Legality Rationality Controls Notes
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Legality Rationality Controls Revision
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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 alternative
Irrationality 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?
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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