380 General Principles of Constitutional and Administrative Law

Department ex parte Hargreaves (1997) the Court of Appeal con-

demned the ‘heretical’ doctrine of Sedley J, holding that a legitimate

expectation did not prevent a change of policy being no more than a

factor which the decision maker should take into account. Neverthe-

less in R. v. North Devon Health Authority ex parte Coughlin (2000), the

Court of Appeal held that a severely disabled resident of a local

authority nursing home could hold the local authority to a previous

assurance that it would be her home for life. The authority prop-

osed to close the home in order to transfer nursing care to the local

authority. The Court of Appeal held that the assurance created an

enforceable legitimate expectation which only an overriding public

interest could displace. The scope of this is not clear. In particular the

right to respect for home and family life (European Convention on

Human Rights Art. 8) was in issue thereby raising the threshold of

review. Moreover, although the decision to close the home had finan-

cial consequences for the authority, it was not the application of a

government policy.

In Coughlin Lord Woolf took the view that an enforceable legiti-

mate expectation should be confined to one or a few people. This

relates to the issue of equality. Where the undertaking in question is

given to particular individuals there is a strong argument that these

deserve special consideration. However, the expectation is often gener-

ated by a general policy announced in a circular, or a general practice.

In this kind of case the legitimate expectation doctrine, in as much as it

singles out the claimant for special treatment, may be regarded as

unfair. It is arguable that, where the claimant relies on an announce-

ment or practice directed to the public at large, the claimant must show

that s/he has acted on the expectation so as to incur expense or other

detriment (see R. v. Jockey Club ex parte RAM Racecourses [1983] 2 All

ER 225 at 236–240). However, in Hamble (above), which concerned

a general policy, Sedley, J held that detriment was not required to

enforce a legitimate expectation.

The legitimate expectation debate sets the individual claim to

respect against the majoritarian public good. The law cannot combine

these goods and so reaches an untidy accommodation by offering the

individual a hearing which might persuade the authority to change its

mind. Legitimate expectations must therefore also be considered under

the head of procedural impropriety. Another rough and ready solu-

tion would be to pay compensation to the victim. Unfortunately there

is no right to compensation in UK law for unlawful administrative

action as such.

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Judicial Review of the Executive: The Grounds of Review

16.4.7 Duty and discretion

The reverse problem to that of fettering discretion sometimes arises.

This is where an authority claims to have a discretion when the statute

itself appears to impose an absolute duty and arises most frequently

when a local authority fails to provide a benefit, for example a welfare

payment, medical treatment or a school place, on the ground that it

does not have sufficient resources and must prioritise between different

kinds of need. If the court were to order the authority to perform the

duty, the rule of law would be asserted and political pressure put on

the government to come up with the necessary resources. On the other

hand the court cannot command the impossible and the claimant

would be merely a stalking horse for a broader political agenda.

Moreover the imposition of a duty inhibits democratic choice. The

courts are required to interpret the particular statute in order to

determine whether the duty intended to be absolute (mandatory) or

permissive. Words such as ‘shall’ or ‘must’ or ‘may’ are indicative but

not conclusive and the whole statutory context must be examined.

There appears to be no general principle and the judges often disagree.

For example in R. v. Gloucestershire County Council ex parte Barry

(1997), the House of Lords by a bare majority held that the duty

created by s. 2 of the Chronically Sick and Disabled Persons Act 1970

to ‘make arrangements . . . if satisfied . . . that these were ‘necessary’ in

order to meet the needs of a chronically sick and disabled person’ gave

the authority a discretion to choose between competing demands. The

majority controversially held that the concept of need was relative

to the cost of providing the service whereas Lord Lloyd and Lord

Steyn (dissenting) were concerned by the inequity of different stan-

dards being applied in different local areas. In R. v Birmingham City

Council ex parte Mohammed (1998) Dyson J suggested that the courts

should be slow to downgrade a duty into a discretion. (See also R. v.

East Sussex CC ex parte Tandy (1998); R. v. Sefton MBC ex parte

Help the Aged (1997).)

Where the claim falls within the Human Rights Act 1998, for

example if it involves respect for the home and family life (European

Convention on Human Rights Art. 8), the duty might well be treated

as mandatory. However, in R. v. Newham London Borough Council

ex parte Begum (2000), the local authority had failed to ensure that

suitable accommodation was provided under the Housing Act 1996

s. 193 for a homeless family. Collins J adopted a compromise approach

which depends on the court’s discretion. He took the view that a duty

382 General Principles of Constitutional and Administrative Law

will not be unreasonably enforced against a local authority but it must

show that it is doing all it can to comply with its legal obligations.

16.5 Irrationality/Unreasonableness

Irrationality or unreasonableness can be used to challenge the exercise

of discretion or findings of law and fact. The notion of ‘unreason-

ableness’ is so vague that it seems to invite the court to impose its

own opinion of the merits for that of the decision maker. However, it

has a special and limited meaning. This ground of review is usually

called ‘Wednesbury unreasonableness’ after Lord Greene’s speech in

Associated Provincial Picture Houses Ltd v. Wednesbury Corporation

(1948). Lord Greene MR emphasised that the court will interfere only

where a decision is so unreasonable that no reasonable authority could

have made it, not merely because they think it is a bad decision.

Another way of putting it is that the decision must be ‘beyond the range

of responses open to a reasonable decision maker’ (R. v. Minister of

Defence ex parte Smith [1996] 1 All ER 257 at 263–4; see also R. v. Chief

Constable of Sussex ex parte International Traders Ferry Ltd [1999]

1 All ER 129 at 157).

This is sometimes equated with ‘perversity’ or ‘irrationality’.

In CCSU v. Council of Civil Service Unions [1984] 3 All ER 935 at 951,

Lord Diplock said that the courts will interfere only where a decision

has no rational basis or ‘is so outrageous in its denial of . . . accepted

moral standards that no sensible person who has applied his mind to

the question to be decided could have arrived at it.’ For example in

Brind v. Secretary of State for the Home Department (1991) the

government banned live media interviews with supporters of the IRA.

The House of Lords held that, although the ban was probably

misguided, it had some rational basis as a means of denying publicity

to terrorists and was therefore valid (see also R. v. Radio Authority ex

parte Bull [1997] 2 All ER 561, 577).

Perversity therefore produces a low level of review to the point

almost of non-existence. However, although successful challenges for

unreasonableness are rare, they are not confined to perversity. For

example in Hall v. Shoreham Urban District Council (1964) a local

authority planning condition required the plaintiff to dedicate a road

to the public. This was held to be unreasonable because it amounted to

the confiscation of property without compensation. The condition was

hardly perverse or immoral given that the plaintiff stood to make

considerable profit out of the permission. Moreover unreasonableness

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Judicial Review of the Executive: The Grounds of Review

may overlap with other grounds. In Wheeler v. Leicester City Council

(1985), a local authority refused to allow a rugby club to use its play-

ing field. This was because the club had not approved certain of

its members from touring in South Africa during the apartheid era.

The House of Lords held that the Council had acted unlawfully. This

could be regarded as unreasonable infringement of individual free-

dom, or as a decision based upon an improper political purpose, or as

an unfair decision in that the matter had been prejudged. Today

Wheeler would probably be explained on human rights grounds, a

perspective which was raised in the Court of Appeal but the House of

Lords avoided.

A more flexible approach to unreasonableness is to ask whether a

reasonable decision maker in the light of the material properly before

him could reasonably justify his decision. This enables the court to

apply different levels of scrutiny in different contexts, what Laws LJ in

R. (Mahmood) v. Secretary of State [2001] 1 WLR 840 called a sliding

scale: ‘the graver the impact of the decision upon the individual the

more substantial the justification that will be required’. In particular

an ‘anxious scrutiny’ is required for a decision that impacts on human

rights’ (below). This approach therefore requires the court to consider

the weight given to the relevant factors.

At the other end of the scale, where a decision depends on social,

economic or political factors or matters ‘remote from ordinary judicial

experience’ the court should, as a matter of practical reality, be cau-

tious in interfering perhaps falling back on Lord Diplock’s rationality

test. For example it has been held that the courts will not interfere with

a decision concerning the allocation of public resources in sensitive

political contexts for irrationality except in extreme cases (Nottin-

ghamshire CC v. Secretary of State for the Environment (1986): central

grants to local government; see also Hammersmith and Fulham LBC v.

Secretary of State for the Environment (1990); R. (Asif Javed) v. Secre-

tary of State for the Home Department (2001)). National security cases

are also subject to a low level of review (see Chapter 22).

R. v. Cambridge Health Authority ex parte B (1995) illustrates the

difference between the two approaches. The courts were asked to

review a NHS decision not to allocate funds to an experimental but

possibly life-saving treatment to a child suffering from leukaemia.

Laws J invoked the right to life under the ECHR, holding that a

specially strong justification was required to override the right to life.

The Court of Appeal, overruling Laws J, applied the ‘rationality’

standard according to which it is not for the court to weigh the

competing considerations.