discretionary decisons & reasons - Padfield
judicial control of discretion involves looking at the decision itself but it may also invove scrutiny of the reasons of the decision. whilst there is no general duty to provide reasons for all decisions, if no good reasons are given then the courts may infer that there were no good reasons for that particular decisions
two meanings of Wednesbury unreasonableness
(1) as a general category covering different grounds, including taking account of irrelevant considerations or acting for improper purpose
(2) as a specific ground of JR once it is established that the decision was “meaning within the 4 corners of the law” - Wednesbury unreasonableness or irrationality
irrationality - GCHQ
“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”
illegality & irrationality
step one: illegality review
is the consideration relevant? if yes then
step two: irrationality review
has the decision-maker given certain relevant considerations unreasonable weight?
unreasonable weight - Basma
NHS trust refused to offer a new drug treatment to a child suffering from a progressive neuromuscular disease based on a lack of clinical evidence that she had been able to walk 5 steps unaided in the 12 months prior (condition), they gave no weight to the informal evidence provided by the family / friends which showed that the child satisfied the conditions for the treatment - the failure to take this evidence into account was irrational
wednesbury applied - Rogers
NHS trust’s refusal to allow prescription drug for early-stage breast cancer except in exceptional circumstances and failing to provide criteria for exceptionality - court of appeal held this to be irrational
wednesbury applied - Duffy
the sec of states appointment of members of the orange lodge to the Parades Commission - HOL held this as unreasonable as no reasonable person would regard them as impartial
low intensity review “super-Wednesbury” - ex parte Nottinghamshire
“i cannot accept that it is constitutionally appropriate, save in very exceptional circumstances, for the courts to intervene on the grounds of ‘unreasonableness’ to quash guidance framed by the sec of state and by necessary implication approved by the House of Commons” / “such to an examination by a court would be justified only if a primary facie case were to be shown for holding that the sec of state had acted in bad faith”
anxious scrutiny “sub-Wednesbury” - Bugdaycay
“the court must, i think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines” / “the basis of the decision must call for the most anxious scrutiny”
the ECTHR approach - Smith & Gradt
“the threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration”
proportionality, intensity of review - Denbigh
“the court’s approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting … there is no shift to a merits review but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test”
the proportionality test - Bank Mellat
(1) objective of the measure is sufficiently important to justify the limitation of the protected right
(2) the measure is rationally connected to the objective
(3) whether a less intrusive measure could have even used without unacceptably compromising the achievement of the objective
(4) whether, balancing the severity of the measure effect on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter
leaving Wednesbury behind - Daly
“it may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not capricious or absurd”
