Public Law L5 - JR - Unreasonableness Flashcards
(20 cards)
What is unreasonableness? (2)
It is a ground for judicial review that a public body has acted unreasonably. It become known as ‘Wednesbury unreasonableness’ following the judgment in Associated Provincial Picture Houses Ltd v Wednesbury Corporation 1947.
What is the general principle of the Wednesbury test? (2)
If a decision on a competent matter is so unreasonable that no reasonable authority could have ever come to it, then the courts can interfere, to prove a case of that kind would require something overwhelming.
What are the three main areas of unreasonableness? (3)
- Material defects in the decision-making process
- Oppressive decisions
- Decisions that violate constitutional principles
What are material defects in the decision-making process? (2)
These are defects which are not faulty in terms of ‘illegality’, but which are serious enough to render a decision flawed.
What sub-topics can material defects be divided into? (2)
Wrongly weighing-up relevant factors and failure to provide a comprehensive chain of reasoning: ‘irrationality’.
What are oppressive decisions? (1)
Where a decision imposes excessive hardship or represents an infringement of rights, which is deemed unnecessary.
What are decisions that violate ‘constitutional principle’? (1)
When decisions made by public bodies are not consistent and the rules are not sufficiently certain.
Why are decisions that violate ‘constitutional principle’ unreasonable? (3)
They represent arbitrary decision-making, can lead to inequality before the law and do not uphold the rule of law.
What is the second issue we have to consider in regard to unreasonableness? (1)
The degree to which the court will scrutinise the decision under dispute, known as intensity of review.
What can intensity of review be seen as? (1)
A practical manifestation of how the theory of separations of powers operates when the courts are asked to scrutinise executive actions and decisions.
How will degree of scrutiny of review differ? (2)
Decisions affecting fundamental or human rights are subject to more intense review, whereas broader questions of policy relating to social and economic policy are likely to be less closely scrutinised.
What is meant by super-Wednesbury? (2)
Areas of policy decision-making, which are deemed to be political and not within the proper ambit for judicial review, other than in fairly exceptional circumstances.
What is meant by ‘sub-wednesbury’? (2)
When an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny.
What does the idea of institutional competence relate to? (2)
Not only should the courts scrutinise decisions concerning fundamental rights more closely but that judges are also more experiences, knowledgeable and skilled in assessing these kinds of questions, rather than broader questions of government policy.
What does the doctrine of proportionality require? (1)
The means employed by a decision-maker to try to achieve a legitimate aim must be no more than is strictly necessary.
What can proportionality be seen as? (1)
An addition to the three grounds of review for unreasonableness.
How has the HRA 1998 affected unreasonableness? (2)
Domestic cases engaging specific rights in the European Convention have been approached using the proportionality standard as opposed to the Wednesbury standard. All other types of judicial review, in which ECHR rights are not engaged – remain associated with the traditional Wednesbury test.
Why is there contention regarding the proportionality approach? (2)
The intensity of review somewhat greater than the Wednesbury standards of review can provide different outcomes.
Is intensity of review a binary consideration? (3)
No - cases may involve both fundamental rights and social and economic policy. The courts will determine this question on a case-by-case basis.
Does higher scrutiny equal unreasonableness? (1)
No.
