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Substantive Review Revision Notes

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Substantive Review 1

Introduction

1.1 What is substantive review?
Classic exposition: JR concerned only with procedure not substance, but consider courts' proven willingness to engage in relatively interventionist review. What all three have in common is they narrowly define the statute (but shouldn't blind you from realizing that court is controlling what decision can substantively be made. :

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Improper purposes: R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] Court read into statute an extended definition for which power could be used.

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Statutory interpretation: Anisminic [1969] 2 AC 147 (and the line of case law generated by Anisminic)

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Application of statutory criteria to facts: Khawaja v Secretary of State for the Home Department [1984] AC 74; R (A) v Croydon London Borough Council [2009]

1.2 The orthodox test Orthodox test is "unreasonableness" classically layed down by Lord Greene MR, as he tried to bring under one head principles of "4 corners of legality"on which discretion must be based., in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] (D, sought that decision to allow cinema to be open sunday only if no children under 15 were allowed was ultra vires ) at 229 and 234 he said:
... something so absurd that no sensible person could ever dream that it lay within the powers of the authority ... [A] conclusion so unreasonable that no reasonable authority could ever have come to it.
.....but court is not arbiter of correctness of one view over another....

Similarl is Lord Diplock's "irrationality" test, as set out in Council of Civil Service Unions v. Minister for the Civil Service [1985] at 410: 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.

Why did was threshold of unreasonableness set so high, are courts true to their word?
Irvine 1996 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.

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Unreasonableness

2.1 Wednesbury - appearance and reality

Are Wednesbury and GCHQ tests misleading? Consider the view of Wade and Forsyth: "...there are abundant instances of legally unreasonable decisions and actions at all levels. This is not because ministers and public authorities take leave of their senses, but because the courts in deciding cases tend to lower the threshold of unreasonableness to fit their more exacting ideas of administrative good behaviour.

Similarly, Jowell and Lester [1987] PL: "... In practice, however, the courts are willing to impugn decisions that are far from absurd. Were the courts only to interfere with decisions verging on the insane, a zone of immunity would be drawn around many oppressive decisions.." Why do we have the mismatch? (1) Desire to seem faithful to appeal/review (2) Desire to intervene when bad administration is perceived

Are judges really more ready to intervene than the rhetoric suggests? See, eg, Hall and Co. Ltd. v. Shoreham-by-Sea Urban District Council [1964] 1 WLR 240; R. v. Hillingdon London Borough Council, ex parte Royco Homes Ltd [1974] QB 720. For comment, see Laws, 'Wednesbury' (in Forsyth and Hare (eds), The Golden Metwand and the Crooked Cord (Oxford 1998).

2.2 Different formulations of the Wednesbury test The rhetoric is variable, too. Consider:

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Secretary of State for Education v. Tameside Metropolitan BC [1977]: 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.

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R. v. Chief Constable of Sussex, ex parte International Traders' Ferry Ltd. [1999] at 157, per Lord Cooke: He thought, court should intervene simply if it is one that a reasonable authority would not have reached

2.3 Wednesbury - a context-sensitive test So, Law is simply incoherent? Or do the different versions of the test reflect a set of principled distinctions which condition the courts' approach to substantive review?
Laws in "The Golden Metwand and the Crooked Cord" 186-187 argued that there were principled reasons for differences in formulation, and argued that intensity of review must vary with different situations. While on surface "monolithic", any search for single test is futile because so dependent on subject matter before courts

Elliott 2010: "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" -.

2.3.1 'Super-Wednesbury ' Review R. v. Secretary of State for the Environment, ex parte Hammersmith and Fulham London Borough Council [1991 at 597, per Lord Bridge:

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