Admin - Irrationality

Question 1

what is irrationality? (incl. x2 cases + quote!)

Answer 1

• Wednesbury + GCHQ
• a decision which defies logic or accepted moral standards so much so that no sensible person could have come to it

Question 2

what are the types of irrationality review?

Answer 2

• super-wednesbury
• classic-wednesbury
• sub-wednesbury/anxious scrutiny
• proportionality

Question 3

cases in which classic Wednesbury has been applied

Answer 3

• Rogers - irrational decision regarding an NHS trust’s refusal to allow prescription drug for early-stage breast cancer and a failure to provide criteria for exceptionality
• Duffy - irrational decision regarding SoS’s appointment of members of the Orange Lodge to the Parades Commission; no reasonable person would regard them as impartial

Question 4

what is super-wednesbury?

Answer 4

• decisions which attract the highest level of judicial deference and the lowest intensity of review
• usually used for socio-economic choices or social policy

Question 5

case where super-wednesbury has been used

Answer 5

• ex p Nottinghamshire CC - court refused to intervene in a decision to cap the council’s ability to raise money; intervention only possible if the decision-maker’s ‘guidance was so absurd that they must have taken leave of their senses’
• R v Cambridge Health Authority ex parte Child B - the courts declined to intervene in a health authority’s decision not to fund a child’s expensive medical treatment which had a very low chance of success
• ex parte Javed - blanket policy of returning immigrants to Pakistan; Javed was entitled to have the policy reviewed by the courts as it was not safe to apply the policy in this particular case

Question 6

what is the court’s stance on super-wednesbury?

Answer 6

• they have a lack of expertise and legitimacy regarding such questions
• these questions lean more towards being political rather than legal (to avoid judicialisation of public administration)

Question 7

what is sub-wednesbury? (incl. case example)

Answer 7

• decisions with a lowest level of deference and a high intensity of review
• used for pre-HRA cases and EU law cases (e.g. ex p. Smith)

Question 8

what did ex p Smith say about sub-wednesbury?

Answer 8

• anxious scrutiny used in decisions ‘[w]here decisions of a policy-laden, esoteric (niche) or security-based nature

Question 9

what is a case where sub-wednesbury has been used?

Answer 9

Bugdaycay - should be used especially in situations where an individual’s right to life is under challenge

Question 10

what is proportionality? (incl. case)

Answer 10

• the standard of review under the HRA and EU law
• greater intensity of review than the heightened scrutiny test in order to protect human rights (Daly)

Question 11

example of a case using proportionality

Answer 11

Smith and Grady v UK - Smith and Grady were discharged from the RAF by a blanket policy which excluded homosexuals from the military; ECtHR held that Art 8 ECHR (right to private life) was violated without any justification

Question 12

what was the original case in which proportionality was established?

Answer 12

Huang

Question 13

what is the most recent version of the proportionality test? (incl. case)

Answer 13

Bank Mellat (No.2) - Lord Reed
1. is the objective of the measure sufficiently important to justify the limitation of a protected right?
2. is the measure rationally connected to its objective?
3. is there a less intrusive measure which could have been used without unacceptably compromising the achievement of the objective?
4. can a balance be struck between effect on the community and the importance of the measure?

Question 14

what is ‘balancing’ in the proportionality test? (incl. case)

Answer 14

Kennedy - balancing the claimant’s interests against public interest (how is this decision reached)

Question 15

Craig on the proportionality test

Answer 15

• proposes that irrationality and proportionality have their own merits
• proportionality can be just as intrusive as irrationality; just depends on how intensively the courts choose to apply each respective test

Question 16

what is an example of a low scrutiny proportionality case and what does it entail?

Answer 16

• The claimant must show manifest disproportionality
• British American Tobacco - low scrutiny proportionality appropriate whenever the EU legislature exercises a broad discretion involving political, economic or social choices requiring it to make complex assessments

Question 17

Mashaw on the proportionality test

Answer 17

use of proportionality test is more transparent than wednesbury - since the test is laid out in 4 clear steps (such as in Huang or Bank Mellat), there is transparency in the discretionary factors behind a decision

Question 18

case law supporting proportionality as the new norm

Answer 18

Daly (Lord Cooke) - argues that proportionality should replace irrationality review and that admin law will never be satisfied by merely finding that a decision under review is not ‘capricious or absurd’

Question 19

case law supporting proportionality and irrationality being used in tandem

Answer 19

• Kennedy - ‘the nature of JR in every case depends on the context’
• irrationality and proportionality should be viewed as two independent ‘tools’ within the courts’ toolkit

Question 20

case law which implies a difference between irrationality and proportionality

Answer 20

Pham - question raised in obiter of whether application of the proportionality test would have made a difference to the outcome of the case (as opposed to irrationality)

Question 21

case law which rejects proportionality (x2)

Answer 21

• Youssef - there was no requirement for the Court to apply the proportionality test
• Keyu - outright refusal of replacing irrationality w proportionality; court held that if proportionality test had been applied, the result would have been the same