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Substantive Review Problem Question And Essay Notes Notes

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SUBSTANTIVE REVIEW
PQ notes
Deference
Reasons for deference
Constitutional competence
R (Lord Carlile) v Secretary of State for the Home Department: The courts ought to defer if the democratic credentials of the decision-maker are superior to those of the unelected judges.
"[A]lthough a recognition of the relative institutional competence of the executive and the courts in this field is a pragmatic judgment and not a constitutional limitation, it is consistent with the democratic values which are at the heart of the Convention, because it reflects an expectation that in a democracy a person charged with making assessments of this kind should be politically responsible for them."
Institutional competence
Expertise:
R v Chief Constable of Sussex, ex parte International Trader's Ferry: "The courts have long made it clear that, though they will readily review the way in which decisions are reached,
they will respect the margin of appreciation or discretion which a chief constable has. He knows through his officers the local situation, the availability of officers and his financial resources, the other demands on the police in the area at different times".
A v Home Secretary: Expertise-related deference does not amount to blind submission to the decision-maker's views.
Belfast City Council v Miss Behavin' Ltd: Expertise cannot generate deference if the relevant expertise has not been used by the decision-maker.
Re Brewster's Application: "[T]he margin of discretion may, of course, take on a rather different hue when, as here, it becomes clear that a particular measure is sought to be defended (at least in part) on grounds that were not present to the mind of the decision-maker at the time the decision was taken". R (Begum) v Governors of Denbigh High School: Particular deference may be due if an expert decision-maker has particularly carefully addressed itself to relevant issues (but it does not follow that a decision can survive scrutiny (thanks to deference or otherwise) only if the decision-maker has addressed the various stages of the proportionality analysis in the way that a court would).
Complexity:
R (Lord Carlile) v Secretary of State for the Home Department: A group of parliamentarians invited an Iranian dissident to London. The Home Secretary (as she then was) had already excluded the dissident from the United Kingdom and refused to admit her for the meeting.
The Home Secretary was especially concerned about the effects that admitting the dissident might have on relations with Iran. These could not, of course, be proved, but Lord Sumption nonetheless relied on them in upholding the Home Secretary's decision.
Re Brewster's Application: "Where a conscious, deliberate decision by a government department is taken on the distribution of finite resources, the need for restraint on the part of a reviewing court is both obvious and principled. Decisions on social and economic policy are par excellence the stuff of government. But where the question of the impact of a particular measure on social and economic matters has not been addressed by the government department responsible for a particular policy choice, the imperative for reticence on the part of a court tasked with the duty of reviewing the decision is diminished… [T]he level of scrutiny of the validity of the claims must intensify to take account of the fact that the claims are made ex post facto and the claimed immunity from review on account of the decision falling within the socio-economic sphere must be more critically examined."
Polycentricity:
R v Cambridge Health Authority, ex parte B: A young child was grievously ill with leukaemia. Her doctors thought further treatment would be unjustified, in view of the suffering it would cause and the low likelihood of success. Her father sought the opinion of other experts, who suggested that an aggressive course of treatment, if followed, might have a 20% chance of success. But the treatment was available only in the private sector, at high cost. The health authority was unwilling to fund the treatment. Although Laws J had quashed its decision to refuse to fund at first instance, the CA allowed an appeal by the health authority. Types of deference
Spatial/ doctrinal
Epistemic/ weight-based
R (Begum) v Governors of Denbigh High School: Example of weight being given to administrative decision-makers' assessment of matters falling within their expertise.
Wednesbury unreasonableness
Associated Provincial Picture Houses v Wednesbury Corporation: "There may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense… [A]
conclusion so unreasonable that no reasonable authority could ever have come to it."
CCSU v Minister for the Civil Service: "By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness'… It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it."
R v Chief Constable of Sussex, ex parte International Traders' Ferry Ltd: These are not test"
but "admonitory circumlocutions".
Super-Wednesbury
R v Secretary of State for the Environment, ex parte Hammersmith and Fulham London
Borough Council: "[S]ince the statute has conferred a power on the Secretary of State which involves the formulation and implementation of national economic policy …, it is not open to challenge on the grounds of irrationality short of the extremes of bad faith, improper motive or manifest absurdity. Both the constitutional propriety and the good sense of this restriction seem to me to be clear enough. The formulation and implementation of national economic policy are matters depending essentially on political judgment. The decisions which shape them are for politicians to take … If the decision has been taken in good faith within the four corners of the Act, the merits of the policy underlying the decisions are not susceptible to review by the courts and the courts would be exceeding their proper function if they presumed to condemn the policy as unreasonable."
Sub-Wednesbury
R v Secretary of State for the Home Department, ex parte Bugdaycay: In cases involving important rights or interests, the standard of review will be more demanding.
R v Ministry of Defence, ex parte Smith: "The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above."
Proportionality
Bank Mellat v Her Majesty's Treasury: "[The reviewing court must conduct] an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i)
whether its objective is sufficiently important to justify the limitation of a fundamental right;
(ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them."
Proportionality in English law
R v Home Secretary, ex parte Daly, Pham v Home Secretary, R v Secretary of State for the
Home Department, ex parte Simms: There are some signs that proportionality was already present in the common law of judicial review prior to the introduction of the HRA.
R v Home Decretary, ex p Daly: Lord Steyn: Although there was "some overlap" between the two, "the intensity of review is somewhat greater under the proportionality approach" than under Wednesbury, for three reasons: "First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations.
Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith is not necessarily appropriate to the protection of human rights."
Intensity of proportionality review
R (Mahmood) v Secretary of State for the Home Department: "[T]he intensity of review in a public law case will depend on the subject matter in hand". "In law context is everything"
R v Home Secretary, ex p Daly: "The depth of judicial review and the deference due to administrative discretion vary with the subject matter".
Pham v Home Secretary: "Whether under EU, Convention or common law, context will determine the appropriate intensity of review".

Essay notes
Wednesbury reasonableness
General
The classic case
 Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB

223 Facts: D, a local authority, allowed the cinema to open on Sundays only on the condition that under-15s would not be admitted to performances. D had imposed this condition pursuant to its statutory power under s.1(1) of the Sunday Entertainments Act 1932,
which allowed it to permit Sunday opening of cinemas "subject to such conditions as the authorities think fit to impose".
Verdict: not unreasonable. Lord Greene at 230: "it is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere… but to prove a case of that kind would require something overwhelming"
A reformulation
 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
Lord Diplock at 410: "a decision "which is 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 have arrived at it"
Terminological uncertainty - are we really concerned with "unreasonableness" or
"irrationality"?
These benchmarks are set very high. But do they reflect reality? For e.g., do we really only intervene when a decision is "so outrageous in its defiance of logic or…moral standards…
that no sensible person would…have arrived at it"?
Jowell and Lester, "Beyond Wednesbury: Substantive Principles of Administrative Law"
[1987] PL 368 at 372 argue that the language of Wednesbury is just admonitory circumlocution, providing the following examples:
 Hall and Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240

Facts: planning conditions requiring the construction of a road unreasonable because the effect was to have the property developers build a road for free for the Council, even though "another and more regular course [was] open" to the
Council (at p. 251, per Willmer LJ));
o Analysis: But is this really "irrational" or "unreasonable"????
 R v Hillingdon London Borough Council, ex parte Royco Homes Ltd [1974] QB 720

Facts: planning condition requiring the property developer to permit people on the Council's housing waiting list to live in the houses for 10 years was "the equivalent of requiring the applicants to take on at their own expense a significant part of the duty of the council as housing authority" (at p. 732, per
Lord Widgery CJ);
o Analysis: again, is this really that irrational?
For comment, see e.g. Craig, "Proportionality, Rationality and Review" [2010] NZLR 265.
Given the vast difference between rhetoric and reality, there has been a significant focus
(especially in the academic literature) on what type 2 Wednesbury unreasonableness really means: "Intellectual honesty requires a further and better explanation as to why the act is unreasonable"
Consider the following reformulations of Wednesbury:
 Jowell and Lester, "Beyond Wednesbury: Substantive Principles of Administrative
Law" [1987] Public Law 368. Based on the decided cases, they suggested three overlapping, non-rigid categories:
Within the first are principles prohibiting decisions that are "irrational" in the accepted sense of that term--decisions displaying no intelligible reason, or arbitrary decisions,
made perhaps by "consulting an astrologer or spinning a coin." [R. v. Deputy Industrial
Injuries Commissioner, ex parte Moore [1965] 1 QB 456 at p. 488, per Diplock LJ] The second category contains principles prohibiting decisions that violate accepted standards of administrative probity (such as fraudulent decisions, or decisions taken in bad faith) or of good administrative practice (such as decisions that are unjustifiably inconsistent). The third category, less easy to discern beneath Wednesbury camouflage, contains decisions struck down by the courts because they unjustifiably violate fundamental rights and freedoms (at p. 374).
It is important to note that Jowell and Lester did not see this approach as requiring an abandonment of judicial restraint (at p. 381).
 In "Wednesbury's reason and structure" [2011] Public Law 238, Daly argues that much of the criticism of Wednesbury is misplaced. He argues that behind the obscurity of many judgments that invoke unreasonableness, it is possible to find a more structured approach. In particular, Daly argues that courts do—or should—
intervene on the Wednesbury ground when one of several

indicia of

unreasonableness can be identified and the decision-maker is unable to justify the presence of the relevant indicium to the required standard of justification
Daly's approach would seem to explain at least one important feature of type 2
Wednesbury cases, viz. that it is never sufficient for an applicant for judicial review to suggest that a court should strike down a decision simply because it would have weighed the competing considerations differently: see e.g. R v Investors Compensation Scheme
Ltd, ex parte Bowden [1996] AC 261. On the modes of justification, see Champion v
Chief Constable of Gwent [1990] 1 WLR 1.

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