Judicial review: irrationality

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So far these notes have characterised the legal basis for judicial review as:

  • An excess of jurisdiction
  • The correction of an error of law;
  • Lawful/unlawful considerations (R v Somerset CC, ex parte Fewings [1995]);
  • Upholding statutory purpose (R v Foreign Secretary, ex parte World Development Movement [1995])

What if a public body makes a poor decision?

  • We already know that the court will not undertake a ‘merits’ review of a public body’s decision (i.e. they will not review a decision simply because it looks bad) - and will certainly not entertain what might look like an ‘appeal.’

But what happens if a public body:

  • Makes an arbitrary decision
  • Makes a decision without due regard to anything at all (not just its jurisdiction);
  • Makes a decision that nobody else would ever make

This is what the irrationality ground for review covers…


We call this ground of review irrationality review - a name given to it by Lord Diplock in the GCHQ case.

⇒ But it is often referred to as Wednesbury unreasonableness, or Wednesbury review.

Associated Provincial Picture Houses v Wednesbury Corporation [1948]

The local authority for Wednesbury had the statutory power to licence cinemas including for the showing of films on a Sunday “subject to such conditions as the authority think fit to impose.” The local authority granted a licence to the claimant to show films on a Sunday but required that no child under the age of 15 can be admitted on a Sunday - with or without an adult.

A claim was brought in judicial review against the local authority’s decision. The claim failed, and an appeal to the Court of Appeal was dismissed

The case is notable for its dicta and not its outcome. Lord Greene MR, in the Court of Appeal, described the basis for review of this sort of case as two-fold:

  • “The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not take into account, or conversely, have refused to take into account or neglected to take into account matters which they ought to take into account.”
  • “Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, the have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere” (that is wednesbury unreasonableness)

Public bodies may do a whole host of things—particularly where the statue is worded so openly (remember, in Wednesbury the statute empowered the local authority to impose conditions as it “thinks fit”). Different authorities will choose to exercise their discretion differently. It is not for the courts to choose between these different policy choices.

  • The test—to act so unreasonably that no other public body acting reasonably would do as the local authority did—in part respects this field or spectrum of choice
  • The test of Wednesbury unreasonableness is a high one; more than that, its approach is altogether different to any other, because it recognises the role of the public body to decide the substantive matter

Irrationality in the GCHQ case

Lord Diplock’s definition: “By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness.’ It applies to a decision which is so outrageous in its defiance of logic or 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 badly 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.”

Will this ground flood the court?

Potentially this ground could open up judicial review to a whole range of public acts and decisions – you may even be able to think of times when public bodies have acted irrationally in your experience

Therefore, might the Administrative Court be flooded with claims by aggrieved claimants who have found the decision of a public body ‘irrational’?

  • Not necessarily → the court can control what claims it hears through the process of requiring claimants to seek permission or leave for claims to be heard
  • Furthermore, those claims that do make it through to a full hearing often fail because Wednesbury unreasonableness is so difficult to establish

Devon CC v George [1989]

Upon reaching the age of 8, Devon CC decided to withdraw the provision of free transport for a boy who lived just under 3 miles away from his school (3 miles was the statutory threshold between the local authority’s discretion and its obligation). The boy’s journey to school would include walking down country lanes with no footpaths and regular farm traffic

The High Court dismissed the claim in judicial review (i.e. they found in favour of Devon CC). The Court of Appeal allowed an appeal. However, the House of Lords allowed an appeal by the local authority

  • Lord Keith said that “it is for the authority, and no one else, to decide whether free transport is really needed for the purpose of promoting the attendance at school of a particular pupil”. Thus, he decided that “the impugned decision was not unreasonable in the Wednesbury sense”

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R v Minister of Defence, ex parte Smith (1996)

The claimants, due to their homosexuality, were discharged (under a policy) from the army. The Human Rights Act had not been enacted at this stage. The claimants argued there had been Wednesbury unreasonableness.

The Court of Appeal rejected this → although the courts are more willing to interfere the more Human Rights are infringed, the court is only willing to intervene where the admin body has acted in a way which is unreasonable for that decision maker

  • Lord Bingham said that “the more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable.”

This case is interesting because:

  • On the one hand, there is a national security issue which argues there should be judicial deference i.e. the judges should let the original decision stand as it is
  • Whilst on the other hand there is a policy issue affecting Human Rights which points in the opposite direction (i.e. judicial interference)

R (Javed) v Secretary of State for the Home Department [2001]

See the case facts here → in essence an Ahmadi woman claimed the inclusion of Pakistan on ‘white list’ of safe countries was illegal or irrational and, therefore, she should not be deported

This case invokes both a requirement of due deference (because of Parliament’s approval of Pakistan’s inclusion on the ‘white list’), yet the human rights context (Article 3 ECHR) is also present

  • What is the correct level of scrutiny of the court here? Should they sway towards due deference and decline to review the decision of the executive or, should the court require more justification that a decision is reasonable where there has been a more substantial interference with human rights?

Lord Phillips’ approach is novel → he assesses the quality of the debate had in Parliament in order to determine the deference that is due

  • Since Parliament debated the position of Ahmadis only briefly, with no discussion of the position of women in Pakistan whatsoever, the degree of due deference would be less
  • However, the claimant succeeded on illegality grounds and not irrationality grounds

Substantive review

Substantive review of a public body’s decision is rare, because the court is not entitled to review the merits of a decision

  • However, with Wednesbury review we get closer to the idea that a decision can be substantively reviewed (i.e. the substance of the decision can be reviewed, not merely its legality)

Although none of the cases described so far has resulted in a successful claim on Wednesbury grounds(!) the judicial dicta points towards a willingness to entertain the ground in some cases, and less so in others.

In human rights cases, the court will more readily scrutinise the substantive decisions and expect justifications for the public body’s actions

In cases where the decision is in pursuit of government policy supported by Parliament (ex parte Nottinghamshire County Council), there is less scope for irrationality review

Of course, there are also the cases we find in the middle, that invoke no constitutional/human rights issues nor reasons to induce deference - cases like Wednesbury itself, or Devon CC v George

R (Daly) v Secretary of State for the Home Department [2001] HL

The claimant was a prisoner who kept confidential and legally privileged correspondence in his prison cell. Prison regulations required that prisoners be absent whenever routine searches of prison cells were conducted by prison officers. The claimant objected on the ground that this would compromise the privilege of his correspondence and make such letters available for the prison officers to see

The High Court refused ‘leave’ or ‘permission’ to hear the case in judicial review. The Court of Appeal (on appeal against the refusal) gave permission to hear the case in full, heard the case itself, but dismissed the application. On appeal to the House of Lords, the claimant won

This is substantive review (not merely illegality review understood as ultra vires etc.), because the Secretary of State has the discretion to create prison rules such as these. The ‘substance’ of the decision was under scrutiny and was deemed unlawful on two grounds:

  • The Secretary of State acted irrationally in the Wednesbury sense
  • The Secretary of State’s actions were a disproportionate exercise of discretion on Human Rights Grounds (this is discussed in the next set of notes)

The court said that the Secretary of State had acted irrationally in the Wednesbury sense because of the way in which legal correspondence is protected by the common law through the law of confidence/privilege

  • With ‘anxious scrutiny’ cases (like this), the burden switches to the public body to show they had justification for infringing upon the common law protected constitutional right.
  • Since no such justification was presented or accepted by the court, Daly was successful on Wednesbury grounds.

One way of looking at irrationality here is to say: No Secretary of State acting reasonably would publish a prison handbook that infringed the confidentiality of legally privileged correspondence.

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