3. Irrationality, Proportionality, and the Control of Discretion

What is "irrationality" as a ground for judicial review?

A decision "so outrageous in its defiance of logic or accepted moral standards"

What is the constitutional context for controlling discretion?

Courts can intervene when discretion is abused, but cannot substitute their judgment

Does a decision-maker have a general duty to give reasons?

No, there is no general duty. Courts may infer a lack of good reasons if none are given

What are Lord Greene's two meanings of "unreasonableness"?

A general category (illegality elements) and a specific ground (Wednesbury unreasonableness)

When is "Wednesbury unreasonableness" applied (meaning 2)?

Once it's established the decision was 'within the four corners of the law'

What is the relationship between illegality and irrationality review regarding considerations?

Illegality asks if a consideration is relevant; irrationality if it was given unreasonable weight

Can courts review the weight given to relevant considerations?

Generally no, it's the decision-maker's judgment, unless it's "Wednesbury irrational"

Provide a case example of a decision found to be irrational regarding weight.

In Basma, NHS's failure to weigh informal evidence for a drug treatment was irrational

Give another example of a decision deemed irrational (per Rogers).

NHS refusing a breast cancer drug without clear exceptionality criteria was irrational

Give an example of an appointment found to be unreasonable (per Duffy).

Appointing Orange Lodge members to a Parades Commission was unreasonable as they were not impartial

What is "super-Wednesbury" or "low intensity" review?

For high policy (e.g., public expenditure), courts intervene only if decision-maker acted in bad faith or "took leave of senses"

What is "anxious scrutiny" or "sub-Wednesbury" review?

A more rigorous examination for decisions affecting fundamental human rights, like the right to life

How did the ECtHR view the Wednesbury test in Smith and Grady v UK?

Its high threshold effectively excluded proportionality and a "pressing social need" analysis

What is the first stage of the proportionality test?

Whether the objective of the measure is sufficiently important to justify limiting a right

What is the final stage of the proportionality test?

Balancing the severity of effects on rights against the objective's importance

What did Lord Cooke suggest about Wednesbury in Daly?

He considered Wednesbury "an unfortunately retrogressive decision" and preferred proportionality

Why do some courts hesitate to fully adopt proportionality over Wednesbury?

It would require courts to consider the merits and balance competing interests

Where does "irrationality" (classic Wednesbury) typically apply now?

To administrative law cases without an EU or ECHR dimension

Where does "proportionality" typically apply now?

Primarily to cases involving ECHR rights and EU law

Does the intensity of judicial review ever vary?

Yes, there's a spectrum of review standards, from super-Wednesbury to proportionality