'Anxious Scrutiny' in the Irish Courts: Too Little, Too Late?

Date01 January 2008
‘Anxious Scrutiny’ in the Irish Courts:
Too Little, Too Late?
Since it was articulated by Lord Greene MR in Wednesbury,1
“unreasonableness”, as a distinct ground of review, has firmly established
itself in the ca non of administrativ e law.2The Irish courts have long since
embraced the doctrine, however they have been more reticent about
accepting Wednesbury’s progeny; namely the variable standards of
reasonablenes s review which the English courts adopt depen ding on the
subject matter of the decision under review. This reticence, however, appears
to be waning, and a line of recent High Court decisions, along with
significant obiter statements in t he Supreme Court, indicate that ‘anxio us
scrutiny’ may now play a role in determining the reasonableness of
administrativ e decisions, where such decisions impact on fundamental
constitutional or human rights. While this emergent trend is not yet settled,3
it will, assuming it is allowed to stand, represent a welcome departure from
the traditional approach in this jurisdiction.
* LLB (Dublin), LLM (NUI). Lecturer in Law, National University of Ireland, Galway.
Thanks to Cliona Kelly and Michael Farrell for comments on an earlier draft. While
this article undoubtedly benefited fr om their thoughtful comm ents, any remaining
defects of style or content are entirely my own.
1Associated Prov incial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB
2See generally Sir John Laws, “Wednesbury” in Forsyth an d Hare (eds), The Golden
Metwand and the C rooked Cord (Oxford: Clarendon Press, 1998) 185, Michael
Fordham, “Wednesbury” (2007) 7 Judicial Review 266 and Andrew Le Sueur, “The
Rise and Ruin of Unreasonableness” (2005) 6 Judicial Review 32. Although it is fair
to say that Wednesbury provided the impetus for the modern doctrine of unreas -
onableness, it should be noted that the general principle t hat discretionary p ower
must be exercised in accordance with law and reason has its fore runners stretching
back to at least the sixteenth century, see HWR Wade and CF Forsyth, Administrative
Law (9th Ed) (Oxford: Oxford University Press, 2004) at pp 351–353.
3Ultimately the issue may be settled by the Supreme Court in the case of Meadows v
Minister for Justice, which is an appeal from the High Court judgment of Mr Justice
Gilligan. In granting the applicant leave to appeal to the Supreme Court pursuant to
s 5(3)(a) of the Illegal Immigrants (Trafficking) Act, 2000, Gilligan J stated that the
point to be determined by the Supreme Court was whether or not “in determining the
reasonableness of an administrative decision which affects or concerns constitutional
rights or fundamental rights is it correct to apply the standard as set out in O’Keeffe
O'Connell:Layout 1 28/05/2009 15:55 Page 75
This article briefly sets out the devel opment of variable standards of
reasonableness review in the English courts; the adoption of reasonableness
by the Irish courts and their initial hesitance to adopting variable standards,
before then goin g on to consider the more recent cases which appear to
evince an openness to this approach. This article will also consider whether
or not this departure from rigid reasonableness has come too late to make
any real difference, given the potential supplanting of reasonableness with
proportionality review.
Super and Sub-Wednesbury in the English Courts
In Associated Provi ncial Picture Houses Ltd v Wednesbury Corporation,4
Lord Greene MR acknowledged two distinct meanings for the term
“reasonable” when assessing the dec ision of a public body. In the fi rst
instance, the “umbrella” sense of the word,5the decisi on of a public body
would be co nsidered unreasonable when it transgressed any of the well
established grounds for judicial review (for example, where the decision
maker had regard to i rrelevant considerations, exceeded jurisdiction or
breached the principles of natural justice).6Secon dly, the decision of a
public body would be unreasonable in a much more limited sense, wh ere
the decision maker “came to a conclusion that was so unreasonable that no
authority could ever have come to it.”7It is this latter sense which we call
Wednesbury unreasonableness, and which, after Lord Greene’s articulation,
became well established as a distinct ground of review. Subsequently in the
GCHQCase,8Lord Diplock he ld that for a decision to be quashed for
being irrational,9it would have to be shown that it was “so outrageous in
its defiance of logic or accepted mo ral standards that n o sensible person
v An Bord Pleanala [1 993] 1 IR 39”, Meadows v Minis ter for Justice [2003] IEHC
79 (Un reported, High Court, 4 November 2003). The Supreme Court has yet to
deliver judgment in this appeal, but the precise contours of reasonableness review in
Ireland will be shaped by this judgment and, based on the dicta in a number of recent
Supreme Court decisions (discussed below), it is at least probable that the Court will
opt for some form of “anxious scrutiny”, although this is by no means certain.
5Paul Craig, Administr ative Law (5th ed) (London: Thomson Sweet & Maxwell,
2003) at p 553.
8Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
9In this case Lord Dipl ock treats the word “irrational” as being synon ymous with
“unreasonable”, following this decision the cour ts, both in Eng land and Ireland ,
have adopted a similar approach, using the two terms interchangeably. For a critique of
this see Mark de Blacam, Judicial Review (Dublin: Butterworths, 2001) at pp 154–155
and Paul Walker, “Unreasonableness and Proportionality” in Supperstone, Goudie
and Walker, eds, Judicial Review (3rd ed) (London: Lexis-Nexis/Butterworths, 2005)
169 at p 174.
O'Connell:Layout 1 28/05/2009 15:55 Page 76

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT