5. JUDICIAL REVIEW: UNREASONABLENESS

Question 1

UNREASONABLENESS

Answer 1

Def: an unR decision is one “so unR that no R authority could ever come to it” (Associated Provincial v Wednesbury Corporation, per Lord Greene)

There are three types of unRness:

• FAULTY DECISIONS
• OPPRESSIVE DECISIONS
• ARBITRARY DECISIONS

Question 2

unRness: Type - FAULTY DECISIONS

Answer 2

A decision may be faulty where the decision maker:

• INCORRECTLY considers factors relevant to the case, or
• FAILS to provide proper reasoning (irrationality)

INCORRECT CONSIDERATION OF FACTORS
- EGs: Appointment of biased individuals to a commission that required impartiality (Re Duffy). Failure to consider the proportionality of a prison sentence (R v SoS HD ex p Cox). Failure to comply with a statutory obligation at all (West Glamorgan CC v Rafferty)

FAILURE TO PROVIDE PROPER REASONING

• a decision will be irrational where it does NOT reflect a policy’s purpose and/or does not take into account important considerations (R(Limbu) v SoS HD)
• EGs: A ban on medical treatment should be acceptable provided that the exceptions to that ban are sufficiently CLEAR and THOUGHT THROUGH (R v North West Lancashire HA ex p A, D and G cf. R(Rogers) v Swindon NHS Primary Care Trust and SoS Health). Opening an entirely new enquiry when a complaint could simply have been dealt with in writing was unR (R v SoS Environment ex p Fielder Estates). Refusing an old couple’s right to adoption on the grounds of the age/poor health was acceptable due to the potential risks to the child (R v SoS Health ex p Luff)

Question 3

unRness: Type - OPPRESSIVE DECISIONS

Answer 3

A decision causing undue hardship will be unR.

EGs: Penalties imposed without legal justification (Wheeler v Leicester CC). Refusing to consider a prisoner’s parole (that resulted in extra time) was oppressive and in breach of Art 5(4) ECHR (R v SoS HD ex p Norney). Depriving a street seller of his licence for urinating in public was too oppressive (R v Barnsley Metropolitan BC ex p Hook) - per Lord Denning, a fine would have been more appropriate.

Question 4

unRness: Type - ARBITRARY DECISIONS

Answer 4

Decisions will be arbitrary if they are INCONSISTENT or TOO UNCERTAIN

• laws may be arbitrary if they are too uncertain (Percy v Hall)
• Disproportionate sentences may be inconsistent (McCartney)

Question 5

unRness: INTENSITY OF REVIEW

Answer 5

The intensity with which a court reviews a decision will depend on the NATURE of the decision in question.

REGULAR CASES
TEST: Wednesbury unRness
- High threshold

MACRO SOCIO-ECONOMIC-POLITICAL DECISION CASES

• TEST: “Super-Wednesbury” unRness (Nottinghamshire CC v SoS Environment)
• – VERY HIGH threshold
• Generally, the court will NOT intervene in such cases, unless:
• – there is an HR element or blanket ban (R v SoS HD ex p Javed), and/or
• – there is an abuse of power (Nottinghamshire CC v SoS Environment per Lord Scarman)
• EG: the decision to ration medical care was outside the court’s jurisdiction (R v Cambridge HA ex p B)

HUMAN/FUNDAMENTAL RIGHTS CASES

• TEST: PROPORTIONALITY (R(Daly) v SoS HD)
• In rare cases where rights are at stake which are not convention rights, the test is “sub-Wednesbury” unRness (a lower threshold than usual) (Association of British Internees v SoS Defence)
• – the court will examine the decision as rigorously as necessary in order to “ensure that it is in no way flawed” (Bugdaycay v SoS HD per Lord Bridge)
• – the greater the interference with individual rights, the greater the justification the court will require for the decision (R v Ministry of Defence ex p Smith)