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Categories of Illegality - Coggle Diagram
Categories of Illegality
Simple Illegality
The term ‘ultra vires’ is often used as a generic phrase relating to any decision which is tainted by illegality (e.g. a police officer arresting a person for parking on a yellow line, when there is simply no power of arrest in such a situation).
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Errors of Fact
- Precedent Facts:
Where a decision-maker's power to decide on a particular matter (i.e. its jurisdiction to do so) depended on it making an initial finding of fact (White and Collins / ex p Khawaja).
- No Evidence for a Fact:
If a finding of fact, on which a decision is based, is supported by no evidence at all, the courts have felt able to overturn a decision based on it (Coleen Properties).
- Ignorance or Mistake of an Established Fact:
An established fact, which is material to the decision, is ignored or misunderstood.
For this to be reviewable, it must have given risk to unfairness. There is a four-part test (E v Sec of State for Home Dept):
- There must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter.
- The fact or evidence must have been 'established' in the sense that it was uncontentious and objectively verifiable.
- The appellant (or his advisors) must not have been responsible for the mistake.
- The mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning.
- Where decision-maker has misunderstood one or more facts or circumstances regarding the case or the claimant.
- They are generally not reviewable because generally it is down to the original decision maker to consider the facts of a case. Except in the following three situations:
Retention of Discretion
If given discretionary powers, decision-makers must exercise that discretion and not ‘fetter’ or restrict themselves. This ground mainly arises in one of two ways:
- Fettering of Discretion:
A public body is seen to have ‘fettered’ its discretion when it has acted in a way that hampered its own ability to properly exercise a discretionary power.
One way in which this can arise is where the public body decides not to consider exercising a power at all (ex p Fire Brigades Union).
The courts will not allow a decision-maker to bind/fetter its discretion by adopting a rigid or blanket policy, so that the outcome of a particular case is decided in advance, or without proper exercise of discretion in response to individual factors.
- Unlawful Delegation of Discretion:
Where a public body is empowered to make a decision by an Act of Parliament, the general rule is that a decision-maker is not normally allowed to delegate that discretion to someone else.
Some statutes will expressly allow the decision-maker to delegate decision-making powers to someone else.
The Carltona Principle - In central government, the minister may delegate his/her discretion to officials (civil servants) within the department. Where decision making is delegated, power should be delegated to someone of appropriate seniority and accountability.
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Errors of Law
The decision-maker makes a mistake concerning a question of law. For example, it misinterprets the meaning of a statutory power.
Exceptions to reviewability of errors of law:
- Where the error of law is not decisive to the decision - by 'decisive', it is meant that, but for the error concerned, the decision would have been different.
- Where the decision-maker is interpreting some special system of rules, courts are often unwilling to intervene, for example, with statues of an old university.
- Where the power granted is so imprecise that it is capable of being interpreted in a wide range of different ways, the courts will not necessarily quash a decision just because they would have come to a different view.
Old position - only jurisdictional errors of law were reviewable (i.e. where a public body made a mistake about whether it had any legal authority to decide on a matter).
New position - post Anisminic [1969] and ex p Page [1992], all errors of law are now reviewable.