Summary
Summary public law
- Module
- Public Law
- Institution
- University Of Winchester (UoW)
Summary of 5 pages for the course Public Law at UoW (unreasonableness)
[Show more]
Seller
Follow
Content preview
Judicial ReviewThe role and constitutional foundation of judicial review
The grounds of judicial review
illegality
“unreasonableness”
procedural impropriety
The requirements of judicial review
Remedies
Constitutional Basis
Ultra vires justification – Parliament did not legislate to give powers to act in a way that is illegal/irrational/ procedurally
improper.
But this cannot explain JR of prerogative acts
Common law explanation - judges develop the common law applying to public bodies.
But – is that not the judiciary doing the job reserved for the legislature?
Each justification has its strength and weaknesses
Irrationality
‘It applies to 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.’
Lord Diplock in Council of Civil Service Unions & Others v Minister for the Civil Service [1985] AC 374
Associated Provincial Picture Houses Wednesbury Corporation (1928) 1 KB 223
Claimant ran a cinema. It wanted to open on Sundays.
Sunday Entertainments Act 1932, s 1 gave the public authority the power to grant a licence for Sunday opening “subject
to such conditions as the authority think fit to impose”.
Wednesbury imposed a condition that no children under the age of 15 should be admitted on a Sunday, even if
accompanied by an adult.
Claimant challenged this decision on the basis that it was an unreasonable use of discretion and was ultra vires.
Lord Green:
‘It is true to say 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.
…That, I think, is quite right; but to prove a case of that kind would require something overwhelming, and, in this case,
the facts [of this action] do not come anywhere near anything of that kind.’
This is the Wednesbury test for unreasonableness (under Lord Diplock’s irrationality heading)
GCHQ
Lord Diplock
“By ‘irrationality’ I mean what can now be succinctly referred to as ‘Wednesbury unreasonableness’ . It applies to 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”.
Short v Poole Corporation
Example given of a teacher, dismissed because she had red hair.
That would unreasonable
How is Reasonableness Review Different from Appeal?
In judicial review the court does not replace the authority’s discretion with its own. It does not ask if there could be a
‘better’ decision, only if the decision is lawful.
, Reasonableness review may seem like the court is replacing the authority’s discretion with its own.
That is why the court Wednesbury stresses that only extreme cases (so unreasonable as to be irrational) will fall foul of
this test.
A decision can be illegal as well as irrational
Wheeler v Leicester City Council
Rugby club denied use of Council-owned pitch because some of club’s players toured S.Africa.
Held: Council acted illegally
Took into account irrelevant considerations
Used statutory powers for an improper purpose.
Also: Council acted unreasonably
No reasonable Council would have used its
sports ground management powers in this way.
From a Lawyer’s Perspective
Remember that irrelevant considerations will also be irrational, but these are two different grounds.
Irrationality is broader.
So if you argue irrelevant considerations , also argue irrationality. It could be that the first ground might not succeed,
but the second might.
Re Duffy (fc) (Northern Ireland) (2008) UKHL 4
Parades in Northern Ireland
The routes have been very controversial
Northern Ireland Act 1998 created a Parades Commission to attempt to resolve disputes, and could impose conditions
on parades. The Secretary of State appointed the 7 commissioners.
2 new appointees had been members of protestant loyalists organization's and been in dispute with rival catholic
organisations.
They had not resigned from these bodies or renounced their views.
“No reasonable person, knowing of the two appointees' backgrounds and activities, could have supposed that either
would bring an objective or impartial judgement to bear on problems raised by the parades[s]”.
Unreasonableness argument succeeded in a case in which an individual right is not at issue, but rather peaceful
community relations (although individual rights are in the background).
So how do we know if it is unreasonable?
Context matters;
- Approved by parliament?
- Fundamental rights?
The Threshold for applicants even higher where parliament approves. regulation/ guidlines
Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240
The Secretary of State issued guidance to local authorities under statutory authority stating that local authorities would
suffer financial penalties if they overspent their budgets.
The local authorities thought that this was unfair, but the government wanted to ensure that local authorities complied
with spending targets.
The statute also required that the guidance was approved by the House of Commons, which it was.
Court will not intervene to find irrationality unless prima facie in bad faith.
Is reasonableness different in a human rights context?
"The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the
court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller vickyhoney. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for £7.49. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
67232 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy revision notes and other study material for 14 years now