Judicial Review Part 2 Flashcards
Irrationality/Unreasonableness
Irrationality refers to a decision that is outrageous in its defiance of logic or accepted moral standards.
Lord Diplock described it as a decision that is so unreasonable that no sensible person who applied their mind to the question could have arrived at it.
Distinctiveness of “Substantive Review”
Substantive review focuses on the quality or merits of decisions, rather than just the process.
It goes beyond legality and procedural impropriety.
It allows for a cautious engagement with the substance of decisions.
Tests for Irrationality
Lord Diplock referred to the “Wednesbury unreasonableness” test, which states that if a decision is so unreasonable that no reasonable authority could have come to it, then the courts can interfere.
Another test is the “Range of responses” test, which states that the court can only interfere with a decision if it is beyond the range of responses open to a reasonable decision-maker.
Threshold of Irrationality
Substantive review has a high threshold.
The courts only intervene when a decision is absurd or when the decision-maker has “taken leave of his senses.”
The scope for substantive review is limited, and the courts are cautious in incursion into the merits of decisions.
Variability
There are different levels of intensity in irrationality review.
“Super-Wednesbury” sets an even more deferential threshold.
“Anxious scrutiny” sets a less deferential threshold.
Vulnerability of the Wednesbury Test
The Wednesbury test has been under pressure and may be subject to further development.
The principle of proportionality has been suggested as an alternative to the Wednesbury test in domestic judicial review cases.
Origins of the Wednesbury Test
The Wednesbury test derives its name from the case of Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948].
In this case, Lord Greene MR articulated the test as follows: “if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere.”
The Wednesbury test has its roots in the principle of administrative law that courts should not substitute their judgment for that of the decision-maker.
It emphasizes a deferential approach, allowing decision-makers a margin of discretion and only intervening when their decisions are deemed so unreasonable as to be irrational.
The Wednesbury test has been influential in shaping the grounds of irrationality or unreasonableness in judicial review and remains a significant landmark case in administrative law.
“Super-Wednesbury”
“Super-Wednesbury” refers to an even more deferential threshold in irrationality review.
This concept was established in cases such as Nottinghamshire CC v Environment Secretary [1986] and R v (Environment Secretary) ex parte Hammersmith & Fulham [1990].
These cases involved decisions on exercising statutory power that relied heavily on political and economic considerations evaluated by the Minister and Parliament.
The court recognized that the rationality of these decisions could not be measured by any yardstick available to the court.
“Anxious scrutiny”
“Anxious scrutiny” sets a less deferential threshold in irrationality review.
This concept was introduced in Bugdaycay v Home Secretary [1987].
It signifies a more intense level of scrutiny by the court when reviewing the rationality of a decision.
The court takes a closer and more critical look at the decision-making process and outcome, departing from a purely deferential approach.
CCSU v Minister for the Civil Service (the GCHQ case) [1985] AC 374:
(legitimate expectation)
This case involved the dismissal of employees at the Government Communications Headquarters (GCHQ) by an executive decision.
The court held that the employees had a legitimate expectation that they would be consulted before any decision affecting their employment was made.
The decision highlighted that legitimate expectations can arise from past practices, express assurances, or implied representations by public authorities.
R (Bancoult no 2) v Foreign Secretary [2009] 1 AC 453 (legitimate expectation)
This case dealt with the deportation of the Chagossian people from the Chagos Islands by the British government.
The court considered whether the government’s decision to create a marine protected area, which resulted in the expulsion of the Chagossians, was in breach of their legitimate expectation to return to the islands.
The court found that the government’s decision was unlawful as it failed to take into account the legitimate expectations of the Chagossians.
R. v North and East Devon Health Authority Ex p. Coughlan [2001] Q.B. 213 (legitimate expectation)
This case involved a promise made by a health authority to a disabled patient regarding the provision of long-term accommodation and care.
The court examined whether the health authority’s decision to renege on the promise amounted to a breach of the patient’s legitimate expectation.
The court found that the promise had created a legitimate expectation, and the health authority’s failure to fulfil it was unlawful.
What are the two stages of enquiry in legitimate expectation cases?
Is there a legitimate expectation?
This stage involves determining whether a legitimate expectation exists in the case.
Factors such as past practices, express assurances, or implied representations by a public authority are considered.
The court evaluates the reasonableness of the expectation in the given circumstances.
How (if at all) should the court intervene to protect it?
This stage focuses on determining the appropriate level and manner of court intervention to safeguard the legitimate expectation.
Factors such as the nature and importance of the expectation, the rights and interests of other parties, the legal framework, and policy considerations are taken into account.
The court exercises discretion in deciding how to protect the legitimate expectation, considering various remedies available.
What is involved in the first stage of the legitimate expectation enquiry?
The first stage of the legitimate expectation enquiry involves determining whether a legitimate expectation exists in the case. The following factors are considered:
Past practices, express assurances, or implied representations made by a public authority.
The nature of the expectation and its reasonableness in the given circumstances.
What is the second stage of the legitimate expectation enquiry?
how, if at all, the court should intervene to protect the legitimate expectation. The following aspects are taken into consideration:
The nature and importance of the expectation.
The rights and interests of other parties involved.
The legal framework and policy considerations.
The court exercises discretion in deciding the appropriate level and manner of intervention to safeguard the legitimate expectation.
What are the criteria for establishing a legitimate expectation in judicial review?
To establish a legitimate expectation in judicial review, the following criteria must be met:
There must be a representation or undertaking:
This means that a statement, promise, or assurance has been made by a public authority.
The representation can be express or implied.
The representation must be clear, unambiguous, and devoid of relevant qualification:
The statement made by the public authority should be straightforward and free from any ambiguity or conditions that may affect its meaning or impact.
Any qualifying factors that are relevant to the expectation should not undermine the clarity of the representation.
What are the three ways of generating legitimate expectations?
According to Ahmed and Perry, there are three ways of generating legitimate expectations:
Promise:
A legitimate expectation can arise when a public authority makes a specific promise or assurance to an individual or a group.
This promise can be explicit or implied, and it creates an expectation that the authority will act in accordance with the commitment made.
Practice:
Legitimate expectations can also be generated through consistent past practices of a public authority.
If the authority has consistently followed a particular course of action or behavior, individuals may have a reasonable expectation that the same practice will continue in similar circumstances.
Policy:
Legitimate expectations can arise from established policies or guidelines issued by a public authority.
When a policy or guideline sets out a certain procedure, benefit, or course of action, individuals may have a legitimate expectation that the authority will adhere to its own policies in their interactions.
Is reliance (placing trust in a representation or undertaking made by a public body) necessary to establish a legitimate expectation?
Reliance is not always required for a legitimate expectation. In the case of Ng Yuen Shiu, the court took a “human” approach and stated that reliance is not an essential legal requirement. While reliance can strengthen a claim, other factors such as the nature of the representation and overall fairness are also considered. The extent of reliance needed may vary based on the circumstances and jurisdiction.
What is the role of knowledge in establishing a legitimate expectation?
In some cases, knowledge of the representation or policy is not necessary for a legitimate expectation to be recognized.
How does knowledge impact the strength of a claim of legitimate expectation?
Knowledge or awareness of the representation or policy may strengthen a claim of legitimate expectation but is not always required for it to be recognized.
R (Rashid) v Home Secretary [2005] EWCA Civ 744
case that dealt with the issue of legitimate expectation. In this case, the court found that the individuals invoking legitimate expectation were unaware of the relevant policy until after an adverse decision had been made against them. The court stated that this was not the typical scenario for establishing a legitimate expectation. The absence of knowledge of the policy did not invalidate their claim, but it was considered exceptional or strained in those circumstances.
procedural/substantive distinction
Procedural: an expectation that some particular procedure will
be followed (e.g. a consultation, an interview)
Substantive: an expectation that some particular substantive
outcome will be achieved (e.g. return to homeland, admission to
clinical medical education, a home for life in Mardon House)The procedural/substantive distinction
importance of the procedural/substantive distinction in general (Laws LJ - Nadarajah)
the procedural/substantive distinction may not be crucial in determining the extent of the duty of good administration. According to Laws LJ’s statement in the case of Nadarajah, this distinction does not provide guidance on the scope of administrative duties. Therefore, in this context, the distinction may not hold significant importance.
importance of the procedural/substantive distinction in general (conceptual controversy - Elliot)
conceptual controversy regarding whether procedural and substantive legitimate expectations should be viewed as closely related aspects of a single doctrine. Elliott suggests that the debate on this issue is open-ended, indicating that there is no consensus on the matter. This controversy suggests that the distinction’s importance is debatable and subject to different interpretations.
What are the three possible outcomes related to legitimate expectations?
Outcome (a): In this scenario, the court may decide that the public authority is only required to consider its previous policy or representation. The weight given to such policy or representation is at the discretion of the authority. The court does not impose a strict obligation on the authority to adhere to the previous position unless there are specific legal requirements or compelling reasons to do so.
Outcome (b): Here, the court may determine that a promise or practice by the public authority has created a legitimate expectation. For example, individuals may have a reasonable expectation of being consulted before a particular decision is made. In such cases, the court typically requires the opportunity for consultation to be provided unless there are strong justifications for deviating from it. The court acknowledges the importance of honoring the expectation of consultation unless there are overriding reasons to justify a departure.
Outcome (c): In this scenario, the court recognizes that a lawful promise or practice has induced a legitimate expectation that goes beyond mere procedural aspects. It involves a substantive benefit that individuals or groups expect to receive. In such cases, the court may assess whether frustrating or denying the expectation would be so unfair that it amounts to an abuse of power by the public authority. The court will consider whether taking a new and different course, contrary to the expectation, would be unjust and inequitable.
