⇒ So far these notes have characterised the legal basis for judicial review as:
⇒ What if a public body makes a poor decision?
⇒ But what happens if a public body:
⇒ 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.
⇒ 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:
⇒ 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.
⇒ 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.”
⇒ 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’?
⇒ 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
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⇒ 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
⇒ This case is interesting because:
⇒ 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
⇒ Lord Phillips’ approach is novel → he assesses the quality of the debate had in Parliament in order to determine the deference that is due
⇒ Substantive review of a public body’s decision is rare, because the court is not entitled to review the merits of a decision
⇒ 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
⇒ 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 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
⇒ 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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