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Illegality
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Illegality and acting beyond power
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Public Law MG
JR Illegality
| Question | Answer |
|---|---|
| Illegality | If a decision-maker misunderstands the law or does not give effect to it properly/his behaviour may be challenged under this category of review. |
| Illegality and acting beyond power | The decision-maker has purported to exercise powers he does not have. |
| White and Collins v. Minister of Health [1939] | a local authority had the power to compulsorily acquire land for housing, so long as that land was not part of any park, /order for compulsory purchase of a parcel of land was quashed by the court on the ground that the land in question was parkland |
| AG v Fulham Corporation [1921] | corporation was given the right to provide washhouses/This could not be used to provide a laundry service instead. |
| Attorney-General v Wilts United Dairies (1921) | a public body can ONLY raise taxes if specifically permitted by statute to do so. |
| An example of judicial reaction to the award of discretionary power/Padfield v. Minister for Agriculture, Fisheries and Food [1968] | held that the minister's discretion was not absolute/had to be exercised with proper regard to the policy and objects of the Act. |
| The decision-maker has fettered his discretion | If discretionary power it must remain discretionary/it is not possible to decide in advance how discretion should be exercised/all right for decision-makers to have a policy, so long as they are willing to ignore it in appropriate cases. |
| British Oxygen Company v. Board of Trade [1971] | After considering BOC's application for a grant, the Board of Trade turned it down. This decision was allowed on the basis that the policy had not acted as a fetter on the Board's discretion to make grants, as they had fully considered BOC's case. |
| Fettering discretion by contracts and undertakings/Stringer v Minister for Housing & LG [1979] | held ultra vires because in carrying out the agreement the authority had ignored considerations which the statute under considered required |
| The decision-maker has improperly delegated his powers | "delegatus non potest delegare" (a delegate cannot delegate) fundamental/ a desire to ensure that there is a clear chain of command between the subject of public power and the source of that power |
| Barnard v. National Dock Labour Board [1953] | decision to suspend a number of dockers was quashed on the basis that the delegation of power was illegal. |
| Carltona v. Commissioners of Works [1943] | The prohibition on sub-delegation may be lifted expressly by statute, or implicitly in situations where such delegation is necessary and proper |
| Acting under dictation/Lavender v Minister of Housing & LG [1970] | Held acceptable for the Minister to listen to the Ministry of Agriculture/But not acceptable to let the Ministry of Agriculture in effect to make the decision by always and automatically deferring to these objections. |
| The decision-maker has used his power for an improper purpose | when a public body uses a power to further a purpose for which it was not intended/a public authority acts entirely outside its remit (although apparently using its powers properly) |
| Webb v. Minister of Housing and Local Government [1965] | a council which has a power to purchase land for the purpose of coastal defences may not use that power to purchase extra land for the purpose of creating a public right of way (a promenade) in the guise of an access road |
| Roberts v. Hopwood [1925] | Poplar Borough Council decided to adopt a policy of paying its male and female workers equally. As far as the House of Lords was concerned, this amounted to a gift or gratuity, and as such was improper and ultra vires the council. |
| Porter v Magill [2002] | a Conservative local authority adopted a policy of selling more council houses in its marginal wards/done more to boost numbers of conservative voters in these wards than to further those objectives Parliament had in mind/ruled this illegal |
| Wheeler v Leicester City Council [1985] | local authority banned a rugby club from using its recreation grounds for 12 months after three players joined a tour of South Afric/ruled that they had acted improperly |
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