Review of Discretion
Includes:
- Review for improper purposes.
- Review for consideration of an irrelevant/failure to consider a relevant consideration.
- Proportionality review.
- Wednesbury unreasonableness/irrationality review.
Review for Improper Purposes:
1. Establishment:
Padfield v Minister of Agriculture, Fisheries & Food –
Involved decision by Minister against the decision of the Milk Marketing
Board – set rates/fees for payment to farmers for pints of milk.
Group of farmers believed that the rates were not set in a way that gave them
an even playing field compared to farmers in other regions.
MMB was made up of farmers from other regions, referred to Minister to use
statutory discretion – Minister refused to order inquiry, political
embarrassment.
No power is unfettered:
“If the Minister so directs” – every statutory power has legal
limitations that the court must control.
Emphasis on importance of reading the statute as a whole:
Every statute created for objects and purposes.
Need to exercise power in furtherance of those objects and not for
some other collateral purpose that Parliament hasn’t authorised.
Purpose of the power was to fairly manage disputes between farmers.
The Minister had not exercised with that purpose in mind,
had for extraneous purposes – so court granted order.
This is a form of review that is fundamentally about statutory construction.
Working out, when the statute is read objectively, what
purpose/aims/objectives did Parliament have in mind when it conferred those
powers.
Means on a correctness basis – central question is not whether reasonable, but
what are the purposes of the statute, for the courts to work out.
2. Recent Cases in Supreme Court:
R (Palestine Solidarity Campaign Ltd) v Secretary of State for Communities and
Local Government –
Concerned lawfulness of guidance issued by central government by
administrators of local authority pensions.
Passage in guidance that prevented/directed local pension administrators
away from making investment decisions which were inconsistent with
foreign defence policy.
This prevented local pensions administrators from taking the decision
to divest from companies which product products in occupied
Palestinian territory – because UK central government position was
against Palestine.
NGO challenged passages – argued that they were enacted in excess of
statutory authority to make the guidance.
Shows how controversial statutory construction can be:
Judges doing in different directions – 3:2 split in SC.
Majority – Lord Carnwath, Lord Wilson, and Lady Hale:
Reached conclusion that purposes for the conferral of power were not
very narrow but narrower than the Government understood them.
Purpose was to give guidance on issues of process and strategy – e.g.,
how to conduct due diligence/consulting stakeholders.
, The guidance issued was in excess of this statutory power – guiding
directly on the basis of what could be invested and what couldn’t –
substance.
Minority – Lord Sales and Lady Black:
Much broader construction – includes the authority to give guidance
on substance of investment and what ethical and social judgements
should be made in deciding what is a good investment.
Disagreement is not about basic principles involved in performing this
review.
All approach as issue of statutory construction.
Disagreement not one of morality or political judgement.
One doesn’t prefer local over central government.
Disagreement is about what materials the court can consult when deciding
what the purpose is.
Majority reasons:
Look at the language of the section and act as a whole – find
in legislation indicator towards narrower review.
Look at regulations subsequently passed by Gov – enacted
pursuant to powers under the Act.
Other passages in the guidance.
The language of these points towards the narrower idea.
Debate about legitimacy:
Regulations passed after Act of Parliament =
controversial – separation of powers concerns.
When we’re construing Parliament’s language,
asking what Parliament has said.
Regulations passed by Government, little
parliamentary scrutiny – using Government’s words
to construe Parliament??
Minority reasons:
Lay emphasis on reports created before Parliament legislated
– e.g., Law Commission Report, Hutton Report.
Part of the legislative background on which the Act
was enacted.
Known as legitimate tool for interpretation.
BUT – careful – just because it said X, doesn’t mean
that Parliament endorsed that view.
Hansard – Pepper v Hart.
R (Coughlan) v Braintree DC –
Challenge to pilot scheme – voter identification requirement in local elections
Controversial – concern that will have exclusionary effect on certain
groups which don’t have voter ID or won’t remember to fulfil
requirements – link to what is happening now – older people can use
their bus pass as ID, but younger people/students cannot.
Legal challenge – s.10 Representation of the People Act – “how elections
take place” – is photo identification outside this phrase?
Was held to be lawful – all judges decided the same way:
Found that Parliament conferred pilot scheme power for very broad
purpose – rejects applicants narrow construction (mechanics of
voting).
Purpose = to test different ways of voting and requiring identification
is well within power.
Link to South Yorkshire Transport – court interprets but gives PA broad
scope.
3. Controversial Cases:
Includes:
- Review for improper purposes.
- Review for consideration of an irrelevant/failure to consider a relevant consideration.
- Proportionality review.
- Wednesbury unreasonableness/irrationality review.
Review for Improper Purposes:
1. Establishment:
Padfield v Minister of Agriculture, Fisheries & Food –
Involved decision by Minister against the decision of the Milk Marketing
Board – set rates/fees for payment to farmers for pints of milk.
Group of farmers believed that the rates were not set in a way that gave them
an even playing field compared to farmers in other regions.
MMB was made up of farmers from other regions, referred to Minister to use
statutory discretion – Minister refused to order inquiry, political
embarrassment.
No power is unfettered:
“If the Minister so directs” – every statutory power has legal
limitations that the court must control.
Emphasis on importance of reading the statute as a whole:
Every statute created for objects and purposes.
Need to exercise power in furtherance of those objects and not for
some other collateral purpose that Parliament hasn’t authorised.
Purpose of the power was to fairly manage disputes between farmers.
The Minister had not exercised with that purpose in mind,
had for extraneous purposes – so court granted order.
This is a form of review that is fundamentally about statutory construction.
Working out, when the statute is read objectively, what
purpose/aims/objectives did Parliament have in mind when it conferred those
powers.
Means on a correctness basis – central question is not whether reasonable, but
what are the purposes of the statute, for the courts to work out.
2. Recent Cases in Supreme Court:
R (Palestine Solidarity Campaign Ltd) v Secretary of State for Communities and
Local Government –
Concerned lawfulness of guidance issued by central government by
administrators of local authority pensions.
Passage in guidance that prevented/directed local pension administrators
away from making investment decisions which were inconsistent with
foreign defence policy.
This prevented local pensions administrators from taking the decision
to divest from companies which product products in occupied
Palestinian territory – because UK central government position was
against Palestine.
NGO challenged passages – argued that they were enacted in excess of
statutory authority to make the guidance.
Shows how controversial statutory construction can be:
Judges doing in different directions – 3:2 split in SC.
Majority – Lord Carnwath, Lord Wilson, and Lady Hale:
Reached conclusion that purposes for the conferral of power were not
very narrow but narrower than the Government understood them.
Purpose was to give guidance on issues of process and strategy – e.g.,
how to conduct due diligence/consulting stakeholders.
, The guidance issued was in excess of this statutory power – guiding
directly on the basis of what could be invested and what couldn’t –
substance.
Minority – Lord Sales and Lady Black:
Much broader construction – includes the authority to give guidance
on substance of investment and what ethical and social judgements
should be made in deciding what is a good investment.
Disagreement is not about basic principles involved in performing this
review.
All approach as issue of statutory construction.
Disagreement not one of morality or political judgement.
One doesn’t prefer local over central government.
Disagreement is about what materials the court can consult when deciding
what the purpose is.
Majority reasons:
Look at the language of the section and act as a whole – find
in legislation indicator towards narrower review.
Look at regulations subsequently passed by Gov – enacted
pursuant to powers under the Act.
Other passages in the guidance.
The language of these points towards the narrower idea.
Debate about legitimacy:
Regulations passed after Act of Parliament =
controversial – separation of powers concerns.
When we’re construing Parliament’s language,
asking what Parliament has said.
Regulations passed by Government, little
parliamentary scrutiny – using Government’s words
to construe Parliament??
Minority reasons:
Lay emphasis on reports created before Parliament legislated
– e.g., Law Commission Report, Hutton Report.
Part of the legislative background on which the Act
was enacted.
Known as legitimate tool for interpretation.
BUT – careful – just because it said X, doesn’t mean
that Parliament endorsed that view.
Hansard – Pepper v Hart.
R (Coughlan) v Braintree DC –
Challenge to pilot scheme – voter identification requirement in local elections
Controversial – concern that will have exclusionary effect on certain
groups which don’t have voter ID or won’t remember to fulfil
requirements – link to what is happening now – older people can use
their bus pass as ID, but younger people/students cannot.
Legal challenge – s.10 Representation of the People Act – “how elections
take place” – is photo identification outside this phrase?
Was held to be lawful – all judges decided the same way:
Found that Parliament conferred pilot scheme power for very broad
purpose – rejects applicants narrow construction (mechanics of
voting).
Purpose = to test different ways of voting and requiring identification
is well within power.
Link to South Yorkshire Transport – court interprets but gives PA broad
scope.
3. Controversial Cases:
