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Substantive Review Notes

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Elliott 2011: Substantive Review

9.1 Introduction

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Traditional focus of Admin law always focus on manner not content of decision. But Elements of focus on content present:
* propriety of purpose
* relevancy doctrine
* and reasonableness as we shall see. And this doctrine refined so as to provide more rigorous standard of substance review.

9.2 Reasonableness and rationality

9.2.1 The Wednesbury and GCHQ cases

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Associated Provincial House v Wednesbury Corp. (CA)
* Facts: D, sought that decision to allow cinema to be open sunday only if no children under 15 were allowed was ultra vires and accordingly sought declaratory order (Statute was s 1(1) of the Sunday Entertainments Act 1932. Lord Greene MR
* Claimants submitted that decision was unreasonable and so ultra vires.
* "On face of it, nothing unlawful..."
* When discretion is given, must allow it to be exercised, but, discretion must be exercised within the "4 corners" of principles that law Recognizes upon which discretion must be exercised. What are they?
# 1) real exercise
# 2)relevant considerations
* Can we bring it all under one head? In the past, we have used the word "unreasonable" a lot and in a very comprehensive sense.
* Current case: consideration of not letting 15 year old younger kids in was something reasonable condition.
* Mr Gallop in the end even agreed that what he really meant was that it must be proved to be unreasonable in the sense that court considers it to be a decision that no reasonable body could have come to.
* "court is not arbiter of correctness of one view over another." A similarly restrictive vision of substantive review was presented by Lord Diplock in his speech in the GCHQ case in which he replaced the language of "reasonableness" with "rationality".
* "...it applies to a decision which is so outrageous in its defiance of logic or accepted moral
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standards that no sensible person who had applied his mind to the question to be decided could have arrived at it..." "..this is a q our judges are well equipped to answer.. or else there would be something badly wrong with our judicial system."

Irvine 1996 endorses this strong language and 3 reasons for judicial self restraint in this sphere:

1. Constitutional imperative: plt wants it that way

2. Lack of judicial expertise: courts are relatively ill equipped to make those decisions that PA must make.

3. Democratic imperative: elected pA derive authority in part from electoral mandate.
* Nabil: but not sure if these arguments support a globally restrictive approach or just demand judicial self restraint in particular contexts... At face value, all seems simple, but Lester and Jowell 1987 point out that reality is somewhat different.
* "Wednesbury test suggests that courts only intervene in absurd cases.. but in practice courts willing to impugn decisions that are far from absurd and sometimes even "coldly rational."

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More moderate formulation, and maybe more realistic, is Lord Cooke in ex parte International Traders' Ferry Ltd 1999 who argued for a more moderate formulation of the unreasonableness test.
* Highlights that in SSE v Tameside Met BC Lord Diplock used "conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt."
* Much more moderate, and regularizes the concept of unreasonably by expanding its reach beyond the utterly absurd.
* And Lord Cooke said it again in Daly, "the day will come when i will be more widely recognised that Wednesbury was an unfortunately retrogressive decision in Eng admin law... because it suggested that there are degrees of unreasonableness and only a very extreme degree can bring an admin decision within th legitimate scope of judicial invalidation."

* Lord cook s reference to variable nature of JR and related notion that, depending on context, courts might act with more or less deference in reviewing admin decisions require further discussion.

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"Articulating a viable concept of context sensitive judicial derence to the judgment of the ex branch is one of most imprtan and difficult things in admin law today" - Elliott 2010.

9.2.2 Deference and the variable standard of review

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Laws in "The Golden Metwand and the Crooked Cord"
* "on surface test of unreasonableness/irrationality is monolithic, leaves no scope of or variable standard of review according to subject matter of case... and courts, while broadly adhering to monolithic lang of Wednesbury, have to a considerable extent in recent year adopted variable standards of review." ** Good point). Some situations courts intervene on substantive grounds if crosses esp high threshold of unreasonableness, sometimes referred to as "super-wednesbury". In Notts CC v SSE Lord Scarman said only if 'bad faith, improper motive, or if so absurd as if his senses have left him." What leads Court to set bar SO high? Jowell 1999 PL has two answers:
* 1. Scarman high regard that resolution of House of Comons endorsed Ministers decision.
* 2. Complexity of issues at stake (reason given by Lord Phillips MR in Asif Javed v SSHD 2001 for outcome in Notts CC v SSE
# suggests also that high deference in Notts was exception not norm. Confirmed by Sir Thomas Bingham MR in ex parte Smith, "the greater the policy content of a decision, the more hesitant the court must be in holding a decision to be irrational. That is good and, like must good law, common sense.

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