Grounds of Judicial Review (III ... and IV?)

Question 1

How does Lord Diplock define irrationality in the GCHQ case?

Answer 1

“applies to a 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.”

Question 2

State some historical origins on the origins of “unreasonableness”.

Answer 2

• Lord Atkinson: “reasonable remuneration”
• Roberts v Hopwood [1925]: “excessive” payments to high for reasonable use
• “A person in whom is vested a discretion must exercise his discretion upon reasonable grounds.”
• Wednesbury, Lord Greene: “no reasonable authority could ever have come to it.”

Question 3

But is unreasonableness its own ground of review? [the old view] [Lord Greene in Wednesbury]

Answer 3

• Unreasonableness is not a ground of review (sub-category of illegality)
• “no authority whatsover … to decide what is reasonable and what is unreasonable. The court has nothing of the kind.”

Question 4

How could you link unreasonableness to illegality in this case?

Answer 4

Means a big error of law (still not its own ground of review)

Question 5

What is the modern position of unreasonableness?

Answer 5

• Unreasonableness now its own ground of review
• Courts decide what is unreasonable
• (Lord Diplock) If courts cannot answer what is unreasonable, there’s something badly wrong about the judicial system

Question 6

What can we learn from the case of Wednesbury [1948]?

Answer 6

• Condition: “no children under the age of fifteen years shall be admitted to any entertainment whether accompanied with an adult or not” on Sundays
• Answer: Reasonable (well-being of children is not a matter of the local authority, and Sunday is day of rest)

Question 7

What can we learn from the case of ex parte Brind [1991]?

Answer 7

• Condition: banning voice of terrorist only, but words could be read by reporters and videos of person included
• Answer: Reasonable (ban has limited scope, not enough for judge to say “I think it is unreasonable”)

Question 8

What can we learn from the case of ex parte Smith [1996]?

Answer 8

• Condition: homosexual men/women not allowed to serve in the armed services (can compromise to military efficiency)
• Answer: Reasonable (supported by both HOP, specifically on professional advice and based on survey of armed forces)

Question 9

What is the lesson overall on unreasonableness?

Answer 9

• Very difficult standard to reach
• Why?: Constitutional principle; supervisory JR only
• “Only if it is outside what any reasonable ministers might have done” (Lord Ackner in Brind)

Question 10

When can the standard be lowered?

Answer 10

In cases involving rights (“anxious”/”heightened” scrutiny)
- Case: Ex parte Smith [1996]
- Case: Ex parte Turgut [2001]

Question 11

What did the ECHR claim about unreasonableness?

Answer 11

• Standard is too high
• Stopped UK courts looking into at whether disproportionate interference with rights in case to achieve this

Question 12

Describe the idea of proportionality.

Answer 12

• General idea: balance; going no further than necessary; an appropriate relationship between means and ends
• Origins: European civil legal systems, EU and Treaty of European Union

Question 13

Based on the case of Bank Mellat [2013], what can we learn about proportionality?

Answer 13

Necessary to determine:
- Whether objective of measure is sufficiently important
- Measure rationally connected to objective
- If less intrusive measure could have been use
- Disproportionate to likely benefit of impugned measure

Question 14

Which act is relevant regarding proportionality in the UK?

Answer 14

Human Rights Act; s6 (duty of public authorities and courts to act compatibly with Convention rights) + s2 (duty on courts to take into account ECHR case law)

Question 15

What can we learn from the case of IA & others v Secretary of State for the Home Department (Upper Tribunal)?

Answer 15

• Tribunal tells Government that there is a disproportionate interference of rights
• Therefore family should be allowed to enter country and stay with brother in UK
• “Balance sheet approach” - balancing ‘extremely harsh’ circumstances against government’s concerns

Question 16

Generally, what can we learn about proportionality as its own ground of review in courts?

Answer 16

• Generally not accepted by Courts of review, except in human rights cases
• Could evolve to “ground of review” by itself but we’re not there yet