Illegality – delegation and (improper) purposes
“Judicial review has I think developed to a stage today when…one can conveniently classify
under three heads the grounds upon which administrative action is subject to control by
judicial review.
• The first ground I would call ‘illegality,’
• the second ‘irrationality’ and
• the third "procedural impropriety.’”
(Lord Diplock in the GCHQ case)
ILLEGALITY - DELEGATION
ISSUE: The issue in this scenario is under the ground of what Diplock in the GCHQ case
called, ‘illegality’ and more specifically this engages with delegation.
ARTICULATE LEGAL TEST Don’t delegate discretionary power
An authority to which the exercise of a discretion has been
entrusted cannot delegate the exercise of its discretion to
another unless clearly authorized to do so
AUTHORITY FOR TEST Barnard
Lavender
EXCEPTIONS!!! Carltona case does provide an exception to this rule which is
that government ministers can delegate to others in your
department or an executive agency
Adams case which might destabilise the rule in Carltona as it
explains how ministers cannot delegate decisions which have
particularly momentous consequences (such as being
detained!!)
THEN APPLY TO FACTS OF PROBLEM QUESTION!!!
Possible cues in a problem question
a decision maker asking someone else to make decisions for them
a decision maker routinely relying on someone else’s views
situations where it is ambiguous who is really making the decisions
a minister delegating a particularly momentous decision (e.g., to detain someone)
“Judicial review has I think developed to a stage today when…one can conveniently classify
under three heads the grounds upon which administrative action is subject to control by
judicial review.
• The first ground I would call ‘illegality,’
• the second ‘irrationality’ and
• the third "procedural impropriety.’”
(Lord Diplock in the GCHQ case)
ILLEGALITY - DELEGATION
ISSUE: The issue in this scenario is under the ground of what Diplock in the GCHQ case
called, ‘illegality’ and more specifically this engages with delegation.
ARTICULATE LEGAL TEST Don’t delegate discretionary power
An authority to which the exercise of a discretion has been
entrusted cannot delegate the exercise of its discretion to
another unless clearly authorized to do so
AUTHORITY FOR TEST Barnard
Lavender
EXCEPTIONS!!! Carltona case does provide an exception to this rule which is
that government ministers can delegate to others in your
department or an executive agency
Adams case which might destabilise the rule in Carltona as it
explains how ministers cannot delegate decisions which have
particularly momentous consequences (such as being
detained!!)
THEN APPLY TO FACTS OF PROBLEM QUESTION!!!
Possible cues in a problem question
a decision maker asking someone else to make decisions for them
a decision maker routinely relying on someone else’s views
situations where it is ambiguous who is really making the decisions
a minister delegating a particularly momentous decision (e.g., to detain someone)
