Chapter 16 Answer guidance

Illegality  
  1. What does ‘ultra vires’ mean?
  • Remember that this is a Latin phrase. Contrast it with the phrase ‘intra vires’. See section 16.1 if you don't remember either of these.
  • If a public authority has acted ‘ultra vires’ what does it mean?
  • The term can be used to explain the concept of abuse or lack of power.
 
  1. Explain what is meant by ‘discretionary power’ and its significance to administrative decision-making.
  • If a body has a ‘discretionary power’ to do something, is it compelled to do that thing? Or does it have a choice as to the action it takes?
  • What language in a statute would indicate that a power was discretionary rather than mandatory? Look at the examples of the Gambling Act 2005 and the Immigration Act 1971 in section 16.1.2.
  • Discretion confers flexibility. Does that mean that public authorities have a free choice about how they exercise their discretion? Think about the example of Padfield, discussed in section 16.1.3.
  • Can a body abdicate its discretion or allow someone else to dictate its choice?
  • Refer to Figure 16.1 for a memory aid about the significance of ‘discretionary power’ to administrative decision making.
 
  1. Distinguish between errors of law and errors of fact and explain in what circumstances the courts will review errors of fact.
  • Remember that when courts discuss the ‘jurisdiction’ of a public authority, they are discussing the power of that public authority to decide an issue of fact or law.
  • Distinguishing between questions of fact and law can be difficult and the courts can also decide that a question is a mixed question of fact and law.
  • How did Lord Reid distinguish between a question of fact and law when thinking about the word ‘insulting’ in Brutus v Cozens?
  • Why are the courts reluctant to overturn decisions of fact?
  • What do you understand by the term ‘precedent fact’? Look back at Lady Hale’s explanation in Croydon, highlighted in section 16.6.2.
  • In what other circumstances will the courts review errors of fact?
 
  1. Write a memorandum for a friend who has just taken up a job with a local authority that issues taxi licences. Explain in your memo how a discretionary power should be exercised. Also explain in what circumstances a court is likely to hold that a discretionary power has been exercised unlawfully.
  • When completing this task, think about what it means for a power to be discretionary. Although the decision-maker has a choice about what action to take, is that choice limitless?
  • Think back to the example of Padfield, discussed at 16.1.3. What was the issue with the use of discretionary power in that case and how would you explain this to a friend?
  • Would you need to tell your friend anything about delegating decision-making under discretionary power? Would it be OK for your friend to adopt a policy regulating the decisions made under that power? Think back to what you learned about ‘fettering discretion’ in section 16.2.1.
  • For more ideas, revisit Figure 16.1.
 
  1. Explain the implications of the Public Sector Equality Duty to decision-making by public authorities.
  • What does the Public Sector Equality Duty (PSED) require public authorities take into account when making their decisions?
  • Does the PSED require decision-makers to achieve actual equality?
  • Where is the PSED set out? See section 16.5. What are the ‘protected characteristics’?
  • If the PSED has been considered but the decision-maker has not placed much weight on it, can a court invalidate the decision? Review the discussion around Baker in section 16.5.2 if you cannot remember.
 
  1. Consider the following problem:

The imaginary Mobile Phone Mast Act 2003 gives power to a local council to grant applications for mobile phone masts and the attach conditions ‘if it thinks fit’. Mobile L has made a successful application to Hill Town Council to erect a mobile phone mast outside Fairview Primary School on condition that it builds a new sports hall for the school. Mobile L objects to this condition being added on the basis that is has no obligation towards the school.

Hill Town Council receives a letter from Fairview Primary School, and a petition signed by all of the parents and teachers at the school. They argue that it is a potential health hazard to place a mast so near a school and that the children’s health should be paramount in such a decision. The school produces a report from an independent group of scientists about the cancer risk to children from such masts. The council refuses to consider the report. It simply says that it has a policy of approving such applications and it must follow its policy for the sake of consistency. The council also states that the mast is at least 5 metres from the school and is perfectly safe. In fact, the mast is only 3 metres from the school. The council has also received guidance from the Secretary of State for the Environment that, for commercial reasons, all mobile phone mast applications should be accepted. The Secretary of State has written to the council informing it that, if the council wants to receive funds in the next round of spending by central government, it must encourage commercial enterprises. The council leaders know that losing central government funds would have serious financial consequences for its budget.

 

Advise Fairview Primary School and the parents of the chances of successfully challenging the decision on a claim for judicial review. Also consider whether Mobile L can object to the imposition of the condition that it builds a new sports hall for the school.

  • What is the nature of Hill Town Council’s power? Is it mandatory or discretionary? What language are you relying on to guide your answer?
  • Does it matter that Hill Town Council refused to consider the report about the cancer risk to children?
  • What do you remember about the adoption of policies? Is it OK for decision-makers to adopt rigid policies or must they be willing to consider exceptional cases? Think back to what you learned about ‘fettering discretion’ on section 16.2.1.
  • The council seems to have made a mistake about how far the mast is from the school. Does this matter? What type of mistake is this and would the court review it?
  • What is the significance of the guidance from the Secretary of State? Is it OK if the council leaders placed a lot of weight on that guidance in making their decision about Mobile L’s application? What do you remember about the relevance of a local authorities’ fiduciary duties and the example of Bromley London Borough Council v Greater London Council?
  • When thinking about the imposition of the condition about the new sports hall, think about why the council might have imposed this condition. Review section 16.4.1 if you are unsure about this.
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