judicial review unreasonableness Flashcards
(15 cards)
What determines whether a decision is justiciable?
Whether it is appropriate for courts to adjudicate, considering constitutional role and institutional competence.
Can prerogative powers be subject to judicial review?
Yes. No power is inherently unreviewable (De Smith’s Judicial Review, Ch. 1).
What are the three core common law grounds of review?
Illegality, Irrationality (Unreasonableness), Procedural Impropriety.
What is a potential fourth ground, particularly in HRA/ECHR cases?
Proportionality.
What is illegality in judicial review?
When a decision-maker fails to understand or correctly apply the law regulating their power (GCHQ case).
Give a case example involving unlawful delegation.
Barnard v National Dock Labour Board and Bourgass – power delegated without legal authority.
What principle allows civil servants to act for ministers?
The Carltona principle.
What must decision-makers do regarding statutory purpose?
Use powers only for the purpose intended by Parliament (Fewings; World Development Movement case).
Who decides what factors are relevant in a decision?
Ultimately the courts, though decision-makers weigh the considerations (Tesco Stores case).
What is the Wednesbury test?
: A decision is unlawful if it is so unreasonable that no reasonable authority could have made it.
What is a key critique of the Wednesbury test?
It’s too restrictive; even flawed but not “absurd” decisions could escape review (Lord Cooke in Daly).
What determines the intensity of judicial review?
Nature and gravity of the decision – courts apply a flexible, issue-sensitive standard (Begbie; Q case).
What does proportionality add to reasonableness review?
A structured framework focusing on necessity, suitability, and balancing competing interests (Kennedy v Charity Commission).
Can proportionality be a general common law ground?
Possibly – it’s developing (e.g. Pham, Keyu, Youssef), but remains controversial.
What are the typical proportionality questions?
1) Is the measure suitable to achieve its aim?
(2) Is it necessary?
(3) Does it strike a fair balance?
