Abuse of Discretion I Relevance and Propriety

S S MARTIN
Administrative Law – Lent Term 2020
Administrative Law
Lent Term 2020
Abuse of Discretion I: Propriety and Relevancy
Stevie Martin*
ssm41@cam.ac.uk
Fitzwilliam and King’s Colleges
*This handout draws upon previous handouts prepared by Professor Daly. Any errors are mine *
READING
Reference is made throughout the handout to useful texts, cases and articles.
The following is, however, essential:
 Elliott & Varuhas, Administrative Law (OUP: 2017, 5th ed), Chs 7
OVERVIEW
In the following four lectures, we will be looking at abuse of discretion. We will commence
with an examination of two further grounds of judicial review, namely (ir)relevant
considerations and (im)proper purposes. We will then consider substantive judicial review, in
particular reasonableness and proportionality. These lectures build upon those that took place
towards the end of Michaelmas Term on legitimate expectations and fettering discretion and
you are encouraged to keep the content of those lectures in mind.
This handout focuses on propriety and relevancy which are exercises in statutory
interpretation and “questions of law … to the extent that the statute expressly or impliedly
regulates what considerations or purposes may or must be considered or pursued:
contravention of such statutory direction is illegal” (Wilberg, ‘Deference on Relevance and
Purpose? Wrestling with the Law/Discretion Divide’ in Wilberg and Elliott (eds), The Scope
and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Hart: 2015), 269).
As we saw when discussing jurisdictional error, the courts have, since Anisminic v Foreign
Compensation Commission [1969] 2 AC 147, subjected the interpretation of statute by
administrative decision-makers to close scrutiny. As a result, it is the courts, and not decision-
makers, who have the final say when it comes to whether a consideration is relevant or not and
whether a purpose is proper or improper.
Nevertheless, decision-makers retain a considerable degree of autonomy in deciding the

weight that should be attributed to a given relevant consideration and the proper purposes it
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takes into account. As Lord Hoffman observed in Tesco Stores v Secretary of State for the
Environment [1995] 1 WLR 759 (at 780):
The law has always made a clear distinction between the question of whether
something is a material consideration and the weight which it should be given. The
former is a question of law and the latter is a question [for the decision-maker].
Provided that the [decision-maker] has regard to all material considerations, it is at
liberty (provided that it does not lapse into Wednesbury irrationality) to give them
whatever weight [they] think[] fit or no weight at all. The fact that the law regards
something as a material consideration therefore involves no view about the part, if any,
which it should play in the decision-making process.
While relevant considerations and proper purposes will be considered separately, as they serve
distinct functions, the courts can and do use the terms interchangeably not least given that the
“application of each is intimately connected to statutory context” and “the range and type of
factors a decision-maker may legitimately take into account in exercising a discretion [is]
constrained by the purpose for which the discretion was granted” (Elliott & Varuhas, p 237).
1. PROPRIETY
1.1 OVERVIEW
Decision-makers may use statutory powers “only for the purposes for which they were
created” and the “improper purpose doctrine” remains “one of the most important bulwarks
which our predecessors so painstakingly erected against arbitrary acts of the executive” (R
(GC) v Commissioner of Police for the Metropolis [2011] UKSC 21 at [107], per Lord
Rodger).
As Lord Reid observed in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC
997 at 1030:
Parliament must have conferred the discretion with the intention that it should be used
to promote the policy and objects of the Act; the policy and objects of the Act must be
determined by construing the Act as a whole and construction is always a matter of law
for the court.
Where a decision-maker exercises “discretionary power for a purpose alien to that for which it
was granted” the exercise of that power will be unlawful (Halsbury’s Laws of England, Ch 23
citing, inter alia, Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997).
a) Distilling a statute’s purpose(s)
Legislation frequently expressly states the purpose(s) for which a power is conferred. In such
cases, and in the absence of any implied purposes discovered by the court, the decision-maker
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is obliged to act only for the stated purpose(s). Where the enabling legislation does not
expressly state the purpose(s) for which the discretionary power is conferred:
[T]he decision-maker is bound nevertheless to ascertain and apply the aims intended,
since no statute can be purposeless: and therefore unless the Act’s true purpose is
correctly understood the decision-maker, who is Parliament’s delegate, is at risk of
using powers to an end for which they were never given him.
(R v Somerset County Council; Ex parte Fewings [1995] 1 All ER 513 at 523, per
Laws LJ).
As has been said, distilling the purpose (whether express or implied) of a conferral of power is
an exercise in statutory interpretation for which the courts are ultimately responsible. The
following cases illuminate this.
Municipal Council of Sydney v Campbell and Ors [1925] AC 338 concerned the purported
exercise by the Council of Sydney of its power under s 16 of the Sydney Corporation
Amendment Act 1905 to compulsorily acquire land. Pursuant to s 16 of the 1905 Act, the
Council had the power to compulsorily acquire land which was required for the purpose of
making or extending streets and also for “carrying out improvements in or remodelling any
portion of the city.” The Council sought to acquire the respondents’ land ostensibly for the
purpose of extending a main thoroughfare in the Sydney CBD. While the Council had the
right under s 3 of the 1905 Act to “resume” lands for the purpose of extending the particular
street, it was undisputed that the respondents’ land was not within the limits of any area
required for the expansion of the street (i.e. it was not immediately adjacent to the street but,
rather, it was in the surrounding area). The power to acquire them was said to be on the basis
that they were “required” for the purpose of remodelling or improving the city within the
sense of s 16 of the 1905 Act (at 341-342).
At first instance, it was held that the respondents’ land was not required for such a purpose
but, rather, the resumption of the land was aimed at enabling the Council to get the benefit of
any increase in the value of such land upon the extension of the main street. Since the
resumption of lands for such a purpose alone was not within the ambit of authority conferred
upon the Council, the proposed resumption was invalid (at 342).
The House of Lords upheld the decision at first instance and dismissed the appeal. Notably,
Justice Duff observed that (at 343):
The legal principles governing the execution of such powers as that conferred by s. 16,
in so far as presently relevant, are not at all in controversy. A body such as the
Municipal Council of Sydney, authorized to take land compulsorily for specified
purposes, will not be permitted to exercise its powers for different purposes, and if it
attempts to do so, the Courts will interfere. As Lord Loreburn said, in Marquess of
Clanricarde v. Congested Districts Board [79 J. P. 481]: “Whether it does so or not is
a question of fact.” Where the proceedings of the Council are attacked upon this
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ground, the party impeaching those proceedings must, of course, prove that the
Council, though professing to exercise its powers for the statutory purpose, is in fact
employing them in furtherance of some ulterior object.
Where the statute does not make express reference to the purpose underlying a discretionary
power, it is incumbent upon the court to infer the uses to which the power can lawfully be put
(Elliott & Thomas (2017: OUP, 3rd ed), p 538).
In Congreve v Home Office [1976] QB 629; 1 All ER 697, the plaintiff – who owned a colour
television set – had held the correct television receiving license. That license was due to expire
on 31 March 1975 and in January 1975, the Government announced that the fee prescribed for
a colour television license was to increase from £12 to £18. The increase was scheduled to
take effect from 1 April 1975. So as to avoid incurring the higher fee, the plaintiff sought to
obtain a new licence before the expiry of his old one and he did so on 26 March, paying the
existing, lower, fee of £12. The Home Office became aware that a significant number of
licence holders were doing the same thing as the plaintiff and, consequently, a substantial part
of the anticipated revenue was being lost to the Crown. As a result, the Licence Records
Office – an agent of the Home Office – wrote to the plaintiff and other licence holders who
had taken the same course of action demanding payment of the £6 difference. The letter also
threatened that if that sum was not paid, the Home Secretary would revoke their licence,
pursuant to s 1(4) of the Wireless Telegraphy Act 1949. A subsequent letter to the plaintiff
stated that if he did not pay the £6, his licence would be permitted to run until 30 November
but from 1 December it would be revoked. The plaintiff refused to pay the additional £6 and
brought proceedings against the Home Office claiming a declaration that revocation of the
licence would be unlawful, invalid and of no effect.
The Court of Appeal held that the licence issued on 26 March had been obtained lawfully and
was valid for the entirety of its duration. When it was issued, the Home Office had no lawful
authority to require, as a condition, a sum greater than the prescribed fee which was, at that
time, £12. Consequently, the demand made for the payment of the additional £6 was unlawful
and it would be an unlawful exercise of the Home Secretary’s power of revocation, to revoke
(or threaten to revoke) the licence as a means of enforcing the (unlawful) demand. The
declaration sought by the plaintiff was thus made.
In considering the appeal, Lord Denning observed that (at 708):
Undoubtedly [the relevant] statutory provisions give the Minister a discretion as to the
issue and revocation of licences. But it is a discretion which must be exercised in
accordance with the law, taking all relevant considerations into account, omitting
irrelevant ones, and not being influenced by any ulterior motives.
And, as Lord Lane held, the Home Secretary did not have the power to revoke the plaintiff’s
license as “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 719).
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A more recent case example is R (On the application of Jones and Ors) v The Commissioner
of Police for the Metropolis [2019] EWHC 2957 (Admin) which concerned the power to
impose directions on assemblies under s 14 of the Public Order Act 1986. The case concerned
the protests that took place in central London in October 2019 by Extinction Rebellion
(referred to as the Extinction Rebellion Autumn Uprising (“XRAU”)). The applicants sought
judicial review of a decision by Superintendent Duncan McMillan to impose a condition on
the various protests affiliated with XRAU that were taking place and were due to take place
from 9pm on 14 October. While the central focus of the case was the meaning of “public
assembly” for the purposes of s 14, the case is significant for instant purposes for what the
court said about the purpose (or, more significantly, what was not the purpose) of the Act: “the
purpose of the 1986 Act was not to confer a power to prohibit a public assembly that had not
yet begun” (at [55]). Thus, the power to issue directions concerning assemblies under s 14
could not be used to pre-emptively prohibit planned assemblies and if it was, it would be an
unlawful exercise of the power conferred by s 14 of the Public Order Act 1986. The court
reached that determination having regard to the wording of the statute as a whole Wilberg,
‘Deference on Relevance and Purpose? Wrestling with the Law/Discretion Divide’ in Wilberg
and Elliott (eds), The Scope and Intensity of Substantive Review: Traversing Taggart’s
Rainbow (Hart: 2015), (which did not expressly state that that was not a purpose), a White
Paper that preceded the introduction of the Public Order Act 1986, as well as case law
concerning other provisions in the Statute which did expressly permit the use of powers to
prohibit other forms of protect (e.g. processions). Notably, section 14(1) expressly states the
purposes for which the power can be exercised, namely “to prevent” “public disorder, serious
damage to property or serious disruption to the life of the community” and/or “the
intimidation of others with a view to compelling them not to do an act they have a right to do,
or to do an act they have a right not to do”.
As the preceding case examples demonstrate, a court’s determination of the proper purposes
for which a statutorily conferred discretion can be exercised can have significant consequences
in terms of the scope of the discretion. This is further illustrated by the R v Secretary of State
for Foreign and Commonwealth Affairs; Ex parte World Development Movement Ltd [1995] 1
WLR 386 (the “Pergau Dam case”). The Secretary of State approved financial support for a
project by a British consortium to construct a hydro-electric power station on the Pergau River
in Malaysia. This decision was made despite advice from the Overseas Development
Administration that the project was an abuse of the overseas aid programme in that it was
uneconomic and was not a sound development project. The Secretary of State justified the
decision on the basis that the provision of aid was “for the purpose of promoting the
development” of Malaysia. The applicants, a non-partisan pressure group, who had
unsuccessfully sought assurances from the Secretary of State that no further funds would be
provided for the project, sought judicial review of the decision by the Secretary of State to
grant funding.
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.
It was argued on behalf of the applicants that the power conferred by s 1(1) of the 1980 Act
was limited to the purpose:
imposed by the subsection, namely, in the present circumstances, for promoting

development. This, he submitted, is concerned with the authorisation of assistance, not
projects. The correct test is: did the Secretary of State decide to furnish the Malaysian
Government with financial assistance for the purpose of promoting development?
Accordingly, he submitted, if aid is to be granted, projects have to be “sound
development projects.” The Pergau Dam was not. (At 398).
While the word “sound” was not mentioned in s 1(1) of the 1980 Act, Rose LJ held that (at
402):
…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.
Further, in the absence of a “developmental promotion purpose”, it was not appropriate for the
Secretary of State to take into account the “political impossibility of withdrawing” the offer of
financial support nor was it appropriate to consider the impact which withdrawing the offer
would have had on the UK’s “credibility as a reliable friend and trading partner and on
political and commercial relations with Malaysia” (at 402). The decision to provide the
funding for such purposes and in circumstances where the development was not economically
sound, was accordingly unlawful.
According to Elliott & Varuhas (p 241) the decision of Rose LJ to:
…read the criterion of economic soundness into the enabling provision, thereby
limiting the purposes for which aid could be granted, had a major impact on the scope
of the Secretary of State’s power, and, allied with the Court’s view that the project was
economically unsound, was fatal to the legality of the decision. This demonstrates the
potential potency of the purpose doctrine.
For a critical view of the Pergau Dam case, see Irvine, Human Rights, Constitutional Law and
the Development of the English Legal System (OUP: 2003), pp 164-5. See, also, Lord
Sumption, “FA Mann Lecture: Judicial and Political Decision-Making: The Uncertain
Boundary” [2011] 16 Judicial Review 4:
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[15] In substance what the Divisional Court decided was that this particular
development grant was not a good idea. It therefore interpreted the statute as
limiting the power to grant development aid to projects that were a good idea.
Who was to decide what was a good idea? Naturally, the court itself. The
practical effect was to transfer to the court the discretionary powers of the
Secretary of State on a matter of policy and the task of assessing the project’s
merits. As it happens, Parliament’s view about the merits of the Foreign
Secretary’s decision was different. It subsequently approved without demur a
supplementary estimate in an appropriation bill, which reallocated the available
funds so as to allow the payments to Malaysia to be made anyway, along with
payments for two other projects which were thought to be open to the same
objections.
[16] The real interest of this decision is that it was manifestly based on a factor
whose influence is rarely acknowledged but often powerful, namely the judge’s
views about the merits of the underlying policy…
The Pergau Dam case also serves to illustrate the overlap between relevance and purpose.
Thus, the qualification of developmental purposes as being only those that were sound limited
the considerations which the decision maker could lawfully take into account. We will
consider relevancy shortly, but before that we must examine the approach taken when a power
is conferred for multiple purposes.
b) Multiple purposes
Recall that in Jones, the Divisional High Court held that prohibiting an assembly that was yet
to commence was not one of the purposes of the Public Order Act 1986. Yet, there are
multiple express purposes for which the power in s 14 can be exercised and it is entirely
possible that a police officer exercising power s 14 could do so for several purposes, for
instance to prevent public disorder and serious damage to property. Provided the officer
exercised their power under s 14 for one or more legitimate statutory purposes, there is no
question of illegality. But what if the decision-maker exercised their power for both proper
and improper purposes?
Let us consider Jones. The decision to impose the condition bringing existing XRAU protests
to an end (and, relatedly, prohibiting all future XRAU protests in London) was made in light
of the disruption which the XRAU protests had had on public transport (following glue-ons)
and on business in London. And preveting public disorder is an express purpose under s 14.
But, what if the Superintendent had also wanted to prohibit an intended XRAU protest?
Recall, this is an improper purpose. And let us say that the Superintendent did so by imposing
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a condition on the “maximum duration” of all assemblies related to XRAU of “zero hours”.1
We now have a situation in which there is an improper purpose (prohibiting the assembly)
mixed in with legitimate purposes (to prevent serious damage to property and public disorder).
What, if anything, does this mean for the lawfulness of the Superintendent’s conduct?
So long as the “dominant purpose” is a legitimate (or “proper”) purpose, the Superintendent’s
conduct will be lawful. This is a question of fact (Municipal Council of Sydney v Campbell
and Ors [1925] AC 338). But it can be extremely difficult, from an evidential point of view, to
prove that the dominant purpose was not proper. According to Elliott & Varuhas, “[t]he courts
are … alert to this problem” (p 242). Thus, in R v Governor of Brixton Prison; Ex parte
Soblen [1963] 2 QB 243, Lord Denning observed that “[i]f [the impugned act] was done for an
authorised purpose, it was lawful. If it was done professedly for an authorised purpose, but in
fact for a different purpose with an ulterior object, it was unlawful.” Significantly, Lord
Denning went on to hold that (ibid):
It is open to these courts to inquire whether the purpose of the [decision maker] was a
lawful or an unlawful purpose. Was there a misuse of the power or not? The courts can
always go behind the face of the [challenged] order in order to see whether the powers
entrusted by Parliament have been exercised lawfully or no.
Returning to the hypothetical Jones scenario, the evidence of the Superintendent would not be
sufficient; the courts would be willing to consider other evidence, such as emails to colleagues
indicating his intention to prohibit the XRAU protest, in deciding whether the power to
impose conditions under s 14 had been exercised lawfully. Indeed, one might argue that,
whatever the motivation, the dominant purpose was plainly to prohibit all XRAU assemblies
as that is the means by which the Superintendent sought to achieve the end of preventing
public disorder.
Thus, in the Pergau Dam case, counsel for the Secretary of State submitted that the decision to
grant funding for the dam “was taken by the Secretary of State personally and his thinking
[was] of decisive importance in determining the purpose for which the assistance was
furnished” (at 401, emphasis added). Lord Rose rejected this contention:
I am unable to accept Mr. Richards's submission that it is the Secretary of State's

thinking which is determinative of whether the purpose was within the statute and that
therefore paragraph 3 of his affidavit is conclusive. Whatever the Secretary of State's
intention or purpose may have been, it is, as it seems to me, a matter for the courts and
not for the Secretary of State to determine whether, on the evidence before the court,
the particular conduct was, or was not, within the statutory purpose (ibid).
c) The role of the Human Rights Act 1998, s 3
1
NB under s 14, only the Chief Officer of Police can impose conditions on intended assemblies. Further note
that because prohibiting assemblies is not permissible, it is also not permissible to impose a condition on
duration of “zero hours” (see Jones at [56]). But let us suspend reality for a moment to pursue the hypothetical.
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By ensuring that decision-makers exercise their discretion according to a statute’s purposes,

courts give effect to Parliament’s intention and thereby give effect to the separation of powers
and rule of law. Subsequent developments in the principles governing statutory interpretation
have, however, geared judicial review towards vindicating individual rights, as opposed to
“vindicating Parliament’s purpose in conferring particular powers” (Elliott & Varuhas, p 242).
One such development is the Human Rights Act 1998 and, in particular s 3 which requires that
“[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read
and given effect in a way which is compatible with the Convention rights.” Pursuant to this
section, courts are required to “actively seek, as far as it possible to do so, to adopt rights
consistent interpretations” (Elliott & Varuhas, p 243).
Lord Millett in his dissenting judgment in Ghaidan v Godin-Mendoza [2004] UKHL 3

described the unique nature of the s 3 obligation in the following terms:
[60] …it obliges the court to give an abnormal construction to the statutory
language and one which cannot be achieved by resort to standard principles and
presumptions.
[61] This is a difficult exercise, for it is one which the courts have not hitherto been
accustomed to perform, and where they must accordingly establish their own
ground rules for the first time. It is also dangerously seductive, for there is
bound to be a temptation to apply the section beyond its proper scope and
trespass upon the prerogative of Parliament in what will almost invariably be a
good cause.
R (GC) v Commission of Police of the Metropolis [2011] UKSC 21 concerned s 64(1A) of the
Police and Criminal Evidence Act 1984 which replaced the previous obligation to destroy
DNA sample or fingerprints taken from a person in connection with the investigation of an
offence that they were subsequently cleared of. Under the new s 64(1A), samples taken in
connection with the investigation of an offence “may be retained after they have fulfilled the
purposes for which they were taken”. Guidelines issued by the Association of Chief Police
Officers instructed that data should be destroyed only in exceptional cases.
It was undisputed that the statutory purposes of s 64(1A) were to:
…create a scheme for the retention of the data taken from a suspect, whether or not
[they are] cleared of the offence and whether or not [they are] even prosecuted; and
(iii) that the data was to be retained so that it might be used ‘for purposes related to the
prevention or detection of crime, the investigation of an offence, the conduct of a
prosecution or the identification of a deceased person or of the person from whom a
body part came’ [and] in order to promote the statutory purposes, Parliament must
have intended that an extended, even a greatly extended, database should be created (at
[24], Lord Dyson).
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There was also no debate that indefinite retention of data breached Article 8 of the European
Convention on Human Rights (per, S and Marper v United Kingdom (2008) 48 EHRR 50).
The central issue, then, was whether s 64(1A) could be read in a manner that was compatible
with Article 8. A majority of the Supreme Court said that it could be. According to the
majority, Parliament had conferred a discretion and the use of “may” in s 64(1A) reflective a
permissive, rather than mandatory, conferral of power. If Parliament had intended that data
from all suspects should be retained indefinitely Parliament would have expressed s 64(1A) as
follows: “shall in every case be retained indefinitely after they have fulfilled the purpose for
which they were taken” (at [25], Lord Dyson). It was, then, possible for police to exercise the
discretion in s 64(1A) in a manner that was proportionate to the interference with Article 8.
Lord Rodger, in dissent, held that:
[107] … in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997

where Lord Reid had said, at p 1030B-D, that “Parliament must have
conferred the discretion with the intention that it should be used to promote
the policy and objects of the Act, the policy and objects of the Act must be
determined by construing the Act as a whole and construction is always a
matter of law for the court.”
[108] Following that classic authority, in my view the power which was conferred
on the police by section 64(1A) had to be exercised in accord with the policy
and objects of that enactment. As I have explained, the policy and objects of
Parliament in enacting section 64(1A) were plainly that DNA samples and
data derived from suspects should be retained indefinitely so that a large and
expanding database should be available to aid the detection and prosecution of
the perpetrators of crimes. The police were therefore bound to exercise the
power given to them by section 64(1A) in order to promote that policy and
those objects. This meant, in effect, that, subject to possible very narrow
exceptions (eg, those suspected of a crime which turned out not to be a crime
at all), the police had to retain on their database the samples and profiles of all
suspects. In short, the police were under a duty to do so.
Thus, according to Lord Rodger, the policy and objects of s 64(1A) mandated the indefinite
retention of biometric data and the police could not exercise the power under s 64(1A) in any
other way. This conceptualisation of the purpose of the section led Lord Rodger to reject the
submission made on behalf of the respondent that “the retention of the [biometric] material
[was] for the purposes of creating a DNA database, not the indefinite retention of the material
with a view to establishing a virtually comprehensive database of DNA material from
suspects” (at [114]). Rather, “[p]roviding for the material to be retained on the database
indefinitely was therefore the fundamental feature of the amending legislation which inserted
section 64(1A)” (at [114]. Emphasis in original).
This, in turn, led to the conclusion that:
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… section 3(1) of the HRA does not oblige or permit the courts or the police to read or
give effect to section 64(1A) in a way that departs substantially from that fundamental
feature. And it is quite obvious that any reading of section 64(1A) which would be apt
to obviate the defects identified in the existing system by the European Court would
depart very substantially indeed from that fundamental feature of the provision –
would, indeed, contradict it (at [115]).
Lord Rodger thus concluded that s 64(1A) was incompatible with Article 8 of the European
Convention on Human Rights. However, in light of the finding that it was not possible to
interpret s 64(1A) compatibly with Article 8, the police in retaining the biometric data of the
two applicants had not acted unlawfully, since the police could not have acted differently and,
accordingly, s 6(2)(b) of the Human Rights Act 1998 applied.
Arguably, the difference in the approach of the majority vis-à-vis the minority in GC reflects a
willingness on the part of the former to “stretch” the plain meaning of the provision (Elliott &
Varuhas, p 244). As Lord Rodger observed, the “fundamental” purpose of s 64(1A) was to
provide for the indefinite retention of biometric data and, accordingly, s 3(1) neither
“oblige[d] [n]or permit[ed] the courts or the police to read or give effect to section 64(1A) in a
way that departs substantially from that fundamental feature” and to read s 64(1A) in a manner
that was compatible with Article 8 would “depart very substantially indeed from that
fundamental feature of the provision – would, indeed, contradict it” (at [115]).
Elliott & Varuhas contend that the alternative conceptualisations of the purpose behind s
64(1A) in R (GC) reflect (p 256):
…a familiar story: while the courts may frame their conclusions as to statutory purpose
as following inexorably from a dispassionate and objective exercise in statutory
interpretation, there is often significant room for disagreement over what the relevant
purpose is. Further, there is scope for one’s normative preferences to shape the
distillation of Parliament’s purpose: the strength of one’s desire to ensure protection of
human rights may (consciously or not) shape one’s conclusions as to how purpose is to
be framed.
Such sentiment finds reflection in the dissenting judgment of Lord Millett in Ghaidan v
Godin-Mendoza extracted above.
2. RELEVANCY
2.1. OVERVIEW
Judicial intervention will be justified where a decision-maker fails to take into account a
relevant factor or takes into account an irrelevant factor (Hanks v Minister of Housing and
Local Government [1963] 1 QB 999, 1020 and G (AP) v Scottish Ministers [2013] UKSC 79,
esp [54]). As Megaw J observed in Hanks:
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…if it be shown that an authority exercising a power has taken into account as a
relevant factor something which it could not properly take into account in deciding
whether or not to exercise the power, then the exercise of the power, normally at least,
is bad. Similarly, if the authority fails to take into account as a relevant factor
something which is relevant, and which is or ought to be known to it, and which it
ought to have taken into account, the exercise of the power is normally bad. I say
"normally" because I can conceive that there may be cases where the factor wrongly
taken into account, or omitted, is insignificant, or where the wrong taking into account,
or omission, actually operated in favour of the person who later claims to be aggrieved
by the decision.
This deceptively simple articulation of the relevancy doctrine – that consideration of irrelevant
considerations and/or the failure to take into account relevant considerations will “normally”
render the exercise of discretionary power unlawful – belies the difficulty in drawing a line
between legally relevant and legally irrelevant matters and in the “not normal” (aka unusual)
cases.
The seminal House of Lords decision in Padfield v Ministry of Agriculture, Fisheries and
Food [1968] AC 997 concerned a complaint by milk producers in south-east England that
under the milk pricing policy set by the Milk Marketing Board Scheme they were paid too
little for their milk. Under the Agricultural Marketing Act 1958, s 19(3)(b), the Minister of
Agriculture, Fisheries and Food could direct a committee of investigation to consider and
report to the Minister on any complaint made to the Minister regarding the operation of any
scheme which could not, in the opinion of the Minister, be considered by a Consumers’
Committee. Milk producers were required to sell their milk to the Milk Marketing Board for a
price which differed between the 11 regions into which England and Wales had been divided
into for the purposes of the Board. The variance in prices between the regions reflected the
varying costs of transporting the milk from the produces to the consumers. The lowest price
was paid to producers in the Far-Western Region and the highest was paid to producers in the
South-Eastern Region. The differentials were fixed several years earlier, and transport costs
had increased, leading producers in the South-East region to seek a variance in the differential
to reflect that change. The change would result in producers in the South-Eastern Region and
perhaps some other regions getting a higher price but producers in the Far-West and several
other regions would get less. Since the constitution of the Board – which was composed
largely of members elected by the individual regions – made it impossible for the South-
Eastern producers to obtain a majority for their proposed change, they asked the Minister to
appoint a committee of investigation per s 19(3)(b) of the 1958 Act. When the Minister
refused, they applied to the court for an order of mandamus ordering the Minister to consider
the application to refer the complaint to the committee of investigation under the 1958 Act or
to deal effectively with the complaint on relevant considerations only to the exclusion of
irrelevant considerations.
The Divisional High Court granted the relief sought by the applicants, though this was
overturned on appeal (by a majority). The House of Lords (again, by a majority) rejected the
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Minister’s arguments, holding that he had misconstrued his legal powers and acted for reasons
that were irrelevant to the purposes of the legislation.
Per Lord Reid (at 1029):
The question at issue in this appeal is the nature and extent of the Minister's duty under
section 19(3)(b) of the Act of 1958 in deciding whether to refer to the committee of
investigation a complaint as to the operation of any scheme made by persons adversely
affected by the scheme. The respondent contends that his only duty is to consider a
complaint fairly and that he is given an unfettered discretion with regard to every
complaint either to refer it or not to refer it to the committee as he may think fit. The
appellants contend that it is his duty to refer every genuine and substantial complaint,
or alternatively that his discretion is not unfettered and that in this case he failed to
exercise his discretion according to law because his refusal was caused or influenced
by his having misdirected himself in law or by his having taken into account
extraneous or irrelevant considerations.
Lord Reid considered that the appellants’ argument went “too far”; there were a “number of
reasons” that would justify the Minister’s refusal to refer a complaint, for instance, he might
have considered arbitration was more appropriate (though this was not the case in the instant
appeal, since the appellants sought a change in the differential and that could not be secured
through arbitration), a separate committee of investigation had previously rejected a
substantially similar complaint or he might have considered the complaint vexatious or
frivolous. But, that did not mean that the Minister’s discretion was unfettered (at 1030).
Rather, the Minster was obliged to exercise his discretion “with the intention that it should be
used to promote the policy and objects of the Act” (ibid). Since the scheme would cause loss
to some producers since they could secure a higher price if they were not subject to the
scheme, it was unsurprising that Parliament had put “safeguards” into the Act, namely ss 19
and 20 which “provide[d] machinery for investigating and determining whether the scheme
[was] operating or the board [was] acting in a manner contrary to the public interest” (ibid).
The effect of these sections was “that if, but only if, the Minister and the committee of
investigation concur[ed] in the view that something [was] being done contrary to the public
interest the Minister [could] step in”. Lord Reid then turned to consider the reasons given by
the Minister for not referring the applicant’s complaint to a committee of investigation.
The first reason was because it “raised wide issues”. This was an irrelevant consideration
since:
Section 19 (6) contemplates the raising of issues so wide that it may be necessary for
the Minister to amend a scheme or even to revoke it. Narrower issues may be suitable
for arbitration but section 19 affords the only method of investigating wide issues. In
my view it is plainly the intention of the Act that even the widest issues should be
investigated if the complaint is genuine and substantial, as this complaint certainly is
(at 1031).
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The second reason was that the Milk Marketing Board was an instrument of self-regulation
and if the Minister was to refer the complaint to a committee of investigation, he would be
“assuming an inappropriate degree of responsibility”. This, however, was contrary to the 1958
Act which imposed a duty on the Minister to have a complaint alleging that the Board had
acted in a manner contrary to the public interest investigated (at 1032).
A further reason offered by the Minister was that if the complaint were referred to the
committee and the committee were to uphold it, the Minister would be “expected” to make an
order giving effect to the committee’s recommendation which, reading between the lines,
would be a politically embarrassing situation. This “would plainly be a bad reason” for
refusing the refer the complaint (ibid).
Having considered the Minster’s reasons, Lord Reid went on to hold (at 1033-4):
I have found no authority to support the unreasonable proposition that it must be all or
nothing - either no discretion at all or an unfettered discretion. Here the words "if the
Minister in any case so directs" are sufficient to show that he has some discretion but
they give no guide as to its nature or extent. That must be inferred from a construction
of the Act read as a whole, and for the reasons I have given I would infer that the
discretion is not unlimited, and that it has been used by the Minister in a manner which
is not in accord with the intention of the statute which conferred it.
Lord Upjohn (who formed part of the majority) made the prescient observation that (at 1061-
2):
…if [the Minister] does not give any reason for his decision it may be, if circumstances
warrant it, that a court may be at liberty to come to the conclusion that he had no good
reason for reaching that conclusion and order a prerogative writ to issue accordingly.
According to Lord Upjohn “[t]he Minister ha[d] not given a single valid reason for refusing to
order an inquiry into the legitimate complaint (be it well founded or not) of the South-Eastern
Region; all his disclosed reasons for refusing to do so [were] bad in law” (at 1062).
The House of Lords (by a majority with Lord Morris dissenting) upheld the appeal and the
Minster, who was required to reconsider the matter, referred the complaint to a committee of
investigation which reported that the practices were contrary to the interests of the South-
Eastern region and the public interest. Ultimately, however, the Minister did not direct the
Milk Marketing Board to alter the differential since “this could precipitate the collapse of the
system” (Elliott & Varuhas, p 250).
The fact that, ultimately, the Minister refused to order the Board to alter the differential led
some to criticise the majority’s decision (see, for instance Harlow [1976] PL 116).
That criticism aside, Padfield had profound constitutional implications. As Lord Carnwath has
observed (extra-judicially):
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Padfield established the principle that there are no unfettered discretions in public law,
and that statutory powers must be used to promote the policy and objects of the statute,
to be determined by the courts as a matter of law. Much of what follows can be traced
back to that fundamental principle.
(‘Judicial review in a changing society’)
So, we know that decision-makers must take into account relevant considerations and
disregard irrelevant considerations, but how do we decide what is (or is not) relevant?
Unfortunately, there is no general test; relevancy depends largely on the legislation in
question. As Lord Upjohn observed in Padfield, decision-makers “must act lawfully and that
is a matter to be determined by looking at the Act and its scope and object in conferring a
discretion…” (at 1060). And, as discussed above in respect of R (GC), judges can differ in
their interpretation of the relevant statutory provisions (e.g were the police obliged by s
64(1A) to retain all biometric data indefinitely, or was there scope under the provision for
discretion which could be exercised in compliance with Article 8 of the European Convention
on Human Rights?).
While general principles are difficult to distil, you should have regard to the four issues
outlined by Elliott & Varuhas at pp 250-1:
1. The more generally worded and important the consideration, the readier the courts will
be to hold that Parliament must have intended that it be taken into account. The
importance of the consideration may depend on the importance of other, competing
interests and/or the context.
a. Thus, in R (Corner House Research) v Director of the Serious Fraud Squad
Office [2008] UKHL 60, the House of Lords rejected the contention that the
defendant’s decision to stop a criminal investigation into an allegedly corrupt
contract for the sale of arms between the United Kingdom and Saudi Arabia on
the basis of threats issued by the Saudi Arabian government – members of
which had allegedly received corrupt payments – that it would withdraw co-
operation with the UK government on anti-terrorism matters. Should this
happen, the defendant was warned by the Saudi ambassador that “British lives
on British streets” would be at risk. There was no dispute that the “public
interest” – a generally-worded but nevertheless profoundly important
consideration – was a relevant consideration. And the House of Lords
considered that the defendant’s decision, based as it was on his assessment of
what was in the public interest, was lawful. As Baroness Hale observed at [53]:
“the ‘public interest’ is often invoked but not susceptible of precise definition.
But it must mean something of importance to the public as a whole rather than
just to a private individual. The withdrawal of Saudi security co-operation
would indeed have consequences of importance for the public as a whole. I am
more impressed by the real threat to ‘British lives on British streets’ than I am
by unspecified references to national security or the national interest. ‘National
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security’ in the sense of a threat to the safety of the nation as a nation state was
not in issue here. Public safety was.”
b. It is interesting to note the different outcomes in Corner House Research and in
Pergau Dam. In the former, the general “public interest” consideration was
relevant and the Director was entitled to take the threat to British lives into
account. In Pergau Dam, had economic soundness been characterised as a
relevant consideration, as opposed to a purpose of the statute, the outcome
would likely have been different as the weight attached to it is a matter for the
decision-maker and not a court on judicial review.
c. On the point of context and the relative importance of other considerations
consider R (HSE) v Wolverhampton City Council [2012] UKSC 34 and Hayes v
Chief Constable of Merseyside Police [2011] EWCA Civ 911.
2. The nature of the decision-making function is important. See, in this respect, R v
Secretary of State for the Home Department; Ex part Venables [1998] AC 407 and the
importance attached to the sentencing power being exercised by the Home Secretary
when increasing the tariff: “The power given to him [to fix the tariff] requires, above
all, a detached approach. [Consequently] public protests about the level of a tariff to be
fixed in a particular case are legally irrelevant and may not be taken into account by
the Home Secretary in fixing the tariff” (at 526, per Lord Steyn). In contrast, concerns
regarding political expediency “will not be look[ed] kindly upon” (e.g. R (Evans) v
Lord Chancellor [2011] EWHC 1146 (Admin) in which concerns regarding the
implications of negative outcomes of public interest judicial review cases for the State
were considered to be “irrelevant” (and could be contrasted with concerns regarding
scare resources)).
3. The nature of the scheme created by the statute plays a significant role in determining
what is a relevant consideration.
a. Thus, in R v Gloucestershire County Council; Ex parte Barry [1997] AC 584,
scarcity of resources was held by a majority of the House of Lords to be a
relevant consideration when deciding what “needs” were necessary to meet
under s 2(1) of the Chronically Sick and Disabled Persons Act 1970. Lord
Nicholls considered that in assessing whether a person had a “need” that had to
be met, the authority could have regard to the resources available to it.
“Depending on the authority's financial position the authority could be more or
less stringent in the criteria it set as constituting need” (per in R v East Sussex
County Council; Ex parte Tandy [1998] AC 714 at 776). In contrast, Lord
Clyde “accepted that the local authority's resources were not relevant to
deciding what were the needs of the applicant but held that they were relevant
to the decision whether it was 'necessary' to make arrangements to meet those
needs” (ibid). Both approaches accepted that scarcity of resources was a
relevant consideration and, thus, the local authority’s decision to withdraw the
applicant’s cleaning and laundry services in light of funding cuts was not
unlawful.
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b. In contrast, in R v East Sussex County Council; Ex parte Tandy [1998] AC 714,

the applicant was entitled to “suitable education” under s 298 of the Education
Act 1993. The applicant’s home tuition was reduced from five hours to three
hours per week on the basis of resource restrictions. The House of Lords
determined that this was unlawful because in this case, resource considerations
were irrelevant. The sole criterion under the statute was education. The section
provided that the local authority “shall make arrangements for the provision of
suitable full-time or part-time education at school or otherwise than at school”
for specific children and “suitable education” was defined as “efficient
education suitable to his age, ability and aptitude and to any special educational
needs he may have”. Section 298 of the Education Act 1993 was in very
different terms to s 2 of the Chronically Sick and Disabled Persons Act 1970.
While the latter required the local authority to make a determination of the
individual’s needs, s 298 did not require such a determination concerning the
child’s education needs “nor of the necessity for making provision for such
education” (Tandy at 776). “The [1993 Act] imposes an immediate obligation
to make arrangements to provide suitable education. Moreover it then expressly
defines what is meant by 'suitable education' by reference to wholly objective
educational criteria” (ibid). Scarcity of resources was, thus, an irrelevant
consideration: “[a]ll these express factors [listed in s 298] relate to educational
considerations and nothing else … Moreover, there are other provisions in the
Act which do refer expressly to the efficient use of resources” (at 774).
4. Considerations relevant to decisions based on a policy or statutory scheme are to be
determined by reference to, inter alia, the underlying objectives of the policy or
scheme.
a. In R (Limbu and Ors) v Secretary of State for the Home Department and Ors
[2008] EWHC 2261 (Admin) the claimants – veterans of the Brigade of
Gurkhas (foreign nationals comprising part of the British Army) – challenged
the lawfulness of a discretionary scheme under ch 29.4 of the “Diplomatic
Service Procedures: Entry Clearance Volume 1 General Instructions” which
supplemented the Immigration Rules relating to indefinite leave applications
for retired Gurkhas. The policy had been introduced to recognise that “The
Gurkhas have served this country with great skill, courage and dignity during
some of the most testing times in our history. They have made an enormous
contribution not just to our armed forces but to the life of this country, and it is
important their commitment and sacrifice is recognised” (at [12]). The policy,
however, was written in extremely restrictive terms which most of the
discharged Gurkhas would not be able to meet them (e.g. residence of three
years in the UK not least as many were required to “fight in theatres of
conflict” elsewhere in the world (at [26])). The lack of considerations such as
the length of service (e.g. 10 years or more), injuries incurred in active service,
gallant service and decorations received was contrary to the objectives of the
policy as articulated by the Home Secretary and, thus, the policy, insofar as it
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“irrationally excluded material and potentially decisive considerations that the

context and the stated purpose of the policy indicate should have been
included” was unlawful (at [69]).
2.2 Applications of the relevancy doctrine
a) Ideological considerations
“If this means that the Board were hampered by political considerations, I can only say that
such considerations are pre-eminently extraneous, and that no political consequence can
justify the Board in allowing their judgment and discretion to be influenced thereby” (R v
Board of Education [1910] 2 KB 151 at 181, per Farwell J).
In Roberts v Hopwood [1925] AC 578, a local authority paid a minimum wage to its workers,
pursuant to statutory powers to “employ .... such .... servants as may be necessary, and [to]
allow to such .... servants .... such .... wages as (the Council) may think fit” (Metropolis
Management Act 1855, s. 62). The minimum wage was higher than the market wage and male
and female employees were paid at the same rate. A district auditor, who was empowered to
review the local authority’s spending, considered the minimum wage to be a gratuity and
accordingly disallowed the additional expenditure (the difference between a market wage and
a minimum wage), which was charged instead to the councillors.
The local authority set out in an affidavit its view that “as a matter of policy…a public
authority should be a model employer…” and pay a minimum wage. What mattered though
was whether this policy was compatible with “the sound construction of the section” (at 602,
per Lord Sumner). The House of Lords held that it was not. While “ordinary economic (and
economical) considerations” (at 609, per Lord Sumner) would be relevant, the decision to set
the minimum wage at a rate higher than the market wage was based on wider, irrelevant,
considerations and was, thus, unlawful. Wanting to be a “model employer” and to provide
equivalent wages to men and women, however noble, were irrelevant considerations.
According to Lord Buckmaster (at 590):
[The council] did not base their decision upon the ground that the reward for work is
the value of the work reasonably and even generously measured, but … they took an
arbitrary principle and fixed an arbitrary sum, which was not a real exercise of the
discretion imposed upon them by the statute.
The proper focus should have been the “fair, just and reasonable wage to pay their employees
for the services the latter rendered” but the council:
…put aside all these aids to the ascertainment of what was just and reasonable
remuneration to give for the services rendered to them, and allowed themselves to be
guided in preference by some eccentric principles of socialistic philanthropy, or by a
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feminist ambition to secure the equality of the sexes in the matter of wages in the world
of labour.
(Per Lord Atkinson at 594. Emphasis added).
“Socialistic philanthropy” and “feminist ambition” – being irrelevant considerations –

rendered the decision concerning the minimum wage unlawful.
As Elliott & Varuhas observe, Roberts demonstrates that “the doctrine of relevancy allows
potentially extensive judicial intervention in the administrative process, permitting the policy
preferences of the decision-maker to be swept away if the matters upon which they are
founded can be characterised by the court as irrelevant” (p 254). Indeed, Lord Atkinson was
express in his disagreement with the council’s attempts at progressiveness, which he described
as “[t]he vanity of appearing as model employers of labour” (at 591). Indeed, Lord Atkinson
went so far as to describe the council as being “such ardent feminists as to bring about, at the
expense of the ratepayers whose money they administered, sex equality in the labour market”
(at 591-2). As Elliott & Varuhas further observe, “it might be said that their Lordships, by
emphasising that economic considerations were proper and important considerations, were
themselves favouring a free market political ideology” (p 254).
Bromley London Borough Council v Greater London Council [1983] 1 AC 768 concerned a
purported increase in rates to cover reduced public transport fees. The Labour Party’s
manifesto for an election to the Greater London Council promised the following in respect of
transport fares:
Within six months of winning the election, Labour will cut fares on London Transport
buses and tubes by an average of 25 per cent. At the same time a much simpler system
of fares will be introduced, one which will be easy to understand, will allow faster
boarding and will ease the burden on transport workers. There will then be a freeze on
fares for four years. The existing system of free travel for senior citizens on London's
buses will be extended to the tubes and British Rail services within London
When Labour won the election, it required the transport authorities to cut fares by 25%. The
financial consequences for the Greater London Council were significant: on the one hand, it
would lose its “block grant” from central government. On the other hand, it would have to
finance the reduction in transport fares. Ratepayers in the Greater London area would end up
footing the bill.
All members of the House of Lords agreed that the local authority owed a fiduciary duty to its
ratepayers. Here, the duty had been breached. See similarly Prescott v Birmingham
Corporation [1955] Ch. 210, where imposing on ratepayers the burden of paying for free
travel for elderly persons was a breach of the local authority’s fiduciary duty to ratepayers.
See, also, the duty to administer public funds according to what was just and reasonable
remuneration for the services rendered to them found by the House of Lords in Roberts v
Hopwood [1925] AC 578 (discussed above).
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Also of central importance was the construction of the Transport (London) Act 1969. The
majority of the House of Lords read the relevant statutory provisions as imposing an
obligation on the Greater London Council to run its transport services on business principles.
Although there was some flexibility, the Greater London Council did not “have power totally
to disregard any responsibility for ensuring, so far as practicable, that outgoings are met by
revenue, and that the London Transport Executive runs its business on economic lines” (at
819).
The fact that the Labour Party had won the election based on a manifesto containing a clear
commitment to reduce transport fares was not decisive. While the election manifesto would be
a factor entitled to “considerable weight” in the exercise of discretionary powers, councillors
should never “treat themselves as irrevocably bound to carry out pre-announced policies
contained in election manifestos even though, by that time, changes of circumstances have
occurred that were unforeseen when those policies were announced and would add
significantly to the disadvantages that would result from carrying them out” (at 829, per Lord
Diplock).
b) Political expediency
Padfield has been discussed at length above. Recall that the Minister based his refusal to refer
the complaint to a committee of investigation on the fact that it involved “wide issues” and
because, if the committee decided that the differential should be changed, that would put the
Minister in a politically embarrassing situation. Such concerns were, however, not based on
the language or spirit of the legislation and were, thus, irrelevant.
In Venables [1998] AC 407, the Home Secretary took the view that the defendants should
serve at least 15 years in prison and that their first parole review should take place only after
they had served 12 years in prison. That conclusion was based on the public concern about the
case; there had been a sustained press campaign to keep the offenders in prison for the rest of
their lives. This was an irrelevant consideration. But the House of Lords also accepted that the
Minister could lawfully have regard to, for instance, the need to respond to public anxiety
about the prevalence of particular types of crime.
Venables can be contrasted with R (Corner House Research) v Director of the Serious Fraud
Office [2009] 1 AC 756 (discussed above), where the Director of the Serious Fraud Office
discontinued a criminal investigation. The Director’s discretion was “conferred in very broad
and unprescriptive terms” (at [31]). For the Divisional Court, the Director had given in to a
threat that subverted the integrity of the British legal system. The House of Lords, however,
“doubted whether a responsible decision-maker could, on the facts before the Director, have
decided otherwise” (at [42], per Lord Bingham of Cornhill). “Public interest”, while incapable
of precise definition, “meant something of importance to the public as a whole rather than just
to a private individual [and] [t]he withdrawal of Saudi security co-operation would indeed
have consequences of importance for the public as a whole” (at [53], per Baroness Hale).
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c) Scarce resources
R v Gloucestershire County Council, ex parte Barry [1997] AC 584 (discussed above),

concerned the obligation on the local authority to make necessary arrangements for a person’s
needs under s 2(1) of the Chronically Sick and Disabled Persons Act 1970. In challenging the
reduction in the provision of assistance, the applicant pointed to s. 2(1) of the Act, which
referred to “needs” which, in his view, were objectively ascertainable and independent of the
resources available to his local authority. By majority, the House of Lords rejected the
applicant’s arguments.
 It was significant for Lord Clyde that the local authority’s duty arose only in respect of
needs that it was “necessary” to meet: “If my resources are limited I have to need the
thing very much before I am satisfied that it is necessary to purchase it” (at 610-11).
 Cost could not be excluded altogether: “Once it is accepted, as surely must be right,
that cost is a relevant factor in assessing a person's needs for the services listed in
section 2(1), then in deciding how much weight is to be attached to cost, some
evaluation or assumption has to be made about the impact which the cost will have
upon the authority” (at 605, per Lord Nicholls of Birkenhead).
 Especially given the “range of…facilities…listed” was “so extensive as to make it
unlikely that Parliament intended that they might all be provided regardless of the cost
involved” (at 611, per Lord Clyde).
As outlined above. the opposite conclusion was reached in R v East Sussex County
Council, ex parte Tandy [1998] AC 714, where the applicant was entitled to receive
“suitable education” under s. 298 of the Education Act 1993. On this occasion, the House
of Lords was unanimous that cost was an irrelevant consideration:
 Education was the sole criterion: “All these express factors relate to educational
considerations and nothing else…Moreover, there are other provisions in the Act
which do refer expressly to the efficient use of resources…” (at 746, per Lord
Browne-Wilkinson)
 The statutory provision in Barry “was a strange one” (at 748), including some
unusual benefits that could not be thought to be needs in any normal sense, such
that it was “not surprising” that a majority of the House of Lords had, in Barry,
sought “other more stringent criteria” (at 748).
Also relevant is R (Rogers) v Swindon NHS Primary Care Trust [2006] 1 WLR 2649. The
challenge here was to the refusal to provide funding for an unapproved drug (Herceptin) to
treat the applicant’s breast cancer. Interestingly, the public body decided to treat cost as an
irrelevant consideration, adopting instead a policy of providing funding only to patients in
exceptional circumstances. Its decision not to fund the applicant’s treatment was struck down:
 Legitimate clinical needs had to be the dominant consideration once cost had been
ruled out;
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 And once cost was excluded, there was no justification for treating patients differently,
because “the evidence [did] not establish the possibility of there being relevant clinical
circumstances relating to one patient and not another…” (at [82]).
Of these cases Professor Craig has written:
Where the statute is construed as imposing a specific duty for the benefit of particular
individuals the court will be considerably less willing to listen to arguments
concerning limited resources, but there can be significant differences of view by judges
in the same case as to whether the statute can be regarded as imposing duties and the
precise content of such obligations
(Administrative Law, 7th ed. (Sweet and Maxwell, London, 2012), at p 574).
See also R (HSE) v Wolverhampton City Council [2012] 4 All ER 429 which concerned
planning permission granted to develop student accommodation that would be in close
proximity to a liquefied petroleum gas (LPG) facility. As a result of this proximity, the Health
and Safety Executive (the HSE) a statutory non-departmental public body, established under
the Health and Safety at Work etc Act 1974, advised against the grant of planning permission.
Nevertheless, the authority granted the application for planning permission in August 2008.
The HSE sought an order revoking approval by the authority. That was refused and the HSE
sough judicial review of the decision to grant approval and of the refusal to revoke it. If the
revocation order had been granted, compensation would have been payable. The HSE argued
that financial considerations (including, for instance, the payment of compensation) were not
relevant considerations. The Supreme Court disagreed: “[Section] 97 [of the Town and
Country Planning Act 1990 which conferred power to revoke or modify planning permission]
creates a specific statutory power to buy back a permission previously granted [as sought by
the HSE]. Cost, or value for money, is naturally relevant to the purchaser's consideration” (at
[51]). Further “[a] decision to act under s 97 must be motivated by planning considerations,
and directed to a planning objective. But the converse does not follow. Inaction is also an
option. In exercising its choice not to act under s 97, or in choosing between that and other
means of achieving its planning objective, the authority is to be guided by what is 'expedient'.
No principle of consistency requires that process to be confined to planning considerations, or
to exclude cost” (at [52]).
d) Constitutional fundamentals
“Powers, however extraordinary, which are conferred or sanctioned by statute, are never really
unlimited, for they are confined by the words of the Act itself, and, what is more, by the
interpretation put upon the statute by the judges....” (Dicey, Introduction to the Study of the
Law of the Constitution, at p 413).
Recall Congreve v Home Office [1976] QB 629 which concerned a proposed increase in the
television licence fee from £12 to £18. Under s 1(4) of the Wireless Telegraphy Act 1949, a
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licence could be revoked by notice in writing. Phillips J, at first instance, saw nothing
objectionable in leaving “a number of choices open” to persons in the situation of the plaintiff
including, for instance, paying the £6 difference or having his licence revoked (at 641). But
this was reversed on appeal:
 Lord Denning MR treated s1(4) as “a very special kind of power”: “It invades a man in
the privacy of his home, and it does so solely for financial reasons so as to enable the
Minister to collect money for the revenue” (at 649). Here, the Minister had no reasons
related to the statute to revoke the licenses.
 For Roskill LJ, the plaintiff had been issued with a valid licence; that was the end of
the matter.
 Geoffrey Lane LJ offered two reasons for considering the exercise of the s 1(4) power
to be ultra vires: “First, it is coupled with an illegal demand which taints the
revocation and makes that illegal too. Secondly, or possibly putting the same matter in
a different way, 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 662).
Browne-Wilkinson LJ’s dissenting judgment in Wheeler v Leicester City Council [1985] AC

1054 (upheld on different grounds by the House of Lords) is also of interest. A number of
players at Leicester Football Club (a rugby club) toured with the England national team in
apartheid South Africa. As a consequence, the Council banned the club from using a
recreational facility for a period of 12 months. In the period between the players being
selected to tour and going on the tour, the Council had exerted pressure on the club, but the
club went no further than to appeal to the individual consciences of the players involved.
Browne-Wilkinson LJ saw the case as raising a conflict between two fundamental principles:
“on one hand, the right of a democratically elected body to conduct their affairs in accordance
with their own views and, on the other, the right to freedom of speech and conscience enjoyed
by each individual in a democratic society” (at 1061). For him, “the club was punished for its
failure to speak and act in the particular way required by the council” (at 1063). This was
unlawful, because the Council had based its decision on legally irrelevant factors:
[W]hen Parliament confers general discretionary powers on public authorities it cannot

in general be taken to have contemplated that such discretions can be exercised by
taking into account the lawful views of those affected by the exercise of the discretions
or their willingness to express certain views. If in exercising such discretions these
factors have been taken into account, the exercise of the discretion is unlawful since a
legally irrelevant factor has been taken into account. There are however exceptional
cases where the views held or expressed by the individual are directly relevant to the
purpose for which the power has been conferred. For example, in exercising a power to
appoint a director of religious education the religious views of the applicants must
obviously be relevant. But in relation to public open spaces, the views of those using
such spaces have nothing to do with the use of the land (at 1065. See, also, R v
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Barnsley MBC, ex parte Hook [1976] 1 WLR 1052 (right to trade in a marketplace left
open to the public)).
3. CONSEQUENCES OF RELEVANCY AND PROPRIETY
3.1 QUESTIONS OF PROOF
In terms of propriety, Lord Denning MR neatly set out the basic principle in R v Governor of
Brixton Prison, ex parte Soblen [1963] 2 QB 243, at p. 302: “If it was done for an authorised
purpose, it was lawful. If it was done professedly for an authorised purpose, but in fact for a
different purpose with an ulterior object, it was unlawful…”.
The burden of proof is on the applicant: see e.g. Padfield [1968] AC 997, at 1045.
This will always be an objective question, assessed on the basis of correctness:
[It is] a matter for the courts and not for the Secretary of State to determine whether,
on the evidence before the court, the particular conduct was, or was not, within the
statutory purpose” (R v Secretary of State for Foreign and Commonwealth Affairs, ex
parte World Development Movement Ltd [1995] 1 WLR 386, at 401, per Rose LJ).
The same applies to distilling the relevance of a consideration (Tesco Stores Ltd v Secretary of
State for the Environment [1995] 1 WLR at 343).
There is, however, debate as to whether deference should be shown by the courts towards
decision-makers’ interpretation of statutes in the context of relevant considerations and
purposes (see, in particular, Wilberg, ‘Deference on Relevance and Purpose? Wrestling with
the Law/Discretion Divide’ in Wilberg and Elliott (eds), The Scope and Intensity of
Substantive Review: Traversing Taggart’s Rainbow (Hart: 2015), ch 11).
Nonetheless, given the constraints of the judicial review procedure – which is a paper hearing
rather than a viva voce trial of the issues – it may be difficult to prove on the balance of
probabilities that irrelevant considerations were taken into account or powers used for
improper purposes (see, e.g, CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 and
especially Cooke J’s observation at 200 that an inference that ministers did not direct their
minds to relevant considerations “should not lightly be drawn”). See also the recent decision
of the UK Supreme Court in R (Bancoult) v. Foreign and Commonwealth Secretary (No. 3)
[2018] 1 WLR 973, where departmental officials were cross-examined on the contents of a
leaked diplomatic cable.
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Nevertheless, recall that the court will go “behind the face of the [challenged] order in order
to see whether the powers entrusted by Parliament have been exercised lawfully or no” (R v
Governor of Brixton Prison; Ex parte Soblen [1963] 2 QB 243).
3.2 MATERIALITY
It will “normally” be the case that taking an irrelevant consideration into account would justify
judicial intervention, but there is a basic requirement of materiality: the illegality must have
had an effect on the final decision.
“I say "normally" because I can conceive that there may be cases where the factor
wrongly taken into account, or omitted, is insignificant, or where the wrong taking into
account, or omission, actually operated in favour of the person who later claims to be
aggrieved by the decision”
(Hanks v Minister of Housing and Local Government [1963] 1 QB 999, at 1020, per
Megaw J. See also R v Broadcasting Complaints Commission, ex parte Owen [1985]
QB 1153, at 1177, per May LJ)
If the influence of irrelevant factors is established, it does not appear to be necessary to prove
that they were the sole or even the dominant influence; it seems to be enough to prove that
their influence was substantial (R v Rochdale Metropolitan Borough Council, ex parte
Cromer Ring Mill [1982] 3 All ER 761, at 770, per Forbes J, emphasis added).
Where a decision-maker has taken a legally irrelevant factor into account when making his
decision, the normal principle is that the decision is liable to be held to be invalid unless the
factor played no significant part in the decision-making exercise (R (FDA) v Work and
Pensions Secretary [2013] 1 WLR 444, at [67], per Lord Neuberger MR).
However, this is subject to an important limitation:
Even where the irrelevant factor played a significant or substantial part in the decision-
maker's thinking, the decision may, exceptionally, still be upheld, provided that the
court is satisfied that it is clear that, even without the irrelevant factor, the decision-
maker would have reached the same conclusion…
There is, in theory at least, a possibility that, even if the court concludes that it ought
otherwise to set aside a decision on the ground that a legally irrelevant factor was taken
into account, it can nonetheless uphold the decision, if it is satisfied that it would be
pointless to require the decision-maker to reconsider the question afresh, because he
would reach the same answer.
(R (FDA) v Work and Pensions Secretary [2013] 1 WLR 444, at [68]-[69], per Lord
Neuberger MR).
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Likewise, in in the Simplex case 57 P & CR 306, 326, Purchas LJ approved the following
passage in the judgment of May LJ in R v Broadcasting Complaints Commission; Ex parte
Owen [1985] QB 1153, 1177:
Where the reasons given by a statutory body for taking … a particular course of action
are not mixed and can clearly be disentangled, but where the court is quite satisfied
that even though one reason may be bad in law, nevertheless the statutory body would
have reached precisely the same decision on the other valid reasons, then this court
will not interfere by way of judicial review.
Similarly, in R (Smith) v North Eastern Derbyshire Primary Care Trust [2006] 1 WLR 3315
(a different) May LJ said this (at [10]:
Probability is not enough. The defendant would have to show that the decision would
inevitably have been the same and the court must not unconsciously stray from its
proper province of reviewing the propriety of the decision making process into the
forbidden territory of evaluating the substantial merits of the decision. (Emphasis
added.)
So, how certain does the court have to be that the same decision would have been made even
if the irrelevant consideration had not been taken into account? “It must be proven that it was
‘inevitable’ that the same decision would have resulted, and the defendant bears the burden of
convincing the court” (Elliott & Varuhas, p 259, citing FDA (see, also, Smith extracted
immediately above)). This is a “high hurdle”, though s 31(2A) of the Senior Courts Act 1981
mandates that the High Court “must refuse to grant relief on an application for judicial
review” where “it appears to the court to be highly likely that the outcome for the applicant
would not have been substantially different if the conduct complained of had not occurred”.
“Highly likely” is, at least ostensibly, a lower threshold than “inevitable”, but both are
undoubtedly high standards.
The Court of Appeal in R (Balajigari) v Secretary of State for the Home Department and Ors
[2019] 4 All ER 998 described s 31(2A) in the following terms:
[137] Section 31 (2A) is a provision which attracted some controversy at the

time of its enactment. It was evidently intended to modify, at least to
some extent and at least in some circumstances, the common law test of
materiality, and specifically the threshold of “inevitability”. Some
aspects of its effect were considered in R (Goring-on-Thames Parish
Council) v South Oxfordshire District Council [2018] 1 WLR 5161; but
we are not aware of any discussion in the authorities of the extent of the
change effected by it…
[141] … Even if there will in theory be cases where a “highly likely” test
would produce a different result from an “inevitable” test, neither is
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truly hard-edged, and there might be thought to be room for a flexible

approach depending on the nature of the unlawfulness alleged…
3.3 A THIRD CATEGORY OF CONSIDERATIONS?
There is debate as to whether, in the context of judicial review on the basis of relevancy, there
are only two alternatives: relevant and irrelevant considerations, or is there scope for a third,
middle, category of factors that the decision-maker may take into account but is not obliged to
do so?
According to Irvine, the Wednesbury approach (discussed in the next handout) which provides
that a decision may be set aside only if it is so unreasonable that no reasonable authority
would have reached it, ought to also apply to the determination of what considerations are
relevant:
The Wednesbury principle of relevance is premised upon the view that the decision-
maker is in the best position … to determine the range of factors which bear upon his
decision. The statute may expressly, or by necessary implication, provide that some
factors must, and some must not be considered, but there is a margin of appreciation
within which the decision-maker may decide for himself which considerations should
play a part in his reasoning process. Thus, there are three categories of consideration:
those that must, those that must not and those that may, in the decision-maker’s
discretion, be taken into account. An important part of Wednesbury [theory] is the
recognition of this free area of optional considerations.
(Irvine [1996] PL 59 at 67. Underlined emphasis added).
Elliott & Varuhas list a number of judicial examples in which the third category is recognised
(see, pp 255-256). Thus, in Corner House Research (concerning the decision not to continue
with the criminal investigation in light of the potential threat to life), Lord Bingham opined
that a “discretionary decision is not … vitiated by a failure to take into account a consideration
which the decision-maker is not obliged by the law or the facts to take into account, even if he
may properly do so” (at [40]).
There are, however, difficulties with such a “free area”, in particular delineating it and
distinguishing it from relevant and irrelevant considerations which can vitiate a discretionary
decision. In AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, Lord Reed
considered that the scope of the “third” category of considerations should be determined by
reference to, inter alia, the nature of the decision-making power conferred. Thus, if a public
authority’s powers “are so widely drawn that it is in principle free to decide for itself what
considerations are relevant to its decision-making, the courts cannot then review its decisions
as having been based on irrelevant considerations or as having failed to have regard to relevant
considerations, except to the limited extent to which any constraints on its freedom might be
implied, for example in order to protect fundamental rights or the rule of law” (at [143]).
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Do you agree with Lord Reed that, absent implied limitations on the basis of legality, a
widely-drawn power should give the decision-maker unimpeachable scope to decide what
facts are relevant? Why/why not?
3.4 CONSIDERATIONS AND THEIR WEIGHT? A TWO-STAGE

EXERCISE
Recalling the distinction between judicial review and an appeal on the merits, it is perhaps
unsurprising that traditionally, a distinction has been drawn between failing to take account of
an (obligatory) relevant consideration and the weight to be attributed to it. The former is the
proper fodder of a court on judicial review of the decision, but is the latter?
In Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, Lord
Hoffman held (at [780]):
The law has always made a clear distinction between the question of whether
something is a material consideration and the weight which it should be given. The
former is a question of law and the latter is a question of … judgment, which is
entirely a matter for the [decision-making] authority. Provided that the [decision-
making] authority has regard to all material considerations, it is at liberty (provided
that it does not lapse into Wednesbury irrationality) to give them whatever weight the
[decision-maker] thinks fit or no weight at all. The fact that the law regards something
as a material consideration therefore involves no view about the part, if any, which it
should play in the decision-making process.
While this represents the “longstanding orthodoxy”, R (FDA) suggested an alternative. The
case concerned a change in the basis of the annual indexation of certain benefits, state
pensions and public service pensions required by s 150 of the Social Security Administration
Act 1992 from the RPI to the CPI which led to a lower uprating than would have occurred via
the RPI. The decision was subject to judicial review, with one of the grounds being that the
Minister had unlawfully taken into account the state of the national economy in preferring the
measure which would produce less of an impact on public funds. The Court of Appeal held
that in selecting the RPI as the index for the uptake calculation, the Secretary of State was not
precluded from taking into account the national economic situation. However, the Court went
on to qualify this ruling, giving “detailed, prescriptive guidance as to the way in which this
consideration could be factored into the decision process and the weight it should be afforded”
(Elliott & Varuhas, p 258. Emphasis in original):
[62] I do not consider that the Secretary of State could opt for an index which was
clearly less good, and more detrimental to the recipients of pensions, than
another index, simply because the former index was beneficial to the national
exchequer. Indeed, if the Secretary of State thought that one index was
significantly less reliable or less accurate than another, I find it very hard to
conceive of any circumstances where he could select the former index merely
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because he thought it was just about acceptable for the estimating exercise
required by section 150(1).
[63] While I am not seeking to lay down a firm standard, it seems to me that, before
the Secretary of State could invoke the benefit to the national exchequer by
selecting an index he considered less good, three requirements would normally
have to be met. Those requirements are (i) there would, in the Secretary of
State’s view have to be little to choose between the indices in terms of
reliability and aptness, (ii) the benefit to the national exchequer of choosing the
less good index would have to be significant, and (iii) the need to benefit the
national exchequer, in terms of the national economy and demands on the
public purse, would have to be clear.
[64] In other words, the Secretary of State could only select the less good index if it
was proportionate to do so, and, bearing in mind the purpose of the up-rating
exercise, the circumstances would normally have to be unusual before it could
be proportionate to select an index, or other method, which the Secretary of
State considered was less good than another.
As Elliott and Varuhas observe, this line of reasoning is “a long way from Lord Hoffmann’s
approach in Tesco” and the decision in FDA is “particularly striking given that the discretion
at issue was an exceptionally wide one which, as Lord Reed’s reasoning in AXA suggests,
ought to point against such an intensive approach (p 258).
3.5 CONSEQUENCES OF FINDINGS ON RELEVANCY AND

PROPRIETY
A finding that the dominant purpose of a decision was improper will, “[i]n general … result in
the impugned decision being invalidated” (Elliott & Varuhas, p 260. See, for instance, the
Pergau Dam case). Given that propriety goes to the reasons why Parliament has conferred
power, it is understandable that decisions that are contrary to Parliament’s intention are
invalidated. That said, findings as to Parliament’s intention are not without controversy (see,
again, the Pergau Dam case).
In contrast, as discussed above, a finding that a decision-maker took into account an irrelevant
consideration does not inexorably result in the decision being invalidated. If the factor did not
play a significant part in the decision-making exercise, the decision will not be invalidated.
However, even if the irrelevant factor did play a significant role, the decision may not be
invalidated if the court can be satisfied that the same decision would have been reached
without regard being had to the irrelevant consideration. The threshold of proof is, however,
high. Prior to the introduction of s 31(2A)-(2C) to the Senior Courts Act 1981, it must have
been “inevitable” that the same decision would have been reached without the influence of the
irrelevant factor (R (Smith) v North Eastern Derbyshire Primary Care Trust [2006] 1 WLR
3315). Under s 31(1A), it must be “highly likely” that the same decision would have been
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reached. There is no reference in the Explanatory Memorandum accompanying the

amendments inserting s 31(2A)-(2C) into the Senior Courts Act 1981 to the use of “highly
likely” in lieu of “inevitable.” Following the recent decision of R (Balajigari) v Secretary of
State for the Home Department and Ors [2019] 4 All ER 998, there is yet to be judicial
clarification of the difference, if any, between the “highly likely” threshold in s 31(2A) and the
“inevitability” threshold articulated in cases such as Smith. The onus is on the decision-maker
to prove that it is “highly likely” that the same decision would have been reached. In the
absence of such evidence, the court is likely to quash the decision (see, for instance, R (LH) v
Secretary of State for the Home Department [2019] EWHC 3457 (Admin) at [43]-[44]).
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Abuse of Discretion I Relevance and Propriety

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S S MARTIN

Administrative Law – Lent Term 2020

The following is, however, essential:

Nevertheless, decision-makers retain a considerable degree of autonomy in deciding the

a) Distilling a statute’s purpose(s)

In considering the appeal, Lord Denning observed that (at 708):

imposed by the subsection, namely, in the present circumstances, for promoting

According to Elliott & Varuhas (p 241) the decision of Rose LJ to:

I am unable to accept Mr. Richards's submission that it is the Secretary of State's

c) The role of the Human Rights Act 1998, s 3

By ensuring that decision-makers exercise their discretion according to a statute’s purposes,

Lord Millett in his dissenting judgment in Ghaidan v Godin-Mendoza [2004] UKHL 3

It was undisputed that the statutory purposes of s 64(1A) were to:

Lord Rodger, in dissent, held that:

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

This, in turn, led to the conclusion that:

Per Lord Reid (at 1029):

(‘Judicial review in a changing society’)

b. In contrast, in R v East Sussex County Council; Ex parte Tandy [1998] AC 714,

“irrationally excluded material and potentially decisive considerations that the

2.2 Applications of the relevancy doctrine

(Per Lord Atkinson at 594. Emphasis added).

“Socialistic philanthropy” and “feminist ambition” – being irrelevant considerations –

R v Gloucestershire County Council, ex parte Barry [1997] AC 584 (discussed above),

Of these cases Professor Craig has written:

Browne-Wilkinson LJ’s dissenting judgment in Wheeler v Leicester City Council [1985] AC

[W]hen Parliament confers general discretionary powers on public authorities it cannot

3. CONSEQUENCES OF RELEVANCY AND PROPRIETY

3.1 QUESTIONS OF PROOF

This will always be an objective question, assessed on the basis of correctness:

However, this is subject to an important limitation:

[137] Section 31 (2A) is a provision which attracted some controversy at the

truly hard-edged, and there might be thought to be room for a flexible

3.3 A THIRD CATEGORY OF CONSIDERATIONS?

(Irvine [1996] PL 59 at 67. Underlined emphasis added).

3.4 CONSIDERATIONS AND THEIR WEIGHT? A TWO-STAGE

3.5 CONSEQUENCES OF FINDINGS ON RELEVANCY AND

reached. There is no reference in the Explanatory Memorandum accompanying the

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