Chapter 17 Guidance to answering the end-of-chapter questions

1. What is the difference between the test of irrationality and proportionality? Give examples from the case law to illustrate the difference.

• Can you recall the language of the Wednesbury unreasonableness test? Refer back to the discussion of Associated Provincial Picture Houses v Wednesbury Corporation on pp. 539–540.
• How did the unreasonableness test get reformulated by Lord Diplock in GCHQ? Can you explain the significance of Lord Diplock’s statement?
• Is it easy for a claimant to demonstrate that a decision is irrational? In what types of cases is it more difficult to demonstrate irrationality and when will the court be more ‘lenient’ in the application of the irrationality test? Contrast, for example, the decisions in Nottinghamshire County Council and ex p Smith, discussed on pp. 542–543.
• Proportionality is a relatively new concept in judicial review in the UK, by comparison with unreasonableness. What is the origin of the proportionality test and what types of considerations must the court think about when applying the proportionality test?
• It is also worth thinking about the structural differences between the tests. Which test allows the court to scrutinise a decision in a more structured and intense manner?
• How did the House of Lords in Daly explain the difference between the test of irrationality and proportionality? See pages 549–550.

2. Do you think that the courts should adopt proportionality as a free-standing ground of review in all claims for judicial review?

• Many commentators support the abandonment of the irrationality test and would apply the proportionality test in all appropriate judicial review cases. Can you identify any examples of judges that seemed to show willingness to move in this direction? Hint: review the Daly and British Civilian Internees: Far East Region cases.
• What have Tomkins, Sales and Craig argued? See pp. 565–566.
• What are the risks of adopting proportionality in all cases? Think broadly here and refer back to your understanding of the separation of powers. 

3. What is meant by ‘merits review’ and why does Lord Steyn state in Daly that the courts should not engage in it?

• Remember that judicial review gives the courts a role in scrutinising the lawfulness of decisions or actions made in the exercise of public functions.
• Think back to the distinction between a review and an appeal (explained in Chapter 14).
• Is it the job of the courts to review decisions that are lawful but are considered to be without merit? In other words, are courts concerned with the substance of decisions and whether a decision can be considered to be a good or bad one?
• If are unsure about the reasons that Lord Steyn gave in Daly, look at the bullet points on p. 551. 

4. What is meant by ‘judicial deference’? In what circumstances do you think the courts should defer to the executive?

• When anyone exercises ‘deference’, they accord respect to another person or body. To ‘defer’ means to submit to the knowledge or position of another person or yield to their wishes.
• Even if you cannot remember, who do you think that the judiciary would be deferring to when they exercise ‘judicial deference’?
• If you are unsure, look again at Lord Steyn’s explanation on p. 558.
• There is no easy answer to deciding when the courts should defer to the executive. To think this through, consider the justifications for judicial deference set out on p. 559. In respect of what types of decisions do you think that courts should defer to the executive? For example, can you appreciate why the courts have tended to defer in the area of national security, as in the Belmarsh Detainees case?

5. Consider the following problem:

Sonia, aged 18, is a sixth-form student at Avenue School, who is studying A-level politics. The school publishes an in-house newspaper for its staff and students. Sonia writes an article for the newspaper arguing that the Americans should invade Iran if it continues with its nuclear programme. The editor of the newspaper, who is the head of the politics department, initially accepts the article. He tells Sonia that it is very well written and that is he going to enter it for the ‘UK National Best Student Journalist of the Year’ competition. However, the head teacher refuses to approve its publication and he writes to Sonia informing her that the article is unsuitable. He explains that her views are controversial and provocative. Given that there are many students from different religious and cultural traditions at Avenue School, it will cause great offence and may lead to demonstrations, which will cause disruption. Sonia accepts that her views are controversial, but says that she is prepared to add a paragraph in bold letters at the top of the article stating that the views expressed are hers alone and in no way reflect the views of the school, its management, or staff. The head teacher refuses to reconsider his decision not to publish. Sonia would like to make a claim for judicial review. She wants to argue that the school has violated her rights under Article 10 ECHR. The Campaign for Free Speech has also heard about the decision and wants to take legal action against Avenue School.

Advise Sonia and the Campaign for Free Speech of their chances of success. Pay particular attention to the way in which the court will decide whether there are any justifications of interfering with the right to freedom of expression. You will find the discussion on proportionality particularly helpful. Also consider the issue of standing and advise whether Sonia and the Campaign for Free Speech would be allowed to make the claim.

• What is the significance of the possible violation of Sonia’s rights under Article 10 ECHR? What do you know about how the courts determine when to apply the irrationality or proportionality tests?
• If the court adopts the proportionality test in Sonia’s case, would it be more likely that she would be successful in her judicial review claim than if they adopted the irrationality test? Ensure that you understand why that is. If you are stuck, look back at the differences between the tests and what more the proportionality test requires. 
• How might the fact that Sonia was ‘prepared to add a paragraph in bold letters at the top of the article stating that the views expressed are hers alone’ be relevant?
• Does it matter that there are ‘many students from different religious and cultural traditions at Avenue School’ and that the Head Teacher thinks it ‘will cause great offence and may lead to demonstrations, which will cause disruption’? How might this be relevant to the proportionality exercise? Think about what you learned in relation to a ‘legitimate aim’.
• When thinking about standing, remind yourself of the test in judicial review and for when there are human rights issues at stake. What does the test require Sonia and the Campaign for Free Speech to show and does it matter if the Campaign for Free Speech has not been directly affected by the School’s decision?