Substantive Review:
Substantive review assesses the quality or sufficiency of the reasons given in support of a decision, not just the processes by which a decision is made.
‘applies to a 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’. [1]
Arguably gives the courts too much jurisdiction over a decision where they have less expertise and/or democratic mandate to make. Under the separation of powers, judges should not be the ones making decisions that potentially have political ramifications.
‘Wednesbury Unreasonableness’ / ‘Irrationality’:
Courts have set a strict test that made it difficult for claimants to succeed under the ground of unreasonableness in Wednesbury.
In Wednesbury, W decided that cinemas could open on a Sunday, but children could not attend to protect their ‘moral welfare’. APPH brought judicial review against W for their unreasonableness (and legality). APPH alleged that the children could be required to be accompanied by a parent / guardian to protect their moral welfare instead so families would still attend on Sundays. The claim was unsuccessful.
Greene LJ: ‘If a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere.’
‘To prove a case of that kind would require something overwhelming.’
Limited to an ‘exceptional class of case’.
‘unsatisfactory’, ‘confusing’ and ‘unhelpful as a practical guide’ [2]; ‘unfortunately retrogressive’ because ‘only an extreme degree can bring action’ [3]
‘It must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether.’
Because of the strict test, little claims were successfully fought under unreasonableness.
In the ‘Fares Fair’ case, a decision was made to cut transport costs for the public by raising supplementary local tax levy. The court held this to be a breach of ‘fiduciary duty’.
In ex parte Bancoult, B brought judicial review for the forced removal of Chagos Islanders and the exercise of Royal Prerogative to do so.
Laws LJ: ‘the "peace, order and good government" of any territory means nothing, surely, save by reference to the territory's population. They are to be governed not removed. I cannot see how the wholesale removal of a people from the land where they belong can be said to conduce to the territory’s peace, order and good government.
It has been done for high political reasons: good reasons, certainly, dictated by pressing considerations of military security. But they are not reasons which may reasonably be said to touch the peace, order and good government of BIOT, and in my judgment this is so whether the test is to be found in our domestic public law, exemplified by the Wednesbury doctrine or in a more, or less, intrusive approach. In short, there is no principled basis upon which section 4 of the Ordinance can be justified as having been empowered by section 11 of the BIOT Order. And it has no other conceivable source of lawful authority.’
‘Super-Wednesbury’:
The already extremely restrictive Wednesbury principle became even more restrictive in certain situations, making it all but impossible to succeed with judicial review claims under unreasonableness.
‘The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational’. [4]
Anxious Scrutiny:
Over time, the judiciary began taking a more rigorous role in examining the reasons given by the decision maker in cases relating to human life and liberty.
‘the court must . . be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines’. [5]
Demanding more of decision makers to make good reasons.
In ex parte Smith, S was banned from serving in the armed forces for being homosexual. Upon seeking judicial review, S lost domestically, so appeal to the ECtHR.
‘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 Minister’s evidence’.
From Wednesbury to Rationality:
The courts began straying away from Wednesbury principle in favour of the ECtHR Proportionality principle for rights based cases.
In Miller (No 2), the decision to prorogue Parliament was considered unreasonable because the Prime Minister did not provide any reason for why this should happen.
Resources:
References:
[1] Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 (‘GCHQ’) [2] J Jewell and A Lester QC [3] R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26 (Cooke LJ) [4] R v Ministry of Defence, ex parte Smith [1995] 4 All ER 427 [5] R v Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514 (Bridge LJ)
Cases Mentioned:
Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223
Bromley London Borough Council v Greater London Council [1983] 1 A.C. 768 (‘Fares Fair’ Case)
R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult (No. 1) [2001] QB 1067
R v Ministry of Defence, ex parte Smith [1995] 4 All ER 427
R (on the application of Miller) v The Prime Minister [2019] UKSC 41
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