An Introduction to Administrative Law

By Peter Cane | Go to book overview
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IN this chapter I consider grounds on which decisions and rules can be attacked because of their substance or content. We have already discussed the circumstances in which decisions or rules can be attacked for error of law or error of fact and we have seen that in many cases challenges based on such errors attack the substance of the decision or rule. In this chapter we are concerned primarily with challenges based on the policy underlying decisions and rules. In the GCHQ case Lord Diplock said (somewhat imprecisely) that the grounds of judicial review were concerned with three types of defect: illegality (by which his Lordship meant 'errors of law' including, for example, taking account of irrelevant considerations), procedural impropriety (by which his Lordship referred to matters discussed in Chapter 8) and irrationality.1 'Irrationality' is more often referred to as 'unreasonableness'. The inherent vagueness in this term creates a great difficulty in expounding the law on this topic: how 'unreasonable' does a decision or rule have to be before it is liable to be quashed? The classic answer to this question is that of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation2: if an authority's decision was 'so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere'. The court does not decide what the reasonable authority would do, but only what no reasonable authority could do. In other words, a court should not strike down a decision or rule on substantive grounds just because it does not agree with it. In GCHQ Lord Diplock said that an irrational decision is one 'so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it'. These dicta define what I will call 'unreasonableness in the narrow

[ 1985] AC374, 410-11.
[ 1948] 1 KB 223. For a more recent statement see R v Secretary of State for the Home Department, ex parte Brind [ 1991] 1 AC 696, 757per Lord Ackner.


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