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Irrationality............................................................................................................................................2
Irrationality
 Council of Civil Service Unions v Minister for the Civil Service [1984]
o Lord Diplock defined irrationality as "unreasonableness" in CCSU. Courts have
frequently alluded to unreasonableness; in Roberts v Hopwood [1925], the House of
Lords declared that discretionary powers must be applied properly.
 when a statute is created, a statute usually tells a government body, a government minister
what they can and cannot do, right? It usually tells him to do something or other. Generally
speaking, these statutes give the decision maker a lot of discretion, a lot of authority. 'cause,
the idea is that Parliament shouldn't be too restrictive because if you are the executive, you
are the one who best knows how to handle a specific situation. So I give you the authority
you should.
 This flexibility is the issue here, because when public authorities have so much flexibility.
And their authorized by Parliament to have this flexibility, it's very hard to pinpoint whether
what they've done is right or wrong. Reasonable or unreasonable, rational or irrational? So
that is why this ground for judicial review is very tricky to succeed in a court.
 Actions or decisions don't make sense that are completely irrational, absurd, outrageous.
 unreasonableness or irrationality involves the courts doing more than just reviewing
procedures. more than just reviewing procedures, you are looking at the substance of the
decision. The essence of it is the substance. Rational or irrational? Reasonable or
unreasonable?
 irrationality/unreasonableness involves the courts doing more than just reviewing the
procedures taken to make a particular decision and testing the legality of those procedure
o More akin to substituting the court’s own view of the merits of the decision
 in terms of successfully challenging a public authority on the basis of unreasonableness, you
need to show that the public body acted very, very unreasonably. Literally, no one could
have made such a decision. It just makes no sense. No one would have come to this
conclusion at the end of it
 This ground is decided using the ‘Wednesbury Principle’
o Understood as something which “must not be done” as decisions must be made
“properly in law”… Failing to “exclude from his consideration matters which are
irrelevant” can be construed as acting ‘unreasonably’ as are any decisions which are
“so unreasonable that no reasonable authority could have ever come to it” → per
Lord Greene in Associated Provincial Picture Houses Ltd v Wednesbury Corporation
[1948]
o Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] is the
landmark case
 Respondent = Wednesbury
 Applicant = Picture House
 The applicant were given license to show films on Sundays, but the
respondent said “You can only play these films subject to whatever
conditions that I want to impose any conditions that I deem fit that I deem
reasonable”
 one of the conditions that they imposed was. On a Sunday, no one under
the age of 15 should be allowed into the cinema to watch a movie. No one
under the age of 15. So 14 year olds, 13 year olds, 12 year olds and under
 you cannot come to this cinema on a Sunday and watch a movie. That was
their condition.
 Lord Greene said that unreasonableness means “so unreasonable that no
reasonable authority could have ever come to it”
 this is a very high threshold.
 Because it has to be something that is so ridiculous, so outrageous,
that no reasonable person, no rational, rational person, could ever
reach this sort of outcome.
 the picture house lost the case. They didn't get their judicial review.
 Application accepted they their challenge failed because the court
couldn't agree with them to say that this is an unreasonable
condition that no reasonable person would have enforced it. They
found the logic behind it. They found the common sense behind it.
 So it's a very high standard
 something so absurd that no sensible person could ever dream
 sometimes there is an overlap between illegality and unreasonableness.
Sometimes when you fail to consider relevant things or you consider
irrelevant things. It may lead you to act unreasonably irrationally.
 Modern Classification of Unreasonableness
o Lord Diplock in the GCHQ case [1985] – “by illegality as a ground… I mean that the
decision-maker must understand correctly the law that regulated his decision-
making power and must give effect to it”
o Lord Greene in Wednesbury [1948] - “…a person entrusted with a discretion must…
direct himself properly in law. He must call his own attention to the matters which
he is bound to consider…”
 Narrow unreasonableness = irrationality
o Lord Diplock:
 “…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
 In other words, think of the ground of unreasonableness as that a
hyperbowl. The Executive must have done something that is so
mindboggling, like it just baffles the mind. It defies logic. It defies moral
standards. So it's a very high threshold.
o Lord Greene:
 “…similarly, there may be something so absurd that no sensible person
could ever dream that it lay within the powers of the authority.”
 If we're looking at when at Wednesbury unreasonableness, we're looking at
that whole outrageous, absurd dynamic.
 Why is the threshold so high?
o Because it has links to the separation of powers, again, because judges do not like
telling the executive what they have done is reasonable or unreasonable.
o Because it's like me, criticizing you and saying you don't know how to make the right
decisions, you don't know how to think rationally, think reasonably. It's different. If
the court says, oh, you misapplied the law, you misinterpreted, and interpreted the
law that is more acceptable. That is a more acceptable critic criticism because it is
 seen as the judge’s job as a judge. You know the law, you apply the law, you
interpret the law.
o So logically speaking, you would know if a judge has applied the law correctly. If so,
not judge you would know if the public authority has applied the law correctly or
incorrectly.
o Judges don't want to do that to the executive. They don't want to make the
government feel that they are criticizing them so much, to the point where they
effectively saying you don't know how to do your job. Whatever you are doing now.
Has no sense, no logic, because they still want to maintain that separation between
the two, yes, the UK practices fluid as OP, but there are certain lines you don't cross
 The varying standards of Wednesbury unreasonableness
o Sub-Wednesbury (NO LONGER IN EXISTENCE – it has transformed to proportionality)
 lower than the traditional Wednesbury principle
 it is an exception
 no longer is in existence bec it has transformed into proportionality as of
2022
 HRA cases would be under this because it's fairer
 The threshold is lower bec it relates to human rights
 human rights concerns very basic and fundamental freedoms and privileges.
The standard shouldn't be high. It should be of an achievable standard. So
that is why pre Human Rights Act. If there were ever allegations of
unreasonableness in terms of human rights conduct, the judges made sure
to lower the awareness pre-standard a little bit to allow for human rights
cases. Otherwise, no one would succeed because the standard was too high.
 R v Ministry of Defence ex parte Smith [1996] (b4 HRA bec HRA is 1998)
 Smith (applicant) is challenging the ministry
 Smith used to work with the ministry. the ministry banned
homosexuals from being in the army. Smith and a few others were
lesbians and were fired because of it
 Court said it was reasonable bec they were afraid that the
homosexuals would be discriminated
 she went to ECtHR (article 8 + article 14)
 ECtHR said the articles were violated and that it was not well
justified
 even though the applicants got what they wanted, P did not follow
bec ECtHR is not binding. It's just persuasive.
 Here, they applied the unreasonableness test to see if the Ministry
of Defense had done something that didn't make sense from a
human rights perspective and they said no, it actually does make
some sense. It may not sit well with most of us, but it makes sense
to the court at the time.
o Wednesbury
 General principle: no decision maker would make a decision that is
unreasonable
 Most commonly applied
o Super Wednesbury
 bar is set even higher
 exceptions
 only applies in cases in matters concerning gov policy and public expenditure
 super high threshold
 Judges will apply the Super when a speed threshold and consider whether
this really is so unreasonable. Otherwise, they won't get involved and say
the policy is wrong or the public spending is wrong. Because they know at
the crux of it, this is the government's choice of how they want to spend the
money.
 I am the judiciary I am supposed to be unbiased nonpolitical. I have no right
to tell you where to spend your money. So super Wednesbury is a super
high threshold for it to succeed.
 R v Secretary of State for the Environment ex parte Hammersmith and
Fulham London Borough Council [1991
 The council is the applicant and they are challenging the Secretary of
State for the Environment. The Borough Council actually was a
group of them, not just one. So about 16 of them banded together,
joined together to challenge the Secretary of State on a particular
decision. they didn't like what secretary of state had done. The
Secretary of State decided which local councils got what sum of
money and was in charge of distribution of certain files. Certain local
councils received less money than others.
 So the 16 of them that were involved in this judicial review
application, they received less money, so they were not happy and
they also didn’t like that they had to report what theyre doing with
the money
 they went to court and eventually, the court didn't agree with the
local councils because they said whatever the Secretary of State
does as far as finances and all this is concerned, that is strictly policy.
These are all political decisions, whether you take records, whether
your accountability is there, that's not for me to say as the Court. T
hat is for the government to see. So if they want you to have more
stringent record keeping, that's for them to settle, not me.
 OK, so the court held that essentially these are very political
decisions and that the court shouldn't interfere because courts are
only concerned with legal mistakes and not political mistakes
 separation of powers – judges are only concerned with the law, not
policy making decisions, not political issues.
 The court further on said that they will only intervene in these
circumstances:
o Extreme bad faith
o Improper motive
o Manifest absurdity – very obvious, clear cut absurd
 R (Asif Javed) v Secretary of State for the Home Department [2001]
 they came up with a form of delegated legislation in this case. Now,
the delegated legislation had to do with asylum seekers (somebody
who seeks refuge in another country)
  They had a list of countries. That were deemed safe places. They
called them designated safe third countries. Designated safe third
countries by third, I am thinking they mean third world countries.
They just wanna put third world countries there. Pakistan was in this
list. They went further, it said Pakistan is a country that has no
serious risk of persecution (treating people negatively).
 A group of applicants so Asif Javed and his Co-applicants filed for
judicial review because they didn't like that the Secretary of State
had included Pakistan in the list of safe countries. They said no. Do
you really know what goes on in Pakistan, though? How can you say
that Pakistan doesn't persecute people? How can you call it a
country that has no serious risk of persecution?
 So they were challenging that and they went further. They said in
the treatment of women, they persecute women. And also a certain
group of Muslims called Ahmadis
 And they were Ahmadis as well and were at risk of being sent back,
not being granted asylum because Pakistan is a safe place.
 And you can only get asylum if you had escaped an unsafe place, a
dangerous place. And apparently, Pakistan is not dangerous. Like
what even??
 the Secretary of State said that I will include this country. Applicant
said no, we shouldn't include this country because it is not a country
that is safe from a persecution perspective. They persecute women.
They persecute Muslim minorities and they were able to show the
court – look at how they treat these groups of people; look at how
they treat these categories of people
 yours list says these are safe countries. Is your idea of a safe
country, one that persecutes women? One that persecutes certain
religious minorities. Is it OK? So, they were able to meet that super
high Wednesbury threshold of saying that this policy was wrong. But
they have to demonstrate very strong evidence that clearly showed
that there was a serious risk of persecution and.
 QUESTION: In terms of unreasonableness, who bears the brunt of
the burden to show that the other person is unreasonable? A: The
Applicant
o They must show that it is so absurd that it justifies them
challenging a government policy or a government decision
like this.
 R v Secretary of State for the Home Department ex parte Brind [1991]
(PREQUEL TO PROPORTIONALITY)
 This had to do with broadcasting
 The home secretary issued certain directives (a form of delegated
legislation, because if it comes from the government, it is delegated
legislation) and this directive placed certain limitations on
broadcasting. These limitations were relevant to people associated
with organisations, certain organisations.
 Brind ran a broadcasting union, and as a broadcasting union, you're
supposed to give broadcasting airtime to anyone.
 It’s not your job to see who deserves free speech and who doesn't.
He was like no. Why am I suppressing certain people? So he
challenged the policy to ban certain organizations.
 And he did something that was very, very unique at the time.
 he didn't use the word unreasonable. He said the ban was
disproportionate on ECHR grounds (article 10)
 was the ECHR binding pre-HRA? A: No, only persuasive
 This case represents a very significant departure from Wednesbury
unreasonableness, but a shift towards ECHR 'cause proportionality is
an ECHR.
 Lord Roskill and Lord Bridge. They felt that proportionality can be
incorporated into the law but not in this case
 Lord Ackner - proportionality would require courts to question the
substantive merits of a decision.
 i.e. these judges are telling you that we are not shutting the door on
proportionality. We're not saying it's completely ridiculous as a
concept. We are saying that right now in 1991, it is not the right
time.