We are presented with a question finding its roots in the Judicial Review area of Administrative law. The essay will also investigate the changing role of the Wednesbury test in judicial review and its apparent superseding by the mo

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SRN: 090171945        School of Law

We are presented with a question finding its roots in the ‘Judicial Review’ area of Administrative law. Particularly, a quote (Varuhas, 2009) is presented which probes into the level of scrutiny a court can place into a Minister’s decisions and touches upon how far a court can look into the substance of a decision, surpassing the usual ‘unreasonableness’ approach. The doctrine governing this area that of ‘separation of powers’ which forces the court to take a stand-off approach to executive decision making. The essay will also investigate the changing role of the Wednesbury test in judicial review and it’s apparent superseding by the more European-friendly ‘proportionality test’. This is a widely discussed topic with a vast range of commentary and jurisprudence attempting to shed light on the muddle that this area of judicial review is in. With no decisive guidance in law of which test is prevalent, there continues to be a battle between the schools of thought supporting each approach, causing a lack of transparency and predictableness in the outcome of cases.

What is Judicial Review?

Judicial review is a key form of holding the Executive accountable for decisions they make. It is brought to a court, which then determines whether a public body’s decision is unlawful and of no effect, while exercising it’s discretion whether to grant remedies. Traditionally, due to the doctrine of Separation of Powers, the court lacks the power to review the decision "on its merits" and determine whether or not it was the decision the court would have made, it merely has the power to decide whether the body made the decision lawfully. There are only three grounds in English administrative law on which judicial review can be based (set out by Lord Diplock in Council Service Unions v Minister for the Civil Service), and these are ‘illegality’ (ultra vires), ‘irrationality’ (unreasonableness) and ‘procedural impropriety’.

Depth Of Scrutiny

It is true however that in some cases, some consideration of the ‘merits’ of a decision is required. When claims are brought against a public body acting beyond their powers under illegality, where irrelevant considerations are taken into account, (as in R v Port Talbot Borough Council, ex parte Jones), then there may need to be investigation into the merits. In general however, it is chiefly only in the irrationality grounds where the substance are looked at. The landmark case here is Associated Provincial Picture Houses Ltd. v Wednesbury Corporation, which set the initial ‘unreasonable’ standard that has to be met for a court to intervene. Lord Diplock best worded the premise of the test in Council of Civil Service Unions v Minister for the Civil Service (GCHQ case), he set the standard as a decision that is “So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”. Relating to these grounds, though not yet grounds on its own is the principle of proportionality, ie. the ‘least restrictive means’. Ever since the introduction of the Human Rights Act 1998, there has been an increased use of this test alongside the Wednesbury test, to the extent that in the case of R (on application of Association of British Civilian Internees) v Secretary of State for Defence it was said that the Wednesbury approach was in a ‘terminal decline’. The proportionality test was borne out of the rising criticisms of the Wednesbury approach, and looks at whether the objective justifying the interference is sufficiently important to justify limiting the right. The creation of this test was predicted in the GCHQ case by Lord Diplock back in 1984, yet has still not been adopted as true grounds for judicial review. The apparent rise in the use of the proportionality test entails a deeper enquiry into merits and substance of decisions made. In the landmark case of R (on the application of Daly) v Secretary of State for the Home Department, (the Daly case) Lord Steyn, when describing the differences between the Wednesbury and proportionality approaches stated that proportionality “may go further… inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations”, and of course this weight is covered by ‘merits’ so signals a move towards allowing the courts vaster scope when presiding over a body’s decision. Further proving this point is the earlier judgment of R v Secretary of State for the Home Department, ex parte Brind, in which the two dissenting judges outright rejected proportionality due to it’s much deeper penetration than the Wednesbury test, involving an ‘unacceptable inquiry into the merits’. That being said, since the three grounds were established in 1985, it is self-evident that there will have to be a merit-based approach when looking at the reasonableness of a decision as by it’s very nature, it requires looking at whether the decision would have been made by a reasonable body.

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Proportionality or Wednesbury? Or Both?

Looking more closelynow at the evolution of these seemingly competitive principles, we come to the large surrounding discussion in case law. There are three schools of thought in this area, firstly, there are those who suggest that there is not enough justification for the Wednesbury test to be superceded, those who take that further and hope for a concrete bifurcatory approach, and those who look for what Harrison (2003) aptly coined as a ‘Wednesburial’.

We look first at the latter of these, the ‘terminal decline’ of Wednesbury (British Civilian case). The court ...

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