Constitutional and Administrative Law 11.02.19
Unlawful due to something being so wrong in the substance of decision
Very controversial-merits challenge
Irrationality:
APP v Wednesbury-Greene says “if a decision on a competent matter is so unreasonable that
no reasonable authority could ever have come to it, the courts can interfere….to prove a
case of this kind would require something overwhelming”; to not let under 15’s in cinema on
Sundays; restricting people’s freedoms? Problems with this-more of a statement of
conclusion rather than being a test; unpredictable outcomes; doesn’t provide a framework;
doesn’t deal with intensity of review
Lord Woolf in Coughlan case- “rationality, as it has developed in modern public law, has two
faces: 1) one is the barely known decision which simply defies comprehension, 2) the other
is a decision which can be seen to have proceeded by flawed logic”
Irrational:
Backhouse v Lambeth-rent for all council house has to increase by a certain sum;
rent of unoccupied council house increased by £18,000 per week (to prevent rent
increase in other houses; went against statutory power; said it’s unreasonable)
Glamorgan v Rafferty
Wheeler v Leicester City Council-RFU tour to apartheid S. Africa; 3 Leicester Tigers
players involved; amateur club at time; Gov. policy said no to the tour; Leicester CC
asks club to condemn tour; club’s answer unsatisfactory; they suspended club’s use
of council’s recreation ground (where they train) and based this decision on Race
Relations Act and promoting good race relations; courts said this was so
unreasonable that no local authority should be able to do this since Leicester CC
punishing club for not saying the rights things; no illegality (express right of opinions)
read HL’s decision (rationale)
Medway Council-sitting of 5th London Airport; said they wouldn’t consider expansion
of Gatwick (due to agreement with local council that Gatwick wouldn’t be
expanded); courts say it was irrational on grounds that reasoning was flawed;
Rogers v Swindon-availability of Herceptin for early stage breast cancer patients;
Herceptin not licensed for this treatment; policy to fund treatment, if recommended
by clinician, only in exceptional circumstances; cost not an issue; treatment of R
recommended by clinician and refused because not exceptional???
Litvinenko
Not Irrational:
Nottingham v SS Environment
R v Cambridge
R v Secretary of State for Defence ex parte Smith
Death of WednesburyABCIFER (Court of Appeal says no)-we may not like the test but still
remains and it’s up to Supreme Court to inter it; Keyu-will take a 9-judge court to do this;
proportionality only in HR or EU cases
Unlawful due to something being so wrong in the substance of decision
Very controversial-merits challenge
Irrationality:
APP v Wednesbury-Greene says “if a decision on a competent matter is so unreasonable that
no reasonable authority could ever have come to it, the courts can interfere….to prove a
case of this kind would require something overwhelming”; to not let under 15’s in cinema on
Sundays; restricting people’s freedoms? Problems with this-more of a statement of
conclusion rather than being a test; unpredictable outcomes; doesn’t provide a framework;
doesn’t deal with intensity of review
Lord Woolf in Coughlan case- “rationality, as it has developed in modern public law, has two
faces: 1) one is the barely known decision which simply defies comprehension, 2) the other
is a decision which can be seen to have proceeded by flawed logic”
Irrational:
Backhouse v Lambeth-rent for all council house has to increase by a certain sum;
rent of unoccupied council house increased by £18,000 per week (to prevent rent
increase in other houses; went against statutory power; said it’s unreasonable)
Glamorgan v Rafferty
Wheeler v Leicester City Council-RFU tour to apartheid S. Africa; 3 Leicester Tigers
players involved; amateur club at time; Gov. policy said no to the tour; Leicester CC
asks club to condemn tour; club’s answer unsatisfactory; they suspended club’s use
of council’s recreation ground (where they train) and based this decision on Race
Relations Act and promoting good race relations; courts said this was so
unreasonable that no local authority should be able to do this since Leicester CC
punishing club for not saying the rights things; no illegality (express right of opinions)
read HL’s decision (rationale)
Medway Council-sitting of 5th London Airport; said they wouldn’t consider expansion
of Gatwick (due to agreement with local council that Gatwick wouldn’t be
expanded); courts say it was irrational on grounds that reasoning was flawed;
Rogers v Swindon-availability of Herceptin for early stage breast cancer patients;
Herceptin not licensed for this treatment; policy to fund treatment, if recommended
by clinician, only in exceptional circumstances; cost not an issue; treatment of R
recommended by clinician and refused because not exceptional???
Litvinenko
Not Irrational:
Nottingham v SS Environment
R v Cambridge
R v Secretary of State for Defence ex parte Smith
Death of WednesburyABCIFER (Court of Appeal says no)-we may not like the test but still
remains and it’s up to Supreme Court to inter it; Keyu-will take a 9-judge court to do this;
proportionality only in HR or EU cases
