#3129 - Unreasonableness And Irrationality - GDL Constitutional and Administrative Law

Introduction

- Wednesbury unreasonableness: Associated Picture Houses Ltd v Wednesbury Corp [1948].

• facts: W. had power under s1(1) Sunday Entertainment Act 1932 to grant licence ‘subject to conditions as the authority thinks fit’; licence granted to APH to open Sundays, but condition that no-one under 15 allowed; APH challenged CoA: not unreasonable.

• standard: [Ld Greene]: decision so unreasonable that no reasonable authority could have come to it.

• - Controversial: ‘unreasonableness’ undefined – courts come close to impinging on role of executive.

  • conflict with separation of powers – vs. principle of JR: legality + process of decision, not substance.

    • [Loveland]: ‘more readily regarded as being concerned with the political + moral rather than (in the strict sense) the legal character of the decision concerned’).

  • insufficient explanation of why unreasonable:

    • intuitive: risk that disguises prejudice / policy decisions.

    • lack of transparency + structure.

  • [Jowell & Lester]: test tautologous – unreasonable = decision which is not reasonable.

  • not always followed: many decisions ‘coldly rational’.

  • too deferential?

  Reformulation of the Wednesbury Test

  - Irrationality: GCHQ [1985]: [Ld Diplock].

  • standard: decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

  • but: still problematic – casting aspersions on decision-making.

  - Additional formulations.

  • [Ld Diplock] in GCHQ: ‘further dev. on case by case basis’ more grounds in future? esp. proportionality.

  • R v CC Sussex ex p International Traders Ferry [1999]: [Ld Cooke]: decision one which a reasonable authority could reach?

    Classes of Unreasonableness

    - 3 main classes – [De Smith & Jowell]:

  • 1. material defects in decision-making process (not amount to illegality).

  • 2. oppressive decisions.

  • 3. violation of constitutional principles – arbitrary decisions.

  1. Material Defects in the Decision-Making Process

  - Defects serious enough to render decision flawed (but not illegal) – 2 subdivisions:

  • 1. decision-maker wrongly weighs up relevant factors.

  • 2. decision-maker fails to provide comprehensible chain of reasoning – irrational.

  - Wrongly weighing up relevant factors.

  • West Glamorgan CC v Rafferty [1987]: LA tried to evict travellers; did not give sufficient weight to failure to provide alt. site (despite statutory duty) unreasonable.

  • R v SS for Home Dept ex p Cox [1993]: convicted murderer released on parole; convicted of minor offences (dishonesty, cannabis possession) while in pre-release hostel so returned to prison; would have to serve 2 yrs before next parole hearing unreasonable: insufficient weight to length of detention faced.

  • Re Duffy [2008;]: appointment of 2 prominent loyalists (support Garvaghy Road parade) to NI Parades Commission (independent, impartial mediator of disputes) HoL [Ld Bingham]: unreasonable/unlawful.

  - Failure to provide comprehensive chain of reasoning – irrational.

  • R v SS Environment ex p Fielder Estates [1998]: objector to planning application unable to give ev. at public inquiry because closed sooner than expected; SS ordered new inquiry with fresh inspector unreasonable: objector’s views could have been considered in writing – decision illogical + irrational.

  • R v SS Health ex p Luff [1992]: couple deemed unsuitable to adopt Romanian orphans because of poor health; SS had taken account of but not followed advice of Bexley Health Panel saying couple suitable [Waite J]: not irrational: reasonable to hold other view – trauma to children if couple ill or die.

  • R v NW Lancs HA ex p A, D & G [2001]: general policy denying treatment for transsexualism except in ‘exceptional circs’ [Auld LJ]: not irrational if each case considered on its merits.

  • R (on app. of Ann Marie Rogers) v Swindon NHS PCT & SS Health [2006]: PCT refused experimental breast cancer drug Herceptin except in ‘exceptional circs’ (compared to other eligible patients) CoA: irrational – cannot rationally distinguish between different women eligible for treatment (all have same clinical need).

    • + N.B. interim relief: granted by court while case being heard app. to emergency situations.

  • R (on app. of Limbu) v SS Home Dept [2008]: discretionary decision to refuse ex-Gurkhas right to settle in UK because insufficient ‘connection with UK’: based on physical presence irrational: purpose of policy to honour historic debt.

  2. Oppressive Decisions

  - Oppressive decision: imposes excessive hardship or unnecessary infringement of rights.

  • Wheeler v Leicester CC [1985]: decision to ban Leicester Rugby Club from using council playing fields because some players intended to play in South Africa HoL: unreasonable (+improper use of statutory power) – unfairly punishes club.

  • R v SS Home Dept ex p Norney [1995]: HS refused to refer 5 IRA prisoners on discretionary life sentences to Parole Board until tariff expired unlawful: result of much longer sentences than if referrals made in advance + unreasonable: oppressive + contrary to common law + ECHR.

  • R v Barnsley MBC ex p Hook [1976]: stallholder caught urinating at back of market by market inspector; decision to take away stall unreasonable: out of proportion to offence.

  3. Arbitrary Decisions

  - Arbitrary decisions: inconsistent / insufficiently certain contrary to rule of law + lead to inequality.

  • inconsistency: R v SS Home Dept ex p McCartney [1994]: HS set tariff for criminal serving 3 discretionary life sentences for attempted murder of policeman higher than similar offenders CoA: unreasonable.

  • uncertainty: Percy v Hall [1997]: protestors tried to enter military base + arrested; argued by-laws unclear on base’s area CoA: not unreasonable (but argument accepted in principle: unclear/uncertain laws unreasonable).

  Application: Intensity of Review

  - Intensity of review: degree to which court will scrutinise decision under challenge.

  • dep. on type of decision: e.g. decisions affecting human rights intensely reviewed; broader policy less.

  - Traditional Wednesbury standard: high threshold – app. to most cases.

  • standard: [Ld Greene]: so unreasonable no reasonable decision-maker would have reached that decision.

    • high threshold – req. strong ev: e.g. ex p Hook.

  • but: loosened test – [Ld Cooke] in International Traders Ferry.

  - Broad social and economic policy questions: less intense review – deference to decision-maker.

  • ‘super-Wednesbury’ standard: areas of policy decision-making political: not within ambit for JR.

    • [Ld Scarman]: ‘unless and until statute provides otherwise, or it is established that the SS has abused his power, these are matters of political judgment for him and for the House of Commons. They are not for the judges.

    • [Wade & Forsyth. Administrative Law]: ‘court must take special care for constitutional reasons, not to pass judgment on action which is essentially political’.

  • Nottinghamshire CC v SS Environment [1986]: SS issued guidance to LAs limiting public expenditure not unreasonable: approved as statutory instrument by Resolution of Parliament – ‘seal of democratic approval’.

  • R v Cambridge HA ex p B [1995]: HA refused to fund treatment of child with leukaemia not unreasonable.

    • [Sir T Bingham]: budget allocation decisions should not be made by court.

  • BUT: R v SS Home Dept ex p Javed [2001]: SS made statutory instrument designating Pakistan as country in which ‘in general, no risk of persecution’ despite evidence to contrary; asylum-seekers denied appeal against refusal CoA: decision incomprehensible + irrational.

    • Nottinghamshire distinguished: court as well placed to decide risk of persecution as minister; + human rights context.

  - Decisions affecting fundamental rights: more intense review – less deference.

  • Bugdaycay v SS Home Dept [1987]: [Ld Bridge]: courts can subject decision to ‘more rigorous examination … according to the gravity of the issue’ – constitutional/fundamental rights ‘anxious scrutiny’.

  • R v SS Home Dept ex p Brind [1991]: SS issued directive preventing broadcast of words spoken by anyone representing certain terrorist organisations; challenged as infringement of right to freedom of expression HoL: not unreasonable, but subject to intense scrutiny.

  • R v MoD ex p Smith [1996]: decision to expel homosexuals from military.

    • [Sir T Bingham]: ‘the more substantial the interference with human rights, the more the court will require by way of justification’.

  • effect of HRA 1998: proportionality – new test applied...