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8 - Judicial Review (4) Substantive Review

8 - Judicial Review (4) Substantive Review

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Judicial Review (4)
In this lecture we focus on substantive judicial review in the guise of (a) so-called Wednesburyunreasonableness and (b) proportionality. Note that an essential element in all this is the contemporaryelaboration of rights-based reviewTypes of review1)
 
P
rocedural Review: Requirements of independent tribunal/right to be heard/right to fair trial etc.2)
 
P
rocess Review: Relevant and Irrelevant considerations, Fettering of Discretion:
Wednesbury 
case.
S
ubstantive review =
If both
P
rocess and
P
rocedural requirements are fulfilled, can the courts deny thelegitimacy of the end product? If the courts continue to veer down this route then we will have a problem of government by judges which parliament never intended. This also fits uneasily with the whole idea of judicialREVIEW as the concept is not about making decisions but rather, reviewing bad ones which have been made.This is a very sensitive constitutional issue.Common law has had a history of substantive review but it was seen to be very limited. Things have movedalong however since the decision in Wednesbury.
1. Wednesbury unreasonableness
Here we are focusing on the evolution of 
Wednesbury 
unreasonableness as(1)
 
a discrete ground of review: a safety-net; and latterly,(2)
 
a more flexible concept.
O
riginal conception: expression of judicial restraint (or deference)
Lord Greene (again from Wednesbury):
It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority couldever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kindwould require something overwhelming, and, in this case, the facts do not come anywhere near anything of thatkind. [The] proposition that the decision of the local authority can be upset if it is proved to be unreasonable,really [means] that it must be proved to be unreasonable in the sense that the court considers it to be a decisionthat no reasonable body could have come to. It is not what the court considers unreasonable, a different thingaltogether. If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy of this kindNotice this is a very restrained view of judicial review,
-
 
(1) It is a narrow ground of substantive review
-
 
(2) Strong declaration of judicial restraint/deference
-
 
The court will intervene with the decision if so unreasonable that no reasonable authority in thatposition could have made that decision. That would require something overwhelming. This isdeliberately different from the test of reasonableness that we deal in tort  must be so unreasonablethat no
PA
would have done that.
 
-
 
Taking into account that different authorities in the country may take different views (eithermainstream or campaigned about in local elections) = a margin of appreciation, this is only whichreasonable people can disagree and we are going to protect that.
-
 
If it was a test what courts consider as unreasonable, the courts will have different views with localauthorities = this is not right, intervening with parliaments intention and local authorities discretion must be WHOLLY unreasonable.
ouncil of 
ivil Service Unions v. Minister for the
ivil Service [1985] A
374 (Lord Diplock):
Essentially a restatement of what Lord Greene said By "irrationality" I mean what can by now be succinctly referred to as "
Wednesbury 
unreasonableness" Itapplies to a decision, which is so outrageous in its defiance of logic or of accepted moral standards that nosensible person who had applied his mind to the question to be decided could have arrived at it. Whether adecision falls within this category is a question that judges by their training and experience should be wellequipped to answer, or else there would be something badly wrong with our judicial system.
L
ater expansion: the Wednesbury grid
Yet, in a development echoing that of procedural fairness (see lecture 7), we see
Wednesbury 
unreasonableness becoming (a) more expansively applied (fewer no-go areas) and (b) morevariable in terms of intensity of review.
-
 
the courts begin to say that what is Wednesbury unreasonable can itself vary from context to contextand there are some situations where we will look much more closely than others = there will be somecases where the test still remains as irrationality, or under that rubric of so unreasonable that no
PA
 can do it  the courts are approaching that rather liberally and ever more likely to invoke it.
-
 
The rubric does not change, but the way it is applied has changed. DO NOT JUST GIVE THE ORIGIN
A
LSTUFF
A
BOUT WEDNESBURY  must show the developments (in the way it has been applied)
ottinghamshire
CC 
v Secretary of State for the Environment [1986] A
240 
Here, the L
A
was complaining about the way in which the central government was allocating money up anddown the country. The courts refused to question the governments decision. Here, the HL refers back to
Wednusbury 
as a doctrine of judicial restraint.The case refers to money andthe HL said this is a complicated financial allocation; the courts do not go to theseareas.
A
lso for statutory areas: as long as parliament approves of it, no reason for us to go into that.
R
. v. Secretary of State for the Home Department ex p. Bugdaycay [1987] A
514
The issue here is really whether courts can develop CL doctrines to better protect fundamental rights. Note thatthis is before the HR
A
. Indeed,
B
ugdaycay 
really highlights the courts willingness to do just that, and this is atrend we see continuing up to today. This is a particularly important development:(1)
 
The CL may protect certain areas not covered by the HR
A
or provide a different remedy.(2)
 
A
lso, we cannot assume the continued existence of a HR
A
.
A
fter all, the conservatives went into the lastelection campaigning to abolish the HR
A
. If that were the case, clearly the CL protection would be vital.In this case:
 
-
 
Someone from Uganda and who is applying for asylum. The applicant claimed that he was in fear of death/prosecution if he were to return (HO refuses hi sapplication). He claims that the government didnot look closely at his case, and that no reasonable authority could have come to their conclusion
-
 
HL: This is a fundamental human rights case: right to life is on the line. Therefore, when it comes tosubstantive review  our test is not the ordinary Wednesbury test, we will incorporate a sub-division of sub-Wednesbury = even heightened review anxious scrutiny  crawling over the decision to makesure that it is justified. This is a significant SHIFT from old style Wednesbury.Case Standard of Review Factors
Notti 
nghamsh
re
Super-Wednusbury Money, parliamentary approval
Wednusbury 
Ordinary Routine/default position
B
ugdaycay 
Sub-Wednusbury / anxious scrutiny Fundamental rightsSo these three cases highlight how we now have a grid as it were. Clearly the idea of a gird is questionable asthere are always boundary disputes.
A
lternatively:The
Wednesbury 
principle itself constitutes a sliding scale of review, more or less intrusive according to thenature and gravity of what is at stake (
R v Secre
ary 
of 
S
a
e
 fo
r Educa
tio
n and Empl 
o
ymen
t,
Ex p
B
egb
e
[2001]1 WLR 1115 (Laws LJ)).
R
v. Ministry of Defence ex p. Smith [1996] 1 All E 
R
257 (Lords Steyn and 
ooke)
The case concerns gays in the military who were thrown out. They claimed
Wednusbury 
unreasonableness,trying to use
B
ugdaycay 
to say that its a fundamental right case (right to privacy) and thus the test should beone of anxious scrutiny. The MoD on the other hand would argue that this was an issue of national security;personal trust is essential for soldiering and that the homosexuality would affect comradeship and thus qualityof the army, thus they would argue super-
Wednesbury 
.The HL said that though they doubted the policy, it was not so unreasonable that no reasoanble
PA
could havemade that decision.
A
lso, note that here the policy was approved by parliament by a resolution ofthe HC.
Smith and Grady v UK [2000] 29 EH 
RR
493
 However, this case was won in the Strasbourg court, which applied the case with the test of proportionality: theWednesbury test that has been applied by the domestic court has thus not given sufficient protection of humanrights.
 
2
.
Wednesbury 
unreasonableness and proportionality:
P
roportionality:
y
 
Whatever the position at common law, domestic courts are required to do proportionality testing in twoways:
o
 
P
roportionality testing in EU law
o
 
Likewise, many HR set out in conventions and in the HR
A
, will also require proportionality.
y
 
What does it involve? It has a series of well understood stages for the court to go through; there arevarious formulations, with 3 clear stages and a potential fourth:

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