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Illegality - Coggle Diagram
Illegality
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Improper purpose
the decision maker ought to use the power given to it by P for the purpose by which it was given, or the decision is made illegally e.g. ex parte Fewings
Padfield v Minister of Agriculture- minister used his discretion not to refer a report for investigation for improper reasons (embarrassment)
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Errors of law
a decision maker makes a mistake on a question of law e.g misinterpretation as in Anisminic Ltd v Foreign Compensation Commission
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R (Forge Care Homes Ltd) v Cardiff and Vale University Health Board- where the application of law is too restrictive, it can result in an error of law
Errors of fact
precedent facts
where a decision maker's power to decide on a particular matter (it's jurisdiction to do so) depends upon it making an initial finding of a fact e.g. White and Collins v Minister of Health
no evidence for a fact
if a finding of a fact on which the decision is based, is supported by no evidence at all e.g Coleen Properties v Minister of Health and Local Government
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Fettering of discretion
if a public body has acted in a way that has hampered it's own ability to properly exercise a discretionary power, it will have 'fettered' it's discretion. the most basic way is if they decide not to exercise a power at all
R v Secretary of State for Home Dept ex parte Fire Brigades Union- home secretary used prerogative power to not put a scheme into place and replace it with a different one which fettered his own discretion to start the scheme
decision makers can fetter their discretion when adopting certain policies which reduces power or flexibility e.g. R v Secretary for the Environment ex parte Brent LBC- ‘keeping an open mind does not mean an empty mind, His mind must be kept ajar.
British Oxygen v Board of Trade- had a policy not to allow grants on items costing less than a certain amount, otherwise they would be overwhelmed with trvial applications. held not unlawful as there was evudence they considered the application carefully still
Ex parte Collymore- a policy on student grants, though worded flexibly, led to no grants despite 300 appeals against refusal. there was an unlawful fettering of discretion as they were not open to consider applications
R v North West Lancashire Health Authority ex parte A, D and G- refused gender reassignment on strict policy without considering individual circumstances
unlawful delegation
general: where a public body is empowered to make a decision by an Act of P, they are not allowed to delegate that discretion to another party e.g. Lavender v Minister of Housing and Local Government- they made a decision based on another minister's opinion, when the power was with the other minister to make the decision- the decision was wrongly delegated
statutory exception: statute can expressly allow the decision maker to delegate e.g. S101 Local Government Act 1972
common law exceptions
Carltona v Commissioners of Work- where power given to a minister, assumed (unless evidence to the contrary) that this can be delegated to civil servants
R (Chief Constable of West Midlands Police) v Birmingham Justices- a chief constable could delegate all but the most important functions to suitable subordinates such as police officers to whom they are answerable
DPP v Haw- where chief constables delegate the official exercising that power should have an appropriate level of seniority
R (Bourgass) v Secretary of State for Justice- insufficient link between person making the decision and the minister who was meant to make the decision