British Government and the Constitution

The second ground for JR identified by the GCHQ10 judgement was that of Irrationality, or Wednesbury unreasonableness. Lord Diplock in his judgement said of irrationality 'it applies to a decision which is 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'.

The principle of unreasonableness was created in Associated Provincial Picture Houses v Wednesbury Corporation11 where Lord Greene MR tells us 'an authority may come to a conclusion so unreasonable that no reasonable authority could ever come to it….but to prove a case of that kind would require something overwhelming'.

Most of the authority on this matter deals with circumstances that are far beyond the inconvenience that Sam will suffer, such as R v Norfolk CC ex parte M12 where M's name was entered into the child abuse register with no opportunity to rebut the allegations, and the employer of M was secretly informed. The judgement in this decision stated that it would come within the wednesbury principle, again showing how strict it is, although it may be a useful argument if used alongside improper purposes, as the test has proved so hard to satisfy.

Procedural Impropriety concerns errors that occur in the way the decision is made rather than the actual substantive element of the decision in question, this will be very important for Sam because the main form of procedural error at common law is when there has been a breach of the rules of natural justice, or 'nemo judex in causa sua' the two rules of natural justice are commonly known as 1) the right to a fair hearing before a decision is taken 2) The absence of bias.

The main rule of natrual justice that Sam may be able to base his argument on is that of the absence of bias, because it seems simple for an aggrieved party to claim there is bias on the decision making body, the courts have designed a test, R v Gough13 which says: 'did the circumstances suggest a "real danger", i. e. a real risk or a real possibility, of bias in the eyes of the court?

This test has recently become more objective in its approach and now the court needs to consider whether 'a fair minded and informed observer' (excluding the review court) would conclude there was 'a real possibility' of bias. In this scenario, because Saruman is chairman of the Culture and Entertainment committee that made the arrangements for the rock festival, and that his brother is playing at the festival there may be a strong suggestion of a breach of the natrual rules of justice as Saruman is associated with one of the other parties in the rock festival (his brother).

We know he is a heavy metal fan, possibly allowing his personal opinions to prejudice his decisions. The scenario suggests that he dislikes the residents of Bagshot Row, if this is another reason behind why he is planning it, then it seems likely to pass the test for bias set out by the case above. Since the introduction of the Human Rights Act 1998 where S 6 (1) tells us that 'it is unlawful for a public authority to act in a way which is incompatible with a Convention right'.

Therefore it may be said that Hobbiton DC are in breach of Article 8 that says 'everyone has the right to respect for his private and family life, his home and correspondence' because of their Interference with the residents' of Bagshot Row's private and family lives and are not showing respect for these rights. This issue of Human Rights closely relates with the less certain ground of JR of Proportionality. Unlike the other grounds discussed so far that Sam may base his claim on, this is a less certain area.

Lord Diplock in the GCHQ14 case merely stated that it seems likely to develop into a principle of public law, rather than stating that it already was one, however it is being given increased strength by the judges comments on it, for example in R(on the application of Alconby Developments) v Secretary of State for the environment15 Lord Slynn tells us that '… the time has come to recognise that proportionality is part of English Administrative law'.

'If an action to achieve a lawful objective is taken in a situation where it will restrict a fundamental right, the effect on the right should not be disproportionate to the public purpose sought to be achieved'16 therefore, the concept of proportionality is closely linked with Human rights. It seems that the current standing on it is that if a public body acts in complete breach of a convention right, then the decision will be deemed illegal, the principle also requires the balancing of conflicting interests, and the correct result to be achieved without favouring one side or the other.

The next thing that needs discussion is the legal remedies that may be available to Sam if his application for review was to succeed. There are 6 remedies available through JR, these are Prohibition, which is a prohibiting order, to prevent Ultra Vires action being taken. Certiorari is simply a quashing order to quash a decision that is UV or flawed, Mandamus orders the performance of a public duty.

These are the ancient orders that may act as remedies for the aggrieved. There are 3 further remedies available that have developed in the common law, and take a more modern approach. These are Declaration, which simply declares the legal position and rights of the parties. Injunction which can order something to be done, or not to be done. Damages are also sometimes available in conjunction with another remedy of a breach of contract or Tort can be established.

Before any of these remedies may be obtained, Sam needs to go through the correct procedure to make a claim for JR. They must be made the administrative court where firstly, Sam must prove he has an arguable case, then if permission is granted the hearing of the actual claim for review will take place.

1 "British Government and the Constitution" Text, Cases and materials 3rd Ed. Colin Turpin. 2 Section 6 (1). 3 'Public Law and Human Rights' Text, Cases And materials 2nd ed. Fenwick and Phillipson.