Wednesbury Unreasonableness in Irish Judicial Review: No Evidence of Sub-Super or Pragmatic-Functional Approaches?

Author:Caitriona Coughlan
Position:Senior Sophister Law, Trinity College, Dublin
Pages:176-194
WEDNESBURY UNREASONABLENESS
IN
IRISH
JUDICIAL
REVIEW:
No
EVIDENCE
OF
SUB-SUPER
OR
PRAGMATIC-FUNCTIONAL
APPROACHES?
CAITRIONA
COUGHLAN*
In
his
article,
"Judicial
Review,
the
Doctrine
of
Reasonableness
and
the
Immigration
Process"
'
Gerard
Hogan
criticises
the
O'Keeffe
'no
evidence'
test
of
unreasonableness
of
administrative
action applied
in
Camara
v.
2
Minister
for
Justice.
According
to
the
O'Keeffe
test,
it
is
necessary
that
the
applicant
establish
to the
satisfaction
of
the
court
that
the
administrative
body has
before it
"no
relevant
material
(i.e. no
evidence)
which
would
support
its
decision".
3
In
Camara
Kelly
J.
concluded
that
there
was,
in
fact,
evidence before
the
Refugee
Appeals
Authority
that
could support
and
justify
a
decision that
the
applicant's
claim
was
lacking
in
credibility
and
he
refused
to
grant
the
relief
sought.
Hogan
draws
a
distinction between
the
"rigid"
O'Keeffe
test
as
applied
in
Camara
and
the
"more
subtle"
test
which
has
emerged
in
M
& J
Gleeson
v.
Competition
Authority
4
and
Orange
Communications
Ltd.
v.
Director
of
Telecommunications
Regulations
(No.
2)
5.
According
to
this
latter
test,
the
courts
can
review
the
decision
of
an
expert
tribunal
"if
satisfied
that
a
wrong
inference
had
been
drawn
in
respect
of
a
matter
going
to
the
root
of
the
decision".
6
In
calling
this
the
'more
subtle
test',
Hogan
gives the
impression
that
it
is
simply
a
less
stringent
version
of
the
O'Keeffe
test
in
the
context
of
judicial
review.
However,
he
fails
to
draw
more
than
a
cursory
distinction
between
the
judicial
review
proceedings
in
Camara,
where the
O'Keeffe
test
was
used,
and
the
statutory appeal
proceedings
in
M
& J
Gleeson
and
Orange
Communications,
where
the
'more
subtle
test'
was
used. While
.
Senior Sophister
Law,
Trinity
College,
Dublin.
I
wish
to
thank
Sara
Siebert
for
her
very
helpful
comments
on
an
earlier
draft
of
this article.
However,
any
errors
or
omissions
are
entirely
my
own.
1 Hogan,
"Judicial
Review,
the
Doctrine
of
Reasonablenes
and
the
Immigration Process"
(2001)
6
Bar
Review
329,
at 331.
2
Camara
v.
Minister
for
Justice
Unreported,
High
Court,
26
July 2000.
3O'Keeffe
v.
An
Bord
Plean6la
[1993]
1
IR 39, at
72
(hereinafter
O'Keeffe).
4
M
& J
Gleeson
v.
Competition Authority
[1999] 1
ILRM
401
(hereinafter
M
& J
Gleeson).
5
Orange
Communications
Ltd.
v.
Director
of
Telecommunications
Regulations
(No.2)
[2000]
4
IR
136
(hereinafter
Orange
Communications).
6
Hogan,
loc.
cit.,
at
331.
©
Caitriona
Coughlan
and Dublin
University
Law
Society
2003]
Wednesbury
Unreasonableness
in
Irish
Judicial
Review
177
such
a
distinction
may well
be
forgotten
by
the Irish
courts
in a
future
departure
from
the
O'Keeffe
test
in
the
context
of
judicial
review,
there
is
at
present
in
this
jurisdiction
an
allegiance
to
the
past, rigid
though
it
may
be.
The
Proper
Role
of
Judicial
Review
Hogan
maintains
Lord
Brightman
in
Chief
Constable
of
North
Wales
Police
v.
Evans
was
incorrect
to
regard
judicial
review
as
concerned
"not
with
the
decision,
but with
the
decision-making
process".
7
Lord Brightman
neglected
to
mention
the
ground
of
Wednesbury
unreasonableness
where
the
courts
are
indeed
concerned
with
the
decision.
To this
extent,
Hogan
argues that
judicial
review
"operates
as
a
limited
form
of
appeal
from the
decision
maker".
8
An
initial
point
must
be
made:
English
academic
commentary
quickly
identified
the limited
reach
of
judicial
review
according
to
this
dictum.
Peiris
disagreed
with Lord Brightman
in
1987,
and
indicated politely
to
the
expanding
canvas
of
judicial
review. He
pointed
to
a
"philosophy"
in
the
case
law
that
"appears
to
admit
of
greater
scope
for
substantive
review".
9 He
argued that
the
view
that
Wednesbury
unreasonableness
allows
the
courts
more
scope
to
review
the
substance
of
the
decision developed
from
Lord Greene
M.R.'s
view
of
unreasonableness
in
Associated
Provincial
Picture
House
Ltd.
v.
Wednesbury
Corporation
t°
as
"something
so
absurd that
no
sensible
person could
ever
dream
that
it
lay
within
the
powers
of
the
authority",
"
together
with
Lord Diplock's
view
in
Council
of
Civil
Service
Unions
v.
Minister
for
the
Civil
Service
(GCHQ)
that
unreasonableness
could
stand
on
its
own
two
feet
as
an
accepted ground
of
review.'
2
Jowell
and
Lester,
in
the
same
year,
rebuked
Lord
Brightman
as
giving
"the
impression that
the
substance
of
official
decisions
is
immune
from
review".
3
They
argued that
in
Wednesbury
Lord
Greene
M.R.
actually
unsatisfactorily
distinguished
between
two
grounds
7
[1982]
1
WLR
1155,
at
1173-1174
(hereinafter
Chief
Constable
of
North
Wales).
8
Hogan,
loc.
cit.,
at
331.
9
Peiris,
"Wednesbury
Unreasonableness:
The Expanding
Canvas"
(1987)
46
CambLJ
53,
at
53.
'0
[1948]
1
KB
223
(hereinafter
Wednesbury).
"
[19481
1
KB
223, at 229. He
identifies
also
the Lord
Greene
M.R. view
of
unreasonableness
that
is
"a
general
description
of
the
things
that
must not
be
done" Peiris,
loc.
cit.,
at 53.'
12
Council
of
Civil
Service Unions
v.
Minister
for
the
Civil Service
[1985]
AC
374,
at
411
(hereinafter
GCHQ).
13
Jowell and
Lester, "Beyond
Wednesbury: Substantive
Principles
of
Administrative
Law"
[1987]
PL
368,
at
369-371.

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