LAW

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KembaraXtra-Case Law-R v Ministry of Defence ex p Smith and Others (1996) CA
I. Core Issue: This case examines the approach courts take when reviewing administrative decisions that potentially infringe human rights.

III. Decision & Legal Test:
  • Standard of Review: The Court of Appeal established a test for irrationality in administrative decisions impacting human rights. A decision is unreasonable if it falls outside the range of responses a reasonable decision-maker could adopt.
  • Human Rights Context: The weight given to the justification for the decision is directly proportional to the severity of the human rights infringement. Greater infringements demand more robust justification.
  • Intensity of Review: The review isn't about lowering the "threshold of unreasonableness." Instead, the court intensifies its scrutiny of the reasons provided by the decision-maker (e.g., the Minister). This means:
    • Increased Scrutiny: The court meticulously examines whether any recognized grounds for challenge exist before dismissing the application.
    • Justification Requirement: The decision-maker must demonstrate a significant and competing public interest justifying the human rights restriction. Their reasons will be subjected to rigorous examination.
    • Higher Intervention Threshold: The court shows a greater willingness to intervene compared to standard judicial review cases. This doesn't mean a lower bar for unreasonableness, but a more thorough assessment of the justification offered.
IV. Key Points to Remember:
  • Proportionality: The level of scrutiny is directly proportional to the gravity of the human rights infringement. Minor infringements will face less intense review than substantial ones.
  • Focus on Justification: The court doesn't lower the bar for unreasonableness; it raises the bar for justification. The decision-maker must provide strong, compelling reasons for their actions.
  • Intensified Scrutiny: While the threshold remains the same, the court applies more rigorous examination of the decision-making process and the reasoning offered.
V. Study Questions:
  1. Explain the "threshold of unreasonableness" in the context of this case. Why isn't it lowered, even when fundamental human rights are involved?
  2. How does the court's approach balance the need to respect administrative discretion with the protection of human rights?
  3. Describe the intensified review process. What specific aspects of the decision-maker's actions are subject to closer scrutiny?
  4. What constitutes a sufficient "competing public interest" to justify a human rights restriction, according to this case? Provide hypothetical examples.
  5. What are the implications of this ruling for administrative decision-making in areas potentially impacting human rights?



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KembaraXtra-Case Law-R v Cambridge Area Health Authority ex p B (1995): Study Guide
This case concerns the refusal of further medical treatment (a second bone marrow transplant) for a 10-year-old girl (B) suffering from leukaemia. The key issue is whether the Health Authority's decision violated B's right to life.
I. Facts:
  • Applicant: 10-year-old girl (B) with leukaemia, facing almost certain death without further treatment.
  • Treatment: A second bone marrow transplant with a low (10-20%) chance of success.
  • Decision: The Cambridge Area Health Authority refused further treatment.
  • Legal Action: B's father, acting as her next friend, sought certiorari (a judicial review) to quash the Authority's decision.
II. Divisional Court Decision (Laws J):
  • Finding: The court found the Authority's decision unlawful.
  • Reasoning:
    • Failure to consider relevant factors: The Authority failed to adequately consider the father's wishes. Critically, this failure directly impacted on the decision's legality, a point not adequately addressed by the subsequent appellate decision.
    • Violation of the right to life: The decision interfered with B's right to life, a fundamental human right that's not merely an international obligation (under the European Convention) but is intrinsic to English common law. Any infringement requires substantial public interest justification, which the Authority failed to provide. The Authority didn't adequately explain its prioritization that resulted in denying B a chance at life.
  • Remedy: Granted certiorari, remitting the decision back to the Authority.
III. Court of Appeal Decision:
  • Finding: The Court of Appeal overturned the Divisional Court's decision, holding the Authority's decision was lawful.
  • Reasoning: The Court of Appeal did not address the Divisional Court's reasoning regarding the right to life or the failure to consider the father's wishes. This omission is significant.
IV. Outcome and Comment:
  • Subsequent Events: An anonymous donor subsequently funded the treatment, but B died.
  • Significance: The case highlights the conflict between resource allocation in healthcare and individual rights, particularly the right to life. The appellate court's lack of engagement with the lower court's reasoning leaves open the question of the exact legal basis for the final decision. The divergence in the decisions of the Divisional Court and the Court of Appeal demonstrates a lack of consistency in how the courts have considered the intersection of healthcare decisions and human rights.
V. Key Concepts & Questions for Study:
  • Certiorari: Understand its function in judicial review. What grounds are necessary to seek certiorari?
  • Right to life: Explore its status under English common law and its relationship to international human rights instruments. How does this right balance with competing public interests (e.g., resource allocation)?
  • Judicial Review: Analyze the different standards of review applied at the Divisional Court and the Court of Appeal. Why did the Courts reach different conclusions? What are the implications of the Court of Appeal's lack of engagement with the reasoning of the lower court?
  • Parental Rights: What is the role of parental wishes in healthcare decisions for children? When can these wishes be overridden?
  • Resource Allocation in Healthcare: How should limited healthcare resources be allocated? What ethical and legal considerations are involved?
This case lacks a clear and consistent judicial ruling on the key issue. Careful consideration of the conflicting judgments and the underlying legal and ethical dilemmas is crucial for a thorough understanding. Focus on the disagreements between the courts and the implications thereof.






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KembaraXtra-Case Law-R v Secretary of State for the Home Department ex p Bugdaycay (1987)
Case Summary: This House of Lords case (1987) establishes a principle regarding the intensity of judicial review based on the gravity of the rights at stake.
Facts:
  • Appellants (Bugdaycay et al.) entered the UK using false information about their purpose and intended stay.
  • Their actual intention was to seek asylum.
  • Asylum applications were rejected.
  • Removal orders were issued by the Home Secretary because they were deemed illegal entrants.
  • Appellants argued:
    • The concealed facts were not "material" (wouldn't have resulted in entry refusal).
    • The court should determine their asylum entitlement.
Decision: The House of Lords dismissed the appeals.
Key Principle (Lord Bridge's Judgement):
The intensity of judicial review is directly proportional to the gravity of the rights affected by the administrative decision. The court's scrutiny increases significantly when fundamental rights, particularly the right to life, are at stake. In such cases, the decision's basis requires the "most anxious scrutiny" to ensure it's flawless.
Key Takeaways for Understanding:
  • Judicial Review Intensity: Judicial review isn't a uniform process. The court's level of examination varies depending on the importance of the rights involved. This is a crucial element distinguishing this case.
  • Right to Life: The right to life is the most fundamental human right. Decisions potentially jeopardizing this right necessitate the highest level of judicial scrutiny.
  • Materiality: The case touches upon the concept of "materiality" in immigration decisions. What information is significant enough to affect an immigration officer's decision? The court ultimately decided against the appellants on this point.
  • Jurisdiction: The court addressed its own jurisdiction to review asylum claims, ultimately deciding it did not have the jurisdiction in this instance.
Study Questions:
  1. Explain the principle established in Bugdaycay regarding judicial review and the gravity of the rights involved.
  2. Why was the right to life deemed particularly important in this case?
  3. What arguments did the appellants make? Why did the court reject these arguments?
  4. How does Bugdaycay affect the standard of judicial review in cases involving fundamental human rights?
  5. Discuss the concept of "materiality" as it relates to immigration decisions in the context of this case.
This study guide helps understand the core principle of the case and its implications for judicial review, particularly in cases involving fundamental rights. Remember to focus on the connection between the gravity of the rights and the intensity of the judicial review.



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KembaraXtra-Case Law-Derbyshire County Council v Times Newspapers Ltd (1992-93)
This case concerns whether a public body (Derbyshire County Council) can sue for libel. The core issue revolves around balancing freedom of speech (Article 10 of the European Convention on Human Rights) with the protection of reputation.
I. Facts of the Case:
  • Plaintiff: Derbyshire County Council
  • Defendants: Times Newspapers Ltd, its publishers, editor, and journalists.
  • Issue: The Sunday Times published articles allegedly defaming the council's management of its superannuation fund. The council sued for libel.
  • Defendants' Argument: A public body shouldn't have the right to sue for libel as it could suppress legitimate criticism, violating Article 10 ECHR. They suggested alternative legal avenues like malicious falsehood or criminal libel.
II. Court of Appeal Decision (Decision 1):
  • Outcome: The Court of Appeal allowed the defendants' appeal. They ruled that a corporate public authority like the council does not have a common law right to sue for libel.
  • Article 10 ECHR and its Application: The court considered Article 10, noting its relevance in English courts in three situations:
    1. Resolving Ambiguity: Article 10 can clarify ambiguities in English law.
    2. Exercising Discretion: Article 10 informs judicial discretion (e.g., granting injunctions).
    3. Addressing Uncertain Common Law: Article 10 guides the courts when common law is uncertain. Even with clear common law, courts should consider potential Article 10 breaches (as per ex p Choudhury).
III. House of Lords Decision (Decision 2):
  • Outcome: The House of Lords dismissed the council's appeal, upholding the Court of Appeal's decision.
  • Key Difference from Court of Appeal: Importantly, the House of Lords reached its conclusion without explicitly relying on Article 10. They found English common law already aligned with Article 10's principles regarding freedom of speech. Lord Keith emphasized the consistency between English common law and the UK's obligations under the Convention.
IV. Key Concepts and Legal Principles:
  • Libel: A false statement that harms someone's reputation.
  • Article 10 ECHR (Freedom of Expression): Guarantees freedom of expression, subject to limitations (e.g., to protect reputation).
  • Balancing Competing Rights: The case highlights the crucial task of balancing freedom of speech with the right to protect reputation. The courts decided that the potential for chilling legitimate criticism outweighed the council's right to sue for libel in this context.
  • Common Law vs. Convention Rights: While the Court of Appeal considered Article 10, the House of Lords decided the case based on established common law principles, demonstrating a potential pathway for aligning domestic law with international human rights standards.
V. Study Questions:
  1. Why did the defendants argue that Derbyshire County Council shouldn't be able to sue for libel?
  2. In what three situations did the Court of Appeal find Article 10 ECHR relevant to English courts?
  3. How did the House of Lords' decision differ from the Court of Appeal's decision regarding the use of Article 10?
  4. What is the significance of the House of Lords' finding that English common law is consistent with Article 10 in this area?
  5. What are the implications of this case for public bodies and their ability to protect their reputation?
  6. How does this case illustrate the judicial balancing act between freedom of speech and protection of reputation?
This study guide provides a comprehensive overview of the case and should help you understand the complexities and implications of the ruling. Remember to review the original text for further detail and nuance.



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KembaraXtra-Case Law-R v Morrisey & R v Staines (1997)
Case Summary: This Court of Appeal case (later affirmed by the House of Lords) highlights the limitations of the European Convention on Human Rights (ECHR) in English law before its incorporation into domestic law through the Human Rights Act 1998.
Facts:
  • Appellants convicted of a financial offence appealed their convictions.
  • Their appeal centered on statements made during an investigation under the Financial Services Act 1986 (FSA 1986, s.177). This section specifically made these statements admissible as evidence.
  • Appellants argued that admitting these statements violated their right to a fair trial (potentially under Article 6 ECHR), and should be excluded under the Police and Criminal Evidence Act 1984 (PACE 1984, s.78) which allows for the exclusion of improperly obtained evidence.
  • The case referenced R v Saunders (1996), where the Court of Appeal hinted at potential future implications of a successful appeal to the European Court of Human Rights (ECtHR).
Legal Issues:
  • Admissibility of Evidence: The core issue was whether statements obtained under FSA 1986, s.177, should be admissible despite potentially breaching the appellants' right to a fair trial.
  • Conflict between Domestic and International Law: The case presented a direct conflict between a specific provision of English law (making the evidence admissible) and the potential violation of the ECHR (making the evidence inadmissible).
  • Judicial vs. Legislative Power: The court grappled with whether it had the power to effectively 'repeal' or override a statute (FSA 1986, s.177) by excluding evidence based on ECHR principles. The court held that it did not possess such legislative power.
  • Enforcement of ECHR in English Courts (pre-HRA 1998): The case underscored the limited enforceability of the ECHR in English courts before the Human Rights Act 1998. The ECHR was not directly incorporated into English law, meaning English courts couldn't directly strike down legislation conflicting with it.
Decision:
  • The Court of Appeal dismissed the appeal.
  • Section 177 of the FSA 1986 created a statutory presumption of admissibility, which the court could not overturn simply to comply with potential ECHR requirements.
  • Excluding the evidence would have been tantamount to judicially repealing a statute – a power the court lacked.
  • While acknowledging the unsatisfactory situation (a conflict between domestic law and ECHR principles), the court was bound by the existing statutory framework. The ECHR remained unenforceable in English courts in this context.
Significance:
  • R v Morrisey & R v Staines vividly demonstrates the limitations of relying on the ECHR before its incorporation into English law via the Human Rights Act 1998. It highlights the crucial role the HRA 1998 played in directly incorporating the ECHR into the UK legal system.
  • The case illustrates the tension between parliamentary sovereignty and the application of international human rights law.
Key Terms:
  • Parliamentary Sovereignty: The principle that Parliament is the supreme legal authority in the UK.
  • European Convention on Human Rights (ECHR): An international treaty protecting fundamental human rights.
  • European Court of Human Rights (ECtHR): The court that interprets and applies the ECHR.
  • Judicial Review: The power of the courts to review the legality of government actions. (Note: the court found it lacked the power to judicially review and effectively repeal the statute in this case.)
  • Human Rights Act 1998: The Act that incorporated the ECHR into UK law.
This study guide emphasizes the key aspects of the case and its lasting implications for the relationship between domestic and international law in the UK. Understanding this case requires grasping the legal context prior to the HRA 1998.







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KembaraXtra-Case Law-R v Secretary of State for the Home Department ex p Brind (1991)
Case Summary: This House of Lords case (HL) deals with the interpretation of UK legislation in light of the European Convention on Human Rights (ECHR), specifically Article 10 (freedom of expression). It establishes a crucial precedent regarding the relationship between domestic law and international human rights conventions before the Human Rights Act 1998.
Key Facts:
  • The Issue: Applicants challenged the Secretary of State's ban on their broadcasting, arguing it violated Article 10 ECHR and was disproportionate.
  • Legislation: Section 29(3) of the Broadcasting Act 1981 gave the Secretary of State broad, unfettered discretion to prohibit broadcasting.
  • Applicant's Argument: Applicants argued the Secretary of State must consider Article 10 ECHR when exercising this discretion.
The Decision (House of Lords):
  • No Incorporation: The HL rejected the applicants' argument. They held that accepting the argument would effectively incorporate the Convention into English law.
  • Parliamentary Intent: The HL reasoned that Parliament, having repeatedly refused to incorporate the Convention through legislation, intended it to retain its existing (unincorporated) status. The court therefore deferred to the clear wording of the statute.
  • Ambiguity as a Gateway: Lord Ackner acknowledged that the Convention could be used to resolve ambiguities within UK legislation. However, he found no ambiguity in Section 29(3).
Key Principles & Concepts:
  • Incorporation vs. Unincorporated Treaties: This case highlights the distinction between an incorporated treaty (where treaty provisions become part of domestic law) and an unincorporated treaty (where the treaty remains separate, and its provisions aren't directly enforceable in domestic courts). Before the Human Rights Act 1998, the ECHR was unincorporated in the UK.
  • Parliamentary Sovereignty: The decision emphasizes the principle of parliamentary sovereignty. Parliament's intention, as reflected in the legislation, takes precedence. The courts cannot override clear statutory language to conform to international treaty obligations unless the legislation itself allows for this.
  • Interpretation vs. Incorporation: The court distinguished between interpreting ambiguous legislation in light of the Convention (permitted) and effectively incorporating the Convention into law by using it to override clear statutory language (not permitted pre-HRA 1998).
Study Questions:
  1. What was the central legal issue in Brind?
  2. Explain the difference between an incorporated and an unincorporated treaty. How did this distinction shape the court's decision?
  3. What role did the principle of parliamentary sovereignty play in the decision?
  4. Under what circumstances, according to Lord Ackner, can the ECHR be used to interpret UK legislation?
  5. How did the Brind decision differ after the enactment of the Human Rights Act 1998? (Requires further research).
Further Research: Compare and contrast the approach to human rights in Brind with the approach taken by courts after the Human Rights Act 1998 was enacted. Investigate the impact of Section 3 and Section 4 of the HRA 1998.



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KembaraXtra-Case Law-R v Chief Constable of Sussex ex p International Trader’s Ferry Ltd (1999)
Case Summary: This case concerns the balancing of competing rights – a company's right to trade and protesters' right to demonstrate – against the police's resource constraints and duty to maintain public order. International Trader’s Ferry Ltd. sued the Chief Constable for limiting police protection during animal rights protests, impacting their business.
Facts:
  • Protests: Animal rights protests significantly disrupted live animal exports via ferry.
  • Company Action: The applicant company started transporting livestock, requiring substantial police protection (1125 officers, £1.25 million cost).
  • Police Response: Initially, heavy police presence was provided. However, due to resource constraints and the Home Office refusing a special grant, the Chief Constable reduced police protection to two days a week. This rendered the company's operations economically unviable.
  • Legal Challenge: The company challenged the Chief Constable's decision via judicial review.
Decision:
  • The House of Lords upheld the Chief Constable's decision. They ruled that the right to trade is not absolute; it must be balanced against other factors. The Chief Constable had legitimately considered:
    • Resource limitations of the police force.
    • The rights and safety of other individuals in the area.
    • The risk of violence during protests.
    • The company's right to trade.
    • The protesters' right to peaceful demonstration.
Key Legal Principles:
  • Balancing Competing Rights: The case highlights the necessity of balancing fundamental rights (right to trade, right to protest) in situations of competing interests, especially when public order is at stake. Neither right is absolute.
  • Police Discretion: Chief Constables have significant discretion in resource allocation and managing public order. Courts will not easily overturn their decisions unless they are demonstrably unreasonable.
  • Wednesbury Unreasonableness vs. Proportionality: Lord Slynn points out that while theoretically distinct, "Wednesbury unreasonableness" (a test of irrationality) and "proportionality" (a test assessing the balance between ends and means) often lead to similar outcomes in practice, particularly given the deference courts afford to authorities' decisions (margin of appreciation). The onus of proof may differ, but the practical effect may be the same.
Key Points to Understand:
  1. No Absolute Right to Trade: The right to trade, while important, is not absolute and can be subject to reasonable limitations in the public interest.
  2. Police Resource Constraints: Police forces have limited resources. Decisions regarding resource allocation are generally left to their discretion, and courts show considerable deference to such decisions.
  3. Balancing Act: The core of the case is the need for a balancing act between competing rights and the police's duty to maintain order. This balance is not easily disturbed by the courts.
  4. Wednesbury and Proportionality: Understand the distinction (and similarity) between these two tests. While proportionality is generally stricter, deference to national authorities often reduces this difference in practice.
Study Questions:
  1. What were the competing rights involved in this case? How did the court balance these rights?
  2. What factors did the Chief Constable consider in making his decision? Were these factors relevant and justifiable?
  3. Explain the difference between Wednesbury unreasonableness and proportionality. Why did Lord Slynn suggest their practical effects are often similar?
  4. How does this case illustrate the limits of judicial review in challenging police decisions concerning resource allocation and public order?
  5. What is the “margin of appreciation” and how does it relate to the application of proportionality in this case?
This study guide aims to provide a comprehensive understanding of R v Chief Constable of Sussex ex p International Trader’s Ferry Ltd. Remember to review the original judgment for complete details and nuanced arguments.



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KembaraXtra-Case Law-R v Secretary of State for Transport ex p Pegasus Holdings (1988)
Case Summary: This case examines the reasonableness of executive action, specifically focusing on whether proportionality plays a role in determining fairness.
Decision: The court found no breach of natural justice or fairness principles. The judgment emphasizes that fairness must be assessed considering all circumstances.
Key Legal Principle: Proportionality is considered a relevant factor when determining the reasonableness of an executive action within the broader context of fairness. It's not a standalone test, but an element to be weighed against other factors.
Schiemann J's Reasoning: The judge highlights the need for a balanced approach:
  • Economic harm and inconvenience: The substantial economic damage to the applicants (Pegasus Holdings) and the inconvenience to passengers must be acknowledged.
  • Magnitude of risk: The potential magnitude of the risk associated with the executive action must also be considered and weighed against the harms suffered.
Study Points:
  1. Define "Proportionality" in this context: How does proportionality relate to reasonableness and fairness in administrative law? What are the relevant factors to consider? (Research and add a detailed definition).
  2. The Balancing Act: Explain the balancing exercise undertaken by Schiemann J. How are competing interests (economic harm vs. risk mitigation) reconciled? What evidence would strengthen one side or the other?
  3. Fairness in all circumstances: What does "fairness in all circumstances" mean practically? What factors might a court consider when evaluating fairness?
  4. Limitations: What are the limitations of relying on proportionality as a sole determinant of reasonableness?
  5. Application: How could the principles from this case be applied to similar situations involving executive actions with potentially significant economic consequences and safety concerns? (Consider various hypothetical scenarios).
Further Research: Research the specific facts of the case (16.1.6) to fully understand the context of the judgment and Schiemann J's reasoning. Also, explore the development of proportionality in administrative law.
This study guide provides a framework. You must fill in the missing factual details from 16.1.6 to create a complete and effective study resource. Active engagement with these study points will help ensure a strong understanding of the case's significance.



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KembaraXtra-Case Law-R v Secretary of State for the Home Department ex p Brind (1991)
I. Case Facts:
  • Context: The case concerns a 1988 directive from the Secretary of State, using the Broadcasting Act 1981, banning the broadcast of words spoken by members or apparent supporters of organizations banned under anti-terrorism laws.
  • Claimants: Journalists challenged the ban, arguing it violated their freedom of expression (ECHR) and was disproportionate.
  • Key Issue: The central question was whether the principle of proportionality, a key element of human rights law under the European Convention on Human Rights, was a valid ground for judicial review in UK domestic law.
II. Decision of the House of Lords (HL):
  • Main Holding: The HL held that proportionality was not yet an independent ground for judicial review in UK law.
  • Majority Reasoning (Lord Lowry, Lord Ackner): Proportionality would involve reviewing the merits of the decision, a function reserved for the decision-maker, not the courts. They feared a flood of meritless judicial reviews. Lord Ackner suggested that a completely disproportionate decision might be considered Wednesbury unreasonable.
  • Minority/Concurring Reasoning (Lord Bridge, Lord Roskill): They acknowledged that proportionality could eventually become an independent ground of review but refused to apply it in this case. Lord Bridge argued that the existing test of irrationality (Wednesbury unreasonableness) achieved a similar outcome.
  • Lord Templeman's Approach: He recognized proportionality's importance in ECHR jurisprudence, but using the established principle of irrationality, found the Secretary of State's decision justifiable.
III. Key Concepts and Their Application in the Case:
  • Judicial Review: The process by which courts assess the legality of government decisions.
  • Wednesbury Unreasonableness: A decision is unreasonable if it is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. This is a high threshold.
  • Proportionality: A decision must be necessary and appropriate to achieve its aim, and the balance between the aim and the impact on rights must be justifiable. This requires a more thorough review of the merits than Wednesbury unreasonableness.
  • European Convention on Human Rights (ECHR): An international treaty guaranteeing fundamental human rights, including freedom of expression. The ECHR requires proportionality in assessing limitations on fundamental rights.
IV. Understanding the Significance:
Brind demonstrates a tension between domestic UK administrative law and the requirements of international human rights law. While acknowledging the potential future role of proportionality, the HL in this case prioritised the established, more deferential standard of Wednesbury unreasonableness. This reflects a cautious approach to expanding grounds for judicial review. The case is significant because it highlights the evolving relationship between domestic administrative law and international human rights law in the UK.
V. Study Questions:
  1. What were the key arguments for and against adopting proportionality as a ground for judicial review in Brind?
  2. How does Wednesbury unreasonableness differ from proportionality? Which is a more stringent test?
  3. What impact did the decision in Brind have on the relationship between UK domestic law and the ECHR?
  4. Why did the Lords express concern about a potential flood of judicial review applications? Is this a valid concern?
  5. How might the outcome of Brind differ in modern times given the Human Rights Act 1998?
This study guide provides a framework for understanding the complexities of R v Secretary of State for the Home Department ex p Brind. Remember to consult the full case judgment for a complete understanding.



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KembaraXtra-Council of Civil Service Unions v Minister for the Civil Service (1985)
This case, Council of Civil Service Unions v Minister for the Civil Service (1985), is crucial for understanding the grounds of judicial review in UK administrative law. Lord Diplock's contribution is particularly significant.
I. Central Argument:
Lord Diplock elegantly summarizes the grounds for judicial review, stating that they can be conveniently classified under three heads. While he doesn't detail the historical development, he emphasizes that this categorization is a snapshot of the current state of the law – leaving open the possibility of future expansion.
II. The Three Heads of Judicial Review (According to Lord Diplock):
The text doesn't specify what these three heads are. This is a critical gap. To understand the case fully, you MUST research and define these three heads. This is the most important task in your study. Commonly cited are:
  • Illegality: This refers to whether the decision-maker acted within their legal powers. Did they misunderstand the law, act without legal authority, or fail to follow proper procedures? Consider examples of procedural impropriety and errors of law.
  • Irrationality (now often termed 'Wednesbury unreasonableness'): This refers to whether the decision was so unreasonable that no reasonable decision-maker could have reached it. This sets a high bar for judicial intervention. Consider the intensity of review as a factor.
  • Procedural impropriety: This involves a failure to follow fair procedures in making a decision. This includes issues like the right to a fair hearing, the right to legal representation, and the duty to act impartially.
III. The Future of Judicial Review: Proportionality
Lord Diplock anticipates further development. He highlights the potential adoption of the principle of proportionality. This is a significant point.
  • Proportionality: This principle assesses whether the means used by the decision-maker are proportionate to the ends sought. It involves considering whether the objective is sufficiently important to justify the limitation of rights, whether the measure chosen is rationally connected to the objective, whether less intrusive measures could have been used, and whether the balance between the objective and the limitation of rights is fair.
IV. Study Tasks:
  1. Research and Define: Thoroughly research and define the three heads of judicial review as identified by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service (1985). Provide examples for each. Compare the differences between them.
  2. Proportionality: Research the principle of proportionality. Explain how it differs from the other three traditional grounds of judicial review, specifically 'Wednesbury unreasonableness'. Illustrate with examples.
  3. Case Analysis: Find a full case report of Council of Civil Service Unions v Minister for the Civil Service (1985) and carefully read Lord Diplock's judgment in its entirety. Note how his summary relates to the specific facts of the case.
  4. Comparison: Compare and contrast the approaches to judicial review in other jurisdictions, particularly those within the EU/EEA, where proportionality might be a primary ground.
By completing these tasks, you will gain a comprehensive understanding of this landmark case and its implications for administrative law. Remember, the missing three heads are critical for completing your study.



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