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Discretionary Powers Notes

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CONTROL OF DISCRETION Grants of power to public bodies are generally expressed: if X then you may do Y1 or Y2. Whereas legality review is concerned with X factors, irrationality review is concerned with Y factors. Once a court has established a DM has acted within jurisdiction, the next question is by what measure can the decision be scrutinised and to what extent can the Court intervene?
English Admin law has traditionally been concerned with decision making procedure rather than the content of decisions themselves. It is in JR of the latter that there is the greatest potential for eroding the distinction between appeal and review and judicial usurpation of the executive's functions. Reasons for judicial deference in this area: Irvine

1. Constitutional imperative: once Parliament has entrusted a body with the ability to make a decision the courts should not lightly interfere with this.

2. Lack of judicial expertise when compared with that of the decision-maker and

3. Democratic mandate: the courts should not usurp political, democratic controls on the executive. IRRATIONALITY: WEDNESBURY The early case law treats the basis for rationality review as the ultra vires principle:
? Kruse v Johnson [1898]: Court considered validity of a local by-law delegating powers to police to prevent music being played near homes. Lord Russell CJ: although there may be cases where a Court can declare such delegated legislation "invalid because of unreasonableness" it will only do so where the court might well say "Parliament never intended to give authority to make such rules, they are unreasonable and ultra vires." Emphasises that a by-law will not be unreasonable if "it goes further than is prudent or necessary or convenient." This is because local government officials are elected. o Elliott: the judicial deference here to a democratically elected body indicates they are particularly unlikely to be subject to review
? Wednesbury [1948]: LA has statutory powers to impose conditions on Sunday opening of cinemas. LA prohibited children under 15 on Sundays. Lord Greene: no unlawful action. A decision will be unreasonable if it is "so absurd that no sensible person could ever dream that it lay within the powers of the authority" or "so unreasonable that no reasonable authority could ever have come to it" o Williams: unreasonableness here is not a free standing ground of review it overlaps with a prior stage determining (Greene) "whether they have taken into account matters which they ought not to take into account ... [or] refused to take into account matters ought to take into account" o Taggart: notes the repetition of the judgment, Greene says the same thing in four different ways. The test was restated by Lord Goff in GCHQ [1985] "By `irrationality' I mean what can 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 to be decided could have arrived at it"

Two particular criticisms are aimed at the test: (i) it appears monolithic and not a fixed standard; (ii) the standard is extremely high: neither is the case in practice, rather the test varies with context:
?? ? ?Deference where: (i) oversight by elected body; (ii) decision is one of policy o Nottingham CC v SS for Environment [1986]: SS imposed financial penalties upon local authorities. Lord Scarman: set the test at an extremely high standard --- the court would only intervene if the Minister "acted in bad faith or for an improper motive, or that the consequences of his guidance were so absurd that he must have taken leave of his senses." NB: Scarman set great store by: (i) Ministers decision had been endorsed by a resolution of the House of Commons; (ii) complexity of issues at state (decision turned on political / economic considerations, the rationale of which could not be measured by any yardstick by the court).
? Hard-edged review where human rights (and other issues) are concerned: o Ex p Brind [1991]: SS exercised statutory powers to prevent BBC from broadcasting interviews with terrorist organizations. BBC argued the order contravened their Art. 10 ECHR right to freedom of expression. HL: ECHR had not yet been brought into domestic law, so could not apply directly, but Lord Bridge held the unreasonableness test could require courts to consider whether the SS's infringement of rights was justified; although primary balance was to be struck by the DM, that does not mean that the courts are not "entitled to exercise a secondary judgment by asking whether a reasonable SS... could reasonably make that primary judgment." o R (Bradley) [2007]: JR of government's decision to reject the Ombudsman's findings in relation to pension schemes. CA: although it was open to a minister to reject the Ombudsman's findings, the decision must be based on "cogent reasons." I.e. it appears the court adopts a more piercing form of irrationality review here; although the minister is ultimately politically accountable for his decision, the court is aware of the function and expertise of the Ombudsman in holding government to account.
? Point is that the courts will adopt higher intensity review in contexts other than HRs.However, it is not that case that HRs will always defeat other considerations: o ex parte Smith [1996]: Cs were dismissed from the armed forces for being gay. The policy had been debated by both Houses of Parliament before being implemented. Bingham MR (CA):
? Brind suggests "the more substantial with the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable"
? However, it is ""not the constitutional role of the court to regulate the conditions of service in the armed forces ... nor does it have the expertise to do so ... the greater the policy content of a decision and the more remote the subject matter from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. But the test itself is sufficiently flexible to cover all situations."

Specific endorsement of the variable (looser) test:
?????Lord Cooke, Daly [2001]: "the day will come when it will be more widely recognised that ...
Wednesbury... was an unfortunately retrogressive decision in English administrative law, insofar as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation ."
? Lord Mance in Kennedy [2015]"The common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so- called Wednesbury principle...
the nature of judicial review in every case depends on the context."

Can these developments really be seen as adaptations of Wednesbury? Craig: argues that it can't simply be the same test for linguistic and conceptual reasons --- thrust of Craig's argument is that the same test is not being applied in the rights context.
? Conceptual: the premise behind W is that the courts should be aware of their limited role; social /
political choices are assigned by Parliament to a Minister. Whereas the premise behind the rights cases is that, although the courts should not substitute judgment, "decisions about rights ... must not necessarily be accorded the same respect or judicial deference."
? Linguistic: The approach taken in the rights cases does not accord with the language of Lord Greene's test: "the court does not rest content with inquiring whether the decision of the minister interfering with rights was so unreasonable that no reasonable minister could have made it." Elliott: features in Smith pointed either way: national security and Parliamentary debate over the policy point towards deference, but Cs HRs toward intervention. It shows a more sophisticated doctrine of deference is needed; we can't just box cases into 'about national security' or 'about human rights'. Norris:
? The deference argument loses force in the HR context "if one accepts a conception of these rights as being against the state and against the majority." "If rights protect the individual from the power of the state, it is wrong to allow the state in the shape of Parliament or its delegatees to have the final say when an individual claims that his fundamental rights have been infringed."
? There are two ways of achieving such intensive review for HRs: either accept that Wednesbury is a variable standard of review, or to adopt a more principled form of review that allows the courts to articulate a principled justification for the result reached in each case. However, one issue with this approach is that confidence in the impartiality of the judiciary will be undermined. IRRELEVANT CONSIDERATIONS Though the unreasonableness standard is usually the focus when considering Wednesbury review, there are actually two senses to the test:
? Unreasonableness, examining the merits of a decision and premised on the view that the bar for intervention should be high. This was noted above.
?????Irrelevance, did the authority considered things it should not have done (irrelevant factors) or refuse to take account of a matter which they ought to have considered? Best considered a prior, separate ground of review. It is unclear how the two limbs of Wednesbury relate --- Lord Greene was not overly clear in his statement of the law in Wednesbury --- probably best to see them as separate tests. 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 re-consider, 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?
? 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?
o Taylor: distinguish more clearly - where statutory provision is broad and general, use purpose; where it is more clearly defined, irrelevant considerations . o Is it viable to categorise statutes in this way?
o 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 head of review, principally in relation to the Human Rights Act 1998. 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 HRs ... 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." What is proportionality? hough proportionality can be articulated in number of ways, but the core of the test, per Lord Sumption in Bank Mellat and Lord Steyn in Daly involves three questions:

1. Whether the legislative objective is rationally connected to the means used to achieve it (suitability)

2. Whether the means used are no more than is necessary to accomplish that objective (necessity)

3. Whether a fair balance has been struck between the rights of the individual and the interests of the community ('proportionality stricto sensu' or a test of fair balance) HRA was a catalyst for development: prior to the HRA cases had embraced proportionality (e.g. Simms) but were equivocal and did so in a limited fashion. Under the HRA, the English courts have to take the jurisprudence of the ECtHR into account (s.2) which makes frequent use of proportionality, and so in the context of the HRA the English courts have unequivocally embraced the proportionality test. Proportionality first explicitly recognised in Daly, but the court emphasised protection guaranteed by common law rights and JR was such that the same result would be reached as under ECHR

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