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Grounds for Judicial Review: Irrationality and Proportionality - Coggle…
Grounds for Judicial Review: Irrationality and Proportionality
Wednesbury Unreasonableness / Irrationality
Associated Provincial Houses Ltd v Wednesbury Corporation (1948):
Facts: Local authority had the power to grant licenses for opening of cinemas subject to such conditions as the authority "thought fit" to impose. Authority when granting Sunday license, imposed condition that no children under the age of 15 should be admitted. C argued that the imposition of the condition was unreasonable and ultra vires the corporation's powers. D argued that there were no limits on the conditions that could be imposed in the statute.
Held: Lord Green MR alluded that many grounds of attack can be made against a decision, citing unreasonableness, bad faith, dishonesty, paying attention to irrelevant circumstances, disregard of the proper decision-making procedure and held that each of these can be encompassed in the umbrella of unreasonableness. Main issue was whether an authority had acted / reached a decision in a manner
"so unreasonable that no reasonable authority can ever have come to it".
Per Lord Diplock in Council of
Civil Service Unions v Minister for the Civil Service (1985):
He regarded unreasonableness as entailing "...so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it".
Wednesbury Unreasonableness - Rights Based Cases
R v Secretary of State for the Home Department ex parte Brind (1991):
HoL re-examined the reasonableness of the exercise of the Home Secretary's discretion to issue a notice banning the transmission of speech by representatives of the Irish Republican Army and its political party, Sinn Fein.
Despite issue involving denial of freedom of expression, Court ruled that exercise of Home Secretary's power didn't amount to an unreasonable exercise of discretion.
Proportionality
The Concept:
HRA provides an additional basis where the
legality of actions of public authorities will be tested.
Act provides for judicial review to extent review of administrative actions assess compatibility with Convention requirements
Both European Court of Justice of the European Community and the European Community and the European Court of Human Rights - that are separate institutions and operate under separate jurisdiction - have long employed concept of 'proportionality', and its concept - traditionally been regarded with some suspicion by domestic judges - which has become applicable
Doctrine of proportionality:
is one that confines limits of exercise of power to means that are proportional to object being pursued. (you must be punished for the crimes you commit)
Several pre-Human Rights Act cases, its clear that the courts have been using doctrine of proportionality but without making explicit references thereto.
The test
Whether the legislative objective is sufficiently important to justify limiting a fundamental right
Whether the measures designed to meet the legislative objective are rationally connected to it
Whether the means used to impair a right / freedom are no more than necessary to accomplish the objective (the necessity question)
Whether a fair balance has been struck with rights of the individual and the interest of the community that is inherent of the community in the whole of the convention (sometimes called 'narrow proportionality')
Application
Deference:
Primary decision maker enjoys a "discretionary area of judgement" - an area that courts applying the test of proportionality will not intrude
AKA "margin of appreciation"
Often referred to as 'deference'
Proportionality and Human Rights
For HRA 1998, proportionality is important.
For interpreting the Act, S2 requires domestic courts and tribunals 'consider' judgements and decisions of the Court of Human Rights.
Under S6, courts and tribunals are public authorities under the Act and are under a duty not to violate convention rights
A rationale for that this is due to importance in light of HRA 1998. Per Art 5 of the Convention (right to liberty and security): a person arrested shall be informed promptly, in a language that he/she understands, of the reasons for the arrest.
Art 6 of the Convention protects the right to a fair trial in determination of civil rights and obligations or of criminal charges. While giving reasons is not an explicit requirement in Art 6, its implicit in facilitating right to appeal.
Proportionality in a non-EU, Non-Human Rights Setting
In several pre-Human Rights Act cases, its clear that courts is using the doctrine of proportionality but without making explicit references thereto.
R v Barnsley Metropolitan Borough Council ex parte Hook (1976):
A market stall holder had his licence revoked for urinating in public. Lord Denning MR quashed the decision, partly on the basis that the penalty (the loss of the licence) was disproportionate to the 'offence'.
R v Secretary of State for the Home Department ex parte Brind (1991):
HoL re-examined the reasonableness of the exercise of the Home Secretary's discretion to issue a notice banning the transmission of speech by representatives of the Irish Republic Army and its political, Sinn Fein. Despite the issue involving a denial of freedom of expression. Court ruled that the exercise of the Home Secretary's power did not amount to an unreasonable exercise of discretion.