irrationality

Question 1

what is irrationality?

Answer 1

GCHQ 1985, lord diplock:
- By ‘irrationality’ I mean what can now succinctly be referred to as Wednesbury unreasonableness
- applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.
- Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something wrong with our judicial system …
- irrationality by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review.

Question 2

Associated Provincial Picture House Ltd v Wednesbury Corp [1948] 1 KB 223

Answer 2

• . Lord Greene explained (at 230) that not for the courts to impose their view on the public authority; provided that the authority acted lawfully, then courts would not intervene to change a decision that was legally taken. - -
• However, Lord Greene made it clear that lawfulness was linked to reasonableness: in order to act lawfully, the authority had to act reasonably. In the following extract, Lord Greene describes what was meant by ‘reasonable’.
• Warrington LJ in Short v Poole Corporation gave the example of the red-haired teacher, dismissed because she had red hair.

Question 3

test

Answer 3

• It decided that the appropriate test to be applied in human rights judicial review cases is the test of proportionality, and not irrationality.

Question 4

test for proportionality

Answer 4

• de freitas test
• Lord clyde: “whether i) the legislative objective is sufficiently important to justify limiting a fundamental right; ii) the measures designed to meet the legislative objective are rationally connected to it; and iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective

Question 5

Lady ARDEN IN BROWN

Answer 5

“Accordingly, these authorities spell out the simple proposition that, for now at any rate, the common law test for judicial review is based on the underlying principle of rationality. Whilst there is some support for adopting a proportionality test in particular cases concerned with fundamental rights (see for example Kennedy), there is a recognition that a more widespread change would require a major review by the Supreme Court and the necessary overruling of Brind and Smith.”

Question 6

R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696, per Lord Roskill, p.750:

Answer 6

Lords Bridge and Roskill expressed the opinion that proportionality might be incorporated by the law,

Question 7

sMITH 1996

Answer 7

• Bingham, 556: The greater the policy content of a decision, and the more remote the subject matter from ordinary judicial experience, the more cautious the courts must be before holding a decision to be irrational (p.556)

Question 8

· Smith and Grady v United Kingdom (2000) 29 EHRR 493, [137-138]: ,

Answer 8

it was held that the standard of review was still not high enough as compared to proportionality review and thus the case was overturned

Question 9

Pham v Secretary of State for the Home Department [2015] UKSC 19,

Answer 9

Lord Mance, [98]: Lord Mance stated [52-54]- that the Wednesbury standard had developed an issue-sensitive scale of intervention to enable the Courts to perform their constitutional function in an increasing polity and concluded that the proportionality test is relevant to judicial review outside the scope of Convention and EU law, apparently performing the burial rights to the Wednesday principle which Dyson LJ foreshadowed in [34-37] in R(ABCIFER v Secretary of State for Defence [2003] QB 1397