A more recent version of these Review Of Discretion notes – written by Oxford students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our Administrative Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Review of Discretion Once a Court has established its jurisdiction - i.e. that it can review a decision - the next question is how it will do this, by what measure the decision will be scrutinised and to what extent the Court is able to intervene.
? Further, raises the issue of what grounds will permit a Court to quash an administrative decision. This area of review concerns, chronologically, the end of the decision-making process - it considers the actual decision that was made, rather than what precedes it.
? As such, this raises the most potent issues of institutional competence and the greatest contention in the review/appeal distinction.
Irrationality: Wednesbury Jurisdiction and rationality review: It appears that, during the early case law, the Courts treated the basis for rationality review as the ultra vires principle.
? Kruse v Johnson: 'if [unreasonable] court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires'.
? Wednesbury: '... the power of the court to interfere is... not as an appellate authority... but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.' This highlights the difficulty in distinguishing between (i) jurisdiction, and (ii) review of discretion.
? To say that a decision is so severely irrational as to place it outside the jurisdiction of the public body is to collapse the distinction. o It would mean that jurisdiction is defined so as to exclude decisions which are severely irrational in terms of substance.
? Padfield v Maff: 'in practice [jurisdiction and review] merge into one another and ultimately it becomes a question whether for one reason or another the Minister has acted unlawfully in the sense of misdirecting himself in law...' In this respect, the two shade into each other - can say either that the authority lacked jurisdiction, or that (although jurisdictional) the decision was deficient on rationality review.
?????Rationality can best be seen as a last resort; the final stage of review. Two senses of Wednesbury: Though the unreasonableness standard is usually the focus when considering Wednesbury review, there are actually two senses to the test: i)
Unreasonableness: o Wednesbury states that a Court can review where a public body reaches a decision which is so unreasonable that no reasonable authority could ever have come to it.
? Lord Greene's example was the dismissal of an employee for having red hair.
Although narrow, this is still a merits-based evaluation of the decision. o Kavanagh: the decision is premised on the view that the court's intervention is suspect, and a practice requiring considerable justification.
Irrelevance: o The Court can check to see if the authority considered things that it should not have done (irrelevant factors), or refused to take account of matter which they ought to have considered.
? This is best considered as a prior, separate ground. The unreasonableness standard:
Lord Diplock in GCHQ, adding an important qualification, refined the test: the decision maker must understand correctly the law that regulates his decision-making and must give effect to it.
? This requirement seems to be a proposition about staying in jurisdiction.
?????He also reformulated the main test slightly, so that the decision must be '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 ever have arrived at it.' o Using such a high threshold, the concerns of the Court interfering are lessened somewhat.
? Concerned whether the Royal Prerogative was subject to judicial review.
? It is notable that no reasonable 'authority' could ever have come to the decision, while GCHQ refers to a reasonable 'person'. o It may be that authorities are entitled to a wide range of choices based on their roles as setting policy. It was held that reviewability depended on the power's nature, not its source.
? However, despite this, the decision that national security concerns are non-justiciable. o 'I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immunes from judicial review'. Two particular criticisms are aimed at the test: a) It appears monolithic, with a singled, fixed standard. o However, it is not a fixed standard - it is dependent on the considerations at hand. o Ex p Smith: 'the greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational.'
? In ECtHR, it was made clear that the previous unreasonableness test was simply unsuitable for the HR context, not affording them enough protection. b) The standard looks extremely high. o Due to the above, can be lower than the original test.
The above have been seen particularly in the context of human rights, as in ex p Brind. It is notable that this test returns to considering reasonableness from the point of view of an authority, rather than a person. a) There was a lesser standard. o The Court must inquire as to whether a reasonable Secretary of State could reasonable have made the primary decision being challenged. b) Presumed that only a compelling public interest would justify the invasion of the right. o As such, the default position is not deferential, and shows a willingness of the common law to protect human rights. However, it is uncertain whether these can be seen as adaptions?
? Craig argues that 'the idea that heightened scrutiny in cases concerning rights can be seen simply as a variant of the original Wednesbury test is problematic in both linguistic and conceptual terms.'
?????The whole point of the tests is to be a single, very high test - as such, as soon as it moves away from this, it begins to be undermined. It seems that the thrust of Wednesbury type (i) is that a decision is beyond the range of responses open to a reasonable decision-maker, and that (ii) the greater the interference with human rights, the more the court would require by way of justification (Lord Bingham, MOD ex p Smith). )Irrelevant considerations: It is unclear exactly how the two limbs of Wednesbury relate.
?????The former sense is satisfied where a decision was outside the spectrum of decision that a reasonable public body could make, while the latter is satisfied where irrelevant considerations were taken into account (or relevant considerations not taken into account). o It is suggested that the best way to view their relationship as separate (with the irrelevant considerations test forming an earlier stage of JR). o As such, there may be cases which satisfy one of the limbs, but not the other. In making the decision, did the decision-making body take into account the right issues?
? Where the decision maker failed to give regard to something, can be made to reconsider, but the weight then given is left to the decision-maker. o I.e. the decision merely referred back. o R v Rochdale: 'if the influence of irrelevant factors is established, it does not appear to be necessary to prove that they were the sole or even the dominant influence; it seems enough to prove that their influence was substantial'.
? Within this, the improper purpose case law is also relevant. o Padfield v MAFF:
? 'If all the prima facie reasons seem to point in favour of his taking a certain course to carry out the intentions of Parliament in respect of a power which is has given him in that regard, and he gives no reason whatever for taking a contrary course, the court may infer that he has no good reason and that he is not using the power given by Parliament to carry out its intentions.' o If an improper purpose is found, it is struck down.
? Can we really distinguish between the two?
o o o
In principle, yes - positive reason for acting (purpose); constraints taken into account (irrelevant considerations). However, in practice, not very easy and can be manipulated to the facts - irrelevant fact easier to prove (but the decision is just referred back), improper purpose is harder to prove (but has the decision struck out). Solutions?
? Taylor: distinguish more clearly - where statutory provision is broad and general, use purpose; where it is more clearly defined, irrelevant considerations.
? Is it viable to categorise statutes in this way?
? Williams: just be honest about is and have a variable intensity of review, rather than manipulating the test.
Human Rights Act 1998: Proportionality Proportionality was introduced into English law as a statutory and separate head of review, though it is found in relation to breaches of fundamental rights in the ECHR.
?????Kavanagh: 'proportionality is invoked by the courts in order to ensure that legal measures are not excessive in relation to the social problems they are intended to solve, but also that it does so in a way which is not unduly restrictive of human rights.' o 'In this way the doctrine seeks to strike a balance between constitutional principles that protect policy and political decision-making on the one hand, and core liberties of the individual affect by that process on the other. Though the proportionality test can be articulated in a number of different ways, Lord Steyn in ex p Daly gives the typical three-stage test used in English law: (i) balancing, (ii) suitability, (iii) necessity.
? 'Whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.'
? It is also notable that the reasoning can often descend into the balancing aspect only - proportionality stricto sensu. Though Daly articulated proportionality as a separate head of review, Lord Bingham stressed that he had reached the same conclusions on an orthodox application of common law principles.
?????This makes an important point that the two tests (Wednesbury and proportionality) overlap, with the main difference appearing to be the flexibility and scope of the latter. The test is openly substantive, since it must go into the decision itself: 'the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant's Convention rights have been violated (Begum v Denleigh). Merits and scrutiny: Naturally, the Courts are aware that examination of the merits of a decision undermines the appeal/review distinction, and a wide-ranging assessment may thwart their constitutional role.
Buy the full version of these notes or essay plans and more in our Administrative Law Notes.