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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?

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Introduction

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? What lessons can our courts learn from the manner in which the judiciary in other common law jurisdictions have approached this question? Introduction Judicial review proceedings exist to ensure that lower courts and administrative bodies do not act beyond or at variance with their inherent powers. If they do act in such a way, the reviewing court1 will take action to rectify. Where discretionary powers given to administrative bodies are abused, the court will usually grant an order of certiorari quashing the decision. Generally, this will only be done if some aspect of the decision making process is corrupt and not because the court merely disagrees with the conclusion arrived at2. If the decision is set aside, then the facts of that particular case have cumulated in the eyes of the court to reach the threshold of intervention in that case. This essay will focus on where a discretionary power is used in an 'unreasonable' manner.3 The crux of the complaint is that the decision concluded on the facts is so 'unreasonable' that it essentially has been taken by the respondent in a capacity not intended by the enabling legislation and therefore cannot be sustained. ...read more.

Middle

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 apply6... 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 Smith7 '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 Reform8. McGuinness J agreed that 'any court will most carefully consider a case where basic human rights are in question'. ...read more.

Conclusion

Similarly, in R. v. Lord Saville, ex p. A10, 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 LBC11, 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. ...read more.

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