Irrationality - Discussed the Wednesbury principle of unreasonableness. Discussed the GCHQ case PDF

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Discussed the Wednesbury principle of unreasonableness. Discussed the GCHQ case and the threshold it to satisfy this requirement. Discussed case studies relevant to the topic. Briefly mentioned proportionality under ECHR and HRA. Revision notes included. Delivered by John Kelly....

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Constitutional Law – Lecture 17 Judicial Review 2 – Irrationality Irrationality in judicial review • Thus far this evolution has established that executive action will be the subject of judicial review on three separate grounds. The first is where the authority concerned has been guilty of an error of law in its action as for example purporting to exercise a power which in law it does not possess. The second is where it exercises a power in so unreasonable a manner that the exercise becomes open to review upon what are called, in lawyers' shorthand, Wednesbury principles (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 ). The third is where it has acted contrary to what are often called "principles of natural justice." “ o Lord Roskill, CCSU v Minister for the Civil Service [1985] A.C. 374 The Wednesbury principle • Associated Picture Houses v Wednesbury Corp [1948] 1 KB 223 • Wednesbury unreasonableness: where “a decision is so unreasonable that no reasonable authority could ever have come to it” • Not a court of appeal • Primary/secondary decision-maker • ‘The four corners’ of the discretion • No intervention unless perverse The effect of Wednesbury • Parliament • Gives power to… Wednesbury • Primary decision-maker – council • Secondary decision-maker - judge The GCHQ case test – ‘Irrationality’ • Lord Diplock in GCHQ case – Irrationality: “A decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” • A very high threshold for applicants to succeed Can the threshold ever be satisfied • R (on application of Gurung) v Ministry of Defence [2002] EWHC 2463 (Admin) • R (on application of Rogers) v Swindon NHS Primary Care Trust [2006] 1 WLR 2649 • Both examples of irrationality being successfully argued • Very high threshold Irrationality: case study • R v Ministry of Defence ex parte Smith [1996] QB 517 • Art 8 ECHR rights • Smith and Grady v UK (1999) 27 EHRR CD42 – ECtHR • Contrast irrationality and the ECHR/Human Rights Act test of proportionality

Irrationality: Case study • http://www.telegraph.co.uk/news/newstopics/onthefrontline/5917311/ArmedForces-celebrates-diversity-with-gay-serviceman-in-Soldier-magazine.html • Compare US policy: ‘Don’t ask, Don’t tell’ • ‘Don’t ask, Don’t tell, Don’t pursue’ • ‘Don’t ask, Don’t tell, Don’t pursue, Don’t harass’! Proportionality under ECHR/HRA • Use of discretionary power by PB should not cause disproportionate interference with an ECHR right • Involves balancing of reasons for and against a decision or policy and the importance of the right in question • Advantages: • Structure? • Clarity? • But involves greater interference with the primary decision-maker • Concept of weight • R v Home Secretary ex parte Brind [1991] 1 A.C. 696 • Lord Lowry’s four warnings • R (Daly) v Secretary of State for the Home Department [2001] 2 A.C. 532 policy disproportionate • Brown v Stott [2003] 1 A.C. 681 policy not disproportionate • R v Lambert [2001] UKHL 37 o Would make it easier for people to succeed in their claims o Would make is easier for courts to question the executive – could lead to overreaching of the courts o Courts could develop tiered system of proportionality Which is better? • "The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred." o Lord Diplock, Secretary of State for Education and Science v Tameside Metropolitan B.C. [1977] A.C. 1014 Is Wednesbury still relevant? • Wednesbury unreasonableness/ Irrationality still the test for domestic cases with no ECHR/HRA or EU Law element • Association of British Civilian Internees – Far East Region v Secretary of State for Defence [2003] QB 1397

Constitutional Law – Revision Notes Judicial Review Grounds: Irrationality • • • •

Wednesbury unreasonableness/irrationality Question is would no reasonable person have reached the decision Something overwhelming needed GCHQ – unreasonableness as irrationality – decision wouldn’t have been reached by a reasonable person

Test for unreasonableness Applies where • A decision or action is in itself not rational – decision make can act within the areas they ought to consider but have come to a conclusion so unreasonable that no reasonable authority could ever have come to it – considered the right factors but the decision is beyond the range of reasonable responses • Relevant factors were ignored or irrelevant ones taken into account • Lord Diplock summarised question: Did the decision-maker ‘ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer the question properly Important notes • Courts look more intensely at the decision itself and can consider whether the public body asked itself the right question • Court isn’t substituting its own idea of what is reasonable • Primary decision makes is the public body which decides on the merits of a matter • Secondary decision maker is the court which assess the decision for irrationality Irrationality threshold Decisions or policies which discriminate against individuals and infringe fundamental principles such as equality • R (On the application of Gurung) v Ministry of Defence o G, national of Nepal, had served in Gurkha regiment in WW2 and was captured by the Japanese and held as a prisoner of war o Twice Ministry of Defence decided to exclude Gurkha’s from a scheme awarding compensation to former prisoners of war of the Japanese o G and other nationals asked for judicial review, arguing decision was irrational o Held the decision to exclude Nepalese nationals from the scheme was based on racial grounds, and was irrational and inconsistent with the principle of equality of UK law Policies that do not ‘make sense’ or stand up to scrutiny • R (On the application of Rogers) v Swindon NHS Primary Care Trust o Anne Rogers was diagnosed with breast cancer but local NHS PCT would only fund treatment with specific drug if there were exceptional clinical or personal circumstances

o PCT’s have a discretion whether to provide particular drugs but the trust hadn’t defined what constitutional exceptional circumstances and what justified funding one patient rather than another o Held the policy was irrational, and could be quashed because there was no rational basis for preferring one patient to another o It was for the PCT to formulate a lawful policy for future decisions Decisions that ignore relevant matters • R (DSD and NBV) v Parole Board of England and Wales and John Radford o Radford had been convicted of 19 serious sexual offences o Court held the Parole Board’s decision in December 2017 to release him on license was irrational because the Board should have followed up on references to other victims and carried out further inquiries about other offences which would have provided relevant additional material Irrationality thought process • Courts consider the weight and balance given to different interests by the primary decision maker • Where a public body has given serious consideration to a matter with coherent and relevant reasons, its decision will generally be unreasonable or irrational • Irrationality review is focused on the decision maker’s fact-finding processes Sliding scale of review • Intensity of review depends on the context of the case • Flexible approach in which the courts can turn the level of scrutiny up or down • Low intensity review is applied in cases involving ministers’ political and economic judgment where the courts are less willing to intervene – apply a ‘super-Wednesbury test’ – high level of unreasonableness, where they require ‘bad faith, impropermotive or manifest absurdity’ before intervening • Anxious scrutiny – where a decision infringes fundamental rights, a lower level of unreasonableness than the absurdity level is applied o Test is whether a reasonable Secretary of State, on the material before him, could reasonably make the primary judgment o Allows the court’s scrutiny to be stricter and more intense where the courts look more closely at the decision....