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Unreasonableness/irrationality (What is unreasonableness? (Three…
Unreasonableness/irrationality
What is unreasonableness?
Associated Picture Houses Ltd v Wednesbury Corporation (1948)
Background - s1 Sunday Entertainment Act 1932 - no under-15s allowed in cinemas on Sundays
"Wednesbury unreasonableness" - Lord Greene: "if a decision... is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere"
Nature of test
Very high threshold - Short v Poole (1926)
What is the function of JR?
Review of substance of decision
Review of legality of decision
Practical problems
Tautology?
Difficult to extract legal principles - intuitive?
Lack of clear structure
Uncertainty
Does it create cover for policy decisions?
Three subcategories
"Standard of review"
"Differing intensity""
Proportionality
Constitutional impact - separation of powers
"This ground is more readily regarded as being concerned with the political and moral rather than (in the strict sense) the legal character of the decision concerned" - Ian Loveland
Irrationality
Lord Diplock - GCHQ: "by irrationality, I mean... a decision which is so outreageous in its defiance of logic or moral standards that no reasonable person who applied his mind to the question to be decided could have arrived at it"
Unreasonable or irrational?
Irrational = devoid of reasons - R v Devon CC ex p G (1988) - Lord Donaldson
Irrationality at sub-category of unreasonableness
Unreasonable = devoid of satisfactory reasons - Wade & Forsyth
Classes of unreasonableness - De Smith & Jowell
Defects in decision-making process (though not amounting to illegality)
a) Imbalance in relevant factors
b) "Irrational" decisions
Oppressive decisions
Violation of constitutional principles - arbitrary/inconsistent/uncertain
Defects in decision-making process
a) Inappropriate balancing of considerations
Decisions not "illegal" - not a failure to take into account relevant considerations - instead, failure to weigh up considerations properly
West Glamorgan CC v Rafferty (1987) - travellers faced eviction from local authority, even though under a statutory duty to provide sites in their area, which they had failed to do - failed to give sufficient weight to the effects of eviction on the travellers and others likely to be affected
Further examples
Re Duffy (2008) - Northern Ireland Parades Commission - appointment of members who were clearly not impartial
R v Home Sec ex p Cox (1993) - failed to give sufficient weight to the length of detention facing Cox
b) Irrational decisions
Failure to show a comprehensive chain of reasoning when reaching a decision
R v SoS Environment ex p Fielder Estates (1998) - no logical reason why objector's views could not have been considered in writing
R (Rogers) v Swindon NHS PCT (2006)
Factors
Herceptin - not yet licensed
Treatment only available in "exceptional circumstances"
Cost not a factor according to Health Sec - Rogers part of key comparator group - those who would benefit from treatment - however not classed as "exceptional" so treatment rejected
Decision - Sir Antony Clarke MR: "Where the clinical needs are equal, and resources are not an issue, discrimination between patients in the same eligible group cannot be justified on the basis of personal characteristics not based on healthcare"
R v SoS Health ex p Luff - irrationality argument unsuccessful - middle-aged couple wanted to adopt but refused on health grounds - Sec had taken into account but not followed advice of Bexley Health panel which said they were suited to the task of adoption - Waite J found decision not irrational because of reasonable opposing view that took into account likely trauma caused to the children if the couple were to be ill or die
Oppressive decisions - imposing excessive hardships or infringing on rights
Wheeler v Leicester City Council (1995) - rugby club prevented from using recreation ground for matches because three players intended to play an unofficial tour in apartheid SA - found to be improper use of statutory power, punishing club unfairly
House of Lords also found decision "Wednesbury unreasonable" - Roskill said that though this was true, it was not clearly illogical or immoral - however he did feel that the policy was unreasonably punitive
R v SoS Home Dept ex p Norney (1995) - refusal to refer IRA prisoners serving discretionary life sentences to Parole Board until their tariff had expired - meant serving many more months than if referrals made in advance - "Wednesbury unreasonable" on basis that it was oppressive, contrary to principles of CL and article 5(4) of ECHR
R v Barnsley MBC ex p Hook (1976)
Violation of constitutional principles
Arbitrary decisions - contrary to ROL
Inconsistent decisions - R v Home Sev ex p McCartney (1994) - tariff sentence set at higher level than others who had committed more serious crimes - "Wednesbury unreasonable"
Also Bank Mellat (No 2)
Uncertain decisions - Percy v Hall (1997) - protestors charged with entering military based argued that boundaries of base not defined clearly enough in the relevant bye-laws - possibility of challenge accepted but ultimately rejected on facts
Bank Mellat v HM Treasury (2)
Counter-Terrorism Act 2007 - direction made by HM Treasury prohibiting all parties operating in UK financial sector from dealing with claimant bank, because of alleged connections with Iran's nuclear programme
Lord Sumpton - disproportionate, irrational and arbitrary - found that bank had been singled out where there was a similar risk with other Iranian financial institutions - also not satisfied that justification given by ministers in Parliament consistent with arguments advanced as part of subsequent litigation
Compared to A & Others ("The Belmarsh Case") (2004) - discriminatory treatment of overseas terror suspects also applied irrational measures which did not fully address the problems they were intended to deal with
Review
Standard?
R v County Council of Sussex ex p International Traders Ferry (1999) - Lord Cooke - is decision "one which a reasonable authority could reach?"
Intensity
"Super Wednesbury" - high threshold - low intensity - traditional approach
Low intensity
Political/resource allocation/macro-level
Institutional competence
Separation of powers
Cases
Notts County Council v SoS Environment (1986) - question of whether court could intervene to quash guidance provided by SoS to local authorities, setting limits on public expenditure - out of their remit - had been approved as statutory instrument by resolution of Parl and therefore had the "seal of democratic approval"
R v SoS Environment ex p LB Hammersmith & Fulham (1991)
R v Sec of State Home Dept ex p Javed - matters of high policy don't always fall outside court remit - Pakistan designation as country with low risk of persecution, meaning all asylum-seekers denied appeal - abundance of evidence that persecution widespread made decision incomprehensible and therefore irrational
"Sub-Wednesbury" - lower threshold - high intensity
Fundamental individual rights - more "anxious scrutiny"
Bugdaycay v SoS Home Dept (1987) - Lord Bridge - courts are entitled "to subject an administrative institution to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines"
R v Ministry of Defence ex p Smith (1996) - Sir Thomas Bingham MR - national security v individual (human) rights - even where heightened Wednesbury test applied, may not be sufficient to challenge decision successful - "the more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable"
Proportionality
Smith & Grady v UK (2000) - ban = disproportionate
General application of proportionality?
R v SoS Home Dept ex p Brind (1991) - restrict to EU and ECtHR cases - door left open for possible future development though - House of Lords specifically declined to recognise and independent ground of proportionality in administrative law
Support for change?
R (Daly) v SoS Home Dept (2001) - court stated that there were "material differences between the Wednesbury and the Smith grounds of review and the approach of proportionality is applicable in respect of review where Convention rights are at stake"
Lord Cooke - "The day will come when it will be more widely recognised that... Wednesbury... was an unfortunately retrogressive decision in English administrative law... in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision with the legitimate scope of judicial invalidation
R (Alconbury) v SoS Environment (2003) - Lord Slynn - "trying to keep the Wednesbury principle and proportionality in separate compartments seems to... be unnecessary and confusing"
R (Association of British Civilian Internees) v SoS Defence (2003) - "we have difficulty in seeing what justification there now is for retaining the Wednesbury test"
Court of appeal recognised that arguments for recognising proportionality as a general test applying to all domestic cases is strong - Dyson LJ - "the criteria of proportionality are more precise and sophisticated" - obiter
Continued debate
Pham v SoS v Home Dept (2015) - Lord Reed: "one can infer... that where Parliament authorises significant interferences with important legal rights, the courts may interpret the legislation as requiring that any such interference should be no greater than is necessary to achieve the legitimate aim... in substance a requirement of proportionality"
Marks the most direct engagement of Supreme Court to date with this standard of review - more subtle and nuanced approach moving away from binary view of rights v non-rights cases - enhanced view that proportionality as a more forensic and precise legal test does not necessarily promote greater judicial intervention and can be applied to varying degrees
Keyu v SoS Foreign and Commonwealth Affairs (3015) - Supreme Court rejected attempt by applicants to argue for replacement of Wednesbury standard - Lord Neuberger said that such a constitutionally significant development could only be sanctioned by a full, nine-member panel of the UKSC
Youssef v SoS Foreign and Commonwealth Affairs (2016) - Lord Carnwath accepted thinking that can be seen in cases like Pham and acknowledged need for an "authoritative review" based on an evaluation of core principles and public law values
"Such a review might aim for a rather more structured guidance for the lower courts than such imprecise concepts as 'anxious scrutiny' and 'sliding scales'"