The Four Basic Reasons for Deference

Page 244: Lord Russell’s version of The List in Kruse v Johnson [1898] 2 QB 91, is largely the same as Lord Greene’s in Wednesbury [1948] 1 KB 223, except that Lord Russell also mentioned conduct that is manifestly unjust, capricious, inequitable, or partial in its operation, and oppression.  Are those separate grounds of review that were missing from Lord Greene’s version of The List in Wednesbury?

• Think about the context of Lord Russell’s statement of his list in Kruse v Johnson.  He recognizes the power of the Court to condemn byelaws as invalid because they are unreasonable.  He then asks ‘(b)ut unreasonable in what sense?’ (99).   He give examples of ‘unreasonableness’ as including the conduct mentioned above, as well as ‘such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men’ (99-100). 
• Now consider Lord Green’s version in Wednesbury: features making the exercise of a power unlawful include ‘something so absurd that no sensible person could ever dream that it lay within the powers of the authority…so unreasonable that no reasonable authority could ever have come to it’ (229 – 230).
• Do both approaches not amount to a very restrained form of judicial review to quash flagrantly unjust administrative decisions?
• For both, any injustice would have to be manifest.  Does this not amount to an injustice so obvious that the judges can identify it without any breach of comity?
• However, note that Lord Russell (unlike Lord Green) did not mention irrelevant considerations.
• Also note that Kruse v Johnson has been used to try and argue that the courts can control discretionary powers in ways that Wednesbury did not allow. 

Proceedings in Parliament

Page 268: If the focus of the court is on the minister’s decision to make a statutory instrument, and not on Parliament’s decision to approve it, could you seek judicial review to quash a decision by a minister to present a bill to Parliament, and argue that the court should focus on the minister’s decision, and not on Parliament’s decision to approve the Bill?

• Consider the Bill of Rights 1689: is the Parliamentary proceeding just the deliberation over the bill, or does it include the presentation of the bill to Parliament by the minister?
• Think about the reasons why Parliament banned outside interference with parliamentary proceedings, in the Bill of Rights: would those purposes be promoted, by a rule that courts must not question a minister’s proposals for legislation?
• Is the making of a statutory instrument by a minister different from the presentation of a bill to Parliament by a minister? 

Can judges refuse to give effect to a statute?

Page 268-9: Lord Hope held in Axa that ‘as there is no provision in the Scotland Act which excludes’ judicial review, ‘it must follow that in principle Acts of the Scottish Parliament are amenable to the supervisory jurisdiction of the Court of Session [which in this respect is the same as the jurisdiction of the High Court in England and Wales] at common law’ [47].  What if the Scotland Act had provided that there could be no judicial review of the lawfulness of an Act of the Scottish Parliament? Would such an exclusion of judicial review be lawful?

• Is there any precedent for judges refusing to give effect to an Act of Parliament?
• If not (and I don’t know of any), would it be a good idea for the judges to confer on themselves the power to decide which acts of Parliament they should give effect to?