Judcial Review

Question: Explain with case illustrations the meaning and importance of ‘irrationality’ as a ground for judicial
review of administrative decision-making.
Answer:
Judicial review is case in which someone can challenge the lawfulness of a government decision. When fulfilling
a public function, this could be a decision made by a central government department, another government
entity like a regulator, a local authority, or other bodies. If the claimant prevails, the government's decision may
be ruled unconstitutional, or quashed.
There are three main grounds of judicial review: illegality, procedural unfairness, and irrationality.
A decision may be illegal for different reasons such as an unlawful sub-delegation. This is where a local council
can delegate if it is within its scheme of delegation, while a minister may not be able to carry out all tasks. In
the case Carltona v Commissioner of Works, the factory owner raised a judicial review action to challenge the
legality of the requisition order. The order gave the commission of works rights to confiscate the land. Carltona
argued that the notice did not come from the commissioner of the works. Instead, it was signed by his
secretary. The Court held that the delegation was inevitable, pragmatic, and totally unobjectionable. R v
Secretary of State for the Home Department, ex parte Oladehinde, it was also held that as long as a decision
was made by officials of suitable grading and experience, the decision could not be challenged.
A decision can be overturned on the ground of procedural unfairness if the process leading up to the decision
was improper. This might, for instance, be because a decision-maker who is supposed to be impartial was
biased. Or it might be because a decision-maker who is supposed to give someone the chance to make
representations before deciding on their case failed to do so. In Smith v North East Derbyshire Primary Care
Trust, the claimant had challenged a decision on the method of provision of general practitioner of medical
services in her village. She said that the procedure had been flawed in that the consultation had been
inadequate. Her appeal succeeded. May LJ, summarising the authorities as to whether a procedural unfairness
was significant, said: ‘Probability is not enough. The defendant would have to show that the decision would
inevitably have been the same and the court must not unconsciously stray from its proper province of
reviewing the propriety of the decision-making process into the forbidden territory of evaluating the substantial
merits of the decision.’
A decision can be overturned on the ground of irrationality if it is so unreasonable that no reasonable person,
acting reasonably, could have made it. This is a very high bar to get over, and it is rare for the courts to grant
judicial review on this basis. The definition of this concept is known as the 'Wednesbury unreasonableness'
which was set out in the case Associated Provincial Picture Houses v Wednesbury Corporation. Here Lord
Greene MR explained it as follows: ‘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’, but to prove a case of that kind would
require something overwhelming. In this case the court held that it could not intervene to overturn the decision
of the defendant because they disagreed with it. To have the right to intervene, the court would have to
conclude that: 1. in making the decision, the defendant took into account factors that ought not to have been
taken into account; 2. the defendant failed to take into account factors that ought to have been taken into
account or 3. the decision was so unreasonable that no reasonable authority would ever consider imposing it.
As such, the decision did not fall in any of these categories so the claim failed.
According to 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.” In the case Council of Civil Service Unions v Minister for the Civil Service, it was ruled
that any and all employees of the Government Communications Headquarters (GCHQ) were prohibited from
joining any trade union. This decision was justified based on the potential threat to national security, and
enforced using an Order of Council which is an exercise of the Royal Prerogative Power. By limiting access, or
completely refusing access to trade unions to employees, certain individuals affected were not able to rely on
certain employment legislative provisions or be represented by a Union. It was held that the importance of the
case is found in the departure from the unwillingness of the courts to judicially review prerogative powers. Lord
Diplock found that where a person’s ‘private rights or legitimate expectations’ are affected by the execution of
the prerogative power, then that execution of power should be amenable to review. Lord Fraser and Lord
Brightman came to the same conclusion based on the view that where the prerogative power was delegated
from the monarch, the exercise of that power could be reviewed via judicial review. Following this case,
whether a judgement fits into this category is a question that judges should be well able to answer based on
their training and experience.
It was suggested by Lord Diplock in GCHQ that proportionality could provide a potential fourth ground of
review. In many ways, proportionality is a much more straightforward concept than Wednesbury
unreasonableness and one with which the UK courts have become very familiar in recent decades. It is a
commonly used principle in European Union law and also in the jurisprudence of the European Court of Human
Rights. In De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing, Lord
Clyde put forward a three-part test for proportionality. First, that the legislative objective is sufficiently
important to justify limiting a fundamental right; second, that the measures designed to meet the legislative
objectives are rationally connected to it; and, third, that the means used to impair the right or freedom are no
more than is necessary to accomplish the objective. It was held that the restraint imposed on civil servants
amounted to more than what was necessary to pursue the public interest, and consequently the claimant’s
constitutional right has been unlawfully infringed. This test was endorsed by the House of Lords in R (Daly) v
Secretary of State for the Home Department. Since then the approach adopted by the UK courts has been a
twin-track one, with proportionality used in relation to ECHR/HRA 1998 cases but irrationality/Wednesbury
unreasonableness remaining the test at common law. There have been frequent calls to replace Wednesbury
unreasonableness with proportionality, but Keyu v Secretary of State for Foreign and Commonwealth Affairs
indicates this is not imminent.
Potentially, Irrationality could open up a whole range of public acts and decisions. However, the court can
control what claims it hears through the process of requiring claimants to seek permission or leave for claims to
be heard. Those claims that do make it through to a full hearing often fail because Wednesbury
unreasonableness is so difficult to establish. The lack of proportionality can be an argument for a decision being
irrational.

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Question: Explain with case illustrations the meaning and importance of ‘irrationality’ as a ground for judicial

review of administrative decision-making.

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