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Administrative Law - Week 3 |
Judicial Review of Discretion –
part 1
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Hilary
2002 |
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Introduction |
In this context ‘discretion’ might be defined as
‘choices. Public authorities are often asked to make choices about such matters
as whether to exercise a particular power, how to exercise a particular
power, and how to fulfil a duty. The Human Rights Act 1998 has made a
significant difference to the law on judicial review of choices and
consequently it might be thought sensible to divide between ‘choices which
potentially directly impinge on human rights’ and ‘choices which do not …’.
Unfortunately, it isn’t possible to divide the legal rules using this
division. This is because (i) some legal rules apply to both types of
‘choices’ and (ii) the new rules for ‘human rights choices’ are feeding back
into and influencing the rules for ‘other choices’. In the absence of any
perfect solution the reading lists divide between week 3 ‘general’ grounds
for judicial review of choices (i.e. those applying to both types) and
week 4 ‘special’ grounds of review for ‘human rights choices’ |
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The
Texts (and
basic articles) |
Craig,
ch. 16 and pp. 535-546 and ch. 18 and pp. 611-635 Harlow
& Rawlings, (from) Chs. 2, 3 & 4 (from)
Laws [1993] Public Law 59; Irvine of Lairg (now LC) [1996] Public Law
59; Walker [1995] Public Law 556 John Laws, ‘Wednesbury’ in C. Forsyth &
Hare, The Golden Metwand and the Crooked Cord (OUP 1998) |
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Who
must exercise the discretion? |
Carltona
v Commissioner of Works [1943] 2 All ER 560 Freedland
[1996] Public Law 19 Allingham v Minister of Agriculture [1948] 1 All
ER 780 |
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Fettering of discretion - (cross-reference: legitimate expectations) |
Galligan
[1976] Public Law 332 *British
Oxygen Co. v Board of Trade [1971] AC 610 Sagnata
Investments v Norwich Corpn. [1971] 2 QB 614 *R v Secretary of State for the Home Department,
ex p. Venables [1997] 3 All ER 97, HL (on other topics too) |
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Substantive
Legitimate Expectations – (cross-reference: procedural leg. expns, wk. 5) |
*R
v North and East Devon HA ex p Coughlan [2000] 2 WLR 622 (Craig
& Schonberg [2000] Public Law 684) *R
(Bibi) v Newham LBC [2002] 1 WLR 237 R
v MOD ex p Walker [2000] 1 WLR 806, at 813B-14C, 815B-16B; R
v Home Sec. ex p Hindley [2000] 2 WLR 730, at 737B-G R (Zeqiri) v Secretary of State for the Home
Department [2002] UKHL 3, at paras 44-45, 48 & 56 |
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Illegality:
Improper Purposes and Irrelevant Considerations |
Westminster
Corpn. v LNWR [1905] 426 *APPH
v Wednesbury Corpn. [1948] 1 KB 223 *Bromley
LBC v GLC [1983] 1 AC 768 (for
a valuable analysis, see, M. Loughlin, Legality and Locality, Ch. 4) R
v East Sussex County Council, ex p. Tandy [1998] 2 All ER 769, HL R
v Chief Constable of Sussex, ex p. International Trader’s Ferry [1998] 3 WLR
1260, HL (skim on EC point) (R
v Secretary of State for the Home Department, ex p. Simms [1999] 3 WLR 328) R v Secretary of State for the Home Dept, ex p.
Fire Brigade Union [1995] 2 All ER 244 |
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Irrationality:
(in cases NOT involving Human Rights) (cross-reference:
Human Rights, wk. 4) |
*APPH
v Wednesbury Corpn. [1948] 1 KB 223 R
v Environment Secretary, Ex p. Notts CC [1986] AC 240 (esp. Scarman) *Lonrho
v Secretary of State for Trade and Industry [1989] 2 All ER 609, at 620f-g *R v Chief Constable of Sussex, ex p.
International Trader’s Ferry [1999] 1 All ER 129, at 157a-e, HL |
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Difficult
to classify: Common law proportionality? |
*Wheeler
v Leicester City Council [1985] AC 1054 |
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Old essay titles set by the examiners |
2000. Critically evaluate how the courts have used the
concepts of ‘irrelevant consideration’ and ‘improper purpose’ in judicial
review cases. |
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Essay Title: |
Assess whether the grounds for judicial review of
administrative discretion are satisfactory in cases involving no human rights
dimension. |
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