Judicial Review III - Lecture 13

What is discretionary power within JR?

It is open-ended and there is no criteria as to how it should be exercised such as -

• the usage of ‘secretary of state may…’

• ‘May’ allows an unfettered power to be conferred to Secretaries of State and the judiciary attempts to control these unlimited powers

How does the Court exercise it’s discretionary power within JR?

The courts decides what the law means and in context of Parliament leaving legislation open and vague.

It gives the court a discretion to either define the scope in a wider extent or in a restrictive scope.

Lord Diplock in GCHQ on substantive review

Lord Diplock considered adopting the test for ‘proportionality’ used within ECtHR.

He questioned whether the test for proportionality should take over the Wednesbury principle.

Criticisms regarding Lord Diplock’s view in GCHQ? What 4 are they?

1. Concerns of absorbing EU concepts

2. demands for proportionality after Brexit have lessened

3. Although proportionality is assessed like in Bank Mellat case, irrationality under Wednesbury test is the MAIN principle

4. Principle of proportionality used for fundamental rights under HRA and to assess whether statues are proportionate

How can we read Lord Greene’s judgment in Wednesbury in 2 ways in regards to ‘unreasonableness’?

1. related grounds of review of the exercise of discretionary powers (the ‘umbrella’ sense of Wednesbury);

2. second, as an individual ground of review (the ‘substantive’ sense of a ‘safety net’)

If we read Lord Greene’s judgment as a ‘umbrella aspect’ of unreasonableness within the Wednesbury test, what would the 5 key aspects be to it?

1. abuse of power

2. frustrating statutes

3. irrelevant considerations

4. fettering decision

5. bad faith

Padfield v Minister of Agriculture on abuse of power under Lord Greene’s ‘umbrella aspect’

Context →There was a disparity in the milk quota regime, the workers asked the Secretary of State to exercise his discretionary power to raise attention to the issue of disparities. The Secretary of State refused.

Outcome → the court concluded that this was wrong and that discretionary powers cannot be used to frustrate or deny access in regards to the reasonableness of his decision.

R (Miller) v Secretary of State for Exiting the EU / Miller I on frustrating statute under Lord Greene’s ‘umbrella aspect’

Context → Utilising legal prerogative powers of exiting treaties to evoke Art 50 ECA 1972 to leave the EU

Court’s commentary → “ministers cannot frustrate the purpose of a statute or a statutory provision, for example by emptying it of content or preventing its effectual operation”

R (Friends of the Earth Ltd) v Heathrow Airport Ltd on the 2 principles on irrelevant/permissible considerations under Lord Greene’s ‘umbrella aspect’

This case set out principles governing relevant and irrelevant consideration.

It outlined -

• Those clearly identified by the statute, expressly or impliedly, as considerations to which regard must be had.

• Those to which the decision maker might have regard if he thinks it right to do so. This category is further subdivided:

  • Unless the consideration is obviously irrational not to take it into account, the decision is not affected.

  • Considerations to which the decision-maker decides to give no weight, this will only be unlawful if irrational.

In what forms of intensity of review do we see ‘Wednesbury unreasonableness’ applied? - simplified

1. heightened application

2. default application

3. super-wednesbury or anxious scrutiny

Nottinghamshire CC v Secretary of State for the Environment as an example of ‘heightened application’ of Wednesbury unreasonableness

Context → Guidance for local authorities on expenditure targets, made under the Local Government Planning and Land Act 1980, laid before Commons and approved by resolution. Nottingham and Bradford Councils challenged the targets and how much money should be allocated.

Judge’s statements →

• Lord Scarman = “Unless and until a statute provides otherwise, or it is established that the Secretary of State has abused his power, these are matters of political judgment for him and for the House of Commons. They are not for the judges or your Lordships' House in its judicial capacity.”

• Lord Templeman = “I hope that in future local authorities will bite on the bullet and not seek to persuade the courts to absolve them from compliance with the Secretary of State's guidance […] persuasion should be offered not to the judges, who are not qualified to listen, but to the department, the minister, all members of parliament and ultimately to the electorate.”

What is the default application of Wednesbury unreasonableness test?

Lord Greene’s judgement is read as using the word ‘unreasonableness’ in two different ways -

1. related grounds of review of the exercise of discretionary powers (the ‘umbrella’ sense of Wednesbury);

2. second, as an individual ground of review (the ‘substantive’ sense of a ‘safety net’)

R. v. Secretary of State for the Home Department ex p. Bugdaycay as an example of anxious scrutiny or super-wednesbury

Context → the removal of an asylum seeker

Judge’s commentary →

• Lord Bridge stated “The most fundamental of all human rights is the individual’s right to life and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny.”

Is there flexibility within Wednesbury unreasonableness?

There is as demonstrated in R v Secretary of State for Education and Employment, Ex p Begbie.

Laws LJ stated ‘The Wednesbury principle itself constitutes a sliding scale of review, more or less intrusive according to the nature and gravity of what is at stake’

Lord Mance in Kennedy v Charity Commission on Wednesbury unreasonableness flexibility

Lord Mance stated “The common law no longer insists on the uniform application of the rigid test of irrationality […] under the so-called Wednesbury principle… The nature of judicial review in every case depends on the context.’

Bank Mellat v HM Treasury (No 2) on majority application of the requirements of a 4 limb proportionality test

(seperating wednesbury unreasonableness test from proportionality testing)

These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them.

The following four requirements are -

1. whether its objective is sufficiently important to justify the limitation of a fundamental right;

2. whether it is rationally connected to the objective;

3. whether a less intrusive measure could have been used; and

4. whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.

Is Wednesbury unreasonableness test moving towards proportionality testing?

The ‘wednesbury testing may have moved towards the methodology of proportionality-testing, but the court have accepted that the sub-wednesbury approach was NOT equivalent to proportionality.

R(Daly) v Secretary of State for the Home Department on wednesbury unreasonableness and proportionality testing being different

Lord Steyn took care to highlight continuing differences between ‘Wednesbury unreasonableness’ and proportionality-testing in respect of Convention Rights

• First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions.

• Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations.

• The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results.

What are the 4 reasons why people argue in favour of proportionality testing and replacing wednesbury unreasonableness?

The reasons why people argue in favour of proportionality testing -

• simplicity (same approach across common law, EU law, and Convention Rights)

• structured methodology

• reasoned justification - ‘a culture of justification’.

• advocated as securing greater judicial control, most obviously when compared with the original conception of the Wednesbury safety net

Where does proportionality testing playing a crucial role? in 3 ways?

• Discrimination under the Equality Act 2010

• Determining whether an interference with a Convention (and possibly common law) right is justified

• Testing whether it is lawful to depart from a legitimate expectation

R (Gallaher Group Ltd) v Competition and Markets Authority on Wednesbury unreasonableness/model of rationality

It is the recent authority that the Wednesbury model of rationality continues in operation.

what are 3 remedies available in JR?

Remedies include -

1. Quashing Order → much more common and the court quashes

2. Mandatory Order → courts force someone to do something

3. Declaration → declaring decisions to be unlawful

Anisminic v Foreign Compensation Commission on whether Parliament can prevent the courts from exercising JR?

Context → Compensation commission for companies after the Suez crisis and that the decisions made within the body should not be questioned within any other courts, and it was argued that the commission had misdirected itself and therefore, acted outside it’s power (which is ultra vires) and not made a determination - as a determination should be a valid one, otherwise it is nulified. This was the court’s way of evading the ouster clause

Outcome → There was no ‘determination; as the decision is a nullity

R (Privacy International) v Investigatory Powers Tribunal on whether Parliament can prevent the courts from exercising JR?

Outcome → It was held that it wasn’t sufficiently clear to oust judicial review of the Investigatory Powers Tribunal

R (Majera) v Secretary of State for the Home Department on whether Parliament can prevent the courts from exercising JR?

Context →The Secretary of State sought to disregard an immigration bail order of the First Tier Tribunal on the basis that it had been made out with jurisdiction.

Outcome → The Supreme Court held that it was unlawful for the Secretary of State to ignore the order of the tribunal as the tribunal had to be treated in the same way as a court of competent jurisdiction and its orders, whether regular or irregular, like those of courts of law, had to be obeyed.

What is a nullity?

This is where the Court decides that a decision has no statutory force or effect, since it is ultra vires.