Constitutional and Administrative Law: Judicial Review - Irrationality

Irrationality: Where decisions are such which no reasonable body could have come to. GCHQ [1985]: A decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person could be considered to have reached such a decision (Lord Diplock). Roberts v Hopwood [1925]: Discretionary powers must be exercised reasonably. CASE: Wednesbury [1948] Local authority had the power to grant licences for cinema performances on Sundays, subject to conditions as it thought fit to impose. D granted C licence on condition that no children under 15 were to be admitted, be they accompanied by adults or not. PRINCIPLE: For a decision to be unreasonable, it must be so absurd that no reasonable person / authority could be believed to have reached it. QUESTION: Do courts today consider this a rational principle? Does it set too high a threshold?

Issues: Irrationality does in essence challenge the decision itself. What about with human rights? CASE: Smith [1996] MOD reinforced policy of homosexuality being incompatible with service in armed forces - personnel would be administratively discharged. Such personnel challenged their dismissal under irrationality. HELD: Policy was not irrational. PRINCIPLE: Administrative decisions made in HR context require courts to find a proportionately greater justification on the part of the decision-maker.

Irrationality in Practice: Very high threshold in practice set by Wednesbury. Smith and Brind. CASE: Backhouse v Lambeth [1972] Housing authority passed resolution under statute - increased rent of unoccupied and unfit house - did this to invoke provisions of Housing Finance Act 1972 exempting it from increasing rents of council houses. HELD: Held to be a resolution which no reasonable authority could have passed - nullity. CASE: Brind [1991]Minister's decision to direct broadcasters to refrain from broadcasting words spoken by individuals representing organisations proscribed under terrorism leg'n was not unreasonable.

Proportionality: There must be a reasonable relationship between the objective being sought and the means used to achieve it. Administrative action ought not go beyond what is necessary to achieve the desired result. GCHQ [1985]: Possible it may become an independent ground for JR (Lord Diplock). Speculation in Brind (Lords Roskill and Bridge). Discussion presented by cases such as Smith.Clash with ECtHR jurisprudence.CASE (ECtHR): Smith and Grady [2000]Cs successfully contended MOD policy violated Art 8 ECHR - could not be justified - disproportionate interference.Proportionality vs Irrationality: Proportionality is much stricter and more exacting. Easier for public bodies to show their decisions were not irrational rather than in proportion. Proportionality now part of JR since HRA passed.

Proportionality and the HRA:Pre-HRA: EU law requires proportionality - applied by courts in this context.CASE: International Trader's Ferry [1999] Animal rights groups - protests against livestock cargo on ferries. Sussex Police Chief Constable reduced policing - ferry company sought JR - violation of EU law (Rome Treaty Art 34). HELD: Chief Constable's actions not disproportionate - no violation - within public policy exemption. Post-HRA: Proportionality playing more significant role (A v SSHD [2004] - Terrorism). Daly [2001]: Proportionality may require court to assess the balance which the decision-maker has struck - not merely whether it is within the range of rational or reasonable decisions. Test goes further than traditional grounds of review - attention directed to the relative weight accorded to interests and considerations.

Future of Irrationality: Could it be subsumed by proportionality? British Civilian Internees: Far East Region [2003]: Insistence that proportionality has not replaced irrationality.  Dyson LJ nonetheless comments that Wednesbury test is moving closer to proportionality - difficult to justify its existence anymore in light of proportionality. Craig expresses the possibility that the Wednesbury test will 'cease to operate as an independent test'. Also will be impractical to keep both tests for judicial review.

Contrasting Cases:CASE: Swindon NHS Primary Care Trust [2006] Trust's policy in relation to drug funding considered irrational.

Irrationality (I)

Irrationality (II)

Proportionality (I)

Future of Irrationality