Chapter 11 Answers to quick test questions

Judicial review: illegality

1. What do we mean by ultra vires?

Ultra vires is a Latin phrase meaning ‘outside the power’, so if a public authority is acting ultra vires they are acting outside of their powers and the courts can intervene. The modern approach of judicial review is that the action of a public authority will be ultra vires if the court finds one the main grounds of review, such as illegality, irrationality/unreasonableness or procedural impropriety.

Within illegality, the term ‘narrow’ or ‘simple’ ultra vires is sometimes used. This is when the decision of the public authority is challenged on the basis that the public authority lacks the power to make the decision in the first place. This can often involve the interpretation of the statute under which Parliament is acting, for example in Attorney-General v Fulham Corporation1 the local authority had the statutory power to establish ‘baths, wash-houses and open bathing spaces’ but it was found to have used this power to create a laundry service not authorised by statute. As this was outside the statutory power granted to the local authority statutory powers, they had acted ultra vires.

2. What is an error of law and how is this different to an error of fact? When will the courts intervene?

An error of law has a specific meaning in this context. Central to this discussion is the concept of ‘jurisdiction’.

In one sense, jurisdiction means the ‘power to decide’, i.e. a tribunal or decision-making body needs to be able to decide what its remit is, and what decisions it can lawfully make. However, the courts must have the power to review questions of jurisdiction in this context – if they did not, there would be a risk that tribunals or decision-makers could extend their jurisdiction beyond that provided for by statute.

‘Jurisdiction’ in another context relates to a different type of error of law. This is when the tribunal or decision-maker has applied the law incorrectly to a decision, and this error of law has taken the tribunal or decision-maker outside of their jurisdiction as they have not acted within the scope of the power granted to them by Parliament. This meant that in Anisminic Ltd v Foreign Compensation Commission,2 the ‘ouster’ clause which stated that any ‘determination’ (decision) made under the Act establishing the Foreign Compensation Commission ‘shall not be called into question in any court of law’ was, in practice, ineffective. This was because the House of Lords determined that the Commission had made an error of law in making the decision. Despite the wording of the statute, the decision could still be reviewed on the basis that the error of law took the Commission outside of their jurisdiction, which meant that there was not a valid determination in the first place. The effect of this decision was to make clear that there is almost no scope for the concept of error of law within jurisdiction, as an error of law will inevitably take the decision maker outside their jurisdiction, meaning that any determination will not be legally valid.

As regards errors of fact, the courts are generally reluctant to intervene on this basis because it starts to resemble an appeal rather than a judicial review claim, but if there is no supporting evidence for the decision (which means that that the decision made cannot be supported by the facts before the decision-maker), the courts may intervene on the basis that the decision is an abuse of power. Similarly, if a power can only be used if a factual situation has arisen or a requirement has been met, then – as R v Home Secretary, ex p Khawaja makes clear – the courts can decide whether that situation arose or the requirement was met in the first place.3

3. What is a discretionary power? What are the advantages and disadvantages of giving discretionary powers to public authorities?

Discretionary powers are powers granted to officials who have flexibility (discretion) over how to exercise that power. This means that they can take account of different factors when making their decisions.

Advantages of discretionary powers include the fact that they allow decision-makers to consider factors that Parliament may not have considered when enacting the legislation. Writing the rules required to implement a scheme can also become relatively straightforward if discretionary powers are used because the individual circumstances of each case can be considered.

The disadvantage of discretionary powers is that they could lead to inconsistent decision-making, particularly when thousands of decisions are being made. In addition, decision making on this scale can also be very time consuming and expensive if public authorities are required to consider the individual circumstances of such a large number of cases. Finally, the decision maker could be accused of making arbitrary decisions if there is no clear objective basis behind a decision, leading to more decisions being challenged before the courts.

4. Is there any significant difference between the ways in which a discretionary power can be fettered?

Discretion can be fettered on the basis of adopting a policy so rigid that the decision-maker is no longer applying their discretion to individual decisions. Discretion can also be ‘abdicated’, meaning that the decision-maker has effectively allowed their decision to be made by someone else, so that they are said to have abdicated their discretion in that party’s favour. Finally, discretion can be fettered by dictation, which is when a third party orders or forces the decision-maker to make a particular decision.

Common to all three types of fettering of discretion is that the decision-maker charged with the task of making the decision has, in substance, not exercised their discretion when making the decision being challenged. One significant difference between the three types is that when discretion is fettered through abdication or dictation, the discretion is fettered because of a third party. By contrast, when the decision-maker has adopted their own policy, it is their own actions which have fettered their discretion.

5. In what circumstances can power be delegated? Are government ministers in a different position? If so, why?

Generally. the principle delegatus non protest delegare (‘one to whom power is delegated cannot himself further delegate’) means that when Parliament grants a statutory power to a public authority, they must exercise the statutory power in question. However, a further delegation of power can be authorised through legislation either expressly or by necessary implication, in the statute granting the decision-making power or in another statute.

Under the Carltona principle, government ministers are in a different position.4 The principle allows government ministers to delegate powers granted by Parliament to them to civil servants within their department without there being any formal authorisation by Parliament. This is because it is practically impossible for a minister to personally exercise all the powers vested in them. It has to be remembered, however, that ministers are accountable to Parliament for the activities of their department, regardless of who has exercised the powers in question.

6. What is the difference between the need for public authorities to consider only relevant considerations and pursue only those purposes intended by Parliament?

An improper purpose is when public authorities use their powers for purposes not intended by Parliament. For example, in Wheeler v Leicester City Council5 the Council’s powers were used to punish a rugby union club when some of its players took part in a tour of South Africa during apartheid. This was an example of the Council wanting to force the rugby club, a private organisation, to pursue the Council’s own objective even though, legally, the club had done nothing wrong.

The need to consider only relevant considerations is shown by R v Somerset County Council, ex p Fewings.6 Under the Local Government Act 1972, councils manage the land they own for the ‘benefit, improvement or development of their area’. Using this power, the council banned deer hunting on their land, with some councillors believing this to be a ‘barbaric’ practice. This was held to be an irrelevant consideration because the councillors’ views on deer hunting were irrelevant to their powers of managing the land.

Conceptually, both of these cases could be much closer to each other than it may first appear. The council in Wheeler arguably allowed their views on apartheid to cloud their judgement, and this could be viewed as an irrelevant consideration to the exercise of their powers. Similarly, the council in Fewings could be viewed as using their powers of land management to achieve the purpose of banning deer hunting, an improper purpose as it was not within the intention of Parliament for the power to be used in this way. This could have been overcome by the council if they had focused more closely on the terms of the power under which they were acting – they could have considered how a ban on deer hunting would ‘benefit’ the area, as required by the statute.

7. How significant is the PSED?

The Public Sector Equality Duty (‘PSED’), as provided for by the Equality Act 2010, section 149(1), requires the following:

  • (1) A public authority must, in the exercise of its functions, have due regard to the need to—
    • (a)  eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
    • (b)  advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
    • (c)   foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

Under section 149(7), the protected characteristics are age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

The key phrase of the section is ‘due regard’: this means that the PSED is a procedural rather than a substantive duty. It is not a duty to achieve a particular result, but to ensure that the decision is reached after considering the factors required by the section. This ensures that key decisions regarding public spending are resolved through the political process rather than the courts.

However, as the Court of Appeal stated in Brackling v Secretary of State for Work and Pensions,

  • the 2010 Act imposes a heavy burden upon public authorities in discharging the PSED and in ensuring that there is evidence available, if necessary, to demonstrate that discharge. It seems to have been the intention of Parliament that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude.7

It’s clear that the PSED imposes a significant duty on public authorities to show that they have considered equality issues when reaching decisions.

1 [1921] 1 Ch 440.

2 [1969] 2 AC 147.

3 [1984] AC 74.

4Carltona v Commissioner of Works [1943] 2 All ER 560.

5 [1985] AC 1054.

6 [1995] 1 WLR 1037.

7 [2013] EWCA Civ 1345 [59].