judicial-review #public

Question

Facts: The case was brought by foreign nationals seeking asylum. Their claims were rejected and they appealed to the Immigration Appeal Tribunal on the basis of factual errors made by the decision maker. The Tribunal decided it could not hear their claims in relation to mistakes of fact. This was probably correct under the law governing the jurisdiction of the Tribunal, but the Court of Appeal was asked to consider whether or not the mistake of fact that the appellants wished to challenge could be raised as a free- standing claim, entirely separate from the statutory requirements which would preclude it. The Court of Appeal answered in the affirmative and indicated this would also apply to mainstream judicial review cases.

Answer

E v Secretary of State for the Home Department [2004] QB 1044

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#cases #illegality #judicial-review #public

Question

E v Secretary of State for the Home Department [2004] QB 1044
Facts: The case was brought by foreign nationals seeking asylum. Their claims were rejected and they appealed to the Immigration Appeal Tribunal on the basis of [...]. The Tribunal decided it could not hear their claims in relation to mistakes of fact. This was probably correct under the law governing the jurisdiction of the Tribunal, but the Court of Appeal was asked to consider whether or not the mistake of fact that the appellants wished to challenge could be raised as a free- standing claim, entirely separate from the statutory requirements which would preclude it. The Court of Appeal answered in the affirmative and indicated this would also apply to mainstream judicial review cases.

Answer

factual errors made by the decision maker

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#cases #illegality #judicial-review #public

Question

E v Secretary of State for the Home Department [2004] QB 1044
Facts: The case was brought by foreign nationals seeking asylum. Their claims were rejected and they appealed to the Immigration Appeal Tribunal on the basis of factual errors made by the decision maker. The Tribunal decided it could not hear their claims in relation to mistakes of fact. This was probably correct under the law governing the jurisdiction of the Tribunal, but the Court of Appeal was asked to consider whether or not the mistake of fact that the appellants wished to challenge could be raised as a free- standing claim, entirely separate from the statutory requirements which would preclude it. The Court of Appeal answered [...].

Answer

in the affirmative and indicated this would also apply to mainstream judicial review cases

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#cases #illegality #judicial-review #public

Question

When trying to establish what are, and what are not relevant considerations for a decision maker to take into account, regard must first be had to any relevant statute itself. In [case] Megaw J said:

‘…[I]f it be shown that an authority exercising a power has taken into account as a relevant factor something that which it should not properly have taken into account in deciding whether or not to exercise the power, then the exercise of the power, normally at least, is bad. Similarly, if the authority fails to take into account as a relevant factor something which is relevant, and which it ought to have taken into account, the exercise of the power is normally bad’.

Answer

Hanks v Minister of Housing and Local Government [1963] 1 QB 999

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#cases #illegality #judicial-review #public

Question

When trying to establish what are, and what are not relevant considerations for a decision maker to take into account, regard must first be had to [...]. In Hanks v Minister of Housing and Local Government [1963] 1 QB 999 Megaw J said:

‘…[I]f it be shown that an authority exercising a power has taken into account as a relevant factor something that which it should not properly have taken into account in deciding whether or not to exercise the power, then the exercise of the power, normally at least, is bad. Similarly, if the authority fails to take into account as a relevant factor something which is relevant, and which it ought to have taken into account, the exercise of the power is normally bad’.

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any relevant statute itself

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#cases #illegality #judicial-review #public

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the decision-maker has a discretion

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#cases #illegality #judicial-review #public

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R v Somerset CC ex parte Fewings [1995] 1 WLR 1037

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#cases #illegality #judicial-review #public

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in his judgment and discretion he thinks right to do so

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R v Somerset County Council ex p Fewings [1995] 1 WLR 1037

Answer

Facts: Under the Local Government Act 1972 s 120(1)(b), local councils were tasked with managing their land for “the benefit, improvement or development of their area.” Somerset County Council bought a strip of land and banned stag hunting on it, which effectively prevented all hunts. It became apparent that their main reason for banning the hunts was ethical opposition to the practice. The question was whether or not this fell within the terms of their powers under the legislation, or whether morality was an irrelevant factor.

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#cases #illegality #judicial-review #public

Question

Facts: Under the Local Government Act 1972 s 120(1)(b), local councils were tasked with managing their land for “the benefit, improvement or development of their area.” Somerset County Council bought a strip of land and banned stag hunting on it, which effectively prevented all hunts. It became apparent that their main reason for banning the hunts was ethical opposition to the practice. The question was whether or not this fell within the terms of their powers under the legislation, or whether morality was an irrelevant factor.

Answer

R v Somerset County Council ex p Fewings [1995] 1 WLR 1037

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#cases #illegality #judicial-review #public

Question

It is a fundamental principle of administrative law that the person seized with discretion should be the person to exercise it.

Answer

Lavender v Minister of Housing and Local Government [1970] 1 WLR 1231

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#cases #illegality #judicial-review #public

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Lavender v Minister of Housing and Local Government [1970] 1 WLR 1231

Answer

Facts: the Minister of Housing and Local Government refused Lavender’s application for planning permission to develop land for use as a quarry, after hearing objections from the Minister of Agriculture. The decision was challenged on the grounds that the Minister of Housing and Local Government had effectively delegated the decision to the Minister of Agriculture.
The ruling in Lavender prohibits delegation to another agency. However, executive decision makers often find that the number of decisions they have to make outstrips their capacity to make them: it would be physically impossible (and scarcely good use of their time) for the Home Secretary or one of her deputy ministers to read everyone’s passport application.

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#cases #illegality #judicial-review #public

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Facts: the Minister of Housing and Local Government refused Lavender’s application for planning permission to develop land for use as a quarry, after hearing objections from the Minister of Agriculture. The decision was challenged on the grounds that the Minister of Housing and Local Government had effectively delegated the decision to the Minister of Agriculture.
The ruling in Lavender prohibits delegation to another agency. However, executive decision makers often find that the number of decisions they have to make outstrips their capacity to make them: it would be physically impossible (and scarcely good use of their time) for the Home Secretary or one of her deputy ministers to read everyone’s passport application.

Answer

Lavender v Minister of Housing and Local Government [1970] 1 WLR 1231

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#cases #illegality #judicial-review #public

Question

Lavender v Minister of Housing and Local Government [1970] 1 WLR 1231
Facts: the Minister of Housing and Local Government refused Lavender’s application for planning permission to develop land for use as a quarry, after hearing objections from the Minister of Agriculture. The decision was challenged on the grounds that the Minister of Housing and Local Government had effectively delegated the decision to the Minister of Agriculture.
The ruling in Lavender [...]. However, executive decision makers often find that the number of decisions they have to make outstrips their capacity to make them: it would be physically impossible (and scarcely good use of their time) for the Home Secretary or one of her deputy ministers to read everyone’s passport application.

Answer

prohibits delegation to another agency

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#cases #illegality #judicial-review #public

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Carltona Ltd v Commissioners of Works [1943] 2 All ER 560

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#cases #illegality #judicial-review #public

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Carltona

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#cases #illegality #judicial-review #public

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delegation within a department is acceptable (as compared to between departments as in Lavender)

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#cases #illegality #judicial-review #public

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R v Secretary of State for the Home Department ex parte Doody [1993] AC 157

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#cases #illegality #judicial-review #public

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whether the Secretary of State for the Home Department could delegate the function of setting a tariff period for life sentence prisoners

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#cases #illegality #judicial-review #public

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unless delegation is excluded specifically or by necessary implication, no power is non- delegable within a department

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#cases #illegality #judicial-review #public

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Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997

Answer

Facts: The Minister was given discretion to set up a committee of investigation on a complaint regarding the milk marketing scheme. The scheme created nine regions and milk producers in those regions had to sell their milk to the Milk Marketing Board, which had fixed the price for milk several years before, by reference to transport costs. The south-eastern region wished to amend the scheme, but could not get a majority on the Board so made a complaint to the Minister. The Minister refused to refer the matter to a committee of investigation, and an application for mandamus (the old name for a mandatory order) was made to the court. The House of Lords concluded that the Minister had acted for an improper purpose.

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#cases #illegality #judicial-review #public

Question

Facts: The Minister was given discretion to set up a committee of investigation on a complaint regarding the milk marketing scheme. The scheme created nine regions and milk producers in those regions had to sell their milk to the Milk Marketing Board, which had fixed the price for milk several years before, by reference to transport costs. The south-eastern region wished to amend the scheme, but could not get a majority on the Board so made a complaint to the Minister. The Minister refused to refer the matter to a committee of investigation, and an application for mandamus (the old name for a mandatory order) was made to the court. The House of Lords concluded that the Minister had acted for an improper purpose.

Answer

Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997

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#cases #illegality #judicial-review #public

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Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997

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#cases #illegality #judicial-review #public

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improper purpose

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#illegality #judicial-review #public

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goes beyond the boundaries of legal power given to the body concerned

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#illegality #judicial-review #public

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the Secretary of Health were to pass regulations governing the deployment of the armed forces

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#illegality #judicial-review #public

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Attorney General v Fulham Corporation [1921] Ch 440

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#illegality #judicial-review #public

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Westminster Corporation v London & North West Railway [1905] AC 426

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#illegality #judicial-review #public

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A public body will not have acted unlawfully if did something that was reasonably incidental to or consequent upon a power that it did have.

Answer

Westminster Corporation v London & North West Railway [1905] AC 426

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#illegality #judicial-review #public

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presumed that Parliament did not intend to authorise the infringement of fundamental or 'constitutional' rights and cardinal principles of the rule of law without specific statutory authorisation

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#illegality #judicial-review #public

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R v Secretary of State for the Home Department, ex parte Leech (No 2), [1994] QB 198

Answer

Concerned prison rules permitting the interception of letters to and from a prisoner, including correspondence with his lawyers. The court held that this interfered with a constitutional right to the free flow of communications between a solicitor and a client about contemplated legal proceedings. The interference could only be authorised by express words in the statute or by necessary implication. That necessary implication could only arise where the purpose of Parliament could not be achieved without the right being infringed, or the function of the public body could not be discharged without it. Even if this was satisfied, the right could still not be infringed to any greater extent than was necessary in order to achieve the statutory objective. The Court of Appeal in Leech accepted that, by necessary implication, the Prison Act 1952 authorised some screening of correspondence passing between a prisoner and a solicitor. But the prison rules, made under the authority of that statute, were too wide in permitting all letters to and from a prisoner to be read. The authorised intrusion had to be the minimum necessary to ensure that the correspondence was in truth bona fide legal correspondence.

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#illegality #judicial-review #public

Question

concerned prison rules permitting the interception of letters to and from a prisoner, including correspondence with his lawyers. The court held that this interfered with a constitutional right to the free flow of communications between a solicitor and a client about contemplated legal proceedings. The interference could only be authorised by express words in the statute or by necessary implication. That necessary implication could only arise where the purpose of Parliament could not be achieved without the right being infringed, or the function of the public body could not be discharged without it. Even if this was satisfied, the right could still not be infringed to any greater extent than was necessary in order to achieve the statutory objective. The Court of Appeal in Leech accepted that, by necessary implication, the Prison Act 1952 authorised some screening of correspondence passing between a prisoner and a solicitor. But the prison rules, made under the authority of that statute, were too wide in permitting all letters to and from a prisoner to be read. The authorised intrusion had to be the minimum necessary to ensure that the correspondence was in truth bona fide legal correspondence.

Answer

R v Secretary of State for the Home Department, ex parte Leech (No 2), [1994] QB 198

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#illegality #judicial-review #public

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express words in the statute or by necessary implication

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#illegality #judicial-review #public

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the purpose of Parliament could not be achieved without the right being infringed, or the function of the public body could not be discharged without it

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#illegality #judicial-review #public

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any greater extent than was necessary in order to achieve the statutory objective

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#illegality #judicial-review #public

Question

R v Lord Chancellor, ex parte Witham [1997] 2 All ER 779

Answer

W wished to sue for defamation but the fee was set at £500 and he was unemployed. He asked for waiver of the fee, but the local court held that it had no power to do so under the statutory instrument. He sought judicial review of the Lord Chancellor's decision in setting the court fees. He argued that his right of access to the court was being denied by the scale of fees and the court's refusal to waive them. It was held that the Act did not authorise the Lord Chancellor to set fees at such a level that access to the courts, a fundamental right, was denied. The instrument was declared to be ultra vires the Act.

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#illegality #judicial-review #public

Question

W wished to sue for defamation but the fee was set at £500 and he was unemployed. He asked for waiver of the fee, but the local court held that it had no power to do so under the statutory instrument. He sought judicial review of the Lord Chancellor's decision in setting the court fees. He argued that his right of access to the court was being denied by the scale of fees and the court's refusal to waive them. It was held that the Act did not authorise the Lord Chancellor to set fees at such a level that access to the courts, a fundamental right, was denied. The instrument was declared to be ultra vires the Act.

Answer

R v Lord Chancellor, ex parte Witham [1997] 2 All ER 779

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#illegality #judicial-review #public

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it had no power to do so under the statutory instrument

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#illegality #judicial-review #public

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the Act did not authorise the Lord Chancellor to set fees at such a level that access to the courts, a fundamental right, was denied

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#illegality #judicial-review #public

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making a mistake regarding a question of law

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#illegality #judicial-review #public

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giving an interpretation to a word that it is not capable of bearing

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#illegality #judicial-review #public

Question

Anisminic v Foreign Compensation Commission, [1969] 2 AC 147

Answer

A Ltd. was a company with assets in Egypt, which were nationalised after the Suez conflict of 1956. UK legislation allowed such companies to claim compensation from the Commission, subject to certain conditions. The Commission ruled that Anisminic failed to satisfy these conditions. The House of Lords, however, ruled that this was an error of law because the Commission had misunderstood the rules of the scheme that it was supposed to be implementing. Such an error meant that the decision had to be quashed.

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#illegality #judicial-review #public

Question

A Ltd. was a company with assets in Egypt, which were nationalised after the Suez conflict of 1956. UK legislation allowed such companies to claim compensation from the Commission, subject to certain conditions. The Commission ruled that Anisminic failed to satisfy these conditions. The House of Lords, however, ruled that this was an error of law because the Commission had misunderstood the rules of the scheme that it was supposed to be implementing. Such an error meant that the decision had to be quashed.

Answer

Anisminic v Foreign Compensation Commission, [1969] 2 AC 147

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#illegality #judicial-review #public

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Answer

the Commission had misunderstood the rules of the scheme that it was supposed to be implementing

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#illegality #judicial-review #public

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the decision had to be quashed

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#illegality #judicial-review #public

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Confirmed that all errors of law are reviewable.

Answer

R v Lord President of the Privy Council, ex parte Page [1993] 1 All ER 97

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#illegality #judicial-review #public

Question

The House of Lords' decision in R v Lord President of the Privy Council, ex parte Page [1993] 1 All ER 97 confirmed that all errors of law are reviewable. However, there are some qualifications to this general principle, as follows.
(a) Where the error of law is not decisive to the decision. By 'decisive', it is meant that, but for the error concerned, the decision would have been different.
(b) Where the decision-maker is interpreting some special system of rules, courts are often unwilling to intervene, for example, with statutes of a university. (This affected the actual decision in Page). This can also be extended (controversially) to a decision made by an inferior court, where it is deemed that Parliament had expressly provided that the decision of a judge at first instance was to be final, as in [case].
(c) Where the power granted is so imprecise that it is capable of being interpreted in a wide range of different ways, the courts will not always quash a decision just because they would have come to a different view on what the law requires from that of the decision-maker. In R v Monopolies Commission ex p South Yorkshire Transport Ltd [1993] 1 All ER 289, the House of Lords had to consider how to interpret how the phrase 'a substantial part of the United Kingdom' should be interpreted. Lord Mustill observed that 'substantial' accommodates a wide range of meanings and warned of the dangers of attaching a spurious degree of precision on an inherently imprecise word. His view was that the word was so broad and imprecise that different decision-makers might reach differing conclusions when applying them to the facts of a given case. In this situation, he held that the court should not intervene unless the decision-maker's conclusion was irrational.

Answer

Re Racal Communications Ltd [1981] AC 374

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#illegality #judicial-review #public

Question

The House of Lords' decision in R v Lord President of the Privy Council, ex parte Page [1993] 1 All ER 97 confirmed that all errors of law are reviewable. However, there are some qualifications to this general principle, as follows.
(a) Where the error of law is not decisive to the decision. By 'decisive', it is meant that, but for the error concerned, the decision would have been different.
(b) Where the decision-maker is interpreting some special system of rules, courts are often unwilling to intervene, for example, with statutes of a university. (This affected the actual decision in Page). This can also be extended (controversially) to a decision made by an inferior court, where it is deemed that Parliament had expressly provided that the decision of a judge at first instance was to be final, as in Re Racal Communications Ltd [1981] AC 374.
(c) Where the power granted is so imprecise that it is capable of being interpreted in a wide range of different ways, the courts will not always quash a decision just because they would have come to a different view on what the law requires from that of the decision-maker. In [case], the House of Lords had to consider how to interpret how the phrase 'a substantial part of the United Kingdom' should be interpreted. Lord Mustill observed that 'substantial' accommodates a wide range of meanings and warned of the dangers of attaching a spurious degree of precision on an inherently imprecise word. His view was that the word was so broad and imprecise that different decision-makers might reach differing conclusions when applying them to the facts of a given case. In this situation, he held that the court should not intervene unless the decision-maker's conclusion was irrational.

Answer

R v Monopolies Commission ex p South Yorkshire Transport Ltd [1993] 1 All ER 289

Tags

#illegality #judicial-review #public

Question

The House of Lords' decision in R v Lord President of the Privy Council, ex parte Page [1993] 1 All ER 97 confirmed that all errors of law are reviewable. However, there are some qualifications to this general principle, as follows.
(a) Where the error of law is not decisive to the decision. By 'decisive', it is meant that, but for the error concerned, the decision would have been different.
(b) Where the decision-maker is interpreting some special system of rules, courts are often unwilling to intervene, for example, with statutes of a university. (This affected the actual decision in Page). This can also be extended (controversially) to a decision made by an inferior court, where it is deemed that Parliament had expressly provided that the decision of a judge at first instance was to be final, as in Re Racal Communications Ltd [1981] AC 374.
(c) Where the power granted is so imprecise that it is capable of being interpreted in a wide range of different ways, the courts will not always quash a decision just because they would have come to a different view on what the law requires from that of the decision-maker. In R v Monopolies Commission ex p South Yorkshire Transport Ltd [1993] 1 All ER 289, the House of Lords had to consider how to interpret how the phrase 'a substantial part of the United Kingdom' should be interpreted. Lord Mustill observed that [...]. His view was that the word was so broad and imprecise that different decision-makers might reach differing conclusions when applying them to the facts of a given case. In this situation, he held that the court should not intervene unless the decision-maker's conclusion was irrational.

Answer

'substantial' accommodates a wide range of meanings and warned of the dangers of attaching a spurious degree of precision on an inherently imprecise word

Tags

#illegality #judicial-review #public

Question

The House of Lords' decision in R v Lord President of the Privy Council, ex parte Page [1993] 1 All ER 97 confirmed that all errors of law are reviewable. However, there are some qualifications to this general principle, as follows.
(a) Where the error of law is not decisive to the decision. By 'decisive', it is meant that, but for the error concerned, the decision would have been different.
(b) Where the decision-maker is interpreting some special system of rules, courts are often unwilling to intervene, for example, with statutes of a university. (This affected the actual decision in Page). This can also be extended (controversially) to a decision made by an inferior court, where it is deemed that Parliament had expressly provided that the decision of a judge at first instance was to be final, as in Re Racal Communications Ltd [1981] AC 374.
(c) Where the power granted is so imprecise that it is capable of being interpreted in a wide range of different ways, the courts will not always quash a decision just because they would have come to a different view on what the law requires from that of the decision-maker. In R v Monopolies Commission ex p South Yorkshire Transport Ltd [1993] 1 All ER 289, the House of Lords had to consider how to interpret how the phrase 'a substantial part of the United Kingdom' should be interpreted. Lord Mustill observed that 'substantial' accommodates a wide range of meanings and warned of the dangers of attaching a spurious degree of precision on an inherently imprecise word. His view was that the word was so broad and imprecise that different decision-makers might reach differing conclusions when applying them to the facts of a given case. In this situation, he held that [...].

Answer

the court should not intervene unless the decision-maker's conclusion was irrational

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#illegality #judicial-review #public

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Answer

White and Collins v Minister of Health [1939] 3 All ER 548

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#illegality #judicial-review #public

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precedent fact

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#illegality #judicial-review #public

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where a decision-maker's power to decide on a particular matter (i.e. its jurisdiction to do so) depends upon it making an initial finding of fact

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#illegality #judicial-review #public

Question

White and Collins v Minister of Health [1939] 3 All ER 548

Answer

In this case a local authority had statutory powers to compulsorily purchase land but these powers were dependant on the land not being 'parkland'. A landowner objected to the compulsory purchase of his land on the grounds that the local authority had mistakenly failed to realise that the land was part of a park. The Court of Appeal held that it could review the decision on that basis.

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#illegality #judicial-review #public

Question

In this case a local authority had statutory powers to compulsorily purchase land but these powers were dependant on the land not being 'parkland'. A landowner objected to the compulsory purchase of his land on the grounds that the local authority had mistakenly failed to realise that the land was part of a park. The Court of Appeal held that it could review the decision on that basis.

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White and Collins v Minister of Health [1939] 3 All ER 548

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the land not being 'parkland'

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the local authority had mistakenly failed to realise that the land was part of a park

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it could review the decision on that basis

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R v Secretary of State for the Home Department, ex parte Khawaja, [1984] AC 74

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'precedent fact'

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the court itself could review the facts to ensure that the person was indeed an illegal entrant

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judgment rather than objective fact-finding

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will not review merely because a complainant thinks a different view of the situation should have been taken

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'no evidence rule'

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a finding of fact, on which a decision is based, is supported by no evidence at all

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to overturn the decision

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Mistake or ignorance of an established fact can be a ground for review under illegality

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Secretary of State for Education v Tameside MBC, [1977] AC 1014

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an incorrect basis of fact

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Secretary of State for Education v Tameside MBC, [1977] AC 1014

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The case concerned a decision by the Secretary of State to halt the re-introduction of grammar schools proposed by the newly elected local authority: he had believed that the re-introduction would lead to educational chaos and undue disruption. Lord Wilberforce stated in relation to factual errors:

'If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, and whether the judgment has not been made upon other facts which ought not to have been taken into account.'

The House of Lords concluded that the Secretary of State had either misunderstood or was not informed as to the nature and effect of the professional educational advice available to the local education authority and had wrongly jumped to conclusions. His argument that disruption to pupils' education was likely (because of the shortage of time in which to bring in the new policy) was not supported by any evidence but was based upon supposition, in the court's view. Lord Wilberforce concluded that:

'… if he [the Secretary of State] had exercised his judgment on the basis of the factual situation in which this newly elected authority was placed – with a policy approved by its electorate, and massively supported by the parents – there was no ground – however much he might disagree with the new policy, and regret such administrative dislocation as was brought about by the change – upon which he could find that the authority was acting or proposing to act unreasonably.'

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The case concerned a decision by the Secretary of State to halt the re-introduction of grammar schools proposed by the newly elected local authority: he had believed that the re-introduction would lead to educational chaos and undue disruption. Lord Wilberforce stated in relation to factual errors:

'If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, and whether the judgment has not been made upon other facts which ought not to have been taken into account.'

The House of Lords concluded that the Secretary of State had either misunderstood or was not informed as to the nature and effect of the professional educational advice available to the local education authority and had wrongly jumped to conclusions. His argument that disruption to pupils' education was likely (because of the shortage of time in which to bring in the new policy) was not supported by any evidence but was based upon supposition, in the court's view. Lord Wilberforce concluded that:

'… if he [the Secretary of State] had exercised his judgment on the basis of the factual situation in which this newly elected authority was placed – with a policy approved by its electorate, and massively supported by the parents – there was no ground – however much he might disagree with the new policy, and regret such administrative dislocation as was brought about by the change – upon which he could find that the authority was acting or proposing to act unreasonably.'

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Secretary of State for Education v Tameside MBC, [1977] AC 1014

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Secretary of State for Education v Tameside MBC, [1977] AC 1014
The case concerned a decision by the Secretary of State to halt the re-introduction of grammar schools proposed by the newly elected local authority: he had believed that the re-introduction would lead to educational chaos and undue disruption. Lord Wilberforce stated in relation to factual errors:

'If [...], then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, and whether the judgment has not been made upon other facts which ought not to have been taken into account.'

The House of Lords concluded that the Secretary of State had either misunderstood or was not informed as to the nature and effect of the professional educational advice available to the local education authority and had wrongly jumped to conclusions. His argument that disruption to pupils' education was likely (because of the shortage of time in which to bring in the new policy) was not supported by any evidence but was based upon supposition, in the court's view. Lord Wilberforce concluded that:

'… if he [the Secretary of State] had exercised his judgment on the basis of the factual situation in which this newly elected authority was placed – with a policy approved by its electorate, and massively supported by the parents – there was no ground – however much he might disagree with the new policy, and regret such administrative dislocation as was brought about by the change – upon which he could find that the authority was acting or proposing to act unreasonably.'

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a judgment requires, before it can be made, the existence of some facts

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R v Criminal Injuries Compensation Board (CICB), ex parte A [1999] 2 AC 330

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This case concerned inaccurate evidence about the findings of a medical examination given to the CICB by a policewoman. The medical examination was to determine whether A had suffered the injuries that she claimed as a result of rape. The policewoman's testimony was that the examination suggested that A's claims were probably false, whereas the report of the examination, which was not seen by the Board, was in fact consistent with the injuries that A claimed to have suffered. Although the House of Lords recognised that a mistake of fact could form the basis for a judicial review claim, they in fact decided the case on the alternative basis of a breach of the rules of natural justice (see Chapter 16), so the comments made were obiter only.

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This case concerned inaccurate evidence about the findings of a medical examination given to the CICB by a policewoman. The medical examination was to determine whether A had suffered the injuries that she claimed as a result of rape. The policewoman's testimony was that the examination suggested that A's claims were probably false, whereas the report of the examination, which was not seen by the Board, was in fact consistent with the injuries that A claimed to have suffered. Although the House of Lords recognised that a mistake of fact could form the basis for a judicial review claim, they in fact decided the case on the alternative basis of a breach of the rules of natural justice (see Chapter 16), so the comments made were obiter only.

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R v Criminal Injuries Compensation Board (CICB), ex parte A [1999] 2 AC 330

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[case] has brought some much-needed clarification to this ground of review, however, and seems to have established that judicial review can be sought on the basis of a mistaken fact. Carnwath LJ said in that case:

'In our view, the time has come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result.'

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E v Secretary of State for the Home Department [2004] EWCA Civ 49; 2 WLR 1351

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Established that judicial review can be sought on the basis of a mistaken fact.

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E v Secretary of State for the Home Department [2004] EWCA Civ 49; 2 WLR 1351

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R v Somerset County Council, ex parte Fewings [1995] 3 All ER 20

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Roberts v Hopwood [1925] AC 578

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a local authority had failed to consider a relevant factor when increasing wages for its low-wage workers above the market rate

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despite the local authority's desire to better the workers' conditions, it had had no regard to the interests of ratepayers (a relevant factor) when coming to its decision

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R v Gloucester County Council, ex parte Barry, [1997] 2 WLR 459

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the local authority's consideration of their own resources was a relevant factor

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R v Criminal Injuries Compensation Board, ex parte P, [1995] 1 WLR

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the court was ill-equipped to deal with decisions concerned with balancing competing claims on the public purse