Part II GROUNDS OF JUDICIAL REVIEW CHAPTER 5 ILLEGALITY SCOPE This Chapter considers the question of legality in relation to the following 5–001 issues. • A discussion of the history of discretionary power.1 • Statutory interpretation in the context of pubic authorities’ powers and duties.2 • Mandatory and ‘‘directory’’ powers and duties.3 • The interpretation of policies.4 • Exercise of power for extraneous purposes.5 • The failure of a public authority to have regard to a relevant consideration and the taking into account of a legally irrelevant consideration.6 • Partial illegality and severance.7 • The lawfulness of delegation by a public authority.8 INTRODUCTION An administrative decision is flawed if it is illegal. A decision is illegal if it: 5–002 (a) contravenes or exceeds the terms of the power which authorises the making of the decision; (b) pursues an objective other than that for which the power to make the decision was conferred; 1 See 5–007. 2 See 5–020. 3 See 5–049, 4 See 5–073. 5 See 5–075. 6 See 5–010. 7 See 5–135. 8 5–138. 225 INTRODUCTION (c) is not authorised by any power; (d) contravenes or fails to implement a public duty.9 5–003 The task for the courts in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the decision-maker. The instrument will normally be a statute or statutory instrument, but it may also be an enunciated policy, and sometimes a prerogative or other ‘‘common law’’ power.10 The courts when exercising this power of construction are enforcing the rule of law, by requiring administrative bodies to act within the ‘‘four corners’’ of their powers or duties. They are also acting as guardians of Parliament’s will, seeking to ensure that the exercise of power is in accordance with the scope and purpose of Parliament’s enactments. 5–004 At first sight this ground of review seems a fairly straightforward exercise of statutory interpretation, for which courts are well suited. It is for them to determine whether an authority has made an error of law. Yet there are a number of issues that arise in public law that make the courts’ task more complex. First, is the fact that power is often conferred, and necessarily so in a complex modern society, in terms which grant the decision-maker a broad degree of discretion. Statutes abound with expressions such as: ‘‘the Secretary of State may’’ (do some act); conditions may be imposed as the authority ‘‘thinks fit’’; action may be taken ‘‘if the Secretary of State believes’’ circumstances to exist or ‘‘considers it appropriate’’ to take action. These formulae, and others like them, appear on their face to grant the decision-maker infinite power, or at least the power to choose from a wide range of alternatives, free of judicial interference. The courts, however, insist that such seemingly unconstrained power is confined by the purpose for which the statute conferred the power. This task is made easier where the purpose is clearly defined, or where the considerations which the body must take into account in arriving at its decisions are clearly spelled out. In such cases the courts require the decision-maker to take into account the specified considerations and ignore the irrelevant. But many 9 Compare this definition, albeit slightly extended from the 5th edition of this work, with the variety of instances of illegality specified under the South African Promotion of Administrative Justice Act 2000, s.6 of which permits judicial review of an administrative action if the administrator who took it was ‘‘not authorised to so by the empowering provision’’ (s.6(2)(a)(i)); or ‘‘acted under a delegation of power which was not authorised by the empowering provision’’ (s.6(2)(a)(ii)); or if ‘‘ a mandatory and material procedure or condition prescribed by an empowering provision was not complied with’’ (s.6(2)(b)); or ‘‘the action was materially influenced by an error of law’’ (s.6(2)(d)); or the action was taken: ‘‘for a reason not authorised by the empowering provision; for an ulterior purpose or motive; because irrelevant considerations were taken into account or relevant considerations were not considered; because of the unauthorised or unwarranted dictates of another person or body; in bad faith; or arbitrary or capriciously (s.6(2)(e)(i)-(vi)). In addition, review is available if the action itself ‘‘contravenes the law or is not authorised by the empowering provision’’ (s.6(2)(f) i)), and finally ‘‘if the action concerned consists of a failure to take a decision’’ (s.6(2)(g)). Other provisions deal with irrationality and procedural fairness. 10 See 3–032(on prerogative powers) and 5–022(on the ‘‘Ram doctrine’’). 226 ILLEGALITY statutes provide only the framework for subsequent decisions,11 or delegate power to the executive further to specify those considerations. In any event the distinction between considerations which are ‘‘relevant’’ from those which are not is not always immediately obvious. Secondly, statutes do not exist in a vacuum.12 They are located in the 5–005 context of our contemporary European democracy. As has been discussed above, the rule of law and other fundamental principles of democratic constitutionalism should be presumed to inform the exercise of all official powers unless Parliament expressly excludes them.13 There may even be some aspects of the rule of law and other democratic fundamentals which Parliament has no power to exclude.14 The courts should therefore strive to interpret powers in accordance with these principles. International law, both customary and treaty obligations are also part of the context which cannot be ignored. European Community Law is part of our law, as now is the European Convention on Human Rights. Breach of European Com- munity law and Convention rights thus amounts to illegality. It is because of these considerations that for a substantial part of this 5–006 chapter it is necessary to focus closely on issues as to the appropriate manner in which legislation should be construed. This is necessary in order to identify the all important dividing line between decisions that can be reached lawfully and those that are unlawful. DISCRETIONARY POWER: A BRIEF HISTORY OF JUDICIAL ATTITUDES The concept of discretion in its legal context implies power to make a 5–007 choice between alternative courses of action or inaction.15 If only one course can lawfully be adopted, the decision taken is not the exercise of a discretion but the performance of a duty. To say that somebody has a discretion presupposes that there is no unique legal answer to a problem. There may, however, be a number of answers that are wrong in law. And even in cases where the power is discretionary, circumstances can exist which mean the discretion can only be exercised in one way. There are 11 See, e.g. 5–033–34 on planning powers where, under the Town and Country Planning Acts over the years, the term ‘‘planning’’ has never been given statutory definition. 12 R. v Secretary of State for the Home Department Ex p. Pierson [1998] A.C. 539 at 587 (Lord Steyn: ‘‘Parliament does not legislate in a vacuum. Parliament legislates for a European liberal democracy based upon the traditions of the common law . and . ., unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law’’). 13 See 1–015–021 See also 11–059–061. 14 Jackson v Attorney General [2005] UKHL 56; [2006] 1 A.C. 262 at [120] (Lord Hope), [102] (Lord Steyn), [159] (Baroness Hale suggest that the rule of law may have become ‘‘the ultimate controlling factor in our unwritten constitution’’; and see J. Jowell, ‘‘Parliamentarys Sovereignty under the New Constitutional Hypothesis’’ [2006] P.L. 262. 15 cf. K.C. Davis, Discretionary Justice(1969), p.4: ‘‘A public officer has discretion whenever the effective limits of his power leave him free to make a choice among possible courses of action or inaction’’. 227 INTRODUCTION degrees of discretion, varying the scope for manoeuvre afforded to the decision-maker.16 5–008 At the outset it should be emphasised that the scope of judicial review of the exercise of discretion will be determined mainly by the wording of the power and the context in which it is exercised.17 Parliament employs a great variety of different formulae to confer discretion and to guide the exercise of that discretion. Sometimes, a statute exhaustively specifies the ways in which a discretion may be deployed, such as by enumerating the types of conditions which an authority may attach to the grant of a licence. In such cases, the attachment of any other type of condition may be illegal. Or it may lay down general standards to which the exercise of a power must conform.18 Sometimes, however, the exercise of a statutory discretion is not limited by the express provisions of the Act and in those cases the courts embark upon an interpretation of the objects and purposes of the statute in order to identify the limitations to which the discretion is subject. 5–009 As was said by Lord Upjohn in Padfield,19 even if a statute were to confer upon a decision-maker an ‘‘unfettered discretion’’; ‘‘[T]he use of that adjective [unfettered], even in an Act of Parliament, can do nothing to unfetter the control which the judiciary have over the executive, namely, that in exercising their powers the latter must act lawfully and that is a matter to be determined by looking at the Act and 16 Ronald Dworkin makes the distinction between ‘‘strong discretion’’ (the sergeant’s discre- tion to pick ‘‘any five men’’ for a patrol) and ‘‘weak discretion’’ (the sergeant’s discretion to pick ‘‘the most five experienced men’’): Taking Rights Seriously (1977), p.32.