Unreasonableness/Irrationality (L8) Flashcards
What is the unreasonableness ground of review?
It may be argued that a decision is unreasonable in law even when no other grounds of review apply, e.g. there is no error in law, and the decision is not tainted by an improper purpose or taking irrelevant matters into account.
This qualifies the principle that once the relevant factors have been identified it is for the decision-maker (and not the reviewing court) to decide how much weight to attach to each factor.
What did Lord Russell say in Kruse v Johnson [1898] 2 QB 91 to help develop the unreasonableness doctrine?
“If for instance they were found to be partial and unequal in their operation…. Manifestly unjust; … bad faith;…. if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say, ‘Parliament never intended to give authority to make such rules; they are unreasonable and ‘ultra vires’ … A by-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient.”
(99-100)
What is the Wednesbury principle as stated in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223?
“It is true the discretion must be exercised reasonably. Now what does that mean ? … Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L. J. in Short v. Poole Corporation gave the example of the redhaired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another. … It is true to say that, 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. That, I think, is quite right; but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind.” (Lord Greene).
How did Lord Diplock in GCHQ adapt the Wednesbury principle/definition?
Wednesbury — Lord Greene: “So unreasonable that no reasonable authority could have arrived at it”.
GCHQ — Lord Diplock: “A decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who applied his mind … could have arrived at it.”
What are the problems with irrationality as a ground of review?
Irrationality is a misleading term = completely unreasonable, inexplicable, mad.
The courts ‘impugn decisions that are far from absurd’.
If courts only interfere with ‘insane’ decisions, some improper decisions would be immune from judicial scrutiny.
- Jowell and Lester [1987] PL 368, at 372.
How did Sir Thomas Bingham MR phrase the question of unreasonableness in R v Ministry of Defence, ex parte Smith [1996] QB 517?
Is “the decision… unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker”? (553)
How was the question of unreasonableness phrased in R v Chief Constable of Sussex Police ex parte International Trader’s Ferry Ltd [1999] 2 AC 418?
“Whether the decision is one which a reasonable authority could reach”.
“These unexaggerated criteria give the administrator ample and rightful rein, consistent with the constitutional separation of powers.”
How can we analyse the Wednesbury test?
Wednesbury appears to be a restrained and deferential test, but: “Like any precedent… the legal effect of the Wednesbury decision depends on the facts of the case.”
In Wednesbury, it may have taken “something overwhelming” to overturn the democratic licensing decision of a local authority.
But the principle of relativity means that some contexts will require: Even more restraint (e.g. international relations, spending decisions).
Less restraint (e.g. if liberty is at stake). The result is that unreasonableness operates on a sliding scale, depending on context and the attitude of the courts may change over time.
How does Kelly v Monklands District Council 1986 SLT 169 demonstrate an irrationality claim?
A housing authority had to decide whether an applicant was “vulnerable” within the meaning of Section 2 of the Housing Homeless Persons Act 1977.
If she was vulnerable, she would then have a priority need for accommodation.
A person could be “vulnerable” for the purposes of the 1977 Act “as a result of old age, mental illness or handicap or disability or other special reason”.
Rejection of applicant’s claim held to be ultra vires.
What did Lord Ross conclude in Kelly v Monklands District Council 1986 SLT 169 for the irrationality claim?
“I am not persuaded that every 16 year old is vulnerable within the meaning of the Act. However, when you find a girl of 16 who has no assets, no income and nowhere to go and who has apparently left home because of violence, I am of the opinion that no reasonable authority could fail to conclude that she was vulnerable”.
(page 171)
Which other cases serve as examples of irrationality claims?
McRae v Parole Board for Scotland 1997 SLT 97.
Decision to revoke release on licence.
McTear v Scottish Legal Aid board 1997 SLT 108.
Refusal of legal aid.
Dinnell v Scottish Ministers [2015] CSIH 7; 2015 SC 429.
Refusal of compensation under ex gratia compensation scheme for imprisonment.
What did Laws LJ say in R v Secretary of State for Education and Employment ex parte Begbie [2000] 1 WLR 1115 about the standard of review for irrationality?
“It is now well established that the Wednesbury principle itself constitutes a sliding scale of review, more or less intrusive according to the nature and gravity of what is at stake”.
What does the case of R (Q) v Secretary of State for the Home Department [2004] QB 36 tell us about the standard of review for irrationality?
Courts have developed an “issue sensitive scale of intervention to enable them to perform their constitutional function in an increasingly complex polity”.
What is the sliding scale of irrationality?
Deciding when a decision is reasonable.
Is it within the “range of reasonable responses”?
——>
Courts apply issue-sensitive scale of intervention (varying “intensity of review”)
——>
Where on the scale depends on context.
What is the ‘low intensity’ end of the sliding scale?
Low intensity.
e.g. political context.
Judges intervene where there is ‘manifest absurdity’.
Defer more.
“Super-Wednesbury” test.
