13th January 2023
What is the role of the courts when they are asked to look at decisions taken by our elected representatives?
From a legal perspective, the usual distinction is between “appeal” and “review”.
This means that a court should not examine the merits of the decision, but a court can (and should) ascertain whether it was a decision lawfully open to that decision-maker to make.
And so, the legal theory goes, as long as it is a decision within the scope of decisions open to that decision-make, it cannot (and should not) be quashed by the court.
The decision will stand, even if the court – and indeed the voters – disagree with that decision.
The decision may be unpopular but it will not be unlawful.
And therefore the role of the court should only be to judicially review a decision, rather than conduct an appeal on the merits of that decision,
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In practice the distinction is not as easily applied as it is stated above.
Of course, certain decisions can be quashed because the wrong or an unfair procedure has been adopted.
And as such “procedural impropriety” is a long-standing heading of judicial review.
A decision can also be challenged because of a want of legal power: if a decision-maker does not have the legal power to make a certain decision then a court can hold that there has been illegality.
And “Illegality” too is a long-standing heading of judicial review.
Neither of these headings are controversial.
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But there is a third heading (and possibly a fourth) which is often controversial.
That is when a decision is “unreasonable”.
From a lay (that is, non-lawyer) perspective, this can seem the same as a court looking at the merits of the decision.
For many lay people calling a decision is “unreasonable” is the same as saying that it is a decision you do not like.
For lawyers (supposedly) it has a different meaning: a reasonable decision is one which is reasoned in that the decision-maker can explain how the decision was arrived at.
It also means that the decision-maker only had regard to relevant considerations and disregarded irrelevant considerations.
Here, however, we are coming close to a judge second-guessing the decision-making processes of elected politicians.
And this is even more the case where fundamental rights of individuals are being interfered with, where a judge may have to assess whether the interference has been “disproportionate”.
By “disproportionate” it is often meant that the decision was not rationally connected to the supposed purpose of the legal power and/or the decision went further than necessary to achieve the public policy goal of the decision-maker.
As you can see, this is taking the judge close to the realm of politics.
And so this is where many of the flash-points in political-judicial relations occur.
Where do you think the balance should be?
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My essay tomorrow for paying Substack subscribers will be on the fascinating story of the Wednesbury case of 1947, the “grandfather” of English cases on reasonableness.
This was the case where a judge opined that a decision can be quashed for unreasonableness only when the decision was so unreasonable that no reasonable decision-maker could have made it.
This standard has since been called “Wednesbury Unreasonableness” – which is a little unfair on Wednesbury Corporation, as the court found in 1947 that the council had acted reasonably.
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(The essay will also be posted on Patreon – and anyone who has made a Paypal contribution to this blog in 2022 should leave a comment marked “Private” below for a year’s complimentary subscription to my Substack.)
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I misread “Wednesbury Unreasonableness”.
It led to an amusing train of thought about what might seem unreasonable or not to a recurring character in this blog, Ms W Addams.
As I see it, the fundamental problem is that the Supreme Court is essentially a political body – specifically it is the body within the political sphere which defines (and is primary guardian of) the framework of constitutional law within which governance and democratic accountability operate.
It seems to me that Monarch, Parliament and the Court are jointly and severally responsible for the integrity of the constitution. The fact that the Monarch and the Supreme Court choose to recognise Parliament as the ultimate authority doesn’t, in my opinion, absolve them from that responsibility.
From that perspective, I’d say the Court always has a duty to consider whether any law which comes under its scrutiny has been made with due care and attention, is consistent with generally-accepted, uncontroversial principles and lies within the mandate given to Parliament by the public.
As to what should happen if the Court does determine that a law goes beyond Parliament’s authority … my thoughts on that would be far too long for a comment here!
Completely and utterly disagree.
What you are suggesting is some kind of Elitist Dictatorship whereby the voters are only allowed to pass laws, through their elected parliament that their Elite Betters have decreed is consistent with “with generally-accepted, uncontroversial principles”
I assume these “generally-accepted, uncontroversial principles” would be what Liberal Elite deems them to be and would probably have meant that Brexit would have been vetoed. It almost sounds like Iran where voters are only allowed to elect representatives from a pre approved list.
Britain would no longer be a democracy.
As I said, Slamdac, my thoughts on what should happen in the event of a decision of that kind would be too long for a comment here.
However, it would certainly involve the judgment being confirmed either by a jury (in which case Parliament would be able to appeal to the whole electorate, through a referendum) or through the convening of a Constitutional Parliament, elected purely to legislate on the matter in question and any constitutional issues arising from it.
Far from weakening democracy, I’d say it would strengthen it considerably. If you’re interested I’ve written elsewhere about why the doctrine of parliamentary supremacy should not be regarded as giving Parliament unfettered discretion (A Trust of Sovereignty), and also about Sovereign Juries.
In England, isn’t judicial review more about the courts reviewing the lawfulness of decisions made by a public body, whether that is a local council or a government minister or another body, or an official exercising public functions in their name.
It is not such much that a minister is an “elected representative” (most are, but some sit in the Lords) but more that the minster or their agent is excising public functions.
There are at least three factors: whose decisions can be challenged (public bodies, not private bodies), and on what grounds can they be challenged (illegality, procedural impropriety, and irrationality / unreasonableness / disproportionality), but also the “so what” question: what remedies can the court order.
In the main, even in the relatively few cases that a court rules a decision was unlawful, either a declaration is made to that effect with no further immediate consequences, or the original decision is quashed and the decision maker can try to make that decision again in a legal manner.
“For lawyers (supposedly) it has a different meaning: a reasonable decision is one which is reasoned in that the decision-maker can explain how the decision was arrived at.”
It remains unclear to this layperson whether or not the chain of reasoning must simply be explained or whether that explanation must also be objectively free from false premise, non sequiturs and / or other rhetorical fallacies to be considered reasonable.
As a question: Are lawyers required to consider a decision they review ‘legally reasonable’ when given an objectively irrational or meaningless explanation for it’s making, whether they like that or not?
Adrian, this is in the context of public law and the court determining whether a decision by a public body is so unreasonable that the court should strike that decision down.
There is no general duty to give reasons, but it is part of procedural propriety. Failure to give proper reasons may be a factor in a finding of procedural impropriety.
A decision that is illogical or immoral could be irrational: in the formulation of Lord Diplock in the CCSU case (1984), it could be “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”.
The reviewing court is very far from demanding perfection: to use a term from another context, there is a wide margin of appreciation for the public body.
Some numbers might help to put this in context. https://www.gov.uk/government/collections/civil-justice-statistics-quarterly
In 2021, there were 2332 applications for judicial review. For some reason, the outcome is not known for about a third of the applications, but of the remainder (1577) only a third (562) were eligible for a hearing (with the remainder withdrawn, or permission for a review refused). There was a court hearing in just 208 cases, and the court found in favour of the claimant in 71 of those cases. Given the number of decisions that are made every day, it is very much a minority sport, but also an important safety value.
Perhaps that is because the standard of official decision making is generally acceptable, or because starting a claim encourages the decision maker to think again. But perhaps also because many people don’t have the ability to push their claims through, or because the tables are tipped in favour of the decision maker to some extent, so only the really awful decisions (not just the bad ones) affecting someone with sufficient resources and courage to get their day in court, ultimately get overturned.
Wednesbury’s test of unreasonableness gives a pretty wide berth for rubbish decision-making to fly.
For a decision to be so lacking in reasonableness that no reasonable decision-maker in the same position, with the same responsibility, on the same evidence, could possibly reasonably reach the decision …
It’s a backstop against gross, obvious, unequivocal failure to exercise statutory power appropriately/competently – abuse of power; dereliction of statutory duty; outcomes that are truly idiotic, tainted or malicious
Beyond the minuscule proportion of occasions where this kind of issue is present, it’s empty. Courts are extremely unlikely to go anywhere near relying on this head of claim to require a public body to drop something, or reassess.
Procedural impropriety and Illegality are far more potent and much better aligned with the principle and spirit of judicial review conceptually.
And I’d suggest that if public bodies were held to account properly for ensuring that they only exercise power where they have the legal basis to, and – more importantly – follow a decent, transparent procedure, with a level of rigour and integrity, oversight and challenge, that the making of whatever decisions they’re responsible for deserves, there would be negligible need – if any at all – for the Wednesbury unreasonableness test to exist at all; since a decision so unreasonable being proposed, made and enforced by a public body simply shouldn’t be possible unless there is procedural impropriety or an ultra vires act at some point. Systems that facilitate exercise of state authority should be robust enough to prevent it, or at least identify, review and rectify it before a court must be engaged to