Self-test questions: JR: Irrationality

1. In Council of Civil Service Unions and Others v Minister for the Civil Service [1985] A.C. 374 which of the following best describe Lord Diplock's account of what type of decision would fall within 'irrationality' as a head for review?

A decision in which a fair balance has not been struck between the objective of a measure and the interests of those affected by the measure.

A decision based on irrelevant considerations and in which the decision maker has therefore not directed themselves properly in law.

A decision in which the courts find the reasoning unpersuasive.

A decision so outrageous in its defiance of logic or accepted moral standards no one applying their mind to the question to be decided could have arrived at it.

A decision in which the reasoning falls outside of the more limited scope of acceptable reasons available to a decision maker where a Convention right is being affected.

2. Which of the following best describe the test for proportionality as adopted by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26?

The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable.

Whether the measure taken by a public authority that interfere with a Convention right where there is a threat to the life of the nation is no more than what is strictly required by the exigencies of the situation.

Whether the interference by a public authority with the exercise of this right is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Whether the legislative objective is sufficiently important to justify limiting a fundamental right; the measures designed to meet the legislative objective are rationally connected to it; and the means used to impair the right or freedom are no more than is necessary to accomplish the objective.

3. Which of the following best describe the test for proportionality as adopted by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26?

The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable.

Whether the measure taken by a public authority that interfere with a Convention right where there is a threat to the life of the nation is no more than what is strictly required by the exigencies of the situation.

Whether the interference by a public authority with the exercise of this right is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Whether the legislative objective is sufficiently important to justify limiting a fundamental right; the measures designed to meet the legislative objective are rationally connected to it; and the means used to impair the right or freedom are no more than is necessary to accomplish the objective.

The more substantial the interference with human rights, the less the court will require by way of justification before it is satisfied that the decision is reasonable.

4. Which of the following best describe the legal significance of R v Secretary of State for the Home Department, ex p Brind [1991] 1 A.C. 696 in relation to the applicability of the test of proportionality under the ECHR?

As the ECHR was not part of English domestic law, applying a test of proportionality in the review of executive discretionary powers would involve the court substituting its own judgement for that of the appropriate decision maker. It would result in the court into assessing the merits of a decision rather than its lawfulness.

That a decision could be so disproportionate that it could amount to Wednesbury unreasonableness (or, 'irrationality').

The test of proportionality must take account of whether there is a rational connection between a legislative objective and the measure taken to achieve that objective.

Although the ECHR is not English domestic law, as an international treaty to which the UK is a signatory, English courts will interpret UK statutory provisions with the presumption that Parliament legislated with the intention of being consistent with its international obligations. This will include applying a test of proportionality to the exercise of executive discretion where Convention rights are affected.

5. Which of the following best describe the reasons given by the court in R v Secretary of State for the Home Department, ex p Brind [1991] 1 A.C. 696 for rejecting the appellants argument that the Secretary of State's decision was unreasonable?

The test for proportionality and the test of Wednesbury unreasonableness were not identical. Further, the decision of the Secretary of State to prohibit broadcasters from broadcasting the spoken words of those deemed terrorists was within the range of responses open to a reasonable decision-maker.

The test for proportionality and the test of Wednesbury unreasonableness were not identical. Further the decision of the Secretary of State to allow a search of a prisoner's possessions in the cells was within the realm of rational decisions available to them.

Although the court found the reasons for the decision of the Secretary of State to uphold a ban on homosexuals serving in the military unpersuasive, it was not irrational in the sense that 'no decision-maker applying themselves to the question reasonably could have come to such a conclusion'.

Questions of national security are essentially political rather than legal questions, and so the court considered the decision of the Secretary of State to prohibit broadcasters from broadcasting the spoken words of those deemed terrorists non-justiciable.

Questions of national security are essentially political rather than legal in nature. As such, the court deferred to the reasoning of the Secretary of State in their decision to allow a search of the possessions of prisoners convicted of terrorism - including their correspondence kept in their cells.

6. In R v Ministry of Defence, ex p. Smith [1996] QB 517 (CA), judicial review was brought against the Ministry of Defence for their policy that 'homosexuality was incompatible with service in the armed forces and that personnel known to be homosexual or engaging in homosexual activity would be administratively discharged.' The arguments of the applicants included that the policy was irrational, pandering to 'prejudice and intolerance'.
Which of the following best describes the courts response to this argument?

The policy was not unlawful on the grounds of irrationality. Although the court affirmed that where fundamental rights are affected the test for irrationality involved 'heightened' or 'anxious scrutiny', the test for irrationality was strict and the policy was not so unreasonable that it fell beyond the range of responses open to a reasonable decision-maker.

The policy was unlawful on the grounds of irrationality. The court affirmed that where fundamental rights are affected the test for irrationality involved 'heightened' or 'anxious scrutiny'. As there was no evidence or rational basis for finding that sexual orientation impaired a person's ability to serve in the army, the court found that the decision was beyond the range of responses open to a reasonable decision-maker.

The policy was unlawful on the grounds of irrationality. The court affirmed that where fundamental rights are affected the test for irrationality involved 'heightened' or 'anxious scrutiny'. Acknowledging the significant weight of article 8 right to privacy, and the objective of the policy was not sufficiently important to justify an interference with it.

The policy was unlawful on the grounds of irrationality. As there was no evidence for finding that sexual orientation impaired a person's ability to serve in the army there was no rational connection between the policy objective and the measures taken.

The policy was not unlawful on the grounds of irrationality. As the issue dealt with a question of national security the policy of the Ministry of defence on personnel was a judgement of a political, rather than a legal nature and was thus non-justiciable. Although interference with fundamental rights heightened scrutiny of the reasonableness of a decision, the court would not evaluate a decision which was by nature non-justiciable.

7. Which of the following best identifies the principle affirmed in Pham v Secretary of State for the Home Department, [2015] 1 W.L.R. 1591 (2015) on the relationship between the test of proportionality and irrationality?

That maintaining a strict distinction between the test for proportionality (derived from European law) and the test for irrationality (derived from common law) was essential to ensuring that the judiciary did not overstep its role in the process of judicial review by assessing the merits of a decision rather than its legality.

That the case provided a clear demonstration of the tendency for the test for proportionality (derived from European law) and the test for irrationality (derived from common law) to produce very different results when applied to the same set of facts in a process of judicial review.

That judicial review on the basis of irrationality (derived from common law) and proportionality (derived from European law) involves considerations of weight and balance with the intensity of review depending on the context. There may be very little distinction in the result of either test where fundamental rights are involved.

That with the withdrawal of the UK from the EU, proportionality (which is derived from EU Law) will no longer be applicable in a process of judicial review.

8. The mayor has decided to build (in partnership with various developers and businesses) an 'eco village' in the city centre. As an extension of this 'eco-village' a garden bridge would be constructed for pedestrians with cafés and extensive wildflower gardens.
While initial discussions of the idea were well received by the public, the mounting cost has turned the tide of opinion against the mayor. Some have described the eco-village as a vanity project. Many have noted that the project will make lots of money for the businesses involved but would place the city in significant debt and may require cutting funds for important social programmes. The mayor argues it will aid in the overall development of the city, bring people happiness, and be good for the environment.
A number of public interest groups as well as individuals who will be directly affected by the development believe they can challenge the lawfulness of the decision on the grounds that it is irrational and disproportionate. Which of the following best describe whether the appellants have an arguable case on either of these grounds?

The appellants have an arguable case. Although the decision is not irrational in the sense of Wednesbury unreasonableness, it may fail on the test of proportionality as the cost (and the potential funding cuts to social programmes) is disproportionate to the benefits obtained.

The appellants have an arguable case. The court may find that the decision is unreasonable as the mayor has not given effect to the purposes for which their power has been conferred. The decision may also fail on a test of proportionality as the cost (and impact of the cost such as funding cuts to social programmes) is disproportionate to the benefits obtained.

The appellants have an arguable case. The court may find that the decision is unreasonable as the mayor has taken into account irrelevant considerations and not properly directed themselves in law. However, an argument that the decision is not proportionate will fail as there is no evidence of a Convention right which has been interfered with.

The appellants do not have an arguable case. The decision is not so irrational that no reasonable decision maker applying themselves to the question could have come to it, and the test for proportionate would not be relevant as there is no evidence of a Convention right which has been interfered with.

The appellants do not have an arguable case. Applying the tests for irrationality and proportionality in this context would likely involve finding that it is within the range of responses open to a reasonable decision-maker.

9. Kay wants to challenge the lawfulness of the mayor's decision to demolish social housing (in this case housing provided by the local authority according to their legislative duties) to make room for a new 'eco village' in the city centre. Kay has two children, one of whom needs special accommodation due to a physical disability. There is no plan in place to move the family to suitable alternative housing. Kay is also concerned they may become homeless.
Which of the following best describe whether Kay has an arguable case that the decision is unlawful for interference with her and her children's article 8 Convention rights?

Kay does not have an arguable case on the basis of interference with article 8. Article 8 is not engaged, as it deals with issues such as the right to privacy and family life but does not extend to issues such as housing.

Kay does not have an arguable case on the basis of interference with article 8. It is for the relevant decision maker (in this case the mayor) to determine the balance of a measure against a legitimate objective (i.e. the benefits of creating an 'eco village'). It is not for the court to replace its judgement on policy for that of the appropriate decision maker.

Kay has an arguable case on the basis of interference with article 8. The decision would likely be found to be in contravention of Wednesbury principles of unreasonableness on the basis that Kay and her children's fundamental legal rights are affected by the decision.

Kay has an arguable case on the basis of interference with article 8. The court would likely assess the proportionality of the decision. Even if such a decision is prescribed by law, its proportionality in individual cases should be considered.

10. Under immigration law, the Home Department is seeking to deport Charlotte (a foreign national) on the basis that she is a suspected terrorist. However, due to Charlotte's political activities it is likely she would be subject to inhumane treatment in her home country. The Home Office has argued that the policy of deporting suspected terrorist who are foreign nationals is an appropriate measure for the protection of national security.
The court has found that the decision has interfered with Charlotte's Convention rights – specifically article 3, the prohibition against torture. Which of the following best describes whether the court would find the deportation unlawful on the basis of this interference?

The court would find the deportation unlawful. Article 3 is an unqualified right.

The court would find the deportation unlawful. On a test of proportionality, it is likely the court would find the measure not rationally connected to the objective as it would only protect the UK from foreign nationals, but not domestic suspected terrorists.

The court would find the deportation unlawful. On a test of proportionality, it is likely the court would find the measure not strictly necessary to achieve the policy objectives.

The court would find the deportation unlawful. On a test of proportionality, given the importance of the right interfered with it is likely the court would find the measure was not strictly necessary for the sake of national security particularly as it discriminates between domestic and foreign nationals who are suspected of terrorists. This also suggests that the measure is not rationally connected to its aim.

The court would find the deportation lawful. As the court is unqualified to assess threats to national security they would defer to the judgement of the executive of what measures are necessary for protecting it.

11. The UK government has indefinitely detained foreign nationals suspected of terrorism. The court has found that the detainment interferes with the appellants Conventions rights.
The government had argued any interference with Convention rights would be justified due to the legitimate aims of the Security of the Nation Act 2025. The Act includes a provision in which foreign nationals suspected of terrorism can be detained indefinitely if normally they would be detained before being deported to their home country but when they cannot be deported due to concerns for their safety. The government has also derogated from its obligations under article 5 of the Convention on the basis of invoking article 15 which allows for derogations when a 'public emergency threatens the life of a nation.'
Which of the following best describe whether the court is likely to find the detainment an unlawful interference with article 5, the right to liberty and security?
[Note, this is a hypothetical scenario, and the Security of the Nation Act 2025 is fictional.]

The court will find the detainment lawful. Where a measure is in place to protect national security, the court will not enquire into its proportionality.

The court would find the detainment unlawful. As article 5 is an unqualified right, therefore any interference would be considered unlawful.

The court would find the detainment unlawful. The right to liberty is a fundamental right and therefore careful scrutiny on the basis of proportionality is appropriate. Given the measure does not address the threat of nationals who are also suspected terrorist and since the measure was capable of applying to individuals who did not pose a threat at all (as those affected are only 'suspected' terrorists), the court would likely find that the measure was disproportionate.

The court would find the detainment lawful. Although the right to liberty is a fundamental right and therefore careful scrutiny on the basis of proportionality is appropriate, considerable weight and deference must be given to the executive in relation to national security. As a measure to protect against 'threats to the life of a nation' the court would find the measure proportionate.

The court would find the detainment unlawful. Although the right is qualified, it cannot be derogated from and none of the qualifications that would allow for interference include threats to national security.

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