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

• Date: 01 January 2008

‘Anxious Scrutiny’ in the Irish Courts:

Too Little, Too Late?

PAUL O’CONNELL*

Introduction

Since it was articulated by Lord Greene MR in Wednesbury,1

“unreasonableness”, as a distinct ground of review, has firmly established

itself in the canon of administrative law.2The Irish courts have long since

embraced the doctrine, however they have been more reticent about

accepting Wednesbury’sprogeny; namely the variable standards of

reasonableness review which the English courts adopt depending 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 obiterstatements in the Supreme Court, indicate that ‘anxious

scrutiny’ maynow play a role in determining the reasonableness of

administrative 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 from their thoughtful comments, any remaining

defects of style or content are entirely my own.

1Associated Provincial Picture Houses Ltd v Wednesbury Corporation[1948] 1 KB

223.

2See generally Sir John Laws, “Wednesbury” in Forsyth and Hare (eds), The Golden

Metwand and the Crooked 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 Wednesburyprovided the impetus for the modern doctrine of unreas -

onableness, it should be noted that the general principle that discretionary power

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(9thEd) (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 inO’Keeffe

O'Connell:Layout 1 28/05/2009 15:55 Page 75

This article briefly sets out the development 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 going 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-Wednesburyin the English Courts

In Associated Provincial Picture Houses Ltd v Wednesbury Corporation,4

Lord Greene MR acknowledged two distinct meanings forthe term

“reasonable” when assessing the decision of a public body. In the first

instance, the “umbrella” sense of the word,5the decision of a public body

would be considered unreasonable when it transgressed any of the well

established grounds for judicial review (for example, where the decision

maker had regard to irrelevant considerations, exceeded jurisdiction or

breached the principles of natural justice).6Secondly, the decision of a

public body would be unreasonable in a much more limited sense, where

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

Wednesburyunreasonableness, and which, after Lord Greene’s articulation,

became well established as a distinct ground of review. Subsequently in the

GCHQCase,8Lord Diplock held 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 moral standards that no sensible person

v An Bord Pleanala[1993] 1 IR 39”, Meadows v Minister for Justice[2003] IEHC

79 (Unreported, 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 dictain 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.

4[1948] KB 223.

5Paul Craig, Administrative Law(5th ed) (London: Thomson Sweet & Maxwell,

2003) at p 553.

6[1948] KB 223, 230.

7[1948] KB 223, 230.

8Council of Civil Service Unions v Minister for the Civil Service[1985] AC 374.

9In this case Lord Diplock treats the word “irrational” as being synonymous with

“unreasonable”, following this decision the courts, both in England 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.

76PAULO’CONNELL

O'Connell:Layout 1 28/05/2009 15:55 Page 76