In the context of control of discretionary powers, do you consider that the threshold of intervention in judicial review proceedings should vary depending on the subject matter of the decision?

Does the threshold of intervention vary at present?

• in Ireland

The standard of unreasonableness required in Ireland to reach the threshold of intervention was confirmed by Denham J in the Supreme Court decision of Bailey v Flood, as that ‘…laid down by this court in The State (Keegan) v. Stardust Victims Compensation Tribunal and O’Keefe v. An Bord Pleanala’.  In the former case Henchy J stated that for the threshold of intervention to be reached, the decision must ‘… plainly and unambiguously fl[y] in the face of fundamental reason and common sense’.  Finlay CJ in O’Keefe added to this

‘The Court cannot intervene with the decision of an administrative decision-making authority merely on the grounds that

1. It is satisfied that on the facts as found it would have raised different inferences and conclusions, or
2. It is satisfied that the case against the decision made by the authorities was much stronger that the case for it.’

There was also the additional stringent requirement set out in this case by Finlay CJ that in order to intervene it would be necessary to establish that the authority ‘had before it no relevant material which would support it’s decision’.  Although this potentially crucial qualification was omitted in the High Court judgement of Morris P which Denham J was upholding, it’s use in subsequent cases shows that it has by no means been confined to the realm of obiter dictum.

As to the critical point of whether the standard of review should vary, Denham J did express support for such, albeit with the feeble statement that  ‘…any determination of reasonableness would have regard to the subject matter and consequences of the decision…’.  Morris P was much less equivocal on the matter and since his statement of the law on this issue was explicitly endorsed by Denham J, it can be assumed to be the current state of affairs in Ireland.  Morris P agreed with counsel that ‘…another standard of review should apply… when reviewing a decision that impinges on constitutionally protected rights’ and that this ‘other standard’ was that set by Bingham M.R. in the English case of R v. Ministry of Defence, ex parte Smith 

‘The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable…’

Although this case seems fairly unequivocal in that the threshold of intervention may be sooner reached in cases of fundamental human rights, some seeds imminent of a change in direction have been sown in the recent Supreme Court decision of Z v. Minister for Justice, Equality and Law Reform.  McGuinness J agreed that ‘any court will most carefully consider a case where basic human rights are in question’.  However, she queried the difference in phrases used by the English courts such as ‘careful scrutiny’, ‘anxious scrutiny’ and ‘heightened scrutiny’.  She asked the question

‘Can it mean that in a case where the decision-making process is subject to anxious scrutiny the standard of unreasonableness/irrationality is to be lowered?’

answering with the pithy reply ‘surely not’.  If as suggested by Donson, the ex parte Smith formula ‘…ultimately does lower the threshold of irrationality…’ then surely McGuinness J’s comments are in direct conflict with both the High Court and Supreme Court in Bailey v. Flood.  McGuinness J ameliorated this discord in her reference to the fact that this aspect of the case was not fully argued and hence her remarks in this context were ‘merely a preliminary impression’.  She considered that in the present case ‘the applicant’s judicial review application [should] receive careful scrutiny under the established standards relating to unreasonableness’.

• in England

In this jurisdiction the threshold of intervention was set in 1948 in the House of Lords by Lord Greene,

‘If a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. To prove this would require something overwhelming…’

Although this is the formula still used today to determine whether or not a decision reached is unreasonable, varying standards have been established in certain circumstances.  As mentioned previously, in R v. Ministry of Defence, ex p. Smith, Bingham M.R. was clear when he said,

        ‘The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker.  But in judging whether the decision-maker has exceeded the margin of appreciation the human rights context is important.  The more substantial the interference with human right’s, the more the court will require by way of justification before it is satisfied the decision is reasonable in the sense outlined above.’

Similarly, in R. v. Lord Saville, ex p. A, Lord Woolf stated that

‘[e]ven the broadest discretion is constrained by the need for there to be countervailing circumstances justifying interference with human rights… [and] the courts will anxiously scrutinise the strength of the countervailing circumstances and the degree of interference with the human rights involved and then apply the test accepted by Bingham M.R. in ex p. Smith…’.

Not only is there a sub-Wednesbury approach evident in English law but there is also evidence of a super-Wednesbury approach whereby as a result of the subject matter involved the court will not intervene even if the Wednesbury criteria are fulfilled.  

For example, in R. v. Secretary of State for the Environment, ex p. Hammersmith and Fulham LBC, Lord Bridge stated that ‘the formulation and implementation of national economic policy are matters depending essentially on political judgement’ and concluded that the decision in question was ‘not open to challenge on grounds of irrationality short of the extremes of bad faith, improper motive or manifest absurdity.’

In ex p. Smith Bingham M.R. acknowledged that the greater the policy content of a decision and the more remote the subject matter from ordinary judicial experience, the more hesitant the court should be in holding a decision to be irrational.  

Should the threshold of intervention be varied?

Are the reasonableness formulae of any actual use?

Conclusion

Of course the t of I will necessarily vary in every case.  In essence the reasonableness formulae are entirely subjective and not open to a rigid and level application. Other jurisdictions

Perhaps McGuinness is correct in her new twist on things

Bibliography

Delany, 2001, Judicial Review of Administrative Action

Hogan and Morgan, 1998, Administrative Law in Ireland

Norris, Ex parte Smith: irrationality and human rights, [1996] PL 590

Irvine, [1996] PL 59

Fordham “Surveying the grounds” in Administrative law facing the future p.184

Donson “Civil liberties and judicial review” in Administrative law facing the future p. 347

Hogan,  ‘Judicial Review, the doctrine of reasonableness and the immigration process’ 2001 6 Bar Review 329

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