Wednesbury essay - The threshold for wednesbury unreasonableness is so ludicrously high that as a doctrine for JR it serves no useful purpose PDF

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The threshold for wednesbury unreasonableness is so ludicrously high that as a doctrine for JR it serves no useful purpose - This essay is a point by point criticism of this statement relating to the doctrine of wednesbury unreasonableness in judicial review. ...

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The threshold for wednesbury unreasonableness is so ludicrously high that as a doctrine for JR it serves no useful purpose 1) Wednesbury unreasonableness comes from the Associated Provincial Picture Houses v Wednesbury Corporation: Lord Green described it as a decision that is so unreasonable that no reasonable authority could have come to it. Diplock in GCHQ: a decision so outragerous in its defiance of logic and accepted morality that no sensible person who had applied his mind to the question to be decided could have arrived at it. 2) The way in which Wednesbury operates from the very start sets it up as having a high threshold. This isnt the court imposing a standard of reasonableness rather the question is put the other way round so that it the decision is so unreasonable that no reasonable decision maker could have come to it. Looking at decision which are as descibred in Daly as capricious or absurd or as according to Diplock in GCHQ outrageous in defiance of logic or accepted moral standards. 3) The courts are keen to ensure that they are not with this sort of review usurping the role of the decision maker. The decision maker was chosen by parliament so they want to respect the separation of powers and show deference as Sumption says in Carlile. The courts here arent truing to insist on its view of the reasonable decision. They are only looking at to interfere with decisions that are extreme in their defiance of logic. As a result of this the standard wednesbury isnt especially useful as shown in the Devon CC v George where the court recognised it was for the council to decide their priorities in relation to funding not the court, so they shouldn’t interfere. And it bears remembering that in the cases which was the very inception of the doctrine the threshold wasn’t met. 4) Things get worse for wednesbury in cases where judicial deference is due -> super wednesbury. As where a governmental decision is given the support of P like in Notts CC it is hard for the courts to do anything to touch it. If they were to quash central government policy which has the support of p they would not only be stepping over the boundary for the separation of powers, as there is political accountability for that decision, but also offending p sov and would show disrespect to the democratic weight and legitimacy that the decision has by virtue of such affirmation. Deference is also shown in GCHQ to national security, also diplomacy in Carlile and national interest in Bancoult No2. Deference doesn’t apply to illegality review though -> Javed. 5) This all isnt to say however that Wednesbury is useless, it can be quite active in a rights context. Such as in Daly as wednesbury was satisfied as the common law protected the common law right to privileged correspondence between solicitor and client as this was infringed without adequate justification -> this was moving towards almost a proportionality type test. This is known as anxious scrutiny and is engaged whenever a fundamental or constitutional right is at stake, it means the public body has to come up with an adequate excuse for the infringement, without this the decision is held to be wednesbury unreasonable. Nevertheless as in ex parte Smith still have to defer. 6) Arguably it is this sliding scale of wednesbury which means it is a useful tool according to James Goodwin. It means that rights can be protected but also respect decisions where deference is due. This is giving effect to the separation of powers by recognising there are some things where the courts should interfere which include protection of the rights of the individual from the executive but others arent in which they should show deference. He says there is a bifurcation argument normativity of imposing stricter standard of review in cases concerning the infringement of HR. The difference Goodwin believes between Wednesbury and proportionality is under wednesbury look at range of permissible decision (discretionary

area of judgment) looking where the decision falls in relation to it whereas proportionality looks to assess balance struck not just whether rational and reasonable. Here look at justifications and weight whereas in wednesbury this is just a guideline for merit. Observing sofp court has supervisory not appellate role as secondary decision maker, shouldn’t substitute its own judgment just say whether its within parameters -> court doesn’t have institutional competence to do more than this. Proportionality threatens conflation of primary and secondary decision making. Believes normative justification for imposing stricter standard of review for administrative decisions impacting on fundamental rights, differentiation he says needed between those given pre-eminent status and those not. Prop should be applied to where those involved in all other cases use variable wed. 7) Proportionality and wednesbury share the same idea with regards to scrutinising substance of decision, not merely procedural or jurisdictional issue. Proportionality is more structured and exacting. 4 stage test in bank mellat. Craig argues wesnesbury should be replaced by prop review which is currently only used in cases concerning qualified HR. Although Lord Diplock back in GCHQ prohephetically said it could develop to become a ground for JR. Depends on what your view is on the role that the courts should play. Steyn in Daly points out 3 key differences 1) prop might require assement of balance that has been struck not whether within range of a reasonable decision 2) prop goes further as looks at the weight given to different consideration 3) heightened scrutiny in ex parte smith might not be enough as failed in that case but passed using prop at ECtHR....