View source for Relevant and irrelevant considerations in Singapore administrative law

{{Administrative law}}

The '''failure of a public authority to take into account relevant considerations and the taking of irrelevant ones into account''' are grounds of [[judicial review in Singapore|judicial review]] in [[Singapore]] [[administrative law in Singapore|administrative law]]. They are regarded as forms of [[illegality in Singapore administrative law|illegality]].

If, in the exercise of its discretion on a public duty, an authority takes into account considerations which the courts consider not to be proper, then in the eyes of the law it has not exercised its discretion legally. On the other hand, considerations that are relevant to a public authority's decision are of two kinds: there are mandatory relevant considerations (that is, considerations that the statute empowering the authority expressly or impliedly identifies as those that must be taken into account), and discretionary relevant considerations (those which the authority may take into account if it regards them as appropriate). If a decision-maker has determined that a particular consideration is relevant to its decision, it is entitled to attribute to it whatever weight it thinks fit, and the courts will not interfere unless it has acted in a [[Wednesbury unreasonableness in Singapore|''Wednesbury''-unreasonable]] manner. This is consistent with the principle that the courts are generally only concerned with the legality of decisions and not their merits.

In the United Kingdom, it has been suggested that if the court interprets a statute to impose a duty on a public authority, the resources available to the authority are irrelevant to deciding how the duty should be carried out. Conversely, if the court interprets a statute to confer a discretionary power on a public authority, then resources are a relevant consideration. Also, public authorities are not required to take into account people's fundamental rights arising under the [[Human Rights Act 1998]] as relevant considerations before arriving at decisions. Their only responsibility is to ensure that the decision itself complies with the [[European Convention on Human Rights]]. At present, there are no Singapore cases on these issues.

==Introduction==
[[Administrative law in Singapore|Administrative law]] is the area of law concerning the control of powers exercised by the government. It functions to regulate decision-making processes by public authorities with regard to maintaining basic standards of fairness and legality.<ref>{{citation|author=Peter Leyland|author2=Gordon Anthony|chapter=Introduction, Theory and History|title=Textbook on Administrative Law|edition=6th|location=Oxford|publisher=[[Oxford University Press]]|year=2009|pages=[https://archive.org/details/textbookonadmini0000leyl/page/1 1–16 at 1]|isbn=978-0-19-921776-2|url=https://archive.org/details/textbookonadmini0000leyl/page/1}}.</ref> Administrative law in Singapore originates from and shares many similarities with administrative law in the United Kingdom. In general, claims for [[judicial review in Singapore|judicial review]] in administrative law fall under three broad categories&nbsp;– [[illegality in Singapore administrative law|illegality]], [[Wednesbury unreasonableness in Singapore law|irrationality]] and procedural impropriety. Instances of illegality fall under two main headings: whether the authority was empowered to make the decision in question, and whether it properly exercised its discretion to make that decision. Grounds for illegality under the first heading include simple ''[[ultra vires]]'', and [[precedent fact errors in Singapore law|errors as to precedent facts]]. The second heading includes grounds of judicial review such as making decisions on the basis of insufficient evidence or errors of material fact, failing to take into account relevant considerations and taking into account irrelevant ones, making decisions for improper purposes, [[fettering of discretion in Singapore administrative law|fettering of discretion]], and failing to fulfil [[legitimate expectation in Singapore law|legitimate expectations]].<ref>Leyland & Anthony, "Illegality I", pp. 237–257; Leyland & Anthony, "Illegality II", pp.&nbsp;258–277.</ref>

While a public authority may have fulfilled the legal and factual conditions required in order to properly exercise its statutory power, it may be deemed to have acted illegally if it makes its decision in a manner that contravenes administrative law rules. Under this category of judicial review, the courts' basic approach is to inquire if a decision-maker has taken into account all relevant considerations that it is required to take into account, and disregarded the irrelevant ones in making its decision. If it is satisfied that the decision-maker has done so, then the decision will stand, subject to other administrative law rules having been satisfied. The emphasis here is not on the body's decision itself, but on certain aspects of the reasoning process by which the decision was reached. Such an approach is consistent with the fundamental idea of judicial review that courts should not be concerned about the merits of a decision, but instead, only with its legality.<ref name="Leyland p. 247">Leyland & Anthony, "Illegality I", p. 247.</ref>

==Three categories of considerations==
[[File:Aisholt Common - geograph.org.uk - 1187829.jpg|thumb|A [[common land|common]] in [[Over Stowey]], [[Somerset]], England. In a 1995 judgment of the [[Court of Appeal of England and Wales]] concerning the legality of a ban on stag hunting imposed by [[Somerset County Council]] on land owned by the Council at another common called Over Stowey Customs Common, [[Lord Justice of Appeal]] [[Simon Brown, Baron Brown of Eaton-under-Heywood|Simon Brown]] identified three categories of considerations.]]

In the United Kingdom, the law on relevant and irrelevant considerations was explained in ''R. v. Somerset County Council, ex parte Fewings'' (1995).<ref>{{cite BAILII|litigants=R. v. Somerset County Council, ex parte Fewings|court=EWCA|division=Civ|year=1995|num=24|parallelcite=[1995] 1 W.L.R. 1037|courtname=auto}}.</ref> In this case, the applicants applied for judicial review of the legality of a ban on stag hunting on the basis that the [[Somerset County Council]] had taken into account an irrelevant consideration&nbsp;– the morality of stag hunting&nbsp;– when making its decision. In his [[dissenting opinion|dissenting judgment]], [[Lord Justice of Appeal]] [[Simon Brown, Baron Brown of Eaton-under-Heywood|Simon Brown]] identified three categories of considerations that decision-makers need to be aware of:<ref name="Fewings 1049">''Ex parte Fewings'', pp. 1049–1050.</ref>

*those clearly (whether expressly or impliedly) identified by the statute as considerations to which regard must be had;
*those clearly identified by the statute as considerations which must not be had; and
*those to which the decision-maker may have regard if in his judgment and discretion he thinks it right to do so.

Lord Justice Brown elaborated that for the third category, there is "a margin of appreciation within which the decision-maker may decide just what considerations should play a part in his reasoning process", subject to [[Wednesbury unreasonableness in Singapore law|''Wednesbury'' unreasonableness]].<ref name="Fewings 1049"/>

The Singapore case of ''City Developments Ltd. v. Chief Assessor'' (2008)<ref>{{cite CommonLII|litigants=City Developments Ltd. v. Chief Assessor|court=SGCA|year=2008|num=29|parallelcite=[2008] 4 S.L.R.(R.) [''Singapore Law Reports (Reissue)''] 150|courtname=auto}}.</ref> illustrates a similar point. The [[Court of Appeal of Singapore|Court of Appeal]] stated that "[w]here a wide range of considerations needs to be taken into account or a power is conferred on an authority exercisable on the authority's 'satisfaction', the courts are reluctant to intervene in the absence of bad faith or capriciousness". It was also said that "[w]hat is or is not a relevant consideration will depend on the statutory context."<ref>''City Developments'', p. 159, para. 17.</ref>

==Taking into account irrelevant considerations==
The decision of an administrative body is subject to judicial review if it took into account irrelevant considerations. If, in the exercise of its discretion on a public duty, the body takes into account considerations which the courts consider not to be proper, then in the eyes of the law it has not exercised its discretion legally.<ref>{{citation|author=[Henry] William [Rawson] Wade|authorlink=Henry William Rawson Wade|author2=Christopher [F.] Forsyth|title=Administrative Law|edition=6th|location=Oxford|publisher=Oxford University Press|year=2004|page=321|isbn=978-0-19-927021-7}}.</ref>

[[File:Michael Howard 2007.jpg|thumb|left|upright|[[Michael Howard]], the United Kingdom [[Home Secretary]] whom the [[Judicial functions of the House of Lords|House of Lords]] found had taken into account an irrelevant consideration when determining the period for which two young murderers should be detained [[at Her Majesty's pleasure]]]]

In the United Kingdom, a seminal case applying this principle is ''R. v. Secretary of State for the Home Department, ex parte Venables'' (1997).<ref>{{cite BAILII|litigants=R v. Secretary of State for the Home Department, ex parte Venables|court=UKHL|year=1997|num=25|parallelcite=[1998] A.C. 407|courtname=auto}}.</ref> In this case, the [[Home Secretary]] had taken into account public opinion when deciding upon the tariff of 15 years for holding in custody two boys detained [[at Her Majesty's pleasure]] for having murdered [[murder of James Bulger|James Bulger]], a two-year-old child, when they were both ten years old. [[Johan Steyn, Baron Steyn|Lord Steyn]] held that the public petitions considered were worthless and incapable of informing the Home Secretary in a meaningful way of the true state of public opinion in respect of the tariff. Hence, the reliance on the public petition in coming up with its decision was an irrelevant consideration which justified the setting-aside of the Home Secretary's decision.<ref>''Ex parte Venables'', pp. 524–526.</ref>
 
''R. v. Ealing London Borough Council, ex parte Times Newspapers Ltd.'' (1986)<ref>''R. v. Ealing London Borough Council, ex parte Times Newspapers Ltd.'' (1986) 85 L.G.R. [''Local Government Reports''] 316, [[Divisional Court (England and Wales)|Divisional Court]] (England and Wales).</ref> dealt with the principle of irrelevant considerations as well. In this case, [[Ealing London Borough Council]] had refused to provide certain newspapers in their public libraries because the newspapers' proprietors were political rivals of members of the Council. The [[Divisional Court (England and Wales)|Divisional Court of England and Wales]] held that the political sentiments of the local authority should not have interfered with its decision to run the public libraries because it was irrelevant to its statutory duty to provide "a comprehensive and efficient library service for all persons desiring to make use thereof".<ref>Public Libraries and Museums Act 1964 ([http://www.legislation.gov.uk/ukpga/1964/75/contents c. 75], UK), s.&nbsp;7(1): see ''Ex parte Times Newspapers Ltd.'', p. 326.</ref>
 
[[File:PSA Building.jpg|thumb|upright|[[PSA Building]], the current headquarters of [[PSA International]]. In a 1997 case it was claimed that the Port of Singapore Authority, PSA International's predecessor, had taken into account an irrelevant consideration when developing a policy concerning the allocation of berths at the [[Singapore Cruise Centre]].]]

This legal principle has not been examined extensively in Singapore but it can be regarded to have been applied in ''Tan Gek Neo Jessie v. Minister for Finance'' (1991).<ref>''Tan Gek Neo Jessie v. Minister for Finance'' [1991] 1 S.L.R.(R.) 1, [[High Court of Singapore|High Court]] (Singapore).</ref> The plaintiff was told by the Registrar of Businesses to change the name of her business "J. C. Penney Collections" to one which did not resemble the name "J. C. Penney". This was because the Registry of Trade Marks already had two trademarks registered with it with the name "Penneys" at that time. The proprietor of both the trademarks was [[J. C. Penney|J. C. Penney Company Inc.]], an American corporation. The [[Ministry of Finance (Singapore)|Minister for Finance]] and the Registrar alleged that the plaintiff had used this business name to ride on the reputation of the American corporation by misleading Singaporeans into thinking that her business was associated with the American corporation. Both administrative bodies held that the mere resemblance of the names was proof of this. This was eventually held to be an irrelevant consideration as neither of the trademarks had been used by the American corporation to identify retail services in Singapore. Thus, it had no business reputation in Singapore in relation to the name "J. C. Penney". Furthermore, there was no evidence to suggest that the plaintiff, at the time of registering her business, was aware of the existence of the two registered trademarks. In arriving at the decisions to order the plaintiff to change her business name and to dismiss her appeal against that order, the Registrar and the Minister had respectively taken into account an irrelevant consideration. Ultimately, the court made an order of ''[[certiorari]]'' (now known as a [[remedies in Singapore administrative law#Quashing orders|quashing order]]) to quash both decisions.<ref>''Tan Gek Neo Jessie'', pp. 8–13, paras. 16–29.</ref>

''[[Lines International Holding (S) Pte. Ltd. v. Singapore Tourist Promotion Board]]'' (1997)<ref>''[[Lines International Holding (S) Pte. Ltd. v. Singapore Tourist Promotion Board]]'' [1997] 1 S.L.R.(R.) 52, H.C. (Singapore).</ref> is another local case in which the principle of irrelevant considerations was raised. The [[PSA International|Port of Singapore Authority]] (PSA), which was responsible for promoting the use, improvement and development of Singapore's ports, had introduced a policy of not allocating berths at the [[Singapore Cruise Centre]] to cruise ships unless over a three-month period 30% or fewer of the cruises in a cruise operator's schedule consisted of "cruises-to-nowhere". Such cruises, which left Singapore's [[territorial waters]] and returned to Singapore without calling at any other destination port, tended to be mainly for gambling purposes.<ref>''Lines International'', p. 58, para. 5.</ref> The plaintiffs argued that in developing this policy, the PSA had assumed that gambling by Singaporeans in [[international waters]] was an unlawful activity. As there was no proper legal basis for this assumption, it was an irrelevant consideration which had seriously tainted the formulation of the policy. The [[High Court of Singapore|High Court]] denied that this was the case, and found that the main consideration had been whether the development of the cruise industry would be impeded if Singapore gained an undesirable reputation as a hub for gambling cruises. The alleged irrelevant consideration had not been the substantial reason for the ultimate decision.<ref>''Lines International'', pp. 82–84, paras. 86–91.</ref>

==Failing to take into account relevant considerations==
As was indicated in the ''ex parte Fewings'' case, considerations that are relevant to a public authority's decision are of two kinds: there are mandatory relevant considerations (that is, considerations that the statute empowering the authority expressly or impliedly identifies as those that must be taken into account), and discretionary relevant considerations (those which the authority may take into account if it regards them as appropriate).<ref name="Fewings 1049"/> ''Vasiliou v. Secretary of State for Transport'' (1991)<ref>''Vasiliou v Secretary of State for Transport'' [1991] 2 All E.R. 77, (1991) 61 P. & C.R. 507 [[Court of Appeal of England and Wales|Court of Appeal]] (England and Wales).</ref> is an example of a case in which a court found that a particular mandatory relevant consideration was to be implied into a statute. The [[Court of Appeal of England and Wales]] held that the [[Secretary of State for Transport]] had failed to take into account the fact that an order to close off a particular street for redevelopment would have caused the applicant a substantial loss of business.<ref>''Vasiliou'' (1991) 61 P. & C.R. at p.&nbsp;512.</ref>

[[File:OUE Bayfront, Customs House and Fullerton Bay Hotel, Singapore - 20121027-02.jpg|thumb|The old Customs House at [[Collyer Quay]], Singapore. In a 1991 case the [[High Court of Singapore|High Court]] found that the Director-General of Customs and Excise had failed to take into account relevant considerations when determining that [[tariff|import duty]] was payable by the applicant's company.]]

''[[Re Fong Thin Choo]]'' (1991)<ref>''[[Re Fong Thin Choo]]'' [1991] 1 S.L.R.(R.) 774, H.C. (Singapore).</ref> was a Singapore case in which the applicant successfully proved that a public authority had failed to take into account relevant considerations. The [[Singapore Customs|Customs and Excise Department]] had not supervised the loading on to ships of cigarettes that the applicant's company intended to export from Singapore, and later discovered that some of these goods were not on the ships' manifests even though the company had declared that they were to be exported. Following an investigation, the Director-General of Customs and Excise ("DG") concluded that the goods had never been exported. Since the company was thus liable to pay [[tariff|import duty]] on the goods, the DG proceeded to recover the amount of duty from bankers' guarantees that had been lodged by the company with the Customs and Excise Department. The company sought leave to apply for an [[remedies in Singapore administrative law#Prohibiting orders|order of prohibition]] to prevent the Department from taking such action. Justice [[Chan Sek Keong]] quoted the following passage with approval:<ref>{{cite BAILII|litigants=Associated Provincial Picture Houses v. Wednesbury Corporation|link=Associated Provincial Picture Houses v Wednesbury Corporation|court=EWCA|division=Civ|year=1947|num=1|parallelcite=[1948] 1 K.B. 223 at 229|courtname=C.A.|juris=England and Wales}}, cited in {{cite BAILII|litigants=Secretary of State for Education and Science v. Tameside Metropolitan Borough Council|court=UKHL|year=1976|num=6|parallelcite=[1977] A.C. 1014 at 1065|courtname=H.L.|juris=UK}}, and in ''Fong Thin Choo'', p.&nbsp;793, para.&nbsp;56.</ref>

{{quote|[I]t is for a court of law to determine whether it has been established that in reaching his decision unfavourable to the council he had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the Act he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider&nbsp;...}}

He granted the application, holding that, among other things, the Department had failed to investigate fully the evidence produced by the company to show that the goods had been exported, leading to it fail to take into account relevant considerations.<ref>''Fong Thin Choo'', p. 793, para. 57.</ref>

Likewise, the case of ''Chew Kia Ngee v. Singapore Society of Accountants'' (1988)<ref>''Chew Kia Ngee v. Singapore Society of Accountants'' [1988] 2 S.L.R.(R.) 597, H.C. (Singapore).</ref> establishes the importance of taking into account relevant considerations. This case did not involve judicial review, but it elucidates the same principle. The disciplinary committee of the Singapore Society of Accountants suspended the appellant, an auditor, from practice for a period of five years after finding him guilty of an act or default discreditable to an accountant under section&nbsp;33(1)(b) of the Accountants Act.<ref>Accountants Act (Cap. 2, 1985 Rev. Ed.), now the {{Singapore legislation|title=Accountants Act|cap=2|ed=2005}} ("AA"), s.&nbsp;25.</ref> The appellant, who was responsible for auditing a company's accounts, had pre-signed an incomplete form which was later submitted to the [[Monetary Authority of Singapore]]. The High Court held that the disciplinary committee had failed to take into account all the relevant considerations. In particular, the appellant had reviewed the form and had probably completed part of it. The disciplinary committee had apparently not considered this as they had concluded that the appellant had signed a form "in blank" in advance. The Court also stated that the committee would not have viewed his conduct as exhibiting the "callous attitude of an auditor towards his responsibility" had they considered the relevant factor. Consequently, the appeal was allowed, and the order of the committee was set aside.<ref>''Chew Kia Ngee'', pp. 606–607, paras. 14–15.</ref>

===Weight that should be accorded to considerations===
When determining if a decision-maker has failed to take into account mandatory relevant considerations, the courts tend to inquire into the manner in which the decision-maker balances the considerations. This is evident from the case of ''Chew Kia Ngee'' where the High Court held that the Singapore Society of Accountants' disciplinary committee had given "undue emphasis" to the fact that the applicant had signed an incompletely filled form.<ref>''Chew Kia Ngee'', p. 606, para. 14.</ref> Similarly, in ''Fong Thin Choo'', the High Court stated that "undue weight" had been placed on certain documents as evidence that the applicant's company had not loaded some goods on to ships for export.<ref>''Fong Thin Choo'', p. 792, para. 53.</ref>

However, once the decision-maker has taken into account the relevant considerations, the courts are reluctant to scrutinize the manner in which the decision-maker balances the considerations. This can be gleaned from the case of ''R. v. Boundary Commission for England, ex parte Foot'' (1983),<ref>{{cite BAILII|litigants=R. v. Boundary Commission for England, ex parte Foot|court=EWCA|division=Civ|year=1983|num=10|parallelcite=[1983] Q.B. 600|courtname=C.A.|juris=England and Wales}}.</ref> where the Court of Appeal of England and Wales was unwilling to overrule certain recommendations of the Commission as it had rightfully taken all the correct considerations laid down in the relevant statute. The Court emphasized that the weighing of those relevant considerations was a matter for the Commission, not the courts.<ref>''Ex parte Foot'', pp. 635–637.</ref>
 
This statement of law was endorsed in ''Tesco Stores Ltd. v. Secretary of State for the Environment'' (1995),<ref>{{cite BAILII|litigants=Tesco Stores Ltd. v. Secretary of State for the Environment|court=UKHL|year=1995|num=22|parallelcite=[1995] 1 W.L.R. 759|courtname=H.L.|juris=UK}}.</ref> a [[town and country planning in the United Kingdom|planning law]] case. [[Leonard Hoffmann, Baron Hoffmann|Lord Hoffmann]] discussed the "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 planning judgment, which is entirely a matter for the planning authority".<ref name="Tesco 780">''Tesco Stores'', p. 780.</ref> His Lordship stated:<ref name="Tesco 780"/>
 
{{quote|[P]rovided that the planning 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 planning authority thinks fit or no weight at all.}}

===Resources as relevant considerations===
The availability, or lack thereof, of resources may constrain a public authority in the performance of its duties and exercise of its powers.<ref>Wade & Forsyth, p. 321.</ref> The issue as to whether resources are a relevant consideration in the field of public service provision is said to be a "particularly difficult" one.<ref name="Cane 225">{{citation|author=Peter Cane|title=Administrative Law|edition=4th|location=Oxford|publisher=Oxford University Press|year=2004|page=225|isbn=978-0-19-926898-6}}.</ref> Whether resources are a relevant consideration in each case depends on the wording of the relevant statutory provisions, and how the court reads the overall legislative scheme.<ref name="Cane 225"/><ref>Leyland & Anthony, "Illegality I", p. 249.</ref>

====Resources held to be a relevant consideration====
[[File:Shoreham Harbour entrance and the Kingston Buci Lighthouse - geograph.org.uk - 1013596.jpg|thumb|[[Shoreham-by-Sea|Shoreham]] Harbour, where in the 1990s a company called International Trader's Ferry transported livestock to the [[Continental Europe|Continent]]. These shipments attracted protestors demonstrating against the trade, and the company took out [[judicial review in Singapore|judicial review]] proceedings against the [[chief constable|Chief Constable]] of [[Sussex]] when he reduced the number of police officers keeping order at the harbour due to a lack of resources. In a 1999 judgment, the House of Lords held that the Chief Constable was entitled to take resources into account as a relevant consideration.]]

In ''R. v. Gloucestershire County Council, ex parte Barry'' (1997),<ref>{{cite BAILII|litigants=R. v. Gloucestershire County Council, ex parte Barry|court=UKHL|year=1997|num=58|parallelcite=[1997] A.C. 584|courtname=H.L.|juris=UK}}.</ref> a majority of the [[Judicial functions of the House of Lords|House of Lords]] held that the [[Gloucestershire County Council]] was allowed to take resources into consideration when deciding whether or not to withdraw the provision of home care services. [[Donald Nicholls, Baron Nicholls of Birkenhead|Lord Nicholls]] stated: "A person's need for a particular type or level of service cannot be decided in a vacuum from which all considerations of cost have been expelled."<ref>''Ex parte Barry'', p. 604.</ref> This decision has been criticized for sending a signal to public authorities that the provision of public welfare services "can be constantly trimmed at the edges".<ref>Leyland & Anthony, "Illegality I", p. 250.</ref>

In ''R. (on the application of KM) v. Cambridgeshire County Council'' (2012),<ref>{{cite BAILII|litigants=R. (on the application of KM) v. Cambridgeshire County Council|court=UKSC|year=2012|num=23|parallelcite=[2012] 3 All E.R. 1218|courtname=auto}}.</ref> the [[Supreme Court of the United Kingdom]] declined to reconsider the case of ''Barry'' because any statement on the case would be merely an ''[[obiter dictum]]''.<ref>''KM'', p. 17, para. 43.</ref> However, [[Brenda Hale, Baroness Hale of Richmond|Lady Hale]] suggested that ''Barry'' may have been "widely misunderstood". According to her, insofar as the majority in ''Barry'' had thought that resources should be a relevant consideration in assessing the needs of the disabled person, they may have fallen into error; nevertheless, a closer analysis of the decision in ''Barry'' suggests that "they did not fall into that error".<ref>''KM'', pp. 18–19, paras. 44 and 48.</ref>

Other cases in which resources were held to be a relevant consideration include ''R. v. Norfolk County Council, ex parte Thorpe'' (1998),<ref>''R. v. Norfolk County Council, ex parte Thorpe'' [1998] EWHC 107 (Admin.), [[High Court of Justice|High Court]] (England and Wales).</ref> where a road authority was allowed to consider resources in deciding whether or not to build a footpath; ''R. v. Chief Constable of Sussex, ex parte International Trader's Ferry Ltd'' (1999),<ref>{{cite BAILII|litigants=R. v. Chief Constable of Sussex, ex parte International Trader's Ferry Limited|court=UKHL|year=1998|num=40|parallelcite=[1999] 2 A.C. 418|courtname=H.L.|juris=UK}}.</ref> where a [[chief constable]] was permitted to consider resources in deciding how many police officers he should commit to an operation; and ''R. v. Barnet London Borough Council, ex parte G (FC)'' (2003),<ref>{{cite BAILII|litigants=R. v. Barnet London Borough Council, ex parte G (FC)|court=UKHL|year=2003|num=57|parallelcite=[2004] 2 A.C. 208|courtname=H.L.|juris=UK}}.</ref> where a public authority was allowed to consider resources in deciding whether or not to provide accommodation for a child.

====Resources held to be an irrelevant consideration====
In ''R. v. East Sussex County Council, ex parte Tandy'' (1998),<ref>{{cite BAILII|litigants=R. v. East Sussex County Council, ex parte Tandy|court=UKHL|year=1998|num=20|parallelcite=[1998] A.C. 714|courtname=H.L.|juris=UK}}.</ref> the House of Lords held that a local education authority was not entitled to consider available resources in performing its statutory duty to provide suitable education for a disabled child. [[Nicolas Browne-Wilkinson, Baron Browne-Wilkinson|Lord Browne-Wilkinson]] distinguished ''Barry'', expressing concern that allowing the authority to take resources into consideration would be "to downgrade duties into what are, in effect, mere discretions over which the court would have very little real control".<ref>''Ex parte Tandy'', p. 749.</ref> The case of ''Tandy'' was applied in ''R. v. Birmingham City Council, ex parte Mohammed'' (1998),<ref>''R. v. Birmingham County Council, ex parte Mohammed'' [1999] 1 W.L.R. 33, H.C. ([[High Court of Justice#Queen's Bench Division|Q.B.]]) (England and Wales).</ref> in relation to the [[Housing Grants, Construction and Regeneration Act 1996]].<ref>[[Housing Grants, Construction and Regeneration Act 1996]] ([http://www.legislation.gov.uk/ukpga/1996/53/contents c.&nbsp;53], UK).</ref>

In ''R. v. Sefton Metropolitan Borough Council, ex parte Help the Aged'' (1997),<ref>''R. v. Sefton Metropolitan Borough Council, ex parte Help the Aged'' [1997] 4 All E.R. 532, C.A. (England and Wales).</ref> the Court of Appeal of England and Wales stated that even if an agency may consider resources in determining whether a person meets the criteria to receive provision of a service, it cannot then refuse to provide the service on the basis of insufficient resources.<ref name="Cane 225"/>

====Reconciling the cases====
At present, there are no Singapore cases on the issue. In the United Kingdom context, it has been suggested that distinguishing between duties and discretionary powers may prove useful in reconciling the cases on whether resources are a relevant consideration. As Lord Nicholls stated in ''Ex parte G (FC)'', "[a] power need not be exercised, but a duty must be discharged".<ref>''Ex parte G (FC)'', p. 1199, para. 12.</ref> Thus, if the court interprets a statute to impose a duty on a public authority, resources are an irrelevant consideration. Conversely, if the court interprets a statute to confer a discretionary power on a public authority, then resources are a relevant consideration.<ref name="Cane 225"/>

On distinguishing between duties and powers, Lord Nicholls explained that, generally, "the more specific and precise the duty the more readily the statute may be interpreted as imposing an obligation of an absolute character. Conversely, the broader and more general the terms of the duty, the more readily the statute may be construed as affording scope for a local authority to take into account matters such as cost when deciding how best to perform the duty in its own area."<ref>''Ex parte G (FC)'', p. 1199, para. 13.</ref>

===Fundamental rights as relevant considerations===
[[File:Jilbab in Zanzibar (cropped).jpg|thumb|upright|A woman wearing a ''[[jilbāb]]'' in Zanzibar. A British girl who wished to wear a similar form of dress to class sued her school when she was not allowed to do so. In a 2006 judgment, the House of Lords held that fundamental rights need not be taken into account as relevant considerations in a public authority's decision-making process, but that the decision itself must comply with rights.]]

In the United Kingdom, public authorities are not required to take into account people's fundamental rights arising under the [[Human Rights Act 1998]]<ref>[[Human Rights Act 1998]] ([http://www.legislation.gov.uk/ukpga/1998/42/contents c. 42], UK).</ref> as relevant considerations before arriving at decisions. This was the conclusion of the House of Lords in ''[[R (Begum) v Headteacher and Governors of Denbigh High School|R. (SB) v. Governors of Denbigh High School]]'' (2006),<ref>{{cite BAILII|litigants=R. (SB) v. Governors of Denbigh High School|link=R (Begum) v Headteacher and Governors of Denbigh High School|court=UKHL|year=2006|num=15|parallelcite=[2007] A.C. 100|courtname=H.L.|juris=UK}}. See also {{cite BAILII|litigants=Belfast City Council v. Miss Behavin{{'}}|court=UKHL|year=2007|num=19|parallelcite=[2007] W.L.R. 1420|courtname=H.L.|juris=UK}}, and Leyland & Anthony, "Illegality I", pp.&nbsp;255–256.</ref> a case involving a [[Islam in the United Kingdom|Muslim]] schoolgirl who brought legal proceedings against [[Denbigh High School, Luton|Denbigh High School]] for disallowing her to wear a ''[[jilbāb]]'' to school, claiming among other things that her right to [[freedom of religion|manifest her religion]] protected by [[Article 9 of the European Convention on Human Rights|Article 9]] of the [[European Convention on Human Rights]] had been infringed. [[Thomas Bingham, Baron Bingham of Cornhill|Lord Bingham of Cornhill]], who delivered the lead judgment in the case, noted that the jurisprudence of the [[European Court of Human Rights]] did not focus on the defectiveness of the decision-making process, but only on whether the decision itself violated Convention rights.<ref>''SB'', pp. 115–116, para. 29.</ref> If the former approach were taken, this would introduce "a new formalism" and would be "a recipe for judicialisation on an unprecedented scale".<ref>{{citation|author=Thomas Poole|title=Of Headscarves and Heresies: The Denbigh High School case and Public Authority Decision Making under the Human Rights Act|journal=[[Public Law (journal)|Public Law]]|year=2005|pages=685–695 at 691–695}}.</ref> It would place an undue burden on decision-makers such as school headteachers and governors to take human rights issues into account when reaching decisions, even if they had the assistance of solicitors. In his view, "what matters in any case is the practical outcome, not the quality of the decision-making process that led to it".<ref>''SB'', p. 116, para. 31. For criticism, see {{citation|author=David Mead|title=Outcomes Aren't All: Defending Process-based Review of Public Authority Decisions under the Human Rights Act|journal=Public Law|year=2012|pages=61–84}}.</ref>

The courts in Singapore have not yet had to decide whether the fundamental liberties in the Constitution are relevant considerations in public authorities' decision-making processes. However, [[Government of Singapore|Singapore's government]] has constantly emphasized that it adheres to a traditional value system which places the interests of the community over and above that of the individual.<ref>{{citation|author=Thio Li-ann|authorlink=Thio Li-ann|title=Reading Rights Rightly: The UDHR and its Creeping Influence on the Development of Singapore Public Law|journal=Singapore Journal of Legal Studies|year=2008|pages=264–291 at 275|ssrn=1342216}}.</ref> Under this conception, social discipline, rather than rambunctious democracy and unbridled individualism, is lauded as necessary to secure economic growth and development imperatives.<ref>Thio, p. 275.</ref> In ''Chee Siok Chin v. Minister for Home Affairs'' (2005),<ref>{{cite CommonLII|litigants=Chee Siok Chin v. Minister for Home Affairs|court=SGHC|year=2005|num=216|parallelcite=[2006] 1 S.L.R.(R.) 582|courtname=H.C.|juris=Singapore}}.</ref> a case that concerned the constitutional right of freedom of speech, Justice [[V. K. Rajah]] stated that rights have limits:<ref>''Chee Siok Chin'', pp. 631–632, para. 135.</ref>

{{quote|Rights inevitably and invariably entail some responsibilities. ... In Singapore, Parliament has through legislation placed a premium on public order, accountability and personal responsibility ... Free speech is neither impaired nor impeded by ruling out [threatening, abusive and insulting speech] ... Disseminating false or inaccurate information or claims can harm and threaten public order.}}

He went on to say that freedom of action invariably ends where conflicting rights and/or interests collide.<ref>''Chee Siok Chin'', p. 632, para. 136.</ref> This quote underscores how the court perceives rights in accordance with the political ideology espoused by the government. This has resulted in decisions where little weight is placed on consideration of the individual's rights. An administrative law case which illustrates this is ''[[Chan Hiang Leng Colin v. Public Prosecutor]]'' (1994),<ref>{{cite WorldLII|litigants=Chan Hiang Leng Colin v. Public Prosecutor|court=ICHRL|year=1994|num=26|parallelcite=[https://web.archive.org/web/20121026151735/http://lwb.lawnet.com.sg/legal/lgl/rss/landmark/%5B1994%5D_SGHC_207.html &#91;1994&#93; SGHC 207], [1994] 3 S.L.R.(R.) 209, archived from [http://lwb.lawnet.com.sg/legal/lgl/rss/landmark/%5B1994%5D_SGHC_207.html the original] on 26 October 2012|courtname=H.C.|juris=Singapore}}.</ref> the High Court upholding a total blanket ban on all publications by the publishing arm of the [[Jehovah's Witnesses]] under the Undesirable Publications Act.<ref>{{Singapore legislation|title=Undesirable Publications Act|cap=338|ed=1985}}.</ref> It explained that:<ref>''Chan Hiang Leng Colin'', p. 238, para. 72.</ref>

{{quote|The fact that one publication is unobjectionable as to its contents, be it the King James Version or "Alice in Wonderland", does not make the ban unreasonable ''per se''.&nbsp;... The Minister's actions were clearly to stop the dissemination and propagation of beliefs of the Jehovah's Witnesses and&nbsp;... [a]ny order other than a total blanket order would have been impossible to monitor administratively.}}

It has been argued that aside from manifesting insensitivity towards human rights concerns and hypersensitivity towards public order considerations, this approach ultimately reflects a judicial perception with a primary mandate of safeguarding executive goals rather than individual liberties. What the High Court in ''Chan Hiang Leng Colin'' could have done was to take into account various factors such as the number of Jehovah's Witnesses in Singapore and whether their forbearance from military service posed a genuine threat to public order such that it warranted the curtailment of the right to [[freedom of religion in Singapore|religious freedom]] under [[Article 15 of the Constitution of Singapore|Article 15]] of the [[Constitution of Singapore|Constitution]].<ref>{{citation|author=Chia Huai Yuan|title=Taking Rights Seriously: 30 Years of Constitutional Adjudication|url=http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/singlrev29&section=8|journal=Singapore Law Review|year=2011|volume=29|pages=115–138 at 121}}.</ref>

==Overlaps between relevant and irrelevant considerations and other grounds of judicial review==
The ground of failing to take into account relevant considerations and taking into account irrelevant ones may overlap with other grounds of judicial review such as deciding for an improper purpose and irrationality.<ref>Leyland & Anthony, "Illegality I", pp. 240 and 256–257, and "''Wednesbury'' Unreasonableness, Proportionality and Equality", pp.&nbsp;284–312 at 284.</ref> For example, in ''Lines International'', the High Court considered the ground of relevant and irrelevant considerations together with ''Wednesbury'' unreasonableness.<ref>''Lines International'', pp. 83–84, para. 89.</ref>

Conceptually, taking an irrelevant consideration into account in a decision may be equivalent to deciding for an improper purpose. In ''Hanks v. Minister of Housing and Local Government'' (1962),<ref>''Hanks v. Minister of Housing and Local Government'' [1963] 1 Q.B. 999, H.C. (Q.B.) (England and Wales).</ref> the overlap was thought to be so pronounced as to merit a suggestion that improper purpose should be subsumed under the heading of relevant and irrelevant considerations.<ref>''Hanks'', p. 1020.</ref> However, this suggestion has not yet been taken up, and the two grounds remain separate from each other.<ref name="Leyland p. 247"/>

In addition, it has been suggested that a [[legitimate expectation in Singapore law#Legitimate expectation of a substantive benefit 2|substantive legitimate expectation]] may be a relevant consideration, as the Court of Appeal of England and Wales held in the case of ''R. (Bibi) v. Newham London Borough Council'' (2001).<ref>{{cite BAILII|litigants=R. (Bibi) v. Newham London Borough Council|court=EWCA|division=Civ|year=2001|num=607|parallelcite=[2002] W.L.R. 237|courtname=C.A.|juris=England and Wales}}. See also {{citation|author=Siraj Shaik Aziz|author2=Sui Yi Siong|title=Expecting the Right Thing: The Imperative for Recognising Substantive Legitimate Expectations in Singapore|url=http://heinonline.org/HOL/LandingPage?handle=hein.journals/singlrev30&div=12|journal=Singapore Law Review|year=2012|volume=30|pages=147–164 at 157}}.</ref>

==Notes==
{{Reflist|2}}

==References==

===Cases===
*''[[Re Fong Thin Choo]]'' [1991] 1 S.L.R.(R.) 774, [[High Court of Singapore|High Court]] (Singapore).
*{{cite BAILII|litigants=R. v. Somerset County Council, ex parte Fewings|court=EWCA|division=Civ|year=1995|num=24|parallelcite=[1995] 1 W.L.R. 1037|courtname=auto}}.
*''[[Lines International Holding (S) Pte. Ltd. v. Singapore Tourist Promotion Board]]'' [1997] 1 S.L.R.(R.) 52, H.C. (Singapore).
*{{cite BAILII|litigants=R. v. Barnet London Borough Council, ex parte G (FC)|court=UKHL|year=2003|num=57|parallelcite=[2004] 2 A.C. 208|courtname=auto}}.

===Other works===
*{{citation|last=Cane|first=Peter|title=Administrative Law|edition=4th|location=Oxford|publisher=Oxford University Press|year=2004|isbn=978-0-19-926898-6}}.
*{{citation|last=Leyland|first=Peter|last2=Anthony|first2=Gordon|title=Textbook on Administrative Law|edition=6th|location=Oxford|publisher=[[Oxford University Press]]|year=2009|isbn=978-0-19-921776-2|url-access=registration|url=https://archive.org/details/textbookonadmini0000leyl}}.
*{{citation|last=Wade|first=[Henry] William [Rawson]|authorlink=Henry William Rawson Wade|last2=Forsyth|first2=Christopher [F.]|title=Administrative Law|edition=6th|location=Oxford|publisher=Oxford University Press|year=2004|isbn=978-0-19-927021-7}}.

{{Law of Singapore}}
{{Use British (Oxford) English|date=February 2014}} {{use dmy dates|date=February 2014}}

[[Category:Singaporean administrative law]]