Judicial Review 2

• (I) ILLEGALITY • "the decision-maker must understand correctly the law that regulates his decision making power and must give effect to it.“ • The concept of ‘ultra vires’ and its amelioration by the ‘fairly incidental’ rule.

• Delgatus non potest delegare – Barnard v. NDLB [1953] 1 All ER 1113.

Judicial Review 2

• Discretion must be exercised in each individual case. Policies can be made but must be flexible - British Oxygen v. Board of Trade [1971] AC 610.

• Finance Must be used lawfully. Here the lines between politics and law may become blurred Bromley LBC v. GLC [1983] 1 AC 768.

• These lines can also become blurred in other instances where it is alleged that public bodies have improper motives for their decisions. Note it is not the court’s job to assess the validity of these motives.

Judicial Review 2

• Acting for Political Reasons • Padfield v. MAFF [1968] AC 997.

• Wheeler v. Leicester City Council [1985] 2 All ER 1106. • R v. Somerset County Council ex p Fewings [1995] 1 All ER 513.

Judicial Review 2

• Taking into Account Irrelevant Considerations • R v. Port Talbot Council ex p Jones [1988] 2 All ER 207.

• R v. S of S for the Home Department ex p Thompson and Venables (1997) 3 All ER 97 • Note the limits of the courts’ remits in these cases.

Judicial Review 2

• (II) IRRATIONALITY • " a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.“ • Sometimes referred to as Wednesbury unreasonableness after the case of Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223. • The least successful ground of challenge.

Judicial Review 2

• Why is it unsuccessful? Note the role of the courts in judicial review and the appeal / review distinction • R v. Bow Street Metropolitan Magistrate ex p DPP [1992] COD 267.

• R v. Secretary of State for the Home Department ex p Cox (1993) 5 Admin LR 17.

• R v. Ministry of Defence ex parte Smith [1996] 2 WLR 205

Judicial Review 2

• R V Secretary Of State For Transport, Ex Parte (1) Medway Council & Kent County Council (2) Essex County Council (3) Norman Mead & David Fossett [2002] EWHC 2516 (Admin) • Is Irrationality now more likely to succeed?