Irrationality/Proportionality Flashcards
Associated Provincial Picture Houses v Wednesbury Corporation [1948]
Irrationality, or unreasonableness, in English common law judicial review begins in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.
United Kingdom these days is not very religious. However, we used to be a much more religious country in the past. In fact, one of the remnants of our religion still plagues us every Sunday. When it gets to 7 PM at night and you fancy cooking yourself some dinner and you want to go to Tesco to buy yourself some produce you cannot go to Tesco. Why? Because we have Sunday trading laws. Sunday trading laws prohibit companies from opening more than six hours on Sunday. That is why most big stores that you see are open between 10 AM and 4 PM. Once a shop gets over a certain size it has to close on a Sunday after being open for six hours.
Another law that used to exist was the Sunday Entertainments Act 1932, Section1, which gave public authorities the power to subject Sunday entertainments to such conditions the authority thought fit to impose. Meaning, do what you want – so some local authorities may ban sports on a Sunday for some reason; some may limit the opening hours of pubs, restaurants, and clubs. This was to service the Lord upon the Lord's day. Wednesbury Corporation (corporation meant council in olden day speak) allowed it cinema to stay open on a Sunday, but decided that children under 15 years of age were only to be permitted into the cinemas on a Sunday provided they were accompanied by an adult.
This was then of course reviewed by the local Picture House who felt that it was going to lose a lot of business from the cinema if under 15-year-olds were not allowed to come on a Sunday. This rule would limit the business of children to Saturday, so they did not like this decision. So they judicially reviewed it.
Lord Greene in his judgment held that Sunday opening hours was a matter that had many divided views. He said that when a statute gives a public body discretion, the person entrusted with the discretion must direct himself properly in law; he must call his own attention to the matters which he is bound to consider. He must exclude this consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may truly be said, and often is said, to be acting “unreasonably.”
Lord Greene: “A person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. Must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.” Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation gave the example of the redhaired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith, and in fact, all these things run into one another.”
Test for irrationality
The test for irrationality then is this one: So absurd that no sensible person could ever dream that is lay within the powers of the authority.
Lord Diplock said that Wednesbury Unreasonableness is said to have occurred if the “decision 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.”
Wheeler v Leicester City Council
In Wheeler v Leicester City Council, Leicester city Rugby Club were denied use of Council owned pitches because some of the club members had toured South Africa. It was held firstly by the court to be illegal because they took into account irrelevant considerations and they used their statutory power for an improper purpose.
This is what I was saying earlier about a lawyer walking into a courtroom – he will not go with just one single argument. He would say that this is irrational and improper purpose. Then he will say that even if you don’t believe one of those two, he will go on to say that it is unreasonable. The judge may turn around and say that he agrees and all three counts – it is irrational, it’s improper, and there are irrelevant considerations that are being taken into account.
It was held that no reasonable counsel would have used its powers over sports ground management in the way that it did.
So, probably what the judges did was they looked around the country and looked at the councils, and asked if it were a common thing, or even an accepted thing in any of these councils, for them to ban clubs based on political reasons. They could not find anywhere really; they would not be able to find any other examples of where that would be an acceptable thing to ban people for.
This allowed them then to conclude that the Council was not allowed to ban them for that reason, and it was unreasonable, and it defied logic and that no other Council would come to such a decision. This is because they said that no other Council would come to this choice really.
So Wheeler is a good example of where it was found that a public body’s decision was unreasonable under the Wednesbury Test.
Puhlhofer v Hillingdon LBC [1986]
Another problem is that when the Wednesbury Test is applied in different cases, it has been applied in so many different ways as to make it not have one universal definition.
Here we have four different examples of four different cases. You don’t need to know the facts of them, but you can see from the quotes how they have decided whether something is irrational or not.
Lord Brightman in Puhlhofer v Hillingdon LBC [1986] AC 484, 518: “Perverse”. They were looking for perverseness – is this a perverse decision?
Lord Scarman in R v Secretary of State for the Environment ex parte Notts County Council [1986] AC 240, 247-8: “absurd”, “taken leave of his senses”.
Lord Lowry in Champion v Chief Constable Gwent Constabulary (1990) 1 WLR 1, 16: “so unreasonable that no person acting reasonably could have come to it”.
May LJ in Neale v Hereford and Worcester County Council [1986] ICR 471, 483: “my goodness, that is certainly wrong!”
R v Ministry of Defence ex parte Smith [1996]
that we see these four different tests labelled:
Not justiciable: “irrationality” will never be considered in non-justiciable situations.
Non justiciable situations are what? If we look back to GCHQ the most obvious example of a non-justiciable decision is one of considering national security, where our safety as a country is at risk.
So we will never use Wednesbury irrationality to question one of those situations. We don’t want greater discretion in national emergencies because we don’t want those people being held accountable in the same way.
Super-Wednesbury:
There is less discretion than saying ‘we are not going to review, but we want to leave a super amount of discretion with the public body’.
Basic Wednesbury:
This is what we just looked at.
Anxious Scrutiny:
This is where in English Common Law Wednesbury will be applied in its most stringent form.
Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240.
(super Wednesbury)
In this case the Secretary of State issued guidelines to local authorities under statutory authority stating that local authorities would suffer financial penalties if they overspent their budgets. The local authorities thought that this was unfair, but the government wanted to ensure that local authorities complied with spending targets. The statute also requires that the guidance was approved by the House of Commons, which it was.
It was held by Lord Scarman that the courts will not “intervene on the ground of “unreasonableness” to quash guidance framed by the Secretary of State and by necessary implication approved by the House of Commons, the guidance being concerned with the limit of public expenditure by local authorities and the incidence of the tax burden as between taxpayers… Unless and until a statute provides otherwise, it is established that the Secretary of State has abused his power, these are matters of political judgment for him and for the House of Commons. They are not for judges…”
Meaning, the court would not consider it unreasonable because the House of Commons have agreed to it. It makes it almost like quasi-law, rather than it just being the Secretary of State’s decision. If the House of Commons has agreed to this guidance, then why should the courts interfere?
So, it is said to be Super Wednesbury because the courts are less willing to interfere because it has the mandate of the House of Commons.
It is not just the Secretary of State making a decision on his own; he is backed up by the House of Commons. And if the whole House of Commons, or the majority agrees, then who is the court to disagree?
Lord Scarman went as far as to say that he would not even consider the case in detail unless and until there was a ‘prima facie’ (on the fact of it) case shown holding that the Secretary of State acted in bad faith.
The constitutional reason given by Lord Scarman therefore was: “it is not for the judges to say that the action has such unreasonable consequences that the guidance upon which the action is based and of which the House of Commons had notice was perverse and must be set aside. For that is a question of policy for the minister”.
Essentially he is saying it is not just the Secretary of State here – it is me against the Secretary of State and the legislature. How can I overrule both of them when they both agree? This is essentially reflecting the separation of powers.
R (Rogers) v Swindon NHS Primary Care Trust [2006]
(Basic/Normal Wednesbury)
In this case Rogers challenges the decision to not prescribe her the drug, Herceptin, a drug which had been proven could be effective against early-stage breast cancer.
The drug had not been licensed for early-stage breast cancer, but after much political pressure and publicity, they decided they would prescribe Herceptin in “exceptional circumstances”.
Swindon Primary Care Trust, however, could not provide evidence of exceptional circumstances. They could not provide any evidence as to how a clinical distinction of “exceptional circumstances” could be made between different patients.
Once the Primary Care Trust decided that it would fund Herceptin and that cost was irrelevant, the only reasonable approach was to focus on the patient’s clinical needs.
So, what happened here was they wouldn’t look at her clinical needs; they were looking at the cost of the medicine, and it was declared to be irrational under Wednesbury. No reasonable or sensible person would look to her needs and her needs only.
Re Duffy (FC) (Northern Ireland) [2008]
Basic Wednesbury
However, this case is only additional knowledge.
parades in Northern Ireland
the roots have been very controversial
Northern Ireland Act 1998 created by Parades Commission to attempt to resolve disputes, and could impose conditions on parades. The Secretary of State appointed the seven commissioners.
two new appointments had been members of Protestant loyalists organizations and had been in dispute with rival Catholic organizations
they had not resigned from these bodies or announce their views
Lord Bingham: “No reasonable person, knowing of the two appointees backgrounds and activities, could have supposed that either would bring an objective or impartial judgement to bear on problems raised by the parades.”
the key feature is the purpose of the commission.
The major cases here that you need to know our Wednesbury, GCHQ, and Wheeler.
R v Ministry of Defence ex parte Smith [1996]
(Anxious Scrutiny)
The Ministry of Defence have a policy to prevent homosexuals from serving in the Armed Forces.
When it became known that the claimants were homosexuals they were dismissed from the Army.
It was held in ex parte Smith therefore that the more substantial the interference of human rights the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.
Meaning, here in Human Rights cases pre-1998 we apply Wednesbury because we want to have a bigger say and bigger consideration of a human rights issue.
“The more substantial the interference of human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above” per Lord Bingham.
What is the justification for this then? Well of course in nonhuman rights cases where we apply Wednesbury, we don’t want the court simply overruling public policy. But when it comes to human rights cases there has always been this conception that the courts have a very big role to play in protecting minorities or lone individuals.
So, in this particular case they decided that they would exercise what is believed to be a proper role of a court and take further consideration in human rights cases.
Lord Bingham said: “The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker [Traditional/Normal Wednesbury]. But in judging this the human rights context is important. The more substantial the interference with human rights the more the court will require by way of justification before it is satisfied that decision is reasonable…”
So, there is evidence in the statement that when human rights are an issue, even outside the context of the Human Rights Act, courts are more willing to consider whether the decision of the public body was rational.
However, Lord Bingham notes in his judgement that in this particular case of Smith the threshold was not met.
So, in Smith, the decision to ban homosexuals from the Army was not considered irrational by the courts even under the stricter Anxious Scrutiny Test.
Hirst v UK [2005]
This is probably the most famous proportionality test that exists. You may have looked at this in Public Law one. This concerns the Representation of the People Act. It is a piece of law in this country that prohibits prisoners from voting. The law of England, under the Representation of the People Act, prevents prisoners from voting.
Under Wednesbury, if that were challenged there would be no challenge. There are a whole host of reasons put forward by the government as to why prisoners should be banned from voting. But, a human rights claim was made. The European Court of Human Rights and the UK Supreme Court subsequently have ruled that the decision to ban prisoners from voting was disproportionate.
Notice that it says that the disproportionality is on a “blanket ban” on prisoners voting. Not on a ban of some prisoners voting.
de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999]
It is a three stage test as to whether or not the public body has acted proportionately.
Step one: is the object of the policy (outcome) sufficiently important to justify limiting a fundamental right?
Step two: are the measures designed to meet the legislative objective, and are they rationally connected to it?
Step three: was the interference with the right no more than necessary to accomplish the objective?
Huang v Home Secretary
“that there must be a “fair balance between the rights of the individual and the interest of the community”.
R (On the application of Daly) v Secretary of State for the Home Department [2001]
It concerned prisoners’ materials being searched by the police who ran the prison according to the Security Manual enacted under Prison Act 1952, Section 47(1). The policy required that prisoners were to be excluded during cell searches. This was to prevent the prisoners from intimidating the guards, and to prevent them from finding out any knowledge about how the guards carried out their searches.
The officers were allowed to examine but not read any legal correspondence to check that nothing had been written or stored in the pages which would likely endanger prison security. This is because if they could not look at the prison letters things like blades might be able to be sent by mail into the prison. They were not allowed to read the contents of the letters due to the fact that that would be a breach of fair trial (Article ??).
But of course, what is the problem? There is no one in the cells to check to see what the officers were doing with the letters. They could read the letters as much as they want or as little as they want, because the prisoner has been excluded from the cell.
When we apply the three stage test from de Freitas:
Was the object of the policy justified? Yes, it was. Discovering band materials in a prison cell is a justifiable policy.
Were the measures designed to meet the legislative objective? Yes, to reduce crime and disorder in prisons.
Was the interference with a right no more necessary? It was held that there were alternatives that the prison service could take rather than excluding the prisoner from seeing the correspondence being checked – i.e., sealed bags, and identify that there is nothing contained within the letter, rather than them examining the letter which could lead to them reading the letter which could lead to them finding classified legal information.
Belmarsh Detainee
the anti-crime and terrorism laws of 2001 allowed police to detain without trial foreign born nationals indefinitely. So, people in this class that were not born in this country, could be detained and held without a trial. Of course, if the UK could send us back to our country they would, but most people in this particular case could not return home because of fear of torture.
So, they were being detained in Belmarsh Prison without trial because we suspected them of having terrorist links.
They brought a case. The key hook of the case as to why he was considered to be against the Human Rghts Act…and it is the Convention that the Act incorporates… Was that it was disproportionate.
In seeking to keep only those in prison indefinitely who they suspect of terror, it didn’t actually achieve its policy aim which was to prevent terror. Why not? Because in fact as history has proven in this country the vast majority of terrorist incidents have been committed by people born inside of the European Union, and mostly born inside of this country. Thus, none of those people who performed any of those acts would have been indefinitely detained at the time under this law.
Therefore, if the law doesn’t actually do what it aims to do ‘on the tin’, it is not proportionate.
R (Begum) v Denbigh High School [2006]
This is where they refuse to allow pupils to wear a jilbab. The people argued that it was a breach of their Article 9 rights (religion/freedom of conscience).
The ban was introduced because some girls might be persuaded into wearing it, and it could lead to conflict between Muslim groups according to the strictness of their beliefs.
They said because some Muslim girls were wearing this and some were not that it could create a conflict within the school.
The case eventually went to the House of Lords. Lord Bingham first begun by saying that the school had pursued a legitimate aim – it was trying to solve a legitimate problem. The argument was rejected by Lord Bingham about headscarves – he said that the headscarves could not be compared to the religious garments because there was no pressure on anyone to wear them. He held that the ban was proportionate, because the school was legitimately concerned about the consequences of allowing it to be worn, and because there was a period of harmony and success with the policy. The court was eager to defer to the head teacher, and the governors who had the experience, background, and knowledge of the matter.
So, it was held that there was no breach in the ban.
