#13569 - Review Of Discretion Quick - Administrative Law

Review of Discretion

Rationality review does not, as such, assess the conclusion reached, just how it was reached with regard to the reasons used and how they were balanced.

1. Wednesbury unreasonableness

Wednesbury gives the orthodox, high threshold, version of judicial review: a Court can review where a public body reaches a decisions which is so unreasonable that no reasonable authority could ever have come to it.

• Craig points out that, if taken literally, the threshold is too high to include any type of decision.

• Has been criticised as:

1. Monolithic, with a single, fixed standard.

• As such, Smith v Grady noted that the test was unsuitable for HR cases, since it did not afford sufficient safeguards and protection.

2. Standard is extremely high.

• Similar to above, provides no real safeguard.

These criticisms might not be apt considering the more flexible standards adopted pre-HRA.

• Lord Bridge in Bugdaycay introduced the idea of ‘anxious scrutiny’.

  • Articulated more clearly in Ex p Smith, accepting a ‘variable standard of review’.

  • In Begbie, Laws LJ considered Wednesbury as ‘a sliding scale of review more or less intrusive according to the nature and gravity of that is at stake.

• Most recently in Kennedy, emphasised that context was the driving force, with differing intensities dependent on the facts.

• Craig fairly argues that once the high threshold is departed from, it is not really Wednesbury at all, since that is the defining characteristic.

2. Proportionality

Introduced formally in relation to the HRA and the EU (though some have contended that it had been used pre-HRA from flexible standards above).

• Kavanagh: ‘seeks to strike a balance between constitutional principles that protect policy and political decision-making on the one hand, and core liberties of the individual affect by that process on the other.’

• Clearly outlined in Bank Mellot (No 2):

1. Whether the objective was of sufficient importance to limit the right;

2. Whether the measure adopted had a rational connection to the object;

3. Whether less intrusive measures could be used;

4. Whether a fair balance had been struck.

• In Daly and other cases, it has been emphasised that the same result would come from either head of review.

• Confirmed in Pham that can be used outside the ECHR/EU context.

Rivers describes the test as ‘a substantial field of merits-based review’.

• This raises concerns as to institutional competence and legitimacy, where the courts are substituting or correcting the decisions of the primary decision makers.

• However, it is strongly argued that proportionality, though more intrusive, is still fundamentally concerned with how the decision is made, not what the decision is.

  • It is true, as Lord Bingham pointed out in Miss Behavin, that the starting point is whether there has been a violation of the applicants rights – inevitably considering substance in this sense.

  • Similarly, in Carlisle, SC made clear that they will take their own view as to whether the measure was proportionate.

• However, Lord Sumption went on to emphasise that they will accord the decision maker a ‘range’ of right answers and would not become the primary decision maker (Bank Mellot).

Lord Steyn considered proportionality as ‘materially different’ in Brind, for two reasons:

• Firstly, proportionality may require the reviewing court to assess the balance that the decision maker has struck, not merely whether the decision was in the range of reasons.

  • Kavanagh emphasises that the two are not feasibly separated – assessing the balance struck is necessary to construct the range of reasons and whether the particular decision was in it.

  • Seen in Carlisle.

• Secondly, claimed that proportionality is distinguishable in allowing the court to balance rights and interests.

  • However, as seen, this is done in the common law too (Smith, Brind).

  • Smith and Grady criticised the application of the test, not the test itself.

3. Are they different?

Seen that the two arguments from Lord Steyn in Brind are unconvincing.

• It is suggested that the main difference in flexibility.

  • Elliott: the difference is one of degree, referencing the calibration of scales.

  • Kavanagh: ‘the form of the test adopted is less important than the willingness or ability of the courts to interfere with the decision of the elected bodies.’

• Therefore, the difference is one of application, through intensity.

  • Williams notes that we have only seen more intrusive proportionality because Wednesbury takes on the less intrusive role, having ‘deferential baggage’ (Kavanagh).

  • AXA v Lord Advocate shows a more deferential approach, with the test only being whether the legislation was ‘manifestly without justification’.

  • Similarly, Rowbottom noted of Prolife Alliance the comparably deferential approach.

• Both are designed to do the same thing – in terms of purpose (Barber) and function (Kavanagh).

  • There is difference in practice, in a sort of self-fulfilling prophecy – thought to be necessarily more intrusive, so treated as such.

  • Kavanagh notes that it ‘clearly places the onus on the public authority’.

The substantial difference is that the structure of the tests – proportionality is more structured, but also narrower; Wednesbury is broader, but subsequently more open.

4. Reform?

If they do the same role, put proportionality has the flexibility to do more, there are widespread calls for the end of Wednesbury.

• Expanding not just in HRA/EU context, but also common law:...