A more recent version of these Jr Unreasonableness notes – written by Cambridge/Bpp/College Of Law students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our GDL Constitutional and Administrative Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Con & Ad : JR, Unreasonableness Background
?????Broad idea underlying the ground was pre-figured in Roberts v Hopwood (1925), Lord Wrenbury: 'A person . . . must, by the use of his reason, ascertain and follow the course which reason directs. He must act reasonably'.
?????Associated Picture Houses Ltd v Wednesbury Corporation (1948): o No under-15s allowed in cinemas on Sundays. o Got a licence, s1 Sunday Entertainment Act 1932. o Was not ultra vires. o So argument this was an 'unreasonable' decision.
?????'Wednesbury unreasonableness' o He emphasised that it was not for a court to interfere merely because it holds a different view on a matter of policy to that of the relevant public body and, in that sense, considers that the authority's decision may be unreasonable. o Honest and sincere people may disagree and it was not the function of a court to decide the correctness of one view over another. o But, court would interfere if: o 'If a decision . . . is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere'. [Lord Greene]
o Made clear this would require something overwhelming. o Gave an indicative eg of what would amount to unreasonableness: where a decision involved something so absurd that no sensible person could ever dream that it lay within the powers of the authority, such as dismissing a school teacher because she had red hair.
?????nature of the test: o Very high threshold---Short v Poole (1926)
?????What is the function of JR?
o Review of substance of decision; Or legality of decision?
?????Constitutional impact o Separation of powers o Ian Loveland: o "[This ground] is more readily regarded as being concerned with the political and moral rather than (in the strict sense) the legal character of the decision concerned".
?????Practical problems with Wednesbury o Tautology?
o Lack of clear structure. o Uncertainty o Does it create cover for policy decisions?
1 o Difficult to extract legal principles - intuitive?
?????So from start, difficulties with/criticism of this ground
?????Lord Diplock, GCHQ, attempts to reformulate 'unreasonableness' as 'irrationality' o "by irrationality, I mean .....a decision which is so outrageous in its defiance of logic or moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it."
?????Unreasonable or irrational?
o R v Devon cc, ex p G, Lord Donaldson MR: preferred to ues the term 'Wednesbury unreasonableness' rather than irrationality. o 'The imprimatur of Lord Diplocin in (GCHQ) is widely misunderstood by politicians . . . as casting doubt on the mental capacity of the DM, a matter which in practice is seldom, if even, an issue'. o Irrationality = devoid of reasons (R v Devon Co, ex p G (1988)---Lord Donaldson. Public bodies don't behave 'irrationally', they don't lose all reasons for making decisions. o Irrationality as sub-category of unreasonableness o Unreasonableness = devoid of satisfactory reasons (Wade & Forsyth). o So irrationality now seen as one type of unreasonableness---unreasonableness is the overall category
? ?? ? R v CC of Sussex ex p International Traders Ferry (1999) o Lord Cooke described Lord Green's formulation as tautologous and exaggerated. He preferred to ask more simply: o Lord Cooke: is decision 'one which a reasonable authority could reach?' o Cook trying to slightly change the test---asking this, rather than 'was it so unreasonable'. o But problems with this formulation: what one authority might conclude may be different from another, yet both may be reasonable.
Classes of unreasonableness
?????3 classes identified by De Smith & Jowell:
? (1) Defects in decision-making process (though not amounting to illegality) o imbalance in relevant factors o 'irrational' decisions
?????(2) Oppressive decisions
?????(3) Violation of constitutional principles o Arbitrary/inconsistent/uncertain
(1) Defects in decision-making process 2
?????These are defects which are not illegal (see 'Illegality'), but are serious enough to render a decision flawed.
?????(a)-inappropriate balancing of consideration/Decision Maker (DM) has wrongly weighed up relevant factors
?????Decisions not 'illegal'-not a failure to TIA relevant considerations.
?????Instead, failure is to weight up considerations properly.
?????West Glamorgan Co v Rafferty (1987)
?????Travellers facing eviction from local authority land.
?????Successfully argued this action would be unreasonable, because the local authority was under a statutory duty to provide sites in their area and had failed to do so. It could have provided temporary sites but hadn't even attempted to.
?????HELD: no reasonable local authority in this position would have considered itself free to treat a delay in reclaiming land, while temporary sites were found, as outweighing the effects of eviction on the travellers and the impact on those who were likely to be affected elsewhere by trespassing by travellers in the meantime. They had looked at the considerations, but given them the wrong balance. Acting intra vires, but balancing process has gone wrong.
?????Re Duffy (2008), HL
?????Re appointment of 2 new members to the N Ireland Parades Commission, designed to resolve disputes relating to marches, parades etc.
?????Appointment of members to the N Ireland Parades Commission (an impartial body).
?????SoS appointed members who were clearly not impartial.
?????Clear that reasonable SoS would do balancing process by putting one nationalist and one unionist on the commission.
?????Both appointees were prominent loyalists, proponents of a parade along the Garvaghy Road, one of the most contentious marching routes.
?????So no reasonable SoS would have made that decision, hadn't balanced considerations properly. Wasn't ultra vires, he had power to appoint who he wanted. But not reasonable.
?????HL: Lord Bingham: stressed the significance of the Commission as an independent, objective and impartial mediator; concluded the decision was not one a reasonable SoS would have made, if properly directing himself in law, if in possession of the relevant facts, and if taking account of necessary considerations.
?????Both appointments were declared unlawful (note the cross-over here with the ground of illegality).
?????R v Home Sec, ex p Cox (1993)
?????Cox convicted of murder in 1971; had been released on licence in
1983. Later recalled to prison on charges of threatening to kill his neighbour; but acquitted of the charges and Parole Board recommended he be released.
3 ?????Cox was a prisoner, slated for release. While at a pre-release hostel, was arrested, charged and convicted of minor offences of dishonesty and possession of cannabis. Would have to serve nearly 2 years before his case would be referred back to the Parole Board---
so he'd be in prison for a substantially longer time, far in excess of the tariff for the minor offences which he had committed.
?????This was intra vires, to put him back in prison for 2 years, but was unreasonable to do so. Should have dealt with more proportionately. Was unreasonable, as Home Sec had failed to give sufficient weight to the length of detention facing Cox.
?????(b) irrational decisions-DM fails to provide a comprehensible chain of reasoning for the decision
?????Failure to show a comprehensible chain of reasoning when reaching the decision.
?????R v SoS Environment, ex p Fielder Estates (1998): o A planning application to build houses close to Convey island had been refused---a public inquiry was set up, expected to last for 3 days. o A rep of the Convey Ratepayers' Association was to present evidence on the second day; when he turned up, the inquiry had been closed the previous day. o SoS ordered, without consultation, a fresh inquiry. o SoS Environment reopened the inquiry. o The developers, Fielder Estate, JR for decision to re-open the inquiry. Said no rational reason to re-open the inquiry. If they want to give their views, they can simply write to us. o Court Held: re-opening the inquiry was unreasonable decision of SoS, verging on irrational---no logical reason why they could no simply get the viewpoints of those who lived in the area in the writing. Decision was illogical and irrational.
?????CF, R v SoS Health, ex p Luff (1992---unsuccessful attempt of 'irrationality' as ground for JR o A middle-aged couple; wanted to adopt Romanian orphans, but refused. o Advice provided to Health Sec suggested Mr Luff's long-term health and life expectancy were not good. So couple deemed unsuitable to adopt the orphans. o In making decision, Health Sec had taken account, but not followed, the advice of the Bexley Health Panel, which had found the couple suited to adoption. o Waite J HELD: decision not irrational---because the other view concerning the trauma on these children's lives, if the couple were to suffer from ill health or death, was one that could be reasonably held.
?????R v North West Lancashire HA, ex p A, D & G (2001)
4 o Buxton LJ: the authority's general policy which denied treatment for transsexualism, save in 'exceptional circumstances', was pursued in an irrational manner. o In refusing to recognise a significant body of expert medical opinion, which supported the need for gender reassignment surgery in these cases, the HA had acted irrationally, when stating that this treatment would have no proven clinical benefit o (the effect of this policy was effectively to confirm that no such treatment would be provided at all, indicating also that the authority had 'fettered its discretion'---note the overlap here with illegality).
?????Big case here---R (Rogers) v Swindon NHS PCT (2006) o Rogers had breast cancer. o Was paying thousands of pounds herself for a drug, Herceptin, which was working well. Wasn't given by NHS. o Her local HA, Swindon, now could prescribe Herceptin. o Their policy of the Primary Care Trust (PCT) was: we will provide funding for Herceptin to those in exceptional circumstances. o Health Sec had warned primary care trusts, that when describing drugs, don't say that cost is a factor (makes it look bad, although is rational); so Rogers was told, Herceptin is available, but you are not exceptional circumstances so you're not getting the drug on the NHS. o 'Cost considerations' were not grounds for refusal of consideration in the policy. o She asks 'what do you mean by exceptional circumstances''---I have breast cancer, the drug's working, why don't I qualify. o Swindon NHS couldn't answer the question rationally--they could have made the rational argument that it was on grounds of costs; instead they tried to deny the drug on 'exceptional circumstances' ground, which they couldn't rationally justify. o Applicant argued: 'there was no rational basis upon which it could properly provide funding for some women and not others on the basis of exceptional circumstances'. o So the Herceptin, only available in 'exceptional circumstances', factors:
? Cost not a factor (Health Sec, this was part of the policy)
? Rogers---in key comparator group
? She would benefit from drug but not 'exceptional'
? So treatment rejected by PCT. o Sir Anthony Clarke MR: o "Where the clinical needs are equal, and resources are not an issue, discrimination between patients in the same eligible
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