There must be a lawful exercise of the decision maker’s discretion. Illegality is the excess / absence of power or the abuse / misuse of the exercise of power.
‘the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it.’ [1]
In Wednesbury, W decided that cinemas could open on a Sunday, but children could not attend to protect their ‘moral welfare’. APPH brought judicial review against W by challenging the legality of the decision (and reasonableness). They argued that the discretion given to W was not unfettered: the legislation was concerned with licensing cinemas, not protecting moral welfare. The claim was unsuccessful on illegality.
In Padfield, a pricing policy underpaid farmers for their milk production than in other parts of the UK. P requested for M to refer their complaint to a committee for investigation. M refused and argued that legislation gave him complete discretion in the matter.
The court rejected M’s argument, holding that he had misconstrued his powers and acted for reasons irrelevant to the purposes of the legislation. Political embarrassment is not a good reason. If no reasons are given for a decision, it is assumed there are no good reasons for the decision. P won.
Jurisdiction of the Courts and Decision-Makers:
It is the role of the court to interpret the scope and content of the instrument that confers discretionary power. This closely links to ultra vires principle (‘beyond one’s legal power or authority’).
‘If [decision-makers] apply the law incorrectly, they have not performed their duty correctly and judicial review is available to correct the error’. [2]
Jurisdictional Errors:
Traditionally, the courts were only concerned with errors made by decision makers that were in excess of their jurisdiction. Errors made within the exercise of their jurisdiction were not.
This has changed over time. The new position is that errors of law (illegality) is not limited to jurisdictional errors.
‘Any error of law made by an administrative tribunal in reaching its decision can be quashed for error of law’. [3]
Preventing Judicial Review (Parliamentary Sovereignty vs Rule of Law):
On the one hand, Parliament is free to make whatever it wants law. Therefore, it seems plausible that, with express words to the effect, that judicial review may be prevented.
On the other hand, the rule of law is a key part of our constitution. If judicial review can be prevented because of Parliament’s supremacy, the rule of law is undermined. There is a growing support for the view that Parliament’s supremacy is limited.
‘In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the […] new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.’ [4]
Ouster Clauses:
An ouster clause is a legislative clause that prevents senior courts from reviewing the decision of a lower court or tribunal.
The supervisory jurisdiction can only be ousted ‘by the most clear and explicit words’. [5]
In Anisminic v FCC, the FCC made an incorrect interpretation of the law. The legislation had an ouster clause that stated that ‘the determination of the [FCC] … shall not be questioned in any court of law’. The House of Lords determined that the clause did not give protection by reading it very narrowly.
Courts may reject an attempt by Parliament ‘to subvert the rule of law by removing governmental action affecting the rights of the individual from judicial scrutiny’. [6] This position shows the general direction of courts being unwilling to allow explicit ouster clauses if they subvert the rule of law.
In Privacy International, PI had alleged that GCHQ had been hacking computers using an improperly broad warrant issued by the Secretary of State. IPT investigated and found in favour of GCHQ. PI sought to challenge the decisions with judicial review.
Ouster clause: ‘determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.’ [7]
Both the High Court and the Court of Appeal upheld decision of IPT, noting that the ouster clause was valid.
The Supreme Court reversed the decision, stating that the ouster clause in RIPA is not valid because any ‘determination’ that is legally wrong is not a ‘determination’ at all. They reiterate that there is a presumption against the courts being ousted; judicial review can only be excluded by the most clear and explicit words. It is ultimately up to the courts to determine this.
Sumption LJ, dissenting, argues that the rule of law is not infringed by the clause due to the judicial nature of the IPT, so the right of appeal is not needed.
Exercising Discretion:
The decision-maker whom discretionary powers have been delegated to must exercise that discretion.
Fettering Discretion:
Decision-makers must keep an open mind. They cannot merely refuse to make a decision or simply treat policy as binding.
‘When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future.’ [8]
‘[The Minister is] entitled to have well in mind his policy. To this extent the reference to keep an open mind does not mean an empty mind. This mind must be kept ajar.’ [9]
Requirements for Good Policy:
Policy must be lawful.
Policy ought to be published.
If it is not, the policy must not conflict with the currently published policy. [10]
Decision makers should be prepared to depart from policy where there is good reason to do so. [11]
Decision makers should follow their own self-created policies and practices.
In British Oxygen v Technology Minister, TM had a discretionary power to give grants to help firms with capital expenditure. It adopted a policy of not paying grants in cases where the cost per item was less than £25. BO spend £4m, but TM rejected their application as each cylinder cost less than £25. The claim was unsuccessful as TC was not bound to pay every eligible person and BO did not fit the policy requirements.
Sub-delegating Discretion:
Delegatus non potest delegare: no delegated powers can be further delegated.
Further delegation has to be authorised first.
Relationship between Ministers and other Officials:
A minister can delegate responsibilities to a civil servant. [12] This applies to delegations ‘providing they do not conflict with or embarrass them in the discharge of their specific statutory duties … and that the decisions are suitable to their grading and experience’. [13]
In Bourgass, solitary confinement policy for prisons limited it to 72 hours. This could be extended with approval from the Secretary of State but was usually approved by a prison official who was delegated the power.
The Supreme Court held that the purpose of the limit and need for approval was for the protection of the rights of the prisoner to have someone outside of the prison to make the determination. The power could be delegated, but not to a prison official.
Relationship with other Ministers:
A minister cannot surrender discretion to another minister, but they can provide advice to each other. [14] This allows for a blend of principle and pragmatism.
Improper Purposes:
A power granted for one purpose cannot be exercised for another. [15]
Parliament has conferred discretion with the intention that it should be used to promote the policies and objectives of the Act, not any other purpose. Ministers and government officials should act as agents for the will of Parliament, according with its sovereignty.
If the decision-maker ‘so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were no entitled to the protection of the court.’ [16]
In Magill v Porter, a Conservative-controlled local authority used its statutory powers to sell housing stock, intending on helping Conservatives win the next local election.
The decision was held to be unlawful as local authorities have a general duty to act in the public interests and powers cannot be used to serve the interests of the ruling political group unless it overlaps with public interest.
Irrelevant Considerations / Failure to Consider Relevant Considerations:
A decision-maker must consider all relevant considerations and not consider any irrelevant considerations of the case.
In Venerables, it was held that the Home Secretary acted unlawfully when he took into account public petitions before declining to release two prisoners convicted of murder.
‘The test of whether a decision maker has had due regard is a test of the substance of the matter, not of mere form or box-ticking, and that the duty must be performed with vigour and with an open mind; and that it is a non-delegable duty.’ [17]
Resources:
References:
[1] Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 (‘GCHQ’) (Lord Diplock) [2] R v Lord President of the Privy Council, ex parte Page [1993] AC 682 [3] R v Hull University Visitor, ex parte Page (1993) [4] R (on the application of Jackson) v Attorney General [2005] UKHL 56 [5] R v Medical Appeal Tribunal, ex parte Gilmore [1957] 1 QB 574 (Denning LJ) [6] R (on the application of Jackson and others) v Attorney General [2005] UKHL 56 (obiter) [7] Regulatory of Investigatory Powers Act 2000 (RIPA) s67(8) [8] R v Secretary of State for the Home Department, ex parte Venables [1998] AC 407 (Brown-Wilkinson LJ) [9] R v Secretary of State for the Environment, ex parte Brent London Borough Council [1998] AC 40 [10] Walumba Lumba v Secretary of State for the Home Department [2011] UKSC 12. [11] Except in the exercise of prerogative: R (on the application of Sandiford) v The Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44 [12] Carltona Ltd v Commiissioner of Works (1943) 2 All ER 560 410 [13] Oladehinde v Secretary of State for the Home Department; Alexander v Secretary of State for the Home Department [1991] 1 AC 254 [14] H Lavender & Son Ltd v Minister of Housing & Local Government [1970] 1 W.L.R. 1231 [15] EG: Disability Discrimination Act 1995 s49A(1) [16] Padfield v Ministry of Agriculture, Fisheries and Food [1968] AC 997 [17] R (on the application of Domb and ors) v Hammersmith and Fulham London Borough Council [2009] EWCA Civ 941
Cases Mentioned:
Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223
Padfield v Ministry of Agriculture, Fisheries and Food [1968] AC 997
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22
British Oxygen Co Ltd v Minister of Technology [1971] AC 610
R (on the application of Bourgass) v Secretary of State for Justice [2015] UKSC 54
Porter v Magill [2001] UKHL 67
R v Home Secretary, ex parte Venables [1998] AC 407
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