2) Unreasonableness

Question 1

Lord Wrenbury in Roberts v Hopwood

Answer 1

A person… must, by the use of his reason ascertain and follow the course which reason directs. He must act reasonably.

Question 2

Wednesday Case Facts

Answer 2

s1(1) of the Sunday Entertainments Act 1932 local authorities were given power to allow venues to show films on Sundays, subject to conditions that it sees fit to impose.

LA granted this providing that no children under the age of 15 would be admitted on a sunday.

Question 3

Wednesbury Case - Held

Answer 3

Physical and moral health of children = matter for LA

“…if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere”

“… would need to something overwhelming”

Question 4

Wednesbury Test

Answer 4

“…if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere”

Drew on Short v Poole Corp gave an example of a red haired teacher being dismissed just because she had red hair.

Question 5

Reformulation of Wednesbury? - GCHQ

Answer 5

Irrationality - GCHQ
“A decision so outrageous in its defiance of logic or accepted moral standards, that no sensible person would have arrived at it.”

Question 6

Reformulation of Wednesbury? - ex parte G

Answer 6

R v Devon CC, ex parte G

Lord Donaldson argued against the “irrationality” approach
Casts doubt upon the mental capacity of the decision maker

Better to see Irrationality as a subcategory of unreasonableness.

Question 7

Reformulation of Wednesbury? - ex parte International Trader’s Ferry

Answer 7

R v CC of Sussex, ex parte International Trader’s Authority

Wednesday Test too tautologous nd exaggerated.

Question is “one which a reasonable person could reach”

Still has its problems

Question 8

Classes of unreasonableness

Answer 8

A) Material defects in the decision-making process
B) Oppressive decisions
C) Decisions that violate constitutional principles

De Smith & Jowell

Question 9

Material defects in the decision making process

Unreasonableness

Answer 9

Not faulty in illegality, but serious enough to render a decision flawed.

• Wrongly weighing up relevant factors
• Failure to provide a comprehensive chain of reasoning - irrationality
• Duty to make adequate enquiry - Tameside Duty

Question 10

Material defects in the decision making process
Wrongly weighing up relevant factors

Unreasonableness - Key case

Answer 10

West Glamorgan CC v Rafferty
* Travellers faced eviction from local authority land in circumstances where the local authority was under a statutory duty to provide sites in their area. It had failed to do so, no temporary sites even
* No reasonable authority would have placed more weight on the delay in reclaiming land, than impact on travellers and others

Question 11

West Glamorgan CC v Rafferty

Unreasonablness

Answer 11

Wrongly weighing up relevant factors
* Travellers faced eviction from local authority land in circumstances where the local authority was under a statutory duty to provide sites in their area. It had failed to do so, no temporary sites even
* No reasonable authority would have placed more weight on the delay in reclaiming land, than impact on travellers and others

Material defect - wrongly weighing up relevant factors

Question 12

Re Duffy

Unreasonableness

Answer 12

• Appointment of two loyalist proponents to the Parades Commission of Northern Ireland.
• Parades Commission should be an independent objective and impartial mediator.
• A decision that no reasonable SoS could not have made.
  = unlawful

Material defect - Incorrectly Weighing up all the relevant factors

Question 13

Material defects in the decision-making process
Chain of reasoning

Unreasonableness

Answer 13

Sub category of unreasonableness often described as irrationality.

R v SoS for Environment, ex parte Fielder Estates (Canvey Ltd)

Irrationality

Question 14

R v SoS for Environment, ex parte Fielder Estates (Canvey Ltd)

Unreasonableness

Answer 14

• Planning application to build houses refused, public inquiry set up and listed for three days.
• A complaint was made to the SoS who ordered a fresh inquiry.
• Developers applied for JR
• SoS decision was unreasonable as to verge on irrational as there was no logical reason why objectors views could not have been considered in writing.

Material defect - chain of reasoning

Question 15

R v SoS for Health, Ex parte Luff

Unreasonableness

Answer 15

• Irrationality unsuccessfully raised as a ground for review.
• Middle aged couple wanted to adopt Romanian orphans
• Poor life expectancy and health
• Took advice from Bexley Health Panel that were suitable to adopt, but did not follow
• Not irrational as would likely cause trauma to the child

Material Defects - Irrationality failed

Question 16

R v NW Lancashire Health Authority, Ex parte A D & G

Unreasonableness

Answer 16

Policy toward gender reassignment surgery was unlawful
Health Authority ignored significant body of expert medical opinion when stating there would have been no proven clinical benefit
Acted Irrationally

Material defect - no chain of reasoning

Question 17

R (Rogers) v Swindon NHS Primacy Care Trust & SoS for Health

Unreasonableness

Answer 17

Availability of breast cancer treatment
Swindon PCT was irrational policy, could provide funding for some women in the relevant eligible group and not others on the basis of exceptional circumstances

Material defect - irrationality

Question 18

Bank Mellat v HM Treasury (No 2)

Unreasonableness

Answer 18

• Under Counter Terrorism Act 2007 the Treasury issued a direction prohibiting all parties in UK financial sector from dealing with claimant bank - connections to Iran Nuclear Programme.
• Act required proportionate response
• Treasury actions were unlawful - irrational and arbitrary = not a proportionate response.
• Bank Mellat had been singled out
• Justification not consistent with those advanced at litigation

Material defect - irrationality - disproprotionate / singled out

Question 19

R(DSD and NBV)

Unreasonableness

Answer 19

Explore irrationality and illegality
* Case involved challenge to Parole rapist John Worboys.
* Board had not acted irrationally, failing to probe the evidence presented more thoroughly.
* Had acted irrationally by failing to follow up with further inquiries re: further criminal offending carried out by worboys.
* So obviously material = no reasonable Parole Board should have failed to carry out further investigation.

Material defect - irrationality - inadequate enquiry

Question 20

Material defects in the decision-making process
Duty to make adequate enquiry

Answer 20

Tameside Duty = a duty is considered to fall on decision makers to take reasonable steps to put themselves in a position to be able to take a rational decision

“did the SoS ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”

Question 21

R (Plantagenet Alliance) v SoS for Justice

Unreasonableness

Answer 21

Group claiming to be descendents of Richard III alleged justice secretary had failed to properly inform himself by conducting a public consultation.

Tameside Duty was one of rationality and not process.

The Tameside information must be of such importance, or centrality, that its absence renders the decision irrational

Material defect - Failure to enquire

Question 22

R ( Law Soc of Eng and Wales) v Lord Chancellor

Unreasonableness

Answer 22

Lord Chancellor was found to have failed (in limited respects) in his Tameside duty to undertake further financial modelling relating to the recommendations of the Criminal Legal Aid Independent Review.

Material Defect - Duty to adequately enquire (Tameside)

Question 23

Oppressive decisions - definition

Unreasonableness

Answer 23

Where a decision imposes excessive hardship or represents an infringement of rights which is deemed unnecessary, courts will consider it to be oppressive and therefore unreasonable.

eg the imposition of a penalty for legal behaviour

Unreasonableness - oppressive

Question 24

Wheeler v Leicester City Council

Unreeasonableness

Answer 24

• A ban imposed on Leicester Rugby Club
  Prevented club from using City Council’s Welford Road grounds for its matches.
• Ban introduced due to intention to play South African tour during apartheid era.
  = improper use of statutory powers
• Excessive punishment of legal behaviour

Unreasonableness - Oppressive - excessive

Question 25

R v SoS for the Hope Dept ex parte Norney ## Footnote Unreasonableness

Answer 25

Refusal to refer cases of IRA prisoners serving discretionary life sentences to the Parole Board until their tariff expired Unlawful because meant them serving **many longer months in detention.** Follow such a policy without compelling reasons = "Wednesday unreasonable" **Oppressive** and **contrary** to the principles of common law & ECHR ## Footnote Oppressive - Contrary to CL and ECHR

Question 26

R v Barnsley MBC, ex parte Hook | Unreasonableness

Answer 26

Decision of a local authority to remove Hook's market trading licence because he urinateed in a side street was quashed. = excessive and disproportionate on claimant and livelihood. ## Footnote Oppressive - excessive & disproportionate

Question 27

Decisions that violate constitutional principles | Unreasonableness

Answer 27

To uphold **rule of law** decisions of public bodies should be **consistent** and sufficiently **certain**. Material defect - decision making = inequality before the law. eg *R v SoS for Home Dept, ex parte McCartney* ## Footnote Unreasonableness - Unconstitutional

Question 28

R v SoS for Home Dept, ex parte McCartney ## Footnote Unreasonableness

Answer 28

* Home Sec set tarrif sentence for McCartney at a higher level of those who had committed more serious crimes of a similar type * = **Inconsistent** * = Wednesbury Unreasonable ## Footnote Unconstitutional - Inconsistent / RoL

Question 29

Uncertainty Case ## Footnote Unreasonableness

Answer 29

**Percy v Hall** * Certain military byelaws = too uncertain in geog scope * Protesters who tried to enter a military base were arrested and sought to argue the boundaries of bases were **not clearly defined enough** * Possibility was accepted, but ultimately rejected ## Footnote Unconstitutional - Rule of Law - Certainty

Question 30

Intensity of Review requires assessment of

Answer 30

* **technical basis** on which a relevant decision may be challenged. * assess the **context**. This will determine the **degree** or **extent** of judicial intervention.

Question 31

Substantive grounds for judicial review

Answer 31

Grounds that purport to criticize the **substance of a decision**, as opposed to or as well as, the manner in which it was made.

Question 32

Intensity of review Meaning

Answer 32

**Degree** that courts scrutinize decisions. = Practical manifestation of how the separation of powers operates when courts scrutinse executive decisions.

Question 33

Higher intensity of review

Answer 33

Decisions affecting fundamental / human rights

Question 34

Decisions concerning broader policy questions | Review Intensity

Answer 34

**Lower** intensity of review

Question 35

Constitutional Entitlement ## Footnote Review intenstity

Answer 35

Courts tend to be reluctant to **interfere** with the decisions of democratically elected officials on questions of **policy**

Question 36

Wednesbury Standard

Answer 36

"If a decision on a component matter is **so unreasonable that no reasonable authority could have come to it,** then the courts can interfere" **A very high threshold to overcome** - has led to original standard to be modified in certain circumstances in common law.

Question 37

Institutional competence ## Footnote Review Intensity

Answer 37

Fundamental rights have traditionally been seen as something that courts are under a **strong duty to protect**. Courts **should** scrutinize these matters more closely, have **experience and competence**

Question 38

Which areas are the courts most likely to review?

Answer 38

Overlap between * constitutional entitlement * Institutional competence

Question 39

Broad social and economic policy

Answer 39

**Higher degree of deference** and lower intensity of review therefore.

Question 40

Nottinghamshire CC and SoS for Environment ## Footnote Intensity of review

Answer 40

Coined the phrase **super Wednesbury** to denote these areas of policy that are demeed to be **too political** and not within the proper Ambit of JR.

Question 41

Super Wednesbury was coined in which case ## Footnote Intensity of review

Answer 41

*Nottinghamshire CC and SoS for Environment* This was a case whether the court could intervene to quash the Env Sec's guidance for setting **public spending limit**. As a **Statutory Instrument from Parliament** was deemed to have the seal of democratic approval

Question 42

Lord Scarman on political judgmenet | Super-Wednesbury

Answer 42

Unless and until a statute provided otherwise, or it is established that the SoS has abused his power, these are matters of political judgement for him and the House of Commons. | Nottinghamshire CC v SoS Env

Question 43

R v Cambridge District Health Authority, ex parte B | Super Wednesbury

Answer 43

Decisions about how a **limited budget** is allocated to maximum advantage for the max number of patients is not one that the court should make. eg Denial of medical treatment for leukaemia by the health authority. | Super Wednesbury - policy decision

Question 44

R v SoS for the Home Dept, ex parte Javed | Super-Wednesbury

Answer 44

High policy **does not automatically prevent the court from intervening** CoA found minister had acted irrationally when he made a statutory instrument that designated Pakistan as a country in which "there is no risk of persecution" ## Footnote Found not to be super-Wednesbury despite Parliamanet approval

Question 45

Decisions affecting fundamental rights | In relation to Wednesbury

Answer 45

Reverse side of the deference coin is that in some circumstances the court are increasingly willing to exercise a **more intense degree of scrutiny** **SUB Wednesbury**

Question 46

Budaycay v SoS for the Home Dept | Sub Wednesbury

Answer 46

The most anxious scrutiny --> human rights

Question 47

MoD ex parte Smith and Others

Answer 47

Applicants were discharged from the armed forces on the basis of sexuality. Courts reviewed with a **relatively intense degree of scrutiny - not military policy but membership and rights.** ## Footnote Degree of scruitny - rights

Question 48

R (Rogers) v Swindon NHS Primary Care Trust & SOS for Health.

Answer 48

Intense scrutiny was applied. Heard after the **HRA 1998**, court recognised the **Art 2 had not yet been tested, ** Life-or-death decision = rigorous scrutiny was applied ## Footnote breast cancer case

Question 49

If Human Rights engaged, what is the approach to Wednesbury unreasonableness

Answer 49

Human Rights Act 1998 HRA provided further development of judicial scrutiny in respect of decisions that affect fundamental rights. **Proportionality, rather than Wednesbury unreasonableness**

Question 50

Proportionality as an independent JR ground?

Answer 50

There may be additional aspect that can be reviewed that were not identified at the time. Doctrine of proportionality = means employed by a decision maker **must be no more than necessary to achieve the aim.**

Question 51

A new independent ground of JR? Orthodox view of proportionality.

Answer 51

*R v SoS for the Home Department, ex parte Brind* Relevant decision was challenged both on the basis that it was Wednesbury Unreasonable and it was disproprotionate. Did not recognise an independent ground of proportionality.

Question 52

Challenges to the orthodox position

Answer 52

*R (Daly) v SoS for the Home Department* Wednesbury was retrogressive, as suggested there was degrees of unreasonableness, and that **only the very extreme can lead to JR**

Question 53

Lord Steyn in Daly

Answer 53

Distinguishes between the Wednesbury standards of review and proportionality.

Question 54

R (Alconbury) v SoS for Env, Trans, and Regions

Answer 54

Lord Slynn stated that the time had come to recognise that proportionality was an established principle of adminstrative law. **"trying to keep the Wednesbury Principle and proportionality in separate compartments seems to be unecessary and confusing"**

Question 55

Asociation of British Civillian Internees - Far East Region v SoS for Defence

Answer 55

LK Dyson Recognising proportionality as a general test = strong. in relation to Wednesbury unreasonableness, "it is not for this court (ie CoA) to perform its burial rites"

Question 56

Pham v SoS for the Home Dept

Answer 56

Vietamese born man and to deprive him of British Citizenship. Obiter discussion of proportionality. **Proportionality = forensic and precise legal test.** Court did not feel necessarily promoted greater judicial intervention = varying degree of intensity depending on constitutional and practical context .

Question 57

Keyu v SoS of Foreign and Commonwealth Affairs

Answer 57

Suggested that a replacement for domestic law in Wednesbury. unreasonableness. Proportionality should be sanctioned by a panel of a full UK Supreme Court as would = a signficant consititutional develomentt ## Footnote Development of the law - requires UKSC

Question 58

Future of proportionality.

Answer 58

Youssef v SoS Foreign and Commonwealth Affairs Accepted the need for "authoritative review" by the SC

Question 59

What is the significance of the proportionality approach?

Answer 59

It is increasing