Grounds for judicial review: irrationality, proportionality, merits-based judicial review, and the Human Rights Act 1998

Roberts v Hopwood (1925) - determined that discretionary powers must be exercised reasonably. 

Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) - The Court of Appeal had to decide whether conditions attached to the licensing of cinemas for Sunday opening were reasonable. Lord Greene MR said that unreasonableness is a comprehensively used term capable of meaning that a person given a discretionary power has not directed himself properly in law; had acted in bad faith; failed to pay attention to all the matters he is bound to consider; based his decision on irrelevant considerations; or reached a conclusion which is so absurd that no reasonable authority could ever have come to it. It is very difficult to prove that a decision is so absurd that no reasonable authority could ever have come to it. This requires something overwhelming. Lord Greene MR also made it clear that the courts can interfere with executive decisions only if it is shown that a public body has contravened the law. 

Backhouse v Lambeth LBC (1972) - a housing authority passed a resolution under s111(1) Housing Act 1957 increasing the rent of an unoccupied and unfit house by 18,000 a week. It did this in order to be able to invoke the provisions of s63(1) Housing Finance Act 1972 exempting it from increasing rents of council houses under s62. The resolution was one which no reasonable authority could have passed and was accordingly a nullity. 

R v Ministry of Defence, ex p Smith (1996) - the Court of Appeal considered irrationality in the context of human rights. By a statement made in 1994 the Ministry of Defence reaffirmed its policy that homosexuality was incompatible with service in the armed forces and that personnel known to be homosexual or engaging in homosexual activity would be administratively discharged. The four applicants were serving members of the armed forces who had been administratively discharged between November 1994 and January 1995 on the sole ground that they were of homosexual orientation. In proceedings for judicial review each applicant challenged the decision. One of the grounds was irrationality. The key principle is that where an administrative decision is made in the context of human rights the court will require a proportionately greater justification before being satisfied that the decision is within the range of responses open to a reasonable decision-maker, according to the seriousness of the interference with those rights. Applying the test of irrationality, which is sufficiently flexible to cover all situations, the court will show greater caution where the nature of the decision is esoteric, policy-laden, or security-based. The Court of Appeal decided that the policy was not irrational. 

Council of Civil Service Unions v Minister for the Civil Service (1985) - Lord Diplock talked about the possibility of proportionality becoming its own independent ground for judicial review. However, the discussion was inconclusive. 

R v Secretary of State for the Home Department, ex p Brind (1991) - Lord Roskill and Lord Bridge speculated about how the principle of…