7th February 2012

TUTORIAL 4: IRRATIONALITY and PROPORTIONALITY

Essential reading: Chap 9

By confining itself to the decision-making process, the court tends to avoid interference with the merits of the decision, thereby reducing the scope for judicial usurpation of the executives functions. Principle of reasonableness has imposed a substantive, rather than a merely procedural, limitation upon the powers of decision-makers. o Only if the decision is seriously flawed may the court intervene on this basis. o Principle of reasonableness now supplies a more rigorous standard of substantive review.

REASONABLENESS & RATIONALITY The Wednesbury and GCHQ cases o Wednesbury Case Defendant, empowered by s 1(1) of the Sunday Entertainments Act 1932 to allow cinemas to open on Sundays subject to such conditions as the authority thinks fit to impose, permitted claimant to open its cinema provided that no children under 15 were admitted to Sunday performances. Claimant argued that the condition was ultra vires and accordingly sought a declaratory order. Lord Greene The court can interfere [Where the local authority] came to a conclusion so unreasonable that no reasonable authority could ever have come to it. o GCHQ case Lord Diplock [Irrationality, Wednesbury unreasonableness] applies to a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at it. Deference and the Variable Standard of Review o Lord Scarman in the circumstances of the case judicial review would lie only if the Minister had 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.

o Lord Phillips MR The extend to which the exercise of a statutory power is in practice open to judicial review on the ground of irrationality will depend critically on the nature and purpose of the enabling legislation. o Sir Thomas Bingham The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational PROPORTIONALITY Lord Clyde in De Freitas case the court, in deciding whether a measure is proportionate, should ask itself whether: i. The legislative objective is sufficiently important to justify limiting the fundamental right; ii. The measures designed to meet the legislative objective are rationally connected to it; iii. The means used to impair the right or freedom are no more than necessary to accomplish the objective. Law Lords in Huang v Secretary of State for the Home Department [2007] the judgement on proportionality must always involve striking of a fair balance between the rights of the individual and the interests of the community. 5 Questions of the Proportionality Test: i. Does the measure impinge upon a highly-regarded interest (eg a human right)? ii. Does the measure pursue a legitimate objective? iii. Is the measure capable of securing that objective? iv. Is the adoption of the measure necessary in order to secure that objective? v. Does the measure strike a fair balance in the sense that the losses inflicted by it (eg in terms of the restriction of human rights) are justified, or outweighed, by the gains which it purchases (eg in terms of benefits which flow from securing the legitimate objective)? Proportionality and Wednesbury Compared: methodology Proportionality > Wednesbury? Proportionality constitutes better methodology by which to undertake substantive review; Enables court to undertake a more appropriately searching scrutiny of administrative action. TBC Proportionality and Wednesbury Compared: intensity Argued that at a substantive level, Wednesbury is too deferential. Where strict scrutiny is called for (eg human rights), Wedensbury falls short.

Daly: European Convention Art 8(1) right to respect for his correspondence.

Deferenece 1. Allan view: involves judges simply refusing to determine whether the impugned administrative action is unlawful, because, for some reason, they think it would be inappropriate for them to do so. Indistinguishable from nonjusticiability. 2. Due deference view (Hunt): rather than requiring judicial surrender in the face of claims of (eg) national security, it enables a more subtle approach, whereby the standard of review is variable and can be tailored to the circumstances. Involved the reviewing court attaching an appropriate amount of weight to the views of the decision-maker.

TUTORIAL NOTES

Light Touch Wednesbury Irrationality Anxious Scrutiny Policy, etc o National security, human rights o Bellmarsh, Smith