Discretion 1 Flashcards
Do the grounds of judicial review of administrative discretion fall into coherent and logical categories? Are there other dimensions to how a court reviews administrative discretion that are not reflected in attempts to categorise the grounds of review?
Intro
It is a necessary feature of modern administration that administrative bodies have a degree of discretion in their decision-making. However, it is equally true that the rule of law requires the courts to maintain some degree of supervision over them. Broadly, their grounds for doing so fall into two categories: illegality and irrationality (NB Diplock mentions more but Endicott argues that they are all species of illegality). Whilst one might presume that the former is concerned solely with questions of law, while the other assesses the merits of a decision, in reality, the grounds of review are a mixture of the two, both distinct and related to one another, united in their purpose to achieve two simple aims: to ensure that a decision-maker does not act illegally, and that he does not act irrationally. In addition, the grounds of review are inherently sensitive to the facts and the nature of the test is altered by the subject-matter of the decision.
Do the grounds of judicial review of administrative discretion fall into coherent and logical categories? Are there other dimensions to how a court reviews administrative discretion that are not reflected in attempts to categorise the grounds of review?
Grounds of Judicial Review
In R (Corner House Research) v Serious Fraud Office, Lord Bingham identified a number of grounds which might render a decision subject to judicial review for reasons of illegality: “[The Director of the Serious Fraud Office] must seek to exercise his powers so as to promote the statutory purpose for which he is given them. He must direct himself correctly in law. He must act lawfully. He must do his best to exercise an objective judgment on the relevant material available to him. He must exercise his powers in good faith, uninfluenced by any ulterior motive, predilection or prejudice.” Some of these grounds are self-evident: an administrative body cannot be allowed to act unlawfully and, equally, it would be a travesty of justice if a court could not intervene if it acted in bad faith. However, the others are worth evaluating in greater detail for two reasons. First, why is a court justified in interfering in the decision of a body who has failed to meet one or more of these criteria? Secondly, is Lord Bingham stating multiple facets of one principle, or do they represent several distinct grounds of judicial review?
Do the grounds of judicial review of administrative discretion fall into coherent and logical categories? Are there other dimensions to how a court reviews administrative discretion that are not reflected in attempts to categorise the grounds of review?
Grounds of Judicial Review
Promotion of the Statutory Purpose
The House of Lords recognised this implicit restriction on the exercise of a discretion in Padfield v Minister of Agriculture. Lord Reid reasoned as follows: “Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act”, that one can only infer the objects of the Act by interpreting the statute and the interpretations of statutes is always a legal question to be decided by the court. The justification which follows is very similar to, if not indistinct from, Lord Bingham’s assertion that administrative bodies must act lawfully. The policy behind an Act is, according to Lord Reid’s reasoning, as much the law as the words of the Act, and by exercising its discretion for reason other than the statutory purpose, an administrative body acts unlawfully.
Lord Reid’s explanation appears to correctly balance the need to supervise administrative bodies without removing their discretion, as the policy of an Act of Parliament is a legal question to which their is a clear correct answer and is capable of being answered accurately by the court; once the policy is ascertained, how best to achieve it is left to the discretion of the body. However, this neat balance between the law surrounding a decision and the substance of the decision was upset in Wheeler v Leicester City Council. Leicester City Council refused to grant the local rugby club use of its sports grounds when three of its members joined the England Rugby tour in apartheid South Africa. Lord Templeman held that punishing the club was an improper use of the council’s powers, even though the Council was pursuing a legitimate aim in seeking to combat racism pursuant to the Race Relations Act 1976. Applying Lord Reid’s analysis, the policy of the statute was to combat racial discrimination - Lord Roskill even rejected a narrower interpretation of the statute. It should follow, therefore, that it was within the Council’s discretion to pursue this aim as they saw fit within the law. However, Lord Templeman describes the Council’s decision as a “misuse of power”. This decision implies that the court has made an assessment of the decision’s merits and found that the rugby club’s response to the tour - a “perfectly proper attitude” - did not warrant the Council’s response. Although Lord Roskill held that a quashing order should be granted because the Council had been Wednesbury unreasonable, he also stated that he agreed with the judgment of Lord Templeman. In contrast to Lord Reid’s view that the purpose of an Act is purely a question of law, it appears also to be one of degree in Lord Templeman’s speech, dependent also on the merits of the decision.
The conflicting nature of this ground of judicial review was resolved in R (British Civilian Internees - Far Eastern Region) v Secretary of State for Defence. Dyson L.J held that “the measures designed to further the objective must be rationally connected to it”. There are two aspects to the pursuit of a statutory purpose. First, the purpose of a statute must be ascertained - this is the legal question identified by Lord Reid in Padfield. Secondly, the measures taken by the administrative body in pursuit of that aim must relate to that purpose - this requires an assessment of the merits of the decision. This explains the decision in Wheeler, because the steps taken by the Council in that case were not really going to improve race relations, but were intended to punish the rugby club for defying the Council. Although this assessment of the decision’s merits blurs the clean distinction drawn by Lord Reid between the law and the decision-maker’s discretion, it necessarily fills an otherwise grey area between the grounds of illegality and irrationality, in order to ensure that the decision-maker does not abuse the powers granted to it by Parliament.
Do the grounds of judicial review of administrative discretion fall into coherent and logical categories? Are there other dimensions to how a court reviews administrative discretion that are not reflected in attempts to categorise the grounds of review?
Grounds of Judicial Review
Must Direct Himself Correctly in Law
This ground has two aspects: first, the decision-maker correctly interprets his jurisdiction under the statute (which is not relevant here) and, secondly, that the decision-maker does not fetter the discretion granted to him by Parliament. Lord Reid in British Oxygen Co v Minister of Technology held that “[t]he general rule is that anyone who has to exercise a statutory discretion must not ‘shut his ears to an application’… What the authority must not do is to refuse to listen at all.” (‘the no fettering rule’) The justification for this is obvious on reflection: the prejudices of the decision-maker should not influence the way in which he exercises his discretion, especially not at the expense of the merits of an applicant’s evidence. If such was permitted, then it would be the very definition of arbitrary government, and the rule of law necessitates that the courts can intervene in such cases.
Distinct from the pursuit of a statutory purpose, this is concerned solely with how the decision-maker reaches the decision: so long as it has considered the merits of an applicant’s case, the court will not interfere on this ground and will certainly not assess the decision’s merits. For example, in quashing an order made by the Secretary of State in R v Environment Secretary, Ex p Brent LBC, Ackner L.J held that, once he had assessed the merits of the plaintiff’s application, it would be open to the Secretary of State to make any decision he considers appropriate.
Do the grounds of judicial review of administrative discretion fall into coherent and logical categories? Are there other dimensions to how a court reviews administrative discretion that are not reflected in attempts to categorise the grounds of review?
Grounds of Judicial Review
The Decision Must be Made on the Relevant Information Available
This ground is both closely related to, and yet clearly distinct from, the previous ground. Lord Diplock in Education Secretary v Tameside BC held that the decision-maker must not only ask himself the right question, but also “take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly”. This is necessary if the no fettering principle is to have any effect: there is no point in requiring a decision-maker to consider the merits of a case if there is no obligation to also consider the evidence which is relevant. Without the evidence, the consideration of the case is a purely formal requirement without true purpose.
However, again, this ground of review requires the courts to undertake some assessment of the merits of the decision, because the court can only ascertain if relevant evidence was considered by analysing the reasoning of the decision. This has required the courts to strike a careful balance between their supervisory role and the independent expertise of the decision-maker. In Tesco Stores v Environment Secretary, Lord Keith held that whether or not a piece of evidence is relevant is to be decided by the court, “[b]ut it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit.” The court must make its own assessment of the evidence to analyse whether or not it is relevant to the decision; it is clearly distinct from the non-fettering principle as being grounded in the prohibition on irrationality, rather than illegality. This ground complements the other’s purely legal question with a cursory assessment of the facts to ensure that the decision-maker undertakes a fair assessment of an applicant’s case.
Do the grounds of judicial review of administrative discretion fall into coherent and logical categories? Are there other dimensions to how a court reviews administrative discretion that are not reflected in attempts to categorise the grounds of review?
Nature of the Test
Not only do the grounds of review blur the line between questions of law and the factual merits of a decision, the courts will pay attention to the factual context and consequences of any decision when deciding to what level of scrutiny to subject it. For example, it is a general rule that a decision-maker cannot come to a conclusion so unreasonable that no reasonable decision-maker would have ever come to it; Associated Provincial Picture Houses v. Wednesbury Corporation. However, it is clear that the courts do not apply this principle equally to all cases; Lord Mance recently held that “[t]he common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so-called Wednesbury principle. The nature of judicial review in every case depends on the context.”
For example, in R v Environment Secretary ex parte Hammersmith and Fulham LBC, the issue of contention was the grants made to a number of London councils by the Secretary of State. Lord Bridge, with whom the rest of their Lordships agreed, held that the court should not quash a decision about national economic policy, which had been made with the approval of the House of Commons, could not be challenged “on the grounds of irrationality short of the extremes of bad faith, improper motive or manifest absurdity.” This suggests that the courts are even more reluctant to interfere with decisions made on polycentric issues which they are particularly ill-suited to assess, such as foreign policy, or economics, referred to by Goodwin as the “super-Wednesbury test.”
(see Jeff King, ‘The Pervasiveness of Polycentricity’
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1027625)
The matter is even more confused by the introduction of EU law and the European Convention on Human Rights. In these contexts, the court must undertake an assessment of proportionality - a concept which is otherwise alien to English administrative law. Even though proportionality and Wednesbury unreasonableness have been equated to one another by the English courts in the past, the two continue to remain distinct, with some presuming that proportionality is an inherently stricter test than irrationality. Although Lord Mance has doubted this theoretically, in practice it will remain true, as proportionality often arises in the context of human rights and, “[i]n the context of fundamental rights, … the scrutiny is likely to be more intense than where other interests are involved.” A stricter test where the courts have statutory justification in the form of the European Communities Act 1972 and the Human Rights Act 1998 importing both ECHR and EU law into the UK’s domestic law, whilst the courts will afford greater deference to the government in those contexts where they lack the tools and democratic legitimacy to assess the government’s decision.
In addition, Wednesbury unreasonableness often calls for some value judgments to be made by the court. Indeed, Lord Carnwath has remarked extra-judicially that Wednesbury itself would be decided differently today. In Wednesbury, a local council prohibited children under 15 from attending the cinema on Sunday and the court held that this was a decision which a reasonable decision-maker could make because the protection of youth was a matter for the local authority. However, this is shaped by the patronising attitudes towards these matters prevalent at the end of the 19th Century and today, it is likely that a court would consider attendance at the cinema as a family to be socially beneficial and hence irrational to prohibit. Clearly, the social attitudes of the courts will inevitably influence what they deem to be reasonable or unreasonable.
Do the grounds of judicial review of administrative discretion fall into coherent and logical categories? Are there other dimensions to how a court reviews administrative discretion that are not reflected in attempts to categorise the grounds of review?
Conclusion
Although the grounds of judicial review are blurred and cannot easily be distinguished from one another, they are at least coherent, unified in their purpose to prevent arbitrary government in the form of either illegal or irrational decision-making. They necessarily complement one another by filling those grey areas which come between Lord Diplock’s grounds of judicial review. This confusion is exaggerated by the influence of contextual factors when scrutinising decisions, such that decisions in practice are heavily dependent upon the individual facts of each case and it is difficult to state any one principle in anything other than the most general of terms.
James: Do the grounds of judicial review of administrative discretion fall into coherent and logical categories? Are there other dimensions to how a court reviews administrative discretion that are not reflected in attempts to categorise the grounds of review?
Intro
There is clearly a distinction between judicial review of the fettering of discretion and judicial review of abuse of discretion. The former involves reviewing the restraint of the exercise of discretion by the executive and the latter involves review of the actual exercise of the discretion itself. There are clearly different principles applied in the case law in these different reviews. Review of a fettering of the exercise of discretionary power involves ascertaining whether the discretionary power comes from statute or common law. Review of the actual exercise of discretion itself involves judging whether something has gone wrong and needs the intervention of the Court. Within the review of abuse of discretion, there is dispute as to whether judicial review falls into coherent and logical categories, namely: improper purposes, relevant/irrelevant considerations and Wednesbury unreasonableness. The better view is that the distinctions between the different categories of judicial review cannot be maintained on paper (i.e. truthfully according to the language of the tests), however the courts seem to persist in perpetuating the distinction in reality – a symptom of judicial subterfuge. Thus, it cannot be said that the grounds of judicial review of the exercise of administrative discretion fall into coherent and logical categories.
James: Do the grounds of judicial review of administrative discretion fall into coherent and logical categories? Are there other dimensions to how a court reviews administrative discretion that are not reflected in attempts to categorise the grounds of review?
Do the grounds of judicial review of administrative discretion fall into coherent and logical categories?
Para 1 + 2
In British Oxygen Co v Minister of Technology Lord Reid held that there can be no objection to a public body devising its own policy on how best to exercise a particular discretion as long as this policy does not contravene the statutory intention and provided the authority is always willing to listen to anyone with something new to say. Adhering to the interpretation of this by Lord Carnwath and Lord Mance in R (Sandiford) v Secretary of State, this means that a public body cannot fetter the exercise of a discretionary statutory power. Thus, this is a clear category of judicial review which involves the Court assessing whether the executive has fettered the exercise of his discretion, where this discretion arises from a statute (not the common law, according to R (Elias) v Defence Secretary). This category is logically distinct from judicial review of the actual exercise of the discretion itself.
Within judicial review of the actual exercise of the discretion, it might appear from the case law that there are three distinct categories: (a) improper purposes, (b) relevant/irrelevant considerations and (c) Wednesbury unreasonableness. It could be interpreted from the judgment of Lord Pearce in Padfield v Minister of Agriculture, where he is said “it was for the Minister to use his power to promote Parliament’s intention”, that the Minister’s discretion was being reviewed for being used for an improper purpose. It is clear from Lord Diplock’s judgment in Education Secretary v Tameside BC that there can be judicial review where the executive takes into account an irrelevant consideration or fails to take into account a relevant consideration. And, in Wednesbury, which was affirmed in R v Chief Constable of Sussex, Ex p. International Trader’s Ferry Ltd, it was held that a decision of the executive could be reviewed if it was so unreasonable that no reasonable authority could come to the same decision.
James: Do the grounds of judicial review of administrative discretion fall into coherent and logical categories? Are there other dimensions to how a court reviews administrative discretion that are not reflected in attempts to categorise the grounds of review?
Do the grounds of judicial review of administrative discretion fall into coherent and logical categories?
Para 3 + 4
At first, these categories appear to be logically distinct and the case law perpetuates this myth. Neill LJ in R v Lewisham LBC, Ex p. Shell UK Ltd appears to clearly distinguish the ‘improper purposes’ ground from Wednesbury unreasonableness, where he found that the decision of the council not to trade with Shell could not be successfully attacked as being unreasonable in a Wednesbury sense, however it could be regarded as a decision for an improper purpose. Similarly, in Wednesbury itself, Lord Greene MR seems to draw a distinction between the ‘irrelevant/relevant considerations’ ground of review and, what later became known as, Wednesbury unreasonableness.
However, if one stays true to the requirement of Wednesbury unreasonableness, that the decision must be so unreasonable that no other decision-maker could reasonably come to the same decision, then this necessarily encompasses improper purposes and/or relevant/irrelevant considerations. If the executive is being so incredibly unreasonable, then they must have taken into account something irrelevant, failed to consider something relevant, or undertaken action for an improper purpose. In other words, if the executive took into account all relevant factors and considered no irrelevant factors and exercised its discretion for a proper purpose, how could this lead to an incredibly unreasonable decision? Thus, Wednesbury unreasonableness, if remaining true to the extreme level of unreasonableness required on paper, serves no extra purpose that is not already covered by the other two grounds of review.
James: Do the grounds of judicial review of administrative discretion fall into coherent and logical categories? Are there other dimensions to how a court reviews administrative discretion that are not reflected in attempts to categorise the grounds of review?
Do the grounds of judicial review of administrative discretion fall into coherent and logical categories?
Para 5 + 6
Moreover, the distinction between improper purposes and irrelevant/relevant considerations cannot be maintained either. In Shell UK it was found that the purpose of Lewisham LBC, wanting Shell UK to change the Shell policy towards South Africa, was improper. This could easily be reworded to say that it was unlawful for Lewisham LBC consider the importance of changing the Shell policy towards South Africa i.e. they considered something irrelevant. This overlap between improper purposes and irrelevant/relevant considerations is clear from Lord Hodson’s judgment in Padfield (supposedly the case which founded the improper purposes ground of review), where he found that the decision of the Minister was unlawful, because “the Minister must have regard to matters which the statute conferring the discretion states the Minister ought to have regarded”, which very much looks like relevant/irrelevant considerations review. Then, Lord Hodson goes onto suggest that the reasons given by the executive were not good reasons in this case, which could be taken to be improper purposes review. This indicates the synonymity between improper purposes and irrelevant/relevant considerations review.
Hence, as noted by Lord Carnwath extra-judicially, the cases of Padfield and Tameside do not apply some distinguishable tests of irrationality or illegality. Rather, the judges’ approaches were to determine whether something had gone wrong which required the intervention of the Court. On paper, i.e. if one applies the tests of these categories of judicial review truthfully, the grounds of judicial review of administrative discretion do not fall into coherent and logical categories. As noted by Lord Sumption extra-judicially, the distinction is maintained falsely by acts of judicial subterfuge in introducing covertly other dimensions into judicial review that are not reflected in attempts to categorise the grounds of judicial review. This includes anxious scrutiny and the denial of the reality that judges are reviewing the merits of the decisions made not just the process by which the executive comes to those decisions (but they decline to admit this).
James: Do the grounds of judicial review of administrative discretion fall into coherent and logical categories? Are there other dimensions to how a court reviews administrative discretion that are not reflected in attempts to categorise the grounds of review?
Are there other dimensions to how a court reviews administrative discretion that are not reflected in attempts to categorise the grounds of review?
Para 7 + 8
The reason why the illogical and incoherent grounds of judicial review are maintained is because the reality of the application of the tests of these grounds of review is wildly different from the actual requirements of the test. To elaborate, the Courts apply Wednesbury unreasonableness far more aggressively than the test requires, depending on the nature and gravity of what is at stake, and so the Court will, in reality attack the merits of the case while hiding behind the principle of Wednesbury unreasonableness. There has been limited judicial admission of this, but Laws LJ did describe Wednesbury unreasonableness as a “sliding scale of review” in Begbie.
Specifically, the added dimension on how a court, in reality, reviews administrative discretion that is not reflected in an attempt to categorise the grounds of review is the idea of anxious scrutiny, first espoused in Bugdaycay. The courts purport to apply the anxious scrutiny principle to inquire more deeply into the process by which the decision of the executive is made, but, in reality, it is used, as noted by Lord Sumption extra-judicially, to attack the merits of the decision made. To elaborate, where the executive has sought to interfere with fundamental rights, it is the fig-leaf of anxious scrutiny which attempts to reconcile the process of reviewing such a decision more vigorously with the court’s traditional reluctance to engage in a merits-based review.
James: Do the grounds of judicial review of administrative discretion fall into coherent and logical categories? Are there other dimensions to how a court reviews administrative discretion that are not reflected in attempts to categorise the grounds of review?
Are there other dimensions to how a court reviews administrative discretion that are not reflected in attempts to categorise the grounds of review?
Para 9
Hence, in reality, the Court, through the disguise of ‘anxious scrutiny’ seem to be adopting a dimension of reviewing administrative discretion on a sliding scale, depending on the particular merits of a decision and the significance of the right interfered with. This looks much more like the principle of proportionality, which Lord Carnwath argues is an added dimension to how the court reviews administrative discretion which is sneaking into the common law through the back door. In Kennedy Lord Mance JSC in obiter dicta held that the common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable using the Wednesbury reasonableness test. Lord Mance JSC then points towards the advantage of the terminology of proportionality which introduces an element of structure into the exercise, by directing attention to factors such as sustainability, appropriateness, necessity and the balance or imbalance of benefits and disadvantages. This obiter dicta goes some way to supporting the view of Lord Sumption that the Court is far more flexible when reviewing cases then a strict interpretation of Wednesbury would permit, however Lord Mance JSC is not going as far as adopting proportionality as the test of judicial review. Having said that, his obiter dicta could be taken to support the view that the Court will essentially apply the same reasoning as used in the proportionality test.
James: Do the grounds of judicial review of administrative discretion fall into coherent and logical categories? Are there other dimensions to how a court reviews administrative discretion that are not reflected in attempts to categorise the grounds of review?
Conclusion
To conclude, there is a clear distinction between reviewing the fettering of discretion and the exercise of discretion itself, but in reviewing the exercise of discretion itself the different grounds of review cannot logically be maintained. This is because the different grounds of review entirely overlap and encompass each other. This myth of the distinction between the categories is seemingly maintained because there are other dimensions as to how a court reviews discretion being imported into judicial review, namely anxious scrutiny and a hidden merits-based review. Whilst this essay has exposed the common law tests of judicial review of discretion as actually being very similar to the test of proportionality, the court has not gone as far as adopting proportionality as the test quite yet, although it may be sneaking in through the back door.
NB: think about the reasons underpinning the so-called “judicial-subterfuge”
