irrationality Flashcards
what is irrationality
second ground of judicial review - lord diplock GCHQ
concerns control of discretion - unreasonableness and proportionality
constitutional context
courts need to be able to intervene where discretion is abused
limits to judicial control over discretion (seperation of powers, democratic principle and expertise)
different degrees of intrusion into substance/merits (arguments shouldnt look at merits)
courts cannot substitute judgement for that of the decision maker
discretionary decisions and reasons
judicial control of discretion involves looking at decision itself, no general duty for decision maker to give reason for decisions but if no reasons given and decision isnt good court may conclude no good reason for decision
wednesbury case
AoP legalised opening cinemas on sundays, prior to 1932 this wasnt possible
issued licenses to cinemas on such conditions that auths seek to impose and a cinema applied for the license which was granted by wednesbury CC on condition no children under 15 go this was because most the council were christians who believe sunday is for church and sunday school
established the test of unreasonableness - courts only intervene when decision so unreasonable no other authority would take that decision
GCHQ - lord diplock - a decision so outrageous in its defiance of logic or of accepted moral standards that no sensible reason who has applied his mind to the Q to be decided, could have arrived at it
wednesbury applied: rogers case - NHS trusts refusal to allow prescription drug for early stage breast cancer except in exceptional circumstances and failing to provide a criteria for exceptional circumstances
CoA held to be irrational as no reason why only certain patients allowed drugs
illegality and irrationality
step 1: illegality review - is the consideration relevant?
if yes then step 2: irrationality view - has the decision maker given relevant consideration unreasonable weight?
low intensity review ( super wednesbury)
courts = particularly differential to decision maker
socio economic choices attract the highest lvl of deference and lowest intensity review
ex parte nottingham case - minister decided on its policy in terms of allocation of budgets for different councils, courts only intervened if an obvious prima facie case (case with enough proof to go to trial or judgement) - shown secretary of state acted in bad faith or improper motive - heightened degree of deference rationale
anxious scrutiny (sub wednesbury)
wednesbury not suitable for human rights cases
bugdaycay case - immigration case - entered UK and claimed victim of persecution in uganda but didnt get asylum as would send him to kenya not uganda but evidence that kenya didnt comply with geneva convention and would send ppl to uganda
lord bridge made clear this decision could not be scrutinised by wednesbury as too hands off for case with fundamental rights to life so more vigorous examination needed and wednesbury test needed to be modified
less differential and more intensive which is justified by interests at stake
smiths case
90s homosexuals not allowed in armed forces and challenged in HoLs on ground of human rights
lord bingham - is there justification for humiliating service men and women in this way? not unlawful as justification for ban may seem outrageous but not wholly incompatible and no present uniformity as opinions are divided
case taken to ECHR (smith and grady) and wednesbury test criticised - too differential and incompatible - requires a proportionality test
daly case
prisoner who complained the policy which requires prisoners to leave cells during cell searches compromises confidentiality as they may have privileged correspondence (letters w/ lawyers)
lord cooke - wednesbury = retrogressive so should abandon it
courts accepted in HR cases that proportionality test should replace wednesbury
test: (established in huang case)
A - is the legislative objective sufficiently important to justify limiting a fundamental right?
B - are the measures which have been designed to meet it rationally connected to it?
C - are they no more than necessary to accomplish it?
D - do they strike a fair balance between the rights of the individual and the interests of the community
proportionality involves a high intensity of review - doesnt take point of decision maker
quila case
challenge to immigration rules - premise = they are secondary legislation and can be quashed by judicial review
increase minimum age of spousal visa from 18 - 21
A = aim to prevent forced marriage - legitimate aim
B = measure could deter some forced amrriages
C = it deterred genuine marriage significantly more than it did forced marriages
D = unbalanced measures - imbalanced to right to parties of unfroced marriages and the interst of the community to prevent forced marriages
latest version of proportionality test
A - objctive of measure is sufficiently important to justify the limitation of a protected right
B - …rationally connected to objective
C - whether a less intrusive measure could have been used without compromising the achievement of the objective and
D - whether balancing the severity of the measures effects and rights of the persons to whom it applies against the importance of the objective to the extent that the measure will contribute to this achievement the former outweighs the latter - BANK MELLAT CASE
but keyu case - SC made clear not time to make a move and its a decision from parliament to use proportionality as a ground of JR
advantages and disadvantages of irrationality and proportionality
irrationality:
pros - prevents review of merits, simple and suits administrative decision making
cons - too deferential, not suited for rights cases, variations lead to uncertainty
proportionality:
pros - structured inquiry, reasoned decisions and varying intensity of review
cons - intrudes into merits, balancing is inappropriate in some cases and legal uncertainty
