12. Grounds for Judicial Review: Irrationality, Proportionality, Merits-Based Judicial Review, and the Human Rights Act 1998

Irrationality
  • Irrationality means unreasonableness which is now linked to the principle of proportionality.
  • Unreasonableness is a comprehensively used term capable of meaning that a person given a discretionary power has, among other things, reached a conclusion which is so absurd that no reasonable authority could ever have come to it.
  • The key principle is that where an administrative decision is made in the context of human rights the court will require a proportionately greater justification before being satisfied that the decision is within the range of responses open to a reasonable decision-maker, according to the seriousness of the interference with those rights.
Proportionality
  • In the context of human rights it applies where the state can limit rights for legitimate purposes.
  • The state should do no more than is absolutely necessary to achieve the legitimate purpose of limiting the right.
  • Proportionality requires that there must be a reasonable relationship between the objective being sought and the means used to achieve it.
Merits-Based and Procedural Review
  • Procedural review means that judicial review is concerned primarily with the decision-making process as opposed to the correctness of the decision itself. In a judicial review, the reviewer/court must uphold the decision under review, even if they think a different decision would have been better, unless there is a flaw in the process by which the original decision-maker made the decision.
  • Merits-based review is when a reviewer can start from scratch and decide what the right decision should be (which may or may not be the same as the original decision-maker’s decision); they can form their own view of the facts and exercise their own discretion.

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