Administrative Law, Irrationality in English Law

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‘I think that the day will come when it will be more widely recognised that Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 was an unfortunately retrogressive decision in English administrative law, insofar as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation. The depth of judicial review and the deference due to administrative discretion vary with the subject matter. It may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not capricious or absurd.’ ( (Daly) v Secretary of State for the Home Dept [2001] UKHL 26, [32], Lord Cooke of Thorndon).

Explain and discuss, illustrating your answer by reference to relevant case law.

There are three grounds of judicial review in English law which were recognized by Lord Diplock in GCHQ case. One of them, the unreasonableness, was established in Associated Provincial Picture Houses Ltd v Wednesbury Corp and from that time on the English courts had full hands with a big amount of cases which were trying to pull the standard of unreasonableness down. This essay will talk about this ground of judicial review, its development and its current position in English law. The first sentence of Lord Cooke criticizes the test developed in common law which put the standard so high that an administrative decision can be struck down only if „any other reasonable authority would not have come to this decision.“ This means that the test requires something overwhelming in order to strike the decision of an elected body down (Lord Greene) . Lord Greene in fact recognized two tests for unresonableness. First, unreasonableness can be a general description of a public authority doing things that must not be done, such as not directing itself properly in law by considering matters which it is not bound to consider and taking into consideration irrelevant matters. Another type of unreasonableness occurs when a public authority does something that is "so absurd that no sensible person could ever dream that it lay within the powers of the authority". The latter is now recognized sa Wednesbury test and the former is now part of illegality, second type of ground for judicial review. It seems that this test tries to be objective, that in the view of ‚all‘ the decision is unreasonable, but problem with this is that unreasonability itself is subjective concept. The test does not offer any clear guidelines, so academics as Jowell commented that without clear guidelines this test is unhelpful. Therefore, transparency and the legal certainty is clearly missing in this approach. Lord Diplock in GCHQ case endeavoured to describe the test of unreasonableness more clearly and set the test for irrationality „what can by now be succinctly referred to as ‘Wednesbury unreasonableness’ ... It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it ..“ This test confirmed the standing of the English law to the judicial review of unreasonableness in 1985. However, the Wednesbury test had not stayed stiff and rigid. The test has been adjusting to different types of situations depending on the nature and circumstances of the case. For instance, in the question about the reasonableness of the local authority in Nottinghamshire CC v Secretary of State for Environmnent the relevant point which the claimants said to be unreasonable was approved of by the Parliament and Parliament cannot be said to act unreasonably. There were also other factors to consider as for instance that the court lacks the expertise the Parliament and Minister possess and therefore the court opted for a review which will ‚ only intervene when the decision was...
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