Standard of JR of discretionary powers by Stephen Carruthers

The Wednesbury Test

stephencarruthers — 2020-10-19 22:03:59 UTC

�Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947]

�‘It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere…It is not what the court considers unreasonable, a different thing altogether.’

The Keegan test

stephencarruthers — 2020-10-19 22:05:52 UTC

State (Keegan) v Stardust Victims Compensation Tribunal [1986] SC

�Henchy J. ‘I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense.. The necessarily implied limitation of jurisdiction in all decision-making which affects rights or duties requires, inter alia, that the decision-maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision.’

The O'Keefe Test

stephencarruthers — 2020-10-19 22:06:38 UTC

Denis O'Keeffe v. An Bord Pleanála [1992] SC

Finlay CJ : ‘the circumstances under which the court can intervene on the basis of irrationality with the decision-maker involved in an administrative function are limited and rare – it is necessary that the decision making authority had before it no relevant material which would support its decision.’.

The Meadows test

stephencarruthers — 2020-10-19 22:07:54 UTC

Meadows v MJELR [2010] SC

Majority rejected English ‘sub-Wednesbury’ or ’anxious scrutiny test in favour of role for proportionality within reasonableness test

Per Murray C.J.

‘The principle requires that the effects on or prejudice to an individual’s rights by an administrative decision be proportional to the legitimate objective or purpose of that decision. Application of the principle of proportionality is in my view a means of examining whether the decision meets the test of reasonableness.
per Denham J. :’ I am satisfied that the test in The State (Keegan) v. Stardust Victims’ Compensation Tribunal should be applied, and in construing whether the decision was reasonable it is part of that analysis to determine whether it was within the implied constitutional limitation of jurisdiction which affects rights, whether the decision was proportionate.
Fennelly J. " the application of the principle of proportionality could provide “a sufficient and more consistent standard of review, without resort to vaguer notions of anxious scrutiny.” He held that the “underlying facts and circumstances of cases can and do vary infinitely”, but that the irrationality test would be “sufficiently responsive to the needs of any particular case.

Post-Meadows caselaw

stephencarruthers — 2020-10-19 22:19:43 UTC

Charleton J. in AAA v. The Minister for Justice [2017] IESC 80

On this appeal, there was no fact demonstrated in any decision affecting the applicants as being so unreasonable as to require it to be quashed or so lacking in proportion to the evidence presented as to fail to be reasonable in itself. '

AMS v Minister for Justice [2014] IESC 65

Clarke J.

7.12 Thus the proper approach in this case is to assess whether, having regard to the extent of any interference with the rights or interests of Mr S and his family members, such interference is justified on the basis of the legitimate aims sought to be advanced. Obviously, many decisions taken in the administrative field involve the exercise of a judgment which involves a balancing exercise. In such cases the court, in recognising that the law has conferred on the relevant decision maker the primary power to exercise the relevant adjudicative function, should accord a reasonable margin of appreciation to the views of that decision maker. However, where an applicant discharges the burden of demonstrating that the proportionality judgment of the decision maker was unreasonable in the sense identified by Fennelly J. in Meadows, then the courts must intervene.”

Held Minister's decision disproportionate

Elijah Burke v Minister for Education and Skills [2022] IESC 1

O’Donnell J. para 95.m“It has been found useful to approach the question of the validity of any action, legislative or otherwise, which affects constitutional rights by using the tool of proportionality. While I do not think that proportionality, as discussed in the case law to date, is necessarily a precise or a failsafe test, it is nevertheless a useful frame of analysis which can be employed in this context, where the issue is whether a provision which affects a constitutionally protected right is an impermissible interference with that right.”

Held decision of Minister disproportionate.

O’Doherty and Waters v Minister for Health. [2022] IESC 32

SC rejected Canadian approach in Oakes that onus on state to justify constitutionality of legislation if applicant established infringement of right under Canadian Charter

Proportionality test

stephencarruthers — 2021-11-12 12:15:38 UTC

Heaney v Ireland [1994]

Costello J.: ‘’in order to be acceptable the objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. “It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must (a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations; (b) impair the right as little as possible; (c) be such that their effects on rights are proportional to their objective.…”