what is irrationality
‘[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’
- GCHQ
discretion
‘The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred.’
yet, courts must be able to intervene when discretion is abused
Wednesbury
authorities must keep within the 4 corners of the matters which they ought to consider
courts will only intervene if decision is ‘so unreasonable that no authority could ever have come to it’
not a balancing exercise
tend to exclude competing policy considerations as not suited to the role of the judges
GCHQ
applying Wednesbury
Rogers - failing to provide criteria for exceptionality
Duffy - unreasonable as no reasonable person would regard them as impartial
Basma - failure to take into account certain evidence
Nottinghamshire CC Case
certain local authorities were disproportionately affected
not appropriate to review on the ground of unreasonableness - such would only be available if secretary of state had acted in bad faith or for an improper motive
SUPER-WEDNESBURY
sub-wednesbury standard
more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines - Bugdaycay
must look at decisions more closely
Smith and Grady
Only if his purported justification outrageously defies logic or accepted moral standards can the court, exercising its secondary judgment, properly strike it down
Ministers Stance cannot be held unlawful, to say however, that it is outraegous in its defiance of logic is another thing
ECtHR response to Smith and Grady
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 […] of the question of whether the interference with the applicants’ rights answered a pressing social need
told courts standard they were applying was too high in sub wednesbury
instead courts had to apply a proportionality standard
proportionality standard
- objective of the measure is sufficiently important to justify the limitation of a protected right
- rationally connected to the objective
- whether a less intrusive measure could have been used
- the extent that the measure will contribute to its achievement is outweighed by balancing the severity of the measures on the rights of people
should wednesbury be replaced?
‘retrogressive decision in English administrative law’ - Daly
advantage of proportionality - introduces an element of structure
keeping wednesbury
courts have established that it remains good law
move to proportionality would gave long consequences as it would involve courts considering the merits of the decision
spectrum of review
- Super Wednsebury - social policy
- Classic Wednesbury - ordinary administrative decisions
- Sub-Wednesbury - pre-HRA rights cases
- proportionality - EU/ECHR cases
link with procedural impropriety and illegality
PI - judicial control of decisiom involves looking at decision itself and may involve scrutiny of the reasons for this, no general duty to give reasons for decisioms, but if no reasons are given courts may infer that there we no good terms for the decision
illegality -
If the decision-maker has taken account of relevant considerations, courts will not question the weight those are given provided the decision-maker does not ‘lapse into Wednesbury irrationality’
- Tesco
process v outcome rationality
process - requirement that the decision maker must have regard to all relevant considerations and no irrelevant ones, but is not limited to that. reasoning should have no errors or gaps. - KP
outcome - concerned with whether outcome is ‘so unreasonable that no reasonable….’ - KP
