Q17: What factors in your decision might attract judicial criticism?

Alongside process challenges, there are a variety of circumstances in which a Court may overturn a decision on the basis that it is considered to be unlawful, irrational, unreasonable, or unfair.

What is unlawful, irrational, unreasonable or unfair depends on the context. 

Traditionally, unless persuaded that the decision was outside the available legal powers of the decision-maker or that the process was unfair, courts have been hesitant to interfere with public decision-making and a high bar for challenges applied – only decisions so “perverse, absurd or outrageous in its defiance of logic” that Parliament could not have contemplated them being made would be invalidated.  This is often referred to as ‘Wednesbury unreasonableness’ (named after the English House of Lords case when this formulation was first put forward).  It might also be called irrationality. 

However, the courts are increasingly (and explicitly) varying the intensity of their review, and therefore intervening more readily to determine what is reasonable in some cases than may have been historically the case, based on the nature of the decision-maker or the decision and those affected.  This ‘sliding threshold’ is now considered an ‘orthodox’ judicial approach.

Decisions can be overturned because decision-makers:

  • act for an improper purpose;
  • misunderstand or misapply the legal position;
  • do not act consistently with the available evidence; or
  • act disproportionately.

The four questions that follow (Questions 18 – 21) are expressly designed to help you reduce the risk of a challenge on one of these grounds. 

However, it is also worth ‘stepping back’ from the decision.  Could the decision be said to be objectively unfair? At its most extreme, decisions are now subject to close scrutiny where a court is simply concerned that ‘something has gone wrong’ of sufficient magnitude to ‘require’ the court’s intervention.  This is particular prevalent in cases which involve fundamental rights or in cases where the outcome, in combination with procedural unfairness or failure, appears to demand intervention.  In these cases we can expect heightened scrutiny.