chapter  12
18 Pages

GROUNDS OF JUDICIAL REVIEW I: ILLEGALITY

12.1 Introduction

As we saw in the last chapter, the basic idea behind the ground of review called ‘illegality’ is very simple: a public authority must act within the ‘four corners’ of its powers or jurisdiction. It is the ground of review which most closely reflects the preoccupations of the traditional ultra vires view of judicial review, with its concentration upon ensuring that the exercise of power is confined within the limits prescribed by the empowering legislation or rules. Let us take a fictitious scenario, which we can follow throughout the chapter: (a) Parliament decides to pass legislation to control local markets. It enacts a

statute called the ‘Market Stallholders (Control) Act 1998’. This Act provides that it is unlawful for anyone to trade from a market stall without a licence. The Act sets up a authority called the ‘Market Traders Licensing Board’ (MTLB) to issue licences;

(b) s 2 provides ‘the MTLB shall have the power to issue or renew market stall licences to applicants as it sees fit’;

(c) s 3 provides ‘in considering whether or not to issue a licence to an applicant, the MTLB shall consider whether the applicant is a fit and proper person to hold a licence’;

(d) s 4 provides ‘the MTLB shall have power to prevent anyone from trading from a market stall without a licence, and can confiscate equipment used in market trading by any such person’.