Week 18 : Judicial Review ; Introducing the grounds of JR illegality, irrationality, and proportionality

What case established the three grounds for judicial review (JR)?

Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374 (Lord Diplock).

Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374 (Lord Diplock).

Illegality, Irrationality, Procedural Impropriety.

What potential new grounds for JR did Lord Diplock suggest could develop?

Proportionality and legitimate expectations (possibly equality and substantive fairness).

What is meant by "Illegality" in judicial review?

The decision-maker must correctly understand and apply the law regulating their power.

What are examples of "Illegality" in JR?

A:

1. No legal authority (Somerset CC Ex p Fewings)

2. Misinterpreting the law (Padfield v Minister of Agriculture)

3. Failing to fulfil a legal duty (e.g., Equality Act 2010)

4. Failing to exercise discretion (British Oxygen)

5. Unlawful delegation (Lavender v Minister of Housing)

6. Irrelevant/relevant considerations (Roberts v Hopwood; Heathrow)

7. Acting for improper purposes (Magill v Porter)

What is an example of misinterpretation of the law in JR?

Padfield v Minister of Agriculture [1968] AC 997 — discretion must further the policy and objects of the Act.

What case illustrates unlawful delegation of power?

Lavender v Minister of Housing and Local Government [1970] 1 WLR 2131.

What is "Irrationality" in judicial review?

A decision so outrageous that no sensible person could have made it — "Wednesbury unreasonableness."

A decision so outrageous that no sensible person could have made it — "Wednesbury unreasonableness."

Associated Provincial Picture Houses v Wednesbury Corporation [1948] KB 223.

What are criticisms of the Wednesbury test according to Jowell and Lester?

• Lack of intellectual honesty

• Courts intervene only in absurd cases

• Test is confusing and tautologous.

What did Lord Cooke say about Wednesbury in ex parte Daly?

Wednesbury was retrogressive; the distinction between degrees of unreasonableness is problematic.

When is the proportionality test used instead of Wednesbury?

When human rights (or formerly EU rights) are involved.

What happens under the proportionality test?

The public body must justify its actions as proportionate; the claimant need not prove irrationality.

Which case illustrates the use of proportionality in prison cell searches?

R v Secretary of State for the Home Department ex parte Daly [2001] UKHL 26.

Has the Wednesbury test been formally replaced by proportionality?

No, but courts may move toward general use of proportionality in JR.

Which case shows growing judicial support for proportionality in JR?

Pham v Secretary of State for the Home Department [2015] UKSC 19.

What did the UKSC say in Pham about proportionality and reasonableness?

Both involve weighing and balancing factors depending on context.

Name cases where proportionality was considered but Wednesbury was not formally abandoned.

• Kennedy v Information Commissioner [2014] UKSC 20

• Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69

• Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3

When will proportionality definitely be applied in judicial review?

When fundamental rights or Convention rights are at stake.

Why is there resistance to adopting proportionality as the general standard in JR?

Fear that courts will interfere with merits of administrative decisions.