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Legality Rationality Controls Notes

BCL Law Notes > Comparative Public Law Notes

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Proportionality & Unreasonableness UK Framework of UK thought
? Dichotomy in GCHQ per Diplock LJ - distinguish between illegality &
irrationality controls o Illegality -
? Controls over improper purposes
? Controls for relevancy/irrelevancy o Irrationality - Wednesbury irrationality
? Conceptual foundations of dichotomy o Illegality controls -
? Based in separation of powers - courts are demarcating boundaries of statutory powers - jurisdictional error to act for an improper purpose / having regard to irrelevant considerations etc
? Matter of statutory interpretation
? Court substitutes judgment as to statutory construction of provision conferring power - ie not relevant that authority makes bona fide interpretation in error o Irrationality control -
? Presumes that illegality controls are not breached - public body acting within jurisdiction
? Courts more reluctant to interfere with exercise of discretion
? Not substitute of decision - whether so irrational that no reasonable body could have made decision Illegality
? Illegality controls are exercise of statutory interpretation but are not free of evaluative judgment o Improper purpose cases often involve evaluative judgments
? Bromley per Diplock LJ - acknowledging that purpose of statute unclear
? Reading in principles - eg rule of law in Corner House
? Can create contentious results o PC says there is inherent malleability in whether court intervenes and whether does so on illegality or irrationality grounds
? Judges seeking more scope to intervene will go for illegality
? Judges not minded to intervene can use deference to discretion to avoid intervention
? Approach taken often depends on level of abstraction of inquiry o More abstract the inquiry, more likely that public body will surmount illegality controls & case will have to be dealt with by irrationality controls o More specific the inquiry, more likely that the public body will fail at illegality controls o Eg Wednesbury example - dismissal of teacher for colour of hair

Abstract inquiry - Is it a relevant consideration to consider physical appearance? Probably (eg piercings/punk hair) - would have to go on to consider whether particular case is irrational
? Specific inquiry - Is it a relevant consideration to consider a natural physical characteristic? Probably not - fails at illegality stage o Fairly impossible (especially in adversarial context) to mandate level of abstraction: eg Corner House (looked at illegality, largely as a result of how counsel framed question); Lord Green in Wednesbury admits that the two shade into each other
? In practice, interesting therefore that the two are not put in the alternativeIrrationality in UK law
? Test - if public body within jurisdiction, assumption (founded in separation of powers) that Courts should not readily intervene o Ie that no reasonable body would ever make the decision / defiance of logic / morally outrageous
? Does separation of powers justify limited approach in GCHQ?
o Spectrum
? Naturally, separation of powers requires that court not substitute judgment on merits in discretionary matter
? BUT any control necessarily involves some view of the merits
? Judicial statements of not going into merits is a fiction - have to define scope of 'reasonable' decisions o PC thinks that there should be (and actually is) a more accessible test
? Under Wednesbury test no administrative action would ever reach that level of absurdity - but actions do succeed so there must be a different test applied in practice
? Subtle variations to Wednesbury test o Fundamental rights cases: Brind (pre-HRA) - reasonableness review is variable & where decision affects fundamental rights, court will be more intrusive o Other methods of variation:
? Judges pretend to apply Wednesbury to allow relief for the plaintiff, but application stretches credulity
? Judges reformulate test slightly, with adjectives/adverbs, etc: ITF; Daly (eg decision which reasonable body should have made in all the circs)
? "Anxious scrutiny" - requires closer scrutiny of facts by primary decision-maker and on judicial review
? used partly in fundamental rights cases pre-HRA but also in other cases - generally asylum & immigration cases o PC says would be preferable to actually reform the test rather than have these "pressure valves"
? Closer to 'anxious scrutiny' test

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