Void Decisions
In a sense, all judicial review challenges are challenges to legality. In the broader sense, decisions that are unreasonable, procedurally unfair or improperly breach legitimate expectations, are unreasonable, irrational, etc., are illegal in the broader sense and the procedure may be challenged. In this context, illegality refers to substantive illegality in the sense that the public authority is not acting in accordance with the substantive law.
There are a number of very well-established bases upon which the legality of a decision may be challenged. If an administrative decision is made taking account of irrelevant considerations or failing to take account of relevant considerations, it may be subject to challenge as void.
A court may determine as a matter of law whether or not particular factors are relevant. The notion behind the principles of the delegation of power must be exercised strictly in accordance with the purposes and considerations required by the legislation.
The basis of the challenge is that the action is ultra vires or outside the powers granted by the legislation.
It may be argued that the courts would be willing, in practice, to allow a significant latitude in the exercise of discretion.
An administrative decision may be held invalid where power is used for an improper purpose. If legislation grants powers for a particular purpose, whether implied or set out, any action for another purpose which is not properly under the legislation is potentially invalid.
In both cases involving irrelevance and an irrelevant or improper purpose, there may be a range of considerations and purposes involved. In this case, the courts will look at the dominant consideration and purpose. If this is lawful and in accordance with the statute, the decision will not be struck down. If the dominant consideration is irrelevant or an unlawful purpose, then the decision will be invalidated.
Where powers are exercised in bad faith, a decision may be set aside. In this context, bad faith is akin to an improper purpose, both more expressed or an abuse of power. In addition, where decisions are exercised in bad faith, intentional or corrective disregard of abusing power, the civil wrong of misfeasance in public office may be committed. In practice, it is difficult to challenge decisions on the grounds of bad faith and is easier to challenge on the grounds of relevance.
Where a particular body is designated by legislation as a decision-maker, it is presumed that it may not delegate its powers. However, in many cases, the decision-makers will be entitled to rely on the advice and reports of others. Much legislation requires the individual concerned to make the decision. They should not generally rubberstamp recommendations.
An exception to this principle is where statutes contemplate the great number of decisions that would be taken in the name of a minister or department. Practical considerations dictate that the minister cannot individually assess many such decisions. Many such acts are undertaken in the name of the minister, and the minister is politically responsible to the parliament or assembly.
This is where administrators and the equivalent have discretion in relation to powers. They may not unduly fetter their discretion. Fettered discretion involves a pre-decision as to the manner in which the discretion will be exercised on relatively arbitrary grounds.
Policies that are in accordance with the powers and consistent with the purpose of legislation are permissible. However, powers that are inconsistent with the legislation and arbitrary, such as rigid adoption of a policy applying to any case irrespective of its merits, may be regarded as a fettering of discretion.
A closely-related concept is that of giving a fair hearing and having an open mind in respect of a particular matter. A rigid policy may be involved in a fettering of discretion or a failure to give due hearing.
Statutory rules may be challenged at common law if they deviate from fundamental rights standards. They may be challenged for breach of the Convention on human rights, European community’s legislation, or the Northern Ireland Act. They may also be challenged on the basis that they have been made with reference to irrelevant considerations, a failure to take account of relevant considerations, bad faith, or improper purpose.
Statutory rules may be challenged as unreasonable in terms of being unfair, uncertain, or arbitrary. Apart from legality based on the above basic statutes, most challenges to administrative action would be based on the legality arising from the way in which a particular decision has been made or not been made.
Commonly, statutes will give public authorities a measure of discretion in relation to decision-making. A challenge may be based on the exercise of discretion being incompatible with the power given by law. This may relate to anything arising over the whole breadth of the administration, from benefits decisions, grants, licences, to regulations. The matters are largely one interpretation by the courts of the relevant statutes in the light of the decision made.