Illegality

• What are the four grounds needed to prove illegality?

  • A mistake
  • The fact or evidence established was uncontentious and objectively verifiable
  • The applicant must not have been responsible for the mistake
  • The mistake must have played a material part in the tribunal's reasoning
• What are the sub-grounds for illegality?

  • Ultra vires
  • Error of law - Public body misinterpreted provisions of legislation
  • Unlawful delegation
  • Improper purpose
  • Mistake of established fact, or no evidence fact
• What is illegality?


  • When an administrative decision is taken and is incompatible with the law (including statutory provisions or common law rules)
  • A question of legality therefore raises an issue of statutory interpretation
• What is discretion?


  • Discretion allows for flexibility so public bodies can make decisions that align with their idea of the public interest so to meet circumstances
  • Allows for decisions to be made alongside changing circumstances
  • Discretionary powers can be delegated
  • Public bodies can adopt policies to help them make decisions and provide guidance on how to reach them
• What were the facts of R (Coughlan) v Minister for the Cabinet Office [2022]?


  • Coughlan argued the intro of voter ID schemes would disenfranchise the poor
  • C challenged the Pilot Orders arguing they were made ultra vires and were outside the scope of section 10 of the Representation of the People Act 2000
  • C also emphasised that the right to vote in local govt elections is a fundamental constitutional right which could only be restricted by statute
• What was the decision in R (Coughlan) v Minister for the Cabinet Office [2022]?


  • Dismissed
  • Considered a matter of statutory interpretation
• What were the facts of Council of Civil Service Unions v Minister for the Civil Service [1985]?


  • Thatcher decided employees of GCHQ wouldn't be permitted to join trade unions on the grounds of national security
  • Thatcher relied on the royal prerogative power to regulate the terms of service, issuing the new rule through an Order in Council
• What was the decision in the Court of Appeal for the GCHQ case?

  • Dismissed on the grounds that it would be inappropriate for the courts to intervene on matters of national security
• What was the significance of the GCHQ decision?


  • The application of judicial review is dependent on the nature of the government's powers
  • Non-legal conventions may be subject to legitimate expectations
  • National security is a political issue