Administrative Law, Irrationality in English Law

2049 Words Jun 21st, 2012 9 Pages
‘I think that the day will come when it will be more widely recognised that Associated
Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 was an unfortunately retrogressive decision in English administrative law, insofar as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation. The depth of judicial review and the deference due to administrative discretion vary with the subject matter. It may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not capricious or absurd.’ ( (Daly) v Secretary of State for the Home
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It was held that the more the human rights context is involved, more the courts should be required to justify the decision of the executive. This approach, however, was weak on the point that the Convention rights were not that time incorporated into English law and the courts could not look at the human rights the way they do now.
To sum it up, before the enactment of HRA 1998 which came into force in 2000 and before Smith v UK the ECHR decided there were 4 types of approaches in irrationality when applying for judicial review depending on the context: light touch, wednesbury unreasonableness, anxious scrutiny review or no review at all, where the case dealt with issues of national security or others which are to be decided by executive and Parliament alone. The Wednesbury unreasonableness was trying to compare and contrast the factors which gave rise to the decision, light touch review was trying to find mala fide and anxious scrutiny review was trying to find out whether the human rights were considered in the decision.
However, when the R v Secretary of State for HD, ex p Brind case came up, it was clear (as Lord Bridge stated in R v Secretary of State for HD, ex p Bugdaycay), that English law is powerless to prevent the exercise by the executive of administrative discretions in a…

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