Administrative Law

Tutorial 2: Legality

Submission of essay plan  [Link]@[Link]

Question 1:
“It is a cardinal principle of administrative law that broad statutory powers
are to be construed with the implied limitation that they are to be
exercised only for the purposes for which they
are given…  cardinal theory on what ultra vires is In order to be within
the scope of the statutory grant, it is presumed that such powers must be
exercised fairly (procedural proprietary) and rationally (irrationality) …”

how to reconcile broad review grounds with statute?

Does not mean legal basis but jurisdictional basis

(See QT v Director of Immigration (2018) 21 HKCFAR 324, [20]-[21])

On what basis can the courts enforce these limitations on the exercise of
statutory powers, even when the statute is on the face of it silent on
them?

Crude summary of admin law by Lord Diplock ““Judicial review has I think
developed to a stage today when … one can conveniently classify under
three heads the grounds upon which administrative action is subject to
control by judicial review. The first ground I would call ‘illegality’, the
second ‘irrationality’ and the third ‘procedural impropriety’. That is not to
say that further development on a case by case basis may not in the
course of time add further grounds…”

Illegality
- Interpreting statutory powers in the wrong way

Rule of Law/Common Law basis

- When statute silent on further conditions to be added on language
statue  as long as court does not infer upon statue a meaning
contrary to statue that would be alright

Ouster clause
- Availability of judicial review is outstared by ordinance  when
clearly written out  court will need to confide with that and cannot
jr the decision
- Cf common law where jr is prima facie avail  how to reconcile?

Ultra vires
 - The way admin law controls bodies with statutory power is to derive
gov from acting out of their expressly granted powers unless there
are implicit restrictions on such power
- Grounds of review > legislative intent
- Problem  court is asked to presume too much
- Argument against: Ultra vires is a fig leaf covering the fact that
courts are making decisions while acting as the parliament 
disguised as following the parliament when in fact is acting as the
parliament and making unbacked presumptions on legislative intent
etc
- Argument for: It is not to deny that the court is hiding something,
but it is just to maintain decency

Rule of Law: gov should be conducted within framework of recognized

rules and principles which restrict discretionary power

Ultra vires doctrine

- When silent  implied limitation in statutes by ascertaining
intention of legislature, unless legislature clearly indicates otherwise
- Modified version: unless indicated otherwise, legislature presumed
to intend that decision-makers must apply principles of good
administration drawn from common law as developed by
judgements in making their decisions

Common Law doctrine

- Does not merely ascertain whether act done within express words of
statute
- Would strike down act if breaches fairness, reasonableness or run
counter to the policy and object of statute as developed by judges

Principles of Lawful Administration

- Legality, procedural propriety, and rationality etc
- Review public functions of modern administration and not depend
on limited notion of jurisdiction or vires in its narrow sense

Question 2:
“[T]he law requires, and the legislature must have intended, that the
[decision-maker] would take into consideration relevant matters, and
ignore irrelevant matters”: see C v Director of Immigration (2013) 16
HKCFAR 280, [22].

But even if the applicant demonstrates that the decision-maker has

considered an irrelevant consideration – or has failed to consider a
relevant consideration – the court will not interfere if a certain condition is
met.
What is this condition? And is the existence of this condition justified?

Categories of considerations
1. clearly identified by the statute as considerations which regard must
be had  relevant
2. clearly identified by the statute as considerations which regards
must not be had  irrelevant
3. those to which the decision-maker may have regard if in his
judgement and discretion thinks it is right to do so  decided by
decision-maker himself

BH v Director of Immigration
- 3rd category is wednesbury review

Key Factor: Materiality (R (on the application of FDA and others) v

Secretary of State for Work and Pensions and another) (Capital Rich [77])
- 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.
- a decision would not be set aside where the irrelevant factor was
'insignificant or insubstantial', as opposed to a case where the
irrelevant factor's 'influence was substantial
- 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
o '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
- 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 none the less 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

the court rarely considers academic matters/arguments

issues where court is not invited to decide on  hence applying here court
will not decide on matters that would not make a difference at all
In JR court highly reluctant to consider things preemptive in nature as that
decision has not been materialized  court not interested in doing
something futile

Rule of law: jr is for the sake of preserving principles of rol

- even if decision outcome would be the same  we still need to see
if the process complies with rol

if decision maker fails to follow relevancy  decision would be contrary to

legislative intent and hence illegal

forces court to consider hypothetical matters  would decision be the

same with or without the considerations  but it may be very difficult for
the court to consider counter-factual as it would be mere imagination  is
it legitimate for the court to take up this imaginative task?

Protect integrity of decision making process  every decision made has to

be made according to the law

Question 3:
The facts are entirely hypothetical. For current purposes, ignore all other
statutory regimes that apply to amusement parks in Hong Kong.

The Amusement Parks Ordinance provides as follows:

“Long Title: The Ordinance aims to provide for the regulation of

amusement parks in Hong Kong, with a view to guaranteeing the quality
of the amenities and entertainment provided to citizens and tourists
therein.

Section 1: There shall be established a Board of Amusement Parks, which

is responsible for administering this Ordinance.

Section 2: For the purposes of this Ordinance, an amusement park means

an area that has been instituted and fitted with facilities, with a primary
purpose of providing amenities and entertainment to citizens and tourists
entering therein at a fee.

Section 3: A person who operates without a licence under section 4(2) of

this Ordinance an amusement park in Hong Kong commits an offence and
shall be liable upon conviction to imprisonment for 15 years.

Section 4:
(1)A person who intends to operate an amusement park in Hong Kong
may apply to the Board of Amusement Parks for a licence to operate
an amusement park in Hong Kong in accordance with section 5.
(2)The Board of Amusement Parks may, upon receiving such an
application and if it thinks fit, grant such a licence to an applicant
under section 4(1).
Section 5: An application made under section 4(1) must be accompanied
by the following information:
…
(k) A projected budgetary plan for the first 10 years of the
amusement park’s intended operation.”

Jonathan is the headmaster of the Hong Kong College of Zoology. The

College is a well-funded institution that specialises in zoology and
occupies a large area of land in Lantau Island. Being ambitious, Jonathan
is hoping to expand its source of income beyond the typical funding of a
research institution (e.g. grants and student fees): he decided to open up
an area of the College for visitors at a fee (hereinafter ‘the Plan’). This
area contain a large stretch of greenery within the College site; it also
contains a herd of deer that has been bred there for the past few decades,
and which has been so kept there for the College’s research purposes.

When he formalised the Plan, Jonathan sought legal advice and was
advised that he might have to obtain a licence under section 4(2) of the
Amusement Parks Ordinance before implementing the plan. Jonathan was
sceptical, but he wrote nonetheless to the Board of Amusement Parks to
make an inquiry. The Board replied as follows:

“Thank you for the inquiry. We can confirm that you will have to
apply to us for a licence under the Ordinance, because under your
plan you will be looking to attract visitors at a fee.”

Error of law: whether the plan fell within the amusement park ordinance
regime
- Statutory interpretation: an amusement park means an area that
has been instituted and fitted with facilities, with a primary purpose
of providing amenities and entertainment to citizens and tourists
entering therein at a fee
- Made an error of law in interpreting the statue
- Error of law requires us to consider statutory interpretation  write
in exam: we apply a purposive approach where language of the
statute is to be read in light of its context and purpose (Ho v
Housing authority) (secretary of home department)  go to long
title which defines to purpose of the statute and the text itself
- ‘Facility’  very context specific
- Long title & s2: primary purpose for entertainment

Upon this reply Jonathan decided to make an application to the Board

under section 4(1). Five months later, the Board wrote back to Jonathan:

“Thank you for your application. Regrettably we are unable to grant

you the licence sought under your application. We say so for two
main reasons.
 First, we are concerned that your Plan will disrupt the greenery and
the deer herd currently placed within the site of the Hong Kong
College of Zoology. This is of course a matter of significance, and is
in line with the current government initiative towards animal and
environmental protection. In the lack of evidence provided to us
with your application that this concern has been sufficiently
mitigated, we do not consider it fitting that you can operate an
amusement park within this area.

Relevancy: The board took into account irrelevant factors of animal and
environmental protection
- Board has wide discretion as per s4(2)
- Friends of the earth: need to go back to the ordinance
- Not explicitly mentioned in statute  3rd category
- Step 1: whether consideration so obviously material that it must be
taken into account?  Wednesbury unreasonable to take into
account the factor?  assuming yes
o Greenery and deer herd part of ‘amenities and entertainment’
 would be affected  board has duty to protect them as in
s2
o Quality of the amusement park may be affected
o A bit to relevant side
- Step 2: Is it a material or substantial factor to making of the
decision? (only say this if you think it is an irrelevant factor)
o Seems yes as it was the main ground on which the rejection
was based

Second, you have omitted to provide us with a projected budgetary

plan required under section 5(k) of the Ordinance. Accordingly, you
have not made an application in accordance with section 5. Section
4(2) means that in such a case, your application is not eligible for
our consideration.”

Error of Fact: whether the finding of the absence of budgetary plan is valid
- Unsupported factual conclusion
- E v Secretary
1. there must have been a mistake as to an existing fact,
including a mistake as to the availability of evidence on a
particular matter  yes
2. the fact or evidence must have been "established", in the
sense that it was uncontentious and objectively verifiable 
yes
 nothing to do with value judgement
 3. the appellant (or his advisers) must not been have been
responsible for the mistake  yes
4. the mistake must have played a material (not necessarily
decisive) part in the tribunal's reasoning  yes

Re McAleenon: irrationality: whether the finding of fact (absence of plan)

is irrational in wednesbury sense

Croydon: jurisdictional fact

- factual prerequisite for certain statutory powers to be exercised
- court would step in for jurisdictional fact
- meant to do with something black and white
- apply: without plan  automatic rejection  plan is prerequisite of
whole licence application and the finding of the absence of plan is a
jurisdictional fact

Jonathan feels aggrieved about the decision. Nothing in the legislation

contained any express mention of animal and environmental protection,
and he felt that the Board’s focus on this was misplaced. He also was able
to confirm that a projected budgetary plan for the first 10 years of the
Plan’s intended operation was contained in the application.

Advise Jonathan.

EXAM: argue on BOTH SIDES  consider arguments from both sides or

marks will be deducted
tell marker what are the more facts required

Tameside duty
- if public body makes an assertion e.g. environmental impact of the
park
- board has to make sufficient enquiry prior to that assertion to
ensure that it is not making that assertion unreasonably in the
Wednesbury sense
-