Lecture 21: Unreasonableness Flashcards
How do the grounds of review interact in judicial review?
The three grounds of review—“illegality,” “irrationality,” and “procedural impropriety”—are not exhaustive and are not necessarily mutually exclusive (Lord Roskill, Wheeler v Leicester City Council [1985] AC 1054, 1078B-C).
What is the role of proportionality in judicial review?
Proportionality is applied in ECHR/HRA review and is controversially considered by some to be an emerging common law ground of review.
How is proportionality connected to unreasonableness review?
Non-ECHR/HRA proportionality is connected to unreasonableness review as it offers a ‘structured approach’ to reasonableness review.
What is the current understanding of unreasonableness or irrationality in judicial review?
Originally known as Wednesbury unreasonableness, then ‘irrationality,’ it is now understood as unreasonableness (Lord Roskill, Wheeler v Leicester City Council [1985] AC 1054, 1078B-C).
What is unreasonableness review in judicial review?
In most contexts, rationality is the standard by which the common law measures the conduct of a public decision-maker, where there has been no infringement of a legal right, no misdirection of law, and no procedural unfairness (R (KP) v Secretary of State for Foreign Affairs [2025] EWHC 730 (Admin), Chamberlain, J, [55]).
What are the facts of the Wednesbury case?
In Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 K.B. 223, the local authority allowed Sunday performances under the condition that no children under 15 should attend. The Picture House claimed the condition was unreasonable, but the outcome was that the condition was not unreasonable and not unlawful.
What does “Wednesbury: Unreasonableness” refer to?
It refers to the principle that 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.
What is required to prove a case of unreasonableness according to Lord Greene MR?
To prove a case of unreasonableness, it would require something overwhelming.
How did Lord Greene describe “unreasonableness” in Wednesbury (1948)?
Lord Greene described “unreasonableness” as a decision so unreasonable that no reasonable authority could have arrived at it, which would require “something overwhelming.”
How did Lord Diplock define irrationality in GCHQ (1985)?
Lord Diplock defined irrationality as a decision that is so outrageous in its defiance of logic or accepted moral standards that no sensible person who applied his mind could have arrived at it.
What terms have been used to describe irrational decisions in judicial review cases?
Terms such as “absurd/perverse” (Pulhofer v Hillingdon LBC [1986]) and “taken leave of senses” (Nottinghamshire CC v SoS for the Environment [1986]) have been used to describe irrational decisions.
What is the problem with judicial review decisions under “unreasonableness”?
The courts tend to impugn decisions that are far from absurd, and if only “insane” decisions were interfered with, improper decisions would be immune from judicial scrutiny (Jowell and Lester [1987] P.L. 368, at 372).
How did Lord Cooke reformulate the test for unreasonableness in R v Chief Constable of Sussex Police ex p International Trader’s Ferry Ltd (1999)?
Lord Cooke reformulated the test to ask whether the decision was one which a reasonable authority could reach, stating that these unexaggerated criteria give administrators ample and rightful rein, consistent with the constitutional separation of powers.
What did Lord Cooke say about Wednesbury in R (Daly) v Secretary of State for the Home Department (2001)?
Lord Cooke described Wednesbury as an unfortunately retrogressive decision in English administrative law, suggesting that there are degrees of unreasonableness and that only an extreme degree can bring a decision within the scope of judicial invalidation.
What are the two aspects of rationality/reasonableness review, according to Chamberlain J in R (KP) v Secretary of State for Foreign Affairs?
Process rationality: The decision-maker must consider all mandatorily relevant considerations and no irrelevant ones, without logical error.
Outcome rationality: The outcome is unreasonable if no reasonable authority could ever have come to it, even if the reasoning process is not flawed.
What is the overlap between relevance and unreasonableness in judicial review?
Relevance: The distinction between whether something is a material consideration and how much weight it should be given. The planning authority can give weight as it sees fit, provided it doesn’t lapse into Wednesbury irrationality (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 W.L.R. 759).
Process Irrationality: The question is whether the decision-maker acts rationally in their reasoning (R. (on the application of Friends of the Earth) v Heathrow Airport Ltd [2020] UKSC 52).
What should the court ask when evaluating process irrationality?
The court should ask if the conclusion follows from the evidence, or if there is an unexplained evidential gap or leap in reasoning that fails to justify the conclusion (R (Wells) v Parole Board [2019] EWHC 2710 (Admin), at [33]).
What is the standard of review in judicial review according to the flexible standard?
The standard of review is flexible, with a sliding scale of review that varies according to the nature and gravity of what is at stake (R v Secretary of State for Education and Employment ex p Begbie [2000] 1 W.L.R. 1115).
How do courts approach judicial review in increasingly complex matters?
Courts have developed an “issue-sensitive scale of intervention” to enable them to perform their constitutional function in a complex polity (R (Q) v Secretary of State for the Home Department [2004] QB 36).
How does the nature and purpose of enabling legislation affect judicial review of irrationality?
The extent to which a power is open to review on the ground of irrationality depends critically on the nature and purpose of the enabling legislation (Lord Phillips MR, R (Asif Javed) v Secretary of State for the Home Department [2001]).
What question did the court ask in Ex p. Brind (1991) regarding reasonableness?
In Ex p. Brind (1991), the court asked whether a reasonable Secretary of State, on the material before him, could reasonably conclude that the interference with freedom of expression he imposed was justifiable.
How did the courts approach reasonableness in R (Evans) v Attorney-General?
The Divisional Court required “cogent reasons.”
The Court of Appeal focused on the “context and circumstances” of the decision.
The Supreme Court (Lord Mance) emphasized that the test must be context-specific and depend on particular legislation, requiring the “clearest possible justification.”
What factors do courts consider when evaluating reasonableness in judicial review?
When evaluating reasonableness in judicial review, courts consider the nature and purpose of the legislation, justification for the decision, and the context in which the decision was made.
How do courts decide when a decision is reasonable?
Courts decide when a decision is reasonable by considering if it falls within the “range of reasonable responses” and applying an issue-sensitive scale of intervention, with varying intensity of review depending on the context.
