Discretionary Powers Notes

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.

  • 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”

  • 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”

  • 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

  • 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:

  • 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.”

  • 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:

  • 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...

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