Judicial Illegality
Three types of judicial review:
o Illegality
o Irrationality/Unreasonableness (Wednesbury)/Proportionality
o Procedural Impropriety (Fairness/Bias)
Controlling ground: Illegality
Making a decision that is illegal
Attorney-General v Fulham Corporation [1921]
Power to establish washhouses, derived from statued law
Offered another service of collection and re delivery of laundry
Council department of baths and washhouses to relieve housewives of their duties
to wash
But council went beyond this: operated in laundry business by using subsidies
Council had no power to do so
Why is the court intervening?
Due to its Ultra vires power = excess of power used by courts
All public authorities only have limited powers
JR responsible for keeping public bodies within their power
Courts power comes from Parliament, loyal to it
Expression of democracy- parliament intended public bodies to have these powers
Ultra vires doctrine has been criticised since isn’t really democratic since parl. Is still
sovereign and gives these bodies powers
Three perspectives of critics:
1) Doctrine of Ultra vires cannot be basis of review
o main example: Datafin case, shows doctrine does not work
2) Not the basis of review
o JR become so complex that courts do not submit to will of parl., courts
themselves promote good administration
3) It should not be
o ultra vires shouldn’t be basis since JR is only about reviewing secondary
legislation but not primary
o otherwise would politicise the judiciary
R v Richmond LBC, ex p McCarthys & Stone [1991] 3 WLR 941
Council responsible for planning applications
Also offered advice to developers, as well as charging for its advice which is not
under the statue
HoL: charging for the advice was not part of their functions and was illegal since had
no power to do so
R v Somerset County Council, ex p Fewings [1995]
Three types of judicial review:
o Illegality
o Irrationality/Unreasonableness (Wednesbury)/Proportionality
o Procedural Impropriety (Fairness/Bias)
Controlling ground: Illegality
Making a decision that is illegal
Attorney-General v Fulham Corporation [1921]
Power to establish washhouses, derived from statued law
Offered another service of collection and re delivery of laundry
Council department of baths and washhouses to relieve housewives of their duties
to wash
But council went beyond this: operated in laundry business by using subsidies
Council had no power to do so
Why is the court intervening?
Due to its Ultra vires power = excess of power used by courts
All public authorities only have limited powers
JR responsible for keeping public bodies within their power
Courts power comes from Parliament, loyal to it
Expression of democracy- parliament intended public bodies to have these powers
Ultra vires doctrine has been criticised since isn’t really democratic since parl. Is still
sovereign and gives these bodies powers
Three perspectives of critics:
1) Doctrine of Ultra vires cannot be basis of review
o main example: Datafin case, shows doctrine does not work
2) Not the basis of review
o JR become so complex that courts do not submit to will of parl., courts
themselves promote good administration
3) It should not be
o ultra vires shouldn’t be basis since JR is only about reviewing secondary
legislation but not primary
o otherwise would politicise the judiciary
R v Richmond LBC, ex p McCarthys & Stone [1991] 3 WLR 941
Council responsible for planning applications
Also offered advice to developers, as well as charging for its advice which is not
under the statue
HoL: charging for the advice was not part of their functions and was illegal since had
no power to do so
R v Somerset County Council, ex p Fewings [1995]
