Admin Law - Rationality
Topic 5 - Rationality
Page 2: Substantive Review
Key Distinctions
Reviewing Legality: Examines if the action was lawful.
Reviewing Procedure: Focuses on whether proper procedures were followed.
Reviewing Substance: Analyzes the content and merit of the decision itself.
Page 3: Problems of Classification
Various author perspectives:
Wade & Forsyth: “Abuse of Discretion”
Craig: “Abuse of Discretion” and “Rationality and Proportionality”
Supperstone: “Unreasonableness” & “Proportionality”
Thompson: “Unreasonableness and Irrationality”
De Smith: Defines “Substantive Review” as (1) Unreasonable Process (2) Violation of Rights (3) Oppressive Decision.
Page 4: Focus of Lecture
Introduction to concepts of “Unreasonableness” and “Irrationality”.
Revisit relationships between review grounds.
This lecture does not cover complete substantive review principles; Proportionality will be discussed later.
Page 5: The "Wednesbury" Principle
Page 6: General Observations on Legitimacy
A decision is considered unlawful if it “falls outside the range of reasonable responses” (Supperstone).
There is “no consistent test.” The intensity of review is context-dependent.
Page 7-8: Case Study – Wednesbury Corporation [1948] 1 KB 223
Context of the case involving cinema licensing.
Lord Green MR emphasized:
Courts can review if local authorities considered or neglected relevant matters.
Court can interfere if conclusions are so unreasonable that no reasonable authority could have reached them.
Page 9: Subsequent Formulation – The CCSU Case [1985] AC 374
Definition of “irrationality” as “Wednesbury unreasonableness.”
A decision is irrational if it defies logic or moral standards that no sensible person could arrive at.
Page 10: Key Notes on Irrationality
CCSU does not provide an exclusive ground for appeal; it’s stringent.
“Irrationality” and “unreasonableness” are treated interchangeably for this course.
Page 11: Test Challenges
Terminology used by courts can vary.
Key phrases include “within range of reason” and “not sensible.”
Page 12: Intensity of Review
Lower Intensity:
Related to political judgment, resource distribution.
Higher Intensity:
Involves cases of human rights where courts scrutinize closely.
Page 13-14: Example – IBA Healthcare Ltd v OFT [2004] ICR 1364
Distinction between low intensity (political judgment) vs cases infringing fundamental rights, requiring stricter review.
Page 15-17: Case Study – Gurung Chanda [2023] 3 HKLRD 398
Foreign domestic helper married local guy; app to stay in HK defused by ImmD
App refused because DOI was not satisfied there was a “genuine matrimonial relationship”
Imm Offr conducted separate interviews with App and the husband and found apparent differences between their responses
Examined evidence of messages as pivotal to establishing a genuine relationship.
Critique of decision-making process as Wednesbury unreasonable due to overlooking critical evidence
Messages not taken into account because no translation from the original Nepali was available at the time of assessment
Held as irrational - “it was potentially dangerous to have taken into account some aspects but ignored others simply because of an inabilty to comprehend them”.
Page 18-19: Case Study – Lee Keng Wai [2025] HKCFI 582
Indigenous villagers' struggle to obtain planning permission.
Held irrational, Key factors include a clear nexus to prior permissions and lack of changed circumstances.
Page 20-23: Relationship with Illegality
Discusses jurisdictional issues and what constitutes illegal decision-making.
The court balances illegality with reasonableness.
Page 24-25: Points on Wednesbury Review
Essential grounds for review include failure to consider discretionary aspects and unsustainable conclusions.
Page 26: Points to Take Away
Questions on the soundness of the “contextual approach” and realms of judicial intervention.
Page 27: Considering Proportionality
Definition
Proportionality assesses when/state can infringe rights.
Considered a “3rd step” in inquiries about reasonableness.
Page 28-30: Proportionality as a Structural Inquiry
Steps in the proportionality analysis and ensuring balance between aim and impact of state measures.
Page 31-33: Proportionality as Standard for Wednesbury Challenges
When assessing if a decision is unreasonable, weigh impacts against purpose—moving towards proportionality.
Page 34-37: Proportionality as a Free-Standing Ground
Discussed in light of historical rulings and importance on proportionality in judicial review.
GCHQ Case: possible in the future as a free-standing ground but in present case the 3 existing well-established grounds suffice
Brind case: concern that adopting proportionality would shift the courts into a more intrusive role in assessing policy decisions, which goes beyond traditional judicial review
Lord Roskill: possible for Prop to be adopted as a free-standing ground but not in this case
Lord Lowry: Against adopting Prop as a free-standing ground.
Page 38-42: Pros and Cons of Proportionality vs Wednesbury
Discusses effectiveness, implications on judicial reviews, and its practicality.
R (ABCIFER) v SS for Foreign and Commonwealth Affairs: Wednesbury test is moving closer to proportionality.
R (Keyu) v SS for Foreign and Commonwealth Affairs: App argued W test should be replaced by Prop → held unnecessary.
Wednesbury vs Proportionality
Wed
Less intrusive
More respect of separation of power
Flexible intensity – can cater for modified review in rights cases
BUT –arbitrary?
Prop
Simplicity
Consistency
Structured form of inquiry
Reasoned inquiry
Flexible Intensity
BUT requires “right” to anchor?
HK: CFA decision in QT
Civil partnership entered in UK, dependent visa refused on the ground that “spouse” only means opposite-sex marriage → app challenged decision on W unreasonableness
Court accepted that prop concepts developed in consti law “are equally applicable to deciding whether the differential treatment entailed by the Policy is justified or whether it may be impugned as Wednesbury unreasonable”
Xiao (2021) case: CFA applied proportionality to W.U. Case