Abuse of power
When it is accepted that the public authority had the power, however there is something about the doing it in an individual circumstance that constitutes an abuse of the power. Has three grounds of review: 1) the exercise of power for an improper purpose 2) taking account of the irrelevant considerations or failing to take into account of relevant ones and 3) wednesbury unreasonableness.
1) abuse of purpose- basic principle is that power must not be exercised for any purpose other than the purpose for which the power was conferred. In Padfield v Minister of Agriculture 1968- HoL said 'by reason of his having misconstrued the act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court.' Syndney Municipal Council v Campbell 1925 and R v Ealing LBC ex part Times Newspapers 1986.
Which materials can court rely on in order to decide what purposes are permitted where the matter is not clear? R v SoS for Environment ex parte Spath Home 2001- seems to exclude reference to Hansard even where permitted in the narrow range of circumstances set out in Pepper v Hart.
Abuse of power
Interpreting which objects express statutory purposes allow- in many situations there will be considerable debate about whether the particular action taken was authorised by the relevant statutory purpose. R v Somerset CC exp Fewings 1995. There will often be significant differences of opinion between judges on these matters. Wheeler v Leicester CC 1985- concerned the raec relations Act 1976 which provides that 'it shall be the duty of every local authority to make appropriate arrangements with a view to securing that their various functions are carried out with due regard to the need to promote good relations of persons of different racial groups.
Where there is no express statutory purpose- Padfield v Minister for Agriculture 1968- Parliament must have conferred the discretion with the intention that it should be used to promote policy and objects of the act, the policy and objects of the act must be determined by construing the act as a whole and construction is always a matter of law for the court.' R v Manchester City Council ex p King 1991.
Was the decision maker actually motivated by the statutory purpose- Lord Binghams judgement in Fewings would support the view that even if a particular motivation of the decision maker is capable of being covered by the statutory purpose, this may not be sufficient. The decision maker must themselves connect that motivation with the statutory purpose.
Mixed purposes cases- i) what was the true/dominant purpose for which the power was exercised? Westminster Corp v London Railway Company 1905. ii) has the unauthorised purpose substantially influenced the actors conduct? R v Lewisham LBC ex parte Shell 1988.
Abuse of power 2- Relevant and irrelevant considerations- deciding which considerations are relevant and which are not, are matters to be decided by statutory interpretation and context as determined by the court. There are no hard and fast rules about this. Gives considerable scope to judges and may cause contraversy. The law relating to irrelevant considerations is more straight forward than the law relating to relevant ones. There are issues of proof, even if there is agreement about which considerations are relevant, and which are not, in the real world there may be considerable dispute about whether the body has or has not taken the matter into account.
a) irrelevant considerations- it is unlawful for a public authority to have regard to irrelevant considerations when exercising public powers or functions. Whether or not a consideration is irrelevant is a matter of statutory construction, within the context of the indiviual circumstances. R v Liverpool Crown Court ex p Goodwin 1998 and R v Westminster CC ex parte Hutton 1985.
b) relevant considerations- A body acts unlawfully if a) it fails to have regard to mandatory relevant considerations eg considerations which must be taken into account Vasilou v SoS for Transport 1991, or b) it fails to have regard to a relevant consideration which it may take into account, a discretionary consideration, and the court regards that failure as being wednesbury unreasonable in the circumstances R v Somerset CC ex parte Fewings 1995 and Luby v Newcastle Corporation 1964, or c) it attaches manifestly disproportionate weight to a particular relevant consideration, such that the decision is judged to be wednesbury unreasonable.
i) basic principle- weight to be attached to relevant considerations is a matter for the decision maker Tesco v SoS for Environment 1995- Keith- 'it is for the courts, if the matter is brought before them, to decide what is a relevant consideration. If the decision maker wrongly takes the view that some consideration is not relevant and therefore has no regard to it, the decision cannot stand and he must be required to think again. But it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense, regard must be had to the relevant consideration, but the extent, if any, to which it should affect the decision is a matter entirely within the discretion of the decision maker.'
ii) disproportionate weight/no weight at all- manifestly inappropriate balancing of considerations= wednesbury unreasonableness. West Glamorgan CC v Rafferty 1987.
Note there is sometimes an overlap between improper purposes and irrelevant considerations.
Abuse of power 3- wednesbury unreasonableness/irrationality-
A body abuses its power and therefore acts unlawfully it acts unreasonably in the wednesbury sense. 'It is so unreasonable that no reasonable authority could have possibly arrived at it.' Name comes from Associated Picture Houses v Wednesbury Corp 1948. Diplock explained this ground as applying 'to decisions that, when looked at objectively are so devoid of any plausible justification that no reasonable body of persons could have reached them.'-Bromley LBC v Greater London Council 1983. In the GCHQ case Lord Diplock used the word 'irrationality' to explain this ground of review by saying 'by irrationality I mean what can now be succintly referred to as Wednesbury unreasonableness, it applies to a decision so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question could have arrived at it.' Reserved for situations where the decision is considered 'seriously' unacceptable. In Wednesbury it was said 'It is true to say that if a decision on a competent matter is so unreasonable that no reasonable authority could ...
ever have come to it the courts can interfere. That I think is quite right but to prove a case of that kind would require something overwhelming.' R v Lord Chancellor ex p Maxwell it was said that 'in making such a challenge the applicant has a mountain to climb... decisions that are so unreasonable as to warrant interference jump of the page at you.' The reason for such a high threshold is once again the distinction between review and appeal- in SoS for Education v Tameside Metropolitan BC 1977 - Russell commented 'it is quite unacceptable to proceed from wrong to unreasonable.' This ground of review really deals with decisions which are utterly bizarre and that it would be most unusual for decisions to be found to be unlawful on the grounds of irrationality and reasonableness.
Consider the constitutional roles of the judiciary and the constitutional function of judicial review. In R v SoS for Home Dept ex p Brind 1991- Lord Ackner said 'the standard of unreasonableness, often referred to as the irrationality test, has been criticised as being too high. But it has to be expressed in terms that confine the jurisdiction exercised by the judiciary to a supervisory, as opposed to appellate jurisditcion. Where Parliament has given to a minster a discretion, the courts jurisdiction is limited.' 'It would be a wrongful usurpation of power by the judiciary to substitute its view on the merits and on that basis to quash the decision.'
Examples of WU- two general categories of objection- a) relates to inputs- ie factors which fed into the decision rather than the decision itself. (better to challenge on) b) outputs- focuses on the decision itself and its consequences for the person affected by the decision.
a) inputs- the grounds of review we have looked at so far are concerned with inputs. Defintion of a particular statutory term is an input: different interpretations will affect the particular decision arrived at. Similarly in considering factual matters, different facts, as inputs, will affect the decision arrived at. Futhermore considerations which are taken into account are classic examples of inputs and a further element here is the weight attached to considerations.
Where the statutory term is one which involves mixed questions of law and fact, the court will not intervene unless the decision is WU. Where a consideration is judged by the court to be one which a decision maker may or may not take into account the court will leave the question as to whether it should be taken into account to the decision maker unless the court concludes the decision to take it into account in the individual case was WU. The weight to be attached to relevant considerations is a matter for the decision maker subject to the exception that the court might conclude the decision is WU if the decision maker has placed manifestly disproportionate weight on one consideration to the exclusion of others.
b) outputs- decision arrived at. A classic example of WU on these grounds is where the impact of the decision in question is judged to be 'extremely oppressive' or 'unnecessarily onerous' eg R v Barnsley Metropolitan Borough Council ex p Hook 1976.
Wednesbury unreasonableness and the intensity of scruitiny/review applied to different decisions- it is difficult to suceed on this ground of review because of the high threshold that needs to be met to satisfy the court. However there is some evidence not all cases are treated the same way. Craig explains 'one facet of review which is becoming increasingly prominent is for courts to adopt a variable standard of review the intensity of which alters depending on the subject matter of the action. Terms such as irrationality can be applied with differing degrees of rigour or intensity.' Le Sueur divides the cases into different categories such as i) light touch review ii) ordinary wednesbury iii) anxious scruitiny.
a) light touch review- sometimes called super wednesbury test because it is so difficult to succeed- a) when challenging decisions in the area of economic policy- R v SoS for Environment ex p Notthinghamshire CC 1986- Scarman- 'the levels of public expenditure and the incidence and distrubtion of taxation are matters for Parliament and within Parliament, espescially for the HoC, it is not for the judges to say that an action has such unreasonable consequences that the guidance upon which the action is based and of which the HoC has notice was persverse
and must be set aside.'
b) decisions which involved judgements about national security- R v SoS for Home Dept ex parte Cheblak 1991- Bedlam- 'Parliament has conferred on the home sec the power to say when deportation of a foreign natational is conducive to the public good for reasons of national security. Although the reasons may not seem convincing to the court because of the lack of information upon which the decision is based, the statement that to give further information might jeopardise national security is one which the Court is bound to accept.'
ii) ordinary wednesbury- '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.' GCHQ Diplock. A high threshold which is difficult to meet but not in the same category as light touch review.
iii) anxious scruitiny (sometimes called sub wednesbury) - Found in R v SoS ex parte Brind 1991- Bridge suggested there was a judicially ordered hierarchy of values so that the court 'was perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and that nothing less than an important competing public interest was sufficient to justify it.'
R v Ministry of Defence ex parte Smith 1995- 'when the most fundamental rights are threatened the court will not, for example be inclined to overlook some perhaps minor flaw in the decision making process or adopt a particularly benevolent view of the ministers evidence, or exercise its discretion to withhold relief.'
This approach has also been supported by influential judges writing in an extra judicial capacity- Sir John Laws- 'the great the intrusion proposed by a body possessing public powers over the citizen into an area where his fundamental rights are at stake, the greater must be the justification which the public authority must demonstrate.' 1993.
Conclusions- sometimes it is clear in the cases that litigants seek to persuade the court to categorise the issues in the case so as to increase the chances of producing a favorable outcome. Le Sueurs analysis of R (Jared) v SoS of Home Dept 2001. However sometimes the result/outcome is not easy to square with the approach the judge claims to have adopted in teh case R v Ministry of Defence ex parte Smith 1995.
Critiques of WU- uncertainty, inconsistency and the proper constitutional role of the judiciary- such an imprecise and unsystematic standard. Champion v Chief Constable of Gwent Constabularly 1998.
Compare Bromely LBC v Greater London Council 1983 with R v London Transport Executive ex p Greater London Council 1983- why was the scheme in the first case WU but not in the second?
Problems- conceptual problems. Irrationality or unreasonableness is a very woolly standard, it is unclear, will vary from context to context and probably from judge to judge. It is arguable that it is a standard which fails to provide the basis for a consistent approach for legal control of the exercise of discretionary power. Constitutional problems- flowing from malleability of concept. If WU can be manipulated by judges as a basis for intefering with 'merits' of admin decisions, then this may mean judges may be acting in a fashion which is arguably constitutionally inappropriate, but doing so under the guise of the constitutional fiction that is Wednesbury sets an appropriately high threshold so as to keep judges in their place- constitutionally speaking. Practical points- how are administrators and decision makers to know what are the permissible boundaries of their actions? How are they to organise their affairs, when concepts such as unreasonablessness are so uncertain, so subject to individual interpretation by individual judges? Surely judicial review should promote good administration as a public law value in and of itself.
WU v proportionality- is proportionality a different and better approach? One approach was set out by Jowell and Lester. Their basic argument is that the principles judges claim to be controlling administrative discretion are fundamentally dishonest and inappropriate, first because we can never predict what the judges will decide, and second, when they do decide they use terms such as unreasonableness, improper purposes, and so on, which only serve to disguise the subjective nature of the decision which they have made.
They suggest we should have principles of substantive review, the essence of these principles is a candid recognition that judges do and should intefere with the substance of decisions. Having conceded judges do this, they set out what they consider the principles upon which they ought to do so or are entitled to do so. They suggest using proportionality test as basis for controlling exercise of discretionary power. In Brind the HoL refused to recognise proportionality as a distinct ground of review, however Jowell and Lester argue it should be because it may reflect more accurately what judges actually do or do not interfere with discretionary decisions.
What is proportionality? Jowell explains that proportionality provides that when broad discretionary power has been conferred upon a decision maker that the means used to achieve the legitimate aims of the power must be appropriate and necessary and not excessive.
In R (Daly) v SoS for Home Dept 2001- HoL explained the difference between the Wednesbury test and that required by the HRA- Steyn- 'there is a material difference between Wednesbuyr and the approach of proportionality applicable in respect of review where Convention rights are at stake on the other. I would mention three concrete difference without suggesting that my statement is exhaustive. First the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly even the heightened scruitiny test developed in R v MoD ex parte Smith is not necessarily appropriate to the protection of human rights. It will be recalled that in Smith the Court of Appeal reluctantly felt compelled to reject a challenge to the limitation on homosexuals in the army the ECHR came to the opposite conclusion in Smith and Grady v UK 1999- ' the threshold at which teh HC and CoA could find the MoD policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants rights answered a pressing social need or was proportionate to the national security aims pursued, principles which lie at the heart of the courts analysis of complaints under A8 of the Convention.'
Jowell argued that this is an approach which ought to be adopted because it will increase the intelligibiiltiy of decisions- and in this sense would be better to help us to understand and predict decisions by the court. Secondly- proportionality isnt as foreign a concept to British courts as books would have you belive, being relevant in the context of EU law and also in the case of Convention rights now incorporated in British law by the HRA. The concept is used and applied by British judges and lawyers in courts on a consistent basis.
However not every supports the introduction of proportionality, other than in cases where the HRA applies. Amongst the relevant considerations are the following- it has been objected that proportionality involves judges in the merits of cases much more than the formal doctrine of irrationality does and proportionality may just be as vague and uncertain as wednesbury.