8 Illegality

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74

8.1 Arguments relating to a lack of legal authority. . . . . . . . . . . . . . .75

8.2 Failure to fulfil a statutory duty . . . . . . . . . . . . . . . . . . . . . .77

8.3 Use of power for an improper purpose. . . . . . . . . . . . . . . . . . .78

8.4 Relevant and irrelevant considerations . . . . . . . . . . . . . . . . . .78

8.5 Exercise and delegation of powers . . . . . . . . . . . . . . . . . . . . .79

8.6 Failure to follow statutory processes. . . . . . . . . . . . . . . . . . . .80

8.7 What has this chapter sought to do?. . . . . . . . . . . . . . . . . . . .82

page 74 University of London

Introduction
At the start of this chapter it is apposite to revisit the words of Lord Diplock in CCSU v
Minister for the Civil Service [1985] AC 374:

Judicial review has I think developed to a stage today when without reiterating any analysis of
the steps by which the development has come about, 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’. That is not to say that further development on a case by case basis may not in
course of time add further grounds. I have in mind particularly the possible adoption in the future
of the principle of ‘proportionality’ which is recognised in the administrative law of several of our
fellow members of the European Economic Community; but to dispose of the instant case the
three already well-established heads that I have mentioned will suffice.

By ‘illegality’ as a ground for judicial review I mean that the decision-maker must understand
correctly the law that regulates his decision-making power and must give effect to it.
Whether he has or not is par excellence a justiciable question to be decided, in the event of
dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

As you will see from the part of the judgment set out above, arguments relating to
illegality are potentially broad in scope, as they relate to the legal powers that the
decision-maker enjoys and the legal restrictions on those powers. As such, many of the
issues raised in the case law relate to an important skill that you should have begun to
develop in Legal system and method – that of statutory interpretation.

In this chapter you will be asked to think about a number of legal issues that might
be the basis of arguments relating to legality. The coverage here is not intended to
be exhaustive but offers an indication of the main areas in which illegality arguments
tend to arise. From a theoretical perspective, it is important to have some knowledge
of these illegality arguments because they may help your understanding of the
policy- and rule-making processes and possible challenges that might arise in this
regard. From a practical perspective, illegality arguments are an important element of
the control of legality. As such, some of the tasks in this chapter will ask you to apply
illegality arguments to hypothetical problem questions.

As Endicott explains (see pp.357–358) a particular challenge in trying to define the

grounds of judicial review is that there is a great deal of overlap between the three
‘grounds’ defined by Lord Diplock. One could contend that all arguments that lead to
a decision being held to be unlawful are arguments about ‘illegality’, as procedural
unfairness and irrationality or a lack of proportionality could also be situations
where a decision-maker has failed to ‘understand correctly the law that regulates his
decision-making power and must give effect to it’. However, if we simply assessed all
grounds and doctrines of judicial review in relation to ‘illegality’ then this would have
the potential to be rather confusing. As such, the courts tend to use the three broad
grounds outlined by Lord Diplock to draw a distinction between the various grounds.

You will see from the readings advised above that most administrative law textbooks
do not necessarily cover ‘illegality’ as a separate ground of review but intersperse it
in their discussions of other issues (such as rationality, procedural propriety, etc.). As
such, it is challenging, other than by reference to Leyland and Anthony, to recommend
textbook readings on this topic. As a result, you are encouraged to look at some of
these cases, as the cases themselves are often highly instructive. You are not expected
to read all of the cases but it will greatly assist you in the development of your legal
skills if you learn to examine the various cases.

Learning outcomes
Having completed this chapter, and the Essential readings and activities, you should
be able to:
u Describe and explain the circumstances under which arguments relating to
‘illegality’ may render the decision, action or inaction of a public authority to be
unlawful.
u Apply these arguments to a hypothetical problem scenario.
Administrative law 8 Illegality page 75

Core text
¢ Endicott, pp.358–359.

Further reading
¢ Leyland, P. and G. Anthony Textbook on administrative law (Oxford: Oxford
University Press, 2016) eighth edition [ISBN 9780198713050], Chapter 11 ‘Illegality
I’ and Chapter 12 ‘Illegality II’.

¢ Wade and Forsyth, Chapter 11 ‘Abuse of discretion’, pp.318–364.

8.1 Arguments relating to a lack of legal authority

The first set of arguments are perhaps the most straightforward – they are arguments
relating to what we might describe as ‘simple ultra vires’, where the decision-maker
is purporting to take a decision that they do not have the legal authority to take. This
is always an issue of statutory interpretation, both for decision-maker and the court.
If you think back to the discussion in Chapter 7, this is essentially a claim that the
decision-maker has made an error of law ‘going to the jurisdiction’.

There are a huge number of examples that could be offered here but the following are
instructive.

R (on the application of The Public Law Project) v Lord Chancellor [2016] UKSC 39

Under s.9(2) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the
Lord Chancellor was given the following powers in relation to the variation of those
who were entitled to receive civil legal aid:

The Lord Chancellor may by order—

(a) add services to Part 1 of Schedule 1, or

(b) vary or omit services described in that Part, (whether by modifying that Part or
Parts 2, 3 or 4 of the Schedule).

Using these powers, the Lord Chancellor sought to preclude access to legal aid to
those who were not lawfully resident in the UK and who had not been so resident for
at least 12 months. The Public Law Project (an interest group) challenged this change
to the Regulations on eligibility arguing that the legislative provisions permitted
a variation or omission of the services that could be offered but not the classes of
persons who could receive such legal aid. In the judgment of the Supreme Court, Lord
Neuberger said:

In my view, that argument is sound, and should be accepted. Turning to section 9(2)
(b) itself, as a matter of ordinary language, the relevant parts of the draft order do not
seek to ’vary or omit services‘: rather they seek to reduce the class of individuals who are
entitled to receive those services by reference to a personal characteristic or circumstance
unrelated to the services. Of course, the words of section 9(2)(b) have to be interpreted
in their context, and I accept that a sufficiently clear and strong context could justify a
different conclusion, in the sense that the words of section 9(2)(b) could, as a matter of
language, just about extend to a regulation such as the draft order. Nonetheless, that is
not their natural meaning, and, of course, the natural meaning of the words in question is
an important factor in an issue of statutory interpretation… [at [30]].

R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development
Movement [1995] 1 WLR 386

This case concerned a challenge by the World Development Movement (a pressure

group) to the grant of economic development aid to Malaysia in order to support the
building of the Pergau Dam. In this case, the evidence was that there was little or no
real economic benefit to Malaysia from the project as electricity could be generated
more cheaply from other sources. Section 1(1) of the Overseas Development and Co-
operation Act 1980 provided that:
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The Secretary of State shall have power, for the purpose of promoting the development
or maintaining the economy of a country or territory outside the United Kingdom, or the
welfare of its people, to furnish any person or body with assistance, whether financial,
technical or of any other nature.

The Divisional Court ultimately held that the grant of aid was, in the circumstances,
unlawful. Rose LJ said:

As to the absence of the word ‘sound’ from section 1(1), it seems to me that, if Parliament
had intended to confer a power to disburse money for unsound developmental
purposes, it could have been expected to say so expressly. And I am comforted in this
view by the way in which the successive ministers, guidelines, Governments and White
Papers … have, over the years and without exception, construed the power as relating to
economically sound development…

Accordingly, where, as here, the contemplated development is, on the evidence, so

economically unsound that there is no economic argument in favour of the case, it is
not, in my judgment, possible to draw any material distinction between questions of
propriety and regularity on the one hand and questions of economy and efficiency of
public expenditure on the other. It may not be surprising that no suggestion of illegality
was made by any official, or that the Secretary of State was not advised that there would,
or might be, any illegality. No legal advice was ever sought.

The Secretary of State is, of course, generally speaking, fully entitled, when making
decisions, to take into account political and economic considerations such as the
promotion of regional stability, good government, human rights and British commercial
interests… [at [402]].

R (Electoral Commission) v Westminster Magistrates’ Court [2010] UKSC 40

Section 58 of the Political Parties, Elections and Referendums Act 2000 provided that:

(1) This section applies to any donation received by a registered party—

(a) which, by virtue of section 54(1)(a) or (b), the party are prohibited from accepting,
but

(b) which has been accepted by the party.

(2) The court may, on an application made by the Commission, order the forfeiture by the
party of an amount equal to the value of the donation.

(3) The standard of proof in proceedings on an application under this section shall be that
applicable to civil proceedings.

In this case, a political party had received a donation from an overseas donor in breach
of the relevant provisions of the Act. The Electoral Commission (the regulator) sought
a forfeiture order seeking a forfeit of donations of £349,216, which constituted the full
amount of the donations made by the donor concerned. The Westminster Magistrates’
Court declined to issue a forfeiture order for this amount and instead granted an order
for £14,481. The key question in the case was the interpretation of the word ‘may’ in
s.58(2) – did this word suggest an ‘all or nothing’ discretion, where the magistrates
could only impose a forfeiture order for the full amount of the donations or nothing
at all, or could it order the forfeiture of a lesser sum? The Supreme Court, having
examined the purpose of the statute, held that it was open to the magistrates to issue
a forfeiture order for an amount lower than the full sum of the donation. Lord Philips
of Worth Matravers PSC observed:

35 If Parliament had enacted the Neill Committee scheme there would have been a
strong presumption in favour of forfeiting the whole of a donation from an impermissible
source. It would, or would be likely to, be a foreign donation and objectionable as such.
Indeed there would have been a case for making forfeiture of such donations automatic.
But Parliament adopted a scheme under which impermissible donations may or may not
be foreign. Under this scheme the significance of an individual impermissible donation
may vary widely. At one extreme it may be a donation from a foreign source, accepted by
a political party with full knowledge of its provenance. At the other extreme it may be a
donation from an individual who is entitled to be on an electoral register and has in the
past been on an electoral register, been believed to be on an electoral register, but who,
Administrative law 8 Illegality page 77
because of some administrative error for which he is not responsible, has been removed
from the register at the time when he made his donation.

36 Parliament plainly made the power to forfeit discretionary with the intention that the
magistrates’ court should discriminate between cases where forfeiture was warranted
and cases where it was not. It seems to me natural to assume that Parliament intended
the court to consider whether forfeiture was a proportionate response to the facts of
the particular case. This involves considering whether forfeiture is necessary to achieve
either the primary or the secondary object of the Act. The most relevant consideration
is whether forfeiture is necessary to prevent the retention of a foreign donation in
the individual case. Proof of acceptance of a donation from an impermissible source
should raise a presumption that the donation is foreign. If the party cannot rebut that
presumption, forfeiture should follow. If the party succeeds in demonstrating that the
donor was entitled to be placed on an electoral register, forfeiture should then depend
on whether it is an appropriate sanction for such shortcomings as led to the acceptance
of the donation. This will require consideration of culpability, the size of the donation
and the effect that forfeiture will be likely to have on the political party. Partial forfeiture,
if permitted (as to which see below), will enable the court to impose an appropriate
sanction where total forfeiture would be disproportionate.

As you can see from each of the above examples, the question of whether a public
body has the power to take a particular action is subject to the interpretation of the
statute. It is often the case that statutes that grant powers to public authorities will be
construed in a purposive manner, looking behind the words of the statute in order to
determine parliament’s intent when granting a particular power.

8.2 Failure to fulfil a statutory duty

There may be an argument that a public authority was under a statutory duty and
that this has not been fulfilled. In order to determine whether this is the case, it is
necessary for the court to interpret the statute in order to determine the scope of
the duty imposed on the public authority and whether the it retains any discretion in
relation to the issue at hand. There may sometimes be policy reasons why the court
will determine that the duty on a public authority is not absolute, particularly where
resourcing issues might preclude the authority from fulfilling the duty.

R (Stennett) v Manchester City Council [2002] UKHL 34

Section 117 of the Mental Health Act 1983 placed local authorities under a statutory
duty to provide residential accommodation and care for patients who had been
discharged from detention in a mental hospital under the provisions of the Act.
A number of local authorities sought to charge the individuals concerned for
the provision of the accommodation and the Supreme Court held that the duty
incumbent on the authorities did not permit them to make a charge for the
accommodation provided.

R v Leeds City Council, ex parte N [1999] ELR 324

In this case, the local authority decided to close a school as it was not providing an
adequate standard of education and it also had too few students to continue to be
viable. The local authority was under a duty to consult ‘such persons as seem to them
to be appropriate’ under s.167(4) of the Education Act 1996 prior to any closure order
being made. N claimed judicial review of the closure order. The court rejected the
claim, holding that the authority had a discretion over who should be consulted and
that it had not breached its duty by failing to consult N.

R (on the application of Friends of the Earth) v Secretary of State for Business, Enterprise and
Regulatory Reform [2008] EWHC 2518 (Admin)

A duty incumbent on the secretary of state to publish and implement a strategy to end
fuel poverty, contained in s.2 of the Warm Homes and Energy Conservation Act 2000
was the subject of this challenge by Friends of the Earth. The claimants argued that
the secretary of state had failed to take all measures necessary to end fuel poverty,
as the government had stated that some of the necessary measures were beyond
page 78 University of London

the resources available to the department and others were not appropriate value for
money. The court held that the duty was not an absolute one and that the government
retained discretion to use the limited resources available for the fulfilment duty in
the way that it deemed most effective, subject to the possibility of a challenge to the
rationality of any such allocation.

8.3 Use of power for an improper purpose

The ‘proper purpose’ for which a statutory power is granted must be discerned from
the statute itself, subject to the usual principles of statutory interpretation. However,
there is a general presumption that parliament intends powers to be used in the
public interest and also that powers are to be used in a manner that is not arbitrary.
The examples below serve to illustrate some of these general principles.

Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997

A minister’s refusal to refer the price of milk (which was regulated by the state at the
time of this case) to a statutory inquiry that may have increased the price at a time
that may have been politically inconvenient for the government was the use of power
for an improper purpose. The statutory power was conferred in order to ensure a
proper functioning of the market for milk and should be used accordingly.

Congreve v Home Office [1976] QB 629

Under the Wireless Telegraphy Act 1949, s.1(4), the secretary of state had the power to
revoke television licences at his discretion. The claimant in the case and a number of
other individuals had bought a new television licence in advance of the expiry of their
old licence in order to avoid a large increase in price. The secretary of state wrote to
these individuals and advised that unless they paid the difference between the price
that they paid for their licence and the increased price that would have been due at
the time of expiry of their previous licence, the new licence would be revoked under
the powers contained in s.1(4) of the Act. The Court of Appeal held that such an action
would be the use of the statutory power for an improper purpose. Geoffrey Lane LJ said:

it is an improper exercise of a discretionary power to use a threat to exercise that power

as a means of extracting money which Parliament has given the executive no mandate to
demand. [at 660]

Wheeler v Leicester City Council [1985] AC 1054

A council used its statutory powers under s.17 of the Race Relations Act 1976 in an
endeavour to ban Leicester Rugby Club from using a recreation ground owned by the
council and evict the club accordingly. Some of the players who played for the club
went on a tour of South Africa during the apartheid period. At the time when the
players went on the tour they were not under contract with the club, so the club did
not have any direct control over these players. The House of Lords held that the use of
the council’s powers to manage the recreation ground in order to punish the club in
a case such as this was unlawful, as the club had no direct control over the players. In
the case, Lord Templeman said:

In my opinion this use by the council of its statutory powers was a misuse of power. The
council could not properly seek to use its statutory powers of management or any other
statutory powers for the purposes of punishing the club when the club had done no
wrong. [at 1081]

8.4 Relevant and irrelevant considerations

These cases all turn on the question of whether, in making a decision, the decision-
maker has taken account of factors that are not relevant to the decision, or has failed
to take account of factors that are. The factors that are relevant to a decision may be
listed in a statute, stated in a published policy, or may be inferred from the statute or
the circumstances of the case.
Administrative law 8 Illegality page 79
R v Secretary of State for the Home Department, ex parte Venables [1998] AC 407

This case concerned a decision of the secretary of state to set a minimum period
of imprisonment considerably in excess of that recommended by the trial judge or
Lord Chief Justice. This case is a well-known one in the UK where two ten-year-old
boys abducted and murdered a two-year-old boy. Both boys were imprisoned ‘at
her Majesty’s pleasure’, which then led to a need for the secretary of state to set
a minimum period of imprisonment. The secretary of state was influenced in his
decision to set a minimum period higher than that recommended by the judiciary
by petitions from the public and the results of polls in national newspapers. In his
judgment, Lord Woolf MR said:

Here it is clear that the Home Secretary took into account the petitions and other
documents presented to him urging the fixing of a higher tariff than that fixed by the
judiciary. This could well provide part of the explanation for the striking difference in the
figures of the judiciary and the Home Secretary for the penal element. This I regard as
being a departure from the standards of fairness the exercise of a discretion of this sort
requires. [at 435]

R (T) v Enfield London Borough Council [2004] EWHC 2297 (Admin)

The defendant council concluded that the claimant was not under the age of 18
and thus was not a ‘child’ and entitled to support under the Children Act 1989. The
council failed to consider the findings of a report by a consultant paediatrician,
which suggested that the claimant may well be under 18 years of age. The court held
the decision to be unlawful, as the decision-maker had failed to take account of this
relevant factor.

8.5 Exercise and delegation of powers

In general, if discretion is granted to a particular body or individual then the general
expectation is that the individual concerned will exercise that discretion. As you will
have learned in your study of public law, the law recognises the need for a degree
of delegation between secretaries of state (who enjoy far more statutory powers
and hold far more statutory duties than could ever be exercised by one person) and
senior civil servants. Furthermore, some statutes authorise the further delegation
of certain statutory powers. We can find a range of rules in relation to the exercise
and delegation of powers – there is the principle of delegatus non potest delegare
(no unlawful delegation), a requirement that decision-makers must not ‘act under
dictation’ and must not fetter their discretion by adopting rigid rules or policies.

8.5.1 Lawful and unlawful delegation

As noted above, there is a general principle that there should be no unlawful
delegation of power. Delegation will be lawful if it is authorised by the relevant statute
granting power, or if it falls under the scope of the Carltona doctrine. The Carltona
doctrine has faced some challenges in recent years, as ‘contracting out’ of public
services has opened up some difficult legal questions about the applicability of that
doctrine to contracted out entities.

Further reading
¢ Freedland, M. ‘The rule against delegation and the Carltona doctrine in an
agency context’ (1995) Public Law 19.

Carltona v Commissioner of Works [1943] 2 All ER 560 – where statute grants a power
to the secretary of state, the court will treat the decision of a departmental official
as being one made by the secretary of state without offending the rule against
delegation. In the case, Lord Greene said:

In the administration of government in this country the functions which are given
to ministers (and constitutionally properly given to ministers because they are
constitutionally responsible) are functions so multifarious that no minister could ever
page 80 University of London
personally attend to them. To take the example of the present case no doubt there have
been thousands of requisitions in this country by individual ministries. It cannot be
supposed that this Regulation meant that, in each case, the minister in person should
direct his mind to the matter … [at 563]
R v Secretary of State for the Home Department, ex parte Oladehinde [1991] 1 AC 254 – the
Carltona principle can extend to officials employed by a private body that is exercising
statutory functions under a ‘contracting out’ arrangement.

R (King) v Secretary of State for Justice [2015] UKSC 54 – In the context of this case,
where the relevant regulations of the Prison Rules referred to specific authorisation
by the secretary of state, the Carltona doctrine could not apply and any continued
segregation of the claimants would need the specific authorisation of the secretary of
state in person.

8.5.2 Acting under dictation

The law is clear that, where a statutory power is granted to a particular individual
or body, the expectation is that that person or body will exercise the power. It is not
lawful to pass on that decision-making power to another.

Laker Airways v Department of Trade [1977] 2 All ER 182 – in a situation where the Civil
Aviation Authority had the power to grant and revoke licences for the operation of
civil aviation, it was not lawful for the Civil Aviation Authority to follow an order given
by the Department of Trade to revoke a licence.

R v Secretary of State for the Environment ex parte Lancashire County Council [1994] 4 All
ER 165 – it was not lawful for the secretary of state to instruct the Local Government
Commission to increase the number of unitary local authorities and it was not lawful
for the Local Government Commission to follow the instruction, as the discretion over
such recommendations lay with the Commission.

8.5.3 Fettering of discretion

Where discretion is granted, it is permissible for a decision-maker to adopt a policy
in relation to the exercise of discretion (in accordance with some of the principles
discussed in Chapter 3). However, it is not lawful for the policy to be applied rigidly –
the decision-maker must be willing to retain discretion and consider exceptional cases
outside the policy.

Further reading
¢ Hilson, C. ‘Judicial review, policies and the fettering of discretion’ (2002) Public
Law 111.

¢ Knight, C.J.S. ‘A framework for fettering’ (2009) Judicial Review 73.

British Oxygen Co. Ltd v Board of Trade [1971] AC 610 – a policy that stated that no
government support would be granted to industrial projects where the sale price of
each individual product was lower than £20 was held to be unlawful in so far as the
Board of Trade refused to consider exceptional cases.

North West Lancashire Health Authority v A, D and G [1999] EWCA Civ 2022 – a policy
couched in such restrictive terms that its effect was to preclude funding for certain
types of surgery on the NHS was not lawful – it is necessary for decision-makers to
consider the merits of individual claims in appropriate cases.

8.6 Failure to follow statutory processes

If a decision-maker has failed to follow statutory requirements when making a
decision, this may render the decision unlawful. Some of these requirements have
already been discussed (the discussion of the law on consultation in Chapter 5 is a
good example) and there may be other situations where statutes impose procedural
requirements that should be followed. Any failure to follow statutory procedures is
likely to render a decision to be unlawful.
Administrative law 8 Illegality page 81

Activity 8.1
In order to combat growing security problems at airports, parliament has passed
the Airport Security Act 2017. The Act seeks to give powers to the Secretary of State
for Transport to introduce a range of measures designed to increase security at
British airports. Three sections of the Act are of particular significance:
u Section 1, which permits the secretary of state to prohibit items that may be
‘used as a dangerous weapon in an aircraft cabin’ from being carried onto an
aircraft.
u Section 2, which creates a system of licensing for all airport employees. The Act
states that no person can be employed by an airport until they are approved and
licensed as being ‘suitable’ by the Secretary of State for Transport.
u Section 3, gives the secretary of state various powers. These include: imposing
penalties, including fines; confiscation of equipment; and, for serious breaches
of the Regulations made under s.1, revocation of an airport’s licence to host
passenger flights.
Advise the parties below on the likely legality of the following actions taken under
the Airport Security Act 2017:
1. Battcharge is a company that has created an innovative cylindrical powerbank
for the charging of mobile phones and tablet computers. Its product is
cylindrical in shape, is 8 cm long, 4 cm in diameter and weighs 400 g. The
secretary of state has prohibited the product under s.1 of the Act, stating that
the item could be used as a dangerous weapon in the aircraft cabin.

2. Klipperz Ltd is a company that has developed a pair of small nail clippers made
from carbon fibre. The secretary of state has prohibited these under s.1 on the
basis that a published policy on what may constitute a ‘dangerous weapon’
prohibits all forms of scissors and nail clippers.

3. A number of producers of travel goods are unhappy that the secretary of state
has indicated that a fee of £1000 will be introduced for each product to be
assessed under s.1 of the Act.

4. Iqbal has applied for a job at Blankshire airport and has thus sought a licence
under s.2 from the secretary of state. Sir Humphrey, a civil servant, has written
to Iqbal and advised him that he is not deemed to be suitable because of his
involvement with left-wing political groups during his years as a student.

5. Hillshire Airport, which has had its licence revoked as the secretary of state
has determined that it was in serious breach of s.1 when an error in security
processes allowed a small pair of scissors on board an aircraft. Hillshire Airport
believe that the secretary of state’s real motive behind the revocation of
the airport’s licence is that she owns a property near to the airport and has
previously complained about the level of noise made by aircraft.

Activity 8.2
In order to address the amount of plastic waste polluting the environment, the
Plastic Recycling Act 2017 is passed by parliament. It grants powers to the Secretary
of State for the Environment as follows:
u Section 1 of the Act requires the secretary of state to ‘draw up and publish a
strategy to increase plastic recycling with the objective of achieving a recycling
rate of 95% of plastic waste by 2030’.
u Section 2, which gives the secretary of state the power to give grants to projects
that will significantly increase the rate of recycling of plastics.
u Section 3, which allows the secretary of state to prohibit the use of certain types
of plastic that are deemed to be impossible to recycle.
Advise the following parties on the likely legality of the following actions taken
under the Plastic Recycling Act 2017:
1. The Recycling Association, which wishes to challenge the secretary of state’s
strategy as they do not believe that the government plans to invest sufficient
page 82 University of London
resources into the recycling of plastic to meet the target set in the statute by
2030. The secretary of state has argued that there are insufficient resources to
deliver additional support and also that the recycling of certain forms of plastic
is unsustainable as the cost is disproportionate to the environmental benefit
that will be gleaned.

2. Fast Plas is a firm that is developing a new system for the recycling of plastic
film. The firm has been refused a grant under s.2 as the secretary of state has
determined that the recycling system is not sufficiently effective. Fast Plas are
aggrieved because the secretary of state has refused to consider the evidence in
three scientific papers that demonstrates that its system is more effective than
any of the other systems for the recycling of plastic film.

3. Plastibead is a firm that manufactures plastic beads to be added to cosmetics.

Plastibead are unhappy that their product has been prohibited using the powers
under s.3 of the Act, although they feel that the motivation for the prohibition
may in part be due to the considerable public pressure for the prohibition of
such small plastic beads.

8.7 What has this chapter sought to do?

If you have read this chapter, considered the material in it, undertaken the Essential
readings and completed the activities then you should have met the learning
outcomes noted at the outset. You can use the feedback to the activities in order to
assess your level of understanding. You may wish to take away these final points from
this chapter:

1. The ‘illegality’ concept may have considerable overlap with the other grounds
of review, as these are simply different ways of categorising different kinds of
unlawful act.

2. The ground of review known as ‘illegality’ is largely focused on considering

whether the statutory powers of public authorities have been exercised lawfully. A
large part of the task in cases where illegality is the focus of the review will be that
of statutory interpretation, in order to discern the scope of the authority’s power
and any limitations upon it.

3. The courts generally construe statutes in a purposive manner and frequently

reflect on the policy context in which legal powers are granted and exercised in
the construction of statutes.