JR Problem Question - Grounds for Review - Unreasonableness/Irrationality

Question 1

What is the fifth issue to be addressed in a JR PQ?

Answer 1

Grounds for Review - Are there grounds for Judicial Review?

Question 2

What are you required to establish in the fifth key issue of a JR PQ?

Answer 2

At this stage, you are simply looking to determine whether the decision being challenged amounts to either;

(i) illegality,
(ii) procedural impropriety, and/or
(iii) irrationality/unreasonableness.

Question 3

What is the key question for the unreasonableness/irrationality ground for review?

Answer 3

Has a body acted Unreasonably?

Question 4

What must the courts satisfy themselves of before establishing/acknowledging unreasonableness as a ground for review?

Answer 4

For unreasonableness/irrationality to be found the court will have to satisfy itself that the decision-maker has acted in defiance of reason and logic.

Question 5

How may the threshold applied/required to establish ‘unreasonable’ or ‘irrational’ decisions vary?

Answer 5

This is a variable standard of review (meaning that the threshold applied will be higher or lower depending on the specific circumstances of the case).

Question 6

When will the required threshold for unreasonable/irrationality be at it’s highest/lowest?

Answer 6

Generally speaking, the threshold will be at its highest (i.e. where it is most difficult to find that the decision maker has acted unreasonably) when the case relates to complex political matters, and at its lowest (i.e. where it is least difficult to find that the decision maker has acted unreasonably) when the case relates to interference with the enjoyment of human rights.

Question 7

How are the different thresholds required to establish unreasonableness or irrationality given concrete expression?

Answer 7

These varied thresholds are represented in the four recognised different forms of unreasonableness/irrationality.

Question 8

What are the four different types of unreasonableness/irrationality?

Answer 8

1. Wednesbury Unreasonableness
2. Super-Wednesbury Unreasonableness
3. Sub-Wednesbury Unreasonablness
4. Proportionality

Question 9

What is wednesbury unreasonableness?

Answer 9

This is the standard test for unreasonableness (i.e. the appropriate test in all cases where neither complex policy matters are involved nor where rights/fundamental interest are at stake).

Question 10

What is the threshold required under wednesbury unreasonableness?

Answer 10

The threshold applied is that the decision-maker must have reached a decision which is - ‘so unreasonable that no reasonable authority could ever have come to it’.
Authority - Lord Greene in Wednesbury
This test was subsequently rearticulated slightly differently to represent 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’.
Authority - Lord Diplock in the GCHQ case

Question 11

How strict is the threshold required under wednesbury unreasonableness, and what is a practical example of it?

Answer 11

The threshold is a high one to meet (and thus difficult to satisfy). For an example of this form of unreasonableness see - Associated Provincial Picture Houses Ltd. v Wednesbury Corporation.

Question 12

What is super-wednesbury unreasonableness?

Answer 12

This is an even higher threshold to satisfy (due to respect for parliamentary supremacy/sovereignty) and will be applied in cases pertaining to complex political issues (e.g. matters clearly beyond the realm of expertise of the judiciary - e.g. matters of national security, allocation of taxable revenue and so on).

Question 13

What is the threshold required under super-wednesbury unreasonableness?

Answer 13

The threshold applied is that unreasonableness will only be found when, decisions are ‘so absurd that [the decision-maker] must have taken leave of his senses’.
Authority - Lord Scarman in Nottinghamshire CC

Question 14

How strict is the threshold required under super-wednesbury unreasonableness?

Answer 14

The threshold is a very high one to meet (and thus very difficult to satisfy) it affords a large amount of deference to decision makers when acting on complex national issues.

Question 15

Is there scope for variation in the degree of deference given to decision-makers under super-wednesbury unreasonableness?

Answer 15

The degree of deference is itself variable and will be reduced in the event the case in question also (e.g. in addition to complex political issues) involves fundamental human rights.

Question 16

What is sub-wednesbury unreasonableness?

Answer 16

Also know as ‘anxious scrutiny’, this is a lower standard of review (albeit still representing a difficult threshold to meet) and was, prior to the adoption of the Human Rights Act (1998), the appropriate standard applied to cases involving human rights related interests.

Question 17

What is the threshold required under sub-wednesbury unreasonableness?

Answer 17

This standard of review required a greater level of justification on behalf of the decision-maker as to the reasonableness of their decisions (it is a lower threshold to satisfy - but still not an easy one).

Question 18

What is the relationship between sub-wednesbury unreasonableness and proportionality?

Answer 18

It is widely considered to be a precursor to the Proportionality test/standard. However, unlike with Proportionality, sub-Wednesbury Unreasonableness did not require the court to satisfy itself that the decision under challenge was necessary or proportionate to the aim pursued.

Question 19

How strict is the threshold required under sub-wednesbury unreasonableness?

Answer 19

The threshold was sufficiently easily satisfied to make it relatively straightforward for decision- makers to justify seemingly prima facie unreasonable decisions made in pursuit of ‘overriding public interests’ (e.g. national security), even when they impacted upon the enjoyment of fundamental human rights.
Authority - R v Ministry of Defence, ex parte Smith

Question 20

What is proportionality?

Answer 20

This is the principle underpinning the standard of review for unreasonableness for cases involving interference with the enjoyment of human rights (or other fundamental interests, such as citizenship).

Question 21

Broadly what is the threshold required under proportionality?

Answer 21

The threshold is significantly lower than the other wednesbury and super-wednesbury tests.

Question 22

What are the two key criterion under the proportionality requirement?

Answer 22

Proportionality requires the court to determine that the decisions being challenged was both;

(i) necessary to take in pursuit of a legitimate objective, and;
(ii) proportionate to the aim pursued – e.g. without reasonable alternatives

Question 23

What caused the development of the principle/requirement of proportionality?

Answer 23

The principle came into effect subsequent to the adoption of the Human Rights Act (1998), and pursuant to Section 6 of this Act, domestic courts are now lawfully obligated to seek to reach judgments which are compliant with the European Convention on Human Rights (1950).

Question 24

What happens if the criterion for proportionality are not satisfied?

Answer 24

If the relevant decision-making body cannot satisfy this criterion, then they will be found to have acted unreasonably.

Question 25

How strict is the threshold required under proportionality?

Answer 25

The proportionality test is thus the strongest basis for reviewing decisions on grounds of unreasonableness (e.g. representing the lowest threshold required for unreasonableness to be found).

Question 26

How is the application of the proportionality test somewhat limited?

Answer 26

There are only certain circumstances where it will (or can) actually be applied: namely cases involving human rights and other fundamental interests such as citizenship or immigration.
Authority - R v Ministry of Defence, ex parte Smith

Question 27

What is the key question when considering remedies for successful judicial review actions?

Answer 27

Are any of the remedies available in Judicial Review appropriate?