JR: Illegality

• How did Lord Diplock define 'illegality' in the GCHQ case?

  "The first ground of illegality refers to ‘where the authority concerned has been guilty of an error of law in its action as for example purporting to exercise a power which in law it does not possess"
• What are the main meanings of illegality?

  • The grounds on which the courts review the legality of the exercise of public functions
  • Administrative decisions must be taken in accordance with the law
• What are other ways that illegality can be brought up for JR?

  If the applicable law concerned may be statutory provisions or common law rules e.g if a public authority exercising its statutory powers takes a decision outside the limits of those powers, it acts unlawfully
• Error of fact

  Where the error is made when the judge had the wrong facts or interpreted them incorrectly (belief by the applicant that with the right information, the judge would not have ruled against them)
• Simple illegality

  An action is illegal if it is expressly forbidden by statute or common law
• Improper purpose

  Power given for one purpose is used for another
• Sub-grounds of illegality (Ultra Vires)

  • Simple illegality
  • Error of law
  • Error of fact
  • Unlawful delegation
  • Improper purpose
  • Failure to take into account relevant considerations or has taken into account irrelevant considerations
  • Fettering of discretion
• What is the meaning of Error of law

  Public bodies have misinterpreted provisions of legislation
• What is the meaning of Unlawful delegation

  Where a local authority can't delegate the exercise of its statutory functions without express provision from Parliament
• In the case of E V Secretary of State for the Home Department, how did the courts establish the first ground for 'Error of Fact'? (where the CoA allowed the appeal because Tribunal did not consider new evidence by claimants of them being of risk to persecution or torture)

  There must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter
• What was the second ground for Error of Fact in E V Secretary?

  The fact or evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable;
• What was the third ground for Error of Fact in E V Secretary?

  The applicant must not have been responsible for the mistake;
• What was the forth ground for Error of Fact in E V Secretary?

  The mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.
• For the ground 'Lawful exercise of discretion', what is the meaning of discretion?

  
  

  • Discretion: is given in order to allow flexibility so that public bodies can make decisions in accordance with their perception of the public interest and in order to meet particular circumstances including the needs of individuals.
  • Discretion also allows for decisions to be made in the light of changing circumstances
• What is the main element for the sub-ground 'Actual exercise of discretion'?

  Discretionary powers cannot be delegated unless authorised to do so (sit in one body)
• What is the meaning of Permitted delegation?

  Where a 'local authority may arrange for the discharge of any of their functions by committee or sub-committee…’ (can delegate certain functions to committees)
• What does 'Fettering discretion by treating policies as binding' mean?

  Where public bodies can adopt policies to help them make decisions and provide guidance on how to reach them (may give rise to a legitimate expectation)
• What is the meaning of Error of Law?

  Where the judge had all of the right information but the applicant believes the law wasn’t applied correctly