Irrationality and Proportionality Notes

Irrationality

  • Rooke v Withers (1597) 5 Co Rep 99
    • The Statute of Sewers 1531 gave Commissioners of Sewers power for building, repairing, or removing ditches/banks and charging landowners for the cost deemed 'most convenient'.
    • Commissioners repaired a bank along the Thames Estuary to protect 800 acres at risk of flooding.
    • Mr. Rooke owned 7 acres of this land and was charged for the entire repair cost.
  • Sir Edward Coke's View:
    • Commissioners' discretion should be 'limited and bound with the rule of reason and Law'.
    • Discretion involves discerning 'between falsity and truth, between wrong and right… and not to do according to their men's will and private affections'.
  • Coke's Ruling:
    • The decision was unlawful because it was unfair to charge Rooke the full cost when he owned less than 1% of the land.
    • It was inefficient, as spreading the cost would enable the Commissioners to recover more money and carry out works more effectively.
    • The decision was deemed unreasonable and/or irrational.

Process and Substance

  • Judicial review focuses on the decision-making process, not the decision itself (Lord Brightman, Chief Constable of North Wales v Evans [1982] 1 WLR 1155, 1173).
  • Irrationality review is an exception, where judges assess the substance of the decision.

Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 KB 223

  • Lord Greene MR stated that a local authority decision can be overturned if it's one that 'no reasonable body could have come to'.
    • The court does not decide based on what it considers unreasonable.
    • Reasonableness of the condition is a matter for the court.

Unreasonableness or Irrationality?

  • Lord Diplock's Definition (Council for the Civil Service Unions v Minister for the Civil Service [1985] AC 374, at 410):
    • Irrationality is 'Wednesbury unreasonableness' - a decision 'so outrageous in its defiance of logic or of accepted moral standards' that no sensible person could have reached it.

Core Concepts

  • Unreasonable: An action where there's a good reason not to do it.
  • Irrational: An action serving no intelligible purpose.
  • A decision can be unreasonable without being irrational.

Key Considerations

  • The key question is whether a decision is flawed in a way that justifies the court striking it down.
  • The caselaw helps define which types of unreasonableness will render a decision unlawful.

Deference

  • In Wednesbury, the court exercised deference due to:
    • Legal authority: Parliament entrusted power to the local council.
    • Expertise: The council has better local knowledge.
    • Political responsibility: Councillors are elected and accountable locally.
    • Process: The council can consider a wider range of viewpoints.
  • The weight of deference varies by decision type, decision-maker, and context.
  • It's a 'restrained, flexible, vague standard of review.' (Endicott, Administrative Law, p 248)

Varying Standards of Deference

  • More Deference: National security, foreign policy, economic policy, technical/scientific issues, allocation of scarce resources, polyvalent decisions.
  • Less Deference: Human rights, discrimination, decisions targeting specific individuals.

Super-Wednesbury

  • Nottinghamshire CC v Secretary of State for the Environment [1986] AC 240:
    • Applies to appropriate limits of public spending (‘matters of political judgment’).
    • Court examination justified only if there's a prima facie case of bad faith, improper motive, or consequences so absurd the Secretary of State 'must have taken leave of his senses'.

Heightened Scrutiny

  • R v Ministry of Defence, Ex P Smith [1996] QB 517:
    • Greater interference with human rights requires more justification for the decision to be considered reasonable.
    • However, the Court of Appeal found the MoD's ban on gays/lesbians in the military was not irrational, even considering human rights.

Sliding Scale of Review

  • A spectrum exists ranging from non-justiciable to 'Super-Wednesbury', including standard reasonableness review, heightened scrutiny, and proportionality review.

Irrationality: Difficult but Not Impossible

  • Examples: Re Duffy [2008] NI 152, R (D) v Parole Board [2019] QB 285, R (Rogers) v Swindon NHS Primary Care Trust [2006] 1 WLR 2649.

Proportionality

  • Human Rights Act 1998, Section 6(1):

    • It's unlawful for a public authority to act incompatibly with a Convention right.
    • Subsection (1) doesn't apply if primary legislation prevents acting differently or requires enforcing incompatible provisions.

    Scope of S. 6(2)

  • R (Hooper) v Work and Pensions Secretary [2005] UKHL 29:

    • An Act provided pension benefits to widows but not widowers, violating the Convention.
    • Hooper argued for the Secretary to use discretion to pay widowers to rectify discrimination.
    • The House of Lords held the minister was 'acting so as to give effect to' the statute, protected by s. 6(2).

Human Rights Act 1998, Section 7

  • Allows a person claiming a public authority acted unlawfully under section 6(1) to bring proceedings or rely on the relevant Convention right.

Absolute Rights

  • Examples: Right to life (Article 2), Prohibition of torture (Article 3), Prohibition of slavery and forced labour (Article 4), Right to liberty (Article 5), Right to a fair trial (Article 6), No punishment without law (Article 7), Right to marry (Article 12), Prohibition of discrimination (Article 14).

Proportionality and Absolute Rights

  • Interference with an absolute right is never justifiable.
  • Proportionality is still relevant because:
    • The definition of a right might depend on proportionality (e.g., a fair trial, not a perfect trial).
    • Absolute rights can create positive obligations on states to take proportionate steps to protect people (e.g., protecting military personnel from risk of death - Smith v Ministry of Defence [2013] UKSC 41).

Qualified Rights

  • Examples: Right to respect for private and family life (Article 8), Freedom of thought, conscience and religion (Article 9), Freedom of expression (Article 10), Freedom of assembly and association (Article 11).

Structure of Qualified Rights (Example: Article 10 - Freedom of Expression)

  • Includes the Right and Qualification.
  • Qualification: 'necessary in a democratic society'.

Proportionality Test

  • R (Aguilar Quila) v Home Secretary [2012] 1 AC 621 (Lord Wilson, at [45]):
    1. Is the legislative objective sufficiently important to justify limiting a fundamental right?
    2. Are the measures rationally connected to the objective?
    3. Are the measures no more than necessary to accomplish the objective?
    4. Do they strike a fair balance between the rights of the individual and the interests of the community?

Legitimate Aim

*Ghaidan v Godin-Mendoza [2004] 2 AC 557

Rational Connection

*Navalnyy v Russia (App. 29580/12, 15 November 2018)

Least Restrictive Measures

*R (Daly) v Home Secretary [2001] 2 AC 532

Illustrated further in A v Home Secretary [2005] 2 AC 68

Secretary of State suggesting confining the measures being absurd.

Overall Balance

  • Huang v Home Secretary [2007] 2 AC 167 (Lord Bingham of Cornhill, at [20]):
    • The ultimate question is whether refusing leave to enter or remain, when family life can't reasonably be enjoyed elsewhere, prejudices the applicant's family life seriously enough to breach Article 8, considering all factors.
  • R (Aguilar Quila) v Home Secretary [2012] 1 AC 621 (Lord Wilson, at [59]):
    • 'On any view it is a sledge-hammer but she has not attempted to identify the size of the nut.'

Public Authority Proportionality Assessment

  • R (Begum) v Denbigh High School [2007] 1 AC 100

  • Belfast CC v Miss Behavin’ Ltd. [2007] 1 WLR 1420 (Baroness Hale of Richmond, at [37]):

    • Local authority views carry less weight if they haven't addressed the question.
    • Without indication of this, the court must strike the balance itself.

Proportionality and Deference

  • Lord Hope, R v Director of Public Prosecutions, ex p Kebilene [2000] 2 AC 326, at 381:
    • Courts should recognize an area of judgment where deference is given to the elected body due to democratic grounds.
  • Lord Steyn, R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, at [28]:
    • Proportionality isn't a shift to merits review; judge and administrator roles remain distinct.

Reasons for Deference

  • Legal authority: Parliament entrusts decisions to specific bodies.
  • Expertise: Public bodies possess better knowledge of relevant factors.
  • Political responsibility: Government is accountable to the electorate.
  • Process: Public bodies can consider broader viewpoints.

Proportionality and Deference: Examples

  • A v Secretary of State for the Home Department [2005] 2 AC 68:
    • First Question (Emergency): Lord Bingham noted great weight should be given to the Home Secretary and Parliament's judgment due to their 'pre-eminently political judgment'.
    • Second Question (Detention): Lord Hope stated courts can intervene to ensure actions are proportionate because they're dealing with individual rights, not social or economic policy.
  • R (Begum) v Denbigh High School [2007] 1 AC 100 (Lord Bingham, at [34]):
    • Courts shouldn't overrule the judgment of the head teacher, staff, and governors on sensitive matters, as they are best placed to decide.
  • R (Lord Carlile) v Home Secretary [2015] AC 945:
    • Lord Sumption noted the court cannot reject the Foreign Office assessment without justification.
    • Lord Kerr (dissenting) argued the Home Secretary's expertise doesn't inhibit the court's balancing exercise.

Judicial Review and COVID-19

  • 'Lockdown' Restrictions:
    • Business closures (exceptions: food retailers, pharmacies, banks, petrol stations).
    • Places of worship closed (limited exceptions).
    • Prohibition on leaving homes without reasonable excuse (essential shopping, work).
    • Gathering limits (initially two, later six).
    • Violation was a criminal offence.

R (Dolan) v Health Secretary (2021)

  • Illegality: Ultra Vires
    • Public Health (Control of Disease) Act 1984, s.45C(1): Minister can ‘make provision for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in England and Wales’.
    • Court noted the words of subsection (1) were broad.
  • Illegality: Fettering
    • The Secretary of State didn't unlawfully fetter his discretion by setting five tests before easing the lockdown. Public authorities can adopt strict policies but must be willing to listen to new information.
  • Illegality: Failure to Take into Account Relevant Considerations
    • The court found no evidential basis to support the claim that the Secretary of State ignored the uncertainty of scientific evidence, the effects on public health and the economy, the long-term consequences, or whether less restrictive measures would have been a more proportionate means.
  • Irrationality
    • The court found it impossible to intervene on grounds of irrationality. The measures were a matter of political judgment for the Government, accountable to Parliament, and not suited for court determination.
  • Violation of Article 5 (Liberty)
    • The court found that the regulations did not amount to a deprivation of liberty.
  • Violation of Article 8 (Private and Family Life)
    • The interference was proportionate, considering the Government's access to expert advice and the rapidly evolving scientific knowledge.
    • Arguments regarding Article 11, Article 1 Protocol 1, and Article 2 Protocol 1 were dismissed similarly.

R (Hussain) v Secretary of State for Health and Social Care [2020] EWHC 1392 (Admin)

  • The Secretary of State must be allowed a suitable margin of appreciation. Decisions on steps, order, and timing are based on scientific advice and social/economic policy, complex political assessments courts shouldn't second-guess.
  • There's a qualitative difference in transmission risk between religious services and settings like garden centers.

R (Leigh) v Commissioner of Police of the Metropolis [2022] 1 WLR 3141

  • An officer deciding whether to charge an individual would have to consider if there was no reasonable excuse for holding the gathering, or that a conviction would be necessary and proportionate to protect public health.
  • The MPS had a public law duty to inform themselves about relevant considerations, including the seriousness of the health risk balanced against the rights engaged.